Bright v. McIntosh et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
WILLIE BRIGHT,
Plaintiff,
v.
D. MCINTOSH, Superintendent; EARL
BELL, Ex-Superintendent; SWEENEY,
Prea Deputy; DURKIN, Lieutenant;
STRACK, Sergeant; JOHN DOE, SHU
Sergeant; JOHN DOE ASSAULTING
OFFICERS, formerly known as John Doe
1-4; JANE DOE, Medical Nurse; JOHN 	9:23-CV-1105
DOE, Sergeant; JANE DOE, Medical 	(AMN/ML)
Nurse; JOHN DOE, Medical Nurse;
HEARING LT JOHN DOE; A.
ANNUCCI, DOCCS Commissioner;
D’AMICO, Dr.; JOHN DOE, Medical
Escort Sergeant; JOHN DOE, Mess Hall
Escort Officer; ROSSEY, OMH Employee;
SCOTT, OMH Employee; G. SAVAGE,
OMH Employee; G. CLEVELAND,
OMH Employee; GILLANI, OMH
Employee; B. EGGLESTON, Correction
Officer; T. HARRIGAN, Health Services
Deputy; MARY BETH GILLEN, Nurse;
McCOY, OMH Employee; JOHN DOE,
Strip Search Officers; and LaFOREST,
Corrections Officer,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
WILLIE BRIGHT
Pro Se Plaintiff
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
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LETITIA A. JAMES 	RACHAEL OUIMET, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Counsel for Defendants D. McIntosh, Earl Bell,
Sweeney, Durkin, Strack, A. Annucci, D’Amico,
Scott, G. Savage, G. Cleveland, Gillani, B.
Eggleston, T. Harrigan, Gillen, McCoy, and
Laforest
The Capitol
Albany, New York 12224
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
Currently before the Court, in this civil rights action filed by Willie Bright (“Plaintiff”)
against D. McIntosh (Superintendent), Earl Bell (ex-Superintendent), Sweeney (Prea Deputy),
Durkin (Lieutenant), Strack (Sergeant), John Doe (SHU Sergeant), John Doe Assaulting
Officers, Jane Doe (Medical Nurse), John Doe (Sergeant), Jane Doe (Medical Nurse), John Doe
(Medical Nurse), Hearing Lt. John Doe, A. Annucci (DOCCS Commissioner), D’Amico
(doctor), John Doe (Medical Escort Sergeant), John Doe (Mess hall escort officer), Rossey
(OMH Employee), Scott (OMH Employee), G. Savage (OMH Employee), G. Cleveland (OMH
Employee), Gillani (OMH Employee), B. Eggleston (Correction Officer), T. Harrigan (Health
Services Deputy), Mary Beth Gillen (Nurse), McCoy (OMH Employee), John Doe (Strip Search
Officers), and Laforest (Corrections Officer)1 (collectively “Defendants”), is a motion for partial
summary judgment and partial motion to dismiss filed by Defendants McIntosh, Bell, Sweeney,
Durkin, Strack, Annucci, D’Amico, Scott, Savage, Cleveland, Gillani, Egglestone, Harrigan,
1 	The Clerk of the Court is directed to update the caption of this action such that (1)
Defendant Laforce is changed to LaForest, (2) Defendant Nurse Mary Beth is changed to Mary
Beth Gillen, (3) Defendant Galonney is changed to Gillani, (4) Defendant McCoyrn is changed
to McCoy, and (5) Defendant Dameeko (who is also sometimes referred to as Dameki) is
changed to D’Amico. (Dkt. No. 61, Attach. 1 at 3 n.1.)
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Gillen, McCoy, and Laforest (collectively “Moving Defendants”). (Dkt. No. 61.) For the
reasons set forth below, I recommend that Moving Defendants’ motion be granted in part and
denied in part.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
At this procedural posture, Plaintiff asserts the following twenty-six claims: (1) a
retaliation claim pursuant to the First Amendment against Defendant Annucci based on
Plaintiff’s transfer out of Green Haven Correctional Facility, allegedly as punishment for
Plaintiff’s pursuit of Bright v. Annucci (“First Retaliation Claim”); (2) a retaliation claim
pursuant to the First Amendment against Defendants Strack, Bell, and McCoy based on these
officials withholding Plaintiff’s property, placing him in a cold cell with no clothes, and
fabricating a self-harm report in response to Plaintiff’s refusal to sign the Withdrawal Letter
(“Second Retaliation Claim”); (3) a retaliation claim pursuant to the First Amendment against
Defendants Strack and McCoy based on these officials subjecting Plaintiff to an unlawful strip
search based on his refusal to sign the Withdrawal Letter (“Third Retaliation Claim”); (4) a
retaliation claim pursuant to the First Amendment against Defendants Mary Beth Gillen, McCoy,
Savage, Cleveland, Scott, and Gillani based on these officials denying Plaintiff access to
adequate medical care in response to his refusal to sign the Withdrawal Letter (“Fifth Retaliation
Claim”); (5) a retaliation claim pursuant to the First Amendment against Defendant Strack based
on this official orchestrating Plaintiff’s receipt of false misbehavior reports, and denying Plaintiff
access to his prison job, meals, mail, and water because of his refusal to sign the Withdrawal
Letter (“Ninth Retaliation Claim”); (6) a retaliation claim pursuant to the First Amendment
against Defendant Eggleston based on this official destroying Plaintiff’s personal property,
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reviewing his legal mail, and issuing him a false misbehavior report because of his pursuit of
Bright v. Annucci (“Eleventh Retaliation Claim”); (7) a retaliation claim pursuant to the First
Amendment against Defendant Strack based on this official transferring Plaintiff to the
“disciplinary block” in response to Plaintiff authoring a PREA complaint (“Twelfth Retaliation
Claim”); (8) a retaliation claim pursuant to the First Amendment against Defendant Durkin based
on this official finding Plaintiff guilty of disciplinary infractions because Plaintiff would not sign
the Withdrawal Letter (“Thirteenth Retaliation Claim”); (9) a retaliation claim pursuant to the
First Amendment against Defendant Rossey based on this official forcing Plaintiff to remain in
the OMH area and administering him a vaccine because of his refusal to sign the Withdrawal
Letter and rescind written complaints against Defendants McCoy and Strack (“Fourteenth
Retaliation Claim”); (10) a retaliation claim pursuant to the First Amendment against Defendants
Savage, Cleveland, McIntosh, and Sweeney based on these officials discharging Plaintiff from
the OMH holding area so that he could be transferred to the SHU because of his refusal to sign
the Withdrawal Letter (“Fifteenth Retaliation Claim”); (11) a retaliation claim pursuant to the
First Amendment against Defendant John Doe Assaulting Officers based on these officials
assaulting Plaintiff for his refusal to drop his ongoing lawsuit (“Sixteenth Retaliation Claim”);
(12) a retaliation claim pursuant to the First Amendment against Defendants Corrections
Sergeant John Doe #1, McIntosh, Harrigan, and Nurse Jane Doe based on these officials refusing
to allow Plaintiff to possess a neck brace because of his refusal to sign the Withdrawal Letter
(“Seventeenth Retaliation Claim”); (13) a retaliation claim pursuant to the First Amendment
against Defendant LaForest based on this official preventing Plaintiff from working his prison
job, and turning off the water in his cell, because of his refusal to terminate his ongoing lawsuit
(“Eighteenth Retaliation Claim”); (14) a retaliation claim pursuant to the First Amendment
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against Defendant Hearing Lieutenant John Doe based on this official finding Plaintiff guilty of
disciplinary charges because of his refusal to sign the Withdrawal Letter (“Nineteenth Retaliation
Claim”); (15) an unlawful search claim pursuant to the Fourth Amendment against Defendants
McCoy, Strack, and the John Doe Strip Search Officers; (16) a conditions-of-confinement claim
pursuant to the Eighth Amendment against Defendant Strack based on this official denying
Plaintiff access to meals and water in his cell (“Fourth Conditions-of-Confinement Claim”); (17)
a conditions-of-confinement claim pursuant to the Eighth Amendment against Defendant
LaForest based on this official turning off water in Plaintiff’s cell and denying him meals
(“Seventh Conditions-of-Confinement Claim”); (18) a medical indifference claim pursuant to the
Eighth Amendment against Defendants Gillen and McCoy based on these officials denying
Plaintiff access to medical treatment for a bleeding “nose and anus” (“First Medical Indifference
Claim”); (19) a medical indifference claim pursuant to the Eighth Amendment against
Defendants Savage, Cleveland, McIntosh, and Sweeney based on these officials discharging
Plaintiff from the OMH holding area and facilitating his transfer to the SHU despite his prior
suicide attempts (“Second Medical Indifference Claim”); (20) a medical indifference claim
pursuant to the Eighth Amendment against Defendant John Doe SHU Sergeant based on this
official forcing Plaintiff to be housed in SHU despite his stated suicidal thoughts (“Third
Medical Indifference Claim”); (21) a medical indifference claim pursuant to the Eighth
Amendment against Defendants Corrections Sergeant John Doe #1, Nurse Jane Doe, McIntosh,
and Harrigan based on these officials refusing to allow Plaintiff to possess a neck brace
following the use-of-force incident by Defendant John Doe Assaulting Officers (“Fourth Medical
Indifference Claim”); (22) a medical indifference claim pursuant to the Eighth Amendment
against Defendant D’Amico based on this official “refus[ing] to send [Plaintiff] to the h[o]spital
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after [he was sexual assaulted] to help cover up [the] crime” (“Fifth Medical Indifference
Claim”); (23) an excessive force claim pursuant to the Eighth Amendment against Defendant
John Doe Assaulting Officers and John Doe Mess hall escort officer; (24) a sexual assault claim
pursuant to the Eighth Amendment against defendants Sergeant John Doe, John Doe Mess hall
escort officer, and Nurse John Doe; (25) an Equal Protection Clause claim pursuant to the
Fourteenth Amendment against Defendants McCoy, Strack, Rossey, and the John Doe
Assaulting Officers; and (26) a substantive due process claim pursuant to the Fourteenth
Amendment against Defendants Rossey and McIntosh. (Dkt. Nos. 1, 11.)
B. 	Parties’ Briefing on Moving Defendants’ Partial Motion for Summary
Judgment and Partial Motion to Dismiss
1. 	Moving Defendants’ Partial Motion for Summary Judgment and
Partial Motion to Dismiss
Generally, in support of their partial motion for partial summary judgment and partial
motion to dismiss, Moving Defendants assert the following six arguments: (1) Plaintiff failed to
exhaust his available administrative remedies with respect to his First Amendment retaliation
claims against Defendants Annucci, Bell, Gillen, McIntosh, Sweeney, and Harrigan; (2) Plaintiff
failed to exhaust his available administrative remedies with respect to his Eighth Amendment
medical indifference claims against Defendants Gillen, McIntosh, Sweeney, and D’Amico; (3)
Plaintiff failed to exhaust his available administrative remedies with respect to his Eighth
Amendment conditions of confinement claims against Defendants McIntosh and Harrigan; (4)
Plaintiff failed to exhaust his available administrative remedies with respect to his Fourteenth
Amendment substantive due process claim against Defendant McIntosh; (5) Plaintiff’s First
Amendment retaliation claims against Defendants Annucci, Strack, Bell, McCoy, Gillen, Savage,
Cleveland, Scott, Gillani, Eggleston, Durkin, McIntosh, Sweeney, Harrigan, and LaForest fail as
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a matter of law; and (6) Plaintiff’s Eighth Amendment deliberate medical indifference claim
against Defendant D’Amico fails as a matter of law.2 (See generally Dkt. No. 61, Attach. 1.)
More specifically with respect to their first, second, third, and fourth arguments, Moving
Defendants assert that Plaintiff failed to exhaust his administrative remedies with respect to his
(1) First Retaliation Claim,3 (2) Second Retaliation Claim against Defendant Bell,4 (3) Fifth
Retaliation Claim against Defendant Gillen,5 (4) Fifteenth Retaliation Claim against Defendants
McIntosh and Sweeney,6 (5) Seventeenth Retaliation Claim against Defendants McIntosh and
2 	Moving Defendants organize these six arguments into three points: (1) Plaintiff failed to
exhaust his available administrative remedies with respect to his (a) First Amendment retaliation
claims against Defendants Annucci, Bell, Gillen, McIntosh, Sweeney, and Harrigan, (b) Eighth
Amendment medical indifference claims against Defendants Gillen, McIntosh, Sweeney, and
D’Amico, (c) Eighth Amendment conditions of confinement claims against Defendants
McIntosh and Harrigan, and (d) Fourteenth Amendment substantive due process claims against
Defendant McIntosh; (2) Plaintiff’s First Amendment retaliation claims against Defendants
Annucci, Strack, Bell, McCoy, Gillen, Savage, Cleveland, Scott, Gillani, Eggleston, Durkin,
McIntosh, Sweeney, Harrigan, and LaForest all fail as a matter of law; and (3) Plaintiff’s Eighth
Amendment deliberate medical indifference claims against Defendant D’Amico fail as a matter
of law. (See generally Dkt. No. 61, Attach. 1.)
3 	Moving Defendants refer to this claim as “First Amendment retaliation claim against
Defendant Annucci with respect to an alleged incident that occurred on or about August 27,
2020.” (Dkt. No. 61, Attach. 1 at 12.)
4 	Moving Defendants refer to this claim as “First Amendment retaliation claim against
Defendant Bell with respect to an alleged incident that occurred on or about August 27, 2020.”
(Dkt. No. 61, Attach. 1 at 12.)
5 	Moving Defendants refer to this claim as “First Amendment retaliation . . . claim[]
against Defendant Gillen for allegedly denying Plaintiff access to medical treatment for a
bleeding nose and anus.” (Dkt. No. 61, Attach. 1 at 12.)
6 	Moving Defendants refer to this claim as “First Amendment retaliation . . . claim[]
against Defendants McIntosh and Sweeney with respect to an alleged incident that occurred on
or about September 8, 2021.” (Dkt. No. 61, Attach. 1 at 13.)
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Harrigan,7 (6) First Medical Indifference Claim against Defendant Gillen,8 (7) Fourteenth
Amendment substantive due process claim against Defendant McIntosh,9 (8) Second Medical
Indifference Claim against Defendants McIntosh and Sweeney,10 (9) Eighth Amendment
conditions-of-confinement claims against Defendants McIntosh and Harrigan,11 and (10) Fifth
Medical Indifference Claim.12 (Dkt. No. 61, Attach. 1 at 12-13.) Moving Defendants assert that
Plaintiff filed a grievance for the Fifth Medical Indifference Claim but that he failed to file any
grievance with respect to any of the other nine claims listed above. (Id. at 13.) Moreover,
Moving Defendants assert that Plaintiff did not appeal any of the ten claims listed above to the
Central Office Review Committee (“CORC”). (Id.) Hence, Moving Defendants argue that these
ten claims are subject to dismissal for failure to exhaust administrative remedies. (Id. at 13-14.)
7 	Moving Defendants refer to this claim as “First Amendment retaliation . . . claim[]
against Defendants McIntosh and Harrigan with respect to an alleged incident that occurred on or
about September 9, 2022.” (Dkt. No. 61, Attach. 1 at 13.)
8 	Moving Defendants refer to this claim as “Eighth Amendment medical indifference
claim[] against Defendant Gillen for allegedly denying Plaintiff access to medical treatment for a
bleeding nose and anus.” (Dkt. No. 61, Attach. 1 at 12.)
9 	Moving Defendants refer to this claim as “Fourteenth Amendment substantive due
process claim against Defendant McIntosh with respect to an alleged incident that occurred on or
about August 20, 2021.” (Dkt. No. 61, Attach. 1 at 12-13.)
10 	Moving Defendants refer to this claim as “Eighth Amendment medical indifference
claim[] against Defendants McIntosh and Sweeney with respect to an alleged incident that
occurred on or about September 8, 2021.” (Dkt. No. 61, Attach. 1 at 13.)
11 	Moving Defendants refer to this claim as “Eighth Amendment conditions of confinement
claim[] against Defendants McIntosh and Harrigan with respect to an alleged incident that
occurred on or about September 9, 2022.” (Dkt. No. 61, Attach. 1 at 13.) However, the only
conditions-of-confinement claims that survived sua sponte review were those asserted against
Defendants Strack and LaForest. (Dkt. No. 11 at 29-32, 50-51.)
12 	Moving Defendants refer to this claim as “Eighth Amendment deliberate medical
indifference claim against Defendant D’Amico with respect to an alleged incident that occurred
on or about September 9, 2022.” (Dkt. No. 61, Attach. 1 at 13.)
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More specifically, with respect to their fifth argument, Moving Defendants assert that (a)
Plaintiff’s retaliation claims against all Defendants are conclusory because the Complaint failed
to allege facts plausibly suggesting a causal connection between Plaintiff’s protected speech in
filing Bright v. Annucci and his claims in this action; (b) Plaintiff’s retaliation claim against
Defendant Annucci (First Retaliation Claim) does not satisfy temporal proximity because the
protected speech took place one year and nine months before the alleged adverse action; (c)
Plaintiff’s retaliation claims against Defendants Strack, Bell, and McCoy (Second Retaliation
Claim) fail because his conclusory allegation that the cell was cold is insufficient to plausibly
suggest an adverse action; (d) Plaintiff’s retaliation claims against Defendants Gillen, McCoy,
Savage, Cleveland, Scott, and Gillani (Fifth Retaliation Claim) fail because (i) the Complaint
fails to allege the personal involvement of Defendants Savage, Cleveland, Scott, and Gillani, and
(ii) the Complaint contains only conclusory allegations that Defendants Gillen and McCoy were
motivated by Plaintiff’s refusal to sign the Withdrawal Letter and fails to allege that Defendants
Gillen and McCoy were aware that Plaintiff had an ongoing court proceeding, who the named
parties in the action were, or what the letter was in reference to; (e) Plaintiff’s retaliation claim
against Defendant Strack (Ninth Retaliation Claim) fails because (i) the Complaint fails to allege
Defendant Strack’s personal involvement, and (ii) the Complaint fails to allege facts identifying
the dates or period of time during which Plaintiff was denied food, mail, and water and thus the
alleged adverse action was de minimis; and (f) Plaintiff’s retaliation claim against Defendant
Eggleston (Tenth Retaliation Claim) fails because a cell search alone does not constitute an
adverse action and one instance of reading legal mail is de minimis. (Dkt. No. 61, Attach. 1 at
14-21.)
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With respect to their sixth argument, Moving Defendants assert that the Complaint fails
to allege facts plausibly suggesting that Defendant D’Amico was deliberately indifferent to
Plaintiff’s needs. (Id. at 21-22.) Moving Defendants assert that Plaintiff’s conclusory allegation
that Defendant D’Amico “refuse[d] to send me to hospital after anal rape to help cover up crime”
is insufficient to state a cause of action because there are no additional facts to support the
allegation. (Id.)
2. 	Plaintiff’s Response in Opposition
Generally, in opposition to Moving Defendants’ motion Plaintiff asserts the following six
arguments: (1) Plaintiff denies Moving Defendants’ claim argued in their point one; (2) Plaintiff
denies Moving Defendants’ claim argued in their point two; (3) Plaintiff denies Moving
Defendants’ claim argued in their point three; (4) a motion for summary judgment is premature;
(5) his retaliation, medical indifference, and due process claims were ignored by the DOCCS
grievance Sergeant and Supervisor, appealed to Director Rachael Seguin, and intentionally
ignored by her to avoid liability in civil actions by claiming a failure to exhaust administrative
remedies; and (6) he filed complaints with the Office of Special Investigations (“OSI”) regarding
Ms. Seguin and the grievance committee for ignoring grievances. (Dkt. No. 64.)
3. 	Moving Defendants’ Reply
Generally, in further support of their motion, Moving Defendants assert the following
four arguments: (1) Plaintiff failed to comply with Local Rule 56.1(b) and thus, the Court should
deem all factual allegations contained in their Statement of Material Facts as admitted; (2)
summary judgment is appropriate at this stage; (3) Plaintiff failed to exhaust his administrative
remedies; and (4) Plaintiff constructively abandoned his First Amendment retaliation claims
against Defendants Annucci, Stack, Bell, McCoy, Gillen, Savage, Cleveland, Scott, Gillani,
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Eggleston, Durkin, McIntosh, Sweeney, Harrigan, and LaForest, and his Eighth Amendment
deliberate medical indifference claim against Defendant D’Amico. (Dkt. No. 65.)
More specifically, with respect to their third argument Moving Defendants assert that
Plaintiff received a response to Grievance # CL-0756-21, which defeats his assertion that
grievances were ignored and Plaintiff submitted no evidence that he filed an appeal to CORC.
(Dkt. No. 65 at 5.) Moving Defendants assert that the absence of Grievance # CL-0756-21 on
CORC’s closed list is consistent with his failure to submit the required appeal to CORC. (Id.)
Plaintiff may not now rely on speculation or conclusory statements to excuse his failure to
complete the administrative exhaustion requirements. (Id.) Further, Moving Defendants argue
that Plaintiff’s report to OSI regarding Ms. Seguin and the grievance committee does not satisfy
the Inmate Grievance Program process. (Id. at 6.) Finally, Moving Defendants assert that
Plaintiff failed to inquire into the status of any alleged appeals or to file a grievance about any
interference with the grievance process. (Id.)
With respect to their fourth argument, Moving Defendants argue that Plaintiff’s
opposition consists solely of a conclusory statement that he denies their claim argued in Point
Two and Three without any legal or factual argument to rebut the grounds set forth in Moving
Defendants’ motion. (Dkt. No. 65 at 7.) Moving Defendants assert that this bare denial is
insufficient and Plaintiff should be deemed to have abandoned those claims. (Id. at 7-8.)
C. 	Moving Defendants’ Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Moving
Defendants in their Statement of Material Facts and not denied by Plaintiff in his response.
(Compare Dkt. No. 61, Attach. 4, with Dkt. No. 64.)
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1. 	Plaintiff, Willie Bright, was housed at Clinton Correctional Facility (“Clinton
C.F.”) during all times relevant to this matter.13
2. 	At all relevant times, incarcerated individuals at Clinton C.F. were provided full
access to the New York State Department of Corrections and Community Supervision
(“DOCCS”) Incarcerated Grievance Program (“IGP”).14
3. 	The IGP is governed by state regulation (7 N.Y. C.R.R. §§ 701.1-701.11) and
administered through an agency-level directive (DOCCS Directive 4040).15
4. 	The IGP provides three levels of administrative review: (1) complaints to the
Incarcerated Grievance Review Committee (“IGRC”) at the facility-level; (2) appeals to the
facility superintendent; and (3) appeals to CORC.16
5. 	For grievances alleging harassment (which includes harm allegedly sustained
from facility employee misconduct), the IGP follows a separate, expedited procedure.17
6. 	For grievances alleging staff harassment and misconduct, upon receipt, the IGP
directly forwards the grievance to the Superintendent, who has twenty-five (25) calendar days to
render a response.18
13 	(See generally Dkt. No. 1.)
14 	(Dkt. No. 61, Attach. 5 at ¶¶ 19-20; Dkt. No. 61, Attach. 6 at ¶ 14.)
15 	(Dkt. No. 61, Attach. 5 at ¶ 4; Dkt. No. 61, Attach. 6 at ¶ 3.)
16 	(Dkt. No. 61, Attach. 5 at ¶¶ 7-14; Dkt. No. 61, Attach. 6 at ¶ 6); see 7 N.Y.C.R.R. §
701.5.
17 	(Dkt. No. 61, Attach. 5 at ¶ 12; Dkt. No. 61, Attach. 6 at ¶ 7); see 7 N.Y.C.R.R. § 701.8.
18 	(Dkt. No. 61, Attach. 5 at ¶¶ 11, 12; Dkt. No. 61, Attach. 6 at ¶ 7); see 7 N.Y.C.R.R. §
701.8.
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7. 	If an incarcerated individual disagrees with the Superintendent’s response, he or
she must still appeal the decision to CORC to exhaust his or her administrative remedies.19
8. 	If an incarcerated individual fails to receive a response to an expedited grievance
from the Superintendent within twenty-five (25) calendar days, the failure to respond may be
construed as a denial, and the incarcerated individual can appeal to CORC to exhaust his or her
administrative remedies.20
9. 	All grievances—whether they concern allegations of harassment or not—must be
filed within twenty-one (21) days of the alleged incident.21
10. 	Extensions of time to file a grievance may be granted, but only upon request in
writing within forty-five (45) days of the alleged incident.22
11. 	CORC is the final appellate level of the IGP.23
12. 	The following ten claims asserted by Plaintiff are the proper subject for a
grievance through DOCCS’ IGP: (1) First Retaliation Claim, (2) Second Retaliation Claim
against Defendant Bell, (3) Fifth Retaliation Claim against Defendant Gillen, (4) Fifteenth
19 	(Dkt. No. 61, Attach. 5 at 13; Dkt. No. 61, Attach. 6 at ¶ 6); see N.Y.C.R.R. § 701.8(h).
20 	(Dkt. No. 61, Attach. 5 at ¶ 12; Dkt. No. 61, Attach. 6 at ¶ 7); see § N.Y.C.R.R. §
701.8(h). Moving Defendants cite to paragraph 13 of Donna Wilcox’s Declaration to support
this fact asserted. (Dkt. No. 61, Attach. 4 at ¶ 8 [citing Dkt. No. 61, Attach. 5 at ¶ 13].)
However, support for the fact asserted is located in Ms. Wilcox’s Declaration at paragraph 12,
not paragraph 13.
21 	(Dkt. No. 61, Attach. 5 at ¶ 7; Dkt. No. 61, Attach. 6 at ¶ 6); see N.Y.C.R.R. §§
701.5(a)(1), 701.8(a). Moving Defendants cite to paragraph 5 of Rachael Seguin’s Declaration
to support this fact asserted. (Dkt. No. 61, Attach. 4 at ¶ 8 [citing Dkt. No. 61, Attach. 6 at ¶ 5].)
However, support for the fact asserted is located in Ms. Seguin’s Declaration at paragraph 6, not
paragraph 5.
22 	(Dkt. No. 61, Attach. 5 at ¶ 7); see N.Y.C.R.R. §§ 701.6(g)(1)(i).
23 	(Dkt. No. 61, Attach. 5 at ¶ 14; Dkt. No. 61, Attach. 6 at ¶ 8.)
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Retaliation Claim against Defendants McIntosh and Sweeney, (5) Seventeenth Retaliation Claim
against Defendants McIntosh and Harrigan, (6) First Medical Indifference Claim against
Defendant Gillen, (7) Fourteenth Amendment substantive due process claim against Defendant
McIntosh, (8) Second Medical Indifference Claim against Defendants McIntosh and Sweeney,
(9) Eighth Amendment conditions-of-confinement claims against Defendants McIntosh and
Harrigan, and (10) Fifth Medical Indifference Claim.24
13. 	DOCCS records maintained at Clinton C.F.’s grievance office show that Plaintiff
did not file grievances at the facility-level for any of the claims listed in paragraph 12 above,
except for the Fifth Medical Indifference Claim against Defendant D’Amico.25
14. 	Plaintiff exhausted his administrative remedies at the facility-level with respect to
the Fifth Medical Indifference Claim against Defendant D’Amico.26
15. 	DOCCS records maintained at CORC reveal that Plaintiff did not appeal any
facility-level grievances concerning his claims set forth in paragraph 12 while housed at Clinton
C.F.27
II. 	RELEVANT LEGAL STANDARDS
A. 	Standard Governing a Motion for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence
24 	(Dkt. No. 61, Attach. 5 at ¶¶ 16, 17.)
25 	(Dkt. No. 61, Attach. 5 at ¶¶ 21-22; Dkt. No. 61, Attach. 5 at
26 	(Dkt. No. 61, Attach. 5 at ¶ 22.)
27 	(Dkt. No. 61, Attach. 6 at ¶¶ 13, 16, 17.)
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is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).28 As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute–even if that non-
movant is proceeding pro se.29 This is because the Court extends special solicitude to the pro se
litigant largely by ensuring that he or she has received notice of the consequences of failing to
28 	As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation
omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
29 	Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.)
(citing cases).
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properly respond to the motion for summary judgment.30 As has often been recognized by both
the Supreme Court and Second Circuit, even pro se litigants must obey a district court’s
procedural rules.31
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 56.1. What the non-movant’s failure to respond to the motion does is lighten the
movant’s burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set
forth in a movant’s statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement32–even when the non-movant was proceeding pro se.33
30 	Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
31 	Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
32 	Among other things, Local Rule 56.1 (previously contained in Local Rule 7.1(a)(3))
requires that the non-movant file a response to the movant’s Statement of Material Facts, which
admits or denies each of the movant’s factual assertions in matching numbered paragraphs, and
supports any denials with a specific citation to the record where the factual issue arises.
N.D.N.Y. L. R. 56.1.
33 	Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan,
253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to
“perform an independent review of the record to find proof of a factual dispute.”).
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Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(a)(3).34 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possesses facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009
WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
B. 	Standard Governing Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with
respect to prison conditions under section 1983 . . . 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); see also Ross v. Blake, 578 U.S. 632, 136 S. Ct. 1850, 1854-55, 195 L.Ed.2d
117 (2016) (“The [PLRA] mandates that an inmate exhaust ‘such administrative remedies as are
available’ before bringing suit to challenge prison conditions.”). “[T]he PLRA’s exhaustion
34 	See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004)
(McCurn, J.) (deeming plaintiff’s failure to respond to “aspect” of defendant’s motion to exclude
expert testimony as “a concession by plaintiff that the court should exclude [the expert’s]
testimony” on that ground).
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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, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). “There is
no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
The PLRA requires “proper exhaustion,” which means using all steps required by the
administrative review process applicable to the institution in which an inmate is confined and
doing so properly. Jones, 549 U.S. at 218, 127 S.Ct. 910 (citing Woodford v. Ngo, 548 U.S. 81,
88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d
Cir. 2011) (quoting Woodford, 548 U.S. at 90, 126 S.Ct. 2378) (exhaustion necessitates “‘using
all steps that the [government] agency holds out, and doing so properly’”). In New York State
prisons, DOCCS has a well-established three-step incarcerated grievance program (“IGP”), in
which, (1) the inmate must file a grievance with the IGRC within twenty-one days of the alleged
occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the
superintendent of the facility within seven days after receipt of the IGRC’s response, and (3) the
inmate must then appeal an adverse decision by the superintendent to the CORC within seven
days after receipt of the superintendent’s response. 7 N.Y.C.R.R. § 701.5; McGee v. McGready,
16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018).
“[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an
expedited review that allows for the complaint to bypass IGRC review and proceed before the
Superintendent in the first instance.” Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *4
(S.D.N.Y. Mar. 16, 2021); see 7 N.Y.C.R.R. § 701.8. Under the expedited procedure, the
Superintendent has twenty-five days to respond to the grievance. 7 N.Y.C.R.R. § 701.8. If the
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Superintendent fails to respond within twenty-five days, the inmate may appeal directly to
CORC. Id. § 701.8(g). If the Superintendent does respond, the inmate has seven days from
receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to
grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g).
Whether or not the Superintendent timely responds, the procedure to appeal a determination of
the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the
inmate grievance clerk.” Id. § 701.8(g)-(h).35 Inmates who have been transferred to a different
facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal
form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. §
701.6(h)(2).
“CORC is required to provide, through IGP staff, written confirmation that an appeal has
been received, and if the inmate does not receive such confirmation within forty-five days, he
‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted
to CORC.’” Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022)
(quoting 7 N.Y.C.R.R. § 701.5(d)(3)(i)). The IGP requires CORC to respond to an appeal within
thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii). If CORC has received an appeal and fails
to rule within those thirty days, the inmate is considered to have exhausted his administrative
remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its
own, textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. More specifically,
section 1997e(a) provides that only those administrative remedies that “are available” must first
35 	The procedure to appeal to CORC under the normal, non-expedited procedures is the
same. 7 N.Y.C.R.R. § 701.5(d)(1)(i).
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be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 (“[T]he exhaustion
requirement hinges on the availability of administrative remedies[.]”) (quotation marks and
citations omitted). In the PLRA context, the Supreme Court has determined that “availability”
means that “an inmate is required to exhaust those, but only those, grievance procedures that are
capable of use to obtain some relief for the action complained of.” Ross, 136 S. Ct. at 1859
(quotation marks and citations omitted).
The Ross Court identified three circumstances in which a court may find that internal
administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. 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. at 1859. “Next, an administrative scheme might be
so opaque that it becomes, practically speaking, incapable of use.” Id. Finally, an administrative
remedy is not “available” when “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. In
Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted
that “the three circumstances discussed in Ross do not appear to be exhaustive[.]” The
illustrations of unavailability in Ross nonetheless guide the Court’s inquiry. Mena v. City of New
York, 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
Because non-exhaustion is an affirmative defense, the defendant bears the burden of
showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at
216, 127 S.Ct. 910. The plaintiff must then establish the IGP grievance procedure was
unavailable to him under Ross. Id.
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C. 	Standard Governing Motions to Dismiss for Failure to State a Claim Upon
Which Relief May Be Granted
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[ ]” an
entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading
standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
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what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).36
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a
36 	Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v.
Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.).
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pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
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However, “in a pro se case, the court must view the submissions by a more lenient
standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated
to “‘make reasonable allowances to protect pro se litigants’” from inadvertently forfeiting legal
rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a
result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint]
broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
III. 	ANALYSIS
A. 	Exhaustion
After carefully considering the matter, I recommend that Moving Defendants’ motion for
summary judgment be granted with respect to Plaintiff’s (1) First Retaliation Claim, (2) Second
Retaliation Claim against Defendant Bell, (3) Fifth Retaliation Claim against Defendant Gillen,
(4) Fifteenth Retaliation Claim against Defendants McIntosh and Sweeney, (5) Seventeenth
Retaliation Claim against Defendants McIntosh and Harrigan, (6) First Medical Indifference
Claim against Defendant Gillen, (7) Fourteenth Amendment substantive due process claim
against Defendant McIntosh, (8) Second Medical Indifference Claim against Defendants
McIntosh and Sweeney, and (9) Fifth Medical Indifference Claim, for the reasons stated in their
memoranda of law.37 (Dkt. No. 61, Attach. 1 at 9-14; Dkt. No. 65 at 4-7.)
37 	As set forth above in note 11, the only conditions-of-confinement claims that survived
sua sponte review were those asserted against Defendants Strack and LaForest. (Dkt. No. 11 at
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1. 	Exhaustion of Administrative Remedies
Moving Defendants submitted proof in admissible form by way of an affidavit from
Donna Wilcox, the custodian for all grievance-related records at Clinton C.F. (Dkt. No. 61,
Attach. 5.) In her affidavit, Ms. Wilcox stated that she conducted a diligent search of DOCCS
records for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 21.) Ms.
Wilcox affirmed that her search revealed that Plaintiff exhausted his administrative remedies
with respect to the Fifth Medical Indifference Claim, but did not file any grievance related to
Plaintiff’s (1) First Retaliation Claim, (2) Second Retaliation Claim against Defendant Bell, (3)
Fifth Retaliation Claim against Defendant Gillen, (4) Fifteenth Retaliation Claim against
Defendants McIntosh and Sweeney, (5) Seventeenth Retaliation Claim against Defendants
McIntosh and Harrigan, (6) First Medical Indifference Claim against Defendant Gillen, (7)
Fourteenth Amendment substantive due process claim against Defendant McIntosh, and (8)
Second Medical Indifference Claim against Defendants McIntosh and Sweeney. (Id. at ¶¶ 21-
23.)
In addition, Moving Defendants submitted proof in admissible form by way of an
affidavit from Rachael Seguin, the custodian of records maintained by CORC. (Dkt. No. 61,
Attach. 6.) In her affidavit, Ms. Seguin stated that she searched record appeals received by
CORC filed by Plaintiff, and her search revealed “Plaintiff did not appeal any grievances to
CORC relating to” his (1) First Retaliation Claim, (2) Second Retaliation Claim against
Defendant Bell, (3) Fifth Retaliation Claim against Defendant Gillen, (4) Fifteenth Retaliation
Claim against Defendants McIntosh and Sweeney, (5) Seventeenth Retaliation Claim against
29-32, 50-51.) As a result, I make no recommendation regarding an Eighth Amendment
conditions-of-confinement claim against Defendants McIntosh and Harrigan.
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Defendants McIntosh and Harrigan, (6) First Medical Indifference Claim against Defendant
Gillen, (7) Fourteenth Amendment substantive due process claim against Defendant McIntosh,
(8) Second Medical Indifference Claim against Defendants McIntosh and Sweeney, and (9) Fifth
Medical Indifference Claim. (Id. at ¶¶ 10, 12-13.)
Plaintiff’s conclusory allegation that his “claims” were “[a]ll [i]gnored [b]y [th]e DOCCS
Grievance Sgt [a]nd Supervisor [a]nd [a]ppeal[ed] to Director Rachael Seguin [a]nd
[i]ntentionally [i]gnored [b]y [h]er [t]o [a]void [l]iability [i]n civil [a]ctions [b]y [a] [f]abricated
claim of [f]ailing [t]o [e]xhaust state [r]emedies” is insufficient to raise an issue of fact for trial
regarding whether Plaintiff exhausted his administrative remedies. (Dkt. No. 64 at 2); see Logan
v. Graham, 18-CV-0291, 2019 WL 8015209, at *11 (N.D.N.Y. Nov. 26, 2019) (Lovric, M.J.)
(“Generally, conclusory allegations that an inmate appealed the superintendent’s grievance
denial to CORC are insufficient to withstand a motion for summary judgment), report and
recommendation adopted 2020 WL 871197 (N.D.N.Y. Feb. 21, 2020) (Hurd, J.); Gibbs v.
Gadway, 19-CV-0281, 2019 WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.)
(recommending dismissal based on the plaintiff’s failure to exhaust his administrative remedies
where the plaintiff made “a purely conclusory allegation that he appealed the grievance denial to
CORC.”), report and recommendation adopted 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020)
(Suddaby, C.J.).
In contrast, “the case law implies that where a plaintiff sets forth the date that he or she
appealed the grievance to CORC, that may be enough to survive a motion for summary
judgment.” Logan v. Graham, 2019 WL 8015209, at *11 (citing Gibbs, 2019 WL 5191506, at
*3 (recommending dismissal of the plaintiff’s claims for failure to exhaust his administrative
remedies where the plaintiff “has not provided a copy of the grievance appeal or even asserted
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what date he filed the appeal.”); Gough v. Morris, 16-CV-1107, 2018 WL 7199494, at *3
(N.D.N.Y. Dec. 14, 2018) (Stewart, M.J.) (recommending dismissal based on the plaintiff’s
failure to exhaust his administrative remedies where he testified that he appealed the
superintendent’s response to CORC but there was no evidence in the record that (a) the
grievance or the superintendent’s response were appealed to CORC and, (b) despite not receiving
a response from CORC, the plaintiff testified that he did not write to CORC to follow-up);
Campbell v. Prue, 16-CV-0004, 2018 WL 4635708, at *5 (N.D.N.Y. July 3, 2018) (Hummel,
M.J.) (“Although [the plaintiff] alleges that he filed [a] grievance . . . , plaintiff does not state
when he filed such grievance . . . . Further, plaintiff has not provided a copy of the alleged
grievance or the Marcy IGRC’s denial of that grievance.”); Toliver v. Stefinik, 12-CV-0077,
2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016) (D’Agostino, J.) (“vague and conclusory
allegations . . . [regarding] grievances . . . do not, in light of the documentation Defendants have
provided about Plaintiff’s grievance history, create a factual dispute material to the issue of
whether Plaintiff exhausted his administrative remedies.”); Smith v. Kelly, 985 F. Supp. 2d 275,
289 (N.D.N.Y. 2013) (Suddaby, J.) (granting the defendants’ motion for summary judgment on
the issue of exhaustion where the plaintiff failed to “identify the name of the ‘IGRC’s
supervisor’ who purportedly told him that a new prisoner does not file a grievance at Auburn
C.F. if it pertains to the prisoner’s previous facility, nor does he specify the date, means or
location of this purported communication.”)); cf. Braxton v. Bruen, 17-CV-1346, 2020 WL
5752333, at *7 (N.D.N.Y. Aug. 24, 2020) (Lovric, M.J.) (denying a motion for summary
judgment where the plaintiff “proffered copies of his . . . appeals” and gathering cases), report
and recommendation adopted, 2020 WL 5751172 (N.D.N.Y. Sept. 25, 2020) (Sannes, J.).
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Plaintiff fails to provide a copy of his grievances or identify the dates that he allegedly
filed grievances for his (1) First Retaliation Claim, (2) Second Retaliation Claim against
Defendant Bell, (3) Fifth Retaliation Claim against Defendant Gillen, (4) Fifteenth Retaliation
Claim against Defendants McIntosh and Sweeney, (5) Seventeenth Retaliation Claim against
Defendants McIntosh and Harrigan, (6) First Medical Indifference Claim against Defendant
Gillen, (7) Fourteenth Amendment substantive due process claim against Defendant McIntosh,
and (8) Second Medical Indifference Claim against Defendants McIntosh and Sweeney. (See
generally Dkt. Nos. 1, 64.) Moreover, Plaintiff fails to provide a copy of his appeals to CORC or
identify the dates that he allegedly appealed for his (1) First Retaliation Claim, (2) Second
Retaliation Claim against Defendant Bell, (3) Fifth Retaliation Claim against Defendant Gillen,
(4) Fifteenth Retaliation Claim against Defendants McIntosh and Sweeney, (5) Seventeenth
Retaliation Claim against Defendants McIntosh and Harrigan, (6) First Medical Indifference
Claim against Defendant Gillen, (7) Fourteenth Amendment substantive due process claim
against Defendant McIntosh, (8) Second Medical Indifference Claim against Defendants
McIntosh and Sweeney, and (9) Fifth Medical Indifference Claim. (Id.) As a result, I find
Plaintiff’s unsupported, general assertion that he filed grievances and appealed them are
insufficient to establish a genuine issue of material fact. See Bernier v. Koenigsmann, 17-CV-
0254, 2021 WL 2269839, at *18 (N.D.N.Y. May 13, 2021) (Baxter, M.J.) (citing Davis v. Grant,
15-CV-5359, 2019 WL 498277, at *10 (S.D.N.Y. Feb. 8, 2019) (plaintiff’s statements that his
grievance was lost or destroyed, which stood alone and unsupported, did not warrant exception
to exhaustion requirement); Engles v. Jones, 13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y.
Dec. 28, 2018) (granting summary judgment to defendants for failure to exhaust where there was
no record of plaintiff filing his grievance and plaintiff merely alleged without any documentary
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support that his grievance was lost or destroyed); Scott v. Kastner-Smith, 298 F. Supp. 3d 545,
555 (W.D.N.Y. 2018) (“[C]ourts have consistently held . . . that an inmate’s general claim that
his grievance was lost or destroyed does not excuse the exhaustion requirement.”)) (“plaintiff’s
unsupported, general testimony that grievance AUB-6602-15 was ‘lost’ in the appeals process is
insufficient to establish a genuine issue of material fact.”), report and recommendation adopted,
2021 WL 2264315 (N.D.N.Y. June 3, 2021) (Hurd, J.).
2. 	Availability of Administrative Remedies
Having before the Court no argument from Plaintiff regarding availability, out of special
solicitude, the undersigned has searched the record for potential arguments that administrative
remedies may have been unavailable to him. See Jackson v. West, 23-CV-0306, 2025 WL
1033787, at *4 (N.D.N.Y. Feb. 20, 2025) (Evangelista, M.J.), report and recommendation
adopted, 2025 WL 814966 (N.D.N.Y. Mar. 14, 2025) (Kahn, J.).
The Supreme Court of the United States, in Ross, identified three circumstances in which
a court may find administrative remedies are not “available” for purposes of exhaustion under
the PLRA:
[A]n administrative procedure is unavailable when it operates as a simple
dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates. Next, an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of use—i.e., some
mechanism exists to provide relief, but no ordinary prisoner can navigate
it. “And finally, a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.”
Ross, 578 U.S. at 643-44.
First, there nothing in the record to support that the “dead end” exception applies.
Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016). Indeed, Plaintiff filed a grievance
with respect to his Fifth Medical Indifference Claim. (Dkt. No. 61, Attach. 1 at 13; Dkt. No. 61,
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30
Attach. 5 at ¶ 22); Jackson, 2025 WL 1033787, at *12 (citing Matthews v. Sweeney, 17-CV-
0503, 2025 WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025) (Suddaby, J.)) (“Courts have
rejected arguments that the grievance procedure was a ‘dead end’ where the plaintiffs chose to
participate in the grievance procedure in some way, even in unrelated matters, concluding that
such participation demonstrates that the plaintiffs did not view the grievance procedure as a dead
end.”). The fact that Plaintiff was able to grieve other matters during the same time period
demonstrates that administrative remedies were not a dead end. See Jackson, 2025 WL
1033787, at *12.
Next, the opaqueness exception also does not apply to cure Plaintiff’s non-exhaustion.
Administrative relief is unavailable where “[t]he regulations simply do not contemplate the
situation in which the prisoner found himself, making it practically impossible for him to
ascertain whether and how he could pursue his grievance.” Williams, 829 F.3d at 124. In other
words, administrative relief is opaque when the procedure for the incarcerated person to procure
relief under the circumstances is “so confusing that . . . no reasonable prisoner can use it.” Id.
(quoting Ross, 578 U.S. at 644).
Ms. Wilcox declared that, upon arrival to Clinton C.F., incarcerated individuals attend
“an orientation program that includes a presentation on the grievance policies and procedures set
forth in DOCCS Directive 4040. Among the many topics covered in this presentation,
incarcerated individuals are taught how to file and appeal grievance complaints.” (Dkt. No. 61,
Attach. 5 at ¶ 5.) Ms. Wilcox declared that from September 7, 2020, to September 20, 2020,
Plaintiff attended and successfully completed the facility orientation. (Dkt. No. 61, Attach. 5 at ¶
6.) In addition, Ms. Wilcox declared that Title 7 of the Official Compilation of Codes, Rules,
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and Regulations of the State of New York and DOCCS Directive 4040 were available in Clinton
C.F.’s law library. (Id. at ¶ 4.)
Plaintiff does not claim that he was confused by the applicable exhaustion policy, and in
any event, any such conclusory claim would be insufficient to apply the opaqueness exception.
See, e.g., Jackson, 2025 WL 1033787, at *9 (holding that the grievance procedure was not
opaque where plaintiff claimed that he did not understand how to appeal, but the plaintiff failed
to seek assistance or pay attention at the facility’s IGP orientation and the plaintiff successfully
initiated the first step on several grievances).
Finally, Plaintiff was not thwarted from using the prison’s grievance process regarding
his claims through “machination, misrepresentation, or intimidation by prison officials.” Ross,
578 U.S. at 644. As this Court has stated, “general and conclusory statements that [an
incarcerated individual] was threatened are insufficient to raise a triable issue of fact as to the
unavailability of the grievance procedure because of intimidation by prison administrators.”
Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at *5 (N.D.N.Y. Oct. 15, 2019) (Stewart,
M.J.), report and recommendation adopted, 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020)
(Suddaby, C.J.) (quoting Lewis v. Wasielewski, 15-CV-0168, 2018 WL 4732755, at *6
(W.D.N.Y. July 10, 2018), report and recommendation adopted, 2018 WL 4692476 (W.D.N.Y.
Oct. 1, 2018)). “Allegations of threats are conclusory where a plaintiff’s allegation ‘does not
indicate who threatened him, when he was threatened, or how he was threatened.’” Rodriguez v.
Cross, 15-CV-1079, 2017 WL 2791063, at *8 (N.D.N.Y. May 9, 2017) (Hummel, M.J.), report
and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27, 2017) (Suddaby, C.J.)
(citing Johnson v. Fraizer, 16-CV-6096, 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016)).
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As a result, I recommend that Moving Defendants’ motion for summary judgment be
granted to the extent that it seeks dismissal of Plaintiff’s (1) First Retaliation Claim, (2) Second
Retaliation Claim against Defendant Bell, (3) Fifth Retaliation Claim against Defendant Gillen,
(4) Fifteenth Retaliation Claim against Defendants McIntosh and Sweeney, (5) Seventeenth
Retaliation Claim against Defendants McIntosh and Harrigan, (6) First Medical Indifference
Claim against Defendant Gillen, (7) Fourteenth Amendment substantive due process claim
against Defendant McIntosh, (8) Second Medical Indifference Claim against Defendants
McIntosh and Sweeney, and (9) Fifth Medical Indifference Claim, because Plaintiff failed to
exhaust his administrative remedies.38
B. 	Failure to State a Claim Upon Which Relief May Be Granted
1. 	Retaliation Claims
“[T]to sustain a First Amendment retaliation claim, a prisoner must demonstrate the
following: ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took [an]
adverse action against the plaintiff, and (3) that there was a causal connection between the
protected speech and the adverse action.’” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)
(quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L.Ed.2d 1 (2002)).
An action is considered adverse if it “would deter a similarly situated individual of
ordinary firmness from exercising . . . constitutional rights.” Chavis v. Struebel, 317 F. Supp. 2d
232, 238 (W.D.N.Y. Mar. 29, 2004); see also Lewis v. Hanson, 18-CV-0012, 2022 WL 991729,
38 	As set forth above in notes 11 and 37, the only conditions-of-confinement claims that
survived sua sponte review were those asserted against Defendants Strack and LaForest. (Dkt.
No. 11 at 29-32, 50-51.) As a result, I make no recommendation regarding an Eighth
Amendment conditions-of-confinement claim against Defendants McIntosh and Harrigan.
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at *11 (N.D.N.Y. Mar. 31, 2022) (Kahn, J.). This objective test applies “even where a particular
plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and
lawsuits.” Keyes v. Venettozzi, 18-CV-0372, 2022 WL 991402, at *5 (N.D.N.Y. Mar. 31, 2022).
a. 	First Retaliation Claim39
To the extent that the assigned District Judge rejects the undersigned’s recommendation
that Plaintiff’s First Retaliation Claim be dismissed for failure to exhaust administrative
remedies, I recommend that Moving Defendants’ motion to dismiss Plaintiff’s First Retaliation
Claim be denied.
Contrary to Moving Defendants’ assertion, I find that the Complaint is replete with
factual allegations plausibly suggesting a causal connection between Plaintiff’s protected speech
in filing Bright v. Annucci, and Defendant Annucci’s alleged retaliatory transfer of Plaintiff from
Greenhaven Correctional Facility (“Green Haven C.F.”) to Clintion C.F. (Dkt. No. 1 at 4-5.)
More specifically, Plaintiff alleges that a sergeant at Green Haven C.F. informed Plaintiff that he
was being transferred, which was “specifically authorized by Commissioner Annucci,” and the
prison staff at the transfer facility “would be certain to force [Plaintiff] to remove Annucci and
others from [his] legal action.” (Dkt. No. 1 at 5.) Plaintiff alleged that the sergeant informed
him that Defendant Annucci “ordered us to tell you to follow all staff’s directions . . . about [the]
federal litigation” if Plaintiff “wanted to continue breathing each day.” (Id.) Plaintiff alleged
that the sergeant informed him that if he “refused to cooperate with staff” regarding termination
of his federal litigation, he “would be beaten, maced in fabricated cell extractions and fabricated
39 	Moving Defendants refer to this section of their argument with the heading: “Plaintiff’s
retaliation claim against Defendant Annucci does not satisfy temporal proximity.” (Dkt. No. 61,
Attach. 1 at 17.) The undersigned concluded that Moving Defendants’ arguments in this section
were intended to attack Plaintiff’s First Retaliation Claim.
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misbehavior reports” and placed in the SHU. (Id. at 5-6.) At this procedural posture, these
allegations plausibly suggest a causal connection between Plaintiff’s protected speech and the
adverse action.
As a result, I recommend that the Court deny Moving Defendants’ motion to dismiss to
the extent that it seeks dismissal of Plaintiff’s First Retaliation Claim for failure to state a claim
upon which relief may be granted.
b. 	Second Retaliation Claim40
I recommend that Moving Defendants motion to dismiss Plaintiff’s Second Retaliation
Claim be denied.41
Moving Defendants argue that Plaintiff’s Second Retaliation Claim fails because (1)
Plaintiff failed to allege facts plausibly suggesting a causal connection, and (2) the alleged
actions were not adverse.
First, I reject Moving Defendants’ assertion that the Complaint fails to allege facts
plausibly suggesting a causal connection. Plaintiff alleges that Defendant McCoy told Plaintiff
that he was directed by Defendants Bell and Strack to “find out” if Plaintiff would sign a letter
40 	Moving Defendants refer to this section of their argument with the heading: “Plaintiff’s
claims against Defendants Strack, Bell, and McCoy on August 27, 2020 do not constitute and
adverse action.” (Dkt. No. 61, Attach. 1 at 17.) Moving Defendants’ characterization of the
claim is confusing because Plaintiff’s Second Retaliation Claim relates to claims against
Defendants Strack, Bell, and McCoy on August 27, 2020 (see Dkt. No. 11 at 5-6, 21-27) and
Plaintiff’s Third Retaliation Claim relates to claims against Defendants Strack and McCoy on
August 27, 2020 (id.). The undersigned concluded that Moving Defendants’ arguments in this
section were intended to attack Plaintiff’s Second Retaliation Claim because (1) it is the only
retaliation claim asserted against Defendants Strack, McCoy, and Bell, and (2) Moving
Defendants’ arguments focus on the temperature of the OMH area at Clinton, which is a topic
related to the Second Retaliation Claim. (Dkt. No. 61, Attach. 1 at 17-18.)
41 	However, as set forth above, the undersigned recommends that Plaintiff’s Second
Retaliation Claim against Defendant Bell be dismissed for failure to exhaust his administrative
remedies.
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addressed to the Honorable Nelson Stephen Roman requesting that Defendant Annucci and “a
few OSI and prison sergeants be removed” from Plaintiff’s pending legal actions (“the
Withdrawal Letter”). (Dkt. No. 1 at 8.) Plaintiff alleges that Defendant McCoy warned Plaintiff
that if he did not sign the Withdrawal Letter he would be admitted to OMH, stripped, and “put in
the ice box” for the night. (Id. at 9.) Plaintiff alleges that Defendant McCoy said that he was
aware Plaintiff’s property was still at Green Haven C.F. but that if Plaintiff signed the
Withdrawal Letter, Defendant McCoy would have it sent to Plaintiff the next day. (Id.) Plaintiff
alleges that when he refused to sign the Withdrawal Letter, Defendant Strack said “Great, his ass
is going to the ice box tonight and we’ll see if that changes his mind about signing the fucking
letter.” (Id.)
Hence, at this juncture, I find that the Complaint plausibly suggests a causal connection
between the actions of Defendants McCoy, Strack, and Bell on August 27, 2020, and Plaintiff’s
pursuit of Bright v. Annucci.
Second, I reject Moving Defendants’ argument that Plaintiff failed to allege that
Defendants McCoy, Strack, and Bell took an adverse action against Plaintiff. The Second
Circuit has defined “adverse action,” in the prison context, as “retaliatory conduct ‘that would
deter a similarly situated individual of ordinary firmness from exercising . . . constitutional
rights.’” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis v. Goord, 320 F.3d
346, 353 (2d Cir. 2003)).
Although Judge Nardacci concluded that Plaintiff’s allegation “that the OMH area was an
‘ice box’ is entirely conclusory, and fails to provide even an estimate of the room temperature, or
adverse effects from his exposure to the cold” (Dkt. No. 11 at 24), Plaintiff alleges that
Defendants Strack, Bell, and McCoy took other actions against him. More specifically, Plaintiff
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alleges that Defendants Strack, Bell, and McCoy withheld his personal property, fabricated a
self-harm report to admit Plaintiff to OMH, and placed him in a cold cell with no clothes because
he refused to sign the Withdrawal Letter. I find that at this juncture, these allegations are
sufficient to plausibly suggest an adverse action. See Morales v. Mackalm, 278 F.3d 126, 131-32
(2d Cir. 2002), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516, 532 (2002),
(finding the allegation that the plaintiff was transferred to a psychiatric facility in retaliation for
filing a grievance against the defendant “must be construed as describing an adverse action”);
Chavis v. Struebel, 317 F. Supp. 2d 232, 238 (W.D.N.Y. 2004) (“[T]ransferring an inmate to
another housing unit or to a psychiatric facility or assigning the inmate a less desirable work
assignment satisfies the adverse action requirement.”); see also Fabricio v. Annucci, 790 F.
App’x 308, 311 (2d Cir. 2019) (an alleged denial of recreation time is sufficiently adverse to
support a claim of retaliation at the pleading stage); Johnson v. Schiff, 17-CV-8000, 2019 WL
4688542, at *24 (S.D.N.Y. Sept. 26, 2019) (collecting cases) (holding that the filing of a false
misbehavior report against a prisoner is an adverse action); Hayes v. Dahkle, 16-CV-1368, 2017
WL 9511178, at *11 (N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.) (finding that the “filing of a false
misbehavior report that results in disciplinary segregated confinement constitutes an adverse
action.”).
As a result, I recommend that the Court deny Moving Defendants’ motion to dismiss to
the extent that it seeks dismissal of Plaintiff’s Second Retaliation Claim for failure to state a
claim upon which relief may be granted.
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c. 	Fifth Retaliation Claim42
I recommend that Moving Defendants motion to dismiss Plaintiff’s Fifth Retaliation
Claim be granted in part and denied in part.43
I recommend that Plaintiff’s Fifth Retaliation Claim against Defendants Savage,
Cleveland, Scott, and Gillani be dismissed for failure to state a claim upon which relief may be
granted. With respect to these Defendants Savage, Cleveland, Scott, and Gillani, the Complaint
alleges solely that an unnamed OMH employee informed Plaintiff that Defendants Savage,
Cleveland, Scott, and Gillani (1) denied a request for Plaintiff’s discharge from OMH, and (2)
attempted to convince the unnamed OMH employee to have Plaintiff sign the Withdrawal Letter.
(Dkt. No. 1 at 15.) Assuming that the actions of Defendants Savage, Cleveland, Scott, and
Gillani in allegedly denying a request for Plaintiff’s discharge from OMH constitutes an adverse
action, the Complaint fails to allege facts plausibly suggesting a connection between that denial
and Plaintiff’s protected speech. More specifically, the Complaint does not allege any link
between the Withdrawal Letter (or Plaintiff’s failure to sign it) with the decision of Defendants
Savage, Cleveland, Scott, and Gillani to deny Plaintiff’s discharge from OMH. As a result, I
recommend that Plaintiff’s Fifth Retaliation Claim against Defendants Savage, Cleveland, Scott,
and Gillani be dismissed for failure to state a claim upon which relief may be granted.
42 	Moving Defendants refer to this section of their argument with the heading: “Plaintiff’s
retaliation claims against Defendants Gillen, McCoy, Savage, Cleveland, Scott, and Gillani does
not establish personal involvement and are conclusory.” (Dkt. No. 61, Attach. 1 at 18.) The
undersigned concluded that Moving Defendants’ arguments in this section were intended to
attack Plaintiff’s Fifth Retaliation Claim.
43 	However, as set forth above, the undersigned recommends that Plaintiff’s Fifth
Retaliation Claim against Defendant Gillen be dismissed for failure to exhaust his administrative
remedies.
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However, I reject Moving Defendants’ argument that the allegations in the Complaint are
too conclusory to plausibly suggest a causal connection with respect to Defendants Gillen and
McCoy. The Complaint alleges that Plaintiff reported “uncontrollable nose and anal bleeding” to
Defendant Gillen but that she told Plaintiff he “had to first sign the” Withdrawal Letter before he
could be brought for medical treatment. (Dkt. No. 1 at 14.) The Complaint alleges that
Defendant McCoy asked Plaintiff if he changed his mind yet about signing the Withdrawal
Letter and when Plaintiff responded in the negative, Defendant McCoy walked away effectively
“ignoring [Plaintiff’s] request for medical treatment about [his] nose and anal bleeding.” (Dkt.
No. 1 at 14.) The Complaint alleges that Defendants Gillen and McCoy “suggested [that
Plaintiff] sign [the Withdrawal Letter] so [he] could then be taken to the clinic for medical
treatment about [his] nose and anus bleeding and so [he] could be discharged from OMH and
sent to a warm cell in general population.” (Id.) At this juncture, these allegations plausibly
suggest a causal connection between the decisions of Defendants Gillen and McCoy to deny
Plaintiff access to adequate medical care because he refused to sign the Withdrawal Letter in
retaliation for his lawsuit.
As a result, I recommend that the Court dismiss Plaintiff’s Fifth Retaliation Claim against
Defendants Savage, Cleveland, Scott, and Gillini for failure to state a claim upon which relief
may be granted, and deny Moving Defendants’ motion to dismiss Plaintiff’s Fifth Retaliation
Claim against Defendants McCoy and Gillen.
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d. 	Ninth Retaliation Claim44
I recommend that Moving Defendants’ motion to dismiss Plaintiff’s Ninth Retaliation
Claim be denied.
Contrary to Moving Defendants’ assertion, the Complaint alleges facts plausibly
suggesting Defendant Strack’s personal involvement. More specifically, the Complaint alleges
that Plaintiff was not allowed out of his cell to work and was informed by an unnamed officer
that Defendant Strack told officers to not allow Plaintiff to work until, inter alia, Plaintiff “tell[s]
the courts [that he] no longer want[s] to sue DOCCS employees or the commissioner Annucci.”
(Dkt. No. 1 at 17.) In addition, the Complaint alleges that Plaintiff received fabricated
misbehavior reports “orchestrated by [D]efendant Strack” and that the water in Plaintiff’s cell
was turned off “per [Defendant] Strack’s order.” (Id. at 17-18.) At this juncture, these
allegations are sufficient to plausibly suggest Defendant Strack’s personal involvement in
Plaintiff’s Ninth Retaliation Claim.
Moreover, construing Plaintiff’s allegations liberally, as the Court must at this juncture, I
find that they are sufficient to plausibly suggest that Defendant Strack took an adverse action
against Plaintiff. More specifically, courts have held that “[a] job reassignment or termination
can under certain circumstances constitute an adverse action necessary to support a claim of
retaliation.” Vega v. Lareau, 04-CV-0750, 2010 WL 2682307, at *8 (N.D.N.Y. Mar. 16, 2010)
44 	Moving Defendants refer to this section of their argument with the heading: “Plaintiff’s
claims against Defendant Strack does not establish personal involvement and fails to allege an
adverse action.” (Dkt. No. 61, Attach. 1 at 19.) Moving Defendants’ characterization of the
claims is confusing because Plaintiff’s Ninth Retaliation Claim and Twelfth Retaliation Claims
are asserted against Defendant Strack. (See Dkt. No. 11 at 9-10, 21-27.) The undersigned
concluded that these arguments were intended to attack Plaintiff’s Ninth Retaliation Claim
because Moving Defendants’ arguments focus on the alleged denial of food, water, and mail
access, which are topics contained in the Ninth Retaliation Claim. (Dkt. No. 61, Attach. 1 at 19-
20.)
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(Baxter, M.J.), report and recommendation adopted, 2010 WL 2682289 (N.D.N.Y. July 2, 2010)
(Suddaby, J.); see Hendricks v. Mallozzi, 20-CV-1035, 2022 WL 1129887, at *5 (N.D.N.Y. Jan
14, 2022) (Lovric, M.J.) (collecting cases) (“courts have also held that terminating a prisoner’s
employment is an ‘adverse action’ for purposes of a First Amendment retaliation claim.”), report
and recommendation adopted, 2022 WL 856885 (N.D.N.Y. Mar. 23, 2022) (D’Agostino, J.).
Further, courts have held that “shut[ting] down the water supply to Plaintiff’s cell and halt[ing]
his meal supply” can be considered an adverse action for purposes of a retaliation claim.
Domroes v. White, 23-CV-0041, 2023 WL 7712011, at *5 (W.D.N.Y. Nov. 15, 2023).
As a result, I recommend that the Court deny Moving Defendants’ motion to dismiss to
the extent that it seeks dismissal of Plaintiff’s Ninth Retaliation Claim for failure to state a claim
upon which relief may be granted.
e. 	Eleventh Retaliation Claim45
I recommend that Moving Defendants motion to dismiss Plaintiff’s Eleventh Retaliation
Claim be denied.
Contrary to Moving Defendants’ assertion that the Complaint fails to allege a causal
connection, Plaintiff alleges that during the cell search Defendant Eggleston said “[t]his piece of
shit [referring to Plaintiff] is suing us and you going to . . . sign [the Withdrawal Letter]? Or do I
have to do this?” (Dkt. No. 1 at 18-19.) Plaintiff alleges that Defendant Eggleston then began to
rip up the supplemental complaint that Plaintiff had been composing. (Id. at 19.) At this
45 	Moving Defendants refer to this section of their argument with the heading: “Plaintiff’s
retaliation claim against Defendant Eggleston does not constitute an adverse action.” (Dkt. No.
61, Attach. 1 at 20.) The undersigned concluded that Moving Defendants’ arguments in this
section were intended to attack Plaintiff’s Eleventh Retaliation Claim.
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juncture, these allegations are sufficient to plausibly suggest a causal connection between
Plaintiff’s lawsuit and the adverse action taken by Defendant Eggleston.
Moreover, I find that Plaintiff has plausibly alleged that Defendant Eggleston took an
adverse action against him. More specifically, Plaintiff alleges that Defendant Eggleston
conducted a search of Plaintiff’s cell, destroyed Plaintiff’s personal property, destroyed
Plaintiff’s legal documents, and filed a false misbehavior report against Plaintiff. (Dkt. No. 1 at
18-20.) The Second Circuit recently noted—without deciding the issue—“that other circuits
have concluded that destruction of legal materials may amount to an adverse action.” Walker v.
Senecal, 130 F.4th 291, 303 (2d Cir. 2025) (citing Richards v. Perttu, 96 F.4th 911, 918 (6th Cir.
2024); Bell v. Johnson, 308 F.3d 594, 604 (6th Cir. 2002); Penrod v. Zavaras, 94 F.3d 1399,
1404 (10th Cir. 1996); Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986)). Moreover,
“courts within the Second Circuit have held that a prison official’s decision to confiscate or
destroy an inmate’s property might rise to the level of adverse conduct.” Garcia v. Semple, 18-
CV-1226, 2019 WL 5597771, at *18 (D. Conn. Oct. 30, 2019) (citing Deangelis v. Santiago, 16-
CV-0674, 2016 WL 4467888, at *4 (D. Conn. Aug. 23, 2016) (“The plaintiff contends that in
retaliation for the grievances that he had submitted regarding tobacco use by prison staff, Officer
Lamotte was responsible for losing or confiscating his Nintendo machine, games, headphones,
and clothing and issuing him a false disciplinary report for possession of contraband. The court
concludes that these more detailed allegations state a plausible claim of retaliation and will
proceed.”); Marino v. Watts, 12-CV-0801, 2014 WL 1794588, at *6 (N.D.N.Y. May 6, 2014)
(Mordue, J.) (“A prison official’s conduct in confiscating, losing, or destroying an inmate’s
property may constitute an adverse action for purposes of a retaliation claim.”)); see Mateo v.
Bristow, 12-CV-5052, 2013 WL 3863865, at *5 (S.D.N.Y. July 16, 2013) (“a plaintiff may
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42
prevail on a retaliation claim by showing, inter alia, that prison officials intentionally or
deliberately lost or destroyed his property”). Further, the Second Circuit has held that the filing
of a false misbehavior report that results in keeplock confinement constitutes an adverse action.
Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004); (see Dkt. No. 1 at 20-21 [alleging that
Plaintiff was sentenced to keeplock confinement but released early because a DOCCS captain
knew his sister who is a “NYC Police Lieutenant.”].). At this posture, I find that these
allegations plausibly suggest an adverse action.
As a result, I recommend that the Court deny Moving Defendants’ motion to dismiss to
the extent that it seeks dismissal of Plaintiff’s Eleventh Retaliation Claim for failure to state a
claim upon which relief may be granted.
2. 	Fifth Medical Indifference Claim
After carefully considering the matter, I recommend that, in the alternative, Plaintiff’s
Fifth Medical Indifference claim, be dismissed for failure to state a claim upon which relief may
be granted for the reasons set forth in Moving Defendants’ memoranda of law. (Dkt. No. 61,
Attach. 1 at 21-22; Dkt. No. 65 at 7-8.) The following is intended to supplement, not supplant,
those reasons.
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (quoting
Helling v. McKinney, 509 U.S. 25, 25 (1993)). Within that framework, “[t]he Cruel and Unusual
Punishments Clause of the Eighth Amendment imposes a duty upon prison officials to ensure
that inmates receive adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006); accord, Estelle v. Gamble, 429 U.S. 97, 103 (1976). However, “[b]ecause society does
not expect that prisoners will have unqualified access to health care, deliberate indifference to
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medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’”
Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle, 429 U.S. at 103-04). In this context, a
prison official violates the Eighth Amendment only when two requirements are satisfied.
Farmer, 511 U.S. at 834.
“The first requirement is objective: the alleged deprivation of adequate medical care must
be ‘sufficiently serious.’” Salahuddin, 467 F.3d at 279 (citation and internal quotation marks
omitted); accord, Farmer, 511 U.S. at 834. Evaluation of the objective prong involves two
inquiries: (1) “whether the prisoner was actually deprived of adequate medical care,” and (2)
“whether the inadequacy in medical care is sufficiently serious.” Salahuddin, 467 F.3d at 279-
80. The Second Circuit has suggested the following non-exhaustive list of factors to consider
when evaluating an inmate’s medical condition: “(1) whether a reasonable doctor or patient
would perceive the medical need in question as ‘important and worthy of comment or treatment,’
(2) whether the medical condition significantly affects daily activities, and (3) ‘the existence of
chronic and substantial pain.’” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); see also Mallet v. New York State
Dep’t of Corr. and Cmty. Supervision, 126 F.4th 125, 132 (2d Cir. 2025) (same).
“The second requirement for an Eighth Amendment violation is subjective: the charged
official must act with a sufficiently culpable state of mind.” Salahuddin, 467 F.3d at 280. “This
mental state requires that the charged official act or fail to act while actually aware of a
substantial risk that serious inmate harm will result.” Salahuddin, 467 F.3d at 280; accord,
Farmer, 511 U.S. at 837-38 (“An act or omission unaccompanied by knowledge of a significant
risk of harm might well be something society wishes to discourage, and if harm does result
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44
society might well wish to assure compensation. The common law reflects such concerns when
it imposes tort liability on a purely objective basis.”).
Plaintiff’s sole allegation against Defendant D’Amico is that he refused to send Plaintiff
to the hospital after anal rape to help cover up the crime. (Dkt. No. 1 at 2.)
Assuming that Plaintiff has alleged facts plausibly suggesting the subjective prong, his
claim falters on the objective prong.46 Hilton v. Wright, 928 F. Supp. 2d 530, 547 (N.D.N.Y.
2013) (Hurd, J.) (quoting Salahuddin, 457 F.3d at 280) (“When the alleged deprivation is that the
defendant failed to provide any treatment for the medical condition, ‘courts examine whether the
inmate’s medical condition is sufficiently serious.’”). The Court has not located any authority
within the Circuit suggesting that the failure to provide to a hospital visit after a rape is
sufficiently serious to state an Eighth Amendment claims. See Akinlawon v. Polonco, 21-CV-
2621, 2025 WL 8887621, at *7 (S.D.N.Y. Mar. 21, 2025) (holding that the court did not locate
authority “suggesting that the failure to provide a rape kit [or STD testing to an incarcerated
individual] . . . is sufficiently serious to state an Eighth Amendment claim.”).
“In the absence of clear guidance, the Court turns to the relevant factors identified by the
Second Circuit.” Akinlawon, 2025 WL 887621, at *7. It seems clear that “a reasonable doctor
46 	See Bowman v. Dilworth, 20-CV-756, 2021 WL 2551142, at *8 (D. Conn. June 22, 2021)
(“[Plaintiff’s] allegation that the [defendants] entirely failed to transport him for medical
treatment plausibly demonstrates the [defendants’] conscious disregard of his serious medical
needs.”); Melvin v. County of Westchester, 14-CV-2995, 2016 WL 1254394, at *9 (S.D.N.Y.
Mar. 29, 2016) (finding that, “[i]n alleging that [defendants] recklessly failed to provide
[plaintiff] with any medical treatment, the Second Amended Complaint puts forth a plausible
claim of deliberate indifference” (internal citations, quotation marks, and alterations omitted));
see also Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. 1984) (“Deliberate
indifference, the second essential element, is properly pleaded by allegations,” inter alia, “of
‘complete denial’ of medical treatment . . . .”), aff'd, 762 F.2d 990 (2d Cir. 1985).
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45
or patient would perceive [Plaintiff’s] medical need”—i.e., to receive hospital care after an
alleged rape—“as important and worthy of comment or treatment.” Brock, 315 F.3d at 162.
Examining the second and third factors, however, Plaintiff has neither alleged that the
failure to provision such treatment “significantly affect[ed] [a] daily activit[y],” nor that it caused
“the existence of chronic and substantial pain.” Brock, 315 F.3d at 162. For example, “Plaintiff
does not allege that he developed an STD that then went untreated, or that the failure to provide a
rape kit similarly failed to uncover a condition that caused chronic or substantial pain and
affected his daily activities.” Akinlawon, 2025 WL 887621, at *8.
Although these allegations are disturbing, they fail to allege deliberate medical
indifference pursuant to the Eighth Amendment because the Court cannot conclude that the
failure to provide Plaintiff a hospital visit “implicate[d] a medical need sufficiently serious to
satisfy the [Eighth] Amendment’s objective prong.” Akinlawon, 2025 WL 887621, at *8 (citing
Dumel v. Westchester Cnty., 19-CV-2161, 2021 WL 738365, at *11 (S.D.N.Y. Feb. 25, 2021)
(finding allegations that plaintiff's “condition caused excruciating pain during urination” as well
as “among other ailments, swollen and tender testicles,” were sufficient to satisfy the objective
prong (internal citations, quotation marks, and alterations omitted)); Ruggiero v. Cnty. of
Orange, 19-CV-3632, 2020 WL 5096032, at *10 (S.D.N.Y. Aug. 28, 2020) (finding plaintiff
“plausibly plead[ed that] his condition was sufficiently serious” when he was denied a request
for a rape kit because he also “allege[d] he had bruises and hand marks on his testicles and penis
for weeks”)).47
47 	To be clear, the undersigned is not stating that the refusal to provide a hospital visit after
a rape can never be sufficiently serious enough to plead a deliberate-indifference claim. Instead,
the Court only finds that the allegations currently before it are insufficient to state such a claim.
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46
As a result, I recommend that in the alternative, Plaintiff’s Fifth Medical Indifference
Claim be dismissed for failure to state a claim upon which relief may be granted.
IV. 	SUMMARY AND RECOMMENDATION
Plaintiff failed to exhaust his administrative remedies with respect to the following nine
claims: (1) First Retaliation Claim, (2) Second Retaliation Claim against Defendant Bell, (3)
Fifth Retaliation Claim against Defendant Gillen, (4) Fifteenth Retaliation Claim against
Defendants McIntosh and Sweeney, (5) Seventeenth Retaliation Claim against Defendants
McIntosh and Harrigan, (6) First Medical Indifference Claim against Defendant Gillen, (7)
Second Medical Indifference Claim against Defendants McIntosh and Sweeney, (8) Fifth
Medical Indifference Claim, and (9) Fourteenth Amendment Due Process claim against
Defendant McIntosh.48 In addition, Plaintiff has failed to allege facts plausibly suggesting a
claim upon which relief may be granted with respect to the following two claims: (1) Fifth
Retaliation Claim against Defendants Savage, Cleveland, Scott, and Gillani, and (2) Fifth
Medical Indifference Claim.49
48 	As set forth above in note 11, Moving Defendants also seek to dismiss an Eighth
Amendment conditions-of-confinement claim against Defendants McIntosh and Harrigan. (Dkt.
No. 61, Attach. 1 at 13.) However, the only conditions-of-confinement claims remaining are
asserted against Defendants Strack and LaForest. Hence, the undersigned makes no
recommendation regarding a conditions-of-confinement claim against Defendants McIntosh and
Harrigan.
49 	As a result, the undersigned recommends that the following twenty-four claims survive:
(1) Second Retaliation Claim against Defendants Strack and McCoy; (2) Third Retaliation Claim
against Defendants Strack and McCoy; (3) Fifth Retaliation Claim against Defendant McCoy;
(4) Ninth Retaliation Claim against Defendant Strack; (5) Eleventh Retaliation Claim against
Defendant Eggleston; (6) Twelfth Retaliation Claim against Defendant Strack; (7) Thirteenth
Retaliation Claim against Defendant Durkin; (8) Fourteenth Retaliation Claim against Defendant
Rossey; (9) Fifteenth Retaliation Claim against Defendants Savage and Cleveland; (10)
Sixteenth Retaliation Claim against Defendant John Doe Assaulting Officers; (11) Seventeenth
Retaliation Claim against Defendants Corrections Sergeant John Doe #1 and Nurse Jane Doe;
(12) Eighteenth Retaliation Claim against Defendant LaForest; (13) Nineteenth Retaliation
Claim against Defendant Hearing Lieutenant John Doe; (14) Fourth Amendment unlawful search
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47
ACCORDINGLY, it is
ORDERED that the Clerk of the Court shall update the caption of this action such that
(1) Defendant Laforce is changed to LaForest, (2) Defendant Nurse Mary Beth is changed to
Mary Beth Gillen, (3) Defendant Galonney is changed to Gillani, (4) Defendant McCoyrn is
changed to McCoy, and (5) Defendant Dameeko (who is also sometimes referred to as Dameki)
is changed to D’Amico; and it is further respectfully
RECOMMENDED that the Court GRANT Moving Defendants’ motion for summary
judgment (Dkt. No. 61) and that the following nine claims be dismissed because Plaintiff failed
to exhaust his administrative remedies: (1) First Retaliation Claim, (2) Second Retaliation Claim
against Defendant Bell, (3) Fifth Retaliation Claim against Defendant Gillen, (4) Fifteenth
Retaliation Claim against Defendants McIntosh and Sweeney, (5) Seventeenth Retaliation Claim
against Defendants McIntosh and Harrigan, (6) First Medical Indifference Claim against
Defendant Gillen, (7) Second Medical Indifference Claim against Defendants McIntosh and
Sweeney, (8) Fifth Medical Indifference Claim, and (9) Fourteenth Amendment Due Process
claim against Defendant McIntosh; and it is further respectfully
claim against Defendants McCoy, Strack, and the John Doe Strip Search Officers; (15) Fourth
Conditions-of-Confinement Claim against Defendant Strack; (16) Seventh Conditions-of-
Confinement Claim against Defendant LaForest; (17) First Medical Indifference Claim against
Defendant McCoy; (18) Second Medical Indifference Claim against Defendants Savage and
Cleveland; (19) Third Medical Indifference Claim against Defendant John Dsoe SHU Sergeant;
(20) Fourth Medical Indifference Claim against Defendants Corrections Sergeant John Doe #1,
Nurse Jane Doe, McIntosh, and Harrigan; (21) Eighth Amendment excessive force claims
against Defendants John Doe Assaulting Officers and Mess hall Corrections Officer John Doe;
(22) Eighth Amendment sexual assault claims against Defendants Area Mess hall Sergeant John
Doe, Mess hall Corrections Officer John Doe, and Nurse John Doe; (23) Fourteenth Amendment
Equal Protection Clause claims against Defendants McCoy, Strack, Rossey, and John Doe
Assaulting Officers; and (24) Fourteenth Amendment substantive due process claim against
Defendant Rossey.
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48
RECOMMENDED that the Court GRANT Moving Defendants’ motion to dismiss
(Dkt. No. 61) to the extent that it seeks dismissal of the following two claims for failure to state a
claim upon which relief may be granted: (1) Fifth Retaliation Claim against Defendants Savage,
Cleveland, Scott, and Gillani; and (2) Fifth Medical Indifference Claim, and DENY the motion
to the extent that it seeks dismissal of the following five claims for failure to state a claim upon
which relief may be granted: (1) First Retaliation Claim, (2) Second Retaliation Claim, (3) Fifth
Retaliation Claim against Defendants Gillen and McCoy, (4) Ninth Retaliation Claim, and (5)
Eleventh Retaliation Claim; and it is further respectfully
RECOMMENDED that Defendants Annucci, Bell, Gillen, Gillani, Sweeney, D’Amico,
Scott, and John Doe Medical Escort Sergeant50 be TERMINATED from this action; and it is
further
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.51
50 	Based on the undersigned’s review of the pending claims, there do not appear to be any
claims asserted against Defendant John Doe Medical Escort Sergeant. (See Dkt. No. 11 at 50-
51.)
51 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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49
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report.52 Such
objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & 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.
Dated: December __, 2025
Binghamton, New York
52 	If you are proceeding pro se and 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 that the report, recommendation, and order was mailed to you to
serve and file objections. FED. 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. F ED. R. C IV. P. 6(a)(1)(C).
23
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Akinlawon v. Polonco, Slip Copy (2025)
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2025 WL 887621
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ayotunji AKINLAWON, Plaintiff,
v.
Nole J. POLONCO, et al., Defendants.
No.
21
-
CV
-
2621
(KMK)
|
Signed March 21, 2025
Attorneys and Law Firms
Ayotunji Akinlawon, Attica, NY, Pro Se Plaintiff.
Jeb Harben, Esq., Wesley E. Bauman, Esq., Office of the
New York Attorney General, New York, NY, Counsel for
Defendants
OPINION & ORDER
KENNETH M. KARAS, United States District Judge:
*1 Ayotunji Akinlawon (“Plaintiff”) proceeding pro se,
brings this Action against Sgt. E.J. Polonco (“Polonco”),
Corrections Officer (“C.O.”) A.J. Colombos (“Colombos”),
C.O. Baggot (“Baggot”), C.O. Roderick A. Robinson
(“Robinson”), C.O. Matthews (“Matthews”), Sgt. McCray
(“McCray”), C.O. Santiago (“Santiago”), Lt. Anspach
(“Anspach”), Lt. Ciorciari (“Ciorciari”), C.O. Hulsair
(“Hulsair”), Superintendent Russo (“Russo”), First Deputy
Johnson (“Johnson”), C.O. Everly (“Everly”), C.O. Morel
(“Morel”), Sgt. Gunset (“Gunset”), Sgt. Rossy (“Rossy”),
C.O. Gleason (“Gleason”), Capt. Bey (“Bey”), C.O.
Rodriguez (“Rodriguez”), and Sgt. DeCicco (“DeCicco”),
and former Department of Corrections and Community
Supervision (“DOCCS”) Chief Medical Officer Dr. John
Morley (“Morley”) (collectively, “Defendants”), pursuant to
42 U.S.C. § 1983, alleging that Defendants, both in their
official capacities and individually, violated his rights under
the First, Fourth, Fifth, and Eighth Amendments. (See Compl.
(Dkt. No. 2).) 1 Before the Court is Defendant Robinson's
Partial Motion to Dismiss the Complaint and Defendant
Morley's Motion to Dismiss the Complaint in full pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
(the “Motion”). (See Not. of Mot. (Dkt. No. 160).) Also
before the Court is Plaintiff's Motion for Appointment of
Counsel (“Plaintiff's Application”). (See Dkt. No. 152.) For
the following reasons, Defendants Robinson and Morley's
Motion is granted in part and denied in part and Plaintiff's
Application is granted.
I. Background
A. Factual Background
Based upon information provided by Plaintiff after the
filing of the Complaint, Defendants identified the individual
originally referenced as “John Doe/Jane Doe # 1” in the
Complaint in this Action as Dr. John Morley. (See Dkt. No.
119; Dkt. No. 64 at 91 (medical report naming Morley).) On
February 21, 2024, in the interests of efficiency and in light
of plaintiff's pro se status, Magistrate Judge Krause deemed
Plaintiff to have made an oral motion to amend the Complaint
to substitute Morley for “John Doe/Jane Doe # 1” in the
caption and at pages 4, 18, 21, and 24, and granted said
motion. (See Dkt. No. 121.) 2
Because there are no other amendments to Plaintiff's
Complaint other than those described above, and because
the factual background of this Action has been summarized
in this Court's previous Opinion & Order on Defendants’
First Motion to Dismiss the Complaint (the “2023 Opinion”
and the “First Motion,” respectively), the Court assumes
familiarity with the general issues in dispute. (See 2023
Opinion (Dkt. No. 84).) 3 The Court thus re-summarizes only
the factual allegations directly relevant to the instant Motion.
The following facts are taken from Plaintiff's Complaint, as
well as Plaintiff's opposition papers and other filings, and are
assumed to be true for the purposes of ruling on the instant
Motion. 4 See Div. 1181 Amalgamated Transit Union-N.Y.
Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94
(2d Cir. 2021) (per curiam).
*2 At all times relevant to the instant Action, Plaintiff
was an inmate of Green Haven Correctional Facility (“Green
Haven”), located in Stormville, NY. (See Compl. 1, 7.) All
Defendants appear to be officers, supervisors, or medical
personnel employed by Green Haven. (See id. at 1–5.)
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On July 28, 2020, Colombos and Robinson stood in front
of Plaintiff's cell and had Baggot open the cell. (Id. at 10.)
Colombos said, “your time has expired.” (Id.) Colombos then
forced Plaintiff to perform oral sex on him and Plaintiff threw
up. (Id.) Colombos also inserted his penis into Plaintiff's
rectum. (Id.) Robinson held the gate open for Colombos as
he left Plaintiff's cell and then closed the gate. (Id.) Plaintiff
later reported to another defendant (Baggot), that he had been
raped by Colombos. (Id.) Baggot said, “I know[,] I[’]m the
one who opened your cell for him to do it[.] Now pass the ice
out and act like it didn't happen or we will kill you.” (Id.)
After Plaintiff “passed the ice[,]” Baggot came back to his cell
and said “Listen[,] what they did was wrong but I can[’]t go
against them[.] ... [T]hey gave me orders not to let you out of
your cell tonight so you don't blow up the incident ....” (Id.)
After Plaintiff then had an anxiety attack with chest pain,
another inmate ran and got Baggot, who said she was calling
medical because she did not want Plaintiff to die while she
was on duty with Colombos's DNA in his body. (See id. at
10–11.)
At medical, after “he waited for maybe at least an hour” to
be seen, (see Pl.’s App'x to Sept. 10, 2024 Ltr. at 1 (“Pl.’s
Opp'n”) (Dkt. No. 165-1)), Plaintiff reported that he had been
raped and asked to be tested for STDs, including HIV, and for
a rape kit to be collected, (see Compl. at 11, 18). Although
the medical staff did not get Plaintiff tested or perform a rape
kit, (id. at 18), Plaintiff was informed that he was “set to go
to Westchester”—an outside medical facility—(see id. at 11),
“to be tested and [have] a rape kit conducted,” (Pl.’s Opp'n 1).
Shortly thereafter, however, Ciorciari “stormed” into medical
and informed Plaintiff he was “not going anywhere but back
to [his] cell,” (Compl. 11), because “they [defendants] protect
each other,” so Plaintiff “wasn't going to get the medical
needed,” (Pl.’s Opp'n 2). Plaintiff's trip to Westchester was
then cancelled (i.e., “D/C or discontinue[ed]”), (id. at 2–3),
“per Lt. Corcere [sic] by Dep. Comm. Morley,” (Defs’ Mem.,
Ex. A (“Ex. A”) (Dkt. No. 162-1)). 5 The medical personnel
who saw Plaintiff allegedly said “he had no idea ... why
[plaintiff] [couldn't] get medical” treatment or why the trip
was cancelled. (See Pl.’s Opp'n 1.) 6
*3 Plaintiff was sent back to his cell and started to have
suicidal thoughts “as a result of Dr. Morley[’s] actions
denying [him] medical treatment.” (Pl.’s Opp'n 2; see also
Compl. 11.) Plaintiff then proceeded to swallow metal as two
corrections officers (Polonco and Gleason) watched. (Compl.
11; see also Pl.’s Opp'n 2.) Plaintiff was then sent to suicide
watch where he threw up blood, which resulted in medical
being called. (Compl. 11.) Plaintiff was taken to the infirmary,
and Polonco then came in and told the staff not to send
Plaintiff out of Green Haven. (Id.; see also Pl.’s Opp'n 2
(stating he was “again denied to go to an outside hospital
despite the fact [he] was throwing up blood”).) Plaintiff was
sent back to “the cell[,]” and two days later was still throwing
up blood. (Compl. 11.) After informing mental health and
receiving an x-ray that showed metal, Plaintiff was finally
sent to an outside hospital. (Id.) Plaintiff alleges he was not
initially sent to an outside hospital for his suicide attempt
because “DNA stays for up to 72 hours and if they had sent me
to outside hospital for that (swallowing metal) I could have
requested a rape kit.” (Pl.’s Opp'n 2.)
As a result of the actions described above, as well as the other
conduct detailed in the Complaint, (see generally Compl;
2023 Op. 5–19), Plaintiff alleges he has sustained mental
and emotional stress, paranoia, headaches, bleeding from his
rectum, and throwing up blood, (Compl. 18).
B. Procedural History
The Court discussed the procedural background of this
Action in the 2023 Opinion and in a prior Order. (See
2023 Op. 20; Dkt. No. 66.) The Court discusses subsequent
proceedings only as relevant to deciding the instant Motion
and Application.
After the entry of the 2023 Opinion, the Parties began
engaging in limited discovery. Following a December 18,
2023, status conference in front of Judge Krause, Judge
Krause ordered Defendants to inform the Court whether
they had been able to identify C.O. Robinson, who was not
identified or served prior to Defendants’ First Motion, or John
Doe #1/Jane Doe #1. (See Dkt. No. 104.) On February 8,
2024, Defendants filed a letter identifying C.O. Roderick A.
Robinson as the “C.O. Robinson” named in the Complaint.
(See Dkt. No. 112.) The following day, Plaintiff provided
information at a status conference before Judge Krause that
allowed Defendants to identify the individual referenced as
“John Doe #1/Jane Doe #1” as Morley. (See Dkt. No. 121.)
Shortly thereafter, Judge Krause ordered the U.S. Marshals
Service to effect service on Robinson and Morley. (See Dkt.
No. 122.)
On May 28, 2024, Defendants Robinson and Morley (the
“Moving Defendants”) submitted a letter requesting leave
to file a Motion to Dismiss the Complaint. (See Dkt. No.
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147.) The Court set a briefing schedule, (see Dkt. No. 149),
pursuant to which Moving Defendants submitted their Motion
on July 1, 2024, (see Not. of Mot.; Not. of Not. to Pro Se
Litigant (Dkt. No. 161); Mem. of Law in Supp. of Mot.
(“Defs’ Mem.”) (Dkt. No. 162)). On September 10, 2024,
after realizing he forgot to send in his Opposition to Moving
Defendants’ Motion, Plaintiff filed a letter providing the
Court with the two pages from his Opposition that he was able
to locate. (See Sept. 10, 2024 Ltr. from Pl. (Dkt. No. 165);
Pl.’s Opp'n.) Moving Defendants did not reply.
Separately, on December 13, 2023, Plaintiff filed an
application requesting that the Court appoint pro bono
counsel. (See Dkt. No. 98.) The Court denied Plaintiff's
application without prejudice. (See Dkt. No. 103.) 7 Plaintiff
filed a renewed Application on July 1, 2024. (See Pl.’s App.)
II. Discussion
A. Defendants’ Motion to Dismiss
1. Standard of Review
The Supreme Court has held that although a complaint “does
not need detailed factual allegations” to survive a motion
to dismiss, “a plaintiff's obligation to provide the grounds
of [its] entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration and quotation marks
omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotation marks omitted). “Nor does
a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. (alteration and quotation
marks omitted). Instead, a complaint's “[f]actual allegations
must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Although “once a claim has
been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the complaint,”
id. at 563, and a plaintiff must allege “only enough facts to
state a claim to relief that is plausible on its face,” id. at 570,
if a plaintiff has not “nudged [his or her] claims across the
line from conceivable to plausible, the[ ] complaint must be
dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining
whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—'that the pleader is entitled
to relief.’ ” (citation omitted) (second alteration in original)
(quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks
a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
*4 “[W]hen ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint,” Erickson v. Pardus, 551 U.S. 89,
94 (2007), and “draw[ ] all reasonable inferences in favor of
the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992 F. Supp.
2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's
Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally,
“[i]n adjudicating a Rule 12(b)(6) motion, a district court
must confine its consideration to facts stated on the face of
the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” Leonard F. v. Isr.
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (citation
and quotation marks omitted); see also Wang v. Palmisano,
157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016) (same). However,
as noted, when the complaint is from a pro se plaintiff, the
Court may consider “materials outside the complaint to the
extent that they are consistent with the allegations in the
complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL
3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks
omitted), including “documents that a pro se litigant attaches
to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010
WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics
omitted), statements by the plaintiff “submitted in response
to [a defendant's] request for a pre-motion conference,”
Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL
5300721, at *2 (E.D.N.Y. Sept. 19, 2013), “documents either
in [the plaintiff's] possession or of which [the] plaintiff[ ] had
knowledge and relied on in bringing suit,” Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation
marks omitted), and “[plaintiff's] opposition memorandum,”
Gadson v. Goord, No. 96-CV-7544, 1997 WL 714878, at *1
n.2 (S.D.N.Y. Nov. 17, 1997).
Where, as here, a plaintiff proceeds pro se, the court
must “construe[ ] [the plaintiff's] [complaint] liberally and
interpret[ ] [it] to raise the strongest arguments that [it]
suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d
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Cir. 2013) (citation omitted). However, “the liberal treatment
afforded to pro se litigants does not exempt a pro se party from
compliance with relevant rules of procedural and substantive
law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y.
2013) (citation and quotation marks omitted); see also Caidor
v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro
se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.” (italics
and citation omitted)).
2. Analysis
Plaintiff asserts multiple causes of action in his Complaint,
including, as mostly relevant here, “Eighth Amendment
cruel and unusual punishment.” (See Compl. 18.) The Court
construes Plaintiff's claims against Robinson and Morley as
follows: a failure to intervene claim against Robinson for
failing to prevent or halt Colombos's July 28, 2020 sexual
assault of Plaintiff; and a deliberate indifference to medical
needs claim against Morley for denying Plaintiff's request for
STD testing and collection of a rape kit. 8 (See Compl. 18;
Pl.’s Opp'n 1–2.)
a) Eighth Amendment Claim: Morley
Plaintiff alleges that Morley was deliberately indifferent to
his medical needs, in violation of the Eighth Amendment,
by failing to provide him with adequate medical treatment
following his alleged assault on July 28, 2020. (Compl. 11, 18;
Pl.’s Opp'n 1–2.) Moving Defendants argue that Plaintiff has
failed to allege Morley's personal involvement or successfully
plead a deliberate indifference claim. (Defs’ Mem. 4–7.) The
Court addresses Moving Defendants’ arguments as necessary
to resolve the instant Motion.
i. Personal Involvement
Moving Defendants argue that Plaintiff has failed to allege
“Dr. Morley's personal involvement in any constitutional
violation.” (Defs’ Mem. 4.) The Court disagrees.
As an initial matter, “[i]t is well settled that, in order to
establish a defendant's individual liability in a suit brought
under § 1983, a plaintiff must show ... the defendant's personal
involvement in the alleged constitutional deprivation.”
Whitley v. Ort, No. 17-CV-3652, 2018 WL 4684144, at
*5 (S.D.N.Y. Sept. 28, 2018) (quoting Grullon v. City of
New Haven, 720 F.3d 133, 138 (2d Cir. 2013)). To establish
personal involvement, a plaintiff must show that:
*5 (1) the defendant participated
directly in the alleged constitutional
violation, (2) the defendant, after being
informed of the violation through a
report or appeal, failed to remedy
the wrong, (3) the defendant created
a policy or custom under which
unconstitutional practices occurred, or
allowed the continuance of such a
policy or custom, (4) the defendant
was grossly negligent in supervising
subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference to
the rights of inmates by failing to
act on information indicating that
unconstitutional acts were occurring.
Id. (quoting Grullon, 720 F.3d at 139). In other words,
“[b]ecause vicarious liability is inapplicable to ...§ 1983
suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. Therefore,
Plaintiff must plausibly allege that Morley's actions fall
into one of the five categories identified above. See Lebron
v. Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *4
(S.D.N.Y. Jan. 24, 2017) (holding that the five categories “still
control[ ] with respect to claims that do not require a showing
of discriminatory intent” post-Iqbal).
Plaintiff alleges that he did not receive STD testing or a
rape kit at Green Haven, but that unnamed medical staff
arranged for him to go to an outside facility to receive such
treatment. (Compl. 11, 18; Pl.’s Opp'n 1–2.) Before Plaintiff
was transferred, however, Morley allegedly canceled (or
“discontinued”) the transfer “to prevent evidence from being
found” so that the corrections officer who allegedly assaulted
Plaintiff “didn't get busted.” (Pl.’s Opp'n 1–2; Compl. 11,
18; Ex. A (“Trip D/C per Lt. Corcere [sic] by Dep Comm
Morley”).) Given that Plaintiff has alleged that Morley was
directly responsible for cancelling his trip to an outside
facility to receive the necessary medical care, the Court finds
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these allegations are sufficient to allege Morley's personal
involvement in denying Plaintiff STD testing or a rape kit.
See Whitley, 2018 WL 4684144, at *7 (finding a nurse was
personally involved in plaintiff's deliberate indifference claim
when she “allegedly never provided [the sexually assaulted
plaintiff] any medical treatment or alerted PREA, because
unnamed Correction Officers pressured her to keep quiet”);
Grullon, 720 F.3d at 139 (listing as categories of personal
involvement when a defendant “participated directly in the
alleged constitutional violation” or “exhibited deliberate
indifference ... by failing to act on information indicating”
a health risk to the plaintiff (emphasis omitted)); cf. Lara-
Grimaldi v. County of Putnam, No. 17-CV-622, 2018 WL
1626348, at *11 (S.D.N.Y. Mar. 29, 2018) (dismissing claim
for lack of personal involvement because “[t]he [c]omplaint
contain[ed] no allegations whatsoever that [the defendant]
was involved in, aware of, or somehow permitted [the
plaintiff] to be placed on ‘routine’ supervision” rather than
suicide watch). 9
ii. Deliberate Indifference
*6 To state a claim of deliberate indifference, a plaintiff must
first “show that, while he was incarcerated, he suffered from
a medical condition that is, ‘in objective terms, sufficiently
serious.’ ” Mallet v. New York State Dep't of Corr. & Cmty.
Supervision, 126 F.4th 125, 132 (2d Cir. 2025) (quoting
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998));
see Norman v. Mount Vernon Hosp., No. 17-CV-9174, 2020
WL 4432063, at *7 (S.D.N.Y. July 31, 2020) (“Plaintiff
must [first] plausibly allege [ ] that he suffered a sufficiently
serious constitutional deprivation.” (internal quotation marks
omitted)). Second, the plaintiff must plausibly allege that the
defendant “acted with deliberate indifference.” Norman, 2020
WL 4432063, at *7; Whitley, 2018 WL 4684144, at *5.
“The standard of deliberate indifference includes both
subjective and objective components.” Mallet, 126 F.4th at
132 (quoting Chance, 143 F.3d at 702). “The first requirement
is objective: the alleged deprivation of adequate medical care
must be sufficiently serious.” Spavone v. New York State Dep't
of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citation
and quotation marks omitted). In other words, “the inmate
must show that the conditions, either alone or in combination,
pose an unreasonable risk of serious damage to his health.”
Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citations
omitted). Analyzing this objective requirement involves two
inquiries: “whether the prisoner was actually deprived of
adequate medical care,” Salahuddin v. Goord, 467 F.3d 263,
279 (2d Cir. 2006), abrogated on other grounds as recognized
by Kravitz v. Purcell, 87 F.4th 111, 119, 122 (2d Cir. 2023),
and “whether the inadequacy in medical care is sufficiently
serious,” which in turn “requires the [C]ourt to examine how
the offending conduct is inadequate and what harm, if any,
the inadequacy has caused or will likely cause the prisoner,”
id. at 280 (citation omitted). “There is no settled, precise
metric to guide a court in its estimation of the seriousness
of a prisoner's medical condition.” Brock v. Wright, 315 F.3d
158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit
has suggested the following non-exhaustive list of factors
to consider when evaluating an inmate's medical condition:
“(1) whether a reasonable doctor or patient would perceive
the medical need in question as ‘important and worthy of
comment or treatment,’ (2) whether the medical condition
significantly affects daily activities, and (3) ‘the existence of
chronic and substantial pain.’ ” Id. (quoting Chance, 143 F.3d
at 702); see also Mallet, 126 F.4th at 132 (same).
“The second requirement is subjective: the charged officials
must be subjectively reckless in their denial of medical care.”
Spavone, 719 F.3d at 138 (citation omitted). This means that
the defendant must “appreciate the risk to which a prisoner
was subjected,” and have a “subjective awareness of the
harmfulness associated with those conditions.” Darnell v.
Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); see also Mallet,
126 F. 4th at 132 (noting that the “acts or omissions” of the
defendant must “evince a conscious disregard of a substantial
risk of serious harm” (internal quotation marks and alteration
omitted)); Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014)
(“Deliberate indifference is a mental state equivalent to
subjective recklessness,” and it “requires that the charged
official act or fail to act while actually aware of a substantial
risk that serious inmate harm will result.” (citation, footnote,
and quotation marks omitted)). In other words, “[i]n medical-
treatment cases not arising from emergency situations, the
official's state of mind need not reach the level of knowing and
purposeful infliction of harm; it suffices if the plaintiff proves
that the official acted with deliberate indifference to inmate
health.” Id. (citation and quotation marks omitted). However,
“mere negligence” is insufficient to state a claim for deliberate
indifference. Walker, 717 F.3d at 125 (citation and quotation
marks omitted).
*7 As to the subjective prong, because Plaintiff has alleged
not only that he was denied STD testing or a rape kit—
both at Green Haven and at an outside facility—but also
that Morley deliberately cancelled Plaintiff's planned transfer
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to receive such testing in order to protect Colombos, the
officer who sexually assaulted him, (Compl. 11; Pl.’s Opp'n
1–2), the Court assumes that Plaintiff has plausibly alleged
Morley's deliberate indifference to his medical needs, see
Bowman v. Dilworth, No. 20-CV-756, 2021 WL 2551142,
at *8 (D. Conn. June 22, 2021) (“[Plaintiff's] allegation that
the [defendants] entirely failed to transport him for medical
treatment plausibly demonstrates the [defendants’] conscious
disregard of his serious medical needs.”); Melvin v. County
of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *9
(S.D.N.Y. Mar. 29, 2016) (finding that, “[i]n alleging that
[defendants] recklessly failed to provide [plaintiff] with any
medical treatment, the Second Amended Complaint puts
forth a plausible claim of deliberate indifference” (internal
citations, quotation marks, and alterations omitted)); see
Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y.
1984) (“Deliberate indifference, the second essential element,
is properly pleaded by allegations,” inter alia, “of ‘complete
denial’ of medical treatment ....”), aff'd, 762 F.2d 990 (2d Cir.
1985).
Even assuming Plaintiff has plausibly pled deliberate
indifference, however, his claim falters on the objective
prong—i.e., whether or not his medical condition was
sufficiently serious. See Hilton v. Wright, 928 F. Supp. 2d
530, 547 (N.D.N.Y. 2013) (“When the alleged deprivation
is that the defendant failed to provide any treatment for
the medical condition, ‘courts examine whether the inmate's
medical condition is sufficiently serious.’ ” (emphasis in
original) (quoting Salahuddin, 467 F.3d at 280)). Although
it is well established in the Second Circuit that “certain
sexually transmitted infections—such as HIV and Hepatitis
C—constitute sufficiently serious conditions that satisfy
the objective prong of a deliberate-indifference claim,” see
Dumel v. Westchester County, No. 19-CV-2161, 2021 WL
738365, at *11 (S.D.N.Y. Feb. 25, 2021) (collecting cases),
the Court has not located any authority within this Circuit
evaluating whether testing for sexually transmitted infections
after an alleged assault—when it is unknown if such infection
exists—itself constitutes a “sufficiently serious” condition
for purposes of such claims. Similarly, the Court has not
located any authority suggesting that the failure to provide
a rape kit, by itself, is sufficiently serious to state an Eighth
Amendment claim. See Johnson v. Ruiz, No. 11-CV-542,
2012 WL 90159, at *1, 3 (D. Conn. Jan. 10, 2012) (dismissing
a claim for deliberate indifference where plaintiff alleged the
corrections facility doctor “informed [the plaintiff] that he
would [perform] a rape kit, but failed to do so,” because
the court concluded there was “no constitutional or statutory
requirement that a rape test kit be used on an alleged rape
victim” and plaintiff “ha[d] not alleged that [the defendant]
otherwise failed to treat him for any physical injuries that
he suffered”); see also Brown v. Parnell, No. 09-CV-P159,
2010 WL 1418735, at *5 (W.D. Ky. Apr. 7, 2010) (rejecting
claim by pre-trial detainee that his Fourteenth Amendment
rights were violated by failure of prison authorities to perform
rape kit on detainee after he reported being a victim of sexual
misconduct).
In the absence of clear guidance, the Court turns to the
relevant factors identified by the Second Circuit. As to the
first factor, it seems clear that “a reasonable doctor or patient
would perceive [Plaintiff's] medical need”—i.e., receiving an
STD testing and rape kit after an alleged sexual assault—“as
important and worthy of comment or treatment.” Brock, 315
F.3d at 162 (quotation marks omitted). Indeed, the medical
personnel who examined Plaintiff evidently did find that
STD testing and a rape kit were necessary, hence their
initial decision to transfer Plaintiff to an outside facility to
receive that care. (See Compl. 11; Pl.’s Opp'n 1–2.) See also
Dumel, 2021 WL 738365, at *11 (finding an infection to
be treatment worthy because the medical personnel involved
made a “decision to order medication that would treat the
infection”).
*8 Examining the second and third factors, however,
Plaintiff has neither alleged that the failure to provision
such treatment “significantly affect[ed] [a] daily activit[y],”
nor that it caused the “existence of chronic and substantial
pain.” Brock, 315 F.3d at 162. Plaintiff does not allege that
he did, in fact, develop an STD that then went untreated,
or that the failure to provide a rape kit similarly failed to
uncover a condition that caused chronic or substantial pain
and affected his daily activities. 10 Accordingly, on these
allegations alone, as disturbing as they are, the Court cannot
conclude that the refusal to provide STD testing and a rape
kit here “implicate[d] a medical need sufficiently serious
to satisfy the [Eighth] Amendment's objective prong.” See
Turner v. Correct Care Sols., No. 18-CV-3370, 2019 WL
1115857, at *9 (S.D.N.Y. Mar. 11, 2019); see also Dumel,
2021 WL 738365, at *11 (finding allegations that plaintiff's
“condition caused excruciating pain during urination” as well
as “among other ailments, swollen and tender testicles,” were
sufficient to satisfy the objective prong (internal citations,
quotation marks, and alterations omitted)); Ruggiero v.
County of Orange, No. 19-CV-3632, 2020 WL 5096032, at
*10 (S.D.N.Y. Aug. 28, 2020) (finding plaintiff “plausibly
plead[ ] his condition was sufficiently serious” when he was
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denied a request for a rape kit because he also “allege[d]
he had bruises and hand marks on his testicles and penis
for weeks”). 11 Thus, Plaintiff has not successfully pled a
deliberate-indifference claim against Morley. 12
b. Corrections Law § 24: Morley and Robinson
*9 Moving Defendants next argue that, as to Morley and
Robinson, “[t]o the extent state law claims can be read into
the pleadings, they are barred by New York Corrections Law
§ 24, which provides immunity for DOCCS employees from
lawsuits based on acts or omissions within the course of their
employment.” (Defs’ Mem. 8–9 (internal quotation marks
omitted).) But Moving Defendants do not explain which
state law claims may be read into the pleading, nor engage
with why such claims are barred by immunity for DOCCS
employees other than quoting one piece of generic caselaw
and stating that, “[d]uring the alleged events in question, it is
undisputed that Defendants were employed by DOCCS.” (Id.
(citing Parris v. New York State Dept. Corr. Servs., 947 F.
Supp. 2d 354, 365 (S.D.N.Y. 2013)).) The Court declines to
consider these arguments “because [they are] ‘not sufficiently
argued’ by Defendants, who are represented by counsel and
attempting to dismiss a pro se Complaint.” Whitley v. Bowden,
No. 17-CV-3564, 2018 WL 2170313, at *12 (S.D.N.Y. May
10, 2018) (quoting Norton v. Sam's Club, 145 F.3d 114,
117 (2d Cir. 1998)); see also Bonie v. Annucci, No. 20-
CV-640, 2023 WL 2711349, at *17 (S.D.N.Y. Mar. 30, 2023)
(declining to consider defendant's argument for dismissal of
pro se plaintiff's claim of first amendment retaliation where
it amounted to “a single three sentence paragraph” that failed
to substantively engage with Plaintiff's factual averments);
cf. Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d
Cir. 2002) (“Perhaps counsel for [the] [a]ppellant intends that
we form an argument for him, by looking into the record to
document the ‘facts’ posited in his ‘statement of the case,’
and then examining various combinations of these facts in the
light of the legal doctrines he later mentions. But that is simply
not our job, at least in a counseled case.”).
c. Official Capacity Claims: Morley and Robinson
Moving Defendants next assert that “[a]ll defendants are sued
in their official capacities” and “[s]uch claims for money
damages are barred.” (Defs’ Mem. 8 (citations omitted).)
Although those bareboned statements are the sum total of
Moving Defendants’ arguments on this topic, the Court
considered this exact issue in the 2023 Opinion and concluded
that the claims asserted against all Defendants in their official
capacity were barred by the Eleventh Amendment. (See 2023
Op. 40–41 (holding that, because “[t]he immunity recognized
by the Eleventh Amendment extends beyond the states
themselves to state agents and state instrumentalities that
are, effectively, arms of a state, [t]he Eleventh Amendment
therefore also bars the claims for damages against the
individual Defendants in their official capacities” (internal
quotation marks and citation omitted)).) The Court concludes
the same holding applies here and, accordingly, any claims
asserted against Morley and Robinson in their official
capacities are dismissed. See Samuels v. New York Dep't of
Lab., No. 23-CV-8004, 2025 WL 27737, at *4 (S.D.N.Y.
Jan. 3, 2025) (dismissing claims for damages asserted against
individual defendants in their official capacities as “barred by
Eleventh Amendment immunity”); Gonzalez v. New York City
Dep't of Corr., No. 24-CV-3859, 2024 WL 4791589, at *3
(S.D.N.Y. Nov. 14, 2024) (same); Wade v. Rodriguez, No. 23-
CV-4707, 2024 WL 4135195, at *4 (S.D.N.Y. Sept. 10, 2024)
(same).
d. Declaration of Unconstitutional Conduct
and Injunctive Relief: Morley and Robinson
Finally, Moving Defendants argue that any claims for
injunctive relief were mooted by Plaintiff's transfer to a
different correctional facility and, further, that Plaintiff cannot
seek a declaratory judgment as to Morley and Robinson's past
conduct. (See Defs’ Mem. 8–9.) The Court agrees.
“A case is deemed moot where the problem sought to
be remedied has ceased or where there ‘is no reasonable
expectation that the wrong will be repeated.’ ” Keitt v.
New York City, 882 F. Supp. 2d 412, 449 (S.D.N.Y. 2011)
(quoting Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996)).
Accordingly, as the Court noted in its 2023 Opinion, (2023
Op. 42), “[i]t is settled in th[e] [Second] Circuit that a
transfer from a prison facility moots an action for injunctive
relief against the transferring facility,” Prins, 76 F.3d at
506; see also Booker v. Graham, 974 F.3d 101, 104 (2d
Cir. 2020) (holding that plaintiff's “claims for injunctive and
declaratory relief are moot because he has been transferred
to a different facility”); Salahuddin, 467 F.3d at 272 (“[A]n
inmate's transfer from a prison facility generally moots claims
for declaratory and injunctive relief against officials of that
facility.”).
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*10 Thus, to the extent Plaintiff asserts claims for injunctive
or declaratory relief against Morley and Robinson, those
claims are denied as moot. See Tripathy v. McKoy, 103 F.4th
106, 113 (2d Cir. 2024) (holding an inmate's “requests for
declaratory and injunctive relief ... were mooted by his release
from prison”); see also Bey v. Megget, No. 24-CV-1258, 2025
WL 27463, at *6 (D. Conn. Jan. 3, 2025) (dismissing as moot
claims for injunctive relief after inmate was transferred from
the facility where defendants worked); Mitchell v. Martin, No.
23-CV-902, 2024 WL 2052139, at *3 (D. Conn. May 7, 2024)
(dismissing “as moot [plaintiff's] claims for injunctive and
declaratory relief” after plaintiff was transferred to a different
facility).
~*~*~*~*~
In sum, Moving Defendants’ Motion is denied insofar as
Moving Defendants seek to assert immunity based on New
York Corrections Law § 24, but is granted on all other
grounds.
B. Plaintiff's Application for Appointment of Counsel
Also before the Court is Plaintiff's Application for
Appointment of Pro Bono Counsel. Plaintiff asserts that his
“imprisonment will greatly limit his ability to litigate” this
Action, particularly given his “limited access to the law
library and limited knowledge of the law,” (Pl.’s App. 1), and
that as the case is in discovery and involves reviewing video
footage and investigating hospital records, he “really need[s]
help,” (Pl.’s App. at 8–9, Ex. B (Pl.’s Decl.)).
Although there is not a constitutional right to counsel in
civil cases, the Court has the authority to appoint counsel for
indigent parties. See 28 U.S.C. § 1915(e)(1). Yet, “[b]road
discretion lies with the district judge in deciding whether to
appoint counsel pursuant to this provision.” Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir. 1986). When analyzing
whether appointment of counsel is appropriate, the Court
should undertake a two-step inquiry. See Ferrelli v. River
Manor Health Care Ctr., 323 F.3d 196, 203–04 (2d Cir.
2003). First, the Court “ ‘should ... determine whether the
indigent's position seems likely to be of substance.’ ” Id. at
203 (quoting Hodge, 802 F.2d at 61); see also Johnston v.
Maha, 606 F.3d 39, 41 (2d Cir. 2010) (“This Court considers
motions for appointment of counsel by asking first whether
the claimant has met a threshold showing of some likelihood
of merit.” (citation and internal quotation marks omitted)). In
other words, the claim must not be so “highly dubious” that
the plaintiff appears to have no chance of success. Hodge, 802
F.2d at 60 (internal quotation marks omitted). In making this
determination, the Court construes pleadings drafted by pro
se litigants liberally and interprets them “to raise the strongest
arguments that they suggest.” See Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted);
Sommersett v. City of New York, 679 F. Supp. 2d 468, 472
(S.D.N.Y. 2010) (same). If the threshold requirement is met,
the Court should proceed to consider other prudential factors
such as:
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 ... why appointment
of counsel would be more likely to lead
to a just determination.
Ferrelli, 323 F.3d at 203–04 (quoting Hodge, 802 F.2d at
61–62); see also Cooper v. A. Sargenti Co., Inc., 877 F.2d
170, 172 (2d Cir. 1989) (listing factors courts should consider,
including the litigant's efforts to obtain counsel).
*11 In considering these factors, district courts should
neither apply bright-line rules nor automatically deny the
request for counsel until the application has survived a
dispositive motion. See Hendricks v. Coughlin, 114 F.3d 390,
392–93 (2d Cir. 1997). Rather, “each [application] must be
decided on its own facts.” See Hodge, 802 F.2d at 61; see also
Norman v. Doe, No. 17-CV-9174, 2020 WL 6808854, at *1
(S.D.N.Y. Nov. 19, 2020) (same).
For the purpose of addressing Plaintiff's Application, the
Court construes Plaintiff's Complaint liberally and assumes
it has “some likelihood of merit” such that it satisfies the
threshold requirement under Hodge. Johnston, 606 F.3d
at 41 (quotation marks omitted); see also Gayot v. New
York, No. 16-CV-8871, 2023 WL 6199226, at *3 (S.D.N.Y.
Sept. 22, 2023) (assuming for the purpose of an application
for pro bono counsel that the plaintiff's claims had “some
likelihood of merit”); McCray v. Lee, No. 16-CV-1730,
2020 WL 4229907, at *2 (S.D.N.Y. July 23, 2020) (same);
Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416,
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2020 WL 3972274, at *3 (S.D.N.Y. July 14, 2020) (same);
Simmons v. Diaz, No. 17-CV-8886, 2018 WL 11258138, at *4
(S.D.N.Y. May 8, 2018) (same). Indeed, the Court notes that
it previously denied in part Defendants’ Motion to Dismiss
Plaintiff's Complaint, (see 2023 Op.), and further notes that
the Parties are currently engaged in discovery on Plaintiff's
surviving claims, (see generally Dkt.).
“[T]he Second Circuit has interpreted [28 U.S.C. § 1915(e)
(1)] to require that the plaintiff be unable to obtain counsel
‘before appointment will even be considered.’ ” Morris v.
Moran, No. 12-CV-7020, 2014 WL 1053658, at *1 (S.D.N.Y.
Mar. 14, 2014) (quoting Hodge, 802 F.2d at 61); see also
Williams v. Nicholson, No. 12-CV-8300, 2013 WL 1800215,
at *2 (S.D.N.Y. Apr. 22, 2013) (“Where, in a civil action,
an applicant fails to make any effort to engage counsel,
appointing counsel for the applicant is not appropriate and
should not even be considered ....”). The Court denied
Plaintiff's prior application partly on the grounds that Plaintiff
had not “explain[ed] whether he ha[d] sought to obtain
counsel in this matter at all before asking the Court to appoint
counsel” or “demonstrated that he made any effort to engage
counsel.” (See Dkt. No. 103 at 4.) In the instant Application,
however, Plaintiff avers that he has “made repeated attempts
to obtain a lawyer” but has only received a single response
(a denial) to his requests. (See Pl.’s App. 1–2; Pl.’s App. at
4, Ex. A (response from the law office of A. Agnew, Esq.);
Pl.’s App. at 8–9, Pl.’s Decl.) The Court finds that these
attempts, combined with Plaintiff's prior application to the
Court, demonstrates Plaintiff has made an effort to obtain
counsel, which weighs in his favor here. Morris, 2014 WL
1053658, at *1.
The Court similarly finds that the other Hodge factors weigh
in favor of granting Plaintiff's Application. Specifically, as
Plaintiff argues in his Motion, Plaintiff's incarceration will
hinder his ability to effectively conduct document discovery
and depositions in this matter. (See Pl.’s App. 1–2.) Thus, in
this case, representation would “lead to a quicker and more
just result by sharpening the issues and shaping examination.”
Hodge, 802 F.2d at 61 (citation omitted); see Flowers v. Sehl,
No. 22-CV-2766, 2023 WL 2436002, at *2 (S.D.N.Y. Feb.
7, 2023) (finding, where the incarcerated plaintiff alleged he
was sexually assaulted and that the assault was captured on
video, “it would aid the search for the truth if counsel were
appointed to assist him with respect to the identified videos,
and the discovery process more generally”); King v. City of
New York, No. 21-CV-6945, 2022 WL 1547854, at *1–2
(S.D.N.Y. Apr. 4, 2022) (finding that appointment of pro bono
counsel is warranted because “[p]laintiff intends to conduct
depositions of [d]efendants, but is currently incarcerated and
facing logistical issues”); Moreno-Godoy v. Gallet Dreyer
& Berkey, LLP, No. 14-CV-7082, 2015 WL 13866414, at
*2 (S.D.N.Y. Nov. 2, 2015) (appointing pro bono counsel
where “[d]efendant's incarceration will hinder his ability to
effectively conduct document discovery and depositions in
this matter”).
*12 Accordingly, given the stage of the proceedings,
the Court will request that counsel appear for the limited
purpose of conducting certain document (and video-related)
discovery and deposition. Pro bono counsel may, but is
not required to, conduct additional discovery which, in the
exercise of his or her good faith judgment, counsel deems
necessary. In addition, pro bono counsel may engage in
settlement discussions. See Flowers, 2023 WL 2436002, at
*2 (appointing pro bono counsel “for the limited purpose of
conducting certain document (and video-related) discovery
and deposition[s]” and authorizing pro bono counsel to
“conduct additional discovery which ... counsel deems
necessary” and “engage in settlement discussions”); King,
2022 WL 1547854, at *1–2 (requesting pro bono counsel
“appear for the limited purpose of conducting discovery,
specifically conducting depositions,” and authorizing pro
bono counsel to “engage in settlement discussions”); Rattray
v. City of New York, No. 17-CV-8560, 2021 WL 2291076, at
*2 (S.D.N.Y. May 14, 2021) (same).
Under the Court's Standing Order regarding the Creation and
Administration of the Pro Bono Fund (16-MC-0078), pro
bono counsel may apply to the Court for reimbursement of
certain out-of-pocket expenses spent in litigating Plaintiff's
case. The Pro Bono Fund is especially intended for attorneys
for whom pro bono service is a financial hardship. See http://
www.nysd.circ2.dcn/docs/prose/pro_bono_fund_order.pdf.
Pro bono counsel will not be obligated for any aspect
of Plaintiff's representation beyond the matters described
in this order. In particular, pro bono counsel will not be
required to respond to a dispositive motion. In the event that
Defendants file a dispositive motion, pro bono counsel may
seek appropriate relief, including an extension of Plaintiff's
time to respond, or an expansion of pro bono counsel's role
to include responding to the motion. Absent an expansion
of the scope of pro bono counsel's representation, pro bono
counsel's representation of Plaintiff will end upon completion
of discovery. Upon the filing by pro bono counsel of a Notice
of Completion, the representation by pro bono counsel of
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Plaintiff in this matter will terminate, and pro bono counsel
will have no further obligations or responsibilities to Plaintiff
or to the Court in this matter.
III. Conclusion
For the foregoing reasons, the Court grants in part and denies
in part Defendant Robinson and Morley's Motion to Dismiss
as to Claims 14 and 16. However, in light of Plaintiff's pro
se status, and because this is the first adjudication of these
claims on the merits, Plaintiff's Eighth Amendment claims
for damages against Robinson and Morley in their individual
capacities are dismissed without prejudice. If Plaintiff wishes
to file an amended complaint alleging additional facts
and otherwise addressing the deficiencies identified above,
Plaintiff must do so within 30 days of the date of this Order.
The amended complaint will replace, not supplement, the
original complaint.
Plaintiff's requests for injunctive and declaratory relief
are dismissed as moot. In addition, Plaintiff's claims
against Robinson and Morley in their official capacities are
dismissed.
The Court also grants Plaintiff's Application for Appointment
of Pro Bono Counsel.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 887621
Footnotes
1 Because Plaintiff's Complaint was amended only insofar as it now identifies John Doe #1 as Dr. John Morley,
and because no amended complaint was filed, as such amendment was made orally, (see Infra Section I.A),
the Court still refers to the operative document as the “Complaint” rather than the “Amended Complaint.”
The Complaint also originally listed as Defendants Acting Director of DOCCS Anthony Annucci and C.O.
Young, (see Compl. 4), who were subsequently dismissed, (see Dkt. No. 84 at 31).
2 This Action previously was referred to Judge Krause for general pre-trial supervision. (See Order of Reference
(Dkt. No. 91).)
3 This Opinion is published as Akinlawon v. Polanco, No. 21-CV-2621, 2023 WL 6216724 (S.D.N.Y. Sept.
25, 2023).
4 Generally, “[w]hen considering a motion to dismiss, the Court's review is confined to the pleadings
themselves” because “[t]o go beyond the allegations in the Complaint would convert the Rule 12(b)(6) motion
into one for summary judgment pursuant to [Rule] 56.” Thomas v. Westchester Cnty. Health Care Corp.,
232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002); accord Doe v. County of Rockland, No. 21-CV-6751, 2023 WL
6199735, at *1 (S.D.N.Y. Sept. 22, 2023). However, the Court's “mandate to read the papers of pro se
litigants generously makes it appropriate to consider [a] plaintiff's additional materials, such as [the] opposition
memorandum,” Williams v. Barometre, No. 20-CV-7644, 2022 WL 903068, at *2 n.4 (S.D.N.Y. Mar. 28,
2022) (quotation marks and citation omitted), “to the extent that those allegations are consistent with the
[Complaint],” Veras v. Jacobson, No. 18-CV-6724, 2020 WL 5659551, at *1 n.1 (S.D.N.Y. Sept. 23, 2020);
see also Floyd v. Rosen, No. 21-CV-1668, 2022 WL 1451405, at *3 (S.D.N.Y. May 9, 2022) (considering
exhibits attached to pro se opposition memorandum).
5 Defendants’ Exhibit A—Plaintiff's Green Haven medical report from July 28, 2020—was originally filed
by Plaintiff in response to Defendants’ First Motion. (See Dkt. No. 64 at 1, 91.) Because this document
was referenced and relied upon by Plaintiff in his Opposition, and because there is no dispute over its
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authenticity, the Court will consider the Exhibit and accompanying papers. See Stewart v. Riviana Foods Inc.,
No. 16-CV-6157, 2017 WL 4045952, at *6 (S.D.N.Y. Sept. 11, 2017) (“Generally, a court may incorporate
documents referenced where (1) [the] plaintiff relies on the materials in framing the complaint, (2) the
complaint clearly and substantially references the documents, and (3) the document's authenticity or accuracy
is undisputed.” (emphasis omitted)); see also Williams, 2022 WL 903068, at *2 n.4 (noting the Court's
“mandate to read the papers of pro se litigants generously makes it appropriate to consider [a] plaintiff's
additional materials”).
6 It is somewhat unclear from the Complaint and Plaintiff's Opposition whether the person originally identified
as “John Doe #1” is, in fact, Morley. As the Court reads the allegations in Plaintiff's Opposition, Plaintiff was
first seen by a nurse (originally identified in the Complaint as “John Doe #1/Jane Doe #1”, (see Compl. 11)),
but Plaintiff's trip was ultimately cancelled by Morley, who “worked in Albany” but “was probably at home ...
when he got the call from Lt. [Corciere] because the time was after 7PM,” (Pl.’s Opp'n 1–2). Thus, although
Judge Krause deemed Plaintiff's oral motion to amend the Complaint as substituting Morley for “John Doe #1”
at all instances, (see Supra Section I.A), the Court concludes the allegations most logically read as naming
two medical personnel: (1) the still unidentified nurse; and (2) Morley.
7 This Order is published as Akinlawon v. Polonco, No. 21-CV-2621, 2023 WL 8772672 (S.D.N.Y. Dec. 19,
2023).
8 In the 2023 Opinion, these claims were referred to as Claim 14 and Claim 16, respectively. (See 2023 Op. 18.)
9 Moving Defendants’ arguments to the contrary are unavailing. First, Moving Defendants argue, without
support, that it was “virtually implausible” that Morley “personally made the decision to cancel a scheduled trip
to an outside provider on the same day Plaintiff claims he was assaulted, ... given [Morley's] status as DOCCS
Chief Medical Officer.” (Defs’ Mem. 4.) At this stage, however, the Court is bound to accept the allegations
in the Complaint as true and draw all reasonable inferences in Plaintiff's favor, see Daniel, 992 F. Supp. 2d
at 304 n.1, and Plaintiff clearly alleges that Morley is the one who cancelled the trip, (see Pl.’s Opp'n 1–2).
Second, Moving Defendants argue that “having STD and rape testing done at an outside facility is hardly
constitutionally mandated as Plaintiff's facility has medical providers as well,” and thus, presumably, Morley's
actions could not have implicated a constitutional wrong. (See Defs’ Mem. 4.) But Moving Defendants
misinterpret Plaintiff's claim. Plaintiff's deliberate-indifference claim is not based upon the fact that he did not
receive STD testing or a rape kit at an outside facility—it is that he did not receive such treatment at all,
either at Green Haven or at Westchester. (See Compl. 11, 18; Pl.’s Opp'n 1–2.) Thus, Morley's alleged role
in cancelling such treatment qualifies as personal involvement for the purposes of this Motion.
10 Read generously, Plaintiff also alleges that the decision to not provide him with testing and a rape kit is
what lead to his suicidal thoughts and “swallow[ing] metal,” which then was also not treated in a timely
fashion because Defendants did not want him to receive a rape kit shortly after the alleged assault. (See
Compl. 11–12, 18; Pl.’s Opp'n 2.) However, even assuming the denial of treatment directly led to the
suicidal thoughts and swallowing metal, Plaintiff faces other hurdles. First, the Complaint and Opposition
are devoid of any allegations that Morley was personally involved in—or even aware of—the delay in care
after Plaintiff swallowed metal. See Whitley, 2018 WL 4684144, at *6 (dismissing a deliberate-indifference
claim against a defendant because “[p]laintiff does not allege [the defendant] was present for, let alone
participated directly or somehow permitted, the violation of [p]laintiff's constitutional rights by denying him
medical attention”); Casiano v. County of Nassau, No. 16-CV-1194, 2017 WL 4484338, at *4 (E.D.N.Y. Sept.
30, 2017) (dismissing a deliberate-indifference claim for lack of personal involvement because the “[p]laintiff
d[id] not allege facts that support an inference that [the defendant] had actual knowledge of the [d]ecedent's
specific medical condition, such as allegations that the [d]ecedent directly spoke to [the defendant]”). Second,
to demonstrate deliberate indifference, Plaintiff must plead that Morley “appreciate[d] the risk to which
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Akinlawon v. Polonco, Slip Copy (2025)
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[Plaintiff] was subjected,” Darnell, 849 F.3d at 35, and “conscious[ly] disregard ... a substantial risk of serious
harm,” Mallet, 126 F.4th at 132. Plaintiff's allegations are insufficient to establish that Morley was aware of
any risk of suicidal behavior resulting from the deprivation of care, let alone that he consciously disregarded
it. See Chance, 143 F.3d at 702 (“[T]he official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).
11 To be clear, the Court is not stating that the refusal to provide STD testing and/or a rape kit can never be
sufficiently serious enough to plead a deliberate-indifference claim. Instead, the Court only finds that the
allegations currently before it are insufficient to state such a claim.
12 Moving Defendants argue that the reason Plaintiff's alleged condition was not sufficiently serious to plead
a claim is that his allegations are that his treatment was delayed, or “amount only to a disagreement over
the treatment he received.” (Defs’ Mem. 5–6.) Again, Moving Defendants mischaracterize Plaintiff's claim,
which is not that he received different care than he wanted or received delayed care, it is that he received
no care at all. (See Supra n.9.)
Moreover, although Moving Defendants assert that “the documents in question show that Plaintiff did receive
treatment, but at his facility,” (Defs’ Mem. at 6 (emphasis added)), the documents Plaintiff submitted do not
demonstrate that he ever received STD testing or a rape kit, (see Ex. A; Dkt. No. 64-1 at 54 (noting, the day
after the assault, “HIV testing not to be offered @ this time”)).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 61 of 527

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Date and Time: Tuesday, December 23, 2025 10:49￿AM EST
Job Number: 271367039
Document (1)
1. Beers v. GMC
Client/Matter: -None-
Search Terms: 12285
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Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 62 of 527

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As of: December 23, 2025 3:49 PM Z
Beers v. GMC
United States District Court for the Northern District of New York
May 17, 1999, Decided ; May 17, 1999, Filed
97-CV-482 (NPM/DNH)
Reporter
1999 U.S. Dist. LEXIS 12285 *; 1999 WL 325378
MARK W. BEERS and JANET BEERS, Plaintiffs, -
against- GENERAL MOTORS CORPORATION,
Defendant.
Disposition: [*1] GM's motion to dismiss pursuant to
Fed. R. Civ. P. 37 GRANTED. Defendant's motion for
summary judgment GRANTED in entirety.
Core Terms
fan, flex, spoliation, assembly, summary judgment,
discovery, inspection, sanctions, district court, tire,
motion to dismiss, lesser sanction, argues, orders,
blade, truck, fault, crucial evidence, court order,
exemplar, warning, wheel, summary judgment motion,
spoliation of evidence, order to show cause, failure to
warn, manufacturer, overinflated, exploded, mounting
Case Summary
Procedural Posture
Defendant automobile manufacturer moved for
dismissal pursuant to Fed. R. Civ. P. 37(b)(2) or,
alternatively, for summary judgment of plaintiff's product
liability case. The motion for dismissal was based on
plaintiff's loss of crucial evidence.
Overview
Plaintiff was injured by a fan installed on a pickup truck
that was manufactured by defendant. Plaintiff's expert,
in examining it, disassembled and irreparably altered
the fan assembly from its condition at the time of the
accident and eventually misplaced it. Defendant moved
for dismissal of plaintiff's subsequent suit, pursuant to
Fed. R. Civ. P. 37(b)(2), after plaintiff failed to comply
with numerous court orders to produce the fan for
inspection. The court held that plaintiff should be held
responsible for both his expert's loss of the crucial
evidence and his counsel's defiance of court orders.
Dismissal was proper because the spoliated evidence
was not circumstantial; due to the nature of the
evidence, effective lesser sanctions would be
tantamount to summary judgment; lesser sanctions
would not remedy defendant's prejudice because it did
not know exactly what inspection of the fan would have
revealed as a potential defense; no mitigating factors
were present; and plaintiff's counsel's disregard of
discovery and other orders of the court supported
dismissal as a sanction under Rule 37 and under the
court's inherent power to control litigation before it.
Outcome
The court dismissed plaintiff's case, first, because it
served as a deterrent to plaintiff's counsel, his expert,
and non-parties from engaging in spoliation and
disobedience of court orders. Second, the risk of an
erroneous judgment was thereby placed on the party
who lost the critical evidence. Third, it appeared no
other sanction would restore defendant to the position it
would have been in absent the spoliation.
LexisNexis® Headnotes
Civil Procedure > ... > Discovery > Methods of
Discovery > Inspection & Production Requests
Civil Procedure > Discovery &
Disclosure > Discovery > Misconduct During
Discovery
HN1 Methods of Discovery, Inspection &
Production Requests
Spoliation of evidence consists of the destruction or
significant alteration of evidence, or the failure to
preserve property for another's use as evidence in
Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 63 of 527

Page 2 of 10
pending or reasonably foreseeable litigation. A federal
court may impose sanctions upon a party who engages
in spoliation in derogation of court order. Even in the
absence of a discovery order, the court may impose
sanctions for spoliation, exercising its inherent power to
control litigation.
Civil Procedure > Appeals > Standards of
Review > Clearly Erroneous Review
Civil Procedure > ... > Discovery > Methods of
Discovery > Inspection & Production Requests
HN2 Standards of Review, Clearly Erroneous
Review
Sanctions for spoliation, including dismissal, are
reviewed by the court for abuse of discretion. The court
will reject the district court's factual findings in support of
its imposition of sanctions only if they are clearly
erroneous.
Civil Procedure > Discovery &
Disclosure > Discovery > Misconduct During
Discovery
Evidence > Relevance > Preservation of Relevant
Evidence > Spoliation
HN3 Discovery, Misconduct During Discovery
The district court possesses broad discretion in crafting
a proper sanction for spoliation but such sanction is to
serve the prophylactic, punitive, and remedial rationales
underlying the spoliation doctrine. This sanction is
fashioned to: (1) deter parties from engaging in
spoliation; (2) place the risk of an erroneous judgment
on the party who wrongfully created the risk; and (3)
restore the prejudiced party to the same position he
would have been in absent the wrongful destruction of
evidence by the opposing party.
Civil Procedure > Discovery &
Disclosure > Discovery > Misconduct During
Discovery
Evidence > Relevance > Preservation of Relevant
Evidence > Spoliation
HN4 Discovery, Misconduct During Discovery
Outright dismissal of a lawsuit as a sanction for
spoliation is within the court's discretion. Dismissal is
proper if there is a showing of willfulness, bad faith, or
fault on the part of the sanctioned party. Dismissal is not
limited only to matters where the offending party has
acted with bad faith or willful intent, but is permitted
where there is any fault of the sanctioned party.
Negligent wrongs, like intentional wrongs, are proper
subjects for general deterrence.
Civil Procedure > Discovery &
Disclosure > Discovery > Misconduct During
Discovery
Civil Procedure > Discovery & Disclosure > General
Overview
HN5 Discovery, Misconduct During Discovery
The district court possesses the discretion to dismiss for
disobedience of discovery orders.
Civil Procedure > Discovery &
Disclosure > Discovery > Misconduct During
Discovery
HN6 Discovery, Misconduct During Discovery
Dismissal is a drastic remedy and should be imposed
only after consideration of alternative, less drastic
sanctions. However, in fashioning a sanction, the district
court must take into account the ability of the sanction to
restore the prejudiced party to the same position he
would have been in absent the wrongful destruction of
evidence by the opposing party.
Torts > Products Liability > Theories of
Liability > Negligence
HN7 Theories of Liability, Negligence
A manufacturer is not responsible for injuries resulting
from substantial alterations or modifications of a product
by a third party that render the product defective or
otherwise unsafe.
1999 U.S. Dist. LEXIS 12285, *1
Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 64 of 527

Page 3 of 10
Civil Procedure > ... > Summary
Judgment > Supporting Materials > General
Overview
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Waiver & Preservation of
Defenses
HN8 Summary Judgment, Supporting Materials
Failure to file or serve any papers as required by this
rule shall be deemed by the court as consent to the
granting or denial of the motion, as the case may be,
unless good cause is shown. N.D.N.Y. L.R. 7.1(b)(3).
Counsel: For Plaintiff: Diane V. Bruns, Esq., LoPinto,
Schlather, Solomon & Salk, Ithaca, New York.
For Defendant: Timothy S. Coon, Esq., Eckert Seamans
Cherin & Mellott, LLC, Pittsburgh, Pennsylvania.
For Defendant: Margaret J. Fowler, Esq., Chernin &
Gold, LLP, Binghamton, New York.
Judges: Neal P. McCurn, Senior United States District
Judge.
Opinion by: Neal P. McCurn
Opinion
MEMORANDUM-DECISION & ORDER
INTRODUCTION
Defendant General Motors ("GM") moves for dismissal
pursuant to Federal Rule of Civil Procedure 37(b)(2),
1 [*2] or alternatively, for summary judgment. The
motion for dismissal is based on plaintiff's loss of crucial
1 Fed. R. Civ. P. 37(b)(2) states:
If a party . . . fails to obey an order to provide or permit
discovery . . . the court in which the action is pending may
make such orders in regard to the failure as are just, and
among others the following: . . . (C) An order striking out
pleadings or parts thereof . . . or dismissing the action or
proceeding . . . or rendering a judgment by default against the
disobedient party[.]
Fed. R. Civ. P. 37(b)(2).
evidence. Plaintiff opposes the sanction of dismissal,
and argues in part that summary judgment is
inappropriate. 2 For the reasons that follow, the court
grants GM's motion to dismiss, or in the alternative,
grants summary judgment.
BACKGROUND
Plaintiff Mark Beers was injured in March of 1994 while
working on a friend's 1984 GM pickup truck. The truck
had a flexible engine cooling fan ("flex fan") installed to
cool the engine. It is undisputed that this flex fan did not
belong on the truck, and was installed by a third party. 3
At some point, while the engine was running, one of the
flex fan blades broke off, penetrated the plastic
protective shroud, and struck plaintiff, injuring him.
[*3] Plaintiff retained legal counsel, and the flex fan
assembly was obtained from the owner of the truck.
Plaintiff's expert, Robert Wehe, then examined the flex
fan assembly. See Wehe Dep. at 11. As part of the
inspection, he disassembled the flex fan assembly,
which irreparably altered it from its condition at the time
of the accident. See GM's Supplemental Br. Ex. 1 at P
20, docket no. 62. Moreover, plaintiff's counsel never
notified GM that the flex fan was to be taken apart, gave
it the opportunity to be present, or allowed it to inspect
the flex fan first. See id. at PP 21-22. No video or photos
were taken at the time of disassembly. See id. at P 23.
Although Wehe now claims the fan blade broke because
of a design defect, he also noted the arm which held
that blade was "severely bent." 4 [*4] Wehe Dep. at 11.
Wehe recognized that this damage could have caused
2 Although GM moves for summary judgment on all of plaintiff's
claims, including failure to warn, see Def. Mem. of Law at 18
n. 7, docket no. 48 and Def. Response at 6-8, docket no. 67,
plaintiff fails to oppose summary judgment on the failure to
warn claim.
3 It appears the flex fan was from a 1974 GM truck. Trucks
designed with flex fans had metal protective shrouds over the
fans. The 1984 type of truck involved in plaintiff's injury was
not designed to have a flex fan, and had a plastic protective
shroud over the fan.
4 The possibility that the flex fan failed due to prior damage is a
major reason GM moves for dismissal. GM's primary defense
theory is that the fan was not defective, but failed because it
had been previously damaged. GM argues it is unable to
present such a defense because the flex fan, except for a few
pieces, is now missing, and thus its expert is not capable of
effectively rendering such an opinion.
1999 U.S. Dist. LEXIS 12285, *1
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the blade to come off. 5 See id. at 79-80. In response to
the present motion, Wehe now admits that he has
misplaced most of the flex fan assembly, and that it is
lost. See Wehe Aff. at P 3, docket no. 56.
Plaintiff brought suit against GM in the New York
Supreme Court, Cortland County, on March 12, 1997.
The action was removed to the United States District
Court for the Northern District of New York on the basis
of complete diversity.
The file and record in this case are replete with
examples of discovery abuse by plaintiff. GM has
sought to inspect the flex fan assembly for more than a
year. On May 12, 1998, after application by GM,
Magistrate Judge Hurd found that plaintiff failed to
comply with the pretrial scheduling order (in part to
supply the flex fan assembly for inspection), failed to
respond in opposition, and failed to participate in a
telephone conference with the court. He consequently
granted GM permission [*5] to move before this court
for dismissal under either Federal Rule of Civil
Procedure 37 or 56. See Order of May 12, 1998, docket
no. 14. GM then promptly moved for the same.
In opposition to the motion, plaintiff's counsel Diane
Bruns filed an affidavit with this court averring that "the
fan blades and housing are available for defendant's
inspection, should the court [deny GM's motion and]
grant plaintiffs' cross motion to reopen and extend the
discovery period." Bruns Aff. of June 17, 1998 at P8,
docket no. 22. Plaintiff's statement of material facts in
opposition to this first motion stated that "the fan belt
[sic] assembly, which was in the custody of plaintiffs'
expert witness and in storage during his absence, and
the housing are now available for defendant's
inspection." Pl.'s Statement of Material Facts of June
17, 1998 at P6, docket no. 24. Finally, plaintiff's
memorandum in opposition argued that the action
should not be dismissed for discovery abuse because
"plaintiffs . . . have provided . . . access to the fan blade
assembly now that it has become possible to do so." 6
5 At a later portion of his deposition, Wehe maintained that he
had ruled out the flex fan's failure due to the bent arm. See
Wehe Dep. at 81-82. He was unable to explain, however, what
basis he had for ruling out the same. See id. GM argues that
because its expert has not examined the flex fan assembly,
including the bent arm, he is unable to effectively refute Wehe.
6 The reason plaintiff then claimed inability to comply with the
discovery orders was an extended trip by Wehe. See Bruns
Aff. of June 17, 1998 at P3. Wehe apparently had the flex fan
Pl.'s Mem. of Law of June 17, 1998 at 5, docket no. 25.
On August 18, 1998, this court denied [*6] GM's motion
and granted plaintiff's cross-motion to reopen and
extend the discovery period because counsel
represented that plaintiff was now willing to comply with
discovery orders and turn over the flex fan assembly.
Following the court's denial of GM's first motion, plaintiff
continuously failed to turn over the flex fan assembly,
despite counsel's representations that she would do so.
Consequently, on September 14, 1998, GM moved by
order to show cause to compel discovery. Judge Hurd
granted the order to show cause. See Order to Show
Cause [*7] of September 17, 1998, docket no. 35. GM
then withdrew the motion to compel when it appeared
plaintiff would finally turn over the flex fan assembly.
See Coon Letter to Judge Hurd of September 23, 1998,
docket no. 37. Plaintiff's cooperation, however, proved
short-lived. GM again moved for orders to show cause
and compel before Judge Hurd on October 7, 1998.
Judge Hurd granted the order to show cause on the
same date. See Order to Show Cause of October 7,
1998, docket no. 39. In opposition to the motion to
compel, plaintiff's counsel admitted that "defendant's
counsel is correct in stating that the complete fan
assembly has not yet been provided to defendant's
expert." Rather, she stated that Wehe "has moved twice
and placed many of his records and files in storage."
Thus, although some fan blades had been sent to GM,
Wehe had yet to locate the remainder of the fan
assembly. See Bruns Aff. of October 7, 1998 at P3-4,
docket no. 40.
On October 26, 1998, Judge Hurd granted the motion to
compel, and specifically ordered plaintiff to turn over the
flex fan assembly for inspection. ("Plaintiffs shall
produce the complete engine cooling fan to the
attorneys for the defendant [*8] on or before November
6, 1998. Failure to produce shall entitle defendant to
make a dispositive motion or preclusion motion to the
District Judge."). Order of October 26, 1998, docket no.
42. GM then moved for leave to file a summary
judgment motion on the merits of the case on November
3, 1998. On the same day, this court denied the motion
without prejudice to renew. Moreover, it stated that "the
parties are hereby ORDERED to comply in all respects
with the aforementioned order of Magistrate Judge
assembly in storage during his trip. As GM then correctly
pointed out, however, "there is no indication . . . that any
attempt was made [by plaintiff's counsel] to contact Dr. Wehe
during the period of his alleged 'unavailability[.]'" GM Reply of
June 30, 1998 at 2, docket no. 27.
1999 U.S. Dist. LEXIS 12285, *4
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Page 5 of 10
Hurd." Order of November 3, 1998, docket no. 44.
Plaintiff, as of present, has yet to turn over the flex fan
assembly. Pursuant to this court's Order of November 3,
1998, and Judge Hurd's Order of October 26, 1998, GM
filed the present motion to dismiss, or alternatively
moves for summary judgment. In opposition to this
present motion, plaintiff finally admits that the remainder
of the flex fan assembly has been lost, and can not be
found. See Bruns Aff. of February 1, 1999 at P 4, docket
no. 55.
After motion papers were filed, the United States Court
of Appeals for the Second Circuit decided the case of
West v. Goodyear Tire and Rubber Co., 167 F.3d 776
(2d Cir. 1999), [*9] which pertained to spoliation of
evidence and the propriety of dismissal as a sanction
pursuant to Federal Rule of Civil Procedure 37. The
court then directed the parties to file supplemental briefs
discussing this new case and Rule 37, as each related
to dismissal for spoliation of evidence.
Oral argument was held in Syracuse, New York on
March 24, 1999. There, the court questioned plaintiff's
counsel to determine what fault, if any, plaintiff bore for
the loss of the flex fan assembly. While the court
reserved decision on the motions for dismissal or
summary judgment, it did make a finding of fact that
counsel and Wehe had been, at minimum, negligent in
failing to preserve the crucial evidence.
Aside from arguments as to spoliation of evidence,
plaintiff also raised a new theory of liability. 7 Defendant
argued that plaintiff should not be permitted to assert a
new claim so late in case and only in response to
summary judgment.
[*10] The court noted that discovery and motions were
closed, and that it would not allow plaintiff to amend the
complaint. The court did, however, instruct plaintiff to file
a statement setting forth his new claim, with any
references in the record supporting its existence, within
seven days. Thereafter, defendant was ordered to file its
opposition within ten days. Finally, the court ordered
7
"Although the 1984 Chevrolet pick-up was designed with a
[safer] clutch fan as original equipment, it was also designed in
such a way that the clutch fan could be readily and easily
replaced with the more dangerous flex fan, resulting in the
hazardous combination of a flex fan with an insufficiently
protective plastic shroud, and no warnings concerning the
hazards."
Pl.'s Statement of Design Defect at 2, docket no. 66.
plaintiff to file a reply within an additional ten days. 8
For the reasons that follow, GM's motion to dismiss
under Rule 37 is granted. Alternatively, the court grants
summary judgment for defendant.
DISCUSSION
I. Dismissal
GM argues that this matter should be dismissed as a
sanction for spoliation of evidence. HN1 Spoliation of
evidence, as recently defined by the Second Circuit,
consists of "the destruction or significant alteration of
evidence, [*11] or the failure to preserve property for
another's use as evidence in pending or reasonably
foreseeable litigation." West, 167 F.3d at 779 (citation
omitted). A federal court may impose sanctions upon a
party who engages in spoliation in derogation of court
order. See Fed. R. Civ. P. 37(b)(2); West, 167 F.3d at
779; John B. Hull, Inc. v. Waterbury Petroleum Prods.,
Inc., 845 F.2d 1172, 1176 (2d Cir. 1988). Even in the
absence of a discovery order, the court "may impose
sanctions for spoliation, exercising its inherent power to
control litigation." West, 167 F.3d at 779; accord
Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S.
Ct. 2123, 115 L. Ed. 2d 27 (1991); Sassower v. Field,
973 F.2d 75, 80-81 (2d Cir. 1992), cert. denied, 507
U.S. 1043, 113 S. Ct. 1879, 123 L. Ed. 2d 497 (1993).
HN2 Sanctions for spoliation, including dismissal, are
reviewed by the Circuit for abuse of discretion. See
West, 167 F.3d at 779 (citing Complaint of
Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir.
1997), cert. denied, 523 U.S. 1054, 118 S. Ct. 1380,
140 L. Ed. 2d 526 (1998)); [*12] Sieck v. Russo, 869
F.2d 131, 134 (2d Cir. 1989). The Circuit "will reject the
district court's factual findings in support of its imposition
of sanctions only if they are clearly erroneous." West,
167 F.3d at 779 (citing Friends of Animals, Inc. v. United
States Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997)
(per curiam)).
HN3 The district court possesses "broad discretion in
crafting a proper sanction for spoliation" but such
sanction is to "serve the prophylactic, punitive, and
remedial rationales underlying the spoliation doctrine."
8 Plaintiff filed his statement of the new theory and defendant
responded in opposition. Plaintiff, however, then failed to file a
reply as directed by the court.
1999 U.S. Dist. LEXIS 12285, *8
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Page 6 of 10
Id. This sanction is fashioned to: "(1) deter parties from
engaging in spoliation; (2) place the risk of an erroneous
judgment on the party who wrongfully created the risk;
and (3) restore 'the prejudiced party to the same
position he would have been in absent the wrongful
destruction of evidence by the opposing party.'" Id.
(quoting Kronisch v. United States, 150 F.3d 112, 126
(2d Cir. 1998)).
"HN4 'Outright dismissal of a lawsuit . . . is within the
court's discretion.'" Id. (quoting Chambers, 501 U.S. at
45); see also Fed. R. Civ. P. 37(b)(2)(C).
Dismissal [*13] is proper if there is "a showing of
willfulness, bad faith, or fault on the part of the
sanctioned party." West, 167 F.3d at 779 (citing Jones
v. NFTA, 836 F.2d 731, 734 (2d Cir. 1987)). Contrary to
plaintiff's arguments, dismissal is not limited only to
matters where the offending party has acted with bad
faith or willful intent, but is permitted where there is any
fault of the sanctioned party. See Bobal v. Rensselaer
Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990).
Plaintiff argues that "the court should consider less
drastic measures[.]… where there is no evidence of bad
faith causing the loss of the evidence, because two of
the most important rationales underlying Rule 37
sanctions are to punish an offending party, and to deter
others from acting similarly." Pl.'s Supplemental Brief at
5 (emphasis supplied). Yet, it has been noted that
negligent wrongs, like intentional wrongs, are proper
subjects for general deterrence. See Penthouse Int'l,
Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 387 (2d Cir.
1981) (citing G. Calabresi, The Cost of Accidents, 133-
173 (1970)). Not only have negligent [*14] wrongs been
found proper subjects for deterrence, but federal courts
have dismissed under Rule 37 as punishment for
negligence. See Thiele v. Oddy's Auto and Marine Inc.,
906 F. Supp. 158, 162-63 (W.D.N.Y. 1995) (evidence
negligently lost by plaintiff necessitated dismissal under
Fed. R. Civ. P. 37); Brancaccio v. Mitsubishi Motors Co.,
Inc., 1992 U.S. Dist. LEXIS 11022, 1992 WL 189937, at
*2 (S.D.N.Y. 1992) (plaintiff's negligent loss of the
defective product, after her expert had examined it, but
where defendant had not, necessitated dismissal under
Rule 37). 9 Hence, even under plaintiff's own
9 New York State courts also dismiss for negligent spoliation.
See Squitieri v. City of New York, 248 A.D.2d 201, 202-03,
669 N.Y.S.2d 589, 590 (1st Dep't 1998) ("Spoliation sanctions
such as [dismissal] are not limited to cases where the
evidence was destroyed willfully or in bad faith, since a party's
negligent loss of evidence can be just as fatal to the other
party's ability to present a defense[.]" [citation omitted]);
interpretation of the purposes of Rule 37, quoted above,
it is quite clear that courts regard the type of spoliation
undertaken by plaintiff as cause for dismissal.
[*15] Plaintiff should be held responsible for both his
expert's loss of the crucial evidence, and his counsel's
defiance of court orders. This is the type of fault
required for dismissal under Rule 37; although there has
been no allegation that Wehe intentionally discarded the
flex fan assembly, as an expert retained to examine the
actual defective part, he was grossly negligent in
permanently altering, and then even worse, losing the
very item this lawsuit is over. "Gross professional
incompetence no less than deliberate tactical
intransigence may be responsible for the interminable
delays and costs that plague modern complex lawsuits."
Penthouse, 663 F.2d at 387.
Aside from Wehe's loss of the crucial evidence, counsel
bears fault for disobeying several orders of both
Magistrate Judge Hurd and this court in failing to
provide the flex fan assembly, and wasting the scant
judicial resources of the court in assuring plaintiff's
compliance with mandatory discovery. Until this present
motion, counsel never notified the court of her inability
to comply with the court's orders, instead engaging in a
pattern of delay and avoidance, perhaps waiting for
Wehe to return from his [*16] trip, and then hoping
Wehe would rediscover the missing evidence. HN5 The
district court possesses the discretion to dismiss for
disobedience of discovery orders. See Sieck, 869 F.2d
at 134 (we . . . prefer to . . . provide the teeth to enforce
discovery orders by leaving it to the district court to
determine which sanction from among the available
range is appropriate.").
Kirkland v. New York City Housing Auth., 236 A.D.2d 170,
174-75, 666 N.Y.S.2d 609 (1st Dep't 1997) (noting that
numerous federal and state courts "have found dismissal
warranted when discovery orders were not violated, and even
when the evidence was destroyed prior to the action being
filed . . . notwithstanding that the destruction was not malicious
. . . or in bad faith[.]" [citations omitted]); Mudge, Rose,
Guthrie, Alexander & Ferdon v. Penguin Air Conditioning
Corp., 221 A.D.2d 243, 243, 633 N.Y.S.2d 493 (1st Dep't
1995) ("Dismissal of the amended complaint is also warranted
because of plaintiff's negligent loss of a key piece of evidence
which defendants never had an opportunity to examine[.]"
[citation omitted]) (emphasis supplied). While this federal court
is bound to vindicate the Federal Rules of Civil Procedure, it
surely would be an anomaly if plaintiff was permitted to
negligently spoliate evidence and have his case survive in a
federal diversity action, but have his claim dismissed if the
action was in state court.
1999 U.S. Dist. LEXIS 12285, *12
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Page 7 of 10
Counsel not only bears fault for disobeying court orders,
but responsibility for carefully supervising the expert
retained. The fact that plaintiff or counsel themselves
did not personally lose the evidence is irrelevant. With
full knowledge of the pretrial discovery order, and
deadlines to turn over evidence, including the flex fan
assembly, counsel continued to retain Wehe despite his
trip, and let him keep the very items required to be
turned over, which were inaccessible while he was on
his trip (and ultimately lost). Even after Wehe returned,
despite numerous representations to the court that the
complete flex fan assembly would be turned over to
defendant, it never was.
Finally, plaintiff sometimes must suffer for the faults of
his lawyers and experts, especially when their acts are
extremely [*17] prejudicial to the opposing party, who
otherwise has no effective remedy. See Link v. Wabash
R.R. Co., 370 U.S. 626, 633-34, 82 S. Ct. 1386, 8 L. Ed.
2d 734 (1962) (client freely selected attorney and is
bound by acts of lawyer-agent); see also James Wm.
Moore, Moore's Federal Practice § 37.50[2][b], at 37-83,
and 37-83 n. 42.2 ("the Supreme Court has rejected the
notion that dismissal of a plaintiff's complaint because of
counsel's unexcused conduct imposes unjust penalty on
the client.").
HN6 Dismissal is a drastic remedy and should be
imposed only after consideration of alternative, less
drastic sanctions. See West, 167 F.3d at 779. 10 The
Second Circuit has also directed, however, that in
fashioning a sanction, the district court must take into
account the ability of the sanction to "restore the
prejudiced party to the same position he would have
been in absent the wrongful destruction of evidence by
the opposing party." Id. As GM's defense revolves
around pre-accident damage to the very item missing, it
will be unable to effectively show that the fan blade
broke for reasons other than a defect. A lesser sanction
is thus inappropriate [*18] as it does not cure the
prejudice to GM. 11
10 Another circuit has noted that the district court should not be
required "to incant a litany of the available lesser sanctions[.]"
Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir.
1997).
11 Alternatively, if lesser sanctions were imposed, such as
evidence preclusion, there is a strong possibility of summary
judgment in GM's favor due to plaintiff's inability to make out a
prima facie case without evidence of the flex fan or pertinent
portions of his expert's testimony.
A. Distinction Between West and the Present Case
Plaintiff argues that this case is similar to West, and
consequently should not be dismissed. In West, the
district court dismissed pursuant to Rule 37 after plaintiff
spoliated certain evidence which prejudiced defendants.
See West v. Goodyear Tire and Rubber Co., 1998 U.S.
Dist. LEXIS 1529, 1998 WL 60942 (S.D.N.Y. 1998). The
Second Circuit reversed, 167 F.3d 776, holding that
other, less severe [*19] sanctions than dismissal should
have been utilized. West is clearly distinguishable.
The West plaintiff was injured when a tire he was
mounting exploded. Plaintiff had already mounted an
identical tire (the "exemplar wheel") which had not
exploded. Defendants' theory of defense was that
plaintiff grossly overinflated both tires, and the second
tire exploded. They planned to show the overinflation by
introducing evidence of the overinflated but unexploded
exemplar wheel. The exemplar wheel, however, was
sent by plaintiff to a lawyer specializing in tire explosion
cases. Fearing the tire would explode, that lawyer
ordered it deflated. As the Circuit noted, "defendants
believe that by deflating the exemplar wheel, West's
lawyers deflated their case." West, 167 F.3d at 780.
Furthermore, defendants planned to introduce the tire
mounting machine and air compressor as circumstantial
evidence that the exploded tire was overinflated. As the
Circuit itself observed, "the compressor was set at an
astronomical pressure of 160 pounds per square inch."
Id. at 778. Though defendants requested inspection of
the compressor and tire mounting machine, and
an [*20] inspection was scheduled, plaintiff sold the
devices before inspection occurred. See id. The devices
were later located, but by then had been left outside and
their conditions had deteriorated. See id. While
defendants' experts were able to examine the devices,
and opined that the devices could have malfunctioned
and caused overinflation, "because West sold these
items and the purchaser left them outside over the
winter, defendant's experts had no way to determine the
condition of the machines when they were in West's
shop at the time of the accident." Id. at 780.
Based upon the spoliation of the exemplar wheel,
compressor and tire mounting machine, the district court
held defendants had been severely prejudiced, and
dismissed the case pursuant to Rule 37. Reversing, the
Circuit held that other less drastic sanctions were
available to the district court which would have
eliminated the prejudice to defendants without disposing
of the case, such as evidence preclusion and inference
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Page 8 of 10
charges. See West, 167 F.3d at 780.
The present matter is entirely different. Most
importantly, the missing or spoliated item, unlike in
West, is not circumstantial [*21] evidence, but the
actual part that failed. There can be no adequate lesser
sanctions, as they would be tantamount to summary
judgment against plaintiff. Cf. Pesce v. General Motors
Corp., 939 F. Supp. 160, 165 (N.D.N.Y. 1996) (Hurd,
M.J.) ("the drastic sanction of preclusion [as to the
missing defective item] would be tantamount to
dismissal of the action."). Although in a defective design
case lesser sanctions may not always prevent the claim,
both federal and New York State courts have dismissed
defective design cases as a result of plaintiff's
spoliation, even where the spoliation occurred
negligently. 12
[*22] Even if the court did impose lesser sanctions,
they would not likely remedy the wrong GM has
suffered. Not only does GM argue that the flex fan was
damaged, precipitating its failure, but GM sought
inspection of the flex fan assembly to develop other
defenses. As GM never examined the complete flex fan
assembly, it does not even know what sanctions it
wants the court to impose because it will never know of
other defenses an inspection may have revealed. See
GM Supplemental Brief at 6-7, 10-11.
In West, the Circuit Court also observed that the
exemplar wheel was allegedly deflated as a purported
public safety measure, which was a mitigating factor in
the spoliation. There are no mitigating factors in the
present matter. Plaintiff's expert lost the crucial evidence
in this case. There is no excuse for such conduct, nor
has plaintiff attempted to argue such. Furthermore,
plaintiff's counsel has utterly failed to explain any efforts
on her part to mitigate her failure to comply with the
court's orders.
12 A defective design claim arguably does not require evidence
of the product which actually failed, since all of the same type
of product are uniformly defective. However, courts have
dismissed for spoliation, even where plaintiff alleged a design
defect. See Brancaccio, 1992 WL 189937, at *2 (case
dismissed for spoliation under Rule 37 where claim of
improper seat belt design was present, when seat belt --and
vehicle-- were disposed of through plaintiff's negligence);
Squitieri v. City of New York, 248 A.D.2d 201, 202, 669
N.Y.S.2d 589, 590 (1st Dep't 1998) (dismissal of third party
complaint alleging defective design for loss of the defective
product).
Another notable distinction between West and the
present case is the type of remedy defendants sought
as a sanction for spoliation. In West, only one of two
defendants [*23] moved to dismiss. The other
defendant moved only for lesser sanctions. This made
clear that alternatives were available other than
dismissal. 13 The circumstances here are different: GM,
the sole defendant, moves for dismissal and argues that
no other sanction will remove the prejudice plaintiff's
spoliation has caused. The court agrees.
Finally, as a last distinction, the district court in West
relied only on plaintiff's spoliation for dismissal. In this
matter, [*24] the court relies not only upon the
spoliation, but counsel's noncompliance with orders of
both a Magistrate Judge and a District Judge. Not only
does this court have the discretion under Rule 37 to
order dismissal for a plaintiff's noncompliance, see Fed.
R. Civ. P. 37, but as the Supreme Court has recognized,
the district court has the inherent power to regulate and
control litigation before it. See Chambers, 501 U.S. at
43-45. If parties were allowed to disregard mandatory
discovery deadlines and orders of the court, orderly and
timely adjudication of cases would be subverted.
In summary, West can be distinguished, and the result
will not be followed here for several reasons: (1) the
evidence spoliated is not circumstantial; (2) due to the
nature of the spoliated evidence, effective lesser
sanctions may well be tantamount to summary
judgment; (3) lesser sanctions may not remedy GM's
prejudice because it does not know exactly what a
physical inspection of the flex fan would have revealed
as a potential defense; (4) no mitigating factors to the
spoliation are present; (5) defendant herein actually
moves for dismissal and argues only dismissal will
protect [*25] its interests adequately; (6) plaintiff's
counsel's disregard of discovery and other orders of the
court support dismissal as a sanction under Rule 37 and
under the court's inherent power to control litigation
before it.
13 As the Circuit stated, "it is noteworthy that Goodyear did not
move for dismissal as a sanction for spoliation; it only sought
to have evidence relating to the spoliated materials excluded
at trial. Only [the second defendant] moved to dismiss the
complaint on the ground of spoliation. Obviously, Goodyear
believed that lesser sanctions, like exclusion of spoliated
evidence, would protect its interests, although Goodyear
would now benefit from the district court's dismissal." West,
167 F.3d at 780 n. 1 (emphasis supplied).
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Page 9 of 10
Having carefully examined and considered the
alternatives, no other remedy than dismissal appears
appropriate. Only dismissal serves the three prongs the
West panel enumerated as to the purposes of Rule 37
and spoliation. 14 First, it will serve as a deterrent to
plaintiff's counsel, his expert and non-parties from
engaging in spoliation and disobedience of court orders.
Second, the risk of an erroneous judgment will be on the
party to lose the critical evidence. Third, it appears no
other sanction will restore GM to the position it would
have been in absent the spoliation.
[*26] Accordingly, GM's motion for dismissal is
granted. Moreover, as set forth below, the court
alternatively grants GM's summary judgment motion.
II. Summary Judgment
Even if the court did not impose lesser sanctions (which
it would if it were not dismissing the case) plaintiff's
claims fail as a matter of New York law. 15
Plaintiff's defective design claims are barred by the
subsequent modification doctrine of Robinson v. Reed-
Prentice Div. of Package Mach. Co., 49 N.Y.2d 471,
475, 426 N.Y.S.2d 717, 403 N.E.2d 440 (1980). As the
New York Court of Appeals recently reiterated, "HN7 a
manufacturer is not responsible for injuries [*27]
resulting from substantial alterations or modifications of
a product by a third party that render the product
defective or otherwise unsafe." Liriano v. Hobart Corp.,
92 N.Y.2d 232, 236, 677 N.Y.S.2d 764, 765, 700 N.E.2d
303 (1998) (citing Robinson).
This present matter is analogous to a recent Appellate
Division, Third Department case upholding the
subsequent modification doctrine under similar facts.
See Colonial Indem. Ins. Co. v. NYNEX, 260 A.D.2d
14 "(1) Deter parties from engaging in spoliation; (2) place the
risk of an erroneous judgment on the party who wrongfully
created the risk; and (3) restore the prejudiced party to the
same position he would have been in absent the wrongful
destruction of evidence by the opposing party." West, 167
F.3d at 779 (internal quotations and citation omitted).
15 In a diversity action, the court must apply the substantive
law of New York. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
58 S. Ct. 817, 82 L. Ed. 1188 (1938); Caiazzo v.
Volkswagenwerk A.G., 647 F.2d 241, 243 (2d Cir. 1981); Paul
Revere Life Ins. Co. v. Adelman, 1997 U.S. Dist. LEXIS
19804, 1997 WL 773706 (N.D.N.Y. 1997) (Munson, S.J.).
833, 688 N.Y.S.2d 744, 1999 WL 216867, *2 (3d Dep't
1999). There, the Appellate Division granted summary
judgment to defendant manufacturer because the
undisputed cause of the damages was a part added by
a third party subsequent to the product's manufacture.
See id. at *1-2.
In the case at bar, as in Colonial Indemnity, plaintiff
seeks to hold the manufacturer, GM, liable for the failure
of a part which was added to the truck by a third party
subsequent to the truck's manufacture and sale. Despite
GM's assertion that New York law mandates summary
judgment on these claims, plaintiff fails to oppose this
argument in his opposition papers. 16 The court [*28]
agrees that the subsequent modification doctrine of
Robinson requires the claims to be dismissed.
Moreover, plaintiff's failure to oppose GM's argument is
deemed by the court as consent to summary judgment
on these claims.
[*29] Plaintiff also alleges a failure to warn claim in his
complaint, and reiterated the same at oral argument.
Plaintiff otherwise fails to mention or support his
allegation of failure to warn. In its motion for summary
judgment, GM argues that "there is no record evidence
to establish that a warning would have prevented this
action, to whom a warning should have been given, the
content of the warning, and all the other elements
16 Plaintiff's sole opposition to summary judgment on his
defective design claims is the assertion of the "new" theory of
liability, mainly that the truck was defectively designed when it
left GM's hands, as it was designed to allow the less safe flex
fan to be installed. It is too late for plaintiff to assert this new
theory, especially when his purpose is plainly to avoid
summary judgment due to the subsequent modification
doctrine. To determine whether the claim was indeed new, or
had been present all along, as maintained by plaintiff, the
court directed plaintiff to file a statement describing this new
theory, supplemented with references to the record supporting
its previous existence. Contrary to his assertions, none of the
citations plaintiff points to disclosed or set forth this new
theory. As discovery and motions are closed, the court
declines to permit the new liability theory on either defective
design or failure to warn.
Notwithstanding the untimeliness of plaintiff's new theory, the
court notes and adopts GM's argument that plaintiff's novel
theory still has, "at its heart, the issue of whether the flex fan
was defective and at the root of that issue lies the question of
the cause of the failure; a question that GM cannot adequately
defend due to plaintiffs' negligent loss of the fan." Def. Reply
at 4 n. 2, docket no. 59. Accordingly, even if the court allowed
plaintiff's new theory, it does not alter the court's conclusion
that this case must be dismissed for spoliation.
1999 U.S. Dist. LEXIS 12285, *25
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Page 10 of 10
necessary to prove this type of claim." Def. Mem. of Law
at 18 n. 7, docket no. 48. Plaintiff never responded to or
refuted this argument in his opposition papers. After the
court ordered supplemental briefing at oral argument,
GM again argued the failure to warn claim was unviable.
"Plaintiff[] here can point to no evidence or expert
opinion in the record that the 1984 truck was defective
because it lacked appropriate warnings. In contrast, the
record shows that GM did provide information about the
proper cooling fan to use on this truck." Def. Response
at 8 n. 4, docket no. 67. Despite the court's order at oral
argument for plaintiff to reply to GM's Response, plaintiff
again not only failed to address GM's argument, but
failed to file the reply at all. Thus, [*30] plaintiff has
never opposed GM's argument for summary judgment
on this claim.
This court has dismissed failure to warn claims when
plaintiff fails to support the claim at a summary judgment
motion. See June v. Lift-A-Loft Equip., Inc., 1992 U.S.
Dist. LEXIS 10064, 1992 WL 168181, *2-3 (N.D.N.Y.
1992) (McCurn, C.J.). As with the present case, the
June plaintiff left the "record[] devoid of any factual basis
for concluding that the [product] carried inadequate
warnings" and the court therefore granted summary
judgment to defendant. Id. at *3. The same result is
required here.
HN8 Additionally, Local Rule 7.1(b)(3) states that
"failure to file or serve any papers as required by this
rule shall be deemed by the court as consent to the
granting or denial of the motion, as the case may be,
unless good cause is shown." N.D.N.Y. L.R. 7.1(b)(3).
Plaintiff fails to oppose summary judgment on the
warning claim although GM specifically argues it is
entitled to such. Not only does plaintiff fail to address
GM's argument in his opposition papers, but he failed to
file a reply addressing similar arguments after the court
directed him to file the same. The court considers
plaintiff's failures to oppose [*31] as consent to GM's
motion for summary judgment on the failure to warn
claim.
CONCLUSION
For the aforementioned reasons, GM's motion to
dismiss pursuant to Fed. R. Civ. P. 37 is GRANTED.
Dismissal is granted (a) due to plaintiff's spoliation of the
crucial evidence under Rule 37; (b) due to counsel's
noncompliance with orders of the court, pursuant to
Rule 37; and (c) under the inherent authority of the court
to control litigation before it. Alternatively, defendant's
motion for summary judgment is GRANTED in the
entirety.
IT IS SO ORDERED.
Dated: May 17, 1999
Syracuse, New York
Neal P. McCurn
Senior United States District Judge
JUDGMENT IN A CIVIL CASE - FILED MAY 18 1999
Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard
and a decision has been rendered.
IT IS ORDERED AND ADJUDGED: GM's motion to
dismiss is GRANTED. Defendant's motion for summary
judgment is GRANTED in the entirety.
May 18, 1999
DATE
End of Document
1999 U.S. Dist. LEXIS 12285, *29
Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 72 of 527

Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 2269839
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jean BERNIER, Plaintiff,
v.
Carl KOENIGSMANN, et al., Defendants.
9:17-CV-0254 (DNH/ATB)
|
Signed 05/13/2021
Attorneys and Law Firms
JEAN BERNIER, Plaintiff, pro se.
JAMES A. MEGGESTO, ESQ., for Defendant Jeavons
NICOLE HAIMSON, ESQ., for Defendants Koenigsmann,
Jones, Coryer, Donnelly, O'Connor-Ryerson, Gilfus, Hesse,
Ashley, Gardner, Dinello and Mueller
REPORT-RECOMMENDATION
Andrew T. Baxter, U.S. Magistrate Judge
*1 This matter was referred to me for Report and
Recommendation, pursuant to 28 U.S.C. § 636(b) and Local
Rules N.D.N.Y. 72.3(c). In the relevant portions of this
civil rights complaint, plaintiff alleges that the defendants
violated his constitutional rights while he was incarcerated at
Auburn Correctional Facility (“Auburn C.F.”) and Southport
Correctional Facility (“Southport C.F.”) between June 2013
and June 2015. (Second Amended Complaint (“SAC”) at
10-25) (Dkt. No. 64). 1
I. Relevant Procedural History
Plaintiff filed his original complaint in the United States
District Court for the Western District of New York on March
6, 2015. (Dkt. No. 1). He subsequently filed an amended
complaint on September 14, 2015. (Dkt. No. 20). On February
15, 2017, several of plaintiff's claims were severed and
transferred to the Northern District of New York. (Dkt. Nos.
50, 51). Plaintiff then moved to amend his complaint in the
Northern District, and plaintiff's SAC was accepted for filing
on June 30, 2017. (Dkt. Nos. 57, 63, 64).
On July 28, 2017, the defendants 2 filed a partial motion to
dismiss the SAC pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt.
No. 71). On March 15, 2018, District Court Judge David N.
Hurd adopted my report-recommendation ordering dismissal
of certain defendants and claims contained in the SAC. (Dkt.
Nos. 96, 104). Judge Hurd dismissed several other defendants
from this action on July 30, 2019, at the request of the plaintiff
and upon consent from the defendants. 3 (Dkt. Nos. 143, 144,
145).
The remaining claims and defendants are as follows:
(1) Eighth Amendment medical indifference claims against
defendants Ashley and O'Connor-Ryerson. Plaintiff
alleges that these defendants violated his constitutional
rights when they discontinued his triple combination
therapy treatment for the Hepatitis C virus (“HCV”) after
he was transferred to Auburn C.F. in June 2013.
(2) Eighth Amendment medical indifference claims
against defendants Koenigsmann, Mueller, Dinello,
Jones, Coryer, O'Connor-Ryerson, Ashley, Gardner,
and Jeavons. Plaintiff alleges that these defendants
violated his constitutional rights when they delayed
his evaluation for, and ultimately denied him, HCV
treatment in 2015.
(3) First Amendment retaliation claims against defendants
Ashley, O'Connor-Ryerson, and Jeavons. Plaintiff
alleges that these defendants intentionally delayed
plaintiff's evaluation for HCV treatment in 2015,
in retaliation for plaintiff filing a grievance against
defendants Ashley and O'Connor-Ryerson in 2013
concerning the discontinuation of his triple combination
therapy treatment.
*2 (4) First Amendment retaliation claims against
defendants Hesse, Gilfus, and Donnelly. Plaintiff alleges
that these defendants destroyed his legal documents and
tampered with his property, in retaliation for plaintiff
filing a grievance and lawsuit against Hesse concerning
interference with plaintiff's program placement.
Presently before the court are the defendants’ motions for
summary judgment pursuant to Fed. R. Civ. P. 56, collectively
seeking dismissal of the SAC in its entirety. 4 (Dkt. Nos. 210,
213). The Wilson Elser defendants responded to defendant
Jeavons's motion on November 23, 2020 (Dkt. No. 217), to
which defendant Jeavons filed a reply on December 1, 2020.
(Dkt. No. 218). Plaintiff filed an opposition to the pending
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motions for summary judgment on March 26, 2021. (Dkt.
No. 223). Defendant Jeavons replied on April 8, 2021. (Dkt.
No. 227). For the reasons stated below, the court recommends
granting the defendants’ motions for summary judgment and
dismissing the remaining claims in the SAC against all of the
remaining defendants.
II. Summary Judgment
Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263,
272–73 (2d Cir. 2006). “Only disputes over [“material”] facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must
be apparent that no rational finder of fact could find in favor
of the non-moving party for a court to grant a motion for
summary judgment. Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
The moving party has the burden to show the absence of
disputed material facts by informing the court of portions
of pleadings, depositions, and affidavits which support the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing that there is
a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at
273. In that context, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). In determining
whether there is a genuine issue of material fact, a court must
resolve all ambiguities, and draw all inferences, against the
movant. See United States v. Diebold, Inc., 369 U.S. 654, 655
(1962); Salahuddin, 467 F.3d at 272.
Local Rules of the Northern District of New York require
that a motion for summary judgment be accompanied by a
statement of material facts which sets forth, in numbered
paragraphs, “a short and concise statement of each material
fact about which the moving party contends there exists no
genuine issue.” Local Rule 56.1(a). 5 The same rule requires
the opposing party to file a response to the moving party's
statement of material facts, which admits or denies each of
the moving party's factual assertions in matching numbered
paragraphs, and supports any denials with a specific citation
to the record where the factual issues arise. Local Rule
56.1(b). The rule specifically provides that “[t]he Court may
deem admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does not
specifically controvert.” Id.
III. Factual Contentions
*3 In the 1990s, plaintiff was diagnosed with HCV, a slow-
progressive infectious disease affecting the liver. (Declaration
of Carl J. Koenigsmann (“Koenigsmann Decl.”) at ¶ 8
(Dkt. No. 210-6); Declaration of Nancy O'Connor-Ryerson
(“Ryerson Decl.”) at ¶ 12 (Dkt. No. 210-7) ). HCV causes
liver damage to occur over a prolonged period of time,
leading to liver failure and death at a “relatively low rate.”
(Koenigsmann Decl. at ¶¶ 9-10). The success rate of HCV
treatment varies and is dependent upon unique factors such as
the “body chemistry of an individual patient, the genoytype
of the virus, other conditions from which the patient may be
suffering, and individual behaviors.” (Ryerson Decl. at ¶ 20).
The side effects of HCV treatment can be significant, and
even life-threatening. (Koenigsmann Decl. at ¶ 15; Ryerson
Decl. at ¶ 23). Treatment must be individualized on a case-
by-case basis. (Koenigsmann Decl. at ¶ 17; Ryerson Decl. at
¶ 25).
From approximately May 2003 until June 2015, plaintiff was
confined in the custody of the New York State Department
of Corrections and Community Supervision (“DOCCS”). All
of the events relevant to plaintiff's surviving causes of action
took place between June 2013 and June 2015, during which
time plaintiff was housed intermittently between Auburn C.F.
and Southport C.F. During the time period at issue, DOCCS
maintained extensive treatment guidelines and professional
oversight with respect to treating inmates diagnosed with
HCV. (Koenigsmann Decl. at ¶¶ 12-19; Ryerson Decl. at ¶¶
19, 23, 25).
A. Triple Combination Therapy Treatment
Plaintiff was transferred to Southport C.F. in December 2012,
at which time he sought evaluation for HCV treatment. (SAC
at ¶ 40; Ryerson Decl. at ¶ 40). This was plaintiff's second
attempt to treat his HCV while in DOCCS custody – more
than a decade earlier plaintiff had undergone, but failed, dual
therapy HCV treatment. (SAC at ¶ 39; Ryerson Decl. at ¶ 29).
The treatment plaintiff pursued at Southport C.F. was “triple
combination therapy,” approved to reduce viral loads in HCV
patients. (SAC at ¶ 40; Ryerson Decl. at ¶¶ 30-31). Plaintiff
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was approved for triple combination therapy at Southport
C.F., and commenced the twelve week medical regiment in
March 2013. (SAC at ¶¶ 40-41; Ryerson Decl. at ¶¶ 41-44).
The parties do not dispute that plaintiff “failed” the
triple combination therapy treatment per DOCCS’ HCV
Guidelines, to the extent that plaintiff's viral loads were not
satisfactorily reduced at the end of twelve weeks. (SAC
at ¶ 41; Ryerson Decl. at ¶¶ 43, 45-47, 51-52). Plaintiff
alleges that despite the treatment failure, “the treatment was
continued [at Southport C.F.] pursuant to a recommendation
by the consulting liver specialist.” (SAC at ¶¶ 41-42; see also
Affirmation of Nicole Haimson (“Haimson Aff.”) (Dkt. No.
210-2) Ex. A (“Pl.’s Dep.”) at 30-32).
On or about June 14, 2013, plaintiff was transferred from
Southport C.F. to Auburn C.F. (Ryerson Decl. at ¶ 48).
Plaintiff alleges that he received medication in connection
with his triple combination therapy treatment at Southport
C.F. on the morning of his departure. (Pl.’s Dep. at 32). Upon
arrival to Auburn C.F., plaintiff was subjected to a health
screening and review of his current medications. (Ryerson
Decl. at ¶¶ 49-50, Ex. E at 99-101 (Dkt. No. 210-12) ). While
reviewing plaintiff's HCV treatment history, defendant Nurse
Practitioner (“NP”) O'Connor-Ryerson noted that plaintiff's
viral loads were greater than 1,000 international units per
milliliter (IU/mL) after twelve weeks of treatment with triple
combination therapy, were not reduced by 2-log 6 from his
baseline blood work, and actually increased between weeks
eight and twelve, all of which were indicative of treatment
failure under DOCCS's HCV treatment guidelines. (Ryerson
Decl. at ¶ 51).
*4 Plaintiff met with NP Ryerson on June 18, 2013.
(SAC at ¶ 44; Ryerson Decl. Ex. E at 103). He was
allegedly informed by NP Ryerson that, upon consulting
with defendant IFD Nurse Ashley, 7 they had decided to
discontinue his triple combination therapy due to the evidence
of treatment failure. (SAC at ¶ 44). Plaintiff's ambulatory
health record progress notes indicate that he was taken “off
meds.” (Ryerson Decl. Ex. E at 101, 103). On or about June
21, 2013, defendant DOCCS Chief Medical Officer (“CMO”)
Koenigsmann notified plaintiff that his HCV treatment had
been discontinued “due to failure of treatment.” (Id. Ex. E at
105).
NP Ryerson does not dispute that plaintiff's triple combination
therapy treatment was discontinued at Auburn C.F. Although
NP Ryerson has no recollection of doing so, she concedes
that upon review of plaintiff's medical records, it would have
been her custom and practice to consult with Nurse Ashley.
(Ryerson Decl. at ¶¶ 53-54). However, neither she nor Nurse
Ashley retained the authority to unilaterally discontinue an
inmate's HCV treatment. (Id.).
On or about June 27, 2013, plaintiff filed a grievance against
NP Ryerson and Nurse Ashley regarding the discontinuation
of his triple combination therapy treatment. (Declaration of
Rachel Seguin (“Seguin Decl.”) (Dkt. No. 210-3) Ex. A at 4;
Pl.’s Dep. at 40-41). Plaintiff alleges that the discontinuation
of treatment caused his condition to worsen, and his HCV
symptoms to return. (SAC at ¶ 45).
B. Harvoni Treatment
In approximately October 2014, the FDA approved the use
of the drug Harvoni for treatment of chronic HCV genotype
one infections. (Koenigsmann Decl. at ¶ 26). Harvoni became
available for use by DOCCS shortly after it received FDA
approval. (Id. at ¶ 28-31).
In or around January 2015, plaintiff's primary care was taken
over by defendant NP Christa Jeavons. (Ryerson Decl. Ex. F
at 33-34) (Dkt. No. 210-13). On January 20, 2015, plaintiff
wrote a letter to NP Jeavons requesting an appointment
to discuss Harvoni treatment with her. (Id.). NP Jeavons
responded on January 28 th , confirming an appointment was
scheduled per plaintiff's request. (Id.). Plaintiff was also
notified several times by defendant Nurse Administrator
Coryer that he was scheduled to see NP Jeavons. (Id. at 36,
42, 43, 44).
NP Jeavons met with plaintiff on or about February 10, 2015.
(Id. Ex. F at 54; SAC at ¶ 55; Declaration of Christa Jeavons
(“Jeavons Decl.”) at ¶ 30 (Dkt. No. 213-1). In addition,
plaintiff was seen for sick call at Auburn C.F. on several
occasions in January 2015 and the beginning of February
2015. (Ryerson Decl. Ex. F at 40-41, 53-55). The ambulatory
health record progress notes from this period of time indicate
that plaintiff appeared in no acute distress and was scheduled
for an IFD follow up “soon” relative to his HCV treatment.
(Id.). The records also reflect plaintiff's request to be placed
on a medical hold at Auburn C.F., and for Harvoni treatment
to be started “soon,” in light of his upcoming release from
DOCCS custody. (Id. Ex. F at 53).
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On or about February 13, 2015, plaintiff was transferred from
Auburn C.F. to Southport C.F. 8 There, plaintiff inquired as
to the “feasibility” of being placed on a medical hold at
Southport C.F., relative to his pending evaluation for HCV
treatment. (Ryerson Decl. Ex. F at 65). Plaintiff was informed
that he would not be placed on a medical hold, as he could
“continue to receive the medical care [he] need[ed] at any
facility[.]” (Id. Ex. F at 66, 73). In March 2015, while still at
Southport C.F., plaintiff had laboratory testing performed in
connection with his treatment evaluation. (Id. at ¶¶ 69-70; Ex.
F at 80-84).
*5 Plaintiff was transferred back to Auburn C.F. on or about
March 9, 2015. Throughout March, plaintiff was repeatedly
seen by medical staff who noted that he had an upcoming
appointment with an IFD consultant. (Id. Ex. F at 75-80).
Plaintiff also underwent a blood test on March 26, 2015, in
connection with his treatment evaluation. (Id. at ¶ 74, Ex. F
at 81, 127).
On April 6, 2015, plaintiff was seen by an IFD consultant,
who opined that plaintiff was a candidate for treatment. (Id.
at ¶ 76, Ex. F at 131-32). On April 16, 2015, NP Jeavons met
with plaintiff to discuss the specialist's recommendation, and
immediately thereafter submitted an HCV Treatment Consult
Request form to CMO Koenigsmann. (Id. at ¶ 66, Ex. F at 95,
101; Koenigsmann Decl. at ¶ 34, Ex. D at 2-4). The next day,
CMO Koenigsmann approved plaintiff as a suitable candidate
for treatment with Harvoni. (Koenigsmann Decl. at ¶¶ 36-37,
Ex. D at 1). At the same time, CMO Koenigsmann noted
that plaintiff had an early release date in June 2015 (less than
twelve weeks later), and therefore required a plan for the
continuity of his treatment upon release. (Id. at ¶ 40, Ex. D at
1; Ryerson Decl. Ex. F at 101).
NP Jeavons notified plaintiff that he had been approved
for Harvoni on April 20, 2015, and would begin treatment
that week. (Ryerson Decl. ¶ 83, Ex. F at 102, 105). At
the same time, DOCCS staff contacted the United States
Marshals Service regarding plaintiff's continuity of care upon
transfer into federal custody. (Koenigsmann Decl. Ex. D at
5-7; Ryerson Decl. Ex. F at 106-07). The federal marshals
responded that plaintiff would be traveling to different
facilities upon intake, thus it would not be feasible to maintain
his treatment regimen upon initial transfer into federal
custody. (Ryerson Decl. Ex. F at 107). After learning this
information, defendant DOCCS Regional Medical Director
David Dinello, M.D., determined that plaintiff should not
begin treatment prior to his transfer to DOCCS custody,
indicating that there was “no emergent need to rush
treatment[,] so it [could] safely wait.” (Id.). This opinion
was shared by defendant Regional Medical Director Susan
Mueller, M.D. (Koenigsmann Decl. Ex. D at 5). On April 22,
2015, Plaintiff was notified that his HCV treatment was no
longer commencing at Auburn C.F. (Ryerson Decl. Ex. F at
103).
Plaintiff was released into federal custody in June 2015. In
April 2017, plaintiff began a three-month course of HCV
treatment with another drug, Zepatier. Since completing this
course of treatment, plaintiff's HCV viral loads have remained
undetectable. (Pl.’s Dep. at 154-55).
C. Property Destruction/Retaliation
Plaintiff alleges that when he arrived to Auburn C.F. in June
2013, he requested a program assignment in the law library
by filing an application with the “law library supervisor,”
defendant Correctional Officer (“CO”) Hesse. (SAC at ¶
69). CO Hesse informed plaintiff that the application would
be forwarded to the program committee chairman (“PCC”),
however the PCC later informed plaintiff that he had not
received the application. (Id.). Plaintiff returned to the law
library and filed another application with CO Hesse. (Id.).
Plaintiff alleges that this “scenario would repeat itself three
times[,] with [CO] Hesse stating that the application was
forwarded and the PCC stat[ing] that he had not received an
application.” (Id. at ¶ 70). Plaintiff states that he ultimately
filed a grievance concerning the situation. (Id.). At his
deposition, plaintiff testified that CO Hesse used “scare
tactics” in an attempt to get plaintiff to withdraw the
grievance. (Pl.’s Dep. at 159). Ultimately, the PCC responded
that plaintiff's law library application had been forwarded, but
plaintiff had to pick another assignment. (SAC at ¶ 70).
*6 CO Hesse allegedly told plaintiff that he “should not
have filed the complaint and would never get a law library
assignment.” (Id.). Plaintiff also alleges that, after filing the
grievance, CO Hesse verbally harassed him in the law library.
(Id. at ¶ 71). After exhausting his grievance with DOCCS,
Plaintiff filed an Article 78 proceeding in state court regarding
the program placement issue. (Pl.’s Dep. at 160-61). Plaintiff
claims that after he filed the petition, CO Hesse told him “you
don't know when to stop,” continued to harass plaintiff with
increasing “tone and intensity,” and began calling plaintiff
derogatory names to other prisoners. (SAC at ¶ 72).
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Two years later, in January 2015, plaintiff was transferred
to the Auburn C.F. SHU. (Pl.’s Dep. at 165-66; Ryerson
Decl. Ex. A at 4 (Dkt. No. 210-8) ). Pursuant to DOCCS
policy, all inmate personal property entering the SHU must
be processed, which included a search for contraband, and
an inventory. (Declaration of Rick Gilfus (“Gilfus Decl.”) at
¶ 6). According to the plaintiff, three days after his transfer,
CO Hesse approached him in the SHU and asked if plaintiff
had received his property yet. 9 (Pl.’s Dep. at 164). Plaintiff
answered “No,” and CO Hesse responded that he would
“personally make sure that the plaintiff would get what he got
coming, in an ominous tone.” (SAC at ¶ 73).
Later that morning, plaintiff received his property and
discovered that the bags had been opened outside of his
presence, and that his legal work had been taken out of their
envelopes and thrown into “total disarray.” (SAC at ¶¶ 74-75).
Plaintiff also discovered that documents relative to his active
legal cases were missing. (Id. at ¶ 75). It is undisputed that
defendant CO Rick Gilfus, the property officer in the SHU
where plaintiff was transferred, performed the initial review
and search of plaintiff's property. (Pl.’s Dep. at 166; Gilfus
Decl. at ¶ 8). Plaintiff alleges that when he asked about the
condition of his property, CO Gilfus replied, “that's what
happens when you piss people off in Auburn.” (SAC at ¶ 76).
Plaintiff filed a grievance on or about January 1,
2015, specifically complaining about C.O. Gilfus's alleged
tampering with and destruction of his legal documents in
retaliation for plaintiff's “filing of a court action against
staff here at [Auburn C.F.].” (Declaration of Cheryl Parmiter
(“Parmiter Decl.”) (Dkt. No. 210-4) Ex. B at 5).
Less than a month later, plaintiff was transferred to Southport
C.F. Upon arrival, plaintiff discovered that his property had
not been transported from Auburn C.F. with him, as he states
it should have. (SAC at ¶¶ 78-79). Plaintiff alleges that his
property did not arrive for another week, and even upon
arrival some property was still missing. (Id. at ¶¶ 79-80).
Plaintiff maintains that CO Gilfus was responsible for the
packing and shipping of property belonging to a prisoner
transferred out of the Auburn C.F. SHU. (Id. at ¶ 80). Plaintiff
also alleges that defendant Sergeant (“Sgt.”) Donnelly failed
to train and supervise CO Gilfus with respect to the handling
of his property. (Pl.’s Dep. at 173-74).
The defendants dispute plaintiff's contentions surrounding his
retaliation claim. CO Gilfus concedes that, per his duties as a
SHU property officer, he removed plaintiff's property from its
bags and searched it for contraband upon transfer. He asserts
that his actions were in complete compliance with DOCCS
directives. (Gilfus Decl. at ¶¶ 2, 6,8-10 (Dkt. No. 210- 14);
Haimson Aff. Ex. B at 8). After searching plaintiff's property,
CO Gilfus “inventoried it and neatly placed it in several bins
for plaintiff's review.” (Gilfus Decl. at ¶ 10). Plaintiff was
then given the opportunity to review his property, and never
complained to CO Gilfus that any of his legal paperwork
was missing. (Id. at ¶ 12). CO Gilfus also maintains that CO
Hesse had no involvement in processing plaintiff's property,
nor did CO Gilfus have any communication with CO Hesse
about plaintiff or his property. (Id. at ¶¶ 13-14). At the time,
CO Gilfus was not aware of plaintiff's grievance and/or legal
history with CO Hesse. (Id. at ¶ 15).
DISCUSSION
IV. Medical Deliberate Indifference
A. Legal Standards
*7 In order to state a claim based on constitutionally
inadequate medical treatment, the plaintiff must allege “acts
or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976). There are two elements to the
deliberate indifference standard. Smith v. Carpenter, 316 F.3d
178, 183-84 (2d Cir. 2003). The first element is objective and
measures the severity of the deprivation, while the second
element is subjective and ensures that the defendant acted
with a sufficiently culpable state of mind. Id. at 184 (citing
inter alia Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998)).
1. Objective Element
There is a two part inquiry to determine whether an alleged
deprivation is “objectively serious.” Benjamin v. Pillai, 794
F. App'x 8, 11 (2d Cir. 2019) (citing Salahuddin v. Goord, 467
F.3d 263, 279-80 (2d Cir. 2006)). The first question is whether
the plaintiff was actually deprived of adequate medical care.
Id. Prison officials who act “reasonably” in response to the
inmates health risk will not be found liable under the Eighth
Amendment because the official's duty is only to provide
“reasonable care.” Salahuddin, 467 F.3d at 279-80 (citing
Farmer v. Brennan, 511 U.S. 825, 844-47 (1994)).
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The second part of the objective test asks whether the
purported inadequacy in the medical care is “sufficiently
serious.” Benjamin, 794 F. App'x at 11 (citing Salahuddin,
467 F.3d at 280). The court must examine how the care
was inadequate and what harm the inadequacy caused or
will likely cause the plaintiff. Salahuddin, 467 F.3d at 280
(citing Helling v. McKinney, 509 U.S. 25, 32-33 (1993)).
If the “unreasonable care” consists of a failure to provide
any treatment, then the court examines whether the inmate's
condition itself is “sufficiently serious.” Id. (citing Smith, 316
F.3d at 185-86). However, in cases where the inadequacy
is in the medical treatment that was actually afforded to
the inmate, the inquiry is narrower. Id. If the issue is an
unreasonable delay or interruption of ongoing treatment,
then the “seriousness” inquiry focuses on the challenged
delay itself, rather than on the underlying condition alone.
Benjamin, 794 F. App'x at 11. The court in Benjamin reiterated
that although courts speak of a “serious medical condition”
as the basis for a constitutional claim, the seriousness of
the condition is only one factor in determining whether the
deprivation of adequate medical care is sufficiently serious to
establish constitutional liability. Benjamin, 794 F. App'x at 11
(citing Smith, 316 F.3d at 185).
2. Subjective Element
The second element is subjective and asks whether the official
acted with “a sufficiently culpable state of mind.” Benjamin,
794 F. App'x at 11 (citing Hathaway v. Coughlin, 511 U.S.
825, 553 (2d Cir. 1996)). In order to meet the second element,
plaintiff must demonstrate more than a “negligent” failure
to provide adequate medical care. Salahuddin, 467 F.3d at
280 (citing Farmer, 511 U.S. at 835-37). Instead, plaintiff
must show that the defendant was “deliberately indifferent”
to that serious medical condition, that the charged official
possessed “ ‘a state of mind that is the equivalent of criminal
recklessness.’ ” Benjamin, 794 F. App'x at 11 (quoting
Hathaway, 99 F.3d at 553).
In order to rise to the level of deliberate indifference, the
defendant must have known of and disregarded an excessive
risk to the inmate's health or safety. Abreu v. Lipka, 778 F.
App'x 28, 32 (2d Cir. 2019) (quoting Smith, 316 F.3d at 184).
The defendant must both be aware of the facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he or she must draw that inference. Chance,
143 F.3d at 702 (quoting Farmer, 511 U.S. at 837). The
defendant must be subjectively aware that his or her conduct
creates the risk; however, the defendant may introduce proof
that he or she knew the underlying facts, but believed that
the risk to which the facts gave rise was “insubstantial or
non-existent.” Farmer, 511 U.S. at 844. The court stated in
Salahuddin that the defendant's belief that his conduct posed
no risk of serious harm “need not be sound so long as it is
sincere,” and “even if objectively unreasonable, a defendant's
mental state may be nonculpable.” Salahuddin, 467 F.3d at
281.
*8 Additionally, a plaintiff's disagreement with prescribed
treatment does not rise to the level of a constitutional claim.
Riddick v. Maurer, 730 F. App'x 34, 38 (2d Cir. 2018)
(quoting Chance, 143 F.3d at 703). Prison officials have
broad discretion in determining the nature and character of
medical treatment afforded to inmates. Sonds v. St. Barnabas
Hosp. Correctional Health Services, 151 F. Supp. 2d 303, 311
(S.D.N.Y. 2001) (citations omitted). An inmate does not have
the right to treatment of his choice. Dean v. Coughlin, 804
F.2d 207, 215 (2d Cir. 1986). Because plaintiff might have
preferred an alternative treatment or believes that he did not
get the medical attention he desired does not rise to the level
of a constitutional violation. Id.
Disagreements over medications, diagnostic techniques,
forms of treatment, the need for specialists, and the timing
of their intervention implicate medical judgments and not the
Eighth Amendment. Sonds, 151 F. Supp. 2d at 312 (citing
Estelle v. Gamble, 429 U.S. at 107). Even if those medical
judgments amount to negligence or malpractice, malpractice
does not become a constitutional violation simply because
the plaintiff is an inmate. Id.; see also Daniels v. Williams,
474 U.S. 327, 332 (1986) (noting that negligence is not
actionable under § 1983). Thus, any claims of malpractice, or
disagreement with treatment are not actionable under § 1983.
B. Application
1. Triple Combination Therapy
Plaintiff claims that NP Ryerson and Nurse Ashley violated
his constitutional rights by “summarily discontinuing” his
triple combination therapy treatment at Auburn C.F., despite
a purported recommendation that he continue treatment.
Defendants argue that plaintiff's claim fails for the following
reasons: (1) plaintiff had no serious medical need for triple
combination therapy treatment, (2) plaintiff's claim amounts
to no more than a disagreement over the proper course of
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treatment, (3) defendants lacked a sufficiently culpable state
of mind, and (4) defendants are entitled to qualified immunity.
For the following reasons, the court agrees that plaintiff's
cause of action with respect to the discontinuance of triple
combination therapy should be dismissed.
As to the first prong of deliberate indifference, defendants
have established that plaintiff lacked a serious medical need
for triple combination therapy, a treatment for which he
was diagnostically considered an unsuitable candidate. It is
undisputed that the continuation of plaintiff's treatment was
not medically appropriate under DOCCS's HCV guidelines.
These guidelines, based upon national medical standards
and recommendations, reflect the various circumstances
under which HCV treatment should be suspended and/or
considered treatment failure. For example, the guidelines
recommend that a provider consider discontinuing HCV
treatment anytime between 12 and 24 weeks in the event a
patient has failed to demonstrate at least a two log reduction
in viral loads from their baseline blood work. The guidelines
also identify the futility of using triple combination therapy
on a patient with a viral load equal to or greater than 1,000
IU/mL after four or twelve weeks of treatment. Finally, the
guidelines specify that for a patient with genotype one virus,
such as plaintiff, where the virus is still detectable after 12
weeks, without at least a two log drop in viral loads, treatment
should be stopped altogether. (Ryerson Decl. ¶¶ 37-39).
Plaintiff's laboratory results after twelve weeks of triple
combination therapy evidenced treatment failure under each
of the aforementioned guidelines. (Id. ¶¶ 43-47, Ex. E at
37, 43, 64, 92). Plaintiff concedes that the treatment did
not satisfactorily reduce his viral loads, and that his blood
work evidenced treatment failure under DOCCS guidelines.
(SAC at ¶ 41). Considering the ineffectiveness of plaintiff's
treatment, the slow rate of the disease's progression, and
the continued risk inherent in exposing plaintiff to HCV
treatment and its accompanying side effects, the court finds
that defendants have met their burden and established that
plaintiff did not have a serious medical need for continued
triple combination therapy, and that discontinuing plaintiff's
treatment was, at the very least, medically appropriate.
*9 Defendants have also established that they did not
entertain the requisite state of mind in order to attach
liability under the Eighth Amendment. Assuming that NP
Ryerson and Nurse Ashley are properly named defendants
in this cause of action, 10 the record reflects that neither
had reason to believe that the discontinuation of plaintiff's
triple combination therapy, as recommended per DOCCS
treatment guidelines, would subject him to any serious
harm. Admittedly, the courts in this district have identified
limited circumstances under which a medical provider may
be found to have acted with a sufficiently culpable state
of mind, despite following established treatment guidelines.
See, e.g., Johnson v. Wright, 412 F.3d 398, 404 (2d Cir.
2005) (a jury could reasonably find that the defendants acted
with a sufficiently culpable state of mind “by reflexively
following the Guideline's substance abuse policy in the face
of the unanimous, express, and repeated recommendations of
plaintiff's treating physicians ... to depart from the Guideline
and approve [HCV treatment]); Hatzfeld v. Eagen, No.
9:08–CV–283 (LES/DRH), 2010 WL 5579883, at * 12-13
(N.D.N.Y. Dec. 10, 2010) (finding question of fact as to
whether there was deliberate indifference by the defendants
in conditioning plaintiffs HCV treatment on compliance
with DOCS policy requiring inmates to first participate in
substance abuse treatment program). However, the facts in
this case differ dramatically, as the overwhelming objective
medical evidence of record indicates that discontinuing
triple combination therapy was the medically appropriate
treatment decision. Unlike the previously cited cases, there
is no evidence here that the defendants mechanically relied
on other aspects of the DOCCS guidelines that were less
clearly correlated with treatment success in making their
determination, i.e. plaintiff's participation in an ancillary
program. See Watson v. Wright, No. 9:08-CV-62 (NAM/
ATB), 2011 WL 4527789, at *10 (N.D.N.Y. Aug. 4, 2011),
report and recommendation adopted, 2011 WL 4528931
(N.D.N.Y. Sept. 28, 2011) (“To the extent other cases from
this Circuit have concluded that application of the DOCS
HCV Guidelines could constitute an Eighth Amendment
violation, they have addressed reflexive or mechanical
reliance on other aspects of the [guidelines] that are less
clearly correlated with treatment success.”).
Here, the record reflects that the medical staff's determination
to discontinue treatment was appropriately and objectively
rendered. NP Ryerson evaluated plaintiff's blood work and
medical records upon transfer, and personally met with
plaintiff. Her evaluation of the medical data revealed that
plaintiff's twelve weeks of treatment with triple combination
therapy at Southport C.F. had failed. Considering the evidence
submitted by the moving parties, the defendants have shown
that plaintiff's serious medical needs were not recklessly
ignored, and the decision to discontinue his treatment was
supported by legitimate reasons. See Jackson v. Sheehan, No.
16-CV-6710, 2021 WL 795313, at *8 (W.D.N.Y. Mar. 2,
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2021) (summary judgment appropriate where denial of HCV
triple drug therapy was “supported by legitimate reasons”)
(quoting Brown v. Cade, 698 F. App'x 33, 34 (2d Cir. 2017)).
Plaintiff has failed to raise a question of fact in order to
defeat summary judgment on this issue. Even accepting
plaintiff's argument that there were differing opinions
between plaintiff's prior medical provider at Southport C.F.
and Auburn C.F. as to whether his HCV treatment should
proceed, 11 “the law is clear that a difference of opinion ...
even among medical professionals themselves, as to the
appropriate course of medical treatment does not in and of
itself amount to deliberate indifference.” Williams v. M.C.C.
Institution, 97 Civ. 5352, 1999 WL 179604, at *7 (S.D.N.Y.
Mar. 31, 1999) (citing, inter alia, Ross v. Kelly, 784 F. Supp.
35, 45 (Feb. 5, 1992)); see also Gillespie v. New York State
Dept. of Correctional Services, 9:08–CV–1339 (TJM/ATB),
2010 WL 1006634, at *6, (N.D.N.Y. Feb. 22, 2010) (the
fact that other physicians may have previously followed a
different course of treatment does not render the actions
of the prison doctor “deliberate indifference”), report and
recommendation adopted, 2010 WL 1006643 (N.D.N.Y. Mar
19, 2010).
Plaintiff's allegations do not create a material issue of
fact supporting his claim that NP Ryerson and/or Nurse
Ashley provided unreasonable care or acted with deliberate
indifference to his medical needs. Accordingly, this court
recommends that defendants’ summary judgment motion be
granted as to this cause of action.
2. Harvoni Treatment
*10 Plaintiff alleges that defendants Koenigsmann, Mueller,
Dinello, Jones, Jeavons, Coryer, Ryerson, Ashley, and
Gardner 12 violated his constitutional rights by delaying the
evaluation for, and ultimately denying treatment with, the
HCV drug Harvoni. The defendants argue that this cause of
action should be dismissed on summary judgment because (1)
plaintiff has failed to establish the personal involvement of
several defendants, (2) plaintiff had no serious medical need
for treatment with Harvoni, (3) plaintiff's claim amounts to no
more than a disagreement over the proper course of treatment,
(4) plaintiff has not demonstrated the defendants’ culpable
state of mind, and (5) defendants are entitled to qualified
immunity. For the following reasons, the court agrees that
plaintiff's deliberate indifference claim should be dismissed.
Plaintiff's cause of action relative to Harvoni treatment
is more properly addressed as two individual claims of
deliberate indifference. To the extent plaintiff challenges an
alleged delay in his evaluation for treatment, where an inmate
alleges a delay in treatment—rather than an absolute denial
of treatment—“it is appropriate to focus on the challenged
delay ... in treatment rather than the prisoner's underlying
medical condition alone in analyzing whether the alleged
deprivation is, in ‘objective terms, sufficiently serious’ to
support an Eighth Amendment claim.” Ray v. Zamilus, No.
13 Civ. 2201, 2017 WL 4329722, at *9 (S.D.N.Y. Sept. 27,
2017) (quoting Smith, 316 F.3d at 184). “[T]he case law
clearly establishes that the delay in treatment does not become
a constitutional violation merely because the underlying
medical condition, here, Hepatitis C, is indisputably a serious
one.” DiChiara v. Wright, No. 06-CV-6123, 2011 WL
1303867, at *7 (E.D.N.Y. Mar. 31, 2011). “A defendant's
delay in treating an ordinarily insignificant medical condition
can become a constitutional violation if the condition worsens
and creates a substantial risk of injury. Conversely, delay
in treating a life-threatening condition may not violate the
Eighth Amendment if the lapse does not cause any further
harm beyond that which would occur even with complete
medical attention.” Graham v. Wright, No. 01 Civ. 9613,
2004 WL 1794503, at *4 (S.D.N.Y. Aug. 9, 2004) (quotations
omitted) (citing Smith, 316 F.3d at 186). 13
Furthermore, the court is reminded that “a prisoner is not
entitled to the best [including the most efficient] healthcare
possible[,] or even to a choice among available treatment
modalities; instead, the Constitution entitles a prisoner only
to reasonable measures to meet a substantial risk of serious
harm.” Diachiara v. Pataki, No. 106-CV-6123, 2007 WL
749742, at *3 (E.D.N.Y. Mar. 7, 2007) (alterations not in
original) (citing Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.
1997)); see also Dean v. Coughlin, 804 F.2d 207, 215 (2d
Cir.1986) (“The Constitution does not command that inmates
be given medical attention that judges would wish to have for
themselves.”). A delay in medical treatment does not always
necessarily invoke the Eighth Amendment, and the Second
Circuit has reserved such a classification for when “officials
deliberately delayed care as a form of punishment; ignored
a ‘life-threatening and fast-degenerating’ condition for three
days; or delayed major surgery for over two years.” Sims
v. City of New York, 788 F. App'x 62, 64 (2d Cir. 2019)
(quoting inter alia Demata v. N.Y. State Corr. Dep't of Health
Servs., 198 F.3d 233 (2d Cir. 1999)); see also Hathaway
v. Coughlin, 841 F.2d 48, 50-51 (2d Cir. 1988) (officials
delayed arranging corrective hip surgery for over two years);
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Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984) (officials
deliberately delayed care as form of punishment for violations
of discipline code or other invalid reasons).
*11 Considering the aforementioned, this court does not
find that the less than four-month period between plaintiff
communicating to NP Jeavons his request for treatment
evaluation, and CMO Koenigsmann's approval of said
treatment, constituted a cognizable delay in care under the
Eighth Amendment. Notably, plaintiff consulted with an IFD
consultant in August 2014 and voluntarily postponed his
HCV treatment in light of Harvoni's 14 anticipated approval
for use by the FDA. (Ryerson Ex. F at 18). The IFD consultant
apparently approved of this plan, noting that plaintiff “feels
well, [with] some fatigue. Reports chronic itch.” (Id.). It
was recommended that plaintiff follow up in three months.
(Id.). Harvoni attained FDA approval in October 2014, and
became available as an HCV treatment in DOCCS facilities
by November 2014. (Koenigsmann Decl. at ¶¶ 26-31).
The record otherwise reflects that plaintiff was being
evaluated for treatment during the subsequent period in
question. After plaintiff wrote to NP Jeavons in January 15
2015 requesting an appointment “to discuss [his] treatment
with the new Hep C drug, Harvoni,” NP Jeavons responded
that she had scheduled an appointment, and subsequently met
with plaintiff at the beginning of February 2015 to discuss
his treatment plan. (Ryerson Decl. Ex. F at 33, 54). Although
plaintiff was transferred to a different facility soon thereafter,
he still presented for the requisite laboratory testing relative
to his treatment evaluation. (Ryerson Decl. ¶¶ 69-70, Ex. F
at 80-84). Plaintiff was transferred back to Auburn C.F. on
March 9, 2015, where he underwent further pre-treatment
testing. (Id. ¶ 74, Ex. F at 81, 127). It appears that there was
a waiting period for some of the test results, before plaintiff
could proceed with the evaluation process. (Id. Ex. F at 78, 80,
90, 94). In February, plaintiff met with the IFD consultant and
in April, upon review of the consultant's recommendation and
after meeting with plaintiff, NP Jeavon's submitted a consult
request form to CMO Koenigsmann for treatment approval.
CMO Koenigsmann approved plaintiff for treatment with
Harvoni the following day. (Ryerson Decl. Ex. F at 101). On
these facts, no reasonable trier of fact could conclude that
plaintiff's treatment evaluation was delayed to the extent of
an Eighth Amendment violation.
Plaintiff's contention that his transfer from Auburn C.F. to
Southport C.F., then back to Auburn C.F. a month later,
delayed his treatment to an actionable extent is unpersuasive.
In support of his position that he was improperly denied a
medical hold at both facilities, plaintiff has submitted what
he purports to be an excerpt from the DOCCS “medical hold
policy,” dated March 29, 2011, which states that an HCV
patient will remain on facility medical hold if the patient
“is undergoing an initial work up for treatment consideration
under the auspices of a specialist.” (Pl.’s Opposition Ex. K).
Plaintiff, however, was not undergoing an initial work up
for HCV treatment consideration until years later, by which
time it appears the relevant policy only required a facility
medical hold for “patients undergoing treatment for [HCV] ...
during the first five weeks of therapy.” (Ryerson Decl. Ex.
C at 13, Ex. D at 15). In any event, the record reflects that
denying plaintiff a medical hold did not prevent DOCCS from
proceeding with plaintiff's initial work up for HCV treatment
at both facilities, although, perhaps, not as quickly as plaintiff
preferred.
*12 Furthermore, plaintiff has not introduced any verifying
medical evidence that his HCV worsened as a result of
the alleged delay in treatment, or that the ‘delay’ presented
a risk that the eventual treatment would be less effective.
Plaintiff's medical records between December 2014 and
April 2015 do not suggest that he was suffering from any
significant exacerbation of HCV symptoms, and plaintiff
has not advanced any evidence contradicting Dr. Dinello,
Dr. Mueller, and CMO Koenigsmann's collective opinion
that plaintiff's condition was stable, and there was no
urgent need to rush treatment. 16 Moreover, the undisputed
evidence shows that once plaintiff received treatment in
federal custody, the virus was eradicated and remains so.
Accordingly, plaintiff has not raised a genuine issue regarding
the objective prong of this claim, as there is no evidence that
the purported delay in treatment approval was “substantially
serious.” See Motta v. Wright, No. 9:06-CV-1047(NAM/
GJD), 2009 WL 1437589, at *16 (N.D.N.Y. May 20, 2009)
(finding alleged three-and-a-half year delay in HCV treatment
did not satisfy objective factor of Eighth Amendment
analysis where defendants presented evidence that delay was
not “substantially serious,” including evidence of the slow
progression of HCV and the minimal effect of the delay on
plaintiff's condition).
Even assuming that the alleged delay in evaluating plaintiff
for HCV treatment caused him objective harm, plaintiff has
not come forward with evidence satisfying the mental prong
of his Eighth Amendment medical indifference claim, i.e.
evidence raising a material issue of fact as to whether any of
the named defendants acted with deliberate indifference to his
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medical needs. Although plaintiff was aggressively pursuing
treatment, and frequently communicated his requests to
various facility staff between December 2014 and April 2015,
the record does not indicate that the defendants ignored,
or left untreated, any complaints of acute pain or symptom
exacerbation relative to plaintiff's HCV during this time. Nor
does the record reflect that the defendants were turning a
blind eye to plaintiff's HCV condition. As previously noted,
plaintiff was being followed for an initial work-up relative
to Harvoni treatment at both Auburn C.F. and Southport
C.F., and seen in sick call on a regular basis. At its core,
plaintiff's claim is that his evaluation for Harvoni treatment
and follow-up consultation with the IFD consultant did not
occur fast enough. Nevertheless, on the facts herein his
dissatisfaction does not amount to deliberate indifference.
See Coke v. Medical, Dep't of Corr. & Cmty. Supervision,
No. 17 Civ. 0866, 2018 WL 2041388, at *5 (S.D.N.Y. Apr.
30, 2018) (no deliberate indifference for alleged 13-month
delay of referral to pain management where plaintiff was
being treated and evaluated during the period in question,
and ultimately was seen by a pain specialist); Patterson v.
Quiros, No. 3:19-CV-147, 2021 WL 681144, at *10 (D. Conn.
Feb. 22, 2021) (“Disagreements over medications, diagnostic
techniques, forms of treatment, the need for specialists, or
the timing of their intervention are not generally adequate
grounds for an Eighth Amendment claim[.]”) (emphasis
added) (citations omitted). Because plaintiff has failed to
raise a material question of fact suggesting that any of the
defendants deliberately delayed medical care to punish him,
or ignored any complaints of worsening symptoms, his claim
that defendants delayed approving him for Harvoni treatment
is insufficient to satisfy the deliberate indifference standard.
See Pabon v. Wright, No. 99 Civ. 2196, 2004 WL 628784,
at *8 (S.D.N.Y. Mar. 29, 2004), aff'd, 459 F.3d 241 (2d Cir.
2006) (evidence as to minimal delays in defendant's treatment
of Hepatitis C suggests at most several acts of negligence,
insufficient to support an Eighth Amendment violation).
*13 The second component of plaintiff's Eighth Amendment
claim alleges that the defendants were deliberately indifferent
to his medical needs when they declined to treat him
with Harvoni at Auburn C.F., despite CMO Koenigsmann's
initial approval. Although plaintiff has named a plethora of
defendants in this claim, it is clear that they were not all
personally involved in the decision to withhold treatment in
April 2015, and to this end may not be held liable for the
alleged constitutional violation. The Second Circuit recently
clarified the standard for personal involvement of individuals
in a § 1983 action. See Tangreti v. Bachmann, 983 F.3d 609
(2d Cir. 2020). Pursuant to the Supreme Court's decision in
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Second Circuit
in Tangreti made clear that in order to attach liability to an
individual, regardless of supervisory status, a plaintiff must
plead and prove “that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.” Iqbal, 556 U.S. at 676
.... “The factors necessary to establish a [§ 1983]
violation will vary with the constitutional provision at
issue” because the elements of different constitutional
violations vary. Id. The violation must be established
against the supervisory official directly.
Id. (quoting Iqbal, 556 U.S. at 676). Quoting a Tenth Circuit
case, the Tangreti court stated that “ ‘after Iqbal, [a p]laintiff
can no longer succeed on a § 1983 claim against [a d]efendant
by showing that as a supervisor he behaved knowingly or
with deliberate indifference that a constitutional violation
would occur at the hands of his subordinates, unless that
is the same state of mind required for the constitutional
deprivation he alleges.’ ” Id. (alterations in original) (quoting
Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010)
(internal quotation marks omitted) (emphasis added, other
citations omitted). The supervisor must have committed the
violation him or herself, not by the supervision of others who
committed the violation. Id. Likewise, the supervisor must
personally display the requisite state of mind, depending on
the violation at issue. Id.
Here, the alleged violation at issue was withholding HCV
treatment in April 2015. Because it is undisputed that
non-medical supervisory officials Deputy Superintendent
Jones and Acting Deputy Superintendent Gardner had no
medical background or training, no authority with respect
to plaintiff's medical care and treatment, and no reason to
distrust the competence of the medical staff charged with
treating plaintiff, plaintiff has not sufficiently established
their personal involvement in order to withstand summary
judgment. See Jackson v. Sheehan, No. 16-CV-6710, 2021
WL 795313, at *5 (W.D.N.Y. Mar. 2, 2021) (“[S]upervisory
officials are generally permitted to rely on the opinions of
medical staff concerning the correct course of treatment.”);
Battle v. Recktenwald, No. 14-CV-2738, 2016 WL 698145, at
*11 (S.D.N.Y. Feb. 19, 2016).
Plaintiff also attempts to attach liability to Auburn C.F.
medical defendants NP Ryerson, Nurse Administrator Coryer,
Nurse Ashley, and NP Jeavons. The record, however, is
devoid of any evidence that these defendants had the authority
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to revoke and/or reinstate plaintiff's Harvoni treatment once
approved by CMO Koenigsmann. In fact, to the extent NP
Jeavons submitted plaintiff's Harvoni treatment application
and acquired approval from her supervisor, it appears that she
performed her function with respect to plaintiff's complaint to
the limit of her position, and there is no evidence suggesting
that NP Jeavons or any other Auburn C.F. medical staff
had the authority to deviate from the subsequent decision
to withhold treatment made by DOCCS central office staff.
Jackson v. Sheehan, 2021 WL 795313, at *7 (no genuine
issue of material fact regarding personal involvement where
defendants, “having performed their functions with respect to
plaintiff's complaint to the limits of their authority, ‘had no
further responsibility to resolve it.’ ”) (quoting Tangreti, 983
F.3d at 620 n. 7).
*14 Based on the record before this court, the only
defendants who could plausibly be held liable for the decision
to withhold the approved treatment in April 2015 were
CMO Koenigsmann and DOCCS Regional Medical Directors
Mueller and Dinello. Notwithstanding these defendants’
personal involvement, however, plaintiff has failed to raise
a material question of fact as to whether the determination
not to treat plaintiff at Auburn C.F. constituted a violation
of his constitutional rights. As previously discussed, plaintiff
has failed to show that his condition was such that he faced
a substantial risk of serious harm if untreated, much less
that his infection was causing him to experience any serious
symptoms or ill effects. The overwhelming evidence has
established plaintiff's voluntary decision to delay treatment,
the absence of any exacerbated HCV symptoms during the
period in question, and a lack of proof refuting Dr. Dinello's
professional opinion, as concurred with by Dr. Mueller and
CMO Koenigsmann, that there was “no emergent need to
rush treatment,” and it could “safely wait” to commence until
plaintiff was in federal custody. (Ryerson Decl. Ex. F at 107;
Koenigsmann Decl. at ¶¶ 43-46, Ex. D at 5).
Plaintiff has also failed to raise a material question of fact
with respect to the mental prong of his deliberate indifference
claim, as the record would not permit a reasonable trier of
fact to find that these defendants knew of and disregarded an
excessive risk to plaintiff's health when they chose to defer
plaintiff's treatment. After CMO Koenigsmann approved
treatment, DOCCS staff commenced establishing a continuity
of care plan for when plaintiff was transferred into federal
custody. (Ryerson Decl. Ex. F at 102, 107-08). It eventually
became clear that the federal marshals would be unable to
maintain plaintiff's proposed treatment regimen immediately
upon transfer. However, there is no indication that the
defendants previously knew, or had reason to know, that
plaintiff would not be able to continue his treatment regimen
upon transfer into federal custody. (Koenigsmann Decl. at
¶¶ 42, 47). Moreover, the defendants had no authority over
the federal Bureau of Prisons’ (“BOP”) provision of care
to plaintiff, including treatment determinations. Thus, the
defendants were left with the option to either commence a
treatment regimen they knew would be discontinued short
of completion, and take on the risks involved therein; or to
defer treatment and transfer plaintiff's medical information to
the BOP, with the understanding that the federal government
also provided HCV treatment to eligible inmates in its
custody. (Koenigsmann Decl. at ¶¶ 44, 47). The evidence
reflects that the defendants chose the former based on their
professional medical opinion and in consideration of the
risks to plaintiff's health. In the absence of any evidence
plausibly suggesting an otherwise invalid reason for denying
plaintiff treatment under these circumstances, plaintiff has
failed to raise a material question of fact as to the mental
prong of his deliberate indifference claim. See Williams v.
Sykes, No. 9:17-CV-990(TJM/ATB), 2019 WL 2374116, at
*5 (N.D.N.Y. May 10, 2019), report and recommendation
adopted, 2019 WL 2369882 (N.D.N.Y. June 5, 2019)
(granting summary judgment where there was “simply no
evidence that [defendant] intentionally deprived plaintiff of
adequate medical care,” nor evidence support a finding
that the defendant “acted recklessly and ‘knew or should
have known’ that her acts or omissions ‘posed an excessive
risk to [plaintiff's] health or safety.’ ”) (citations omitted);
Padilla v. Bobb-Diallo, No. 9:17-CV-1150 (MAD/TWD),
2020 WL 3038135, at *9 (N.D.N.Y. Jan. 13, 2020), report and
recommendation adopted, 2020 WL 1025159 (N.D.N.Y. Mar.
3, 2020) (plaintiff did not meet the requirements of the mens
rea prong where there was no evidence of ‘conscious delay’
or failure to treat an inmate's serious medical condition ‘as
punishment for other invalid reasons’) (citations omitted).
V. Retaliation
A. Legal Standards
To state a First Amendment claim of retaliation, an inmate
must allege facts plausibly suggesting that (1) the speech
or conduct at issue was protected, (2) the defendant took
adverse action against the plaintiff, and (3) there was a
causal connection between the protected conduct and the
adverse action. Holland v. Goord, 758 F.3d 215, 225 (2d
Cir. 2014)(citations omitted). The court must keep in mind
that claims of retaliation are “easily fabricated” and “pose a
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substantial risk of unwarranted judicial intrusion into matters
of general prison administration.” Faulk v. Fisher, 545 F.
App'x 56, 58 (2d Cir. 2013) (quoting Bennett v. Goord, 343
F.3d 133, 137 (2d Cir. 2003)). In other words, we must
examine prisoners’ claims of retaliation with “skepticism and
particular care.” Rivera v. Goord, 119 F. Supp 2d 327, 339
(S.D.N.Y. 2000) (quoting Colon v. Coughlin, 58 F.3d 865,
872 (2d Cir. 1995), abrogated on other grounds, Tangreti v.
Bachmann, 983 F.3d 609 (2d Cir. 2020)). Accordingly, a First
Amendment retaliation claim must be supported by “specific
and detailed factual allegations,” and not stated in “wholly
conclusory terms.” Dolan v. Connolly, 794 F.3d 290, 295 (2d.
Cir. 2015) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13
(2d Cir.1983), overruled on other grounds, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 122 (2002)).
*15 In order to satisfy the final prong, “the causal connection
must be sufficient to support an inference that the protected
conduct played a substantial part in the adverse action.”
Cruz v. Grosso, No. 9:13-CV-30 (FJS/TWD), 2014 WL
2176256, at *6 (N.D.N.Y. May 23, 2014) (citing inter alia
Colon, 58 F.3d at 873). Several factors may be considered
in determining whether a causal connection exists between
the plaintiff's protected activity and a prison official's actions,
including temporal proximity between the protected activity
and the alleged retaliatory act, and statements by the
defendant concerning his or her motivation. 17 Cruz, 2014
WL 2176256, at *6 (citing Colon, 58 F.3d at 872-73).
However, temporal proximity alone is not enough to establish
a causal connection. The Second Circuit has held that where
“timing is the only basis for a claim of retaliation ... an
inference of retaliation does not arise.” Thomas v. Waugh,
No. 9:13-CV-0321 (MAD/TWD), 2015 WL 5750945, at
*15 (N.D.N.Y. Sept. 30, 2015) (quoting Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).
B. Application
1. Defendants Ashley, Ryerson and Jeavons
Plaintiff alleges that Nurse Ashley, NP Ryerson, and
NP Jeavons intentionally delayed plaintiff's evaluation for
Harvoni treatment in retaliation for plaintiff filing a grievance
against Ashley and Ryerson concerning the discontinuation of
his triple combination therapy in 2013. Nurse Ashley and NP
Ryerson argue that the retaliation claim should be dismissed
as against them, because plaintiff has failed to sufficiently
identify any adverse action attributable to them. They also
argue that plaintiff has failed to establish a causal connection
between any protected speech and the alleged actions of NP
Ryerson and Nurse Ashley. Along with similar arguments,
NP Jeavons also contends that plaintiff has failed to exhaust
his administrative remedies with respect to this claim – an
argument disputed by both plaintiff and the Wilson Elser
defendants.
Assuming, without deciding, that plaintiff has sufficiently
exhausted his administrative remedies concerning the
underlying grievance, the court considers whether plaintiff
has raised a question of material fact as to the elements of his
retaliation claim. To begin, it is well settled that the filing of a
grievance is constitutionally protected activity in the context
of retaliation, thus plaintiff has presented sufficient evidence
that his 2013 grievance regarding the discontinuation of triple
combination therapy constituted protected speech. See Flynn
v. Ward, No. 15-CV-1028 (TJM/CFH), 2018 WL 3195095,
at *8 (N.D.N.Y. June 7, 2018) (“It is well-settled that the
filing of a grievance constitutes protected speech under the
First Amendment” for purposes of a retaliation claim) (citing
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)).
Plaintiff's protected conduct notwithstanding, he has failed
to raise a triable issue of material fact as to the remaining
elements of his retaliation claim, and dismissal is warranted.
Plaintiff has failed to produce sufficient evidence identifying
any discernable, adverse actions taken against him by the
defendants. Although the courts in this district have found
that “denial of medical evaluation, treatment, and adequate
pain medication can suffice to establish adverse action under
a First Amendment retaliation analysis[,]” Abreu v. Farley,
No. 6:11-CV-06251, 2019 WL 1230778, at *22 (W.D.N.Y.
Mar. 15, 2019), in the context of a summary judgment motion
“a pro se party's bald assertion, unsupported by evidence, is
not sufficient[,]” and the plaintiff must present some evidence
suggesting that the defendants took adverse action against
him. Cole v. Artuz, No. 93 Civ. 5981, 1999 WL 983876, at
*3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923
F.2d 18, 21 (2d Cir. 1991)) (internal quotations and citations
omitted).
*16 Plaintiff alleges, generally, that NP Ryerson, Nurse
Ashley, and NP Jeavons intentionally delayed the process
by which he was evaluated for treatment at Auburn C.F.
Defendants, however, have produced evidence indicating
that between January and April 2015, plaintiff's request
for treatment was acknowledged by NP Jeavons and other
DOCCS medical staff, and plaintiff underwent various tests
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in connection with his treatment evaluation. NP Jeavons met
with him while managing his initial work-up for treatment,
and also scheduled plaintiff for a consultation with IFD.
(Ryerson Decl. Ex. F at 127, 131-32). With respect to Nurse
Ashley, the record indicates that she met with plaintiff on
January 20, 2015 and discussed the status of his HCV
treatment. (Id. Ex. F at 41). She referred plaintiff's requests
regarding treatment to his primary care provider, and soon
thereafter NP Jeavons communicated to plaintiff that he was
scheduled to see her for further discussion. Plaintiff also
met with Nurse Ashley on several occasions after he was
transferred back to Auburn C.F., for the purpose of executing
paperwork relevant to his pending HCV treatment. (Id. Ex.
F at 69, 79, 81, 99). Upon CMO Koenigsmann's approval,
Nurse Ashley commenced inquiry into a continuity of care
plan for plaintiff upon transfer to federal custody. (Id. Ex. F
at 106-08). NP Ryerson has affirmed that she had no personal
involvement in handling plaintiff's request for HCV treatment
with Harvoni or evaluating plaintiff for treatment with the
same. (Ryerson Decl. at ¶ 91). In light of the aforementioned
evidence suggesting the absence of any adverse actions on
the part of defendants, plaintiff's conclusory, unsupported
allegations of adverse action fail to create a question of fact for
purposes of summary judgment. See Hare v. Hayden, No. 09
Civ. 3135, 2011 WL 1453789, at *3 (S.D.N.Y. Apr. 14, 2011)
(“Conclusory allegations of retaliation are not sufficient ....”)
(citation omitted).
Even if plaintiff had established a material question of fact
as to the defendant's alleged adverse action, the court finds
that no reasonable jury would conclude there was an adequate
causal connection between plaintiff's 2013 grievance and
the circumstances surrounding his evaluation for Harvoni
treatment. Plaintiff filed a grievance against defendants
Ryerson and Ashley on or about June 27, 2013, complaining
about the discontinuance of his triple combination therapy.
The adverse action alleged by plaintiff did not take place until
well over a year later. This time period is longer than courts
in this circuit find sufficient for an inference of retaliation.
See Chang v. Safe Horizons, 254 Fed. App'x 838, 839 (2d Cir.
2007) (the adverse act occurred “one year after her complaint
for discrimination, thus undermining any causal nexus based
on temporal proximity”); Burkybile v. Bd. of Educ., 411 F.3d
306, 314 (2d Cir. 2005) (finding no causal connection when
“more than a year passed” between the protected speech and
the adverse action). In the absence of any circumstantial or
direct evidence otherwise plausibly suggesting a retaliatory
animus by the defendants, plaintiff's allegations of retaliation
are “mere conclusory allegations” that “cannot by themselves
create a genuine issue of material fact” to overcome summary
judgment. Richards-Byers v. New York City Dep't of Fin., 449
F. App'x 55, 57 (2d Cir. 2011) (citation omitted).
This is especially true when considering NP Jeavons alleged
culpability, in light of the fact that she was not named in,
and had no involvement with, the circumstances underlying
plaintiff's 2013 grievance. In this circuit, courts have
regularly dismissed claims that a defendant has retaliated
for complaints against a third party. See, e.g., Hare v.
Hayden, 09 Civ. 3135, 2011 WL 1453789, at *4 (S.D.N.Y.
Apr. 14, 2011) (“As a general matter, it is difficult to
establish one defendant's retaliation for complaints against
another defendant.” (citing Wright v. Goord, 554 F.3d 255,
274 (2d Cir. 2009)) (dismissing retaliation claim against a
corrections officer when only alleged basis for retaliation was
complaint about an incident involving another corrections
officer); Roseboro v. Gillespie, 791 F. Supp. 2d 353, 369
(S.D.N.Y. May 24, 2011) (plaintiff failed to provide any basis
to believe that a corrections counselor would retaliate for
a grievance that she was not personally named in). Here,
plaintiff provides no basis for NP Jeavons's alleged retaliation
for the 2013 grievance against Ryerson and Ashley, other
than his unsubstantiated testimony that NP Jeavons “hated
him,” and “likely” discussed plaintiff's 2013 grievance with
Ryerson in conjunction with his subsequent complaints. (Pl.’s
Dep. at 125-27). 18 Nevertheless, plaintiff admits that he did
not meet NP Jeavons before 2015. (Id. at 127). Given the
absence of any facts plausibly suggesting that NP Jeavons
was aware of plaintiff's prior grievance regarding triple
combination therapy, or retaliated against him because of
it, plaintiff's First Amendment retaliation claim is may not
withstand summary judgment.
2. Defendants Hesse, Gilfus, and Donnelly
*17 Plaintiff's last surviving cause of action alleges that
in January 2015, CO Gilfus, CO Hesse, and Sgt. Donnelly
acted together to destroy plaintiff's legal documents and leave
his property in disarray, in retaliation for plaintiff filing a
grievance and court proceeding against CO Hesse regarding
plaintiff's efforts to attain a program assignment in the law
library. (SAC at ¶¶17-20, 69-87; Haimson Aff. Ex. A at
173-75). Defendants argue that, because plaintiff failed to
exhaust his administrative remedies with respect to this claim,
it should be dismissed. Alternatively, defendants argue that
plaintiff's retaliation claim fails against defendant Donnelly
for lack of personal involvement, and against Gilfus and
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Donnelly for failure to establish a causal connection between
any protected speech and their alleged adverse actions. The
court agrees that plaintiff failed to exhaust his administrative
remedies with respect to this retaliation claim, and plaintiff's
cause of action should be dismissed accordingly.
The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C.
§ 1997e(a), requires an inmate to exhaust all available
administrative remedies prior to bringing a federal civil rights
action. The exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and regardless of the subject matter of
the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.
2004), abrogated on other grounds by Ross v. Blake, 380 F.
3d. 670 (2004) (citing Porter v. Nussle, 534 U.S. 516, 532
(2002)). Inmates must exhaust their administrative remedies
even if they are seeking only money damages that are not
available in prison administrative proceedings. Id. at 675.
The Supreme Court has held that in order to properly
exhaust an inmate's administrative remedies, the inmate must
complete the administrative review process in accordance
with the applicable state rules. Jones v. Bock, 549 U.S. 199,
218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81 (2006)).
In Woodford, the Court held that “proper” exhaustion means
that the inmate must complete the administrative review
process in accordance with the applicable procedural rules,
including deadlines, as a prerequisite to bringing suit in
federal court. Woodford, 548 U.S. at 90-103.
The grievance procedure in New York is a three-tiered
process. The inmate must first file a grievance with the
Inmate Grievance Resolution Committee (“IGRC”). N.Y.
Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b).
An adverse decision of the IGRC may be appealed to
the Superintendent of the Facility. Id. § 701.5(c). Adverse
decisions at the Superintendent's level may be appealed to the
Central Office Review Committee (“CORC”). Id. § 701.5(d).
The court also notes that the regulations governing the Inmate
Grievance Program encourage the inmate to “resolve his/
her complaints through the guidance and counseling unit,
the program area directly affected, or other existing channels
(informal or formal) prior to submitting a grievance.” Id. §
701.3(a) (Inmate's Responsibility). There is also a special
section for complaints of harassment. Id. § 701.8. Complaints
of harassment are handled by an expedited procedure which
provides that such grievances are forwarded directly to the
Superintendent of the facility, after which the inmate must
appeal any negative determination to the CORC. Id. §§
701.8(h) & (i), 701.5.
Until recently, the Second Circuit utilized a three-part inquiry
to determine whether an inmate had properly exhausted his
administrative remedies. See Brownell v. Krom, 446 F.3d 305,
311-12 (2d Cir. 2006) (citing Hemphill v. State of New York,
380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked
(1) whether the administrative remedies were available to
the inmate; (2) whether defendants’ own actions inhibiting
exhaustion estops them from raising the defense; and (3)
whether “special circumstances” justify the inmate's failure to
comply with the exhaustion requirement. Id.
*18 The Supreme Court has now made clear that courts
may not excuse a prisoner's failure to exhaust because of
“special circumstances.” Ross v. Blake, __ U.S. __, 136 S. Ct.
1850, 1857 (June 6, 2016). “ ‘[M]andatory exhaustion statutes
like the PLRA establish mandatory exhaustion regimes,
foreclosing judicial discretion.’ ” Riles v. Buchanan, 656 F.
App'x 577, 580 (2d Cir. 2016) (quoting Ross, __ U.S. at
__, 136 S. Ct. at 1857). Although Ross has eliminated the
“special circumstances” exception, the other two factors in
Hemphill – availability and estoppel – are still valid. The court
in Ross referred to “availability” as a “textual exception” to
mandatory exhaustion, and “estoppel” has become one of the
three factors in determining availability. Ross, __ U.S. at __,
136 S. Ct. at 1858. Courts evaluating whether an inmate has
exhausted his or her administrative remedies must focus on
whether those remedies were “available” to the inmate. Id;
see also Riles, 2016 WL 4572321 at *2.
Here, the record reflects that on or about January 19,
2015 plaintiff filed grievance AUB-6602-15, alleging that
his property was tampered with and his legal documents
destroyed upon transfer to the SHU in retaliation for
his “filing of a court action against staff here at
Auburn.” (Declaration of Cheryl Parmiter (“Parmiter Decl.”)
Ex. B at 5). The grievance was investigated by non-party
Sgt. Murray on January 20, 2015, and three days later
the IGRC granted plaintiff's grievance, to the extent that
plaintiff was advised to file a claim if he was missing any
property. (Id. Ex. B at 3, 6). Plaintiff appealed the grievance
at the Superintendent level on January 26, 2015, and on
January 28 th Acting Superintendent Robinson agreed with
the IGRC's findings and advised plaintiff to file a claim if he
was missing any property. (Id. Ex. B at 2).
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Plaintiff admits that grievance AUB-6602-15 was never
processed beyond the Superintendent level. (Pl.’s Dep. at 82).
At his deposition, plaintiff testified that “for some reason
[it] came up missing[.]” (Id.). Nevertheless, plaintiff has not
produced any proof that an appeal to CORC actually existed.
The record reflects that Auburn C.F. and Southport C.F., the
two facilities in which plaintiff was housed in 2015, had
fully functioning inmate grievance processes. (Declaration of
Rachel Seguin (“Seguin Decl.”) at ¶ 13, Parmiter Decl. at
¶ 10). The evidence further indicates that plaintiff utilized
the grievance process on various other occasions in 2015,
including the appeal of three other grievances to CORC after
January 2015. (Seguin Decl. at ¶ 14, Ex. A; Parmiter Decl.
¶¶ 18-19, Ex. A at 1). Plaintiff testified that he continued
to receive CORC determinations even after his release into
federal custody in June 2015. 19 (Pl.’s Dep. at 142-43).
As previously discussed, the only basis on which the
court may excuse plaintiff's undisputed failure to exhaust
his administrative remedies is the unavailability of those
remedies. In this case, plaintiff's unsupported, general
testimony that grievance AUB-6602-15 was “lost” in the
appeals process is insufficient to establish a genuine issue of
material fact as to the availability of the inmate grievance
process to plaintiff. 20 See Davis v. Grant, No. 15-CV-5359,
2019 WL 498277, at *10 (S.D.N.Y. Feb. 8, 2019) (plaintiff's
statements that his grievance was lost or destroyed, which
stood alone and unsupported, did not warrant exception
to exhaustion requirement); Engles v. Jones, No. 13-
CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec.
28, 2018) (granting summary judgment to defendants for
failure to exhaust where there was no record of plaintiff
filing his grievance and plaintiff merely alleged without
any documentary support that his grievance was lost or
destroyed); Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555
(W.D.N.Y. 2018) (“[C]ourts have consistently held ... that an
inmate's general claim that his grievance was lost or destroyed
does not excuse the exhaustion requirement.”).
*19 Considering plaintiff's unsupported allegations, along
with evidence that plaintiff successfully utilized the IGP
and appealed to CORC during the same period of time,
the court agrees that there is no applicable exception to
the exhaustion requirement, and plaintiff's retaliation claim
against defendants CO Gilfus, CO Hesse, and Sgt. Donnelly
should be dismissed.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the motion for summary judgment
of the Wilson Elser defendants–defendants Koenigsmann,
Jones, Coryer, Donnelly, O'Connor-Ryerson, Gilfus, Hesse,
Ashley, Gardner, Dinello, and Mueller–(Dkt. No. 210) be
GRANTED, and the plaintiff's complaint be DISMISSED
IN ITS ENTIRETY as against them; and it is further
RECOMMENDED, that defendant Jeavon's motion for
summary judgment (Dkt. No. 213) be GRANTED, and the
plaintiff's complaint be DISMISSED IN ITS ENTIRETY as
against her.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2021 WL 2269839
Footnotes
1 Although plaintiff has labeled this pleading “Amended Complaint Pursuant to 42 U.S.C. § 1983”, it is actually
the second amended complaint filed in this action (See Dkt. Nos. 1, 20, 64), thus the court will refer to it as
such throughout this Report-Recommendation.
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2 At the time the motion to dismiss was filed, all defendants were represented by the New York Attorney
General's Office. The defendants retained outside counsel in October 2019. (Dkt. Nos. 151, 153, 154).
3 Another named defendant, Wesley Canfield, was dismissed from this action on May 4, 2020, in light of a
Suggestion of Death filed by defendants and the failure of plaintiff to substitute the deceased defendant's
estate. (Dkt. Nos. 170, 187).
4 There are two summary judgment motions presently pending before this court. For the sake of brevity,
defendants Koenigsmann, Jones, Coryer, Donnelly, O'Connor-Ryerson, Gilfus, Hesse, Ashley, Gardner,
Dinello, and Mueller will collectively be referred to as the “Wilson Elser”defendants, based on the name of
the law firm that now represents all of them. The Wilson Elser defendants filed their motion for summary
judgment on October 28, 2020. (Dkt. No. 210). Defendant Jeavons filed her motion for summary judgment
on November 3, 2020. (Dkt. No. 213).
5 Previously Local Rule 7.1(a)(3).
6 A “log” drop in viral load is a 10-fold decrease. For example, a decrease in viral load from 10,000 to 100
copies could be described as a 2-log decrease. (Ryerson Decl. at ¶ 27 n. 2).
7 Plaintiff testified that “IFD” is a reference to “infectious disease.” (Pl.’s Dep. at 91-92). In the SAC, Nurse
Ashley is identified as responsible for coordinating and monitoring the treatment of infectious diseases for
the medical department at Auburn C.F. (SAC at ¶ 10).
8 Plaintiff's submission suggests that his transfer was the result of an unrelated disciplinary action. (Plaintiff's
Response in Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opposition”) Ex. H1 (Dkt. No.
223-1 at 10) ).
9 Plaintiff testified that CO Hesse was in the SHU that day delivering books from the law library. (Pl.’s Dep.
at 164).
10 Defendants maintain that the decision to terminate plaintiff's triple combination therapy treatment was made
by CMO Koenigsmann, not NP Ryerson or Nurse Ashley. (Ryerson Decl. at ¶ 54).
11 There is some evidence supporting plaintiff's contention that his HCV treatment was extended beyond the
initial twelve week period, to the extent that the record documents treatment at Southport C.F. extending
into weeks thirteen and fourteen. However, plaintiff has not identified a specific recommendation from any
treatment provider, or consulting specialist, indicating that he should continue the triple combination therapy,
or why, despite the initial treatment failure.
12 The Wilson Elser defendants have also moved to dismiss this medical indifference claim on behalf of
defendant Sgt. Donnelly, however the SAC does not allege Sgt. Donnelly's culpability with respect to this
cause of action. (SAC at ¶ 85). Plaintiff specifically testified that Sgt. Donnelly did not “hold any responsibly in
the deliberate indifference claims,” and the claims against him were limited to the retaliation claim, as further
discussed below. (Pl.’s Dep. at 173-74).
13 “Although the Second Circuit has never required plaintiffs alleging a denial of adequate medical care in a
Section 1983 action to produce expert medical testimony ... multiple district courts in this Circuit, and at least
four Circuit courts, have concluded that a plaintiff who complains that a delay in medical treatment rose to a
constitutional violation must place verifying medical evidence in the record to establish the detrimental effect
of the delay in medical treatment.” Ray v. Zamilus, No. 13 Civ. 2201, 2017 WL 4329722, at *10 (S.D.N.Y.
Sept. 27, 2017) (internal citation and quotations omitted) (listing cases).
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14 Harvoni was the first combination pill approved to treat chronic HCV genotype one infections. (Koenigsmann
Decl. at ¶ 26). Studies indicated that there was a “high cure rate for treatment-experienced cirrhotic patients
with genotype 1 with the use of Harvoni[.]” (Id. at ¶ 27, Ex. A).
15 Plaintiff's correspondence indicates that, as of January 2015, NP Jeavons had recently taken on the role of
his primary care provider. (Ryerson Decl. Ex. F at 34). Plaintiff testified that his prior provider, Dr. Weinstock,
retired sometime in the fall of 2014, after which “everything went downhill.” (Pl.’s Dep. at 40, 59, 127).
16 Plaintiff alleges that he suffered night sweats, fatigue, nausea and itching during this period; however these
unsupported, subjective allegations are generally unsupported by the record and thus are insufficient to give
rise to a genuine issue of fact concerning the objective element. See Bilal v. White, 494 F. App'x at 146
(Plaintiff's “mere recitation of the formula that he suffered ‘extreme pain’ is insufficient to raise an issue of fact
as to whether the delay of the pain medication was sufficiently serious to rise to the level of [a constitutional]
violation.”).
17 This court recognizes the existence of other factors, as discussed in Colon, applicable only when the alleged
adverse action is the issuance of a misbehavior report.
18 Although not clearly alleged, plaintiff at one point appears to suggest that NP Jeavons delayed his evaluation
for treatment in retaliation for the contemporaneous grievances he filed against her regarding said delay.
This allegation is patently meritless. By the time plaintiff filed his February 19, 2015 grievance, plaintiff and
his medical care had already been transferred into the custody of Southport C.F. Plaintiff was transported
back to Auburn C.F. on or about March 9, 2015. A little over a month later, plaintiff had completed his initial
work-up for treatment under the care of NP Jeavons, who during that time submitted a request for approval
by CMO Koenigsmann. On these undisputed facts, no reasonable juror could conclude that NP Jeavons
was delaying plaintiff's treatment evaluation between the time plaintiff returned to Auburn C.F. and when he
became approved for treatment.
19 The Superintendent responded to grievance AUB-6602-15 on January 28, 2015, well before plaintiff was
released to federal custody in June 2015. Between January and June 2015, plaintiff filed three other
grievances and appealed them to CORC. (Seguin Decl. at ¶ 14, Ex. A at 2-3; Parmiter Decl. at ¶¶ 18-19,
Ex. A at 1).
20 By contrast, this court has previously recommended denying summary judgment where no evidence in the
record contradicted a plaintiff's allegation that his ability to file a grievance was thwarted by prison staff. See
Sawyer v. Locy, No. 9:19-CV-879 (MAD/ATB), 2020 WL 7684957, at *4 (N.D.N.Y. Oct. 21, 2020), report and
recommendation adopted, 2020 WL 7382229 (N.D.N.Y. Dec. 16, 2020). In Sawyer, however, the defendants
argued that plaintiff failed to exhaust his administrative remedies, yet failed to offer compelling evidence
sufficient to meet their burden on the dispositive motion, such as deposition testimony or party affidavits.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 2264315
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jean BERNIER, Plaintiff,
v.
KOENIGSMANN et al., Defendants.
9:17-CV-254
|
Signed 06/03/2021
Attorneys and Law Firms
JEAN BERNIER, Plaintiff, Pro Se, 116-30 131st Street,
Queens, NY 11420.
OF COUNSEL: NICOLE E. HAIMSON, ESQ.,
WILSON, ELSER LAW FIRM, Attorneys for Defendants,
Koenigsmann, Jones, Coryer, Donnelly, O'Connor-Ryerson,
Gilfus, Hesse, Ashley, Gardner, Dinello, and Mueller, 200
Great Oaks Boulevard, Suite 228, Albany, NY 12203.
OF COUNSEL: JAMES A. MEGGESTO, ESQ.,
MEGGESTO, CROSSETT & VALERINO, LLP, Attorneys
for Defendant Jeavons, 313 East Willow Street, Suite 201,
Syracuse, NY 13203.
ORDER ADOPTING REPORT
& RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On March 6, 2015, pro se plaintiff Jean Bernier
(“plaintiff”) filed this civil rights action alleging that
defendants violated his constitutional rights while he was
incarcerated at Auburn Correctional Facility and Southport
Correctional Facility. Dkt. No. 1.
After plaintiff amended his complaint, Dkt. No. 20, the
Western District of New York severed a number of his claims
and transferred them to this judicial district, Dkt. Nos. 50, 51.
Thereafter, the Court accepted plaintiff's Second Amended
Complaint for filing. Dkt. No. 57, 63, 64.
On July 28, 2017, defendants filed a partial motion to dismiss
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)
(6). Dkt. No. 71. That motion was granted as to certain
defendants and claims on March 15, 2018. Dkt. No. 96, 104.
At the request of the plaintiff, several other defendants were
dismissed from this action on July 30, 2019. Dkt. Nos. 143–
45.
The parties completed discovery into plaintiff's (1)
Eighth Amendment medical-indifference claims against
defendants Ashley and O'Connor-Ryerson; (2) Eighth
Amendment medical-indifference claims against defendants
Koenigsmann, Mueller, Dinello, Jones, Coryer, O'Connor-
Ryerson, Ashley, Gardner, and Jeavons; (3) First Amendment
retaliation claims against defendants Ashley, O'Connor-
Ryerson, and Jeavons; and (4) First Amendment retaliation
claims against defendants Hesse, Gilfus, and Donnelly.
Defendants have moved for summary judgment on these
claims pursuant to Rule 56. Dkt. Nos. 210, 213.
On May 13, 2021, U.S. Magistrate Judge Andrew T. Baxter
advised by Report & Recommendation that defendants’
motions for summary judgment be granted and that plaintiff's
Second Amended Complaint be dismissed. Dkt. No. 229.
Plaintiff has not filed an objection, and the time period in
which to do so has expired. See id.
Upon review for clear error, the Report & Recommendation
is accepted and adopted in all respects. See FED. R. CIV. P.
72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 229) is accepted
and adopted; and
2. Plaintiff's complaint is DISMISSED with prejudice.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 2264315
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Bowman v. Dilworth, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 2551142
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Curtis BOWMAN, Plaintiff,
v.
Warden DILWORTH, John Doe Current Commissioner
of Doc, John Doe-1, John Doe-2, John Doe-3, John
Doe-4, John Doe-5, and John Doe-6, Defendants.
Case No. 3:20-cv-756 (CSH)
|
Signed 06/22/2021
Attorneys and Law Firms
Curtis Bowman, Suffield, CT, Pro Se.
INITIAL REVIEW ORDER
HAIGHT, Senior District Judge:
*1 Plaintiff Curtis Bowman (“Bowman”), a convicted
prisoner confined at the MacDougall-Walker Correctional
Institution in Suffield, Connecticut (“MWCI”) and
proceeding pro se, has filed a civil rights action pursuant
to 42 U.S.C § 1983. See generally Doc. 1 (“Compl.”).
Bowman seeks to sue Warden Dilworth; John Doe Current
Commissioner of DOC; and Correctional Officers John
Doe-1, John Doe-2, John Doe-3, John Doe-4, John Doe-5,
and John Doe-6 (collectively, the “John Doe Correctional
Officers,” and with Warden Dilworth and John Doe Current
Commissioner of DOC, “Defendants”). Id. Bowman claims
that on November 30, 2017, while he was confined at
Garner Correctional Institution (“Garner CI”), the John Doe
Correctional Officers used excessive force against him in
violation of his rights under the Eighth Amendment to the
federal Constitution. Id. The Court now reviews Bowman's
Complaint to determine whether his claims may proceed
under 28 U.S.C. § 1915A. For the following reasons, the
Complaint is DISMISSED in part.
I. FACTUAL ALLEGATIONS
The following facts are derived from Bowman's Complaint,
as well as the exhibits appended thereto.
On November 30 or December 1, 2017, 1 while Bowman
was confined at Garner CI, Correctional Officers John Doe-1
and John Doe-2 escorted Bowman back from an appointment
with a psychiatrist. Compl. at 4 ¶ 9. As Correctional Officers
John Doe-1 and John Doe-2 placed Bowman in his cell, they
slammed the cell door on his leg. Id. at 4 ¶ 10. Bowman
screamed in pain. Id. at 4 ¶ 11. Correctional Officers John
Doe-1 and John Doe-2 responded by pushing harder on the
door, rather than by attempting to release or open the door. Id.
Correctional Officers John Doe-1 and John Doe-2 then
pulled Bowman out of his cell and ordered him not to
move. Id. at 4 ¶ 12. Bowman complied with the order and
Correctional Officer John Doe-1 “called a code.” Id. at 4 ¶¶
12–13. Correctional Officer John Doe-3 placed a spitveil over
Bowman's head. Id. at 4 ¶ 14. Correctional Officers John
Doe-1 and John Doe-2 pulled Bowman to the floor. Id. at 4 ¶
15. As Bowman lay on the floor, while his face was covered
by the spit veil, an officer turned Bowman's head from side
to side to permit Correctional Officer John Doe-4 to spray
Bowman multiple times with a chemical agent. Id. at 4–5
¶¶ 16–17. After the first burst of the chemical agent reached
Bowman's face, he was blinded and could not breath. Id. at
5 ¶ 19. Bowman alleges that he “never disobeyed the direct
order not to move.” Id. at 5 ¶ 18.
Correctional officers subsequently escorted Bowman to a
shower, but they did not turn on the water. Id. at 5 ¶
21. Afterwards, officers escorted Bowman back to his cell
and beat him until he lost consciousness. Id. at 5 ¶ 22.
No correctional officer brought Bowman to the medical
department to be evaluated after this beating. Id. at 5 ¶ 23.
Bowman states that he did not receive a disciplinary ticket in
connection with the incident. Id. at 5 ¶ 24.
*2 On December 29, 2017, Bowman filed a Level 1
Grievance regarding the incident. Id. at 9. On February 21,
2018, Warden Dilworth concluded, based on the review of
the incident, that the force used was appropriate. Id. Warden
Dilworth therefore denied the grievance. Id. On February 26,
2018, Bowman filed a Level 2 appeal of the decision by
Warden Dilworth. Id. at 11. On March 9, 2018, a district
administrator found that Warden Dilworth's response to the
grievance was appropriate and denied the appeal. Id.
II. STANDARD OF REVIEW
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Pursuant to 28 U.S.C. § 1915A(b), the Court must review
prisoner civil complaints against governmental actors and
“dismiss ... any portion of [a] complaint [that] is frivolous,
malicious, or fails to state a claim upon which relief may be
granted,” or that “seeks monetary relief from a defendant who
is immune from such relief.” 28 U.S.C. § 1915A(b)(1)–(2).
Although detailed allegations are not required, a complaint
must “must contain sufficient factual matter, accepted as true,
to ‘state a claim that is plausible on its face.’ ” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the Court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id. This plausibility standard is not simply a “probability
requirement,” but imposes a standard higher than “a sheer
possibility that a defendant has acted unlawfully.” Id.
In undertaking this analysis, the Court must “draw all
reasonable inferences in [the plaintiff's] favor, assume all
well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement to relief.”
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.
2011) (internal quotation marks omitted). However, the Court
is “not bound to accept conclusory allegations or legal
conclusions masquerading as factual conclusions,” id., and “a
formulaic recitation of the elements of a cause of action will
not do.” Iqbal, 556 U.S. at 678. Ultimately, “[d]etermining
whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id. at 679.
With respect to pro se litigants, it is well-established that
“[p]ro se submissions are reviewed with special solicitude,
and ‘must be construed liberally and interpreted to raise
the strongest arguments that they suggest.’ ” Matheson v.
Deutsche Bank Nat'l Tr. Co., 706 F. App'x 24, 26 (2d Cir.
2017) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)). See also Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to
be liberally construed,’ and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’ ” (internal citations
omitted)). This liberal approach, however, does not exempt
pro se litigants from the minimum pleading requirements
described above: a pro se plaintiff's complaint still must “
‘state a claim to relief that is plausible on its face.’ ” Mancuso
v. Hynes, 379 F. App'x 60, 61 (2d Cir. 2010) (quoting Iqbal,
556 U.S. at 678). Therefore, even in a pro se case, “threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice,” and the Court may not
“invent factual allegations” that the plaintiff has not pleaded.
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal
quotation marks and citation omitted).
III. ANALYSIS
*3 Bowman brings his claims pursuant to 42 U.S.C §
1983. Compl. at 2 ¶ 1. Bowman asserts that Defendants
violated his Eighth Amendment right “to be free from cruel
and unusual punishment ... through the use of excessive
force causing Bowman pain, suffering, physical injury and
emotional distress.” Id. at 6 ¶ 30. Bowman seeks monetary
damages as well as declaratory relief against the John Doe
Correctional Officers in both their official and individual
capacities. See id. at 6 ¶ 31, 7 ¶¶ 34–37. Bowman sues John
Doe Current Commissioner of DOC in his official capacity
only, and he seeks only declaratory and injunctive relief
against him. Id. at 6 ¶ 32. It is not clear to the Court what
claims are brought against Warden Dilworth, nor in which
capacity they are brought, nor for what form of relief.
a. Claims Against Warden Dilworth
In the section of his Complaint describing the parties to
this action, Bowman describes Warden Dilworth as having
been responsible for the overall operation of Garner CI
and the welfare of inmates confined there. Id. at 2 ¶ 4.
However, Bowman does not subsequently refer to Warden
Dilworth in those sections of the Complaint setting forth his
factual allegations, the legal claims he asserts, and the relief
he seeks. Warden Dilworth only appears in the grievance
and administrative appeal papers appended to Complaint.
Id. at 9–11. From these, it merely appears that Warden
Dilworth reviewed and denied Bowman's grievance against
the John Doe Correctional Officers, several weeks after the
incident involving their alleged use of excessive force against
Bowman. Id. at 9.
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the
Second Circuit considered the impact of the Supreme Court's
decision in Iqbal on the standard to be applied to determine
supervisory liability in a section 1983 action. Id. at 615–18.
The Second Circuit concluded that “after Iqbal, there is no
special rule for supervisory liability. Instead, a plaintiff must
plead and prove ‘that each Government-official defendant,
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through the official's own individual actions, has violated
the Constitution.’ ” Id. at 618 (quoting Iqbal, 556 U.S. at
676). Thus, “[t]he violation must be established against the
supervisory official directly.” Id. (emphasis added).
Bowman's Complaint contains no allegations that Warden
Dilworth either was present during or otherwise was involved
in the use of force that occurred on November 30 or
December 1, 2017. By the time it appears Warden Dilworth
received Bowman's grievance—i.e., on January 3, 2018—
the incident of which he complained was long over and
complete. See Compl. at 9. In short, there is no matter in
the Complaint plausibly indicating that Warden Dilworth was
directly involved in the purported violation of Bowman's
right to be free from excessive use of force. Bowman's
failure to plausibly plead such a direct connection cannot
sustain claims against a prison supervisor such as Warden
Dilworth. See, e.g., Crispin v. Roach, No. 3:20-cv-1184
(KAD), 2020 WL 6263185, at *8 (D. Conn. Oct. 23, 2020)
(dismissing excessive force claims against prison supervisory
officials, including prison warden, where there were no
allegations that any official “was present for or directly
involved in the use of force” against plaintiff, but rather
only allegations that defendants did not take steps to remedy
the alleged use of force after it had occurred when they
denied plaintiff's grievances); Neary v. Naqvi, No. 3:14-
cv-1631 (VLB), 2017 WL 320547, at *14 (D. Conn. July
27, 2017) (dismissing deliberate indifference claims against
prison warden defendants where the body of the amended
complaint made no mention of any of the wardens, much
less any plausible involvement by wardens in provision of
medically inappropriate diet to plaintiff).
*4 Therefore, all claims for relief asserted against Warden
Dilworth are DISMISSED. See 28 U.S.C. § 1915A(b)(1).
b. Claims for Declaratory Relief
Bowman seeks a declaration that Defendants violated his
Eighth Amendment rights when the John Doe Correctional
Officers used excessive force against him on November 30 or
December 1, 2017. Compl. at 7 ¶ 34.
Ordinarily, “[t]he Eleventh Amendment bars a suit against
state officials when the state is the real, substantial party in
interest.” Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 101 (1984) (internal quotation marks and citation
omitted). Under the doctrine of Ex parte Young, 209 U.S. 123
(1908), however, “acts of state officials that violate federal
constitutional rights are deemed not to be acts of the state
and may be the subject of injunctive or declaratory relief in
federal court.” Berman Enterprises, Inc. v. Jorling, 3 F.3d
602, 606 (2d Cir. 1993) (citation omitted). Even though the
doctrine depends upon a legal fiction, see Virginia Office
for Protection & Advocacy v. Stewart, 563 U.S. 247, 255
(2011), it permits the federal courts to hear suits against state
government officials challenging “implementation of state
policy or custom” where such suits otherwise could not be
maintained. See Kentucky v. Graham, 473 U.S. 159, 167 n.14
(1985).
Ex parte Young provides litigants with a powerful legal tool,
but it is one subject to a number of important limitations.
As relevant here, retrospective relief—e.g., a declaration that
a state officer defendant violated a plaintiff's rights at some
time in the past—is barred by the Eleventh Amendment. See
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 146 (1993) (Eleventh Amendment “does not
permit judgments against state officers declaring that they
violated federal law in the past”); Green v. Mansour, 474
U.S. 64, 68 (1985) (“We have refused to extend the reasoning
of Young ... to claims for retrospective relief” (citations
omitted)); Goodspeed Airport, LLC v. E. Haddam Inland
Wetlands & Watercourses Comm'n, 632 F. Supp. 2d 185,
187–88 (D. Conn. 2009) (“A plaintiff may use Ex parte
Young to seek injunctive or declaratory relief, ... but the relief
must address an ongoing or threatened violation of federal
law and be prospective only.” (citing W. Mohegan Tribe &
Nation v. Orange Cnty., 395 F.3d 18, 21 (2d Cir. 2004) and
Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 2000))). “The
line between prospective and retrospective relief is drawn
because ‘[r]emedies designed to end a continuing violation of
federal law are necessary to vindicate the federal interest in
assuring the supremacy of that law,’ whereas ‘compensatory
or deterrence interests are insufficient to overcome the
dictates of the Eleventh Amendment.’ ” Ward, 207 F.3d at 119
(quoting Green, 474 U.S. at 68).
In the case at the bar, Bowman currently is confined at
MWCI, and he alleges no ongoing violation of his rights
while incarcerated there. His request for a declaration that
Defendants violated his rights under the federal Constitution
in the past, while he was imprisoned at Garner CI, therefore
falls within the Eleventh Amendment's scope and is barred.
See, e.g., Reynolds v. Semple, No. 3:19-cv-1226 (KAD),
2019 WL 5394675, at *3 (D. Conn. Oct. 22, 2019)
(dismissing claim for declaratory relief against defendants
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where declaration sought related to past alleged violation of
plaintiff's Eighth and Fourteenth Amendment rights).
*5 Furthermore, if Bowman were to prevail on his Eighth
Amendment claims, the Court necessarily would determine
that the Defendants had violated his constitutional rights.
Thus, a separate award of declaratory relief is unnecessary.
See, e.g., Sofi Classic S.A. de C.V. v. Hurowitz, 444 F. Supp.
2d 231, 249–50 (S.D.N.Y. 2006) (“Plaintiffs’ declaratory
judgment claim seeks resolution of legal issues that will, of
necessity, be resolved in the course of the litigation of the
other causes of action. Therefore, the claim is duplicative in
that it seeks no relief that is not implicitly sought in the other
causes of action.... [and] is dismissed.” (citation omitted)).
Accordingly, all claims for declaratory relief against
Defendants are DISMISSED. See 28 U.S.C. § 1915A(b)(1).
c. Claims for Injunctive Relief Against
John Doe Current Commissioner of DOC
Bowman states that he is suing John Doe Current
Commissioner of DOC 2 in his official capacity alone, and
only for declaratory and injunctive relief. Compl. at 3 ¶
5, 6 ¶ 32. Bowman further states that John Doe Current
Commissioner of DOC is being sued because “[P]laintiff is
seeking extended medical care of his injur[ies] and has been
transferred from the facility where the incident took place
therefore only the current acting commissioner can order the
extended medical care ... sought by [P]laintiff.” Id. at 3 n.1.
As noted supra, the doctrine of Ex parte Young permits
a plaintiff to seek prospective relief—including injunctive
relief—against state officers in their official capacities to
address an ongoing violation of federal law. See In re Deposit
Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (“[A]pplication
of the Young doctrine is straightforward: A plaintiff may avoid
the Eleventh Amendment bar to suit and proceed against
individual state officers, as opposed to the state, in their
official capacities, provided that his complaint (a) ‘alleges
an ongoing violation of federal law’ and (b) ‘seeks relief
properly characterized as prospective.’ ”) (quoting Verizon
Maryland Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S.
635, 645 (2002) and In re Dairy Mart Convenience Stores,
Inc., 411 F.3d 367, 372 (2d Cir. 2005)). “Plaintiff need not
prove ‘personal involvement’ of the [state official] to succeed
on such a claim.” Mercer v. Schriro, 337 F. Supp. 3d 109, 137
(D. Conn. 2018). However, “[i]n making an officer of the state
a party defendant in a suit to enjoin the enforcement of an
act alleged to be unconstitutional, it is plain that such officer
must have some connection with the enforcement of the act,
or else it is merely making him a party as a representative of
the state, and thereby attempting to make the state a party.”
Ex parte Young, 209 U.S. at 157.
*6 Bowman asserts that, after he was doused with chemical
agents and beaten, the John Doe Correctional Officers did not
bring him to the medical department for evaluation. Compl.
at 5 ¶ 23. Fairly read, Bowman's Complaint also alleges that
he is in continuing pain as a result of the alleged assault by the
John Doe Correctional Officers. See id. at 7 ¶ 33. However,
Bowman only asserts in conclusory fashion that he “requir[es]
extended medical care that [he] will not receive unless the
[C]ourt grants the ... injunctive relief which [he] seeks.” Id.
The Court construes Bowman's claim for relief, with respect
to John Doe Current Commissioner of DOC, to be one
for deliberate indifference to Bowman's serious medical
needs. The Supreme Court has determined that deliberate
indifference to such medical needs constitutes cruel and
unusual punishment in violation of the Eighth Amendment.
See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a
claim of deliberate indifference, a prisoner must allege an
act or failure to act by a defendant that evinces a conscious
disregard of a substantial risk of serious harm. See Hathaway
v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). “There are thus
both subjective and objective components to the ‘deliberate
indifference’ standard.... Objectively, the alleged deprivation
must be ‘sufficiently serious.’ ... Subjectively, the defendant
must have been actually aware of a substantial risk that the
inmate would suffer serious harm as a result of his actions or
inactions.” Young v. Choinski, 15 F. Supp. 3d 172, 182 (D.
Conn. 2014) (citations omitted).
For the purposes of this Initial Review Order, the Court
will construe Bowman's allegations of his pain as satisfying
the objective prong of the deliberate indifference inquiry.
See Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977)
(“[T]he Eighth Amendment forbids not only deprivations
of medical care that produce physical torture and lingering
death, but also less serious denials which cause or perpetuate
pain.”). Nevertheless, Bowman's Complaint contains no
facts pertaining to the deliberate indifference inquiry's
subjective prong. Bowman makes no allegations related to
any deprivation of medical care at either Garner CI or
MWCI at any time after November 30 or December 1, 2017,
much less any such further deprivations evincing conscious
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disregard of a substantial risk of serious harm to him. Indeed,
there are no allegations that Bowman himself ever sought or
requested medical care of any type after the alleged assault
by the John Doe Correctional Officers. Furthermore, there
are no factual allegations plausibly tying Bowman's being
deprived of any medical treatment to a policy or practice
of the Connecticut Department of Correction. Therefore, the
Court cannot plausibly conclude that Bowman suffers from
“an ongoing violation of federal law” for which John Doe
Current Commissioner of DOC may be sued and that could
permit an award of prospective injunctive relief. See Smith
v. Martuscello, 602 F. App'x 550 (2d Cir. 2015) (affirming
dismissal of inmate's amended complaint with respect to
prison supervisory officials, because although the “amended
complaint contain[ed] allegations of widespread abuse in the
prison system, and at Coxsackie in particular, it contain[ed] no
allegations that the abuse was the result of a policy or custom
of deliberate indifference to inmate abuse”).
Accordingly, all claims for injunctive relief against John Doe
Current Commissioner of DOC are DISMISSED. See 28
U.S.C. § 1915A(b)(1).
d. Claims for Official Capacity Monetary Relief
*7 Bowman seeks both compensatory and punitive damages
from the John Doe Correctional Officers. Compl. at 7 ¶ 36–
37. To the extent that he sues the Defendants in their official
capacities—see id. at 6 ¶ 31—those requests for monetary
damages are barred by the Eleventh Amendment. See, e.g.,
Graham, 473 U.S. at 169–70 (1985) (Eleventh Amendment,
which protects the state from suits for monetary relief, also
protects state officials sued for damages in their official
capacity).
Therefore, all claims seeking money damages from
Defendants in their official capacities therefore are
DISMISSED. See 28 U.S.C. § 1915A(b)(2).
e. Individual Capacity Claims for Damages
Against John Doe Correctional Officers
As described earlier in this opinion, Bowman alleges that
Correctional Officers John Doe-1 and John Doe-2 slammed
the cell door on his leg, pushed against the door instead
of attempting to release or open it, and pulled him out of
the cell and onto the floor. Correctional Officer John Doe-3
then placed a spit veil over Bowman's face and Correctional
Officer John Doe-4 repeatedly sprayed Bowman in the face
as he lay on the ground.
“[T]he use of excessive physical force against a prisoner
may constitute cruel and unusual punishment [even] when
the inmate does not suffer serious injury.” Wilkins v. Gaddy,
559 U.S. 34, 34 (2010) (per curiam) (quoting Hudson v.
McMillian, 503 US. 1, 4 (1992)). However, “not ‘every
malevolent touch by a prison guard gives rise to a federal
cause of action.’ ” Id. at 37 (quoting Hudson, 503 U.S. at 9);
see also Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (“We
recognize ... that ‘[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge's chambers,
violates a prisoner's constitutional rights....” (quoting Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973))); Romano
v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (“[A] de
minimis use of force will rarely suffice to state a constitutional
claim.”). In order to state a claim for the use excessive force
in violation of the Eighth Amendment, an inmate must allege
an objective element—a sufficiently serious use of force—as
well as a subjective element—namely, that the use of force
was “wanton,” in light of the circumstances under which force
was used. See Harris v. Miller, 818 F.3d 49, 63–64 (2d Cir.
2016) (per curiam).
With respect to the objective element, an inmate must allege
that the defendant's conduct was serious enough to have
violated “contemporary standards of decency.” Hudson, 503
U.S. at 8 (internal quotation marks and citation omitted). The
extent of the inmate's injuries as a result of the defendant's
conduct is not dispositive of whether the force used was
excessive. See Wilkins, 559 U.S. at 38 (“Injury and force,
however, are only imperfectly correlated, and it is the latter
that ultimately counts. An inmate who is gratuitously beaten
by guards does not lose his ability to pursue an excessive
force claim merely because he has the good fortune to escape
without serious injury.”); Hudson, 503 U.S. at 9 (“[w]hen
prison officials maliciously and sadistically use force to
cause harm, contemporary standards of decency are always
violated” irrespective of whether significant injury is present).
With respect to the subjective element, the Court assesses
“whether the force was used in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause
harm.” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003). In
so doing, the Court “must examine several factors including:
the extent of the injury and the mental state of the defendant,
as well as ‘the need for the application of force; the correlation
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between that need and the amount of force used; the threat
reasonably perceived by the defendants; and any efforts
made by the defendants to temper the severity of a forceful
response.’ ” Id. (quoting Romano, 998 F.2d at 105).
*8 Turning to the case at the bar, the Court finds that
Bowman's allegations state a plausible excessive force claim
against Correctional Officers John Doe-1, John Doe-2, John
Doe-3, and John Doe-4. Bowman asserts that he did not
disobey any order given by any of the officers, and “[c]ourts in
this Circuit have repeatedly held that a prison official's use of
mace or chemical spray against a compliant prisoner satisfies
both the subjective and objective elements of an Eighth
Amendment excessive force claim; the subjective element is
satisfied in such cases because spraying a compliant prisoner
with mace cannot be characterized as an attempt to maintain
or restore discipline, and the objective element is satisfied
where a prisoner alleges that he suffered injuries beyond the
immediate discomfort that results from being sprayed with
mace.” Parsons v. City of New York, No. 17-CV-2707 (MKB),
2017 WL 2656135, at *3 (E.D.N.Y. June 19, 2017) (collecting
cases).
Although Bowman does not specifically reference
Correctional Officer John Doe-5 or Correctional Officer John
Doe-6, he alleges that after returning him to his cell without
decontaminating him from the effects of a chemical agent,
correctional officers beat him until he lost consciousness. The
Court will liberally construe these allegations to be asserted
against all of the John Doe Correctional Officers. Beating an
inmate in his cell until he loses consciousness, after having
subdued him using a chemical agent and having failed to
decontaminate him from the effects of that chemical agent,
plausibly constitutes an excessive use of force in violation of
the Eighth Amendment.
Finally, the Court construes Bowman's complaint as
additionally asserting a claim of deliberate indifference
against the John Doe Correctional Officers. See Compl.
at 6 ¶ 30. “The same standards apply to a claim of
deliberate indifference to serious medical needs on the
part of nonmedical prison personnel. To establish such a
claim plaintiff must prove that prison personnel intentionally
delayed access to medical care when the inmate was
in extreme pain and has made his medical problems
known to the attendant prison personnel or that the inmate
suffered a complete denial of medical treatment.” Hodge
v. Coughlin, No. 92 Civ. 0622 (LAP), 1994 WL 519902,
at *11 (S.D.N.Y. Sept. 22, 1994), aff'd, 52 F.3d 310 (2d
Cir. 1995). As noted supra, Bowman alleges that after
having been beaten unconscious, he was not brought to
the prison's medical department by any of the John Doe
Correctional Officers. Bowman's unconsciousness, following
his having been exposed to a chemical agent and his having
been beaten, plausibly constitutes an objectively serious
condition requiring urgent medical attention. See Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (objective prong
of deliberate indifference inquiry “contemplates ‘a condition
of urgency, one that may produce death, degeneration, or
extreme pain’ ” (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d
Cir. 1990) (Pratt, J., dissenting))). As for the subjective prong
of the deliberate indifference inquiry, Bowman's allegation
that the John Doe Correctional Officers entirely failed to
transport him for medical treatment plausibly demonstrates
the officers’ conscious disregard of his serious medical needs.
Accordingly, the Court shall permit Bowman to proceed with
the Eighth Amendment excessive use of force claim and the
Eighth Amendment deliberate indifference claim against the
John Doe Correctional Officers, in their individual capacities
only.
IV. CONCLUSION AND ORDERS
In accordance with the foregoing discussion, the Court enters
the following orders:
1. The following claims are DISMISSED pursuant to 28
U.S.C. § 1915A(b)(1)–(2):
a. All claims against Warden Dilworth;
b. All claims against John Doe Current Commissioner of
DOC; and,
c. All claims for declaratory relief and for official-
capacity monetary relief against the John Doe
Correctional Officers.
*9 2. Bowman's Eighth Amendment excessive force
claim and Eighth Amendment deliberate indifference
claim against Correctional Officers John Doe-1, John
Doe-2, John Doe-3, John Doe-4, John Doe-5, and John
Doe-6, in their individual capacities, are permitted to
proceed, for monetary relief only.
3. The Court informs Bowman that the Clerk cannot serve
the complaint on the John Doe Correctional Officers
because he has not provided the first or last name for
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any such Doe defendant. Bowman will have ninety (90)
days from the date of this order to conduct discovery and
file a notice identifying each John Doe defendant by his
first name and last name. Bowman is advised to seek the
assistance of the Department of Correction's Inmates’
Legal Aid Program with this process. The Court will
dismiss the claims against any Doe defendant for whom
Bowman fails to provide a first and last name within the
time specified herein. See Fed. R. Civ. P. 4(m).
4. If Bowman changes his address at any time during
the litigation of this case, Local Civil Rule 83.1(c)(2)
provides that he MUST notify the Court. Failure to do
so may result in the dismissal of this case. Bowman
must write PLEASE NOTE MY NEW ADDRESS on
any such notice that he sends; the Court will not find
it sufficient for Bowman to put the new address on a
letter without his indicating that it is a new address. If
Bowman has more than one pending case, he should
indicate all case numbers in the notification of change of
address. Bowman should also notify the defendants or
the attorney for the defendants of his new address.
5. Bowman shall utilize the Prisoner E-filing Program
when filing documents with the Court. Bowman is
advised that the Program may be used only to file
documents with the Court. Local Civil Rule 5(f) provides
that discovery requests are not to be filed with the Court;
discovery requests must be served on the defendants’
attorney by regular mail.
6. The Clerk shall send a courtesy copy of the Complaint
and this Order to the Connecticut Attorney General and
the Department of Correction Legal Affairs Unit.
It is SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 2551142
Footnotes
1 The Level 1 Grievance appended to Bowman's Complaint reflects that the conduct at issue took place
on December 1, 2017, while in the body of his Complaint Bowman asserts that the events transpired on
November 30, 2017. Compare Compl. at 3 ¶ 9, with id. at 9.
2 The Court takes judicial notice that the current Commissioner of Connecticut's Department of
Correction is Angel Quiros. See Connecticut State Department of Correction, https://portal.ct.gov/
DOC (last visited June 4, 2021); Press Release, Office of Governor Ned Lamont, Governor Ned
Lamont Appoints Angel Quiros to Serve as Commissioner of the Department of Correction (Sept. 2,
2020), https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2020/09-2020/Governor-Lamont-
Appoints-Angel-Quiros-To-Serve-as-Commissioner-of-the-Department-of-Correction. Bowman has pleaded
the Commissioner as a John Doe defendant because “[t]he person holding the office of Commissioner ... has
changed several times since the date of this incident.” Compl. at 3 n.1. Such pleading is unnecessary: under
Rule 25(d) of the Federal Rules of Civil Procedure, when a party in an official capacity resigns or otherwise
ceases to hold office while the action is pending, the officer's successor is automatically substituted as a
party, regardless of the party's failure to so move or to amend the case caption. Fed. R. Civ. P. 25(d). The
Court may also order the substitution of a party at any time. See Williams v. Annucci, 895 F.3d 180, 187 (2d
Cir. 2018); Tanvir v. Tanzin, 894 F.3d 449, 459 n.7 (2d Cir. 2018).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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2020 WL 5752333
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Benjamin BRAXTON a/k/
a Obed/Edom Braxton, Plaintiff,
v.
Kevin BRUEN, et al., Defendants.
9:17-CV-1346 (BKS/ML)
|
Signed 08/24/2020
Attorneys and Law Firms
BENJAMIN BRAXTON, 16-A-2314, Plaintiff, pro se,
Clinton Correctional Facility, P.O. Box 2000, Dannemora,
NY 12929.
HON. LETITIA JAMES, JOSHUA E. MCMAHON, ESQ.
New York State Attorney General, Attorney for Defendants,
Litigation Bureau, The Capitol, Albany, New York 12224.
REPORT-RECOMMENDATION AND ORDER 1
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Plaintiff pro se Benjamin Braxton (“Braxton” or
“Plaintiff”), an inmate who was, at all relevant times, in
the custody of the New York Department of Corrections
and Community Supervision (“DOCCS”), brings this action
pursuant to 42 U.S.C. § 1983 against Defendants Deputy
Commissioner of Counsel Kevin Bruen (“Bruen”), Deputy
Commissioner of Program Services Jeff McKoy (“McKoy”),
Deputy Commissioner of Facility Operations Joseph Belinier
(“Belinier”), Deputy Commissioner of Administrative
Services Daniel F. Martuscello, III (“Martuscello”), and
Deputy Commissioner Chief Medical Officer Carl J.
Koenigsmann (“Koenigsmann”) for violations of his rights
under the Eighth Amendment. Dkt. No. 42 (“Am. Compl.”).
Presently before the Court is Defendants’ motion for
summary judgment and dismissal of Braxton's Amended
Complaint pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Dkt. No. 80. For the following reasons,
it is recommended that Defendants’ motion for summary
judgment be denied.
I. BACKGROUND
A. Facts 2
From 1994 until 2008, Plaintiff was incarcerated in various
DOCCS’ facilities. Dkt. No. 80-3 at 18-19. In 2008,
Plaintiff was released from custody. Id. at 19. In June 2009,
Braxton was treated at Bellevue Hospital for lightheadness,
palpitations, and “fading out” due to exposure to cigarette
smoke. Am. Compl. at ¶¶ 78-79; Dkt. No. 42-1 at 38-40.
In 2013, Plaintiff returned to DOCCS’ custody. Dkt. No. 80-3
at 19. In June 2016, Plaintiff was incarcerated at Downstate
Correctional Facility. Am. Compl. at ¶ 60. Plaintiff was
housed in an area with seventeen inmates who were “chain
smokers.” Id.
In August 2016, Plaintiff arrived at Clinton Correctional
Facility (“Clinton C.F.”), where he is currently confined. Am.
Compl. at ¶ 62. Plaintiff is confined to a single occupancy,
6 × 9 cell, without a window. Dkt. No. 80-3 at 20-24. The
cell door is comprised of bars however, there is no “cross
ventilation” because inmates in the dormitory block the vents
in their cells with tape to prevent roaches from entering their
cells. Id. at 22-23. There are forty-six inmates on each tier of
the dormitory, with six tiers. Id. at 32-33.
*2 Clinton C.F. has a policy prohibiting smoking indoors.
Dkt. No. 80-3 at 42-44. The “majority of inmates” in
Braxton's dormitory are smokers or “chain smokers” who
smoke between three and five packs of cigarettes each day.
Am. Compl. at ¶ 62. In Braxton's dormitory, approximately
275 inmates smoke constantly in their cells, every night, using
“makeshift” ash trays from soap. Id. at ¶ 61; Dkt. No. 80-3
at 34. Braxton claims that the smoke lingers in the air and
causes him to wake during the night wheezing and coughing.
Am. Compl. at ¶ 61. In the morning, Braxton's shirts are
“beige” in color from nicotine. Id. at ¶ 36. The inmates and
officers also smoke in the hallways and in “hideaways,” areas
without cameras. Dkt. No. 80-3 at 36. Braxton has witnessed
corrections officers verbally reprimand inmates who failed to
comply with the policy. Id. at 44.
From August 2016 until June 2017, Plaintiff received medical
treatment for complaints related to exposure to second-hand
or Environmental Tobacco Smoke (“ETS”) including asthma,
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congestion, eye irritation, and sneezing. Am. Compl. at ¶ 76;
Dkt. No. 1-1 at 8-11, 22.
B. Procedural History
On December 14, 2017, the Court received Braxton's
Complaint. Dkt. No. 1. Upon review of the Complaint,
the Court directed Defendants to respond to the Eighth
Amendment claims related to ETS or second hand smoke.
Dkt. No. 10. On May 3, 2018, Defendants filed an Answer
to the Complaint. Dkt. No. 17. On November 15, 2018, the
Court granted Plaintiff's motion to amend the Complaint and
accepted the proposed Amended Complaint, as modified by
the Court's Decision and Order, as the operative pleading.
Dkt. Nos. 41 and 42. On November 28, 2018, Defendants filed
an Answer to the Amended Complaint. 3 Dkt. No. 46. On July
5, 2019, Braxton was deposed. Dkt. No. 80-3. On February
21, 2020, Defendants filed the within motion pursuant to Fed.
R. Civ. P. 56 seeking judgment as a matter of law. Dkt. No.
80. Braxton opposed the motion. Dkt. Nos. 86 and 87.
II. MOTION FOR SUMMARY JUDGMENT 4
A. Legal Standard
A motion for summary judgment may be granted if there
is no genuine issue as to any material fact, it is supported
by affidavits or other suitable evidence, and the moving
party is entitled to judgment as a matter of law. The moving
party bears the burden of demonstrating the absence of
disputed material facts by providing the court with portions
of pleadings, depositions, and affidavits which support the
motion. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Facts are material if they may affect
the outcome of the case as determined by substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 317, 248 (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. Fed. R. Civ.
P. 56; 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, 344 F.3d at 289 (citing
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
*3 All ambiguities are resolved and all reasonable inferences
are drawn in favor of the non-moving party. Skubel v. Fuoroli,
113 F.3d 330, 334 (2d Cir. 1997). Furthermore, where, as here,
a party seeks judgment against a pro se litigant, a court must
afford the non-movant special solicitude. See Triestman v.
Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006).
As the Second Circuit has stated,
[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 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 and footnote omitted); see also Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191–92 (2d Cir. 2008).
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).
B. N.D.N.Y. Local Rule 7.1(a)(3)
Local Rule 7.1(a)(3) requires a party moving for summary
judgment to file and serve a Statement of Material Facts.
See N.D.N.Y. L.R. 7.1(a)(3). “The Statement of Material
Facts shall set forth, in numbered paragraphs, each material
fact about which the moving party contends there exists no
genuine issue.” Id. The opposing party is required to file
a response to the Statement of Material facts “admitting
and/or denying each of the movant's assertions in matching
numbered paragraphs.” Id. “The Court shall deem admitted
any properly supported facts set forth in the Statement of
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Material Facts that the opposing party does not specifically
controvert.” Id. (emphasis omitted).
Here, Braxton filed a Memorandum of Law in Opposition
to Defendants’ Motion, but did not respond to Defendants’
Statement of Material Facts. See Dkt. Nos. 86 and 87.
Although the Local Rules provide, that the Court shall deem
admitted any facts the non-moving party fails to “specifically
controvert,” pro se plaintiffs are afforded special solicitude
in this District and within the Second Circuit. N.D.N.Y. L.R.
7.1(a)(3); see subsection II.A. supra. In light of Plaintiff's
pro se status, the Court has reviewed the entire summary
judgment record in order to ascertain the undisputed material
facts. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.
2001) (noting court's “broad discretion to determine whether
to overlook a party's failure to comply with local court rules”).
Consequently, the facts set forth in Defendants’ Rule 7.1
Statement of Material Facts are accepted as true as to those
facts that are not disputed by Braxton's sworn deposition
testimony, annexed as an exhibit to Defendants’ motion. See
N.D.N.Y.L.R. 7.1(a)(3) (“The Court shall deem admitted any
properly supported facts set forth in the Statement of Facts
that the opposing party does not specifically controvert.”)
(emphasis omitted).
III. DISCUSSION
*4 Defendants move for summary judgment and dismissal
of Braxton's claims for failure to exhaust his administrative
remedies. See Dkt. No. 80-1 at 4-6. In the alternative,
Defendants contend that there are no disputed issues of fact
precluding summary judgment on the Eighth Amendment
claims and, further, that they are entitled to qualified
immunity. See id. at 7-12.
A. Exhaustion
The Prison Litigation Reform Act (“PLRA”) requires that
a prisoner exhaust any administrative remedies available to
him or her before bringing an action for claims arising out of
his or her incarceration. Porter v. Nussle, 534 U.S. 516, 524
(2002); see also Woodford v. Ngo, 548 U.S. 81, 82 (2006).
The 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, 534 U.S. at 532. Further,
the exhaustion requirement applies even where the prisoner
seeks relief not available in the administrative grievance
process, such as monetary damages. 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 or she is incarcerated.
Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
omitted).
Here, there is no dispute that at all relevant times, DOCCS
had in place a three-step inmate grievance program (“IGP”).
N.Y. Comp. Codes R. & Regs. title 7, § 701.5 (2015). First, the
inmate must file a complaint with IGP clerk within twenty-
one days of the alleged action. Id. at § 701.5(a)(1). An IGP
representative has sixteen calendar days to informally resolve
the issue. Id. at § 701.5(b)(1). If no informal resolution occurs,
the full IGP committee must hold a hearing within sixteen
days of receipt of the grievance and must issue a written
decision within two working days after the conclusion of
the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the determination is
unfavorable to the inmate, the inmate may appeal the IGRC's
determination to the facility superintendent within seven
calendar days of receipt of the determination. Id. § 701.5(c)
(1). If the superintendent's determination is unfavorable to the
inmate, the inmate may appeal to the Central Office Review
Committee (“CORC”) within seven days after receipt of the
superintendent's determination. Id. §§ 701.5(d)(1)(i)-(ii). If
a grievant does not receive a copy of the written notice of
receipt within 45 days of filing an appeal, the grievant should
contact the IGP supervisor in writing to confirm that the
appeal was filed and transmitted to CORC. Id. at § 701.5(d)
(3)(i). CORC must “review each appeal, render a decision
on the grievance, and transmit its decision to the facility,
with reasons stated, for the [inmate], the grievance clerk,
the superintendent, and any direct parties within thirty (30)
calendar days from the time the appeal was received.” Id. §
701.5(d)(3)(ii). 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, 534 U.S. at 524); see also Neal v. Goord,
267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds
by Porter, 534 U.S. 516.
Defendants bear the burden of establishing that a prisoner
failed to satisfy the exhaustion requirement. See Jones, 549
U.S. at 216.
*5 At the time of the incidents that give rise to this action,
Clinton C.F. had an Inmate Grievance Program (“IGP”). Dkt.
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No. 80-5; Dkt. No. 80-7. Braxton admits that he is familiar
with the IGP, having filed “easily more than ten” grievances
during his incarceration. Dkt. No. 80-3 at 71-76, 116-199,
123.
1. Plaintiff's Failure to Exhaust
The record contains few undisputed facts related to Braxton's
attempts to exhaust his administrative remedies. Braxton
testified that he submitted a grievance on October 5, 2016
complaining about inadequate ventilation, his health and
safety, and “under enforcement” of the non-smoking policy.
Dkt. No. 42-1 at 1; Dkt. No. 80-3 at 81. Braxton testified that,
because he did not receive a response to his grievance, he
appealed his grievance to the IGRC Supervisor and requested
a formal hearing. Dkt. No. 80-3 at 81, 84-85. After receiving
no response from the IGRC, Braxton appealed his grievance
to the Superintendent of Clinton C.F. Id. at 81, 85. With
no response from the Superintendent, on October 31, 2016,
Braxton appealed his grievance to DOCCS’ Commissioner
Anthony Annucci and to the “IGRC Administrator” at the
State Commission of Correction. Dkt. No. 80-3 at 86.
Braxton did not receive a response to his October 31, 2016
correspondence. Id. at 93.
Braxton testified that he submitted a second grievance on
February 11, 2017, with the same complaints, and attached a
document entitled “Proposal for Non-Smoking Dormitory -
Grievance Appeal” (the “Proposal”). Dkt. No. 1-1 at 13-19;
Dkt. No. 80-3 at 96. On February 17, 2017, because he did
not receive a response, Braxton appealed his grievance to the
IGRC Supervisor and asked for a formal hearing. Dkt. No.
80-3 at 97, 100. On February 23, 2017, because he received
no response from the IGRC Supervisor, Braxton appealed
his grievance to the Superintendent of Clinton C.F. Id. The
Superintendent's Office acknowledged receipt of the appeal
on February 24, 2017. Dkt. No. 42-1 at 9. On February
24, 2017, Superintendent Kirkpatrick responded and directed
Braxton to file a grievance. Dkt. No. 80-3 at 112.
Braxton testified that, in light of the fact that he had already
filed grievances, he sent his grievances, appeals, and Proposal
directly to Koenigsmann, Martuscello, Bruen, Bellnier and
McKoy, who were members of CORC. Am. Compl. at ¶¶
71-75; Dkt. No. 1-1 at 23-29; Dkt. No. 80-3 at 93. Braxton
forwarded the letters on April 19, 2017 and did not receive a
response. Dkt. No. 80-3 at 112.
Conversely, Defendants assert that Braxton did not file any
grievances or appeals related to ETS exposure. In support of
their motion, Defendants submit a declaration from the IGP
Supervisor at Clinton C.F. Christine Gregory (“Gregory”).
Dkt. No. 80-7. Gregory avers that “[p]laintiff's claims in this
action are a proper subject for a grievance under the IGP.” Id.
at ¶ 12. Gregory states that, based upon a review of DOCCS’
records, Braxton did not file any grievances related to ETS or
second-hand smoke. Id. at ¶¶ 13-14. Defendants also submit
a declaration from DOCCS IGP Assistant Director Rachael
Seguin (“Seguin”). Dkt. No. 80-5. Seguin's review of CORC
records did not reveal any appeals from Braxton related to
ETS. Id. at ¶ 16. Defendants also submit documents related
to Plaintiff's grievance history. Dkt. No. 80-6; Dkt. No. 80-8
*6 The issue of whether Braxton filed grievances and
appeals is clearly disputed. However, Braxton concedes that
he did not receive a response from CORC, or any of CORC's
members, prior to filing the within action. Dkt. No. 80-3 at
93, 112. As a result, I find that Plaintiff failed to exhaust his
administrative remedies before filing this action. 5
2. Availability of Administrative Remedies
The Court's finding that Braxton failed to exhaust his
administrative remedies does not end the exhaustion review.
A prisoner's failure to exhaust administrative remedies may
be excused if remedies were unavailable to the inmate.
Ross v. Blake, 136 S.Ct. 1850, 1858 (2016) (“An inmate
[...] must exhaust available remedies, but need not exhaust
unavailable ones.”). There are three potential circumstances
where 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.” Williams v. Priatno, 829 F.3d 118, 123-24 (2d
Cir. 2016) (quoting Ross, 136 S.Ct. at 1858-1861).
Braxton argues that administrative remedies were unavailable
because the grievance process did not provide “steps for
ignored grievances.” Dkt. No. 86 at 9. The issue of “unfiled
and unanswered” grievances was addressed by the Second
Circuit in Williams v. Priatno. In Williams, the plaintiff, who
was confined to the SHU, claimed that he gave a grievance
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to a guard to file but the grievance was never filed and
therefore, the inmate never received a response. Williams, 829
F.3d at 126. The plaintiff alleged that the guard must have
disposed of the grievance because the facility had no record
of the grievance. Id. The Circuit ruled in favor of the inmate
holding that “[u]nder that circumstance, the regulations do not
adequately outline the process to appeal or otherwise exhaust
administrative remedies. On their face, the regulations only
contemplate appeals of grievances that were actually filed.”
Id. at 126.
In Cicio v. Wenderlich, 714 Fed. App'x 96 (2d Cir. 2018), the
Second Circuit declined to apply the holding of Williams in
a case where the plaintiff claimed that he filed a grievance
directly with the IGRC, rather than providing the grievance
to a prison guard to file on his behalf. The IGRC had not
record of receipt of the grievance and the plaintiff admitted
that he never received a response and, rather than appeal,
he commenced the lawsuit. Id. at 97-98. In that instance,
the plaintiff was not transferred after he attempted to file
his grievance and the Circuit held, the “situation was not so
opaque that it became ‘incapable of use’ because ‘[w]hen a
prisoner has filed a grievance, but receives no response, the
regulations provide a right of appeal.’ ” Id. (citing, inter alia,
7 N.Y.C.R.R. § 701.6(g)).
*7 In this matter, Braxton claims that he filed two grievances
and appeals to the IGRC, Superintendent, and individual
members of CORC. Braxton provided extensive deposition
testimony regarding his efforts to file grievances and appeals
and proffered copies of his grievances, appeals, and letters.
See Dkt. No. 1-1 at 4-5, 1-20, 23-29; Dkt. No. 42-1 at
1-5, 9. Defendants have failed to come forward with any
evidence contradicting Plaintiff's deposition testimony and
documentary evidence. Indeed, Defendants’ motion lacks
an affidavit from Kirkpatrick or sworn testimony from
Defendants. Accordingly, the Court finds that Defendants
have failed to carry their burden of proving the affirmative
defense on the present record. See Juarbe v. Carnegie, No.
9:15-CV-1495 (MAD/DEP), 2016 WL 8732798 (N.D.N.Y.
Oct. 7, 2016) (“Because defendants have provided no
evidence that any Auburn official, including the grievance
clerk, received plaintiff's grievances, provided them with
numbers, or logged them, the factual circumstances in this
case are, at least when drawing all inferences in favor of
plaintiff, identical to those in Williams, where the plaintiff's
grievances were both unfiled and unanswered.”); see Reid v.
Marzano, 9:15-CV-0761 (MAD/CFH), 2017 WL 1040420,
at *3 (N.D.N. y. Mar. 17, 2017) (holding that the plaintiff's
deposition testimony that he did not know how to proceed
when he did not receive a response to his grievance is
sufficient to withstand summary judgment on the issue of
exhaustion).
Braxton's claim that he was unaware and confused as to
how to pursue administrative remedies when his grievances
were unfiled and unanswered is strengthened by the fact that
Kirkpatrick responded to Braxton's February 23, 2017 appeal
and directed Braxton to file “any complaint that [he] received
directly with the IGP office.” 6 Dkt. No. 1-1 at 21. Dkt. No.
80-3 at 102-03, 129. Braxton testified that “he already filed a
grievance” and, after “waiting a reasonable time period,” he
appealed directly to Defendants. Id. at 112, 130.
While the facts herein are distinguishable from Williams
and Cicio, several courts in this district have applied
Williams in similar scenarios, where the plaintiffs proffered
less compelling evidence to support their contentions. See
Maldonado v. Mandalaywala, No. 9:17-CV-1303 (BKS/
TWD), 2020 WL 1159426, at *17–18 (N.D.N.Y. Feb. 12,
2020) (applying Williams despite the fact that the plaintiff
was not confined in the SHU and did not submit any
contemporaneous correspondence inquiring about the status
of his grievance); see Britt v. Carberry, No. 9:17-CV-0234
(MAD/DEP), 2019 WL 3365766 (N.D.N.Y. Mar. 22, 2019)
(applying Williams where the plaintiff filed grievances, while
in the SHU, with the grievance office, but failed to follow
up or appeal and failed to proffer copies of the grievances
on the motion); Jackson v. Downstate Corr. Facility, No. 16-
CV-0267, 2018 WL 3650136, at *8 (S.D.N.Y. July 31, 2018).
Defendants did not address the issue of unavailability or
Williams and progeny. See Jackson, 2018 WL 3650136,
at *8 (finding the defendants’ failure to address Williams
“disconcerting” given the precedential nature of the case and
the fact that the plaintiff was a pro se litigant). The record,
when viewed in the light most favorable to Braxton, suggests
that his grievances were unfiled and unanswered, creating an
issue of fact as to the availability of administrative remedies
under Williams. See Terry v. Hulse, No. 16-CV-252, 2018 WL
4682784, at *9 (S.D.N.Y. Sept. 28, 2018) (denying summary
judgment where the record contains sufficient detail regarding
the plaintiff's attempts to file grievances) (collecting cases);
see also Thaxton v. Simmons, No. 9:10-CV-1318 (MAD/
RFT), 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013)
(“[A] question of fact exists as to whether [p]laintiff never
filed his initial grievance on April 29, as [d]efendants claim,
or that, as [p]laintiff claims, he filed a timely grievance that
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was lost or tampered with by [d]efendants. Such credibility
assessments are to be resolved by a trier of fact.”).
*8 Accordingly, the undersigned recommends that
Defendants’ Motion for Summary Judgment on this issue be
denied, without prejudice and with the opportunity to renew
by way of an exhaustion hearing, should Defendants request
such a hearing.
B. Eighth Amendment Claims
Defendants move for summary judgment and dismissal of
Braxton's Eighth Amendment claims arguing that there is
no issue of fact concerning Defendants’ alleged violation of
Plaintiff's Eighth Amendment rights. Dkt. No. 80-1 at 6-10.
The Eighth Amendment protects prisoners from “cruel and
unusual punishment” at the hands of prison officials. Wilson
v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble,
429 U.S. 97, 104 (1976). “The Constitution does not mandate
comfortable prisons but neither does it permit inhumane ones,
and it is now settled that the treatment a prisoner receives
in prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994). Allegations of exposure
to ETS or second hand smoke may form the basis for an
Eighth Amendment claim. Helling v. McKinney, 509 U.S. 25,
35 (1993).
“To prevail on [an] Eighth Amendment claim alleging
‘serious medical problems caused by exposure to ETS,’ [a
plaintiff] must ‘prove both the subjective and objective
elements necessary to prove an Eighth Amendment
violation.’ ” Colon v. Drew, 335 Fed. App'x 86, 87 (2d Cir.
2009) (quoting Helling, 509 U.S. at 35). Allegations related
to ETS exposure may involve claims based upon present
harm and claims that the exposure will cause future harm.
Johnson v. Fischer, No. 9:12-CV-0210 (DNH/TWD), 2015
WL 670429, at *9 (N.D.N.Y. Feb. 17, 2015). Here, Plaintiff
alleges that he is suffering from present and will suffer future
harm. See Am. Compl. at ¶ 76; Dkt. No. 80-3 at 70.
1. Objective Element
In cases involving present harm from ETS exposure, the
objective component of the Eighth Amendment analysis
is satisfied with evidence that the plaintiff suffers from
a medical need or condition that is sufficiently serious.
McFadden v. Koenigsmann, No. 18-CV-6684, 2020 WL
2542673, at *3 (W.D.N.Y. May 19, 2020). To be “sufficiently
serious,” the condition must be “a condition of urgency,
one that may produce death, degeneration, or extreme pain.”
Gillespie v. Taylor, No. 9:07-CV-0694 (GLS/GHL), 2009 WL
3165543, at *5 (N.D.N.Y. Sept. 28, 2009) (citations omitted).
“Factors that have been considered include ‘[t]he existence
of an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence
of a medical condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial
pain.’ ” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998).
With respect to future harm, to satisfy the objective element,
a plaintiff must show that he was exposed to unreasonably
high levels of ETS. Davis v. New York, 316 F.3d 93,100
(2d Cir. 2002) (citation omitted). An analysis of this issue
should focus on “whether levels of ETS in the facility
were so high that they violated contemporary standards of
decency.” Grayson v. Courtney, No. 9:16-CV-1118 (GLS/
ATB), 2018 WL 6933296, at *9 (N.D.N.Y. Dec. 3, 2018)
(citation omitted). In Helling, the Supreme Court explained:
*9 determining whether [plaintiff's]
conditions of confinement violate the
Eighth Amendment requires more than
a scientific and statistical inquiry into
the seriousness of the potential harm
and the likelihood that such injury
to health will actually be caused by
exposure to ETS. It also requires
a court to assess whether society
considers the risk that the prisoner
complains of to be so grave that
it violates contemporary standards of
decency to expose anyone unwillingly
to such a risk. In other words, the
prisoner must show that the risk of
which he complains is not one that
today's society chooses to tolerate.
Helling, 509 U.S. at 36 (emphasis in original).
It should be noted however, that the Supreme Court did not
mandate smoke-free prisons. Liggins v. Parker, No. 9:04-
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CV-0966 (NAM/DEP), 2007 WL 2815630, at *17 (N.D.N.Y.
Sept. 25, 2007) (citing Scott v. District of Columbia, 139 F.3d
940, 942 (D.C.Cir.), cert. denied sub nom., Dawson v. District
of Columbia, 525 U.S. 851, 119 S.Ct. 125 (1998)).
Defendants argue that Braxton's medical complaints are
“relatively minor health conditions” that were not caused by
ETS exposure. Dkt. No. 80-1 at 9. Defendants also contend
that Braxton cannot establish an objectively serious risk
of harm because his exposure is “intermittent” and occurs
“primarily at night and is limited to his cell and the hallways
on his block.” Id. at 8-9.
Braxton testified that he suffers from asthma, dizziness,
and blackouts as a result of ETS exposure and proffered
medical records supporting his allegations. See Dkt. No.
1-1 at 8-11; Dkt. No. 83 at 33, 135-36, 138; Dkt. No.
86 at 16-21; Dkt. No. 86-1 at 7-8; Dkt. No. 87 at 4.
According to the record evidence, in June 2009, Plaintiff was
treated at Bellevue Hospital for complaints related to ETS
exposure. Dkt. No. 42-1 at 38. Plaintiff reported palpitations,
lightheadedness, and “fading out” when exposed to cigarette
smoke. Id. In 2016, while in DOCCS’ custody, Plaintiff
was prescribed Albuterol and Nasacort, and claims that the
medication was necessary due to ETS exposure. Dkt. No.
1-1 at 1, 9. In 2017, Plaintiff, complained of respiratory
distress, nose irritation, and “dry eyes” and was treated at
sick call for complaints related to cigarette smoke. Id. at
10-11. The nurse scheduled an appointment with the medical
provider and gave Braxton over-the-counter medications
including “artificial tears” and nasal spray. Id. In June 2017,
Plaintiff requested refills for Albuterol and Nasocort. Id. at
8. In September 2018, Plaintiff submitted a Request for a
Reasonable Accommodation claiming that he has “fade-outs
and/or light-headedness which requires [him] to sit or lie
down.” Dkt. No. 87 at 4. Braxton testified that he still suffers
from “blackouts” twice each week. Dkt. No. 80-3 at 33.
It is undisputed that Braxton is housed in a single occupancy
“six by nine” cell, without a window. Dkt. No. 80-3 at
21-25. Braxton testified that there is no “cross ventilation”
because inmates put tape over the vents to prevent roaches
from entering cells. Id. Braxton estimates that there are
forty-six cells on six tiers in his dormitory and claims that
approximately 276 inmates, including the inmates in cells
on either side of his cell, smoke throughout the night. Id. at
31-33. In addition, sergeants smoke in their areas, in hallways,
and in “hideaways” were cameras cannot detect the smoke.
Id. at 36, 38. Braxton describes the smoke as “intense” and
“constant.” Dkt. No. 80-3 at 33-34.
Defendants have not submitted any evidence contradicting
Braxton's evidence. Considering these facts, a reasonable
factfinder could conclude that Braxton suffered from
“sufficiently serious” medical needs for purposes of the
objective prong of his Eighth Amendment claim. See
Davis, 316 F.3d at 100–01 (holding that allegations that
smoke caused dizziness, difficulty breathing, blackouts, and
respiratory problems are sufficient to create an issue of fact
as whether the plaintiff's Eighth Amendment rights were
violated); see also Colon v. Drew, No. 9:03-CV-1018 (LEK/
DEP), 2011 WL 768979, at *1 (N.D.N.Y. Jan. 21, 2011)
(finding asthma and shortness of breath due to ETS exposure
to be sufficiently serious).
*10 Moreover, Braxton's allegations related to the level
of ETS exposure he endured are not contradicted by any
documentary or testimonial evidence. Viewing the evidence
in the light most favorable to Plaintiff, the Court finds genuine
issues of material fact as to whether Plaintiff was exposed
to unreasonably dangerous levels of ETS that violated
contemporary standards of decency. See Davis, 316 F.3d at
101; see Warren v. Keane, 937 F.Supp. 301, 305 (S.D.N.Y.
1996), aff'd and remanded, 196 F.3d 330 (2d Cir. 1999)
(finding the allegations sufficient to satisfy the objective
element as the plaintiffs described an environment permeated
with smoke resulting from, inter alia, under-enforcement of
inadequate smoking rules and poor ventilation); McPherson v.
Coombe, 29 F.Supp. 2d 141, 145 (W.D.N.Y. 1998) (reasoning
that a fact-finder could conclude that the plaintiff faced a
risk of future harm where the plaintiff was incarcerated in
a poorly ventilated housing unit with 41 other inmates with
smoking permitted in all areas of the dormitory); see Colon v.
Drew, 335 Fed App'x 86, 88 (2d Cir. 2009) (affirming district
court denial of summary judgment on Eighth Amendment
ETS claims reasoning that asthma and other minor health
conditions, when viewed with allegations of poor ventilation
and chain smoking, was sufficient to establish Helling's
objective requirement).
2. Subjective Element
To satisfy the subjective requirement of an Eighth
Amendment claim, the plaintiff must show that the defendant
was deliberately indifferent to the plaintiff's medical needs or
safety in exposing him to ETS, “determined in light of the
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prison authorities’ current attitudes and conduct[.]” Helling,
509 U.S. at 36. When analyzing deliberate indifference, the
Court will consider the adoption of a smoking policy. See
Candelaria v. Greifinger, No. 96-CV-0017 (RSP/DS), 1997
WL 176314, at *6 (N.D.N.Y. Apr. 9, 1997) (citation omitted);
Colon v. Sawyer, No. 9:03-CV-1018 (LEK/DEP), 2006 WL
721763, at *10 (N.D.N.Y. Mar. 20, 2006) (“Evidence of
ongoing policies, notwithstanding plaintiff's claim that they
are not rigidly enforced, somewhat undermines any claim
of deliberate indifference.”); see also McPherson, 2002 WL
35653924, at *4 (“The mere existence of a DOCCS smoking
policy, without more, serves to demonstrate that defendants
are ‘aware of facts which can lead to an inference that a risk
of harm exists [and] facts exist where a jury can find that they
have drawn the inference.’ ”) (citation omitted).
It is undisputed that, in January 2018, DOCCS adopted a
Smoke Free Policy prohibiting smoking indoors by inmates
and staff. Denis v. N.Y.S. Dep't of Corr. Servs., No. 05
CIV.4495, 2006 WL 217926, at *19 (S.D.N.Y. Jan. 30,
2006). Indeed, Plaintiff admits that Clinton C.F. adopted
the non-smoking policy. Dkt. No. 80-3 at 42-46. Braxton
testified however, that the policy was not enforced and, in
fact, sergeants smoked indoors, in violation of the policy.
Braxton also maintains that some officers issued only verbal
reprimands. Dkt. No. 80-3 at 42-46. Braxton claims that
Defendants were aware that the policy was not being enforced
because they received his grievances, appeals, and Proposal
and disregarded his complaints of “under-enforcement” and
ignored his pleas regarding the risks to his “health, safety, and
well-being.” Id. at 1, 3, 4-5, 6-7, 12, 14-19.
Defendants cite to several cases in support of the conclusion
that the “imperfect enforcement of a smoking policy alone
may not support a finding of deliberate indifference.” See Dkt.
No. 80-1 at 9. The cases are readily distinguishable from the
facts at hand.
In Enigwe v. Zenk, No. 03-CV-854, 2007 WL 2713849
(E.D.N.Y. Sept. 14, 2007), the court awarded summary
judgment to the defendants because the plaintiff failed to
proffer evidence that he suffered medical issues related to
ETS exposure and failed to demonstrate that he informed
officials that the non-smoking policy was being violated.
Id. at *3-6. In support of the motion, the defendants
submitted a copy of the facility handbook and medical records
establishing that the plaintiff never informed the defendants
that he was suffering from conditions related to ETS exposure
and never sought medical treatment for conditions related to
ETS. Id.
*11 In Johnson v. Goord, No. 01 CIV. 9587, 2005
WL 2811776, at *6 (S.D.N.Y. Oct. 27, 2005), the court
reasoned that summary judgment was appropriate because
the defendant submitted evidence in support of the motion
including an affidavit with medical opinions related to the
plaintiff's medical condition and an affidavit related to the
smoking policy. 7
In Davidson v. Desai, No. 03-CV-121S, 2019 WL 125999, at
*20-21, 32 (W.D.N.Y. Jan. 8, 2019), aff'd, 964 F.3d 122 (2d
Cir. 2020), the Court held a bench trial and received testimony
from the plaintiff, a corrections officer, the Superintendent,
and medical personnel, related to the implementation of a
Smoke-Free Policy at Elmira C.F. and concluded that the
evidence established that the defendants implemented a non-
smoking policy in good faith.
In this case, Defendants’ motion lacks any documentary
evidence or sworn testimony related to Braxton's medical
history, the smoking policies, the enforcement of the policies,
or evidence of disciplinary actions taken against inmates
who violate the policies. As discussed supra, as the movants
on a motion for summary judgment, Defendants have the
burden of proving the absence of an issue of fact as to the
Eighth Amendment claims. After carefully considering the
matter, the Court finds that genuine issues of material fact
exist with regard to the subjective element of the Eighth
Amendment analysis. See McPherson v. Coombe, No. 95-
CV-6460, 2002 WL 35653924, at *3 (W.D.N.Y. Jan. 2, 2002)
(denying summary judgment where the defendants failed
to come forward with evidence demonstrating that smoking
policies were implemented) (citations omitted); but cf. Islam
v. Connolly, No. 07 CIV. 3225, 2011 WL 723568, at *9
(S.D.N.Y. Feb. 16, 2011) (dismissing claims related to ETS
where the defendant submitted evidence including a copy
of the policies, monthly reports of disciplinary actions, and
log books documenting warnings issued to inmates); Denis,
2006 WL 217926, at *20 (finding issues of fact related
to the efficacy of the smoking policy where the plaintiff
testified that smoking was pervasive in housing units and
in inmate bathrooms); see Gill v. Smith, 283 F.Supp.2d 763,
769 (N.D.N.Y. 2003) (denying summary judgment where the
plaintiff made requests to the defendant to stop smoking).
Thus, Defendants’ motion, on this ground, should be denied.
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C. Personal Involvement
Defendants argue that Braxton has failed to establish that
Defendants were personally involved in the alleged Eighth
Amendment violations. See Dkt. No. 80-1 at 10.
“Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
[section] 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880,
885 (2d Cir. 1991)). In order to prevail on a section 1983
cause of action against an individual, a plaintiff must show “a
tangible connection between the acts of a defendant and the
injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.
1986). “To be sufficient before the law, a complaint must state
precisely who did what and how such behavior is actionable
under law.” Hendrickson v. U.S. Attorney Gen., 91-CV-8135,
1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
*12 If the defendant is a supervisory official, a mere
“linkage” to the unlawful conduct through “the prison chain
of command” (i.e., under the doctrine of respondeat superior)
is insufficient to show his or her personal involvement in
that unlawful conduct. See Polk Cnty. v. Dodson, 454 U.S.
312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435
(2d Cir. 2003); Wright, 21 F.3d at 501. In other words,
supervisory officials may not be held liable merely because
they held a position of authority. Black v. Coughlin, 76 F.3d
72, 74 (2d Cir. 1996). Prior to Iqbal, the Second Circuit held
that supervisory personnel may be considered “personally
involved” only if they (1) directly participated in the alleged
constitutional violation, (2) failed to remedy that violation
after learning of it through a report or appeal, (3) created,
or allowed to continue, a policy or custom under which
the violation occurred, (4) had been grossly negligent in
managing subordinates who caused the violation, or (5)
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that the violation
was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d
Cir. 1986)). 8 Here, Plaintiff alleges that Defendants were
personally involved pursuant to the second and fourth Colon
factors. 9 See Am. Compl. at ¶¶ 57, 58.
Braxton alleges that Defendants failed to remedy the
violations after receiving his appeals, grievances, letters,
and Proposal. See Am. Compl. at ¶¶ 57, 58. Allegations
that a supervisory defendant received letters and grievances,
without more, is insufficient to establish personal
involvement. Woods v. Goord, No. 01 Civ. 3255, 2002 WL
731691, *7 (S.D.N.Y. Apr. 23. 2002); Johnson v. Wright, 234
F.Supp.2d 352, 363 (S.D.N.Y. 2002) (“[I]f mere receipt of
a letter or similar complaint were enough, without more, to
constitute personal involvement, it would result in liability
merely for being a supervisor, which is contrary to the
black-letter law that § 1983 does not impose respondeat
superior liability.”) (citations omitted); Zaire v. Artuz, No.
99 CIV. 9817, 2003 WL 230868, at *7 (S.D.N.Y. Feb. 3,
2003) (reasoning that mailing two grievances does not, by
itself, establish personal involvement on the part of the
defendant in ETS exposure). “[E]ven if a complaint or letter
is directly addressed to the defendant and the defendant
becomes subjectively aware of the alleged problem, if the
defendant lacks the authority to remedy or take action with
respect to any constitutional violation, personal involvement
cannot be found.” Eldridge v. Williams, No. 10 CIV. 0423,
2013 WL 4005499, at *5 (S.D.N.Y. July 30, 2013) (internal
quotation marks and citations omitted).
Under the fourth Colon factor, a plaintiff must establish
that the defendants were “grossly negligent in supervising
subordinates who committed the wrongful acts.” Colon, 58
F.3d at 873. The Second Circuit has “defined gross negligence
as conduct that demonstrates a ‘heedless indifference to
consequences to another,’ meaning the ‘kind of conduct ...
where [the] defendant has reason to know of facts creating
a high degree of risk of physical harm to another and
deliberately acts or fails to act in conscious disregard or
indifference to that risk.’ ” Estate of Chamberlain, 2020 WL
2820176, at *13 (quoting Bryant v. Maffucci, 923 F.2d 979,
985 (2d Cir. 1991)).
*13 In this case, Braxton wrote letters to each Defendant
in April 2017 and provided copies of his February 2017
grievance and a copy of his proposal for a non-smoking
dormitory. Dkt. No. 80-3 at 68, 112; Dkt. No. 1-1 at
23-29. Defendants do not confirm or deny receipt of the
letters. Because “liability may be premised upon grossly
negligent supervision of others, personally ignoring evidence
of constitutional wrongdoings or creating a policy or custom
under which unconstitutional practices occurred, or allowing
the continuance of such a policy or custom,” Defendants
have not established that they are entitled to judgment as a
matter of law. Johnson v. Goord, No. 01 CIV. 9587, 2004 WL
2199500, at *17 (S.D.N.Y. Sept. 29, 2004) (denying motion
for the supervisory defendants on the ETS exposure claim for
failure to demonstrate “entitlement to summary judgment”).
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In this respect, Defendants failed to produce any documentary
evidence or sworn affidavits/testimony demonstrating the
absence of genuine issues of material fact.
As discussed supra, “where the movant fail[s] to fulfill
its initial burden of providing admissible evidence of the
material facts entitling it to summary judgment, summary
judgment must be denied, even if no opposing evidentiary
matter is presented, for the non-movant is not required to
rebut an insufficient showing.” Giannullo v. City of New York,
322 F.3d 139, 140–41 (2d Cir. 2003) (citations and internal
quotation marks omitted). Because Defendants moved for
summary judgment and have not met their initial burden, the
burden does not shift to Plaintiff to raise an issue of material
fact. See Harvey v. Farber, No. 9:09-CV-00152 (MAD/
GHL), 2011 WL 5373756, at *6 (N.D.N.Y. Sept. 29, 2011)
report and recommendation adopted in part, rejected in part,
2011 WL 5373736 (N.D.N.Y. Nov. 4, 2011); see also Gilmore
v. Fitzmaurice, No. 9:16-CV-1300 (DNH/TWD), 2018 WL
4178227, at *9 (N.D.N.Y. May 31, 2018) (“[A]lthough not
necessarily dispositive, the summary judgment record lacks
a declaration or affidavit from [the defendant] denying his
alleged personal involvement.”).
Accordingly, it is recommended that Defendants’ motion, on
this ground, be denied.
D. Qualified Immunity
In the alternative, Defendants argue that they are entitled to
qualified immunity on the Eighth Amendment ETS claim. See
Dkt. No. 80-1 at 11-12.
Qualified immunity shields federal and state officials from
suit “ ‘unless [1] the official violated a statutory or
constitutional right that [2] was clearly established at the time
of the challenged conduct.’ ” Terebesi v. Torreso, 764 F.3d
217, 230 (2d Cir. 2014) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)). “A right is ‘clearly established’ if ‘it would
be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.’ ” Beckles v. City of New York,
492 Fed. App'x 181, 182 (2d Cir. 2012) (quoting Saucier v.
Katz, 533 U.S. 194, 202 (2001)).
To determine whether a state official is entitled to qualified
immunity for acts taken during the course of his or her
employment, a reviewing court is to determine: “ ‘(1)
whether plaintiff has shown facts making out violation of a
constitutional right; (2) if so, whether that right was clearly
established; and (3) even if the right was clearly established,
whether it was objectively reasonable for the [official] to
believe the conduct at issue was lawful.’ ” Phillips v. Wright,
553 Fed. App'x 16, 17 (2d Cir. 2014) (quoting Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)). “Even
if the right at issue was clearly established in certain respects,
however, an officer is still entitled to qualified immunity
if ‘officers of reasonable competence could disagree’ on
the legality of the action at issue in its particular factual
context.” Doe v. Lima, 270 F.Supp.3d 684, 710 (S.D.N.Y.
2017) (citations omitted), aff'd sub nom. Doe v. Cappiello, 758
Fed. App'x 181 (2d Cir. 2019).
*14 Here, the record contains genuine issues of material fact
as to the Eighth Amendment claims. As such, the first prong
of the analysis has been met.
With respect to the second prong, “after Helling, it was clearly
established that prison officials could violate the Eighth
Amendment through deliberate indifference to an inmate's
exposure to levels of ETS that posed an unreasonable risk of
future harm to the inmate's health.” Warren v. Keane, 196 F.3d
330, 333 (2d Cir. 1999). “When the contours of a plaintiff's
rights were clearly defined at the time of the underlying
incident, a public official may still assert the defense of
qualified immunity if the official reasonably believed that
his or her actions did not violate the plaintiff's rights.” Scott
v. Hollins, No. 96-CV-0351C, 2006 WL 1994757, at *9
(W.D.N.Y. July 14, 2006) (citing Warren, 196 F.3d at 333).
Defendants argue that it was objectively reasonable to believe
that the “imperfect enforcement of Clinton's no-smoking
policy did not violate Plaintiff's constitutional rights.” Dkt.
No. 80-1 at 11-12. Assuming Braxton's allegations to be true,
despite the existence of a no-smoking policy, he was exposed
to unreasonably high levels of ETS.
Therefore, the Court recommends denying Defendants’
motion, on this ground. See Shepherd v. Hogan, 181
Fed. App'x 93, 97 (2d Cir. 2006) (holding that qualified
immunity is inappropriate as to ETS claims under the Eighth
Amendment).
IV. CONCLUSION
WHEREFORE, based on the findings set forth above, it is
hereby:
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RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 80) be DENIED; and it is further
ORDERED that copies of this Report-Recommendation and
Order be served on the parties in accordance with the Local
Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 10 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 Human
Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2020 WL 5752333
Footnotes
1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)
and N.D.N.Y.L.R. 72.3(c).
2 Defendants filed a Statement of Material Facts. Braxton did not respond but annexed exhibits to his
opposition. Dkt. Nos. 86-1 and 87. The parties do not object or challenge the authenticity of the documents.
Therefore, to the extent that the “facts” asserted by the parties are supported by the record, the undersigned
will consider the facts and relevant exhibits/documents in the context of the within motion. See U.S. v. Painting
known as Hannibal, No. 07-CV-1511, 2010 WL 2102484, at *1, n.2 (S.D.N.Y. May 18, 2010) (citing Daniel
v. Unum Provident Corp., 261 F. App'x 316, 319 (2d Cir. 2008) (“[A] party is not required to authenticate
documents on a summary judgment motion where, as here, authenticity is not challenged by the other party)).
In light of the procedural posture of the case, the following recitation is derived from the record now before
the Court, with all inferences drawn and ambiguities resolved in non-moving party's favor. Terry v. Ashcroft,
336 F.3d 128, 137 (2d Cir. 2003).
3 In the Answer, Defendants pleaded, inter alia, the affirmative defense that Braxton failed to exhaust his
administrative remedies. Dkt. No. 46 at ¶ 100.
4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been
provided to Plaintiff.
5 In the alternative, Defendants argue, without citing to supporting caselaw, that even assuming Plaintiff
submitted grievances, Plaintiff failed to exhaust because he submitted his February 10, 2017 appeal to “select
members of the CORC, rather than submitted the appeal directly to the IGRC for forwarding to CORC. See
Dkt. No. 80-1 at 6. Because Plaintiff concedes that he did not exhaust his administrative remedies, the Court
need not address the issue of whether an appeal sent directly to CORC members complies with the IGP.
6 During Plaintiff's deposition, defense counsel produced a copy of the memorandum. Dkt. No. 80-3 at 102.
However, the memorandum was not submitted in support of the motion for summary judgment and is not
included anywhere in the record.
7 The court was presented with the second motion for summary judgment related to ETS having denied the
defendants’ prior motion because the defendants failed to present evidence demonstrating that the plaintiffs’
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exposure to ETS did not present a sufficiently serious risk to their present or future health so as to rise to the
level of an Eighth Amendment violation. Johnson, 2005 WL 2811776, at *1.
8 The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the standards
in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir.
2013) see e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) (expressing “no view on the extent to
which [Iqbal] may have heightened the requirements for showing a supervisor's personal involvement with
respect to certain constitutional violations[.]”) (citing Grullon, 720 F.3d at 139). Courts in this District have
concluded that “the Colon analysis still applies where the constitutional claim asserted does not require a
showing of discriminatory intent, ‘insofar as it is consistent with the particular constitutional provision alleged
to have been violated.’ ” Montanez v. City of Syracuse, No. 16-CV-0550, 2019 WL 315058, *18 (N.D.N.Y.
Jan. 23, 2019) (internal quotation marks and citation omitted). Here, Plaintiff's Eighth amendment deliberate
indifference claims do not require a showing of discriminatory intent. Therefore, the Court will apply the Colon
factors. Santana v. Racette, No. 9:17-CV-00102 (BKS/ML), 2020 WL 3412728, at *8 (N.D.N.Y. June 22,
2020) (citation omitted).
9 Defendants do not address the fourth Colon factor in their motion for summary judgment.
10 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you
to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday,
Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(c).
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Braxton v. Bruen, Not Reported in Fed. Supp. (2020)
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2020 WL 5751172
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Benjamin BRAXTON, a/k/
a Obed/Edom Braxton, Plaintiff,
v.
Kevin BRUEN, Deputy Commissioner
of Counsel, et al., Defendants.
9:17-cv-1346 (BKS/ML)
|
Signed 09/25/2020
Attorneys and Law Firms
Plaintiff pro se: Benjamin Braxton, 16-A-2314, Clinton
Correctional Facility, P.O. Box 2000, Dannemora, NY 12929.
For Defendants: Hon. Letitia James, Joshua E. McMahon,
Esq., New York State Attorney General, The Capitol, Albany,
NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, United States District Judge:
*1 Plaintiff Benjamin Braxton, a New York State inmate,
commenced this civil rights action asserting claims under 42
U.S.C. § 1983 based on his alleged exposure to unreasonable
levels of secondhand smoke during his incarceration at
Clinton Correctional Facility. (Dkt. No. 42). On February
21, 2020, Defendants filed a motion for summary judgment.
(Dkt. No. 80). Plaintiff has responded in opposition to the
motion. (Dkt. Nos. 86, 87). This matter was referred to United
States Magistrate Judge Miroslav Lovric who, on August
24, 2020, issued a Report-Recommendation recommending
that Defendants’ motion be denied. (Dkt. No. 88). Magistrate
Judge Lovric advised the parties that, under 28 U.S.C. §
636(b)(1), they had fourteen days within which to file written
objections to the report, and that the failure to object to the
report within fourteen days would preclude appellate review.
(Dkt. No. 88, at 31).
No objections have been filed. As no objections to the
Report-Recommendation have been filed, and the time
for filing objections has expired, the Court reviews the
Report-Recommendation for clear error. See Petersen v.
Astrue, 2 F. Supp. 3d 223, 229 (N.D.N.Y. 2012) (citing
Fed. R. Civ. P. 72(b), Advisory Committee Notes to 1983
Amendment). Having reviewed the Report-Recommendation
for clear error and found none, the Court adopts the Report-
Recommendation in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 88)
is ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 80) is DENIED; and it is further
ORDERED that the Clerk serve a copy of this Order upon
the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 5751172
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Campbell v. Prue, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 4635708
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Troy CAMPBELL, Plaintiff,
v.
Joseph PRUE and David Hallenbeck, Defendants.
No. 9:16-CV-0004 (MAD/CFH)
|
Signed 07/03/2018
Attorneys and Law Firms
Troy Campbell, 13-A-0601, Orleans Correctional Facility,
3531 Gaines Basin Road, Albion, New York 14411, Plaintiff
pro se.
Attorney General for the State of New York, OF COUNSEL:
KEITH J. STARLIN, ESQ., Assistant Attorney General, The
Capitol, Albany, New York 12224, Attorney for defendants.
REPORT-RECOMMENDATION AND ORDER 1
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Troy Campbell (“plaintiff”), an inmate
who was, at all relevant times, in the custody of the New
York Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983,
alleging that Superintendent (“Supt.”) David Hallenbeck and
Corrections Officer (“C.O.”) Joseph Prue – who, at all
relevant times, were employed at Hale Creek Correctional
Facility (“Hale Creek”) – violated his constitutional rights
under the Eighth Amendment. See Dkt. No. 17 (“Sec. Am.
Compl.”). Presently pending before the Court is defendants'
Motion for Summary Judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Dkt. No.
48. Plaintiff opposed defendants' motion, 2 and defendants
filed a reply. Dkt. Nos. 51, 52. For the following reasons, it is
recommended that defendants' motion be granted.
I. Background
A. Plaintiff's Recitation of the Facts
The facts are related herein in the light most favorable to
plaintiff as the nonmoving party. See subsection II.A. infra.
Plaintiff alleges that Supt. Hallenbeck and C.O. Prue were
aware that non-party inmate Deandre Moore was a “violent
person and ... affiliated with the Bloods.” Sec. Am. Compl.
at 3. Plaintiff informed Supt. Hallenbeck and C.O. Prue
“numerous times” that inmate Moore threatened and harassed
him, and that inmate Moore stated that “he was about to cut
[plaintiff].” Id. Supt. Hallenbeck and C.O. Prue told plaintiff
that “everything [was] going to be alright” and that nothing
would happen to him. Id. At an unspecified time, inmate
Moore assaulted plaintiff with a knife. Id. at 5. Plaintiff
sustained injuries to the left side of his neck, and received
fourteen stitches. Id.
B. Defendants' Recitation of the Facts
In support of their Motion for Summary Judgment, defendants
filed a Statement of Material Facts. 3 Plaintiff transferred
to Hale Creek on June 1, 2015. Dkt. No. 48-1 ¶ 70. On
September 10, 2015, inmate Moore interrupted plaintiff's
conversation with another non-party inmate in the inmate
cafeteria, and told plaintiff to “shut the F up,” and called
him a “pussy.” Id. ¶¶ 14, 16. Plaintiff called inmate Moore a
“pussy,” and inmate Moore stated, “we're going to see who's
a pussy when we get back to the dorm.” Id. ¶ 16. Prior to
September 10, 2015, plaintiff had not have any confrontations
or arguments with inmate Moore. Id. ¶¶ 74, 75. Plaintiff
contends that on his return to the dorm, he spoke with a
non-party DOCCS official named “Soto,” and asked him
to inform Supt. Hallenbeck about his verbal argument with
inmate Moore. Id. ¶ 19. At his deposition, plaintiff testified
that he informed Sergeant (“Sgt.”) Soto that during the verbal
argument, inmate Moore stated that “he was going to cut
[plaintiff],” and he asked Sgt. Soto to get Supt. Hallenbeck so
that plaintiff could speak with him. Id. ¶ 21.
*2 After leaving the inmate cafeteria, plaintiff and inmate
Moore returned to their shared housing unit. Dkt. No. 48-1 ¶
23. Although they walked within the same group of inmates,
plaintiff and inmate Moore did not interact. Id. ¶ 24. On
that day, C.O. Prue was stationed at the main door leading
into the C-2 housing unit. Id. ¶ 25. Plaintiff contends that
he informed C.O. Prue that inmate Moore stated that he was
“going to cut [him],” and “about the situation” with inmate
Moore. Id. ¶ 26. Plaintiff claims that C.O. Prue told him
“don't worry about it,” “[a]in't nothing going to happen,”
“these guys want to go home – do their program and go
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home.” Id. ¶ 27. Plaintiff testified at his deposition that he
did not have any further conversation with C.O. Prue. Id. ¶
28. After plaintiff returned to his cube, he observed C.O. Prue
in the C-2 housing unit dayroom/television room looking at
the television. Id. ¶ 30. Soon after, inmate Moore called out
to plaintiff from the doorway of the housing unit's restroom.
Id. ¶ 32. Plaintiff voluntarily left his cube, and entered the
restroom with inmate Moore. Id. ¶ 33. Plaintiff was in the
bathroom with inmate Moore for approximately three seconds
when inmate Moore cut him with a sharp object. Id. ¶ 35.
Another inmate immediately intervened and placed himself
between plaintiff and inmate Moore, at which time plaintiff
hit inmate Moore with a garbage can lid. Id. ¶ 36.
After the altercation, plaintiff remained in the inmate
restroom and wiped the blood away from his cut. Dkt. No.
48-1 ¶ 38. Plaintiff then attended his afternoon Alcohol and
Substance Abuse Treatment (“ASAT”) program class without
informing C.O. Prue or any other Hale Creek official about
the altercation, his injuries, or that he wanted protection from
inmate Moore. Id. ¶¶ 39, 41. The ASAT teacher questioned
why plaintiff had band aids on his neck, and plaintiff informed
the teacher that he had been hurt playing basketball. Id. ¶ 42.
Plaintiff did not mention the altercation with inmate Moore,
or that he had been cut by a knife. Id. Inmate Moore attended
the same ASAT class as plaintiff, and plaintiff chose to move
his seat during the class to sit with inmate Moore. Id. ¶¶
43, 44. Plaintiff and inmate Moore spoke with each other
without any conflict. Id. ¶ 45. The ASAT teacher eventually
separated plaintiff and inmate Moore once she noticed that
they were not talking about school work. Id. ¶ 46. Plaintiff
then asked for permission to use the bathroom and speak with
a corrections officer. Id. ¶ 47. Plaintiff spoke with non-party
C.O. Borner, and informed him that he had scratched himself
on a locker in his dorm and did not know he had a visible
scratch until other inmates told him. Id. ¶ 48. Plaintiff did
not inform C.O. Borner of the altercation with inmate Moore.
Id. ¶ 49. C.O. Borner called a DOCCS nurse and Sgt. Soto
to report the injury, and sent plaintiff to the infirmary. Id. ¶
50. Plaintiff told DOCCS officials at the infirmary that he
had cut himself on a locker inside his cube. Id. ¶ 51. Plaintiff
signed an “Inmate Injury Report,” which stated that “[t]he
cause of my cut that my locker inside my cube cut me when
I was going for my net bag. I cut myself on the locker inside
my cube but everything good I'm alright.” Id. ¶ 52. DOCCS
officials sent plaintiff to Albany Medical Center for further
medical treatment. Id. ¶ 53. Hale Creek began an investigation
into the source of the cut, and interviewed plaintiff about
what had happened. Id. ¶ 54. During the interview, plaintiff
maintained to Sgt. Soto that he had cut himself opening a
locker, but after further questioning, plaintiff admitted that
he had been involved in an altercation with inmate Moore.
Id. ¶ 56. DOCCS officials also interviewed inmate Moore,
and discovered that he had sustained superficial injuries in the
September 10, 2015 altercation. Id. ¶ 57.
Pursuant to the investigation, plaintiff submitted a “Free
Will Statement,” which made no mention that he had
ever requested protection from inmate Moore prior to the
September 10, 2015 altercation or had informed anyone of an
alleged threat to him by inmate Moore. Dkt. No. 48-1 ¶ 59.
Plaintiff and inmate Moore were both charged with violating
DOCCS inmate rules, and plaintiff was issued a misbehavior
report charging him with fighting (100.13). Id. ¶¶ 60, 61.
On September 11, 2015, plaintiff was transferred to Marcy
Correctional Facility where he remained until February 4,
2016. Id. ¶¶ 63, 64. On September 16, 2015, a Tier III
Superintendent's hearing was held at Marcy regarding the
charges stemming from the September 10, 2015 altercation.
Id. ¶ 65. During plaintiff's testimony, he did not mention that
he told Sgt. Soto, C.O. Prue, Supt. Hallenbeck, or any other
DOCCS official about the September 10, 2015 lunchtime
verbal argument with inmate Moore, or any alleged threats
by inmate Moore. Id. ¶ 67. He testified that he did not expect
inmate Moore to attack him on September 10, 2015, did not
mention inmate Moore's alleged threat to “cut” or injure him,
and testified that when he entered the bathroom, he did not
believe that there was going to be any physical violence. Id. ¶
68. At the conclusion of the hearing, the hearing officer found
plaintiff guilty and sentenced him to seven days of pre-hearing
confinement that he had already served, as well as mandatory
counseling. Id. ¶ 69.
II. Discussion 4
A. Legal Standards
1. Summary Judgment Standard
*3 “A court shall grant summary judgment 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 has the burden of
showing the absence of disputed material facts by providing
the Court with portions of “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
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affidavits, if any,” which support the motion. FED. R. CIV.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it may
affect the outcome of the case as determined by substantive
law, such that “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In
determining whether summary judgment is appropriate, [the
Court will] resolve all ambiguities and draw all reasonable
inferences against the moving party.” Skubel v. Fuoroli, 113
F.3d 330, 334 (2d Cir. 1997).
To avoid summary judgment, a non-moving party “must do
more than simply show that there is some metaphysical doubt
as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19
(2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986) ) (internal quotation marks omitted). A
non-moving party must support such assertions by evidence
showing the existence of a genuine issue of material fact. See
id. “When no rational jury could find in favor of the non-
moving party because the evidence to support is so slight,
there is no genuine issue of material fact and a grant of
summary judgment is proper.” Gallo v. Prudential Services,
Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit has stated,
[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 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 and footnote omitted); see also Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).
2. N.D.N.Y Local Rule 7.1(a)(3)
Local Rule 7.1(a)(3) requires a party moving for summary
judgment to file and serve a Statement of Material Facts.
See N.D.N.Y. L.R. 7.1(a)(3). “The Statement of Material
Facts shall set forth, in numbered paragraphs, each material
fact about which the moving party contends there exists no
genuine issue.” Id. The opposing party is required to file
a response to the Statement of Material facts “admitting
and/or denying each of the movant's assertions in matching
numbered paragraphs.” Id. “The Court shall deem admitted
any properly supported facts set forth in the Statement of
Material Facts that the opposing party does not specifically
controvert.” Id. (emphasis omitted).
Defendants argue that because plaintiff has failed to file a
response to their Statement of Material Facts, the facts set
forth therein must be deemed admitted. See Dkt. No. 52
(“Def. Reply”) at 4-5. Thus, defendants contend that “[g]iven
the dispositive nature of those facts, plaintiff has clearly
failed to raise any genuine, triable question of relevant fact
as to the claims covered by defendants' motion ... and those
claims should be dismissed.” Id. at 5. The undersigned is
not required to “perform an independent review of the record
to find proof of a factual dispute.” Prestopnik v. Whelan,
253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (concluding that
the “plaintiff's suggestion that the transcript and videotape
of the [incident] be reviewed to identify support for her
Statement of Material Facts Not in Dispute does not cure
her failure to comply with Rule 7.1(a)(3).”). Although the
defendant argues, and the Local Rules provide, that the Court
shall deem admitted any facts the nonmoving party fails to
“specifically controvert,” pro se plaintiffs are afforded special
solicitude in this District and within the Second Circuit.
N.D.N.Y. L.R. 7.1(a)(3); Def. Reply at 4-5; see subsection
II.A. supra. Accordingly, in deference to plaintiff's pro se
status, the Court will independently review the record when
evaluating defendants' Motion for Summary Judgment, and
“treat plaintiff's opposition as a response to” defendants'
Statement of Material Facts. Johnson v. Lew, No. 1:13-
CV-1072 (GTS/CFH), 2017 WL 3822047, at *2 (N.D.N.Y.
Aug. 30, 2017) (“Out of special solicitude to Plaintiff as a
pro se civil rights litigant, however, the Court will treat his
opposition as a response to Defendant's Rule 7.1 Statement,
carefully reviewing it for any record-supported disputation of
Defendant's Rule 7.1 Statement.”); see Perry v. Ogdensburg
Corr. Facility, No. 9:10-CV-1033 (LEK/TWD), 2016 WL
3004658, at *1 (N.D.N.Y. May 24, 2016) (determining that
“although [p]laintiff failed to respond to the statement of
material facts filed by [d]efendants as required under Local
Rule 7.1(a)(3), the Court would invoke its discretion to review
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the entire record when evaluating the parties' respective
Motions for summary judgment.”).
B. Exhaustion
*4 As a threshold matter, defendants argue that plaintiff
has failed to exhaust his administrative remedies. See Dkt.
No. 48-17 (“Def. Mem. of Law”) at 6-13. Plaintiff contends
that he filed a grievance concerning the September 10,
2015 incident while housed at Marcy, but “they denied [his]
grievance saying that [he] couldn't file[ ] a grievance at
Marcy because the incident didn't happen there[.]”. Dkt. No.
51 (“Pl. Opp.”) at 5-6. It is undisputed that on September
11, 2015, plaintiff was transferred to Marcy where he
remained until February 4, 2016. Dkt. No. 48-1 ¶ ¶ 141,
142. Defendants contend that during that time period, plaintiff
did not file any grievances to the Marcy Inmate Grievance
Resolution Committee (“IGRC”) related to claims against
Supt. Hallenbeck or C.O. Prue, nor did send such grievances
to the Hale Creek IGRC. Id. ¶¶ 144, 145.
The Prison Litigation Reform Act (“PLRA”) requires that a
prisoner exhaust any administrative remedies available to him
or her before bringing an action for claims arising out of his or
her incarceration. See Porter v. Nussle, 534 U.S. 516, 524, 122
S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Woodford v. Ngo,
548 U.S. 81, 82, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
The 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, 534 U.S. at 532, 122 S.Ct.
983. Further, the exhaustion requirement applies even where
the prisoner seeks relief not available in the administrative
grievance process, such as monetary damages. Id. at 524, 122
S.Ct. 983. 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 or she is incarcerated. See Jones v. Bock, 549 U.S. 199,
218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation
omitted).
Although the Supreme Court has deemed exhaustion
mandatory, the Second Circuit has recognized that “certain
caveats apply.” Ruggiero v. Cty. of Orange, 467 F.3d
170, 175 (2d Cir. 2006) (citation omitted). The Supreme
Court recently held that “[c]ourts may not engraft an
unwritten ‘special circumstances’ exception onto the PLRA's
exhaustion requirement.” Ross v. Blake, ––– U.S. ––––, 136
S.Ct. 1850, 1862, 195 L.Ed.2d 117 (2016). Thus, the “special
circumstances” exception in Hemphill v. New York, 680 F.3d
680, 686 (2d Cir. 2004) is no longer consistent with the
statutory requirements of the PLRA. Williams v. Priatno, 829
F.3d 118, 123 (2d Cir. 2016). 5
Although Ross eliminates the “special circumstances”
exception, courts must still consider the PLRA's “textual
exception to mandatory exhaustion.” Ross, 136 S.Ct. at
1858. Under this exception, courts must determine whether
administrative remedies were “available” to a prisoner. Id.
The Supreme Court identified three circumstances where
administrative remedies may be unavailable to a prisoner.
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. at 1859 (citing Booth v. Churner, 532 U.S.
731, 736, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)
). “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 1860.
1. Did Plaintiff Exhaust his Administrative Remedies? 6
*5 In support of their motion, defendants have proffered
the declarations of Inmate Grievance Program Supervisor
(“IGPS”) Gregory Wesley (Hale Creek), IGPS Erin Pfendler
(Marcy), and Assistant Director of the DOCCS Inmate
Grievance Program Rachael Seguin. See Dkt. Nos. 48-4
(“Wesley Decl.”); 48-6 (“Pfendler Decl.”); 48-8 (“Seguin
Decl.”). Both IGPS Wesley and IGPS Pfendler declared
that plaintiff did not file any grievances (1) alleging Supt.
Hallenbeck or C.O. Prue failed to protect him from an attack
by another inmate; (2) concerning an attack on him by another
inmate; or (3) regarding alleged threats against him by another
inmate. See Wesley Decl. ¶ 20; Pfendler Decl. ¶ 20. Moreover,
Ms. Seguin declared that plaintiff never filed an appeal to
CORC for any grievances he filed while housed at either
Hale Creek or Marcy. See Seguin Decl. ¶ 20. Plaintiff has not
proffered any evidence that he filed a grievance relating to
the September 10, 2015 incident, or otherwise exhausted his
administrative remedies. Although he alleges that he filed a
grievance at Marcy, plaintiff does not state when he filed such
grievance or whether that grievance contained allegations
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against Supt. Hallenbeck and C.O. Prue. See Pl. Opp. at
5-6. Further, plaintiff has not provided a copy of the alleged
grievance or the Marcy IGRC's denial of that grievance. See
Smith v. Kelly, 985 F.Supp.2d 275, 189 (N.D.N.Y. 2013)
(granting the defendants' motion for summary judgment on
the issue of exhaustion where plaintiff failed to “identify the
name of the ‘IGRC supervisor’ who purportedly told him
that a new prisoner does not file a grievance at Auburn C.F.
if it pertains to the prisoner's previous facility, [and failed
to] specify the date, means or location of this purported
communication.”). Plaintiff testified that he was familiar with
the grievance process and had access to grievance offices
at both facilities. See Pl. Dep. at 15-17. Moreover, plaintiff
stated that he had access to Directive 4040 – the DOCCS
directive detailing the inmate grievance program – which
states that a “complaint may only be filed at the facility
where the inmate is housed even if it pertains to another
facility.” Dkt. Nos. 48-5 at 7, 48-7 at 7 (emphasis added).
Thus, plaintiff's conclusory allegation that the Marcy IGRC
denied his grievance will not suffice to withstand summary
judgment. See Khudan v. Lee, No. 12-CV-8147(RJS), 2015
WL 5544316, at *6 (S.D.N.Y. Sept. 17, 2015) (“Plaintiff's
accusations, which ‘stand alone’ and are ‘unsupported,’
are insufficient to withstand summary judgment.”) (quoting
Bolton v. City of New York, No. 13-CV-5749(RJS), 2015 WL
1822008, at *2 (S.D.N.Y. Apr. 20, 2015) ).
Moreover, plaintiff's transfer from Hale Creek to Marcy
does not excuse his failure to exhaust, as the grievance
process is identical in all New York State-run facilities. See
Hartry v. Cnty. of Suffolk, 755 F.Supp.2d 422, 434 (E.D.N.Y.
2010) (“[S]ome courts [ ] have found that transfer within
correctional facilities governed by the same governmental
agency will not excuse exhaustion, regardless of whether
the inmate had an opportunity to pursue the remedy while
at the facility where the claim arose.”) (collecting cases);
Dabney v. Pegano, 604 F. App'x 1, 5 (2d Cir. 2015) (summary
order) (“As for the transfer to Clinton, even a partial
favorable grievance resolution does not excuse failing to
exhaust the IGP so long as some remedy remains available.”)
(internal quotation marks and citation omitted); Corye v.
Carr, No. 9:08-CV-46 (LEK/GJD), 2010 WL 396363, at
*7 (N.D.N.Y. Jan. 26, 2010) (“[G]enerally, transfer does
not excuse the exhaustion requirement.”); Wesley Decl.;
Pfendler Decl.; see also Dkt. Nos. 48-5, 48-7 (detailing
Directive 4040 concerning the Inmate Grievance Program).
Plaintiff has failed to proffer evidence that he filed grievances
relating to the September 10, 2015 incident, and his bare
assertions that Marcy prison officials denied his grievance are
insufficient to render the grievance process unavailable. Thus,
defendants have met their burden of showing that plaintiff has
failed to exhaust his administrative remedies. Accordingly,
it is recommended that defendants' Motion for Summary
Judgment be granted.
C. Failure to Protect
Alternatively, defendants move to dismiss on the basis that
plaintiff fails to state a prima facie failure to protect claim.
See Def. Mem. of Law at 13-24. “The Eighth Amendment
requires prison officials to take reasonable measures to
guarantee the safety of inmates in their custody.” Hayes v.
New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996)
(citing Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994) ). “[A] state prison guard's
deliberate indifference to the consequences of his conduct for
those under his control and dependent upon him may support
a claim under § 1983.” Morales v. New York State Dep't of
Corr., 842 F.2d 27, 30 (2d Cir. 1988). To state a claim for
failure to protect under the Eighth Amendment, a plaintiff
must demonstrate that (1) he or she was incarcerated under
conditions posing a substantial risk of serious harm; and (2)
prison officials acted with deliberate indifference to that risk
and the inmate's safety. See Farmer, 511 U.S. at 836, 114 S.Ct.
1970.
As to the first prong, the deprivation must be “sufficiently
serious,” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111
S.Ct. 2321, 115 L.Ed.2d 271 (1991) (internal quotation marks
omitted) ), and “contemplate[ ] ‘a condition of urgency, one
that may produce death, degeneration, or extreme pain.’ ” Id.
(quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990)
). “A substantial risk of serious harm can be demonstrated
where there is evidence of a previous altercation between
a plaintiff and an attacker, coupled with a complaint by
plaintiff regarding the altercation or request by plaintiff to
be separated from the attacker.” Gilmore v. Rivera, No. 13
Civ. 6955(RWS), 2014 WL 1998227, at *3 (S.D.N.Y. May 14,
2014); see Rivers v. Spinnella, No. 9:09-CV-309 (FJS/RFT),
2010 WL 6428486, at *5 (N.D.N.Y. Nov. 4, 2010) (granting
the defendants' motion for summary judgment where “there
[were] no specific facts, nor even allegations, that indicate the
[d]efendant was aware that [p]laintiff faced a substantial risk
of serious harm until the altercation had already started.”).
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*6 As to the second prong, the plaintiff must demonstrate
that prison officials actually knew of and disregarded an
excessive risk of harm to the inmate's health and safety. See
Farmer, 511 U.S. at 837, 114 S.Ct. 1970. The defendant
“must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Id. The plaintiff
must “show that the defendants actually inferred from that
disclosure that a substantial risk of serious harm existed.”
Murray v. Goord, 668 F.Supp.2d 344, 359 (N.D.N.Y. 2009).
Negligence by a prison official is insufficient to amount
to a constitutional violation. See Hathaway, 37 F.3d at 66
(“Deliberate indifference requires more than negligence, but
less than conduct undertaken for the very purpose of causing
harm.”).
Defendants rely on Desulma v. City of New York in support
of their argument that plaintiff has failed to demonstrate a
prima facie failure to protect claim. See Def. Mem. of Law
at 16-17. In Desulma, the plaintiff alleged that two inmates
made unspecified threats and racial insinuations toward him,
and that the defendant prison official witnessed such threats.
Desulma v. City of New York, No. 98 Civ. 2078(RMB)
(RLE), 2001 WL 798002, at *1 (S.D.N.Y. July 6, 2001). 7
The plaintiff claimed that he requested protection from the
defendant officer, but was told “to defend himself.” Id.
The plaintiff requested protective measures from a second
prison official, but his complaints were ignored. Id. The
inmates again began to “bother” plaintiff and told him that
he “smell[ed].” Id. Later, the plaintiff submitted changes to
his deposition transcript wherein he claimed that the inmates
stated, “kill this negro, get you, we are going to get you
stinky.” Id. The inmates then “slashed [the plaintiff's] face
with a weapon, leaving a permanent scar.” Id. The Desulma
Court found that the plaintiff failed to establish either prong
of the failure to protect analysis.
As to the first prong — whether plaintiff established that he
was incarcerated under conditions posing a substantial risk
of serious harm — the Court held that the plaintiff failed to
demonstrate that “risk he faced was substantial,” and, that
to the extent that such risk existed, the plaintiff failed to
show that it “was one of serious harm.” Desulma, 2001 WL
798002, 1 at *6. The Court noted that the plaintiff had no
prior altercations with the inmates who had attacked him, and
that he testified that he had never complained about them or
requested separation from them before. Id. The Court also
concluded that the inmates' statements that the plaintiff “was
going to pay a price” and that “he smell[ed]” did not establish
that the inmates posed a substantial threat to the plaintiff
because “verbal statements alone do not indicate a substantial
threat of serious harm.” Id. at *7. The Court also discredited
the revision of the plaintiff's deposition transcript, stating that
“although [the plaintiff] changed his testimony to reflect that
the inmates had actually threatened him with a knife, that
faction alone would not be enough to establish a substantial
risk.” Id.
As to the second prong — whether the plaintiff established
that the defendants acted with the necessary state of mind
— the Desulma Court found that although “the record
supports a conclusion that [the defendant] was aware that [the
plaintiff] feared his attackers because [the plaintiff] requested
protective measures ... and because [the defendant] witnessed
the verbal interaction,” given the lack of prior history between
the parties and the nature of the verbal threats, the defendant
“had no reason to infer the existence of a threat of harm, much
less a life-threatening danger.” Desulma, 2001 WL 798002,
at *7. The Court held that the record contained no evidence
demonstrating that the defendant “deliberately disregarded”
the plaintiff's safety, or otherwise had an opportunity to
intervene in the attack. Id. At best, the defendant's conduct
was negligent, which is not a culpable mental state for
liability. Id. Thus, the Desulma Court recommended that the
defendant's motion for summary judgment be granted. Id. at
*8.
*7 Here, as in Desulma, plaintiff contends that inmate
Moore threatened and harassed him on one occasion in the
inmate cafeteria on September 10, 2015. See Sec. Am. Compl.
at 3. Plaintiff's claims in his second amended complaint
that on September 10, 2015 inmate Moore threatened to cut
him, see id., directly contradict plaintiff's sworn deposition
testimony, as well as plaintiff's testimony at his Tier III
disciplinary hearing. As defendants note, plaintiff testified as
to the events of the September 10, 2015 lunch hour:
Q: What was the fight about with Inmate Moore in cafeteria
on September 10 th of 2015?
A: I was talking to this other inmate named Robinson, and
we was talking about girls and stuff like that. So [i]nmate
Moore jumped in our conversation and told me to shut
up. Shut the F. up. And called me a pussy. So I called
him a pussy back. Then he was like, we're going to see
who's a pussy when we get back to the dorm.
Q: Did he say anything else at that time?
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A: Nope.
Q: That's all he said?
A: That's all he said.
Dkt. No. 48-16 (“Pl. Dep.”) at 40-41. Such statements are
consistent with plaintiff's testimony at the September 16, 2015
Tier III disciplinary hearing, wherein plaintiff testified that,
inmate Moore “jumped in on [he and inmate Robinson's]
conversation. I told him to mind his business. He called
me a pussy. I called him a pussy back. And he said you
going to see who a pussy when we get back to the dorms.”
Dkt. No. 48-14 at 6. Moreover, plaintiff's signed “Free Will
Statement” does not mention that inmate Moore threatened to
cut him with a knife. See Dkt. No. 48-12 at 10. Irrespective of
the inconsistencies in plaintiff's narrative, “verbal statements
alone do not indicate a substantial threat of serious harm,”
and plaintiff's allegation that inmate Moore threatened to cut
him, if credited, does not by itself establish a substantial risk.
Desulma, 2001 WL 798002, at *7.
As in Desulma, plaintiff had no prior altercations with inmate
Moore, see Desulma, 2001 WL 798002, at *6; Pl. Dep. at
29, 41; in fact, the record indicates that plaintiff and inmate
Moore resided in the same housing unit from June 2015 until
September 2015, attended the same ASAT program for two
to three months without an altercation, and generally “got
along.” Pl. Dep. at 41, 42; see Peterson v. Johnson, No. 9:10-
CV-0026(FJS/DEP), 2011 WL 7640124, at *11 (N.D.N.Y.
Aug. 3, 2011) (dismissing the plaintiff's failure to protect
claim where “plaintiff does not allege facts suggesting that
there was any prior history between him and inmate Green,
or that there was any other reason for defendant to know that
Green posed a threat to plaintiff's safety.”). Plaintiff testified
that he was “surprise[d]” that inmate Moore attacked him, and
that he entered the bathroom after the “situation” in the inmate
cafeteria because he thought that inmate Moore “wanted to
talk to [him] ... [but] he just ... pulled out a razor and cut
[him].” Id. at 42. Plaintiff testified that he would not have
entered the bathroom alone had he thought inmate Moore was
going to attack him. Id. at 43. Moreover, after the assault,
plaintiff went to his ASAT class, moved his seat to sit next
to inmate Moore, and on three separate occasions failed to
tell DOCCS officials that he inmate Moore had cut him with
a razor when questioned about the cut on his neck. See Dkt.
No. 48-13 at 2-5. Thus, as plaintiff readily admits that he,
on his own volition, entered the restroom with inmate Moore
after the lunchtime argument, and that he did so under the
belief that the two men were “going to talk it out,” Pl. Dep. at
41-43, the record does not support a conclusion that plaintiff
was in a “condition of urgency [ ] that may produce death,
degeneration, or extreme pain” under the first prong of the
analysis. Hathaway, 37 F.3d at 66 (internal quotation marks
and citation omitted).
*8 Moreover, even assuming that plaintiff had established
that he was incarcerated under conditions posing a substantial
risk of serious harm, he has failed to demonstrate that Supt.
Hallenbeck or C.O. Prue actually knew of and disregarded
an excessive risk of harm to his health and safety. See
Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Plaintiff's conclusory
allegations that he informed Supt. Hallenbeck and C.O. Prue
“numerous times” that inmate Moore threatened and harassed
him, and that inmate Moore threatened to “cut” him are
unsupported by the record. See Sec. Am. Compl. at 3.
As a threshold matter, defendants argue that Supt. Hallenbeck
had no personal involvement in the events at issue in this
lawsuit. See Def. Mem. of Law at 24-25. The undersigned
agrees. “[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d
880, 885 (2d Cir. 1991) ). Assertions of personal involvement
that are merely speculative are insufficient to establish a
triable issue of fact. See e.g., Brown v. Artus, 647 F.Supp.2d
190, 200 (N.D.N.Y. 2009). Plaintiff testified that he only
spoke with Supt. Hallenbeck one time approximately two
weeks after he arrived at the facility during inmate orientation.
See Pl. Dep. at 23-24. 8 On that date, Supt. Hallenbeck gave
a speech to a group of inmates in the ASAT housing unit,
and plaintiff did not have a personal conversation with him.
Id. at 24. In fact, plaintiff noted that he had never had a
one-on-one persona conversation with Supt. Hallenbeck. Id.
The record is clear that the only interaction plaintiff had
with Supt. Hallenbeck on September 10, 2015 is that he
observed Supt. Hallenbeck standing by the mess hall. Id. at
61. Plaintiff did not approach Supt. Hallenbeck, nor did he
attempt to engage him in conversation concerning inmate
Moore's alleged threats. See id. at 61-62. Further, there is
no indication that non-party Sgt. Soto ever spoke with Supt.
Hallenbeck, and Sgt. Soto never informed plaintiff that he
spoke with Supt. Hallenbeck on his behalf. See id. at 60; Dkt.
No. 48-2 (“Hallenbeck Decl.”) ¶ 7 (“At no time prior to the
occurrence of the September 10, 2015 altercation ..., or at any
time since, has Sgt. Soto, (or anyone else) ever informed me
that plaintiff told him (or anyone else) of any threat made to
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plaintiff, or danger posed to [plaintiff], by inmate Moore.”).
Supt. Hallenbeck declared that
[a]t no time prior to the ... September
10, 2015 altercation between inmate [ ]
Moore and plaintiff ... was [he] ever
told, or otherwise made aware of any
threat(s) made to plaintiff by inmate
[ ] Moore, of any danger that inmate
Moore may have posed to plaintiff,
or of any tension, hostility or conflict
between inmate [ ] Moore and plaintiff.
Hallenbeck Decl. ¶ 8. Supt. Hallenbeck did not witness the
assault as he was not present in the inmate bathroom, or
anywhere in the C-2 housing unit, at the time of the attack.
Id. ¶ 4. Thus, the record is clear that Supt. Hallenbeck was
not aware of the lunch hour conversation between plaintiff
and inmate Moore, and, therefore, could not have inferred that
such conversation would result in an assault. See Farmer, 511
U.S. at 837, 114 S.Ct. 1970. Therefore, plaintiff has failed to
establish that Supt. Hallenbeck was personally involved in his
failure to protect claim.
*9 As to C.O. Prue, affording plaintiff special solicitude,
plaintiff contends that after returning to his dorm from the
inmate cafeteria, he informed C.O. Prue that inmate Moore
threatened him. See Pl. Dep. at 36. As in Desulma, although
C.O. Prue may have been aware that inmate Moore threatened
and/or threatened to cut plaintiff, 9 given the lack of prior
history between the parties, and the nature of the verbal
threats, C.O. Prue “had no reason to infer the existence of a
threat of harm, much less a life-threatening danger.” Desulma,
2001 WL 798002, at *7. C.O. Prue declared that prior to the
September 2015 altercation, he had “never overheard or was
aware of any verbal confrontation between inmate Moore and
plaintiff; never saw or knew of any physical confrontation
between inmate Moore and plaintiff; and never heard or was
aware of any threats communicated to plaintiff by inmate
Moore.” Prue Decl. ¶ 24. Plaintiff's testimony that after
informing C.O. Prue of inmate Moore's threat, he returned
to his cube “feeling nervous and scared” is contradicted by
the record, which demonstrates that soon after the alleged
conversation with C.O. Prue, plaintiff voluntarily left his
cell to enter the restroom with inmate Moore under the
belief that they were going to talk. See Pl. Dep. at 41-43.
Thus, crediting plaintiff's allegations, although C.O. Prue may
have had knowledge of inmate Moore's threats, there is no
indication that C.O. Prue “disregard[ed] that risk by failing to
take reasonable measures to abate the harm.” Hayes v. New
York City Dep't. of Corr., 84 F.3d 614, 620 (2d Cir. 1996).
To the extent that plaintiff contends that C.O. Prue failed to
intervene in the September 10, 2015 altercation, this argument
must fail. To establish liability under a failure to intervene
theory, “a plaintiff must prove the use of excessive force
by someone other than the individual and that the defendant
under consideration: [ (]1) possessed actual knowledge of
the use by another of excessive force; [ (]2) had a realistic
opportunity to intervene and prevent the harm from occurring;
and [ (]3) nonetheless disregarded that risk by intentionally
refusing or failing to take reasonable measures to end the
use of excessive force.” Cicio v. Lamora, No. 09:CV-431,
2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (citing
Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) ). As
defendants point out, the record is clear that C.O. Prue did not
have a realistic opportunity to intervene and prevent inmate
Moore from cutting plaintiff with a razor. See Def. Mem. of
Law at 24. C.O. Prue was not present in the bathroom when
the September 10, 2015 altercation occurred. Prue Decl. ¶
16. Although C.O. Prue does not recall where he was exactly
when the assault occurred, he declared that he “was definitely
on/in said housing unit at that time.” Id. ¶ 10.
Insofar as plaintiff contends that C.O. Prue “wasn't on his
assigned post which suppose [sic] to be at the desk,” Pl.
Opp. at 4-5, plaintiff does not proffer evidence of DOCCS
rules or regulations that require a corrections officer to be
seated at the officer's desk in their assigned location. See Def.
Reply at 10-11. In fact, C.O. Prue declared that his “post”
was the C-2 housing unit, and while on duty, an officer is
required to undertake periodic rounds and move freely around
the unit. Prue Decl. ¶¶ 12, 16. Moreover, even if C.O. Prue
had been sitting at the officer's desk in the main room of the
C-2 housing unit, he would not have been able to intervene
in the altercation because “someone sitting/stationed at the
officer's desk in the main common room would not be able
to see more into said restroom due to the viewing angle
from the desk.” Prue Decl. ¶ 13. C.O. Prue stated that the
view from the desk into the inmate restroom is obstructed
by the restroom's exterior wall. Id. To the extent that C.O.
Prue was present in the television room, his view into the
restroom still would have been obstructed. See id. at 14.
Moreover, plaintiff testified that the assault occurred within
three seconds of him walking into the bathroom, thereby
preventing C.O. Prue from having a “realistic opportunity”
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to intervene in the assault. See Cicio, 2010 WL 1063875, at
*8; Pl. Dep. at 43. Therefore, insofar as plaintiff contends
that C.O. Prue failed to intervene in the September 10, 2015
altercation, such claim must fail.
*10 Accordingly, as plaintiff fails to demonstrate a prima
facie failure to protect claim, it is recommended that
defendants' motion be granted.
D. Qualified Immunity
Defendants argue that, even if plaintiff's Eighth Amendment
claim is substantiated, they are entitled to qualified immunity.
Def. Mem. of Law at 26-28. Qualified immunity shields
public officials from being sued for conduct undertaken in
the course of their duties so long as that conduct “does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982) (internal quotation marks and citation omitted);
Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir. 1988). However,
even if the constitutional privileges “are so clearly defined
that a reasonable public official would know that his actions
might violate those rights, qualified ... immunity might still
be available ... if it was objectively reasonable for the public
official to believe that his acts did not violate those rights.”
Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991);
Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990) (internal
citations omitted). A court must first determine whether, if
the plaintiff's allegations are accepted as true, there would
be a constitutional violation. See Saucier v. Katz, 533 U.S.
194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Only
if there is a constitutional violation does a court proceed
to determine whether the constitutional rights were clearly
established at the time of the alleged violation. Aiken v.
Nixon, 236 F.Supp.2d 211, 230 (N.D.N.Y. 2002).
Here, plaintiff has not established a constitutional violation
to satisfy the first prong of the qualified immunity
test. See subsection II.C. supra, at 14-24. Because there
is no constitutional violation, the undersigned does not
reach whether plaintiff's constitutional rights were clearly
established at the time of the alleged violation. See Aiken,
236 F.Supp.2d at 230. Accordingly, it is recommended that
defendants' motion on this ground be granted.
III. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
RECOMMENDED, that defendants' Motion for Summary
Judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 48) be
GRANTED; and it is further
RECOMMENDED, that plaintiff's second amended
complaint (Dkt. No. 17) be DISMISSED in its entirety, with
prejudice; and it is
ORDERED, that the Clerk of the Court 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 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. 10
All Citations
Not Reported in Fed. Supp., 2018 WL 4635708
Footnotes
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).
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2 On October 2, 2017, plaintiff filed his response in opposition to plaintiff's motion for summary judgment. Dkt.
No. 51. The undersigned observes that plaintiff titled his motion “Notice of Motion for Summary Judgment
with L.R. 56.2 Notice.” See id. at 1. Based on the substance of the response, the undersigned does not
interpret this document as a cross-motion for summary judgment, and believes that plaintiff attempted to file
a response in opposition.
3 Local Rule 7.1(a)(3) states:
Summary Judgment Motions
Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material
Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends
there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the
fact is established. The record for purposes of the Statement of Material Facts includes the pleadings,
depositions, answers to interrogatories, admissions and affidavits.
The opposing party shall file a response to the Statement of Material Facts. The non-movant's response
shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's
assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record
where the factual issue arises. The non-movant's response may also set forth any additional material facts
that the non-movant contends are in dispute. Any facts set forth in the Statement of Material Facts shall
be deemed admitted unless specifically controverted by the opposing party.
N.D.N.Y. L.R. 7.1(a)(3).
4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been
provided to plaintiff.
5 In Williams v. Priatno, the Second Circuit debated Ross’s effect on Hemphill’s estoppel exception. See
Williams, 829 F.3d at 123. The Williams Court stated that “Ross largely supplants Hemphill inquiry by framing
the exception issue entirely within the context of whether administrative remedies were actually available to
the aggrieved inmate.” Id. (citing Ross, 136 S.Ct. at 1858-59).
6 First, the inmate must file a complaint with an inmate grievance program (“IGP”) clerk within twenty-one
days of the alleged incident. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(a)(1). An IGP representative
has sixteen calendar days to informally resolve the issue. Id. § 701.5(b)(1). If no informal resolution
occurs, the IGRC must hold a hearing within sixteen days of receipt of the grievance and must issue a
written decision within two working days after the conclusion of the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If
the determination is unfavorable to the inmate, the inmate may appeal the IGRC's determination to the
facility superintendent within seven calendar days of receipt of the determination. Id. § 701.5(c)(1). If the
superintendent's determination is unfavorable, the inmate may appeal to CORC within seven days after
receipt of the superintendent's determination. Id. §§ 701.5(d)(i)-(ii). CORC must “review each appeal, render
a decision on the grievance, and transmit its decision to the facility, with reasons stated, for the [inmate], the
grievance clerk, the superintendent, and any direct parties within thirty (30) calendar days from the time the
appeal was received.” Id. § 701.5(d)(3)(ii). Parties do not dispute that at all relevant times, DOCCS had in
place a three-step inmate grievance program. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5.
7 The procedural history of this case is not available on Westlaw. However, the docket view for this case, which
is available on Westlaw, states that on December 11, 2001, “[t]he Court adopts Mag. Judge Ellis' Report
and Recommendation, recommending that deft's motion for summary judgment be granted, in its entirety.”
A copy of this portion of the docket will be provided to both parties.
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8 Plaintiff initially testified that he told Supt. Hallenbeck that inmate Moore threatened him and/or threatened
to cut him on September 10, 2015. See Pl. Dep. at 24-27. Later on in the deposition, plaintiff clarified that he
did not speak to Supt. Hallenbeck on September 10, 2015 concerning any threats by inmate Moore; instead,
plaintiff told non-party Sgt. Soto to inform Supt. Hallenbeck of the incident. See Pl. Dep. at 27, 61-62.
9 C.O. Prue disputes that plaintiff informed him that inmate Moore threatened him during the lunch hour. See
Dkt. No. 48-3 (“Prue Decl.”) ¶ 21.
10 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the Order was mailed to you
to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday,
Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. Id. § 6(a)(1)(C).
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Davis v. Grant, Not Reported in Fed. Supp. (2019)
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2019 WL 498277
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tiquan DAVIS, Plaintiff,
v.
Correction Officer T. GRANT and
Sgt. Todd Paroline, Defendants.
No. 15-CV-5359 (KMK)
|
Signed 02/08/2019
Attorneys and Law Firms
Tiquan Davis, Ossining, NY, Pro Se Plaintiff.
Yan Fu, Esq., New York State Attorney General, New York,
NY, Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 Tiquan Davis (“Plaintiff”), proceeding pro se, brings
this Action against Correction Officer T. Grant (“Grant”)
and Sergeant Todd Paroline (“Paroline”) (collectively,
“Defendants”), employees of the New York State Department
of Correction and Community Supervision (“DOCCS”),
pursuant to 42 U.S.C. § 1983, alleging retaliation arising out
of allegedly false misbehavior reports filed by Defendants.
(See Second Am. Compl. (“SAC”) (Dkt. No. 88).) 1 Before
the Court is Defendants' Motion for Summary Judgment. (See
Not. of Mot. (Dkt. No. 94).) For the reasons explained herein,
Defendants' Motion for Summary Judgment is granted.
I. Background
A. Factual Background
The Court has described the allegations and procedural
history of this case in two prior published Opinions. See Davis
v. Jackson, No. 15-CV-5359, 2016 WL 5720811 (S.D.N.Y.
Sept. 30, 2016); Davis v. Jackson, No. 15-CV-5359, 2018
WL 358089 (S.D.N.Y. Jan. 8, 2018). The Court therefore
assumes familiarity with the dispute and will provide factual
and procedural background only as relevant to the instant
Motion.
The following facts are taken from Defendants' statements
pursuant to Local Civil Rule 56.1, (Defs.' Local Rule 56.1
Statement (“Defs.' 56.1”) (Dkt. No. 95) ), and Plaintiff's
“Reply to Summary Judgment” and “Declaration in Support
of Reply,” both filed in the same document, (Pl.'s Reply in
Opp'n to Mot. for Summ. J. (“Pl.'s Reply”) (Dkt. No. 101);
Decl. of Tiquan Davis (“Pl.'s Decl.”) (Dkt. No. 101) ), and the
admissible evidence submitted by the Parties. 2 The facts are
recounted “in the light most favorable to” Plaintiff, the non-
movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d
Cir. 2018) (internal quotation marks omitted). 3 The facts as
described below are in dispute only to the extent indicated.
*2 At all times relevant to the claims in the SAC, Plaintiff
was incarcerated at Sing Sing Correctional Facility (“Sing
Sing”). (Defs.' 56.1 ¶ 1.) DOCCS has an inmate grievance
procedure. (Id. ¶ 3.) An Inmate Grievance Program (“IGP”)
procedure exists at Sing Sing. (Id. ¶ 4.)
In his SAC, Plaintiff alleges that: (1) at some time in
March 2014, Grant issued a false misbehavior report against
him in retaliation for an incident involving Plaintiff and
Correction Officer Angela Jackson; 4 (2) on October 31,
2015, Grant issued a misbehavior report against Plaintiff in
retaliation for filing a lawsuit against Jackson; (3) on August
4, 2015, Paroline confiscated Plaintiff's belt buckle, falsely
told Office of Mental Health (“OMH”) officials that Plaintiff
was suicidal, and wrote a false misbehavior report; and (4) on
August 8, 2015, Paroline wrote Plaintiff another misbehavior
report after Plaintiff was found not guilty of the charges in
the August 4, 2015 misbehavior report. (Id. ¶ 2; see generally
SAC.)
Plaintiff filed a grievance on August 13, 2015, which
was assigned grievance number 55380-15 (the “55380-15
Grievance”). (Defs.' 56.1 ¶ 5.) In the grievance, Plaintiff
claimed, among other things, that on August 4, 2015, Paroline
confiscated his belt buckle, falsely told OMH officials
that Plaintiff was suicidal, and wrote a false misbehavior
report. (Id. ¶ 6.) Because Plaintiff alleged harassment by
DOCCS staff, his grievance was forwarded to the Sing Sing
Superintendent pursuant to 7 NYCRR § 701.8. (Id. ¶ 7.)
Following an investigation, Plaintiff's grievance was denied
on September 3, 2015. (Id. ¶ 8.) Sing Sing has no record of any
appeal by Plaintiff of the denial of the 55380-15 Grievance
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to the DOCCS Central Office Review Committee (“CORC”).
(Id. ¶ 9.)
With respect to the August 4, 2015, Paroline grievance report,
Plaintiff claims that after he received his “response from
the superintendent,” which the Court takes to mean the
September 3, 2015 denial of the grievance, Plaintiff “wrote
[his] appeal out for CORC ... and was personally able to hand
[his] appeal to the grievance sgt who told [him] that they
would make sure [his] appeal got filed.” (Pl.'s Decl. ¶ 4.)
Plaintiff claims he has still not heard from CORC regarding
his appeal. (Id.)
With respect to the October 31, 2015, incident involving
Grant, Plaintiff states in his Declaration that on October 31,
2015, he wrote a harassment and retaliation grievance and
gave this grievance to the B-block IGRC representative to
file. (Id. ¶ 2.) After three weeks Plaintiff claims he asked
the same representative whether he had filed his grievance
because he had not heard anything. (Id.) The representative
told him he had filed the grievance and that he would check
on the status with the IGP supervisor. A week later the
representative told Plaintiff that the IGP had told him they
would get back to him but never did. (Id.) The representative
suggested to Plaintiff that he appeal it to the CORC “because
the grievance was a ‘code 49’ and would be sent straight to
the superintendent.” (Id.) Plaintiff alleges he then drafted his
appeal “that night,” included a copy of his original grievance
dated October 31, 2015, and gave it to the representative the
next morning. Plaintiff claims he has still not heard anything
regarding this grievance. (Id.)
*3 Plaintiff filed eight other grievances while at Sing Sing
between 2014 and 2017, including complaints that (1) the
“staff failed to follow instructions,” (2) he “wants cooling
system in the hallways,” (3) he “claims dental is not providing
him treatment,” (4) he “wants decision of tier 2,” (5) involve
“in-cell movie and DVD issue,” (6) he “wants to know
why he was not allowed to run for ILC,” (7) involve “staff
interference with AVP,” and (8) he “wants to be placed in
the program.” (Decl. of Quandera Quick (“Quick Decl.”) ¶¶
6–7, Ex. A (Plaintiff's Sing Sing Grievance Record) (Dkt.
No. 96).) Besides the 55380-15 Grievance, none of the
grievances filed by Plaintiff between 2014 and 2017 involved
an allegedly false misbehavior report or harassment by staff.
(Quick Decl. ¶ 12.) Since Plaintiff has been incarcerated under
his current Department Identification Number (#95-A-0305),
he has appealed 39 grievances to CORC. (Decl. of Rachael
Seguin (“Seguin Decl.”) ¶ 6, Ex. A, at 3 (Plaintiff's CORC
Grievance Record) (Dkt. No. 97).) 5 According to CORC
records, Plaintiff did not appeal any grievances to CORC
between 2012 and 2016. (Seguin Decl. ¶ 8; Plaintiff's CORC
Grievance Record at 3.) Plaintiff appealed one grievance
in 2016 and it involved television programming. (Plaintiff's
CORC Grievance Record at 3.)
In his Declaration, Plaintiff claims that he made copies of his
grievances but cannot find them. (Pl.'s Decl. ¶ 6.) He states
that he knows he followed the “steps of the PLRA [Prison
Litigation Reform Act of 1995] to the best of [his] abilities,”
because he used to be a grievance representative himself and
was “fully aware that in order to exhaust [his] claims [he] had
to follow thr[ough] all the way to the CORC.” (Id.) Plaintiff
further states that in doing so he had to “rely on the IGRC to
carry out their functions which they clearly did not do.” (Id.) 6
B. Procedural History
On July 7, 2015, Plaintiff filed his Complaint, (see Compl.
(Dkt. No. 2) ), and sought leave to proceed in forma pauperis,
(see Dkt. No. 1), which was granted on July 15, 2015,
(see Dkt. No. 4). On December 28, 2015, Defendants filed
their Motion to Dismiss and accompanying papers. (See
Dkt. Nos. 22–27.) After several extensions, Plaintiff filed
his Opposition on June 7, 2016, (see Dkt. No. 33), and, on
June 29, 2016, Defendants submitted their Reply, (see Dkt.
No. 37). Plaintiff submitted a surreply on July 22, 2016, (see
Dkt. No. 41), and Defendants filed their own surreply and
accompanying papers on September 13, 2016, (see Dkt. Nos.
48–50).
*4 On September 30, 2016, the Court issued an Opinion
and Order dismissing, without prejudice, Plaintiff's official
capacity claims and finding that Plaintiff's due process and
retaliation claims were time-barred absent application of an
applicable tolling doctrine. (See generally Opinion & Order
(Sept. 30, 2016) (“Sept. 30, 2016 Opinion”) (Dkt. No. 52).)
The Opinion allowed Plaintiff time to file an Amended
Complaint. (Id. at 28.)
On December 1, 2016, Plaintiff filed an Amended Complaint.
(See Am. Compl. (Dkt. No. 65).) On June 20, 2017,
Defendants filed their motion to dismiss the Amended
Complaint and accompanying papers, (see Dkt. Nos. 77–80).
On August 14, 2017, Plaintiff filed his Opposition papers.
(See Dkt. Nos. 83–84.) Defendants filed a letter brief in Reply
in lieu of a formal Memorandum of Law. (See Letter from Yan
Fu, Esq., to Court (Aug. 29, 2017) (Dkt. No. 85).)
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On January 8, 2018, the Court issued an Opinion and Order
granting in part and dismissing in part Defendants' Motion to
Dismiss. (See Opinion & Order (Jan. 8, 2018) (“Jan. 8, 2018
Opinion”) (Dkt. No. 86).) The Court dismissed Plaintiff's
retaliation and due process claims against Defendants
Jackson, Ortiz, Shibah, Donahue, George, and O'Cana with
prejudice as time-barred and barred by the collateral estoppel
doctrine. (Id. at 19, 24, 29.) Plaintiff's retaliation claim against
Grant was also dismissed, but without prejudice. (Id. at 25–
26.) Plaintiff's retaliation claims as to Paroline survived. (Id.
at 29.)
On February 16, 2018, Plaintiff filed a Second Amended
Complaint. (See SAC.) On February 28, 2018, the Court
granted the remaining Defendants request for an extension
to answer the SAC. (Dkt. No. 90.) On March 23,
2018, Defendants submitted a pre-motion letter requesting
permission to file a Motion for Summary Judgment. (See
Letter from Assistant Attorney General Yan Fu, Esq., to
Court (Dkt. No. 91).) On April 10, 2018, the Court granted
Defendants' request and set a briefing schedule. (Dkt. No. 92.)
On April 10, 2018, Plaintiff submitted a letter supplementing
the SAC. (See Letter from Tiquan Davis to Court (“SAC
Supp.”) (Dkt. No. 93).)
On May 3, 2018, Defendants filed the instant Motion for
Summary Judgment, accompanying papers and exhibits, and
a Rule 56.1 Statement. (Not. of Mot.; Defs.' 56.1; Quick
Decl.; Seguin Decl.; Defs.' Mem. Of Law. in Supp. of Mot.
for Summ. J. (“Defs.' Mem.”) (Dkt. No. 98).) That same
day, on May 3, 2018, Defendants sent a Rule 56.2 notice to
Plaintiff. (Dkt. No. 99.) On May 14, 2018, Plaintiff filed his
Opposition to the Motion and a Declaration in support of his
Opposition. (Pl.'s. Mem.; Pl.'s Decl.) Plaintiff did not file a
response to Defendants' Rule 56.1 Statement. On June 29,
2019, Defendants filed a reply. (Defs.' Reply Mem. of Law
in Further Supp. of Mot. for Summ. J. (“Defs.' Reply”) (Dkt.
No. 103).)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where 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); see also Psihoyos v. John Wiley &
Sons, Inc., 748 F.3d 120, 123–24 (2d Cir. 2014) (same). “In
determining whether summary judgment is appropriate,” a
court must “construe the facts in the light most favorable
to the non-moving party and ... resolve all ambiguities and
draw all reasonable inferences against the movant.” Brod v.
Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks
omitted); see also Borough of Upper Saddle River v. Rockland
Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y.
2014) (same). “It is the movant's burden to show that no
genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Berry v. Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y.
2015) (same).
*5 “However, when the burden of proof at trial would fall
on the nonmoving party, it ordinarily is sufficient for the
movant to point to a lack of evidence to go to the trier of
fact on an essential element of the nonmovant's claim,” in
which case “the nonmoving party must come forward with
admissible evidence sufficient to raise a genuine issue of fact
for trial in order to avoid summary judgment.” CILP Assocs.,
L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d
Cir. 2013) (alteration and quotation marks omitted). Further,
“[t]o survive a [summary judgment] motion ..., [a nonmovant]
need[s] to create more than a ‘metaphysical’ possibility that
his allegations were correct; he need[s] to ‘come forward
with specific facts showing that there is a genuine issue for
trial,’ ” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir.
2012) (emphasis omitted) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) ),
“and cannot rely on the mere allegations or denials contained
in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45
F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks
omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.
2009) (“When a motion for summary judgment is properly
supported by documents or other evidentiary materials, the
party opposing summary judgment may not merely rest on
the allegations or denials of his pleading....”). And, “[w]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
“On a motion for summary judgment, a fact is material if it
might affect the outcome of the suit under the governing law.”
Royal Crown Day Care LLC v. Dep't of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks
omitted). At this stage, “[t]he role of the court is not to resolve
disputed issues of fact but to assess whether there are any
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factual issues to be tried.” Brod, 653 F.3d at 164 (quotation
marks omitted). Thus, a court's goal should be “to isolate
and dispose of factually unsupported claims.” Geneva Pharm.
Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.
2004) (quotation marks omitted) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986) ). However, a district
court should consider only evidence that would be admissible
at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,
164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on
affidavits ... to establish facts, the statements ‘must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant ... is competent to testify
on the matters stated.’ ” DiStiso, 691 F.3d at 230 (quoting Fed.
R. Civ. P. 56(c)(4) ).
Finally, the Second Circuit has instructed that when a
court considers a motion for summary judgment, “special
solicitude” should be afforded a pro se litigant, see Graham,
848 F.2d at 344; accord Mercado v. Div. of N.Y. State Police,
No. 96-CV-235, 2001 WL 563741, at *7 (S.D.N.Y. May 24,
2001) (same), and a court should construe “the submissions
of a pro se litigant ... liberally” and interpret them “to raise
the strongest arguments that they suggest,” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(italics and quotation marks omitted). And, “the failure to
oppose a motion for summary judgment alone does not justify
the granting of summary judgment.” Vt. Teddy Bear Co.,
373 F.3d at 244; see also Jackson v. Fed. Exp., 766 F.3d
189, 196 (2d Cir. 2014) (explaining that “an examination
of the legal validity of an entry of summary judgment
should ... be[ ] made in light of the opposing party's pro se
status” (italics omitted) ). “Nonetheless, proceeding pro se
does not otherwise relieve a litigant of the usual requirements
of summary judgment, and a pro se party's bald assertions
unsupported by evidence ... are insufficient to overcome a
motion for summary judgment.” Houston v. Teamsters Local
210, Affiliated Health & Ins. Fund-Vacation Fringe Ben.
Fund, 27 F. Supp. 3d 346, 351 (E.D.N.Y. 2014) (alterations,
italics, and quotation marks omitted); see also Flores v. City
of New York, No. 15-CV-2903, 2017 WL 3263147, at *2
(S.D.N.Y. July 31, 2017) (same).
B. Analysis
*6 Defendants argue that the Court should grant summary
judgment in their favor because Plaintiff failed to exhaust his
available administrative remedies as required by the PLRA.
(Defs.' Mem. 1, 4–7.) Plaintiff counters that he “followed all
the requirements needed to satisf[y] the exhaustion prongs of
the PLRA” and that “[t]he fact that there is no record on file
is not due to the [P]laintiff not filing his grievance or appeals,
and [that] he should not be faulted because of such.” (Pl.'s
Mem. 1–2.)
1. Applicable Law
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under [§] 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a).
This “language is ‘mandatory’: An inmate ‘shall’ bring
‘no action’ (or said more conversationally, may not bring
any action) absent exhaustion of available administrative
remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)
(citation and some quotation marks omitted). The exhaustion
requirement applies to “all inmate suits about prison life,”
Porter v. Nussle, 534 U.S. 516, 520, 532 (2002), and includes
actions for monetary damages even if monetary damages
are not available as an administrative remedy, see Booth v.
Churner, 532 U.S. 731, 741 (2001). Moreover, the PLRA
“requires proper exhaustion, which means using all steps that
the prison grievance system holds out.” Williams v. Priatno,
829 F.3d 118, 122 (2d Cir. 2016) (citations, alterations,
and quotation marks omitted). Indeed, the PLRA demands
“strict compliance with the grievance procedure ..., or else
dismissal must follow inexorably.” McCoy v. Goord, 255 F.
Supp. 2d 233, 246 (S.D.N.Y. 2003) (citations, alteration, and
quotation marks omitted). Exhaustion must occur prior to
Plaintiff's filing suit; “[s]ubsequent exhaustion after suit is
filed therefore is insufficient.” Neal v. Goord, 267 F.3d 116,
122 (2d Cir. 2001).
The PLRA contains a “textual exception to mandatory
exhaustion.” Ross, 136 S. Ct. at 1858. “[T]he exhaustion
requirement hinges on the ‘availab[ility]’ of administrative
remedies: An inmate ... must exhaust available remedies, but
need not exhaust unavailable ones.” Id. Available “grievance
procedures ... are capable of use to obtain some relief for
the action complained of.” Id. at 1859 (citation and quotation
marks omitted). In Ross, the Supreme Court identified
“three kinds of circumstances in which an administrative
remedy, although officially on the books, is not capable
of use to obtain relief.” Id. An administrative remedy is
unavailable: (1) where “it operates as a simple dead end
—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates,” id. (citation omitted);
(2) where the procedure is “so opaque that it becomes,
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practically speaking, incapable of use” such that “no ordinary
prisoner can discern or navigate it,” id.; or (3) where “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation,” id. at 1859–60. It bears noting, however, that
the “three circumstances discussed in Ross do not appear to be
exhaustive,” Williams, 829 F.3d at 123 n.2 (declining to opine
on “what other circumstances might render an otherwise
available administrative remedy actually incapable of use”),
but rather “guide the Court's inquiry,” Khudan v. Lee, No. 12-
CV-8147, 2016 WL 4735364, at *5 (S.D.N.Y. Sept. 8, 2016)
(citation omitted).
*7 “[I]t is well settled that conclusory allegations of
intimidation are not sufficient to create a genuine disputed
issue of fact regarding the availability of administrative
remedies.” Khudan, 2016 WL 4735364, at *6 (citations,
quotation marks, and alterations omitted); see also Heyliger
v. Gebler, No. 06-CV-6220, 2014 WL 4923140, at *3
(W.D.N.Y. Sept. 30, 2014) (granting summary judgment,
notwithstanding the plaintiff's testimony that his “original
grievance was discarded by prison officials,” where he “never
described or named the individual who allegedly took this
action”), aff'd, 624 F. App'x 780 (2d Cir. 2015); Litchmore
v. Williams, No. 11-CV-7546, 2013 WL 3975956, at *6
(S.D.N.Y. Aug. 5, 2013) (granting summary judgment where
there was “no evidence” that the “plaintiff's appeal was
actually mailed, intercepted, or ignored” and no “evidence of
any particular officer's misconduct”); Rosado v. Fessetto, No.
09-CV-67, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010)
(“Courts have consistently held ... that an inmate's general
claim that his grievance was lost or destroyed does not excuse
the exhaustion requirement.”), report and recommendation
adopted, 2010 WL 3809991 (N.D.N.Y. Sept. 21, 2010);
Veloz v. New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y.
2004) (granting summary judgment where, “[e]ven assuming
the [plaintiff] did submit the grievances,” he “offer[ed] no
evidence that any particular officer thwarted his attempts to
file,” and instead, “simply contend[ed] that the practice of
destroying or misplacing grievances must have been the cause
of his grievances being lost”), aff'd, 178 F. App'x 39 (2d Cir.
2006). Finally, failure to exhaust is an affirmative defense,
not a pleading requirement. Jones v. Bock, 549 U.S. 199, 216
(2007); Grullon v. City of New Haven, 720 F.3d 133, 141 (2d
Cir. 2013). As such, Defendants bear the burden of proving
failure to exhaust. See McCoy, 255 F. Supp. 2d at 248.
2. Application
The grievance program applicable here is the DOCCS IGP,
which provides for a three-step grievance process. See Colon
v. Annucci, No. 17-CV-4445, 2018 WL 4757972, at *17
(S.D.N.Y. Sept. 28, 2018); Terry v. Hulse, No. 16-CV-252,
2018 WL 4682784, at *6 (S.D.N.Y. Sept. 28, 2018).
To initiate the process, an inmate
must file a written complaint with
the [IGRC], a facility committee
composed of inmates and appointed
staff members. See N.Y.C.R.R. §
701.4–5. ... Second, the inmate
can appeal an unfavorable IGRC
determination to the superintendent
of the facility. See [ ] N.Y.C.R.R. §
701.5(c)[ ]. Finally, an inmate can
appeal an unfavorable superintendent's
determination to [ ]CORC[ ]. See [ ]
N.Y.C.R.R. § 701.5(d) [ ]; Directive
No. 4040.
Amador v. Andrews, 655 F.3d 89, 97 (2d Cir. 2011) (alterations
and quotation marks omitted); see also Khudan, 2016
WL 4735364, at *1 (describing three-step IGP procedure).
Grievances alleging misconduct by staff are subject to
an expedited administrative review—they are immediately
referred to the superintendent of the facility and must also be
exhausted through a final appeal to CORC. Amador, 655 F.3d
at 97 (citing 7 N.Y.C.R.R. § 701.8.). Only after completing
all three steps of the IGP may an inmate initiate suit, see
Ross, 136 S. Ct. at 1856; Williams, 829 F.3d at 122, “provided
no exception to exhaustion applies,” White v. Westchester
County, No. 18-CV-730, 2018 WL 6726555, at *6 (S.D.N.Y.
Dec. 21, 2018).
a. The March 2014 and the August 8, 2015 Incidents
Plaintiff's SAC summarily states that “Plaintiff has exhausted
all the herein claims at Sing Sing and Southport Correctional
Facilities.” (SAC at 1.) Plaintiff has submitted no evidence,
other than his own unsworn Declaration, that relates to
his filing of grievances or his appeal of unfavorable
determinations.
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Plaintiff only filed one grievance related to the misconduct
alleged in this case, namely the 55380-15 Grievance, which
related to the August 4, 2015 Paroline incident. Records
show that while Plaintiff filed other grievances while at Sing
Sing between 2014 and 2017, none involved the misconduct
alleged in this case. (Quick Decl. ¶¶ 6–7, 12; Plaintiff's Sing
Sing Grievance Record.) Neither Plaintiff's Declaration, nor
any of his other submissions, mentions filing a grievance
for the March 2014 Grant incident or the August 8, 2015
Paroline incident. Moreover, records show that Plaintiff did
not appeal the 55380-15 Grievance. Plaintiff's only appeal
between 2012 and 2016 involved television programming.
(Plaintiff's CORC Grievance Record at 3.) Plaintiff offers no
evidence whatsoever with respect to the March 2014 Grant
incident or the August 8, 2015 Paroline incident, and has thus
failed to “come forward with admissible evidence sufficient to
raise a genuine issue of fact.” CILP Assocs., L.P., 735 F.3d at
123. Accordingly, Defendants have “adequately supported the
affirmative defense of failure to exhaust.” See, e.g., Bennett v.
Onua, No. 09-CV-7227, 2010 WL 2159199, at *3 (S.D.N.Y.
May 26, 2010) (finding that defendants discharged their
initial burden on summary judgment by producing affidavits
that a search of prison records indicated that no grievances
were ever filed); see also Deebs v. Alstom Transp., Inc.,
346 F. App'x 654, 656–57 (2d Cir. 2009) (affirming grant
of summary judgment where the “plaintiffs rel[ied] almost
exclusively upon” their “speculative” and “vague” testimony
in the face of the defendants' documentary evidence); Toro
v. City of New York, No. 12-CV-4093, 2015 WL 1014044,
at *5 (E.D.N.Y. Mar. 6, 2015) (granting summary judgment
where “there is no evidence—beyond the allegations in his
complaint and his own unsupported deposition testimony—
that the [plaintiff] actually reported such misconduct to the
authorities”).
*8 Nor does any exception to exhaustion apply. Plaintiff
makes no showing whatsoever that the IGP is “unable”
to provide relief to grievances, or that prison officials are
“consistently unwilling” to provide relief, or that he has been
“thwart[ed] ... from taking advantage” of the IGP “through
machination, misrepresentation, or intimidation.” Ross, 136
S. Ct. at 1859–60. Nor can Plaintiff show that the IGP is “so
opaque that it [is] ... incapable of use,” id. at 1859, given
that Plaintiff successfully used the IGP, filing eight grievances
while at Sing Sing between 2014 and 2017, (Defs.' 56.1 ¶
10), appealing 39 grievances to CORC since he has been
in prison, (Seguin Decl. ¶ 6, Plaintiff's CORC Grievance
Record at 3), and having served as a grievance representative
himself, (Pl.'s Decl. ¶ 6). See, e.g., Mckinney v. Prack, 170
F. Supp. 3d 510, 516–17 (W.D.N.Y. 2016) (finding that the
plaintiff failed to present a question of fact as to whether
the grievance process was available to him where the record
showed the plaintiff appealed and exhausted 20 grievances
during his 29 years of incarceration including four during
the relevant period); Taylor v. Thames, No. 09-CV-72, 2010
WL 3614189, at *4 (N.D.N.Y. July 22, 2010) (finding that
the plaintiff failed to present a question of fact as to whether
the grievance process was available to him where the record
showed he “utilized the administrative procedure over twenty
times in the twenty-eight months [he] was incarcerated”).
Moreover, here, Plaintiff makes no allegations in his SAC or
his Declaration that anyone or anything prevented him from
filing grievances related to these two incidents.
The Court concludes that Plaintiff failed to complete any of
the steps of the IGP with respect to the March 2014 Grant
incident or the August 8, 2015 Paroline incident, and that no
exception to the exhaustion requirement applies.
b. The August 4, 2015 and October 31, 2015 Incidents
Defendants admit that Plaintiff filed a grievance on August
13, 2015, namely the 55380-15 Grievance, (Defs.' 56.1 ¶ 5),
that related to the August 4, 2015 Paroline incident. (Id. ¶ 6.)
Plaintiff's grievance was ultimately denied on September 3,
2015. (Id. ¶ 8.) Defendants presented admissible evidence that
Sing Sing has no record of any appeal by Plaintiff of the denial
of grievance 55380-15 to CORC. (Seguin Decl. ¶ 6, Plaintiff's
CORC Grievance Record at 3.) In the section of Plaintiff's
Declaration where he addresses Paroline, Plaintiff claims that
after he received his “response from the superintendent,”
which the Court takes to mean the September 3, 2014 denial
of the grievance, he “wrote [his] appeal out for CORC ... and
was personally able to hand [his] appeal to the grievance sgt
who told [him] that they would make sure [his] appeal got
filed.” (Pl.'s Decl. ¶ 4.) Plaintiff claims he has still not heard
from CORC regarding his appeal. (Id.)
Defendants deny that Plaintiff ever filed a grievance related
to the October 31, 2015 Grant incident. Defendants submitted
evidence outlining what grievances Plaintiff filed between
2014 and 2017, and the October 31, 2015 Grant incident was
not among them. (Defs.' 56.1 ¶¶ 10–11; Sing Sing Grievance
Record.) Plaintiff counters in his Declaration that on October
31, 2015, he wrote a harassment and retaliation grievance and
gave this grievance to the B-block IGRC representative to
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file. (Pl.'s Decl. ¶ 2.) Plaintiff then followed up repeatedly
with the representative who told him he would check with the
IGP supervisor and who assured Plaintiff the IGP would get
back to him. (Id.) Plaintiff claims that the representative then
suggested to Plaintiff that he appeal it to the CORC, and that
Plaintiff drafted his appeal “that night,” included a copy of his
original grievance dated October 31, 2015, and gave it to the
representative the next morning. Plaintiff claims he has still
not heard anything regarding this grievance. (Id.)
In this case, Defendants have met their initial burden of
demonstrating that Plaintiff failed to exhaust his retaliation
claims. Defendants submitted admissible evidence showing
that there is no record of Plaintiff filing a grievance regarding
the October 31, 2015 incident, and no record of Plaintiff
filing an appeal regarding the August 4, 2015 incident.
(See generally Plaintiff's Sing Sing Grievance Record;
Plaintiff's CORC Grievance Record.) Plaintiff maintains that,
notwithstanding the lack of any record, he did file a grievance
regarding Grant's October 31, 2015 retaliation, (Pl.'s Decl. ¶
2), and that he did appeal the denial of his grievance regarding
Paroline's August 4, 2015 retaliation, (id. ¶ 4).
*9 The Court takes Plaintiff's assertions that his grievances
and appeals were lost or not properly processed as an
argument that the grievance process was unavailable to
him, either because the process “operates as a simple
dead end,” was “practically speaking, incapable of use,” or
because “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1858–
60.
“Plaintiff's unsupported assertion that he filed a grievance
but that it was somehow lost or destroyed is insufficient to
establish a genuine issue of material fact.” Engles v. Jones,
No. 13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec.
28, 2018) (granting summary judgment to defendants for
failure to exhaust where defendants demonstrated through
admissible evidence that there was no record of the plaintiff
filing his grievance and where the plaintiff merely alleged
without any documentary support that his grievance was
lost or destroyed); see also Scott v. Kastner-Smith, 298
F. Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have
consistently held ... that an inmate's general claim that
his grievance was lost or destroyed does not excuse the
exhaustion requirement.”); Mims v. Yehl, No. 13-CV-6405,
2014 WL 4715883, at *4 (W.D.N.Y. Sept. 22, 2014) (holding
that inmate's “unsupported statement” that he has submitted
a grievance is “insufficient at the summary judgment stage”);
Khudan, 2016 WL 4735364, at *5 (granting summary
judgment to defendants where the plaintiff asserted he filed
his grievance with the IGRC, received no response, and then
sent an appeal to “Albany,” because the “[p]laintiff's self-
serving and incomplete testimony ... is insufficient to create
a genuine dispute of fact, particularly in light of [d]efendants'
evidence that no grievance was ever sent” (quotation marks
and alterations omitted) ); Rosado, 2010 WL 3808813, at
*7 (granting summary judgment to defendants where the
plaintiff alleged that he filed a grievance, did not receive
an answer, thereafter sent two letters to the superintendent,
because the plaintiff's claim that officials must have “messed
with” his grievance and his letters was insufficient to excuse
the exhaustion requirement and the plaintiff could have
further appealed the grievance to CORC); Veloz, 339 F. Supp.
2d at 515–16 (granting summary judgment to defendants
because the plaintiff failed to exhaust available administrative
remedies where the plaintiff alleged that his grievances were
misplaced or destroyed by corrections officers but there was
no evidence that any grievance was filed and the plaintiff
failed to offer “evidence that any particular officer thwarted
his attempts to file”).
It is true that courts in the Second Circuit have excused
failure to exhaust where a plaintiff identified an officer
or officers who took some specified action to prevent the
plaintiff from filing a grievance, see Lopez v. Bushey, No.
11-CV-0418, 2013 WL 1294477, at *6 (S.D.N.Y. Mar. 4,
2013) (denying summary judgment because pro se plaintiff
raised a triable issue of fact that special circumstances
justified his failure to exhaust his administrative remedies
where he named a specific officer and alleged that officer
repeatedly tore up his grievances before he could file them);
Gill v. Frawley, No. 02-CV-1380, 2006 WL 1742738, at
*8–9 (N.D.N.Y. June 22, 2006) (denying summary where
plaintiff named three officers to whom he submitted his
grievances and attached copies of correspondences with
those officers in which they assured him his grievances
had been submitted, and where defendants failed to submit
admissible evidence that plaintiff had not filed the grievances
at issue), or threatened the plaintiff for attempting to file
a grievance, see Hubbs v. Suffolk County Sheriff's Dep't,
788 F.3d 54, 59 (2d Cir. 2015) (holding that “administrative
remedies may ... be deemed unavailable if the plaintiff can
demonstrate ... threats from correction officers—rendered
a nominally available procedure unavailable”); Grafton v.
Hesse, No. 15-CV-4790, 2017 WL 9487092, at *7 (E.D.N.Y.
Aug. 25, 2017) (finding that “specific threats of retaliation
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or intimidation by prison officials may render administrative
remedies unavailable”). Here, however, Plaintiff offers no
evidence that any particular officer thwarted his attempts to
file his grievance or appeal. Plaintiff also does not allege that
anyone threatened him. Instead, Plaintiff claims that he filed
his October 31, 2015 grievance and appeal with the “B-block
IGRC representative,” (Pl.'s Decl. ¶ 2), and that he handed
his August 4, 2015 appeal directly to the “grievance sgt,” (id.
¶ 4). Putting aside that Plaintiff does not provide enough
information about these officers to clearly identify them, he
does not allege they destroyed his papers or attempted to
keep him from filing them. (Id. ¶¶ 2, 4.) Plaintiff does not
even expressly allege that his submissions were lost—he
summarily states that it is not his fault that there is no record
of his papers having been filed. (Pl.'s Mem. 1–2.)
*10 Courts in the Second Circuit have also held that
administrative remedies are unavailable in extraordinary
circumstances where, for example, an inmate must rely on
prison officials to submit his grievance. See Williams, 829
F.3d at 122 (reversing dismissal of case where plaintiff was
in a special housing unit segregated from the regular prison
population, gave his grievance to a correction officer to
file, and that officer failed to file it, because the applicable
grievance regulations “gave no guidance whatsoever” to a
prisoner in plaintiff's position); Rodriguez v. Cross, No. 15-
CV-1079, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017)
(noting that “[c]ourts have denied a defendant's motion for
summary judgment when faced with an unanswered and
unfiled grievance drafted in SHU”); Mena v. City of New York,
No. 13-CV-2430, 2016 WL 3948100, at *5 (S.D.N.Y. July
19, 2016) (finding that Williams, 829 F.3d 118, “hinged on
the ‘extraordinary circumstances’ specific to the case before
it”). Here, Plaintiff was not segregated from the regular prison
population and does not allege or submit any evidence that
he did not have access to the grievance process—he in fact
admits repeatedly speaking to the grievance representative
and handing his appeal to the grievance sergeant directly.
(Pl.'s Decl. ¶¶ 2, 4.) Instead, Plaintiff's bare assertions that
he submitted his grievances but never received a response
fall squarely into the category of assertions that courts in
the Second Circuit have found do not excuse the exhaustion
requirement. “Plaintiff's unsupported assertion that he filed
a grievance but that it was somehow lost or destroyed is
insufficient to establish a genuine issue of material fact.”
Engles, 2018 WL 6832085, at *10; see also Scott, 298 F.
Supp. 3d at 555 (holding that “an inmate's general claim
that his grievance was lost or destroyed does not excuse the
exhaustion requirement”); Shaw v. Ortiz, No. 15-CV-8964,
2016 WL 7410722, at *6 (S.D.N.Y. Dec. 21, 2016) (finding
that the IGP does contemplate the circumstance where a
plaintiff merely alleges that he filed his grievance but never
received a response because “the failure to render a timely
decision at a lower level” is appealable “to the next level,” and
that this scenario is distinguishable from Williams, 829 F.3d
118, where the IGP did not contemplate the circumstances of
a plaintiff in SHU).
Considering Plaintiff's statements, which “stand alone and
unsupported,” Veloz, 339 F. Supp. 2d at 516, along with the
evidence Defendants have submitted showing there is no
record of Plaintiff filing an appeal regarding the August 4,
2015 incident, or filing a grievance or appeal regarding the
October 31, 2015 incident, (Defs.' 56.1 ¶¶ 9–12; Plaintiff's
Sing Sing Grievance Record; Plaintiff's CORC Grievance
Record), and evidence that Plaintiff has successfully used the
IGP on 39 previous occasions, (id. ¶¶ 10, 13; Pl.'s Decl. ¶
6), the Court concludes that no exception to the exhaustion
requirement applies.
Because Plaintiff has failed to exhaust his available
administrative remedies as to the remaining four instances of
retaliation he alleges in his SAC, the Court grants summary
judgment to Defendants on all remaining claims. Khudan,
2016 WL 4735364, at *5 (granting summary judgment to
defendants because “[p]laintiff's self-serving and incomplete
testimony ... is insufficient to create a genuine dispute of
fact, particularly in light of [d]efendants' evidence that no
grievance was ever sent”).
III. Conclusion
For the foregoing reasons, Defendants' Motion for Summary
Judgment is granted. The Clerk of the Court is respectfully
directed to terminate the pending Motion, (Dkt. No. 94), enter
judgment for Defendants, close this case, and mail a copy of
this Opinion and Order to Plaintiff.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 498277
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Footnotes
1 Plaintiff's retaliation claims against Defendants Grant and Paroline are the only remaining claims in this case.
The Court dismissed all other Defendants and claims in a September 30, 2016 Opinion and Order, (see
Opinion & Order (Sept. 30, 2016) (“Sept. 30, 2016 Opinion”) (Dkt. No. 52) ), and a January 8, 2018 Opinion
and Order (see Opinion & Order (Jan. 8, 2018) (“Jan. 8, 2018 Opinion”) (Dkt. No. 86).)
2 Plaintiff submitted a Declaration in which he stated that he made his Declaration “pursuant to 28 U.S.C. §
1746.” (Pl.'s Decl. 1.) The Court notes that Plaintiff's Declaration is nearly identical to a supplement to the
SAC Plaintiff filed on April 10, 2018. (See Letter from Tiquan Davis to Court (“SAC Supp.”) (Dkt. No. 93).)
That Supplement, like the Declaration, fails to include the “under penalty of perjury” language. The Second
Circuit has held that the absence of the “under the penalty of perjury” language constitutes a substantial
departure from § 1746. See In re World Trade Ctr. Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013)
(holding that failure to include the phrase “under penalty of perjury” in a declaration constituted a substantial
departure from § 1746 such that the district court did not err in invalidating a declaration that lacked such
language); LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65–66 (2d Cir. 1999)
(reversing summary judgment granted to plaintiff where district court excluded defendant's unsworn letter
that “substantially” complied with the requirements of § 1746, because it included the language “[u]nder
penalty of perjury, I make the statements contained herein,” and was signed and dated, even though it did not
include language that the contents of the letter were “true and correct”); Stair v. Calhoun, No. 12-CV-6121,
2015 WL 1966345, at *1 (E.D.N.Y. May 1, 2015) (finding that pro se plaintiff's unsworn declaration that did
not include the language “true under penalty of perjury” did not meet the requirements of § 1746 because
“[i]nclusion of the language ‘under penalty of perjury’ is an integral requirement of the statute” (citations,
quotation marks, and alterations omitted) ); Ed-George v. Burns, 09-CV-0869, 2009 WL 2957796, at *2
(N.D.N.Y. 2009) (finding that although § 1746 “requires only that a declaration [ ] ‘substantially’ ” conform
with its requirements, the words “under penalty of perjury” are “expressly required” because without them “it
is far from clear to the court that [the] [p]laintiff fully appreciates the consequences, or is impressed with the
solemnity of his declaration” (citations, quotation marks, and alterations omitted) ).
Plaintiff's Declaration does not include the language “under penalty of perjury” nor does it state that the
contents are “true and correct.” It therefore lacks precisely the “integral requirement of the statute” that is
meant to impress upon every declarant “the specific punishment to which he or she is subjected for certifying
to false statements.” In re World Trade Ctr. Disaster Site Litig., 722 F.3d at 488. The Court could therefore
decide this Motion without considering Plaintiff's Declaration. However, because Plaintiff fails to raise a triable
issue of fact even if his Declaration is considered, the Court will consider Plaintiff's Declaration, especially
in light of the “special solicitude” afforded to pro se litigants. Graham v. Lewinski, 848 F.2d 342, 344 (2d
Cir. 1988).
3 Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise statement, in numbered
paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be
tried.” The nonmoving party must then submit “a correspondingly numbered paragraph responding to each
numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing
a separate, short[,] and concise statement of additional material facts as to which it is contended that there
exists a genuine issue to be tried.” Local Civ. R. 56.1(b). “If the opposing party ... fails to controvert a fact set
forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule.” Baity
v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (quotation marks omitted); see also T.Y. v. N.Y.C. Dep't
of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same). “A pro se litigant is not excused from this rule,” Brandever
v. Port Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014) (italics
omitted). Here, Defendants filed and served their 56.1 Statement, (Defs.' 56.1), in addition to a statement
notifying Plaintiff of the potential consequences of not responding to the Motion, as required by Local Rule
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56.2, (Dkt. No. 99). Despite this notice, Plaintiff failed to submit a response to Defendant's 56.1 Statement
of Facts. Accordingly, the Court may conclude that the facts in Defendant's 56.1 Statement are uncontested
and admissible. See Brandever, 2014 WL 1053774, at *3 (concluding that because the pro se plaintiff did
not submit a Rule 56.1 statement in response to the defendant's statement of facts, “there [were] no material
issues of fact”); Anand v. N.Y. State Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 WL 4757837,
at *7 (S.D.N.Y. Aug. 29, 2013) (same).
Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when confronted with motions for
summary judgment,” Graham, 848 F.2d at 344, the Court will “in its discretion opt to conduct an assiduous
review of the record,” when deciding the instant Motion, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.
2001) (quotation marks omitted); see also Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund-
Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y. 2014) (“Although [the] plaintiffs did not file a
Rule 56.1 statement, the Court has independently reviewed the record to ensure that there is uncontroverted
evidence to support the paragraphs referenced in [the] defendants' Rule 56.1.”); Pagan v. Corr. Med. Servs.,
No. 11-CV-1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept. 27, 2013) (explaining that “[t]he [c]ourt ha[d]
considered the [motions for summary judgment] in light of the entirety of the record to afford [the pro se]
[p]laintiff the special solicitude to which he [was] entitled” where the plaintiff failed to submit a Rule 56.1
response); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872, 2013 WL 2922483, at *1 (S.D.N.Y. June
14, 2013) (“[W]here a pro se plaintiff fails to submit a proper ...Rule 56.1 statement in opposition to a summary
judgment motion, the [c]ourt retains some discretion to consider the substance of the plaintiff's arguments,
where actually supported by evidentiary submissions.” (italics and quotation marks omitted) ). The Court also
will consider Plaintiffs' opposition papers.
4 Defendant Jackson was dismissed from this Action with prejudice by the Jan. 8, 2018 Opinion.
5 For non-paginated exhibits, the Court cites to the ECF-generated page numbers at the top right corner of
the relevant page.
6 In his Declaration, Plaintiff also makes several general statements about Sing Sing's grievance-filing process.
“Between 2014 until the present there have been numerous complaints made by the ILC to the administration
about the IGRC's failure to hold timely hearing, lose and not file appeals, especially those made against
corrections staff. These complaints caused the director of CORC to physically come to [Sing Sing] to
investigate.” (Pl.'s Decl. ¶ 5.) However, “where a party relies on affidavits ... to establish facts, the statements
‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant ... is competent to testify on the matters stated.’ ” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.
2012) (quoting Fed. R. Civ. P. 56(c)(4) ). Plaintiff does not point to any admissible evidence documenting
any complaints that other inmates allegedly made about the grievance-filing process, nor does he explain the
basis of his personal knowledge of the CORC director's alleged visit to Sing Sing. Plaintiff does not explain
how he knows or what he knows about these alleged complaints made by the ILC. Defendants, on the other
hand, have submitted evidence to show that an IGP exists at Sing Sing, (Defs.' 56.1 ¶ 4), and that Plaintiff had
successfully used the IGP, given that he filed eight other grievances while at Sing Sing between 2014 and
2017, (id. ¶ 10), and appealed 39 grievances to CORC, (id. ¶ 13). Thus, although the Court considers portions
of Plaintiff's Declaration that are based on personal knowledge and set out facts that would be admissible as
evidence, DiStiso, 691 F.3d at 230, the Court will not consider these statements by Plaintiff about the general
flaws in Sing Sing's grievance process and the issues other inmates allegedly had with filing grievances,
of which Plaintiff has no personal knowledge. See Baity, 51 F. Supp. 3d at 419–20 (disregarding plaintiff's
affidavit that “contain[ed] a surfeit of improper averments, including statements not based on [the] [p]laintiff's
personal knowledge and conclusory statements that are nothing more than speculation”).
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Deangelis v. Santiago, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 4467888
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Jeffrey DEANGELIS, Plaintiff,
v.
Warden SANTIAGO, et al., Defendants.
Case No. 3:16cv674(MPS)
|
Signed 08/23/2016
Attorneys and Law Firms
Jeffery Deangelis, Suffield, CT, pro se.
INITIAL REVIEW ORDER
Michael P. Shea, United States District Judge
*1 The plaintiff, Jeffrey DeAngelis, is incarcerated at
the MacDougall-Walker Correctional Institution in Suffield,
Connecticut. He has filed a complaint naming Warden
Antonio Santiago, Deputy Warden Martin, Commissioner
Scott Semple, Correctional Officers Murphy and Colby,
Intelligence Officer Lamotte, Property Officers Muckle and
Kudzal, Administrative Remedy Coordinators Michelle King
and Kimberly Daly, Lieutenant Field and Statewide Property
Liaison Rivera as defendants. For the reasons set forth below,
the complaint is dismissed in part.
I. Legal Standard
Pursuant to 28 U.S.C. § 1915A(b), the Court must review
prisoner civil complaints against governmental actors and
“dismiss ... any portion of [a] complaint [that] is frivolous,
malicious, or fails to state a claim upon which relief may be
granted,” or that “seeks monetary relief from a defendant who
is immune from such relief.” Id. Rule 8 of the Federal Rules
of Civil Procedure requires that a complaint contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although detailed allegations are not required, “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citations omitted). A complaint that includes only “ ‘labels
and conclusions,’ ‘a formulaic recitation of the elements
of a cause of action’ or ‘naked assertion[s]’ devoid of
‘further factual enhancement,’ ” does not meet the facial
plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 557 (2007)). Although courts still have
an obligation to interpret “a pro se complaint liberally,” the
complaint must include sufficient factual allegations to meet
the standard of facial plausibility. See Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009) (citations omitted).
II. Plaintiff's Allegations
The plaintiff claims that on December 29, 2015 at Corrigan-
Radgowski Correctional Institution (“Corrigan-Radgowski”),
Correctional Officers Murphy and Colby entered his cell and
began to search it. The plaintiff complained about Officer
Murphy chewing tobacco and spitting it out in his cell.
During the search, Officer Murphy found a cup of liquid
that smelled like it contained an alcoholic substance. The
plaintiff allegedly admitted to Lieutenant Field that the cup of
liquid belonged to him. Prison officials issued the plaintiff a
disciplinary report for possessing an intoxicating substance.
Lieutenant Field placed the plaintiff in a cell in the restrictive
housing unit. Prison officials released the plaintiff from the
restrictive housing unit on January 2, 2016.
Upon his release, the plaintiff did not receive any of the
personal property that had been in his cell prior to the search
and his transfer to the restrictive housing unit. Administrative
Remedy Coordinator King refused to permit the plaintiff to
go to the property room to retrieve his personal property.
*2 On January 4, 2016, Intelligence Officer Lamotte
issued the plaintiff another disciplinary report for contraband
allegedly found in his cell on December 29, 2015. The
plaintiff claims that this additional report violated Department
of Correction Administrative Directives that prohibited
multiple disciplinary reports for the same offense arising out
of the same incident. The plaintiff alleges that Intelligence
Officer Lamotte “maliciously changed the date of the ticket to
January 4, 2016,” and told the plaintiff to “stop messing with
our dip,” referring to the plaintiff's repeated complaints about
the use of tobacco by staff. (ECF No. 1 at 7.) Prison officials
found the plaintiff guilty of the offense and sanctioned him
to ten days of risk reduction earned credits. Prison officials
released the plaintiff from the restrictive housing unit on
January 8, 2016.
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The plaintiff claims that on December 29, 2015, Intelligence
Officer Lamotte removed his personal property from his
cell and did not inventory it. Lieutenant Field incorrectly
listed another officer as having packed and inventoried the
plaintiff's property. On January 8, 2016, the plaintiff went
to retrieve his property from the property room. Property
Officer Kudzal informed the plaintiff that his Nike sneakers
had been confiscated because they cost more than $100.00.
Property Officer Kudzal provided the plaintiff with a receipt
indicating that he had thirty days to arrange to send his
sneakers out of the facility or to have them picked up. The
plaintiff informed Property Officer Kudzal that he had been
permitted to possess the Nike sneakers pursuant to a decision
made by Commissioner Semple and that he had a receipt
indicating the sneakers only cost $89.90.
After reviewing the items of property provided to him
by Property Officer Kudzal, the plaintiff noticed that his
Nintendo machine, 5 games, his headphones and all of his
clothing were missing. Property Officer Kudzal informed the
plaintiff that he did not know who had packed his property
and Property Officer Muckle had not prepared an inventory
of the property when it was delivered to the property room.
Officer Kudzal did find an inventory of the plaintiff's property
from November 20, 2015.
The plaintiff claims that he wrote to Warden Santiago and
Deputy Warden Martin on December 29, 2015, regarding the
use of chewing tobacco by officers at Corrigan-Radgowski
and the fact that he had been recording dates and times when
officers had used chewing tobacco. The plaintiff contends that
inmates would take the discarded chewing tobacco from trash
cans in the prison facility, dry it out and then smoke it. The
plaintiff asserts that he has been exposed to tobacco smoke
when it came through the vents into his cell and housing unit.
The plaintiff claims that the defendants had confiscated his
sneakers in retaliation for the grievances that he had filed
about tobacco use by correctional staff.
On February 2, 2016, Commissioner Semple directed Warden
Santiago to return the plaintiff's Nike sneakers to him because
they were part of a settlement agreement. Deputy Warden
Martin later informed the plaintiff that his sneakers would not
be returned to him.
On February 5, 2016, Property Officer Muckle provided the
plaintiff with a memorandum indicating that the sneakers
would not be returned to him because they had been altered
and informing the plaintiff that he had thirty days to mail them
out of the facility or to have them picked up at the facility.
Deputy Warden Martin signed off on this memorandum.
On February 8, 2016, Administrative Remedy Coordinator
King assisted the plaintiff in completing paperwork to send
the sneakers to Commissioner Semple in order to disprove
the allegation that he had altered the sneakers. In early March
2016, the plaintiff sent letters to Administrative Remedy
Coordinator King and Warden Santiago regarding his request
to have his sneakers mailed to Commissioner Semple. On
March 7, 2016, Warden Santiago denied the plaintiff's request
to send the sneakers to Commissioner Semple.
*3 The plaintiff filed a grievance regarding the confiscation
of his sneakers. On February 15, 2016, Administrative
Remedy Coordinator Daly returned the grievance and
instructed the plaintiff to file a claim with the lost property
board. The plaintiff submitted a lost property investigation
form regarding his sneakers on February 16, 2016. On March
7, 2016, the plaintiff submitted a lost property investigation
form regarding his Nintendo machine, games, headphones,
and clothing. On March 8, 2016, the plaintiff learned from
Statewide Property Liaison Rivera that officials had disposed
of his sneakers because the thirty day deadline for either
sending them out of prison or having someone pick them up
had expired.
On March 14, 2016, the plaintiff filed a lost
property investigation form regarding his sneakers with
Administrative Remedy Coordinator King. She allegedly
failed to process the form.
On March 20, 2016, the plaintiff submitted another lost
property investigation form regarding his Nintendo machine,
games, headphones, and clothing. The plaintiff has not
received a response to the filing of this form.
For relief, the plaintiff seeks monetary damages as well as
injunctive relief. Specifically, the plaintiff seeks an order
banning the use of all tobacco products in any correctional
facility, that he be transferred to another prison facility, and
that his property be returned to him.
III. Discussion
A. Property Claims
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The plaintiff alleges that the defendants deprived him of
his personal property in violation of his constitutional rights
under the Fifth and Fourteenth Amendments. The Supreme
Court has found that the Due Process Clause of the Fourteenth
Amendment is not violated when a prison inmate loses
personal belongings due to the negligent or intentional actions
of correctional officers if the state provides an adequate post-
deprivation compensatory remedy. See Hudson v. Palmer,
468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527,
543 (1981). The holding in Hudson is also applicable to
claims that the defendants deprived an inmate of his or her
property without due process of law in violation of the Fifth
Amendment. See Crum v. Dupell, No. 9:06-CV-512 (FJS/
GJD), 2008 WL 902177, at *4 (N.D.N.Y. Mar. 31, 2008)
(citing cases).
The State of Connecticut provides an adequate remedy
for the kind of deprivation the plaintiff alleges. See State
of Connecticut Department of Correction Administrative
Directive 9.6(16) (Aug. 15, 2013) (providing Department of
Correction's “Lost Property Board shall hear and determine
any claim by an inmate in a correctional facility who
seeks compensation not to exceed ... ($3,500.00) for lost or
damaged personal property” and that inmate may pursue his
property claim with the Connecticut Claims Commissioner
if the Board denies the claim completely or in part); (Conn.
Gen. Stat. § 4-141 et seq. (providing that claims for payment
or refund of money by the state may be presented to
the Connecticut Claims Commission); see also, e.g., S. v.
Webb, 602 F. Supp. 2d 374, 386 (D. Conn. 2009) (finding
Connecticut has sufficient post-deprivation remedies for
seizures of property by state officials). This state remedy is
not rendered inadequate simply because plaintiff anticipates a
more favorable remedy in federal court or it may take a longer
time under the state system before his case is resolved. See
Hudson, 468 U.S. at 535.
The plaintiff alleges that he submitted multiple lost property
forms in February and March 2016 regarding his sneakers
and his missing Nintendo machine, games, headphones, and
clothing pursuant to State of Connecticut Department of
Correction Administrative Directive 9.6(16)B. The plaintiff
states that he did not receive a response from the Lost
Property Board after he submitted the forms. Administrative
Directive 9.16 does not require the Lost Property Board to
provide a receipt or confirmation notice when a claim is filed.
Furthermore, the Lost Property Board is permitted up to one
year from the date of receipt of an inmate's lost property
claim to render a decision. In addition, the year limit may
be extended for good cause shown. See id. at 9.16(16)E. The
plaintiff's complaint was filed on May 2, 2016. Thus, the
time for processing the plaintiff's lost property claims had not
expired at the time the plaintiff filed this action.
*4 The plaintiff has not alleged that the Department of
Correction's procedures for processing property claims are
inadequate. See Edwards v. Erfe, 588 Fed.Appx. 79, 80-81
(2d Cir. 2015) (affirming dismissal of inmate's deprivation of
property claim on the ground that the inmate had not alleged
that process provided by the State of Connecticut, including
the opportunity to seek relief through the Office of the Claims
Commissioner, was inadequate). The property claims against
the defendants are dismissed for failure to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915A(b)(1).
B. Retaliation Claims
The plaintiff alleges that the defendants retaliated against him
for filing grievances about correctional staff tobacco use by
confiscating his sneakers and losing other items of personal
property. The plaintiff also asserts that Intelligence Officer
Lamotte issued him a false disciplinary report in retaliation
for his complaints about staff using chewing tobacco. The
Second Circuit has “instructed district courts to ‘approach
prisoner retaliation claims with skepticism and particular
care, because virtually any adverse action taken against a
prisoner by a prison official—even those otherwise not rising
to the level of a constitutional violation—can be characterized
as a constitutionally proscribed retaliatory act.’ ” Dolan
v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting
Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003)). Such
claims must be “ ‘supported by specific and detailed factual
allegations,’ not stated ‘in wholly conclusory terms.’ ” Id.
(quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983),
overruled on other grounds, Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002)). To state a First Amendment retaliation
claim, the plaintiff must show “(1) that the speech or conduct
at issue was protected [by the Constitution or federal law], (2)
that the defendant took adverse action against ... [him], and
(3) that there was a causal connection between the protected
speech and the adverse action.” Id. at 294 (internal quotation
marks and citation omitted).
The Second Circuit has repeatedly held that submitting
a grievance to prison officials constitutes conduct that is
protected by the Constitution. See Davis v. Goord, 320 F.3d
346, 352-53 (2d Cir. 2003); Graham v. R.J. Henderson, 89
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Deangelis v. Santiago, Not Reported in Fed. Supp. (2016)
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F.3d 75, 80 (2d Cir. 1996). Although the plaintiff alleges
that he filed grievances with Warden Santiago and Deputy
Warden Martin on the day of his cell search regarding the
use of tobacco by correctional staff, he has not made detailed
factual allegations showing the necessary causation between
the filing of the grievances and the alleged confiscation of his
sneakers and loss of the other items of his personal property.
There are no facts to suggest that defendants Santiago, Martin,
Semple, Murphy, Colby, Muckle, Kudzan, King, Daly, Field
or Rivera confiscated his sneakers or misplaced his other
property in retaliation for his filing grievances about tobacco
use. Thus, this allegation of retaliatory conduct on the part of
the defendants fails to state a plausible claim under the First
Amendment and is dismissed. See 28 U.S.C. § 1915A(b)(1).
The retaliation claim against Intelligence Officer Lamotte,
however, stands on a different footing. The plaintiff alleges
that on December 29, 2015, Intelligence Officer Lamotte was
responsible for removing all of his personal property from
his cell and failing to inventory it. In addition, he issued the
plaintiff a disciplinary report on January 4, 2016 charging the
plaintiff with possessing additional contraband that had been
found in his cell on December 29, 2015. The plaintiff claims
that at the time he issued the disciplinary report, Officer
Lamotte warned the plaintiff to “stop messing with our dip.”
Compl. at 7. The plaintiff contends that in retaliation for
the grievances that he had submitted regarding tobacco use
by prison staff, Officer Lamotte was responsible for losing
or confiscating his Nintendo machine, games, headphones,
and clothing and issuing him a false disciplinary report for
possession of contraband. The court concludes that these
more detailed allegations state a plausible claim of retaliation
and will proceed.
C. Grievance Procedures
*5 The plaintiff alleges that the defendants violated his
First Amendment rights because they made it difficult or
impossible for him to file grievances. It is well-established
that “[i]nmate grievance programs created by state law are
not required by the Constitution and consequently allegations
that prison officials violated those procedures does not give
rise to a cognizable § 1983 claim.” Shell v. Brzesniak, 365 F.
Supp. 2d 362, 370 (W.D.N.Y. 2005). In addition, “prisoners
do not have a due process right to a thorough investigation
of grievances.” Tafari v. McCarthy, 714 F. Supp. 2d 317,
347 (N.D.N.Y. 2010) (citing Torres v. Mazzuca, 246 F.
Supp. 2d 334, 341-42 (S.D.N.Y. 2003) ( “The corrections
officers' failure to properly address [plaintiff's] grievances by
conducting a thorough investigation to his satisfaction does
not create a cause of action for denial of due process because
[plaintiff] was not deprived of a protected liberty interest.”)).
The plaintiff states that he filed grievances about his lost/
confiscated property and on one occasion Administrative
Remedy Coordinator Daly returned a grievance and directed
him to file a claim with the Lost Property Board. Thus,
Coordinator Daly did not prevent the plaintiff from seeking
redress for his complaints within the Department of
Correction. Nor are there any other allegations that conduct
by other defendants prevented the plaintiff from asserting and
pursuing grievances or his claims in this action. The court
concludes that the claims against the defendants with regard
to their alleged attempts to prevent him from filing grievances
do not rise to the level of a constitutional violation and are
dismissed. See 28 U.S.C. § 1915A(b)(1).
D. Conspiracy Claims
The plaintiff generally asserts that the defendants conspired
to confiscate his sneakers. To state a claim for conspiracy
under section 1983, the plaintiff must allege facts showing
an agreement between two or more state actors to act in
concert to inflict an unconstitutional injury on plaintiff and
an overt act done in furtherance of the conspiracy that
causes damages. See Pangburn v. Culbertson, 200 F.3d 65,
72 (2d Cir. 1999). The Second Circuit has consistently held
that a claim of conspiracy to violate civil rights requires
more than general allegations. “[C]omplaints containing only
conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by
specific instances of misconduct.” Ciambriello v. County of
Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (quoting Dwares v.
City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993) (citations, internal
quotation marks, and internal alterations omitted)).
The plaintiff has asserted no facts from which the court
could infer the existence of a conspiracy by the defendants
to confiscate his sneakers. The conspiracy allegation is
conclusory, at best. Accordingly, the plaintiff has not asserted
a plausible conspiracy claim against the defendants and the
claim is dismissed. See 28 U.S.C. § 1915A(b)(1).
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E. Due Process Claim
The plaintiff claims that on January 4, 2016, Officer Lamotte
issued him a disciplinary report for contraband allegedly
found in his cell on December 29, 2015. He claims that
the charge was false and violated Department of Correction
Administrative Directives. Prison officials found the plaintiff
guilty of the offense and sanctioned him to ten days of risk
reduction earned credits.
To state a claim for violation of procedural due process in
connection with his placement in segregation, the plaintiff
must show that he had a protected liberty interest and, if he
had such an interest, that he was deprived of that interest
without being afforded due process of law. See Sandin v.
Conner, 515 U.S. 472 (1995). He has a protected liberty
interest only if the state created a liberty interest in a statute
or regulation and the deprivation of that interest caused him
to suffer an atypical and significant hardship. See Tellier v.
Fields, 280 F.3d 69, 81 (2d Cir. 2000).
*6 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme
Court held that when a state prisoner seeks damages in a
section 1983 action, “the district court must consider whether
a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487. In Edwards v. Balisok, 520 U.S. 641
(1997), the Supreme Court concluded that the holding of Heck
applies to a prisoner's challenge to the procedures used in
a disciplinary proceeding which results in a change to the
prisoner's sentence, including the loss of accumulated good-
time credits. See id. at 648. Thus, a prisoner may not proceed
with a section 1983 action challenging sanctions imposed
pursuant to a disciplinary finding “unless he has shown that
the sanction ... ha[s] been overturned through administrative
channels or by a state or federal court.” Peralta v. Vasquez,
467 F.3d 98, 100 (2d Cir. 2006), cert. denied, 551 U.S. 1145
(2007).
Here, the plaintiff alleges that he received a sanction of ten
days loss of risk reduction earned credits. The loss of risk
reduction earned credit is a sanction that affects the duration
of the plaintiff's confinement. See State of Connecticut
Department of Correction Administrative Directive 4.2A(4),
available at www.ct.gov/dos/LIB/doc/PDF/AD/ad0402a.pdf
(“RREC could affect an inmate's discharge date by five (5)
days a month if in compliance.”).
The plaintiff seeks monetary damages for the alleged
deprivation of his due process rights. Any decision that the
defendants violated the plaintiff's due process rights during
the disciplinary hearing would necessarily imply that the
sanction of a loss of risk reduction earned credits was invalid.
The plaintiff has not alleged that he has challenged the
loss of risk reduction earned credit in a state habeas or
other proceeding or that this sanction has been overturned
or vacated. The due process claim with regard to the loss of
risk reduction earned credits is therefore dismissed without
prejudice. See 28 U.S.C. § 1915A(b)(1).
F. Eighth Amendment Claim
The plaintiff alleges that inmates have been drying the
chewing tobacco discarded by correctional staff and smoking
it. He alleges that he complained about breathing in tobacco
smoke to Warden Santiago and Deputy Warden Martin on
December 29, 2015, but they failed to take action to remedy
the situation. The court concludes these allegations state an
Eighth Amendment claim. See Helling v. McKinney, 509
U.S. 25, 35 (1993) (prisoner may state Eighth Amendment
claim by “alleging that [prison officials] have, with deliberate
indifference, exposed him to levels of [environmental tobacco
smoke] that pose an unreasonable risk of serious damage
to his future health”). The Eighth Amendment claim will
proceed against defendants Santiago and Martin.
ORDERS
The Court enters the following orders:
(1) The First Amendment retaliation claim will proceed
against Intelligence Officer Lamotte in his individual and
official capacities and the Eighth Amendment second-hand
smoke claim will proceed against Warden Santiago and
Deputy Warden Martin in their individual and official
capacities. All other claims are DISMISSED pursuant to 28
U.S.C. § 1915A(b)(1).
(2) Within twenty-one (21) days of this Order, the U.S.
Marshals Service shall serve the summons, a copy of the
complaint and this order on defendants Santiago, Martin and
Lamotte in their official capacities by delivering the necessary
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documents in person to the Office of the Attorney General, 55
Elm Street, Hartford, CT 06141.
(3) Within twenty-one (21) days of this Order, the Clerk
shall ascertain from the Department of Correction Office of
Legal Affairs the current work addresses for Warden Antonio
Santiago, Deputy Warden Martin and Correctional Officer
Lamotte and mail a waiver of service of process request
packet to each defendant in his individual capacity at his
current work address. On the thirty-fifth (35th) day after
mailing, the Clerk shall report to the court on the status of
all the requests. If any defendant fails to return the waiver
request, the Clerk shall make arrangements for in-person
service by the U.S. Marshals Service and the defendant shall
be required to pay the costs of such service in accordance with
Federal Rule of Civil Procedure 4(d).
*7 (4) Defendants shall file their response to the complaint,
either an answer or motion to dismiss, within sixty (60) days
from the date the notice of lawsuit and waiver of service of
summons forms are mailed to them. If the defendants choose
to file an answer, they shall admit or deny the allegations and
respond to the cognizable claims recited above. They may
also include any and all additional defenses permitted by the
Federal Rules.
(5) Discovery, pursuant to Federal Rules of Civil Procedure
26 through 37, shall be completed within six months (180
days) from the date of this order. Discovery requests need not
be filed with the court.
(6) All motions for summary judgment shall be filed within
seven months (210 days) from the date of this order.
SO ORDERED at Hartford, Connecticut this 23rd day of
August, 2016.
All Citations
Not Reported in Fed. Supp., 2016 WL 4467888
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Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Neural Magic, Inc. v. Meta Platforms, Inc., D.Mass.,
March 6, 2023
2004 WL 3691343
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael DEVITO, Plaintiff,
v.
SMITHKLINE BEECHAM CORPORATION
d/b/a Glaxosmithkline, Defendant.
No. Civ.A. 02–CV–0745NPM.
|
Nov. 29, 2004.
Attorneys and Law Firms
De Lorenzo Law Firm, LLP, Schenectady, New York, for
Plaintiff, Scott Lieberman, of counsel.
Phillips Lytle, LLP, Buffalo, New York, for Defendant, Paul
B. Zuydhoek, of counsel.
King & Spalding, LLP, Atlanta, Georgia, for Defendant,
Chilton D. Varner, of counsel.
MEMORANDUM–DECISION AND ORDER
MCCURN, Senior J.
I. Preclusion Motion........................................................................................................ 4
A. Standard for Admissibility of Expert Evidence........................................................... 6
1. Deborah L. Sweeney.................................................................................................. 9
a. Qualified?.................................................................................................................... 9
2. Kevin W. George, M.D............................................................................................... 10
3. James T. O'Donnell.................................................................................................... 13
a. General Causation...................................................................................................... 14
i. Qualified?..................................................................................................................... 14
ii. Reliability of Testimony?............................................................................................. 17
b. Specific Causation...................................................................................................... 19
c. Warnings..................................................................................................................... 19
i. Qualified?..................................................................................................................... 20
ii. Reliability of Testimony?............................................................................................. 22
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II. Summary Judgment Motion........................................................................................ 24
Introduction
*1 “Between 1987 and 1997, the percentage of Americans
being treated for depression more than tripled nationwide[.]”
Shankar Vedantam, Report Shows Big Rise in Treatment
for Depression, WASH. POST, Jan. 9, 2002, at A01. In
December 1996, plaintiff Michael DeVito became one of
those Americans. At that time, his primary care physician
prescribed Paxil, a selective serotonin reuptake inhibitor
(“SSRI”). Mr. DeVito takes Paxil to this day, despite attempts
through the years to discontinue. DeVito claims that he cannot
discontinue taking Paxil because he has become “dependent”
upon it. Affidavit of Robert E. Glanville (Oct. 20, 2003),
exh. A thereto (Complaint) at 2, ¶ 9. More specifically,
plaintiff alleges that he has been unable to stop taking
Paxil due to what he characterizes as “withdrawal reactions”
or “dependency/withdrawal syndrome,” which according to
plaintiff “includ[es], but [is] not limited to, dizziness, nausea,
shaking, electrical-like shocks and horrible dreams.” Id. at 2,
¶¶ 7 and 6.
In this lawsuit plaintiff alleges five causes of action against
the manufacturer of Paxil, defendant Smithkline Beecham
Corporation d/b/a Glaxo Smithkline (“Glaxo”): (1) fraud; (2)
negligence; (3) strict liability; (4) breach of express warranty;
and (5) breach of implied warranty. There is a great deal
of overlap among these five causes of action. The thrust of
plaintiff's complaint is that Glaxo failed to adequately warn
of “Paxil's addictive qualities and dependency/withdrawal
characteristics[.]” Id. at 6, ¶ 19; see also id. at 3, ¶ 11b); at 7,
¶ 25; and at 8, ¶ 33. 1
Discovery is complete and Glaxo is now moving for
summary judgment pursuant to Fed.R.Civ.P. 56. Pursuant to
Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S .Ct. 2786 (1993), Glaxo is also moving to
preclude the testimony of the three witnesses whom plaintiff
is proffering as experts. The court will address Glaxo's
motion to preclude first because if any or all of the proffered
testimony is inadmissible, then that could significantly impact
Glaxo's summary judgment motion in terms of the admissible
proof before the court. See Toole v. Toshin Co. Ltd ., No.
00–CV–821S, 2004 WL 2202580, at *4 (W.D.N.Y. Sept.
29, 2004) (granting defense motion to preclude testimony
of plaintiff's expert and declining to consider his report on
summary judgment motion).
I. Preclusion Motion
Each of the five causes of action which plaintiff alleges
requires him to prove causation. “Under settled New York
law, whether the action is pleaded in strict products liability,
breach of warranty or negligence, the plaintiff in a products
liability case bears the burden of establishing that a defect
in the product as a substantial factor in causing the
injury.” Prohaska v. Sofamor, S.N.C., 138 F.Supp.2d 422,
434 (W.D.N.Y.2001) (internal quotation marks and citation
omitted). Common law fraud likewise “requires a showing of
proximate causation, such that the injury is the natural and
probable consequence of the defrauder's misrepresentation
or ... the defrauder ought reasonably to have foreseen that the
injury was a probable consequence of his fraud.” Cyber Media
Group, Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d
559, 580 (E.D.N.Y.2002) (internal quotation marks and
citation omitted). To establish causation here, plaintiff DeVito
“must offer admissible testimony regarding both general
causation,” i.e. that Paxil can cause the type of symptoms of
which plaintiff complains when attempting to discontinue that
drug, “and specific causation,” i.e. that Paxil actually caused
DeVito's alleged symptoms upon discontinuation of Paxil.
See Amorgianos v. National Railroad Passenger Corporation,
303 F.3d 256, 268 (2d Cir.2002) (citation omitted) (emphasis
added); see also Blanchard v. Eli Lilly & Co., 207 F.Supp.2d
308, 314 (D . Vt.2002) (citations omitted) (“Plaintiffs ...
must prove both general and specific causation in order to
prevail on their claim, that is, that Prozac is capable of
causing and in fact did cause the deaths in this case.”). In the
context of Paxil litigation, “the general causation question is
limited to whether discontinuation from Paxil is capable of
causing dizziness, agitation, anxiety, nausea, etc.” In re Paxil
Litigation, 218 F.R.D. 242, 249 (C.D.Cal.2003). Specific
causation, on the other hand, focuses on whether a plaintiff
can “prove that [his] symptoms came from Paxil, as opposed
to, for example, the relapse of the underlying illness or the
consumption or discontinuation of other drugs.” Id.
*2 To establish causation, plaintiff DeVito seeks to offer
the testimony of three “expert” witnesses: (1) Mr. John T.
O'Donnell, a pharmacist with a Master's Degree in nutrition;
(2) Dr. Kevin W. George, a former psychiatrist of plaintiff's;
and (3) Ms. Deborah Sweeney, plaintiff's treating nurse
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practitioner. Glaxo is seeking to “preclude ... [these] experts
from offering any opinion that: (I) Paxil causes substance
dependence, or is either addictive or habit-forming; or (ii)
that plaintiff is addicted to Paxil or has developed substance
dependence as a result of taking it.” Memorandum of Law in
Support of Glaxosmithkline's Motion to Preclude Plaintiff's
Experts' Testimony Pursuant to Fed.R.Evid. 702 and Daubert
(“Def. Preclude Memo.”) at 4. In preparation for trial, each
of these witnesses has been deposed and Mr. O'Donnell has
provided an “expert” report on plaintiff's behalf. Apart from
these witnesses, plaintiff proffers no other causation evidence.
To support his theory that Paxil is defective due to an
inadequate warning, plaintiff is relying solely upon the
deposition testimony and “expert” report of Mr. O'Donnell.
Glaxo argues for the preclusion of “[h]is warnings ‘opinions”
’ because O'Donnell is not qualified to testify on that issue
and even if he were, “his opinions are neither reliable nor
scientific.” Def. Preclude Memo. at 24.
A. Standard for Admissibility of Expert Evidence
There is a two-part inquiry in deciding the admissibility
of expert evidence. First, in accordance with Fed.R.Evid.
702, “[t]he court should admit specialized expert testimony
if the witness is ‘qualified as an expert by knowledge,
skill, experience, training or education’ and his testimony
‘will assist the trier of fact to understand the evidence or
to determine a fact in issue.” ’ Nora Beverages, Inc. v.
Perrier Group of America, Inc., 164 F.3d 736, 746 (2d
Cir.1998) (quoting Fed.R.Evid. 702); see also Kass v. West
Bend Company, No. 02–CV–3719, 2004 WL 2475606, at *4
(E.D.N.Y. Nov. 4, 2004) (citation omitted) (“As a threshold
matter, the court must examine [the witness'] qualifications
to testify about alternative ... designs.”) Second, “in the form
of an opinion or otherwise,” the court must insure that “(1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” Fed.R.Evid. 702. In other
words, whether an expert witness' “opinion is ultimately
admissible depend on the reliability and relevance of the
proffered testimony.” Kass, 2004 WL 2475606, at *5.
In this regard, the Supreme Court has instructed the by now
oft-cited rule that a district court must act as “a gatekeeper to
exclude invalid and unreliable expert testimony.” Bonton v.
City of New York, No. 03 Civ. 2833, 2004 WL 2453603, at *2
(S.D.N.Y. Nov. 3, 2004) (citation omitted). This gatekeeping
obligation applies whether the proposed expert testimony is
based upon scientific knowledge, “technical,” or some other
“specialized” knowledge. See Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999) (citing
Fed.R.Evid. 702). As with other types of evidence, the
court must also bear in mind that under Rule 403, even
relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, or misleading the jury.” Fed.R.Evid.
403. In Daubert the Supreme Court soundly reasoned that
“[e]xpert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of this risk,
the judge in weighing possible prejudice against probative
force under Rule 403 ... exercises more control over experts
than over lay witnesses.” Daubert, 509 U.S. at 595, 113 S.Ct.
at 2798 (quotation marks and citation omitted) (emphasis
added). Finally, it should be noted that “[t]he proponent
of expert evidence must establish admissibility under Rule
104(a) of the Federal Rules of Evidence by a preponderance
of the proof.” Bonton, 2004 WL 2453603, at *2 (citing
Bourjaily v. United States, 483 U.S. 171, 175–76 (1987)).
This burden is the same regardless of whether the issue is
the “qualification[s] of a person to be a witness, ..., or the
admissibility of the evidence” itself. Fed.R.Evid. 104(a). In
the present case, this requires plaintiff Devito to prove by a
preponderance of the evidence that each of the three witnesses
whom he is proposing to call as an expert qualify as such; and
that the proposed testimony of each is admissible.
*3 “In assessing expert qualifications, ‘[l]iberality and
flexibility in evaluating qualifications should be the rule; the
proposed expert should not be required to satisfy an overly
narrow test of his own qualifications.” ’ Kass, 2004 WL
2475606, at *4 (quoting Lappe v. American Honda Motor
Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y.1994) aff'd 101 F.3d
682 (2d Cir.1996)). “So long as the expert stays within the
‘reasonable confines of his subject area,’ the expert can fairly
be considered to possess the ‘specialized knowledge’ required
by Rule 702.” Id. (quoting Lappe, 857 F.Supp. at 227) (other
citation omitted).
“In Daubert, the Supreme Court articulated four factors
pertinent to determining the reliability of an expert's
reasoning or methodology: (1) whether the theory or
technique relied on has been tested; (2) whether the theory or
technique has been subjected to peer review and publication;
(3) whether there is a known or potential rate of error and
the existence and maintenance of standards controlling the
technique's operation; and (4) whether the theory or method
has been generally accepted by the scientific community.”
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Id. (citing Daubert, 509 U.S. at 593–94, 113 S.Ct. at 2796–
97). “These factors do not, however, constitute a ‘definitive
checklist or test.” ’ Id. (quoting Daubert, 509 U.S. at 593,
113 S.Ct. at 2796). “Rather, they are intended to be applied
flexibly, depending on the particular circumstances of the
particular case at issue.” Id. (citing Kumho Tire, 526 U.S. at
150, 119 S.Ct. at 1175).
In Kumho, the Supreme Court recognized that “when
evaluating the admissibility of non-scientific expert
testimony, the standard under Rule 702 is a liberal and flexible
one, and the factors outlined in Daubert are merely guidelines
in aiding a court's reliability determination.” Houlihan v.
Marriott International, Inc., No. 00 Civ. 7439, 2003 WL
22271206, at *3 (S.D.N.Y. Sept. 30, 2003) (citing Kuhmo, 526
U.S. at 151, 119 S.Ct. at 1175). “For example, in some cases,
reliability concerns may focus on personal knowledge or
experience rather than strict scientific methods.” Id. (citation
omitted). Regardless of which criteria a court applies to assess
the admissibility of expert testimony, “the Supreme Court has
made clear that the district court has a ‘gatekeeping function’
under Rule 702—is charged with ‘the task of ensuring that
an expert's testimony both rests on a reliable foundation and
is relevant to the task at hand.” ’ Amorgianos, 303 F.3d at
265 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786)
(other citation omitted). Finally, it should be noted that “ ‘the
gatekeeping inquiry must be tied to the facts of a particular
case[.]” ’ Id. at 266 (quoting Kumho Tire, 526 U.S. at 150,
119 S.Ct. at 1175).
1. Deborah L. Sweeney
a. Qualified?
Glaxo's motion to preclude the testimony of Ms. Sweeney 2
requires little if any analysis. Glaxo is moving to preclude
her testimony because it does not believe she is qualified to
testify as an expert. Additionally, Glaxo contends that “her
proposed opinion lacks a reliable scientific foundation.” Def.
Preclude Memo. at 26. Plaintiff did not bother to respond
to this aspect of Glaxo's motion. This lack of response
amounts to a concession by plaintiff that the court should
exclude Ms. Sweeney's testimony. Cf. Green v. Doukas, No.
97 CIV.8288CMGAY, 2001 WL 767069, at *8 (S.D.N.Y.
June 22, 2001) (granting motion to preclude expert testimony
because “plaintiff's failure to oppose the motion suggests ... it
has merit[ ]”). Accordingly, the court grants Glaxo's motion
to the extent it is seeking preclusion of Ms. Sweeney's
testimony. See Amaker v. Coombe, No. 96 Civ. 1622, 2003
WL 21222534, at *6 (S.D .N.Y. May 27, 2003) (granting
motion to preclude where plaintiff defaulted); see also
Martinez v. Sanders, No. 02 Civ.5624, 2004 WL 1234041, at
*3 (S.D.N.Y. June 3, 2004) (because plaintiff did not respond
to motion, court granted same on “default” theory) (and cases
cited therein).
2. Kevin W. George, M.D.
*4 Glaxo also seeks to preclude the testimony of Dr. Kevin
George. Dr. George is a psychiatrist who saw Mr. DeVito in
consultation twice—once on November 2, 2001 and again on
December 13, 2001. Glanville Aff., exh. G thereto at 51 and
76.
Glaxo is not challenging Dr. George's qualifications, but
rather the nature of his testimony. Glaxo is seeking to exclude
Dr. George's testimony because he “has expressly disavowed
all of the opinions that plaintiff ascribed to him in plaintiff's
expert disclosure.” Def. Preclude Memo. at 25. Further, even
if Dr. George had not disavowed those opinions, Glaxo argues
that his “proposed testimony [is] inadmissible because it lacks
any reliable scientific foundation.” Id.
Plaintiff's response focuses almost exclusively on Dr.
George's qualifications, which are not in dispute. As to the
opinions which plaintiff attributes to Dr. George, the sum
total of plaintiff's response is that any alleged “shortcomings”
in that testimony go to weight and credibility, and not
to admissibility. Memorandum of Law in Opposition to
Defendant's Motion to Preclude Plaintiff's Experts (“Pl. Opp'n
Preclude”) at 5. The court disagrees. As will be seen, Dr.
George's purported opinion testimony does not have simply
a few “shortcomings.” It has glaring holes in terms of
reliability, not the least of which is Dr. George's unequivocal
deposition testimony disavowing that he made the opinions
which plaintiff claims he did.
In his expert disclosure plaintiff specifically identifies Dr.
George as an “expert” whom he intends to call at the time
of trial. Glanville Aff., exh. E thereto at 1. According to
plaintiff's expert disclosure, Dr. George will testify as follows:
that in his opinion, within a degree of
reasonable medical certainty, ... [1] the
plaintiff is experiencing withdrawal
reactions from the drug Paxil and
that each time the plaintiff attempts
to ‘wean’ himself off of the drug or
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to lower the dosage of the drug, the
plaintiff experiences said withdrawal;
2) ... the plaintiff's withdrawal signs
and symptoms are a result of the
plaintiff ingesting Paxil; and 3) ... the
plaintiff has sustained injury in that
he has been unable to discontinue the
use of Paxil and has been caused to
suffer the signs and symptoms of the
withdrawal syndrome associated with
the use and attempted discontinuance
of Paxil.
Glanville Aff., exh E thereto. Dr. George is confining his
opinions to how Paxil allegedly effected plaintiff DeVito—not
whether Paxil is capable generally of causing the symptoms
of which DeVito complains. Therefore, although the plaintiff
did not specify the purpose for which he is offering Dr.
George's testimony, presumably it is being offered on the
issue of specific causation.
As noted earlier, ordinarily once a court finds a witness
qualified as an expert, the next issue is the admissibility of
that witness' opinion testimony. Here, however, it appears that
each of the opinions which plaintiff attributes to Dr. George
have been expressly disavowed in his deposition. Dr. George
was asked point blank whether he had formed any of the
three opinions quoted above, and whether he was prepared
to testify to same. Each time he answered no. See Glanville
Aff., exh. G thereto at 88–91. Obviously, if Dr. George has
not formed the opinions which plaintiff is ascribing to him,
necessarily he has no foundation, scientific or otherwise, for
same. Accordingly, the court excludes the opinion testimony
outlined above which plaintiff is attributing to Dr. George.
*5 Even if Dr. George had not expressly disavowed the
opinions set forth above, the court still must exclude his
testimony. The crux of each of these opinions is that plaintiff
DeVito has “withdrawal reactions,” or “withdrawal signs and
symptoms” caused when he attempts to discontinue or taper
below a certain dosage of Paxil. Glanville Aff., exh. E thereto.
Dr. George's deposition testimony did not so state such. To be
sure, Dr. George did testify that he used “Paxil withdrawal”
as a “label to capture what [DeVito] was describing that he
had been experiencing.” Id., exh. G thereto at 59 (emphasis
added). When later in his deposition Dr. George was pressed
as to whether or not he diagnosed plaintiff “as suffering from
Paxil withdrawal [,]” he reiterated that he “applied that label
to describe the symptoms that [DeVito] reported in relation to
tapering Paxil.” Id. at 102 (emphasis added).
There is an obvious difference between labeling a symptom
which a patient describes and actually diagnosing that person.
Significantly, Dr. George did not diagnosis plaintiff with Paxil
withdrawal. Perhaps that is because “Paxil withdrawal is
not a formal diagnosis within DMS–IV[.]” Id. at 94. (“The
DSM–IV is the Diagnostic and Statistical Manual, the fourth
revision of it, that psychiatrists generally base their diagnoses
on.” Id.) And, “[t]here is no criteria for diagnosing somebody
with Paxil withdrawal.” Id. at 60. For example, there are no
“objective tests or assessments,” aside from skin inspection
for signs of sweating, “that could have been done to determine
whether those reports [by DeVito] were genuine[.]” Id. at
62. So, Dr. George simply took plaintiff's description of his
symptoms at “face value,” and made no attempt to determine
whether [DeVito's] report of those symptoms was genuine [.]”
Id. at 62 and 79.
In light of the foregoing, even if Dr. George were inclined
to testify that Paxil specifically caused the symptoms which
plaintiff claims it did, there is no foundation for this testimony.
What is particularly revealing in this regard is Dr. George's
candor when asked: “Have you ever made any determination
as to why Mr. DeVito's tapering off of Paxil may be taking
longer than some of your other patients?” ' Id. at 100. Dr.
George replied, “I had no scientific way, ..., of explaining
why he was having such difficulty tapering off Paxil.” Id.
(emphasis added).
Further, plaintiff DeVito saw Dr. George in the latter's
capacity as a treating psychiatrist. Thus, as is plain from Dr.
George's deposition, he was concerned primarily with the
symptoms of which plaintiff complained, not determining the
underlying cause. See Munafo v. Metropolitan Transportation
Authority, Nos. 98 CV–4572, 00–CV–0134, 2003 WL
21799913, at *19 (E.D.N.Y. Jan. 22, 2003). Had Dr. George
been focusing on the underlying cause, undoubtedly he would
have performed a differential diagnosis, which “typically
includes a physical examination, clinical tests, and a thorough
case history.” Zwillinger v. Garfield Slope Housing Corp .,
No. CV 94–4009, 1998 WL 623589, at *19 (E.D.N.Y.
Aug. 17, 1998) (citations omitted). But, Dr. George did not.
Without a differential diagnosis, specific causation cannot be
established. See id. (“To establish specific causation, other
possible causes for the symptoms experienced by plaintiff
should be excluded by performing a ‘differential diagnosis.”
’)
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3. James T. O'Donnell
*6 Glaxo argues that the court must preclude O'Donnell's
testimony for two reasons. First, he is not qualified as an
expert as to the issues upon which he is being asked to opine—
general and specific causation and the adequacy of the Paxil
warnings. Second, even if he does qualify as an expert, Glaxo
contends that the court should preclude his opinions because
they lack the requisite scientific foundation and are otherwise
unreliable. Plaintiff responds that O'Donnell's “experience
and credentials are impressive [,]” whether the issue is his
qualifications to testify as an expert on causation or as an
expert on warnings. Pl. Preclude Memo. at 4. Plaintiff further
responds that regardless of whether O'Donnell is opining
on causation or warnings, any alleged “shortcomings” in
that testimony go to “weight and credibility, and not [to] ...
admissibility.” Id. at 5 (citation omitted).
Plaintiff DeVito is offering O'Donnell's testimony on three
separate issues, which require different areas of expertise. The
court will examine O'Donnell's qualifications as to each.
a. General Causation
Glaxo offers a host of reasons as to why O'Donnell “is not
an ‘expert’ on scientific issues concerning general or specific
causation” with respect to SSRIs or Paxil. Def. Preclude
Memo. at 7 (emphasis added). All of these reasons have merit.
i. Qualified?
This is not the first court to be confronted with the issue
of whether Mr. O'Donnell is qualified to give an expert
opinion here. In Newton v. Roche Laboratories, Inc., 243
F.Supp.2d 672 (W.D.Tex.2002), the court found that he was
not qualified to render an opinion on general causation. Id.
at 679. There, the parents of a 16 year old girl claimed
that Accutane, a prescription acne medication manufactured
by the defendant, caused or precipitated the onset of their
daughter's schizophrenia. In much the same way plaintiff
DeVito is offering O'Donnell's testimony here, the plaintiffs
in Newton offered O'Donnell as an expert “to testify regarding
general causation, i.e., that Accutane is pharmacologically
capable of causing schizophrenia.” Id. at 677. After outlining
a number of ways in which O'Donnell's qualifications were
lacking, the court expressly found that he was not qualified to
render such an opinion.
To support that conclusion, the Newton court relied upon
O'Donnell's deposition testimony, which is substantially
similar to his deposition testimony in this case. For example,
O'Donnell testified in Newton, as he did here, that “he
has never earned an M.D., a Ph.D., or any degree in
pharmacology.” Id. at 677; see also O'Donnell Dep'n at 24–
25 and 53. Yet, he “still holds himself out as a ‘doctor’
and a pharmacologist[.]” Id. As in Newton, “O'Donnell ...
[continues to] grant[ ] himself the title of ‘doctor’ in reliance
upon his Pharm.D degree, [which] he conceded in his
deposition that in the majority of pharmacy schools, th[at] ...
degree is ‘an entry-level degree’ that pharmacists must have
to ... even practice pharmacy.” Id. at 677 n. 2 (citation
omitted); see also O'Donnell Dep'n at 24–25. In contrast,
to obtain a degree in pharmacology usually three or four
years of graduate school is required. O'Donnell Dep'n at 25–
26. O'Donnell did get a graduate degree, but it was not in
pharmacology. O'Donnell's formal education consists of a
four year degree in pharmacy and a Master's Degree in clinical
nutrition. Id. at 27.
*7 In addition to questioning O'Donnell's background
generally, the Newton court pointed out his “lack [of]
appropriate pharmacological training relevant to the issues”
therein, i.e. “Accutane, Vitamin A, schizophrenia, or
psychosis[.]” Id. at 678. The same may be said here. There is
no factual basis upon which this court can find that O'Donnell
is an expert regarding SSRIs generally, not to mention Paxil or
discontinuation of Paxil. Indeed, as his deposition testimony
shows, O'Donnell's asserted expertise on these subjects is
non-existent. See id. at 21, 24; 38–40; and 45.
Given that SSRIs are a fairly recently developed class
of drugs, understandably they were not the subject of
O'Donnell's course work as an undergraduate, or when getting
his Master's Degree in nutrition. Id. at 21 and 24. Since
that time, O'Donnell has done nothing to advance his own
knowledge as to SSRIs generally or Paxil in particular.
When directly asked if he had “done any clinical research
whatsoever relating to antidepressants,” O'Donnell replied
that he had not. Id. at 38. He responded the same way when
asked if he had “done any scientific research concerning
Paxil or SSRI antidepressants[.]” Id. at 39. Moreover,
O'Donnell conceded that the first time he “review[ed] ...
scientific literature in connection with Paxil discontinuation
symptoms[ ]” was for this case. Id. at 40–41.
This is the sort of “litigation-drive expertise” which courts
have eschewed. To illustrate, the court in Mancuso, 967
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F.Supp. at 1443, reasoned that it could not “help but conclude
that [plaintiff's expert] was not in fact an expert ... when he
was hired by the plaintiffs, but that he subsequently attempted,
with dubious success, to qualify himself as such be selective
review of the relevant literature.” This appears to be an apt
description of what Mr. O'Donnell attempted to do in the
present case.
The court stresses that it is no single factor which is
dispositive of whether O'Donnell qualifies as an expert on the
issue of general causation. Rather, it is the cumulative effect
of the foregoing which convinces the court that O'Donnell
lacks the lack of relevant “knowledge, skill, experience,
training or education” to testify as an expert on the issue of
general causation vis-a-vis the discontinuation of Paxil. As
he admitted, O'Donnell is not a pharmacologist. Therefore,
he cannot, as he does in his “expert report,” opine to
a “reasonable pharmacological certainty,” that plaintiff is
experiencing “withdrawal toxicity reactions from Paxil[.]”
O'Donnell Rep. Clearly, allowing a pharmacist/nutritionist
such as O'Donnell to testify in that way would run afoul of the
rule that an expert must stay “within the reasonable confines
of his subject area[.]” ' Kass, 2004 WL 2475606, at *2475606,
at *4 (internal quotation marks and citations omitted). Simply
put, the court agrees with the court's comment in Newton
that “[p]laintiff's attempts to present O'Donnell as an expert
pharmacologist [is] ... an extremely bold stretch.” Newton,
243 F.Supp.2d at 279. 3
ii. Reliability of Testimony?
*8 O'Donnell's lack of education, training and background
as to Paxil becomes even more apparent when viewed in terms
of the opinions which he has rendered in this case. That is so
because a “court's evaluation of qualifications is not always
entirely distinct from the court's evaluation of reliability.”
Pearson v. Young, No. CIV–99–1559–F, 2002 WL 32026157,
at *3 (W.D.Okla. Jan. 17, 2002).
O'Donnell's opinion as to causation is that “DeVito is
experiencing withdrawal toxicity reactions from Paxil, and
indeed, each time he attempts to wean or lower the dosage,
he again experiences such infinity [sic].” Glanville Aff., exh.
E thereto. O'Donnell states that when plaintiff's dosage of
Paxil is lowered, he suffers from the following “withdrawal
signs and symptoms [:] anxiety, jitery [sic], agitation, nausea,
drowsiness, generalized discomfort and vertigo[.]” O'Donnell
Report at 2. “For this opinion to be admissible, O'Donnell
must have a reliable scientific basis to support not only
(1) a casual relationship between” Paxil and the enumerated
side-effects, “but also (2) his assertion that [Paxil] will
produce these side-effects.” See Newton, 243 F.Supp.2d at
679 (emphasis added). O'Donnell's report and deposition
testimony are void of a scientific basis to support either of
those assertions.
In terms of publications, O'Donnell testified that he was the
editor of a non-peer reviewed book entitled “Drug Injury
Liability, Analysis and Prevention.” Id. at 98–99. That book
contained a mere six sentences on SSRIs, including the two
sentences on Paxil. Id. at 99. Given that minimal reference
to SSRIs, it is not surprising that that book contains nothing
about discontinuation symptoms. See id. It further appears
that he has performed absolutely no research regarding Paxil,
much less its discontinuation. Id. at 38–39. What is more,
O'Donnell has done no scientific or clinical research of any
kind for almost two decades. The last time he did any such
research was in he “early '80s as part of a pharmacology lab
sabbatical,” where he was looking at vitamins and critical care
drugs used in Intensive Care Units. Id. at 36.
In light of the foregoing, to allow plaintiff to rely upon Mr.
O'Donnell's opinions as to general causation clearly would
violate Daubert' s “requirement that the expert testify to
scientific knowledge—conclusions support by good grounds
for each step in the analysis[.]” ' Amorgianos, 303 F.3d at 267
(citations and quotation marks omitted).
b. Specific Causation
It stands to reason that if Mr. O'Donnell lacks (which he
does) the qualifications to testify as to general causation, he
lacks the qualifications to testify as to specific causation.
His opinion as to specific causation suffers from the
same infirmities, detailed above, as to general causation.
Accordingly, the court finds that Mr. O'Donnell does not have
the requisite qualifications to testify as to specific causation;
and even if he did, his opinions in that regard are unreliable.
c. Warnings
*9 Glaxo contends that because O'Donnell “lacks any
pertinent qualifications[,]” Def. Memo. at 14, he should not
be allowed to testify that in his opinion the “lack of ...
a precaution and warning about withdrawal risk and the
need to taper [when discontinuing Paxil] renders the product
defective due to an inadequate warning. See O'Donnell Report
at 3. Plaintiff did not directly respond to this argument.
Included in the list of highlighted credentials in plaintiff's
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memorandum of law is that Mr. O'Donnell “is currently
involved in the teaching of New Drug Development and
Regulations [.]” Pl. Opp'n Memo. at 2. However, plaintiff
does not explain, or cite to any portion of O'Donnell's
deposition explaining, how or why this position qualifies him
to testify as an expert on warnings.
As with the other issues upon which plaintiff intends to offer
O'Donnell's testimony, plaintiff baldly retorts that O'Donnell's
“extensive experience qualifies as specialized knowledge
gained through experience, training, or education[.]” Pl.
Memo. at 4 (internal quotation marks and citations omitted).
And, once again, he relies upon the argument that
Glaxo's reasons to preclude O'Donnell's testimony regarding
warnings should be saved for trial, i.e. they should be used to
attack O'Donnell's credibility and the weight which the jury
might give to his opinions regarding Paxil warnings.
i. Qualified?
O'Donnell “claim[s] to be an expert in drug labeling[.]”
O'Donnell Dep'n at 90. Presumably he is including drug
warnings within the province of this supposed expertise. In
any event, to qualify as an expert it is not enough for a
witness to simply declare that he is one. Federal Rule of
Evidence 702 requires more. As plaintiff acknowledged, a
witness must satisfy the court that he has a certain amount
of “knowledge, skill, experience, training or education [ ]”
in the relevant field before he can be deemed an expert. See
Nora Beverages, 164 F.3d at 746 (internal quotation marks
and citation omitted). Close examination of O'Donnell's
deposition testimony reveals that he is lacking in each of
those areas when it comes to the subject of the adequacy of
prescription drug warnings.
O'Donnell's claimed expertise admittedly is “through
experience,” not through formal education. O'Donnell
Deposition at 90–92. His experience consists primarily of
having attended continuing education (“CE”) programs,
where drug labeling was a topic. Id. Those CE programs
were to satisfy his pharmaceutical and nutritionist CE
requirements, however; and he was unable to elaborate on the
substance of same. See id. Furthermore, O'Donnell has not
consulted with any pharmaceutical company “concerning the
labeling for any antidepressant[.]” Id. at 96. O'Donnell agrees
“that the FDA [Food and Drug Administration] is the highest
authority on how drugs are labeled in this country[,]” but he
has also never consulted with them “concerning the labeling
for any antidepressant. Id. For that matter, O'Donnell has not
worked for or consulted with the FDA in any capacity. See
Glanville Aff. at 9, ¶ 39. Thus, O'Donnell's experience in this
area is extremely limited.
*10 Moreover, O'Donnell made two especially damaging
concessions which seriously undermine the suggestion that he
is an expert as to the adequacy of prescription drug warnings.
O'Donnell readily agreed “that in assessing the adequacy of a
label for a prescription drug, the expert rendering the opinion
generally should be familiar with the clinical trials data on
the drug as it relates to the side effect concerning which he
is opining[.]” Id. at 192. Yet, O'Donnell frankly admitted that
he had not reviewed any of the Paxil clinical trials data. See
id. Similarly, O'Donnell conceded that “generally to reach a
conclusion regarding the adequacy of a label for a prescription
drug, the expert rendering the opinion should be familiar
with at least a majority of the available medical literature
on the drug as it relates to the side effect on which he is
opining[.]” Id. at 193. Despite the foregoing, O'Donnell went
on to testify that he has “not read the specific literature [ ]”
relating to discontinuation symptoms of Paxil. Id. 193 and
45. In fact, he has only read “abstracts” of articles. Id. at
46–47. Finally, Mr. O'Donnell has not lectured on, or written
anything (peer reviewed or not) about, “Paxil discontinuation
symptoms apart from [his] export [sic] report in this case[.]”
Id. at 45. As the foregoing clearly shows, Mr. O'Donnell does
not “employ[ ] in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant
field[,]” which here is the adequacy of prescription drug
warnings and Paxil in particular. See Kumho Tire, 526 U .S.
at 152, 119 S.Ct. at 1176.
Mr. O'Donnell may qualify as an expert in the fields of
pharmacy or nutrition, but that is not the purpose for which
his testimony is being offered here. Instead, his testimony is
being offered on the adequacy of Paxil warnings. O'Donnell
has never been drafter or been asked to draft a warning for any
antidepressant, let alone for Paxil. Likewise, he has not done
any research or written any publications on prescription drug
warnings. Thus, whether judged in terms of his education or
experience, does not rise to the level of “expertise ... that
the jury would expect from a bona fide warnings expert.”
See Robertson v. Norton, 148 F.3d 905, 907 (8 th Cir.1998)
(internal quotation marks omitted).
In sum, O'Donnell is being called upon to testify regarding
the adequacy of the Paxil warning, an issue which clearly
is outside the “reasonable confine [s] of his subject area[s,]”
which are pharmacy and nutrition. See Kass, 2004 WL
2475606, at *4 (internal quotation marks and citations
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omitted). Therefore, because O'Donnell does not “possess
the specialized knowledge required by Rule 702[,]” the court
finds that he is not qualified as an expert on the issue of the
adequacy of the Paxil warning. See id.
ii. Reliability of Testimony?
*11 Given the nature of the claims which plaintiff is
alleging in this case, plainly there is a close relationship
between excluding the causation opinion and excluding the
warning opinions which are being offered by O'Donnell.
Miller v. Pfizer, Inc., 196 F.Supp.2d 1062 (D.Kan.2002),
aff'd on other grounds, 356 F.3d 1326 (10 th Cir.2004),
cert. denied, 125 S.Ct. 40 (Oct. 4, 2004), provides a good
example of how a decision to preclude causation “expert”
testimony impacts upon a decision to also preclude warning
testimony. The plaintiff parents in Miller were suing the
manufacturer of Zoloft, another SSRI, alleging that it caused
their son to commit suicide. Similar to the present case,
the plaintiffs in Miller asserted state law claims for strict
liability for marketing defects and misrepresentations, and
negligence for failure to test and warn. The court held that
an “eminent” psychiatrist and neuropsychopharmocologist's
proposed testimony regarding general causation, i.e. that
Zoloft causes suicide, did not satisfy the Daubert criteria
for admissibility because, in short, “he lack[ed] sufficient
expertise on the issue of suicide.” Id. at 1087 and 1088.
The Miller court, as is this court, was then confronted with
the issue of whether that same doctor could qualify as an
expert who would opine “that Zoloft labels do not adequately
warn against the danger of SSRI-induced suicide.” Id. at
1088. After finding that the doctor was not an expert on
that issue, the court soundly reasoned, “[i]f the jury will
hear no evidence that [Paxil] causes [withdrawal symptoms/
addictive], it cannot possibly conclude that [Paxil] labels
do not adequately warn against the danger that [Paxil]
causes [such condition.]” Id. at 1089. That reasoning applies
with equal force here. Even if O'Donnell qualifies as a
prescription drug warning expert, because neither O'Donnell
nor Dr. George (plaintiff's only proof as to causation) qualify
to testify about causation, the former's warning testimony
“would essentially be irrelevant to any larger issues in the
case.” See id. Accordingly, there is no need to analyze
whether O'Donnell's opinions as to warnings pass muster
under Daubert.
In short, plaintiff DeVito has not sustained his burden
of proving by a preponderance of the evidence that Mr.
O'Donnell is qualified to render an opinion as to general
causation, specific causation, or the adequacy of Paxil
warnings. Even if O'Donnell could somehow be deemed to
have the requisite “specialized knowledge” to testify as to any
or all of those issues, “courts do not have to credit opinion
evidence connected to data ‘only by the ipse dixit of the
expert.” ’ Prohaska, 138 F.Supp.2d at 438 (quoting General
Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. (1997)). That is
all O'Donnell has to rely upon; simply because he offers an
opinion which he claims to be valid, plaintiff assumes it is so.
This court will not, however.
*12 For the reasons set forth above, the court grants in
its entirety Glaxo's motion to preclude the testimony of Mr.
O'Donnell; Dr. George; and Ms. Sweeney.
II. Summary Judgment Motion
The court assumes familiarity with the Supreme Court's
trilogy of cases clarifying the governing legal standards on
summary judgment motions, and sees no need to repeat those
standards herein. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317
(1986); and Matsushita Elec. Industr. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986)
It is an understatement to say that the wholesale exclusion
of the testimony of O'Donnell, George and Sweeney
significantly impacts plaintiff DeVito's case. As discussed
at the outset causation is a necessary element of each
of the five causes of action which plaintiff is alleging
herein. Because plaintiff's only causation evidence has been
excluded, it necessarily follows that Glaxo is entitled to
summary judgment in its favor. See Kass, 2004 WL 2475606
(after granting motion to exclude testimony of plaintiff's
claimed expert regarding the feasibility of alternative designs,
court granted defense summary judgment motion because
plaintiff could not satisfy the critical element of a design
defect cause of action); and Zwillinger, 1998 WL 623589
(where plaintiff claimed that her exposure to defendants'
carpeting causes her to develop immunotoxicity syndrome,
court granted summary judgment in defendants' favor after
excluding the of doctor's testimony, which was plaintiff's only
causation evidence).
To conclude, the court hereby GRANTS the motion by
Smithkline Beecham Corporation d/b/a Glaxo Smithkline,
to preclude the testimony of James O'Donnell; Dr. Kevin
George; and Ms. Deborah Sweeney. The court further
GRANTS the motion by Smithkline Beecham Corporation
d/b/a Glaxo Smithkline for summary judgment pursuant to
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Fed.R.Civ.P. 56 dismissing all of plaintiff Michael DeVito's
claims as against it.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2004 WL 3691343
Footnotes
1 The present action, which has been referred to as a “tag-along action,” is one of a number throughout
the country wherein plaintiffs are alleging that Glaxo knew of the hazardous side effects of Paxil and
either concealed, misrepresented or failed to warn of them. See In re Paxil Products Liability Litigation,
296 F.Supp.2d 1374 (Judicial Panel on Multidistrict Litigation 2003). In mid-February 2004, this court was
advised that the Judicial Panel on Multidistrict Litigation (“the Panel) had conditionally transferred this action
to the United States District Court fo the Central District of California for coordinated or consolidated pretrial
proceedings pursuant to 28 U.S.C. § 1407.” Glaxo moved to vacate that conditional transfer as it pertained
to the present case. When plaintiff did not respond, on June 15, 2004, the Panel vacated that conditional
transfer as it relates to Mr. DeVito.
2 During her deposition Ms. Sweeney unequivocally testified, “I'm not a physician. I'm not a nurse practitioner.”
Glanville Aff ., exh H thereto at 123. She holds an associates' degree in nursing, a bachelor of science degree
in health and human services, and a nurse practitioner's degree.” Id. at 12, 17, 35–36. Thus, to refer to Ms.
Sweeney as “Doctor Sweeney, as plaintiff does throughout his expert disclosure, is not only a misstatement
but directly contradicts Sweeney's own testimony. Plaintiff's tendency to exaggerate or overstate certain
things, as will be seen, is not limited to the qualifications of his experts.
3 O'Donnell's insistence on holding himself out as a pharmacologist, see O'Donnell Dep'n at 54, ignores at
least one fundamental distinction between pharmacology and pharmacy—a distinction which is critical here.
“Pharmacology can be fairly described as the study of the effect of drugs on living organisms. Pharmacy,
on the other hand, is the profession of preparing and dispensing drugs.” Newton, 243 F.Supp.2d at 677, n.
1. It is self-evident that there is a vast difference in the education, experience and skill necessary to obtain
degrees in these two different fields.
Apparently O'Donnell recognizes this distinction because in Newton he “admitted ... that from approximately
1982 to 1985, he intentionally and falsely advertised that he possessed a doctorate in pharmacology in an
attempt to attract more interest from lawyers for his consulting expert business.” Id. at 677, n .3 (citation
omitted). He made that same admission in this deposition herein. O'Donnell Dep'n at 28–31. O'Donnell did
change this advertisement because, in his words, it was “incorrect.” Id. at 29. This court cannot overlook what
at best appears to be a serious lapse in judgment, however.
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2023 WL 7712011
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Roger DOMROES, Plaintiff,
v.
Erin WHITE et al., Defendants.
Case No. 1:23-cv-41
|
Signed November 15, 2023
Attorneys and Law Firms
Chad A. Davenport, R. Anthony Rupp, III, Young Woo Kim,
Rupp Pfalzgraf LLC, Buffalo, NY, for Plaintiff.
Ryan Lane Belka, NYS Attorney General's Office, Buffalo,
NY, for Defendants Bryan Hilton, G.S. Gilmore, T.
Thompson, Erich M. Ferriter, Lori Diamond, James Hicks,
Robert O. Thomas, II, Dr. Kevin Ott, Caroline Hakes, Sgt.
Beschler, Lt. Wilcox, Misty O'Dell, Sgt. Sears, Sgt. Bruce
E. Coolbaugh, Lt. Trevor S. Schadewald, Sgt. Crozier, Erin
White.
ORDER ON PARTIAL MOTION TO DISMISS
Geoffrey W. Crawford, Judge
*1 In his First Amended Complaint, Plaintiff Roger
Domroes seeks damages based on nine claims under 42
U.S.C. § 1983 against 22 defendants who were “working
for or in relation to” the New York State Department of
Corrections and Community Supervision's (DOCCS) Elmira
Correctional Facility, where Mr. Domroes was an inmate in
the facility's special housing unit between January and August
2020. (Doc. 6.) Defendants have filed a motion under Fed.
R. Civ. P. 12(b)(6) seeking dismissal of Counts 7 (failure
to intervene), 8 (denial of access to the grievance process),
and 9 (civil conspiracy) in their entirety, and dismissal of
Count 3 (retaliation) to the extent that claim is based on
verbal threats. 1 (Doc. 10.) Plaintiff agrees to dismiss Count
8, but otherwise opposes the motion. (See Doc. 13-1 at 2
n.1.) Defendants filed a reply memorandum on July 13, 2023.
(Doc. 14.) For the reasons discussed below, Defendants’
motion is MOOT in part, GRANTED in part, and DENIED
in part.
Background
The 54-page Amended Complaint includes the following
allegations. 2 At the time of his confinement at the Elmira
Correctional Facility's (ECF) special housing unit (SHU),
Plaintiff was 56 years old and had Parkinson's disease, seizure
disorder, narcolepsy, high blood pressure, hypothyroidism,
high cholesterol, sciatica, heart disease, and carpal tunnel
syndrome. (Doc. 6 ¶ 37.) He also had post-traumatic stress
disorder “as a result of traumatic events that happened 35
years ago while he was imprisoned in the ECF.” (Id. ¶
38.) The SHU where Plaintiff was confined was a “solitary
confinement” unit without windows or proper ventilation. (Id.
¶ 33.)
Plaintiff's claims arise from the following alleged incidents
and events, all of which took place before Plaintiff was
released to the community in November 2020. (Id. ¶ 31.) First,
correction officers “were waiting and assaulted Plaintiff”
upon his arrival at ECF on January 23, 2020. (Id. ¶ 43.)
Plaintiff was handcuffed during the attack (id. ¶ 47) and
sustained a loss of consciousness, braises, and abrasions. (Id.
¶¶ 50, 53.) In the course of the attack, John Does 1 and 2 and
other officers said: “Welcome to Elmira, we know how to deal
with scumbags like you here.” (Id. ¶ 49.) Plaintiff reported the
incident to ECF Assistant Deputy Superintendent Erin White
and to DOCCS Associate Commissioner Bryan Hilton. (Id.
¶¶ 54, 55.) Neither of those officials investigated the January
23 incident or imposed appropriate discipline. (Id. ¶ 56.)
Second, a group of correction officers mocked Plaintiff on
February 8, 2020. (Id. ¶ 59.) Plaintiff became upset about the
taunting and spat at the officers in protest. (Id. ¶ 60.) Officers
Gilmore and John Does 3 and 4 then physically attacked
Plaintiff. (Id. ¶¶ 62–63.) SHU supervisor Sgt. Beschler was
involved in the assault “or at least failed to intervene.” (Id.
¶ 65.) Plaintiff was handcuffed throughout the incident and
sustained a loss of consciousness and multiple physical
injuries. (Id. ¶¶ 68–69.) After the incident, Plaintiff had
difficulty moving and breathing; he continuously moaned in
pain and he made “rasping” sounds as he struggled to breathe.
(Id. ¶¶ 71, 90.)
*2 Third, ECF nurse Caroline Hakes assessed Plaintiff
after he requested emergency medical assistance following
the February 8 incident. While Plaintiff was in the medical
room, he overheard Sgt. Beschler whisper to Nurse Hakes
that Beschler agreed “to help everyone with getting their
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story straight.” (Id. ¶ 77 (cleaned up).) Nurse Hakes then
told Plaintiff that he “looked perfectly fine except for some
superficial abrasion.” (Id. ¶ 78.) Eight days after the February
8 incident, ECF doctor Kevin Ott “examined Plaintiff,
diagnosed him with two fractured ribs that appeared old, and
told him that he was perfectly fine otherwise.” (Id. ¶ 81.) Dr.
Ott ordered some ibuprofen for Plaintiff and had him returned
to his cell. (Id. ¶ 82.) Plaintiff's injuries were not properly
diagnosed until February 27, 2020, when imaging revealed
four rib fractures and a collapsed lung. (Id. ¶ 89.)
On February 28, 2020, Plaintiff filed a grievance regarding
the February 8 incident; the grievance was denied. (Id. ¶¶
92–93.) February 28 also marked the beginning of a 10-
day period when Plaintiff was deprived of meals without
any justification. (Id. ¶¶ 112–113.) Plaintiff also reported the
February 8 incident to Defendant White and personally met
with her about it. (Id. ¶¶ 106–107.)
Fourth, Plaintiff alleges a series of “unlawful threats and
retaliation by prison officers,” all carried out in response
to grievances and lawsuits that Plaintiff filed or to prevent
Plaintiff from reporting misconduct. The first alleged threat
was the presence of two armed officers during a transport on
February 27, 2020, one of whom advised Plaintiff: “You've
made people in high places very unhappy, and someone wants
you to have an ‘accident.’ ” 3 (Id. ¶ 100.) In March 2020, after
Plaintiff stated an intention to file a claim for excessive force,
COs Thompson and Ferriter each threatened Plaintiff with
death and also to set him up with a “new bid”—i.e., to delay
Plaintiff's release from prison by manufacturing a felony case
against him. (Id. ¶¶ 114–125.) Lt. Wilcox also told Plaintiff
that he was writing “too many grievances.” (Id. ¶ 129.)
Fifth, CO Thompson bent and twisted Plaintiff's right wrist on
the morning of April 8, 2020. (Id. ¶¶ 141–144.) Sergeant Sears
admonished other officers at the scene for not helping CO
Thompson and ordered officers to ensure that they blocked
surveillance cameras from filming the event. (Id. ¶¶ 144–
145.) Plaintiff alleges that Thompson and Sears used force
on this occasion because the prior verbal threats had failed to
compel Plaintiff to withdraw his grievances and complaints.
(Id. ¶ 294.) Nurse Hakes subsequently rejected and ignored
Plaintiff's multiple requests for treatment of his right wrist.
(Id. ¶ 149.)
Plaintiff began tossing waste from the toilet in his cell
on or about April 9, 2020 “due to his mental breakdown
and as a sign of protest.” (Id. ¶ 180.) Also, soon after
the April 8 incident—on the basis of an unfounded “cell
visibility obstruction misbehavior”—CO Thompson ordered
the removal of almost all of Plaintiff's items in the cell; that
the cell's water supply be shut down; and that Plaintiff's meals
be halted. (Id. ¶¶ 150–154.) This alleged deprivation of food,
water, and hygiene supplies lasted for three weeks. (Id. ¶
164.) Plaintiff alleges that as a result of these deprivations, he
was “covered with sores and filth, became sick, dehydrated,
and malnourished, and was in anguishing psychological
turmoil.” (Id. ¶ 161.)
Sixth, on the morning of April 12, 2020, the Correctional
Emergency Response Team (CERT) removed Plaintiff from
his cell. (Id. ¶ 197.) When Plaintiff inquired about what
was going on, Defendants Coolbaugh and Crozier replied
that “this is what happens when [you] throw[ ] things at
an officer.” (Id. ¶ 198.) Earlier on the morning of April 12,
before the CERT team's arrival, Plaintiff interacted with CO
Ferriter, who accused Plaintiff of being a “thrower” and a
“spitter.” (Id. ¶ 189.) Plaintiff states that he did not throw feces
or substances at CO Ferriter on April 12, 2020. (Id. ¶ 215.)
The CERT team entered Plaintiff's cell and took photographs
and officers collected other evidence from the cell. (Id. ¶¶ 197,
202.)
*3 While the officers were collecting evidence from the cell,
“someone raised concerns and ethical issues.” (Id. ¶ 207.)
Several unidentified individuals—whom Plaintiff asserts on
information and belief are among the defendants—responded.
One individual stated that Plaintiff “deserved what he was
getting and that it was necessary to take matters into their
own hands.” (Id. ¶ 208.) Another individual commented
that “the mess made by Plaintiff prior to the incident made
[it] easier to stage a crime scene and that it was a good
opportunity to capitalize.” (Id. ¶ 209.) A third individual
remarked that Ferriter had experience “setting these scumbags
up.” (Id. ¶ 210.) In response to a concern about the video
not corroborating Ferriter's story, one individual responded
that it did not matter “so long as everybody was on the
same page.” (Id. ¶ 211.) Several of the defendants placed a
plexiglass shield near the cell door as “evidence” of Plaintiff
assaulting officers. (Id. ¶ 213.)
Plaintiff was indicted on charges of aggravated harassment of
an employee by an inmate; he also faced disciplinary charges
within the EFC facility. (Id. ¶¶ 220, 227, 228.) Before the
indictment, Plaintiff mailed a letter to the prosecutor's office
seeking to exercise his right to testify to the grand jury under
N.Y. Crim. Proc. Law § 190.50. Defendant John Doe 5, a
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DOCCS employee in the Office of Special Investigations,
intercepted the § 190.50 letter and prevented its delivery.
Plaintiff was unable to testify before the grand jury. (Id. ¶¶ 27,
330–334.) A video recording of the events on April 12, 2020
was erased before Plaintiff could obtain the recording. (Id.
¶ 230.) The indictment was ultimately dismissed (id. ¶ 227)
and the disciplinary hearing found that CO Ferriter's claims
against Plaintiff were unsubstantiated (id. ¶ 229).
Finally, Plaintiff alleges that he sent numerous grievances
during his time at ECF and that defendant Lt. Wilcox,
who had access to the grievance deposit box, “prevented
Plaintiff's grievances from getting filed” and “intercepted”
at least 30 grievances. (Id. ¶¶ 240, 251.) Lt. Wilcox also
allegedly threatened Plaintiff by saying that the conditions of
confinement would get worse if Plaintiff did not stop sending
grievances. (Id. ¶¶ 244, 245, 257–258.) Plaintiff further
alleges that, in violation of DOCCS directives, Lt. Wilcox and
grievance supervisor Misty O'Dell shared the contents of the
grievances with other officers, “thereby exposing Plaintiff to
the risk of retaliation by ECF officers.” (Id. ¶¶ 252, 256.)
Rule 12(b)(6) Standard
On a Rule 12(b)(6) motion, the court's task is to determine
whether, accepting as true the complaint's non-conclusory
allegations, “and drawing all reasonable inferences in favor
of the non-movant, plaintiffs have stated a facially valid
claim.” Ocasio v. City of Canandaigua, 513 F. Supp. 3d
310, 319 (W.D.N.Y. 2021) (cleaned up). “In order to be
found sufficient, a pleading must set forth sufficient facts
to suggest that a cause of action is legally plausible.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Ultimately, where a plaintiff has not nudged their claim
across the line from conceivable to plausible, their complaint
must be dismissed.” Id. (cleaned up).
Analysis
All of Plaintiff's claims are brought under 42 U.S.C. § 1983.
Section 1983 provides a private cause of action for individuals
to sue a “person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or
causes to be subjected, any citizen of the United States ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.” 42 U.S.C. § 1983.
“The purpose of § 1983 is to deter state actors from using
the badge of their authority to deprive individuals of their
federally guaranteed rights and to provide relief to victims
if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161
(1992). Section 1983 does not itself create or establish a
federally protected right; instead it creates a cause of action
to enforce federal rights created elsewhere, such as a federal
constitutional right. Albright v. Oliver, 510 U.S. 266, 271
(1994).
*4 The nine § 1983 claims in the Amended Complaint
assert violations of a variety of rights. Defendants’ motion
seeks dismissal of Counts 7 (failure to intervene), 8 (denial
of access to the grievance process), and 9 (civil conspiracy)
in their entirety, and dismissal of Count 3 (retaliation) to the
extent that claim is based on verbal threats. (Doc. 10.) As
noted above, Plaintiff has withdrawn Count 8. (Doc. 13-1 at
2 n.1.) The court proceeds to consider Defendants’ motion
challenging Counts 3, 7, and 9.
I. First Amendment Retaliation (Count 3)
In Count 3, Plaintiff claims that multiple defendants 4
retaliated against him for filing a lawsuit, lodging grievances
against ECF staff, or engaging in “other protected free
speech activity.” (Doc. 6 ¶ 288.) The alleged retaliation
included Thompson and Ferriter's death threats and threats to
delay Plaintiff's release. (Id. ¶¶ 289–293.) Then, according
to Plaintiff, Defendants Thompson and Sears resorted to
physical abuse (the incident on April 8, 2020), and then to
the alleged “deprivation of access to water, basic hygiene,
and access to pen, papers, legal work and materials, and
medical supplements by Defendant Thompson, Sears, and
Hakes.” (Id. ¶ 299.) Plaintiff alleges that this conduct was
“part of a grand scheme to retaliate [against] Plaintiff for
filing grievances and prevent Plaintiff from filing grievances
and continuing legal claims.” (Id.) Plaintiff alleges that this
conduct, in addition to the alleged “assault and battery” and
malicious prosecution, was “preplanned and orchestrated by
Defendants, mainly Defendant Thompson and Ferriter.” (Id.
¶ 303.)
Defendants assert that Count 3 “is largely premised on
the verbal threats of Defendants Thompson, Ferriter and
Wilcox chilling Plaintiff's First Amendment right to free
speech.” (Doc. 10-1 at 19.) Defendants seek dismissal of
Count 3 against those defendants “to the extent the retaliation
claims are based on verbal threats.” (Id. at 7.) Plaintiff
maintains that he is not suing Defendants “for mere insults”
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and that the alleged retaliation consisted of “more than verbal
threats.” (Doc. 13-1 at 19.)
“To make out a ‘prima facie case of First Amendment
retaliation, a plaintiff must establish (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.’ ” Shara v. Maine-Endwell Cent. Sch. Dist.,
46 F.4th 77, 82 (2d Cir. 2022) (quoting Scott v. Coughlin,
344 F.3d 282, 287 (2d Cir. 2003)). Defendants challenge the
plausibility of Plaintiff's allegations on the second element.
They also raise a qualified immunity argument.
A. Adverse Action
This court has held that “verbal harassment, or even threats,
are generally held not to rise to the level of adverse action that
will support a First Amendment retaliation claim.” Rosales
v. Kikendall, 677 F. Supp. 2d 643, 648 (W.D.N.Y. 2010);
see also Alnutt v. Cleary, 913 F. Supp. 160, 165 (W.D.N.Y.
1996) (“[M]ere threatening language and gestures of a
custodial officer do not, even if true, amount to constitutional
violations.” (quoting Williams v. Pecchio, 543 F. Supp. 878,
879–80 (W.D.N.Y. 1982))). On that basis, Defendants seek
dismissal of the retaliation claims against Lt. Wilcox and COs
Thompson and Ferriter “to the extent the retaliation claims
are based on verbal threats.” (Doc. 10 at 7.)
*5 The court is not persuaded that Defendants can dispose
of the allegations of verbal threats by decoupling them
from the other alleged adverse actions. As this court has
recognized, “whether verbal[ ] threats sufficiently constitute
adverse action may depend on their specificity and the context
in which they are uttered.” Vallade v. Fischer, No. 12-
CV-231M, 2012 WL 4103864, at *7 (W.D.N.Y. Sept. 13,
2012) (internal quotation marks omitted). The Vallade court
therefore allowed a retaliation claim to proceed where “other
adverse action followed the threat (i.e., denial of food and
recreation).” Id.
Here, accepting the Amended Complaint's allegations as true
and drawing all reasonable inferences in Plaintiff's favor,
the court concludes that the alleged verbal harassment—
when considered in the context of the other alleged conduct
—constitutes plausible adverse action. CO Thompson and
Ferriter's alleged verbal threats in March 2020 were followed
by Thompson's alleged physical abuse on April 8, 2020 and
Thompson's alleged orders to shut down the water supply to
Plaintiff's cell and halt his meal supply. Lt. Wilcox's statement
to Plaintiff in March 2020 that Plaintiff was filing too many
grievances was followed by Wilcox's alleged interceptions
of Plaintiff's grievances and by Wilcox's alleged statement
on April 27, 2020 that filing more grievances could worsen
Plaintiff's conditions of confinement. 5
B. Qualified Immunity (Verbal Threats or
Harassment)
Defendants also assert that they are entitled to qualified
immunity from Plaintiff's claims of verbal harassment.
(Doc. 10-1 at 20.) Citing their argument that the verbal
threats do not constitute adverse action, Defendants contend
that they “should be entitled to qualified immunity from
Plaintiff's claims concerning verbal threats and harassment
because that conduct is not prohibited by Federal law,
constitutional or otherwise.” (Doc. 10-1 at 21.) Plaintiff
maintains that qualified immunity is unavailable because,
after issuing verbal threats, Defendants “followed up with
actual physical assault that involved permanent physical
injury, prolonged deprivation, and malicious prosecution
based on false charges.” (Doc. 13-1 at 18–19.)
“[Q]ualified immunity shields public officials from liability
for their discretionary acts that do not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Collymore v. Krystal
Myers, RN, 74 F.4th 22, 30 (2d Cir. 2023) (internal quotation
marks omitted); see also Kew v. Town of Northfield, No. 19-
cv-78, 2023 WL 4172741, at *15 (D. Vt. Apr. 17, 2023);
Powell v. City of Jamestown, No. 21-CV-721, 2022 WL
1913581, at *6 (W.D.N.Y. June 3, 2022). “Qualified immunity
bars a plaintiff's claim unless (1) the official violated a
statutory or constitutional right, and (2) that right was clearly
established at the time of the challenged conduct.” Matzell
v. Annucci, 64 F.4th 425, 434 (2d Cir. 2023). “Courts have
discretion to decide which of the two prongs to address first,
but if the complaint fails to sufficiently plead the violation of a
constitutional right, the second question is moot.” Id. (quoting
Nat'l Rifle Ass'n of Am. v. Vullo, 49 F.4th 700, 714 (2d Cir.
2022)). “Where a defendant presents a qualified immunity
defense on a motion to dismiss ..., ‘the plaintiff is entitled to
all reasonable inferences from the facts alleged, not only those
that support his claim, but also those that defeat the immunity
defense.’ ” Id. (quoting McKenna v. Wright, 386 F.3d 432, 436
(2d Cir. 2004)).
*6 The court understands Defendants’ argument to be
based on the first prong of the qualified immunity analysis.
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According to Defendants, Plaintiff's claims concerning verbal
threats and harassment are claims of “conduct [that] is not
prohibited by Federal law, constitutional or otherwise.” (Doc.
10-1 at 21.) But, for the reasons discussed above, the court
concludes that Plaintiff's claims of verbal threats must be
considered in the context of all of the alleged conduct, and
in that context the alleged verbal harassment constitutes
plausible adverse action. Qualified immunity does not shield
Defendants from Count 3 at this stage of the case.
II. Failure to Intervene (Count 7)
The failure-to-intervene claim is brought against eleven
individuals: Assistant Deputy Superintendent White;
Associate Commissioner Hilton; Nurse Hakes; and correction
officers Diamond, Hicks, Thomas, John Doe 4, Wilcox,
Coolbaugh, Schadewald, and Crozier. Defendants argue that
the Amended Complaint does not plausibly allege any failure-
to-intervene claims against any of those individuals. (Doc.
10-1 at 12.) Plaintiff maintains that his allegations plausibly
support a finding that each defendant named in Count
7 “personally was involved in multiple violations of his
Constitutional rights.” (Doc. 13-1 at 8.)
“[A]ll law enforcement officials have an affirmative duty
to intervene to protect the constitutional rights of citizens
from infringement by other law enforcement officers in their
presence.” Sloley v. VanBramer, 945 F.3d 30, 46–47 (2d Cir.
2019) (quoting Anderson v. Bremen, 17 F.3d 552, 557 (2d
Cir. 1994)); see also Ragsdale v. Confer, No. 21-CV-6188,
2021 WL 8821927, at *4 (W.D.N.Y. July 8, 2021) (“Prison
officials can be held liable under 42 U.S.C. § 1983 for failing
to intervene in a situation where another official is violating an
inmate's constitutional rights, including the use of excessive
force, in their presence.”).
To state a claim against an
officer for his or her failure to
intervene, a plaintiff must allege facts
demonstrating that (1) the officer had
a realistic opportunity to intervene
and prevent the harm; (2) the officer
knew that the victim's constitutional
rights were being violated; and (3) the
officer did not take reasonable steps to
intervene.
Flannery v. City of Rochester, 640 F. Supp. 3d 267 (W.D.N.Y.
2022) (cleaned up).
As with other § 1983 damages claims, the plaintiff must also
allege that the defendant was personally involved. See Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“It is well settled
in this Circuit that ‘personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” (quoting Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991))). “With respect
to a claim of failure to intervene, an officer is personally
involved in the alleged constitutional deprivation if he was
present when it occurred, yet failed to intercede on behalf of
the victim even though he had a reasonable opportunity to do
so.” Hester v. Regan, No. 20-CV-1153, 2023 WL 5610754,
at *6 (N.D.N.Y. Aug. 30, 2023) (internal quotation marks
omitted).
A. Assistant Deputy Superintendent White
According to the Amended Complaint, Assistant Deputy
Superintendent White was present at ECF at all relevant
times. (Doc. 6 ¶ 356.) The Amended Complaint includes
allegations that Plaintiff notified Defendant White of the
alleged January 23 and February 8, 2020 attacks. (See id. ¶¶
54, 106.) The Amended Complaint also alleges that White
did not take appropriate action in response. (See id. ¶¶
56, 110.) Plaintiff further alleges that he filed grievances
notifying Defendant White of the “horrible conditions” to
which he was subjected but that White did not take “any
measures to stop unlawful harassment by ECF correctional
officers.” (Id. ¶¶ 133, 135.) The defense argues that “Plaintiff
does not allege that White personally witnessed him being
harmed and failed to intervene/prevent it” and that “[i]nstead,
Plaintiff has attempted to raise a de-facto supervisory
liability claim against White for failing to prevent alleged
constitutional violations by other Elmira staff allegedly under
her supervision and control.” (Doc. 10-1 at 12–13.)
*7 The court concludes that Plaintiff has failed to allege
a plausible failure-to-intervene claim against White insofar
as that claim is based on the January 23 and February 8,
2020 attacks. Although the Amended Complaint alleges that
White was present at ECF at all relevant times, nothing in
the pleadings suggests or supports an inference that White
was personally present at the SHU at the times of the
alleged January 23 and February 8, 2020 incidents. The
allegations that Plaintiff notified White after those incidents
are insufficient to support a failure-to-intervene claim. See
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Ragsdale, 2021 WL 8821927, at *4 (dismissing failure-
to-intervene claim against prison superintendent because
prisoner's notice to superintendent of alleged misconduct by
correction officers did not “plausibly allege [superintendent's]
personal involvement in the use of force”).
The analysis is different insofar as Plaintiff might be suing
White for “failure to intervene” in response to Plaintiff's
conditions of his confinement. The Amended Complaint does
not name White as a defendant with respect to Count 2
(deliberate indifference to medical needs) or Count 4 (denial
of minimum standard of living constituting cruel and unusual
punishment). But in his opposition memorandum, Plaintiff
asserts that “Defendant White failed to intervene despite
being aware that Plaintiff was under serious threat of harm by
prison officials through prolonged deprivation of food, water,
and access to basic hygiene supplies, as well as multiple
incidents of serious physical assaults.” (Doc. 13-1 at 9.)
The court concludes that Plaintiff has failed to state a plausible
“failure to intervene” claim against White based on that
alleged “prolonged deprivation.” According to the Amended
Complaint, Plaintiff was unable to file grievances during the
three-week period when he was allegedly deprived of food,
water, and hygiene supplies because he was also deprived
of access to writing supplies during that time. (See Doc.
6 ¶¶ 299, 314.) Therefore, White could not have learned
of the allegedly unconstitutional conditions of confinement
from any contemporaneous grievance. The court finds no
allegation in the Amended Complaint that supports Plaintiff's
conclusory assertion in his reply memorandum that White
was “aware” of the “prolonged deprivation” (Doc. 13-1 at 9)
during that three-week period.
B. Associate Commissioner Hilton
According to the Amended Complaint, Defendant Hilton was
present at ECF at all relevant times. (Doc. 6 ¶ 364.) In
September 2019—before Plaintiff arrived at ECF—a legal
intern contacted Defendant Hilton asking him “to review
Plaintiff's case and to make sure that there was a legitimate
basis for Plaintiff's continuous confinement at the SHU” and
“to ensure that Plaintiff receives proper clinical care.” (Id. ¶
41.) Similar to the allegations against Defendant White, the
Amended Complaint alleges that Plaintiff notified Hilton of
the alleged January 23 and February 8, 2020 attacks. (See id.
¶¶ 55, 108, 134.) The Amended Complaint also alleges that
Hilton did not take appropriate action in response. (See id. ¶¶
56, 110, 135.) Plaintiff further alleges that he filed grievances
notifying Hilton of the “horrible conditions” to which he was
subjected but that Hilton did not take “any measures to stop
unlawful harassment by ECF correctional officers.” (Id. ¶¶
133, 135.)
The result as to Count 7 against Hilton is the same as the result
for Defendant White. Because there are no allegations that
Hilton was personally present at the SHU at the times of the
alleged January 23 and February 8, 2020 attacks, Plaintiff has
failed to state a plausible failure-to-intervene claim against
White insofar as that claim is based on those incidents.
Although the Amended Complaint includes allegations that
Plaintiff sent grievances to Hilton (id. ¶¶ 133–134) and that
Hilton visited Plaintiff at the SHU on multiple occasions (id.
¶ 359), there are no allegations that Hilton learned of the
allegedly unconstitutional “prolonged deprivation” from any
contemporaneous grievance and no allegation that Hilton was
aware of Plaintiff's conditions of confinement during that
three-week period.
C. Nurse Hakes
*8 As noted above, Plaintiff alleges that Nurse Hakes failed
to recognize his serious medical condition after the February
8 incident. She also allegedly rejected and ignored Plaintiff's
multiple requests for treatment of his right wrist after the
April 8 incident. The Amended Complaint further alleges that
Nurse Hakes ignored Plaintiff's requests for medical attention
during the three-week period in April when Plaintiff was
on deprivation orders (Doc. ¶¶ 158, 171) and also deprived
Plaintiff of nutritional supplements and skin cream during that
time (id. ¶ 176).
The defense argues that Plaintiff's failure-to-protect claim
against Nurse Hakes is “wholly conclusory and entirely
duplicative of his second and third claims for relief,
and fails to plausibly allege the elements of a failure
to protect claim.” (Doc. 10-1 at 16.) Plaintiff maintains
that a defendant's direct involvement does not defeat a
failure-to-intervene claim. (Doc. 13-1 at 12.) Plaintiff further
contends that he has sufficiently alleged that Hakes “knew
of the ongoing Constitutional violations committed by prison
officers against Plaintiff” and that she could have intervened
to restore Plaintiff's access to water, food, and medical
supplies. (Id.)
As against Nurse Hakes, the Amended Complaint includes
the failure-to-intervene claim in Count 7 as well as claims
of direct participation in alleged constitutional violations
(including Counts 2, 3, and 4). Plaintiff notes that courts have
allowed claims for direct participation and failure to intervene
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to be pled in the alternative “where a plaintiff has sufficiently
pled an underlying constitutional violation, with the caveat
that the plaintiff later specify which defendants he seeks to
hold liable for the direct constitutional violation versus which
he seeks to hold liable for failure to intervene.” Leckie v.
City of New York, No. 19-CV-6719, 2022 WL 2442375, at
*18 (S.D.N.Y. June 30, 2022), report and recommendation
adopted in pertinent part 2023 WL 3168699, at *15 (S.D.N.Y.
May 1, 2023).
But the cases where courts have allowed both theories
to proceed typically involve situations where there are
“overlapping” direct and failure-to-intervene claims against
multiple defendants. See, e.g., Hincapie v. City of New
York, No. 18-CV-3422, 2022 WL 2870411, at *6 (S.D.N.Y.
July 21, 2022) (section 1983 plaintiff filed a “slew” of
claims—direct and failure-to-intervene—against numerous
law enforcement personnel who investigated and prosecuted
a notorious subway killing); Cumberbatch v. Port Auth.
of N.Y. & N.J., No. 03 Civ. 749, 2006 WL 3543670, at
*11 (S.D.N.Y. Dec. 5, 2006) (construing failure-to-intervene
claims as pleading in the alternative to direct claims—“i.e.,
the Officers either used excessive force, or one or both of
them failed to intervene while another officer used excessive
force”).
Here, Plaintiff's failure-to-intervene claim against Nurse
Hakes cannot be construed in the alternative insofar as it is
based on Hakes's alleged “ignoring” Plaintiff's injuries after
the February 8 and April 8 incidents or based on her alleged
decision to deprive Plaintiff of the nutritional supplements
and skin cream. There are no other medical providers whom
Plaintiff alleges were involved in that conduct. 6 Nurse
Hakes's alleged direct participation in those events makes
the failure-to-intervene theory “inapplicable” to those claims.
Leckie, 2022 WL 2442375, at *18 (quoting Sanabria v.
Detective Shawn Tezlof, No. 11-CV-6578, 2016 WL 4371750,
at *5 (S.D.N.Y. Aug. 12, 2016)); see also Buari v. City
of New York, 530 F. Supp. 3d 356, 392 (S.D.N.Y. 2021)
(“[D]efendants cannot be liable for both the underlying
constitutional deprivation and a failure to intervene to stop
themselves from committing that violation.” (quoting Marom
v. City of New York, No. 15-cv-2017, 2016 WL 916424, at *19
(S.D.N.Y. Mar. 7, 2016))).
*9 The result is different for Plaintiff's claim based
on Nurse Hakes's alleged failure to intervene and restore
Plaintiff's access to water, food, and medical supplies.
The defense motion does not challenge Count 4 (denial
of minimum standard of living), so the court assumes
for present purposes (without deciding) that the conditions
fell below constitutional standards. The court can infer
from the Amended Complaint that Nurse Hakes was aware
of Plaintiff's conditions of confinement during the period
in April when Plaintiff was on deprivation orders. (See
Doc. 6 ¶¶ 158, 171 (allegations that Hakes knew Plaintiff
sought medical help but ignored him); id. ¶¶ 173–174
(another provider ordered medical supplies and noted Plaintiff
was subjected to “inhumane” conditions; Nurse Hakes
subsequently learned of that provider's conduct); id. ¶ 375
(“Hakes heard or saw Plaintiff asking for help due to
injuries and inhumane conditions subjected to him by other
officers.”).)
Although it is unclear whether Nurse Hakes herself had
authority to countermand Thompson's deprivation orders,
the court infers that she could have reported unlawful
deprivations to DOCCS personnel who did have that
authority. For present purposes, that constitutes a plausible
realistic opportunity and a reasonable step to intervene. See
Ransom v. Lee, No. CV 14-600, 2017 WL 10525951, at *9
(C.D. Cal. Apr. 20, 2017) (denying motion to dismiss claim
based on officers’ alleged failure to intervene in withholding
of prisoner's food trays), report and recommendation adopted
2017 WL 10510170 (C.D. Cal. June 27, 2017).
D. Lt. Wilcox
The Amended Complaint alleges that Lt. Wilcox was
an Inmate Grievance Resolution Committee (IGRC) staff
member and a watch commander. (Doc. 6 ¶¶ 237–238.) Count
7 asserts the following against Lt. Wilcox:
• “As a grievance investigation officer, Defendant Wilcox
knew or should have known about the retaliatory threats
and inhumane conditions Plaintiff was going through”;
• “Defendant Wilcox had a duty to protect Plaintiff from
cruel and unusual punishment by his fellow correctional
officers”;
• “Defendant Wilcox, however, deliberately ignored the
actions of other correctional officers subjecting Plaintiff
to cruel and unusual punishment in violation of his
Eighth Amendment right”;
• “Defendant Wilcox not only failed to intervene, but he
also engaged in conduct that aided and abetted unlawful
actions of his fellow officers, such as by interfering
with Plaintiff's grievance filings and making unlawful
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threat[s] to Plaintiff to prevent him from pursuing legal
actions/grievances.”
(Id. ¶¶ 370–373.)
The defense argues that Plaintiff's allegations do not
state a failure-to-protect claim because Wilcox “is not
alleged to have personally witnessed Plaintiff in physical
danger, or experiencing some other deprivation of his
constitutional rights, and then failed to intervene to stop that
deprivation.” (Doc. 10-1 at 15.) The defense also asserts
that Count 7 against Lt. Wilcox “is an improper attempt to
either raise a supervisory liability claim against Wilcox ...
or to improperly attribute liability to Wilcox under a theory
of respondeat superior.” (Id.) Plaintiff maintains that the
allegations indicate that Wilcox “was well aware of the nature
of the ongoing Constitutional violations against Plaintiff,
as well as the substantial risk of harm he faced while in
custody.” (Doc. 13-1 at 11.)
Although the Amended Complaint includes allegations that
Plaintiff sent numerous grievances to Wilcox (see Doc. 6
¶ 251), Plaintiff was unable to file grievances during the
three-week period when he was allegedly deprived of food,
water, and hygiene supplies because he was also deprived
of access to writing supplies during that time. (See id. ¶¶
299, 314.) However, according to the Amended Complaint,
Wilcox visited Plaintiff on April 27, 2020 and observed the
alleged “horrendous conditions” that Plaintiff was enduring
while under deprivation orders. (Id. ¶¶ 244–245.) The court
infers that Plaintiff also complained to Wilcox about the
alleged deprivations on April 27, 2020. (See id. ¶¶ 257–258
(Wilcox allegedly responded that the conditions could get
even worse).) That was two days before the deprivation orders
were lifted on April 29, 2020. (Id. ¶ 316.)
*10 The court therefore concludes that Count 7 against Lt.
Wilcox is plausible for the same reasons that it is plausible
against Nurse Hakes. After observing Plaintiff's conditions
of confinement and hearing Plaintiff's complaints about the
alleged deprivations, Wilcox had a realistic opportunity to
intervene and allegedly failed to do so. That is sufficient at
this stage of the case. See Ransom v. Lee, No. CV 14-600,
2017 WL 10525951, at *9 (C.D. Cal. Apr. 20, 2017) (denying
motion to dismiss claim based on officers’ alleged failure
to intervene in withholding of prisoner's food trays), report
and recommendation adopted 2017 WL 10510170 (C.D. Cal.
June 27, 2017).
E. Bruce Coolbaugh
The Amended Complaint alleges that Defendant Coolbaugh 7
was “a regular officer in the SHU and oversaw the
operation therein.” (Doc. 6 ¶ 21.) “As such,” Plaintiff alleges,
Coolbaugh “knew or should have been aware of cruel and
unusual punishment, such as the second incident on February
8, 2020, the third incident on April 8, 2020, and prolonged
deprivation of food, water, and access to basic hygiene
supplies by other SHU officers.” (Id. ¶ 379.) According to
the Amended Complaint, all of those violations occurred
while Coolbaugh “was at the scene or when he was supposed
to oversee the SHU inmates, including Plaintiff.” (Id. ¶
380.) Coolbaugh was allegedly one of the officers who
accompanied the CERT team when Plaintiff was removed
from his cell on April 12, 2020. (Id. ¶ 197.) The Amended
Complaint asserts that Coolbaugh participated in “stag[ing]
a crime scene” (id. ¶ 216) and in pursuing criminal charges
against Plaintiff for aggravated harassment of an employee by
an inmate (id. ¶ 220).
The defense asserts that Count 7 against Lt. Coolbaugh
is “devoid of any additional facts suggesting Coolbaugh
witnessed others depriving Plaintiff of his constitutional
rights, or that he was deliberately indifferent to the
same.” (Doc. 10-1 at 17.) Plaintiff argues that Count 7 against
Coolbaugh “should be allowed to proceed ... as alternative
relief.” (Doc. 13-1 at 13.) Plaintiff also asserts that Coolbaugh
“was present at the scene when Plaintiff was subjected to
violations of his Constitutional rights, knew that it was going
on, and chose to deliberately ignore it or, worse, at times was
even a direct participant.” (Id.)
The court concludes that the Amended Complaint lacks
plausible allegations that Coolbaugh was present at the
February 8 and April 8 incidents such that he had any
realistic opportunity to intervene. He might have learned
of those incidents after they occurred. But the fact that
Coolbaugh was a regular officer in the SHU with oversight
responsibilities is insufficient to support an inference that
he had any opportunity to intervene in those alleged attacks
while they were occurring.
On the other hand, insofar as Count 7 against Coolbaugh
is based on failure to intervene to stop unlawful conditions
of confinement, that count is plausible for the same reasons
that it is plausible against Nurse Hakes and Lt. Wilcox. The
Amended Complaint alleges that Coolbaugh was a “regular”
officer in the SHU with oversight responsibilities. (Doc. 6 ¶
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21.) The court can infer that he observed Plaintiff's conditions
of confinement, was aware of Plaintiff's complaints about
the alleged deprivations, and that Coolbaugh had a realistic
opportunity to intervene, including by countermanding the
deprivation order or reporting the circumstances to an
appropriate authority. That is sufficient at this stage of the
case.
F. Lt. Schadewald, Sgt. Crozier, and COs Diamond,
Hicks, and Thomas
*11 The defense asserts that the Amended Complaint alleges
that Lt. Schadewald participated in an effort to frame Plaintiff
but that no allegations plausibly suggest that Schadewald
had the opportunity to prevent some other constitutional
violation. (Doc. 10-1 at 18.) The defense likewise asserts
that the Amended Complaint lacks any allegations either that
defendants Crozier, Diamond, Hicks, and Thomas witnessed
other officers violating Plaintiff's rights or about how they
could have intervened. (Id. at 18–19.) Plaintiff maintains
that each of these defendants “were direct participants in the
violations of Plaintiff's Constitutional rights by participating
in the malicious prosecution of Plaintiff” and that the direct
claims should not prevent the failure-to-intervene claim from
proceeding at this stage of the case “as an alternative form of
relief.” (Doc. 13-1 at 14.)
The Amended Complaint names Schadewald, Crozier,
Diamond, Hicks, and Thomas in the malicious-prosecution
claim (Count 6). The defense motion does not seek dismissal
of that count. The court observes that Count 7 against this
group of defendants can be seen as “overlapping” direct
and failure-to-intervene claims against multiple defendants.
These officers allegedly either participated in the malicious
prosecution, or they failed to intervene while other officers
in the group pursued the prosecution. Cf. Cumberbatch, 2006
WL 3543670, at * 11.
III. Conspiracy Claim (Count 9)
The conspiracy claim in Count 9 incorporates the entire
“factual background” alleged in the Amended Complaint
(Doc. 6 ¶¶ 31–258) and all of the allegations in the first eight
counts (see id. ¶ 392). Count 9 is the only count brought
against all 22 defendants. Plaintiff alleges that Defendants
conspired in the following five ways:
• “[T]o retaliate against Plaintiff for filing grievances and
initiating lawsuits against officers who assaulted him
during the February 8 incident”;
• “[T]o prevent Plaintiff from filing grievances and
initiating lawsuits against the officers”;
• “[T]o prevent Plaintiff from accessing court to defend
himself against criminal charges”;
• “[T]o maliciously and sadistically harm Plaintiff”; and
• “[T]o deprive Plaintiff of access to adequate medical
care.”
(Doc. 6 ¶¶ 393–397.)
Defendants seek dismissal of Count 9 on two grounds.
First, Defendants contend that the Amended Complaint lacks
sufficient allegations to meet the pleading standard for § 1983
conspiracy claims. (Doc. 10-1 at 9–10.) Second, Defendants
argue that the intra-agency conspiracy doctrine bars Count 9.
(Id. at 10.)
A. Sufficiency of the Pleading Under Ciambriello
“To plead a conspiracy claim, Plaintiff must allege facts
supporting ‘(1) an agreement between two or more state
actors or between a state actor and a private entity, (2)
to act in concert to inflict an unconstitutional injury, and
(3) an overt act done in furtherance of that goal, causing
damages.’ ” Houghtaling v. Dowries, 623 F. Supp. 3d 145,
159 (W.D.N.Y. 2022) (quoting Pangburn v. Culbertson, 200
F.3d 65, 72 (2d Cir. 1999)). “[C]omplaints containing only
conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by
specific instances of misconduct.” Ciambriello v. County
of Nassau, 292 F.3d 307, 325 (2d Cir. 2002); see also
Houghtaling, 623 F. Supp. 3d at 159 (same). “A plaintiff is
not required to list the place and date of defendants’ meetings
and the summary of their conversations when he pleads
conspiracy, ... but at the very least the pleadings must present
‘specific facts tending to show agreement and concerted
action.’ ” Tripathy v. Brotz, No. 22-cv-06469, 2023 WL
4032831, at *11 (W.D.N.Y. June 15, 2023) (quoting Bacquie
v. City of New York, No. 99CIV.10951, 2000 WL 1051904,
at *1 (S.D.N.Y. July 31, 2000)). “Without ‘a meeting of the
minds, the independent acts of two or more wrongdoers do
not amount to a conspiracy.’ ” Id. (quoting Fish v. Letterman,
401 F. Supp. 2d 362, 376 (S.D.N.Y. 2005)).
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*12 Defendants argue that the Amended Complaint fails
to meet these standards because, according to Defendants,
“[t]here are no facts describing which defendants conspired
together, what agreement was reached, when that agreement
was reached, or what overt acts each defendant committed
in furtherance of the alleged conspiracy.” (Doc. 10-1 at 10.)
Plaintiff maintains that the Amended Complaint includes the
following “factual details that demonstrate a plausible factual
basis” for Count 9:
• Sgt. Beschler's alleged statement to Nurse Hakes that
Beschler agreed “to help everyone with getting their
story straight” and Hakes's subsequent statement to
Plaintiff that he looked fine except for some superficial
abrasion;
• The alleged statement by one of the two armed officers
during the February 27, 2020 transport that Plaintiff
“made people in high places very unhappy, and someone
wants you to have an ‘accident’ ”;
• Thompson and Ferriter's alleged March 2020 threats of
death and threats to delay Plaintiff's release from prison;
and
• The alleged comment by one officer on April 12, 2020 that
“the mess made by Plaintiff prior to the incident made
[it] easier to stage a crime scene and that it was a good
opportunity to capitalize.”
(Doc. 13-1 at 5.)
Plaintiff also asserts that there is circumstantial evidence of
a conspiracy, including the erasure of the April 12, 2020
surveillance recording and the alleged mail tampering that
prevented Plaintiff from representing himself before the grand
jury. (Id. at 6.) Defendants maintain that each of Plaintiff's
specified allegations are unavailing. (Doc. 14 at 6–7.) The
court considers the sufficiency of the allegations with respect
to each of the five alleged conspiracies specified in Count 9. 8
1. Conspiracy to Retaliate for
Filing Grievances and Lawsuits
Plaintiff's retaliation claim appears in Count 3 and Defendants
are not entitled to dismissal of that count for the reasons
discussed above. Count 9 alleges a conspiracy to retaliate
against Plaintiff for filing lawsuits and grievances. (Doc. 6 ¶
393.) As noted above, the alleged threats, physical abuse, and
deprivation orders were all “part of a grand scheme to retaliate
[against] Plaintiff for filing grievances and prevent Plaintiff
from filing grievances and continuing legal claims.” (Id.
¶ 299.) Plaintiff alleges that this conduct, in addition to
the alleged “assault and battery” and malicious prosecution,
was “preplanned and orchestrated by Defendants, mainly
Defendant Thompson and Ferriter.” (Id. ¶ 303.)
The court concludes that the Amended Complaint lacks
sufficient allegations that could plausibly support the alleged
“grand scheme” to retaliate. The Amended Complaint alleges
that all 22 defendants conspired to retaliate against Plaintiff.
But the allegations do not plausibly support a conspiracy that
broad. For example, the Amended Complaint does not allege
that John Doe 1 or 2 engaged in any retaliatory conduct; the
only allegations against them are that they attacked Plaintiff
without provocation on the day that he arrived at ECF. Cf.
Suarez v. Kremer, No. 03-CV-809, 2008 WL 4239214, at *11
(W.D.N.Y. Sept. 11, 2008) (ruling on summary judgment that
“plaintiff has merely lumped all correctional officers together,
vicariously attributing the conduct of one correctional officer
to another”).
*13 The Amended Complaint singles out Defendants
Thompson and Ferriter as the “main” instigators of the
alleged retaliation. (Doc. 6 ¶ 303.) The allegations against
those defendants are more specific. They both allegedly
visited Plaintiff's cell about a week after Plaintiff grieved the
February 8 incident and gave notice that he intended to file
suit. They both allegedly knew about Plaintiff's grievances
and threatened Plaintiff with the same consequences for filing
grievances and lawsuits: death and setting him up with a “new
bid.” Drawing all reasonable inferences in Plaintiff's favor,
Thompson and Ferriter followed through on those threats
within a few weeks: Thompson's use of force and deprivation
orders on April 8, and Ferriter's allegedly false accusation
on April 12. The court concludes that these allegations are
sufficient at this stage of the case to constitute specific
facts tending to show agreement and concerted action. This
conclusion extends to Defendant Sears and to the other
defendants who allegedly acted in concert to “stage a crime
scene” on the date that the CERT team removed Plaintiff from
his cell.
2. Conspiracy to Prevent Plaintiff
from Filing Grievances and Lawsuits
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The second alleged conspiracy in Count 9 is a conspiracy
to prevent Plaintiff from filing grievances and lawsuits.
This alleged conspiracy appears to be derived from Lt.
Wilcox's and Misty O'Dell's alleged interceptions of Plaintiff's
grievances at issue in Count 8. But because Plaintiff
has agreed to dismiss Count 8, there is no underlying
constitutional violation available to support the alleged
conspiracy. See Barnes v. County of Monroe, 85 F. Supp.
3d 696, 727–28 (W.D.N.Y. 2015) (“Absent an underlying
constitutional injury, a civil rights conspiracy claim cannot
survive.” (quoting Johnson v. Rock, No. 08-CV-1013, 2010
WL 3911389, at *7 (N.D.N.Y. Mar. 30, 2010))).
3. Conspiracy to Prevent Plaintiff from Accessing Court
This alleged conspiracy presumably springs from John Doe
5's alleged interception of Plaintiff's N.Y. Crim. Proc. Law
§ 190.50 letter. The Amended Complaint alleges that John
Doe 5 acted in “coordination” with multiple other defendants.
(Doc. 6 ¶ 346.) But that allegation is entirely conclusory.
There are no allegations of any specific facts tending to show
that John Doe 5's alleged conduct was the product of any
agreement or concerted action with any other defendant.
4. Conspiracy to Physically Harm Plaintiff
Although not seeking dismissal of Plaintiff's excessive force
claims in Count 1, the defense requests dismissal of the
conspiracy claim in Count 9, including the alleged conspiracy
to physically harm Plaintiff.
The court concludes that the Amended Complaint plausibly
alleges a conspiracy among some of the defendants to use
excessive force on January 23, 2020. According to the
Amended Complaint, John Does 1 and 2 were “waiting” for
Plaintiff when he arrived at ECF (Doc. 6 ¶ 43) and attacked
him without provocation while stating: “Welcome to Elmira,
we know how to deal with scumbags like you here.” (Id. ¶
49.) Those allegations plausibly suggest that John Does 1 and
2 had at least tacitly agreed to attack Plaintiff and that they in
fact acted in concert to do so.
The court concludes that the Amended Complaint plausibly
alleges a conspiracy among some of the defendants to use
excessive force on February 8, 2020. Plaintiff alleges that
Defendants Gilmore and Beschler and John Does 3 and 4
used excessive force on that date after Plaintiff “spat at them
in protest” for taunting him. (Id. ¶ 60.) The circumstances
plausibly support an inference of a tacit agreement to attack
Plaintiff on that date.
5. Conspiracy to Deprive Plaintiff
of Access to Medical Care
The Amended Complaint alleges that, while in the medical
room after the February 8 incident, Plaintiff overheard Sgt.
Beschler advise Nurse Hakes that he would “help everyone
with getting their story straight.” (Doc. 6 ¶ 77 (cleaned
up).) Plaintiff asserts that Beschler's statement demonstrates a
“willingness to ignore Plaintiff's medical needs and conspire
against Plaintiff.” (Id. ¶ 280.) The defense motion does not
seek dismissal of the claim in Count 2 that Dr. Ott, Nurse
Hakes, and Sgt. Beschler were deliberately indifferent to
Plaintiff's medical needs. On the other hand, even drawing all
reasonable inferences in Plaintiff's favor, the court concludes
that Beschler's single alleged utterance is insufficient to
support any plausible claim that Nurse Hakes, Dr. Ott, and
Sgt. Beschler conspired to deprive Plaintiff of access to
medical care.
B. Intra-Agency Conspiracy Doctrine
*14 Because at least some portions of Plaintiff's conspiracy
claim survive, it is necessary to consider the intra-agency
conspiracy doctrine. The Second Circuit has recognized an
“intracorporate” (or intra-agency) conspiracy doctrine, which
holds that “because employees acting within the scope of their
employment are agents of their employer, an employer and its
employees are generally considered to be a single actor, rather
than multiple conspirators.” Fed. Ins. Co. v. United States, 882
F.3d 348, 368 (2d Cir. 2018). Plaintiff argues that the intra-
agency conspiracy doctrine does not apply for two reasons:
(1) Plaintiff contends that the doctrine does not apply to §
1983 claims; and (2) Plaintiff invokes the “personal stake”
exception.
1. The Intra-Agency Conspiracy
Doctrine Applies to § 1983 Claims
Plaintiff contends that, although the Second Circuit Court of
Appeals has recognized the intra-agency conspiracy doctrine
in the context of § 1985 actions, “it has not yet extended
the doctrine in the context of a Section 1983 action.” (Doc.
13-1 at 6.) Those are accurate statements of the law in
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this circuit. See Warr v. Liberatore, 270 F. Supp. 3d 637,
651 (W.D.N.Y. 2017) (“The Second Circuit has recognized
the doctrine in the Section 1985 context ... but has not
yet determined its applicability to Section 1983 conspiracy
claims.” (quoting Hicks v. City of N.Y., 232 F. Supp. 3d
480, 497 (S.D.N.Y. 2007))). However, “[t]he vast majority
of district courts in this Circuit to have addressed the issue
have found that the doctrine applies to § 1983 claims.” Id.
This court has joined that majority to find that “the rationale
behind the intracorporate conspiracy rule ... applies with
equal force in the [§] 1983 context.” Id. (second alteration in
original; quoting Chamberlain v. City of White Plains, 986
F. Supp. 2d 363, 388 (S.D.N.Y. 2013)); see also Colon v.
City of Rochester, 419 F. Supp. 3d 586, 595 (W.D.N.Y. 2019)
(applying doctrine to § 1983 claim); Ivery v. Baldauf, 284
F. Supp. 3d 426, 440 (W.D.N.Y. 2018) (same). The court
declines Plaintiff's invitation to find the doctrine inapplicable
to the § 1983 claims.
2. The “Personal Stake” Exception
The “personal stake” exception allows suits against
individuals within a single entity “when they are pursuing
personal interests wholly separate and apart from the entity.”
Mazyck v. Keller, 531 F. Supp. 3d 630, 647 (W.D.N.Y. 2021)
(quoting Ali v. Connick, 136 F. Supp. 3d 270, 282 (E.D.N. Y.
2015)). Plaintiff contends that the “personal stake” exception
applies here because the Amended Complaint includes
allegations that Defendants acted under “a motive to protect
fellow officers from disciplinary actions or lawsuits.” (Doc.
13-1 at 7.) Defendants insist that the intra-agency conspiracy
doctrine applies. (Doc. 14 at 7.)
Courts in the Second Circuit have applied the “personal stake”
exception “when police officers were alleged to have: covered
up the use of excessive force ... and assaulted a prisoner
in retaliation for his participation in a federal lawsuit.” Ali,
136 F. Supp. 3d at 283 (citing Hill v. City of New York,
No. 03 CV 1283, 2005 WL 3591719 (E.D.N.Y. Dec. 30,
2005), and Medina v. Hunt, No. 05-CV-1460, 2008 WL
4426748 (N.D.N.Y. Sept. 25, 2008)). Plaintiff relies on both
Hill and Medina. (Doc. 13-1 at 7.) The court concludes
that the Amended Complaint includes sufficient allegations
to plausibly support application of the “personal stake”
exception as to the remaining conspiracy claims.
All of the defendants who allegedly conspired to physically
attack Plaintiff on January 23 and February 8, 2020 would
have been acting outside the normal course of their duties by
agreeing to participate in those alleged attacks. See Edwards
v. Annucci, No. 17 CV 5018, 2019 WL 1284295, at *9
(S.D.N.Y. Mar. 20, 2019) (“Employing excessive force and
falsifying documents are not core functions performed in the
normal course of a correction officer's duties.”). Similarly,
the personal-stake exception would apply to the defendants
who allegedly issued unlawful retaliatory deprivation orders;
to Defendant Ferriter for allegedly fabricating the April 12
throwing incident; and to the conduct of the officers who
allegedly participated in capitalizing on that incident to stage
a “crime scene.” (See Doc. 6, ¶ 209).
Conclusion
*15 Defendants’ Partial Motion to Dismiss (Doc. 10) is
MOOT insofar as it seeks dismissal of Count 8. Plaintiff has
withdrawn that count. (Doc. 13-1 at 2 n.1.)
Defendants’ Partial Motion to Dismiss (Doc. 10) is
GRANTED IN PART and DENIED IN PART. The motion to
dismiss Count 3 is denied. Count 7 is dismissed insofar as it is
brought against Defendants White and Hilton. Count 7 against
Defendants Hakes, Wilcox, and Coolbaugh is dismissed
except insofar as it alleges failure to intervene and restore
Plaintiff's access to water, food, and medical supplies. The
motion to dismiss Count 7 is otherwise denied.
Count 9 is dismissed insofar as it is brought against
Defendants White, Hilton, Ott, Hakes, Wilcox, O'Dell, and
John Doe 5. The motion to dismiss Count 9 is otherwise
denied.
All Citations
Not Reported in Fed. Supp., 2023 WL 7712011
Footnotes
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1 The remaining counts—on which Defendants do not seek dismissal in this motion—are for excessive force
(Count 1); deliberate indifference to medical needs (Count 2); cruel and unusual punishment (Count 4); mail
tampering (Count 5); and malicious prosecution (Count 6).
2 Some additional facts are set forth as necessary in the analysis below.
3 The two armed officers are not named as defendants.
4 Count 3 is brought against Nurse Hakes; COs Thompson, Ferriter, Diamond, Hicks, and Thomas; Sergeants
Sears, Coolbaugh, and Crozier; and Lieutenants Wilcox and Schadewald.
5 The court therefore also rejects Defendants’ suggestion that the verbal threats were merely “de
minimis.” (Doc. 10-1 at 20.) Even if the verbal threats could be considered “de minimis” in isolation, the court
must consider that conduct in the context of the other alleged conduct.
6 The Amended Complaint does allege that Dr. Ott failed to recognize Plaintiff's medical condition after the
February 8 incident (Doc. 6 ¶¶ 81–83), but that was different conduct and there is no allegation that Dr. Ott
was present when Nurse Hakes assessed Plaintiff or vice versa.
7 The Amended Complaint describes Defendant Coolbaugh as both a sergeant and a lieutenant. (See Doc. 6
¶¶ 21, 379.) His precise rank is not material to any present issue.
8 Because the only claims against Defendants White and Hilton are failure-to-intervene claims that are not
plausible for the reasons discussed above, the conspiracy claims against those defendants must also be
dismissed. See Barnes v. County of Monroe, 85 F. Supp. 3d 696, 727–28 (W.D.N.Y. 2015) (“Absent an
underlying constitutional injury, a civil rights conspiracy claim cannot survive.” (quoting Johnson v. Rock, No.
08-CV-1013, 2010 WL 3911389, at *7 (N.D.N.Y. Mar. 30, 2010))).
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Dumel v. Westchester County, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Boykin v. Westchester County Jail, S.D.N.Y.,
September 20, 2024
2021 WL 738365
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tyron DUMEL, Plaintiff,
v.
WESTCHESTER COUNTY, et al., Defendants.
No. 19-CV-2161 (KMK)
|
Signed 02/25/2021
Attorneys and Law Firms
Tyron Dumel, Albion, New York, Pro Se Plaintiff.
Paul A. Sanders, Esq., Barclay Damon LLP, Rochester, New
York, Counsel for Defendants Westchester County, Correct
Care Solutions, LLC, Dr. Raul Ulloa, Dr. Alexis Gendell, and
Nurse Vladimir Asseauguste.
Jane H. Felix, Esq., Westchester County Attorney's Office,
White Plains, New York, Counsel for Defendants Westchester
County, Commissioner Joseph Spano, and Sergeant Matthew
Kitt.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 Pro se Plaintiff Tyron Dumel (“Plaintiff”), a pretrial
detainee at Westchester County Jail at the time of the
allegations, brings this Action under 42 U.S.C. § 1983
against Westchester County (the “County”), Correct Care
Solutions, LLC (“Correct Care”), Medical Director Dr. Raul
Ulloa (“Ulloa”), Commissioner Joseph Spano (“Spano”),
Sergeant Matthew Kitt (“Kitt”), Nurse Vladimir Asseauguste
(“Asseauguste”), and Dr. Alexis Gendell (“Gendell”). (Am.
Compl. 1, 3 (Dkt. No. 33).) 1
Before the Court are two Motions To Dismiss Plaintiff's
Amended Complaint, one on behalf of Municipal Defendants
and Medical Defendants, (see Dkt. No. 42), and one on behalf
of the County and Correctional Defendants, (see Dkt. No. 46).
For the following reasons, Municipal Defendants and Medical
Defendants’ Motion is granted in full, while the County and
Correctional Defendants’ Motion is granted in part and denied
in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff's Amended
Complaint and are taken as true for the purposes of resolving
the instant Motions. 2
Plaintiff arrived at the Westchester County Jail (“WCJ”)
for pretrial detention on September 25, 2015, whereupon
he requested to be tested for sexually transmitted diseases
(“STDs”). (Am. Compl. 2.) 3 Plaintiff received an STD test
from a Correct Care employee the following day. (Id.) Two
days later, test results indicated that Plaintiff had Chlamydia,
(see id.), “a common [sexually transmitted disease]” that can
cause considerable discomfort, see Ctrs. for Disease Control
& Prevention (“CDC”), Chlamydia - CDC Fact Sheet 1
(June 2017), https://www.cdc.gov/std/chlamydia/Chlamydia-
FS.pdf, and medication was ordered to treat the infection, (see
Letter from Tyron Dumel to Court (May 29, 2020) (“Pl.’s
Opp'n”) 1 (Dkt. No. 47)). 4 5 Plaintiff alleges that Defendants
Ulloa and Gendell were responsible for reviewing inmates’
medical information and “were informed of [Plaintiff's]
positive Chlamydia result.” (Am. Compl. 2.) The Amended
Complaint also suggests that a third individual Defendant—
Asseauguste—knew of Plaintiff's positive test result. (See id.)
*2 But despite the results of his STD test, Plaintiff received
no treatment for his infection. (Id.) As Plaintiff “waited
patiently for treatment for weeks,” he continued to endure
“unbearable” pain when urinating. (Id.) Given the nature of
his infection, however, Plaintiff was “very embarrassed about
[his] condition” and was ashamed “to speak to someone about
[his] lack of treatment.” (Id.)
Eventually—the Amended Complaint does not say when—
Plaintiff notified a sergeant that he had tested positive for
Chlamydia but had not received medical treatment. (Id. at
2–3.) This sergeant, identified as Defendant Kitt, allegedly
exclaimed, “Wow! You're burning dude[,]” and told Plaintiff
that he would “go speak to [the] medical [team] about
[Plaintiff's condition] and [would] be right back.” (Id. at 3.)
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But Kitt did not return. (Id.) To the contrary, Plaintiff alleges
that he overheard Kitt and another sergeant “laughing” about
his condition “several days later.” (Id.)
Finally, on January 1, 2019—three months after Plaintiff
tested positive for Chlamydia—Plaintiff filed a grievance
regarding his lack of medical treatment. (Id.) Plaintiff
received treatment the following day. (Id.) Plaintiff alleges
that in response to his filed grievance, Defendant Asseauguste
claimed that Plaintiff had refused medical treatment on
September 28, 2018. (Id.) Plaintiff disputes this assertion,
noting that his “file” does not contain a “refusal of treatment”
form as required when an inmate declines treatment. (Id.)
Plaintiff avers that he neither refused nor was offered
treatment. (Id.)
Plaintiff alleges that he suffered from Defendants’ “cruel and
unusual punishment” in violation of the Eighth Amendment
and their deliberate indifference to his serious medical
condition in violation of the Fourteenth Amendment.
(See id.) His alleged injuries include “[u]nnecessary
pain and suffering[,] mental disturbance[,] embarrassment
and humiliation[,] severe pain when urinating[,] fertility
damage[,] psychological pain and suffering[,] emotional
trauma and distress[,] debilitating headaches[,] [and]
nausea,” among other injuries. (Id. at 3–4.) Plaintiff seeks
compensatory damages in the amount of $750,000 and
punitive damages in the amount of $1,000,000. (Id. at 4.)
In addition to these allegations, Plaintiff also claims that
Defendants “continue to engage in a pattern of providing
inadequate medical care” at WCJ, as evidenced by “the
many federal lawsuits, grievances[,] and complaints filed
against” Defendants. (Id. at 3.) Specifically, Plaintiff alleges
that the County and Spano “fail to properly train and supervise
correctional staff,” including Kitt, and fail to exercise
appropriate oversight of the County's medical contractor,
Correct Care, and its employees, including Ulloa, Gendell,
and Asseauguste. (Id.)
B. Procedural History
Plaintiff filed his initial Complaint on March 8, 2019, naming
the County, Correct Care, Ulloa, Spano, Kitt, Gendell, and
“Nurse Jane Doe” as Defendants. (Compl. 1 (Dkt. No. 2).)
The Court granted Plaintiff's request to proceed in forma
pauperis on May 21, 2019, (see Dkt. No. 5), and, on June 24,
2019, issued an Order of Service directing Correct Care to aid
Plaintiff in ascertaining the identity of Nurse Jane Doe and
to inform Plaintiff of this person's identity, (see Dkt. No. 9).
The Order of Service also directed Plaintiff to file an amended
complaint within 30 days of learning the nurse's identity. (Id.)
On August 7, 2019, counsel for Defendants identified the
nurse as Vladimir Asseauguste. (Letter from Paul A. Sanders,
Esq., to Court (Aug. 7, 2019) 1 (Dkt. No. 18).) The following
day, the Court again directed Plaintiff to file an amended
complaint naming Asseauguste as a Defendant. (See Dkt. No.
19.)
*3 After Plaintiff failed to file an amended complaint,
the Court issued an Order on November 8, 2019 directing
Plaintiff to show cause why the claims against “Nurse Jane
Doe” should not be dismissed. (See Order To Show Cause
2 (Dkt. No. 24).) Plaintiff responded on December 4, 2019,
(see Dkt. No. 28), and, after receiving several extensions
from the Court, (see Dkt. Nos. 29, 32), Plaintiff filed his
Amended Complaint on March 4, 2020, (see Dkt. No. 33).
Pursuant to a briefing schedule set by the Court, (see Dkt.
No. 40), Municipal Defendants and Medical Defendants
filed a Motion To Dismiss on May 26, 2020, (see Not.
of Mot. (Dkt. No. 42)), and the County and Correctional
Defendants filed a separate Motion To Dismiss on June 2,
2020, (see Not. of Mot. (Dkt. No. 46)). Meanwhile, on May
29, 2020, Plaintiff filed a letter in response to arguments
outlined by counsel for Defendants in their respective pre-
motion letters. (See Pl.’s Opp'n.) 6 Municipal and Medical
Defendants filed their Reply on July 8, 2020. (See Reply
Mem. of Law in Further Supp. of Defs.’ Mot. To Dismiss
(“Mun. & Med. Defs.’ Reply”) (Dkt. No. 48).) On July 13,
2020, Plaintiff filed a short document styled as an “Affidavit
in Response to [Defendants’] Motion[s] To Dismiss” (the
“Dumel Affidavit”), in which Plaintiff requested “time for
discovery,” averring that Defendants are in possession of
“crucial documents” needed to oppose the Motions To
Dismiss. (See Aff. in Resp. to Mot. To Dismiss ¶¶ 5–6 (Dkt.
No. 51).) The Court denied the request on July 16, 2020,
explaining that “[d]iscovery at this point in the proceedings
would be premature,” (see Dkt. No. 54), and County and
Correctional Defendants filed their Reply on July 21, 2020,
(see Reply Mem. of Law in Further Supp. of Mot. To Dismiss
(“County & Corr. Defs.’ Reply”) (Dkt. No. 55)). On August
24, 2020, Plaintiff filed a letter with the Court requesting
additional time to file an Opposition to Defendants’ Motions.
(See Letter from Tyron Dumel to Court (Aug. 18, 2020) (Dkt.
No. 56).) On August 27, 2020, the Court gave Plaintiff until
September 30, 2020 to file any additional Opposition papers,
(see Dkt. No. 57), but Plaintiff failed to do so. 7
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II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint
“does not need detailed factual allegations” to survive a
motion to dismiss, “a plaintiff's obligation to provide the
‘grounds’ of his [or her] ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and
quotation marks omitted). Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (alteration and quotation marks omitted).
Rather, a complaint's “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint,” id. at 563,
and a plaintiff must allege “only enough facts to state a claim
to relief that is plausible on its face,” id. at 570, if a plaintiff
has not “nudged [his] claims across the line from conceivable
to plausible, the[ ] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint
states a plausible claim for relief will ... be a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it
has not ‘show[n]’—‘that the pleader is entitled to relief.’
” (alteration in original) (citation omitted) (quoting Fed. R.
Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and
generous departure from the hypertechnical, code-pleading
regime of a prior era, but it does not unlock the doors
of discovery for a plaintiff armed with nothing more than
conclusions.”).
*4 “[W]hen ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint,” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam), and “draw[ ] all reasonable
inferences in favor of the plaintiff,” Daniel v. T&M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014)
(citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d
Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)
(6) motion, a district court must confine its consideration
to facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint
by reference, and to matters of which judicial notice may
be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (internal quotation marks omitted);
see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same). Where, as here, a plaintiff proceeds
pro se, the court must “construe[ ] [his] [complaint] liberally
and interpret[ ] [it] to raise the strongest arguments that [it]
suggests[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d
Cir. 2013) (quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro
se party from compliance with relevant rules of procedural
and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor
v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro
se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.” (italics
and quotation marks omitted)). Moreover, the “failure to
oppose [Defendants’] [M]otion [T]o [D]ismiss does not, by
itself, require the dismissal of [Plaintiff's] claims.” Leach v.
City of New York, No. 12-CV-2141, 2013 WL 1683668, at
*2 (S.D.N.Y. Apr. 17, 2013). Rather, even though “a party
is of course to be given a reasonable opportunity to respond
to an opponent's motion, the sufficiency of a complaint is a
matter of law that the court is capable of determining based
on its own reading of the pleading and knowledge of the law.”
McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000).
B. Analysis
Liberally construed, the Amended Complaint alleges
violations under the Fourteenth Amendment against all
Defendants: against Municipal Defendants and individual
Defendants in their official capacities, Plaintiff alleges
a municipal liability claim pursuant to Monell; against
Spano individually, Plaintiff appears to allege a claim
based on supervisory liability; against Municipal and
Medical Defendants, Plaintiff alleges a claim for deliberate
indifference to a serious medical need; and against Kitt
individually, Plaintiff also alleges a claim for deliberate
indifference to a serious medical need.
1. Municipal Liability
Plaintiff has sued all Defendants in both their individual
and official capacities. (See Am. Compl. 1.) “A claim
asserted against a [defendant] in his official capacity ... is
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in effect a claim against the governmental entity itself ...
for ‘official-capacity suits generally represent only another
way of pleading an action against an entity of which an
officer is an agent.’ ” Lore v. City of Syracuse, 670 F.3d
127, 164 (2d Cir. 2012) (quoting Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978)). Defendants argue
that the Amended Complaint fails plausibly to allege claims
for municipal liability under Monell against the County and
Correct Care. (See Mem. of Law in Supp. of [Municipal
& Medical] Defs.’ Mot. To Dismiss (“Mun. & Med. Defs.’
Mem.”) 3–6 (Dkt. No. 44); Mem. of Law in Supp. of [County
& Correctional] Defs.’ Mot. To Dismiss (“County & Corr.
Defs.’ Mem.”) 4–6 (Dkt. No. 46-4).) 8
“Congress did not intend municipalities to be held liable
[under § 1983] unless action pursuant to official municipal
policy of some nature caused a constitutional tort.” Monell,
436 U.S. at 691. Thus, “to prevail on a claim against a
municipality under [§] 1983 based on acts of a public official,
a plaintiff is required to prove: (1) actions taken under color
of law; (2) deprivation of a constitutional or statutory right;
(3) causation; (4) damages; and (5) that an official policy of
the municipality caused the constitutional injury.” Roe v. City
of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell,
436 U.S. at 690–91). The fifth element reflects the notion
that a Monell defendant “may not be held liable under § 1983
solely because it employs a tortfeasor.” Bd. of Cnty. Comm'rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997). In other
words, a municipality may not be held liable under § 1983 “by
application of the doctrine of respondeat superior.” Pembaur
v. City of Cincinnati, 475 U.S. 469, 478 (1986) (citation and
italics omitted). Rather, “municipalities may only be held
liable when the municipality itself deprives an individual of a
constitutional right.” Newton v. City of New York, 566 F. Supp.
2d 256, 270 (S.D.N.Y. 2008). A plaintiff may satisfy the fifth
element by alleging one of the following:
*5 (1) a formal policy officially
endorsed by the municipality; (2)
actions taken by government officials
responsible for establishing the
municipal policies that caused the
particular deprivation in question;
(3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–
77 (S.D.N.Y. 2010) (citations omitted). Moreover, a plaintiff
also must establish an “affirmative” causal link between the
municipality's policy, custom, or practice and the alleged
constitutional injury. City of Okla. City v. Tuttle, 471 U.S. 808,
824 n.8 (1985).
Here, Plaintiff claims that “it was the [customary practice] of
[the Westchester County Department of Corrections] to offer
and provide inmates with unconstitutional medical treatment
due to inadequate training and supervision.” (Am. Compl.
3.) 9 Relatedly, he alleges that the County and Spano “fail to
properly train and supervise correctional staff” and “further
fail to enforce oversight over their contractor Correct Care”
and its employees. (Id.) Neither assertion, without more, is
sufficient to establish the fifth element of a Monell claim.
As stated, a plaintiff may establish the fifth element of a
Monell claim by alleging a “consistent and widespread”
practice. See Brandon, 705 F. Supp. 2d at 276. But
here, although Plaintiff conclusorily claims that the County
has a customary practice of “provid[ing] inmates with
unconstitutional medical treatment,” (Am. Compl. 3), he
fails to allege the existence of any other similar incidents
or complaints, apart from a vague allusion to “the many
federal lawsuits, grievances[,] and complaints filed against
these individuals.” (Id.) 10 This failure “dooms Plaintiff's
claim because a custom or policy cannot be shown by pointing
to a single instance of unconstitutional conduct by a mere
employee of the municipality.” Ruiz v. Westchester County,
No. 18-CV-7007, 2020 WL 4340788, at *7 (S.D.N.Y. July
28, 2020) (citation and quotation marks omitted); see also
Iacovangelo v. Corr. Med. Care, Inc., 624 F. App'x 10, 14 (2d
Cir. 2015) (affirming dismissal of Monell claim where “the
amended complaint provide[d] only one additional example
of a similar incident”); Villa, 2020 WL 4505968, at *4
(“Normally, a custom or policy cannot be shown by pointing
to a single instance of unconstitutional conduct by a mere
employee of the municipality.” (quoting Triano v. Town of
Harrison, 895 F. Supp. 2d 526, 532 (S.D.N.Y. 2012))); Cox v.
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City of New Rochelle, No. 17-CV-8193, 2019 WL 3778735,
at *8 (S.D.N.Y. Aug. 12, 2019) (dismissing Monell claim
where, “apart from the incident giving rise to this case ...
[the] [p]laintiff fail[ed] to allege facts plausibly suggesting
any other similar example of [the municipality's] failure
to supervise or train officers”); Johnson v. Paul, No. 17-
CV-3654, 2018 WL 2305657, at *3 (S.D.N.Y. May 21, 2018)
(finding that no Monell claim had been made out because “a
single incident ... especially if it involved only actors below
the policy making level, does not suffice to show a municipal
policy” (omission in original) (quoting DeCarlo v. Fry, 141
F.3d 56, 61 (2d Cir. 1998))). Moreover, “mere citations to
lawsuits, even if they did involve comparable conduct, do
not alone establish a custom or practice that is widespread
and persistent, particularly if the lawsuits did not result in
adjudication of liability.” Bethune v. Westchester County, No.
18-CV-3500, 2020 WL 1032508, at *5 (S.D.N.Y. Mar. 2,
2020). Plaintiff does not cite any particular civil actions, does
not plead factual matter suggesting that those civil actions
involved similar conduct or were filed against the same actors,
and does not allege that the actions reached conclusions
consistent with his allegations. Accordingly, a “consistent and
widespread” custom or practice has not been pled. Brandon,
705 F. Supp. 2d at 276.
*6 Plaintiff also fails plausibly to allege a failure-to-train
claim. To state a claim for municipal liability based on failure
to train, Plaintiff must allege facts which support an inference
that the County failed to train its employees, that it did so with
deliberate indifference, and that the failure to train caused his
constitutional injuries. See Treadwell v. County of Putnam,
No. 14-CV-10137, 2016 WL 1268279, at *4 (S.D.N.Y. Mar.
30, 2016) (“To establish Monell liability premised on a failure
to supervise, a plaintiff must plead that (1) there was a pattern
of allegations of or complaints about, or a pattern of actual,
similar unconstitutional activity, and (2) the municipality
consistently failed to investigate those allegations.”). Further,
“a plaintiff must plausibly allege a specific deficiency in the
municipality's training.” Tieman v. City of Newburgh, No.
13-CV-4178, 2015 WL 1379652, at *22 (S.D.N.Y. Mar. 26,
2015). In particular, a failure to train constitutes a policy or
custom that is actionable under § 1983 only where,
in light of the duties assigned to
specific officers or employees the
need for more or different training
is so obvious, and the inadequacy
so likely to result in the violation
of constitutional rights, that the
policymakers ... can reasonably be said
to have been deliberately indifferent to
the need.
City of Canton v. Harris, 489 U.S. 378, 390 (1989) (footnote
omitted).
Plaintiff's general claim that the County failed to train and
supervise its staff is a “boilerplate assertion[ ]” that is
insufficient, without more, to state a Monell claim. Araujo
v. City of New York, No. 08-CV-3715, 2010 WL 1049583,
at *9 (E.D.N.Y. Mar. 19, 2010) (citation and quotation
marks omitted) (dismissing failure-to-train claim where a
plaintiff alleged “no facts to indicate any deliberate choice
by municipal policymakers to engage in unconstitutional
conduct”). Therefore, this claim is dismissed. See Acosta
v. City of New York, No. 11-CV-856, 2012 WL 1506954,
at *11 (S.D.N.Y. Apr. 26, 2012) (dismissing Monell claim
where the plaintiff merely alleged that the city “failed to
train its police officers,” because the plaintiff “failed to
set forth factual allegations that would support a plausible
inference that the [c]ity's ‘policies’ or ‘customs’ caused ...
[the] alleged violations of [the] plaintiff's rights”); see also
Rivera v. Westchester County, No. 18-CV-8354, 2019 WL
3958425, at *5 (S.D.N.Y. Aug. 22, 2019) (dismissing Monell
claim where the “[p]laintiff ... cited no specific deficiency in
[the defendant's] training or supervision protocols”); Dawson
v. Westchester County, No. 18-CV-7790, 2019 WL 3408899,
at *4 (S.D.N.Y. July 29, 2019) (same); Quick v. Westchester
County, No. 18-CV-243, 2019 WL 1083784, at *5 (S.D.N.Y.
Mar. 7, 2019) (dismissing Monell claim where the plaintiff
alleged failure to supervise kitchen workers because the
complaint was “devoid of any detailed factual allegations”
that the defendant lacked “a relevant training or supervisory
program” or that the defendant “was otherwise deliberately
indifferent to food preparation problems”); Triano, 895 F.
Supp. 2d at 539 (dismissing Monell claim where the plaintiff
“merely alleged that the [t]own failed to train its employees,
without providing any supporting factual detail about alleged
deficiencies in the training program”).
It is true that a plaintiff may establish deliberate indifference
for a failure-to-supervise claim by showing “that the need for
more or better supervision to protect against constitutional
violations was obvious,” from the fact that there “were
repeated complaints of civil rights violations,” and that “the
complaints [were] followed by no meaningful attempt on
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the part of the municipality to investigate or to forestall
further incidents.” Shepherd v. Powers, No. 11-CV-6860,
2012 WL 4477241, at *9 (S.D.N.Y. Sept. 27, 2012) (citation
and quotation marks omitted); see also Lawrence v. City
of Rochester, No. 09-CV-6078, 2015 WL 510048, at *7
(W.D.N.Y. Feb. 6, 2015) (“Deliberate indifference may be
inferred from the failure to train or supervise based on
proof of repeated complaints of civil rights violations that
are followed by no meaningful attempt on the part of the
municipality to investigate or to forestall.” (citation and
quotation marks omitted)); Aretakis v. Durivage, No. 07-
CV-1273, 2009 WL 249781, at *29 (N.D.N.Y. Feb. 3, 2009)
(same). However, even in those cases, the plaintiffs were
able to detail the allegations in other lawsuits and grievances.
See, e.g., Tieman, 2015 WL 1379652, at *20 (holding that
the plaintiff sufficiently alleged the need for better training
or supervision where the plaintiff listed and detailed nine
other complaints raising similar allegations against the same
defendants); McCants v. City of Newburgh, No. 14-CV-556,
2014 WL 6645987, at *4–5 (S.D.N.Y. Nov. 21, 2014)
(holding that the plaintiff sufficiently alleged a need for better
training or supervision where the plaintiff listed and detailed
seventeen other complaints over a seven-year period raising
similar allegations against the same defendants); Farrow v.
City of Syracuse, No. 12-CV-1401, 2014 WL 1311903, at
*8 n.7 (N.D.N.Y. Mar. 31, 2014) (stating that the fact that
“at least 15 excessive force complaints ha[d] been filed
against the [c]ity in the past 5 years” would be sufficient to
surpass the motion-to-dismiss stage). Because, as the Court
has stated, Plaintiff provides no details of “the many federal
lawsuits, grievances[,] and complaints” supposedly filed
against Defendants, (see Am. Compl. 3), Plaintiff's Monell
claim cannot survive the instant Motions on this ground, see
Rivera, 2019 WL 3958425, at *5 (dismissing Monell claim
where the plaintiff alleged that “numerous similar lawsuits,
grievances, and complaints” were filed against the defendant
but “fail[ed] to provide any factual details regarding these
other lawsuits and grievances”); Dawson, 2019 WL 3408899,
at *5 (dismissing as conclusory a Monell claim based on a
threadbare allegation that “[d]efendants knew about ... poor
food conditions because of other complaints, grievances, and
lawsuits”).
*7 Accordingly, Plaintiff's municipal liability claims are
dismissed. See Jackson v. Westchester County, No. 18-
CV-7207, 2019 WL 3338020, at *4 (S.D.N.Y. July 25, 2019)
(dismissing Monell claim where the plaintiff failed to “allege
the existence of any policy, any actions taken or decisions
made by any ... policymaking officials, any systemic failures
to train or supervise, or any practices so widespread that they
practically have the force of law” and failed to “provide any
factual details regarding ... other [purported] lawsuits and
grievances” on similar issues (collecting cases)); see also
McKenzie v. City of Mount Vernon, No. 18-CV-603, 2018 WL
6831157, at *7 (S.D.N.Y. Dec. 28, 2018) (dismissing Monell
claim where the plaintiff did “not allege any facts suggesting
a policy or custom that led to [the] alleged” constitutional
deprivation); 5 Borough Pawn, LLC v. City of New York, 640
F. Supp. 2d 268, 300 (S.D.N.Y. 2009) (dismissing Monell
claim where the “plaintiffs fail[ed] to allege any facts showing
that there is a [municipal] policy—unspoken or otherwise—
that violates the Federal Constitution”).
2. Personal Involvement of Spano
Defendants also argue that any claim against Spano fails
because the Amended Complaint does not allege that Spano
had any personal involvement in any purported constitutional
violation. (See County & Corr. Defs.’ Mem. 6–7.) The Court
agrees.
“Because vicarious liability is inapplicable to ... § 1983
suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. In other
words, “a plaintiff must plead and prove the elements of
the underlying constitutional violation directly against the
official.” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir.
2020). Prior to Tangreti, the Second Circuit held that the
following could establish a defendant's personal involvement:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of inmates
by failing to act on information
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indicating that unconstitutional acts
were occurring.
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir.
2013) (italics omitted). But in Tangreti, the Second Circuit
rejected “a special test for supervisory liability.” 983 F.3d
at 620. Now, whatever the alleged constitutional violation
may be, “[t]he violation must be established against the
supervisory official directly.” Id. at 618. Here, however, the
Court need not address the significance of Tangreti, because
Plaintiff fails to meet even the special supervisory standards
for personal involvement described in Grullon.
Here, Plaintiff fails plausibly to allege the personal
involvement of Defendant Spano. Plaintiff makes no mention
of what role, if any, Spano played in training correctional staff
or supervising the County's contractor, Correct Care. Indeed,
apart from appearing in the caption, Spano's name appears
only once in the Amended Complaint, as part of a conclusory
allegation that he failed to train and supervise correctional
staff and failed to exercise appropriate oversight of Correct
Care. (See Am. Compl. 3.) This alone is grounds for dismissal.
See Ortiz v. Bloomberg, No. 10-CV-9434, 2011 WL 4822829,
at *3 (S.D.N.Y. Oct. 7, 2011) (dismissing claims where “the
only named reference to [certain correctional officers] [was]
in the caption of the [c]omplaint, and the only additional
references to these defendants [were] merely conclusory
statements about their personal involvement and liability”).
Accordingly, any claims against Spano are dismissed.
3. Deliberate-Indifference Claim
Against Medical Defendants
*8 Plaintiff alleges that Medical Defendants were
deliberately indifferent to his serious medical needs while
detained at WCJ. (See Am. Compl. 2–3.) Medical Defendants
argue that the alleged facts fail to state a deliberate-
indifference claim. (Mun. & Med. Defs.’ Mem. 6–11.)
Because Plaintiff was a pretrial detainee at the time he was
allegedly denied medical care, Plaintiff's claim falls under
“the Due Process Clause of the Fourteenth Amendment,
rather than the Cruel and Unusual Punishments Clause of the
Eight[h] Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017). A pretrial detainee's rights are “at least as great as
the Eighth Amendment protections available to a convicted
prisoner.” Id. (quoting City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244 (1983)).
“[W]hile in custody, a pretrial detainee has a Fourteenth
Amendment substantive due process right to care and
protection ....” Case v. Anderson, No. 16-CV-983, 2017 WL
3701863, at *8 (S.D.N.Y. Aug. 25, 2017) (quoting Kelsey v.
City of New York, 306 F. App'x 700, 702 (2d Cir. 2009)). To
establish a claim for deliberate indifference to medical needs
under the Due Process Clause of the Fourteenth Amendment,
a pretrial detainee must establish two elements: first, that the
“deprivation of medical care ... [was] ‘sufficiently serious,’ ”
and second, that the defendant “acted or failed to act with ‘a
sufficiently culpable state of mind.’ ” Smith v. Outlaw, No.
15-CV-9961, 2017 WL 4417699, at *2 (S.D.N.Y. Sept. 30,
2017) (quoting Salahuddin v. Goord, 467 F.3d 263, 279 (2d
Cir. 2006); Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
The first element “is evaluated the same way under both the
Eighth Amendment and Fourteenth Amendment.” Ackridge
v. Aramark Corr. Food Servs., No. 16-CV-6301, 2018 WL
1626175, at *19 n.19 (S.D.N.Y. Mar. 30, 2018) (citing
Darnell, 849 F.3d at 30). This requirement is “objective:
the alleged deprivation of adequate medical care must
be sufficiently serious.” Spavone v. N. Y. State Dep't of
Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citation
and quotation marks omitted). “There is no static test to
determine whether a deprivation is sufficiently serious;
instead, the conditions themselves must be evaluated in light
of contemporary standards of decency.” Darnell, 849 F.3d
at 30 (citation and quotation marks omitted). Analyzing this
objective requirement involves two inquiries: “[t]he first
inquiry is whether the [detainee] was actually deprived of
adequate medical care,” Salahuddin, 467 F.3d at 279, and
the second “asks whether the inadequacy in medical care
is sufficiently serious. This inquiry requires the [C]ourt to
examine how the offending conduct is inadequate and what
harm, if any, the inadequacy has caused or will likely cause
the [detainee],” id. at 280. To meet the objective requirement,
“the inmate must show that the conditions, either alone or
in combination, pose an unreasonable risk of serious damage
to his health.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir.
2013). “There is no settled, precise metric to guide a court
in its estimation of the seriousness of a [detainee's] medical
condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003).
Nevertheless, the Second Circuit has presented the following
non-exhaustive list of factors to consider when evaluating
a detainee's medical condition: “(1) whether a reasonable
doctor or patient would perceive the medical need in question
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as important and worthy of comment or treatment, (2) whether
the medical condition significantly affects daily activities,
and (3) the existence of chronic and substantial pain.” Id.
(quotation marks omitted) (quoting Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998)); see also Morales v. Fischer,
46 F. Supp. 3d 239, 247 (W.D.N.Y. 2014) (same), appeal
dismissed, No. 14-3881 (2d Cir. June 18, 2015). Generally, the
condition must be “ ‘a condition of urgency’ that may result in
‘degeneration’ or ‘extreme pain.’ ” Grimmett v. Corizon Med.
Assocs. of N.Y., No. 15-CV-7351, 2017 WL 2274485, at *3
(S.D.N.Y. May 24, 2017) (quoting Chance, 143 F.3d at 702)).
*9 The second element “applies differently to claims under
the Eighth Amendment and the Fourteenth Amendment.”
Howard v. Brown, No. 15-CV-9930, 2018 WL 3611986, at
*4 (S.D.N.Y. July 26, 2018) (citing Darnell, 849 F.3d at 34–
35). “Prior to the Second Circuit's decision in [Darnell, 849
F.3d 17,] the second element—whether the defendant acted
with a sufficiently culpable state of mind—was evaluated
subjectively,” regardless of whether the plaintiff's claim arose
under the Eighth Amendment (in the case of a convicted
prisoner) or the Fourteenth Amendment (in the case of pretrial
detainees). See Ryan v. County of Nassau, No. 12-CV-5343,
2018 WL 354684, at *3 (E.D.N.Y. Jan. 10, 2018). However, in
Darnell, in light of the Supreme Court's decision in Kingsley
v. Hendrickson, 576 U.S. 389 (2015), the Second Circuit held
that when a claim arises under the Fourteenth Amendment,
“the pretrial detainee must prove that the defendant-official
acted intentionally” in denying adequate medical care, “or
recklessly failed to act with reasonable care ... even though
the defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.” Darnell,
849 F.3d at 35; see also Ryan, 2018 WL 354684, at *3
(same). “In other words, the second element of a deliberate
indifference claim under the Fourteenth Amendment”—the
so-called “mens rea prong”— is now “ ‘defined objectively,’
and a plaintiff is not required to show subjective awareness by
the defendant that ‘[his] acts (or omissions) have subjected the
pre-trial detainee to a substantial risk of harm.’ ” Ryan, 2018
WL 354684, at *3 (alteration in original) (quoting Darnell,
849 F.3d at 35). 11 12 Despite the slightly lower standard
articulated in Darnell, which is akin to objective recklessness,
“any § 1983 claim for a violation of due process requires proof
of a mens rea greater than mere negligence.” Smith, 2017 WL
4417699, at *3 (italics omitted) (quoting Darnell, 849 F.3d at
36); see also Ryan, 2018 WL 354684, at *3 (same); Grimmett,
2017 WL 2274485, at *4 (same). “A detainee must prove that
an official acted intentionally or recklessly, and not merely
negligently.” Darnell, 849 F.3d at 36.
Here, even if Medical Defendants’ delay in providing
medication was deemed to satisfy the objective prong,
Plaintiff fails to allege facts plausibly suggesting that
these Defendants either intentionally deprived him of the
prescribed medication or “recklessly failed to act with
reasonable care.” Darnell, 849 F.3d at 35. Even when
construed liberally, the Amended Complaint suggests, at
most, that Medical Defendants were “merely negligent[ ]” in
failing to ensure that Plaintiff received his medication. See id
at 36. This does not appear to be a case where, for example,
a defendant intentionally deprives a plaintiff of medication.
Compare White v. Westchester County, No. 18-CV-730, 2018
WL 6726555, at *13 (S.D.N.Y. Dec. 21, 2018) (dismissing
complaint against Ulloa and Gendell because the complaint
did “not allege that Dr. Ulloa and Dr. Gendell themselves
delayed the administration of [the] [p]laintiff's medications”),
with Thomas v. Tisch, No. 08-CV-400, 2009 WL 701009,
at *9 (E.D.N.Y. Mar. 11, 2009) (finding that a complaint
satisfied the more stringent, subjective prong of an Eighth
Amendment deliberate-indifference claim where the plaintiff
alleged that the defendants deliberately withheld medication).
Nor is this a case where the defendants refused to administer
a plaintiff's medications despite persistent requests from the
plaintiff. Cf. Milner v. Laplante, No. 18-CV-903, 2019 WL
79428, at *3 (D. Conn. Jan. 2, 2019) (allowing deliberate-
indifference claim under the Fourteenth Amendment to
proceed where, although the plaintiff had repeatedly notified
medical staff that he was out of medication, defendants
“[took] [no] action to ensure that [the plaintiff] received
proper treatment”); Villafane v. Sposato, No. 16-CV-3674,
2017 WL 4179855, at *22 (E.D.N.Y. Aug. 22, 2017) (finding
that plaintiff had sufficiently pled the mens rea prong of
his deliberate-indifference claim where he had “repeatedly
complained of pain but [where the] defendants refused to
provide him with the prescribed pain medication”), adopted
by 2017 WL 4157220 (E.D.N.Y. Sept. 15, 2017). Indeed,
Plaintiff notes that, due to his embarrassment, he did not file
his grievance until January 1, 2019, whereupon he received
his medication the following day. (Am. Compl. 2, 3.)
*10 Thus, in the end, this case is similar to other cases
where plaintiffs merely allege a delay in the provision
of medication or treatment, but fail to allege that the
delay was either intentional or objectively reckless. See
Amberslie v. Prisoner Transp. Serv. of. Am., LLC, No. 17-
CV-564, 2019 WL 1024183, at *13 (N.D.N.Y. Mar. 4,
2019) (dismissing deliberate-indifference claim based on the
mens rea prong where the “plaintiff's allegations tend[ed]
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to show little more than an inadvertent failure to provide
him with [his medication]”); see also Bell, 980 F. Supp.
2d at 561 (dismissing the plaintiff's deliberate-indifference
claim where the defendant's “alleged carelessness caused the
prescription-refill delay,” and thus, the defendant's “behavior
[did not] rise[ ] above the level of ‘mere negligence’ ”);
Santos v. Nicholls, No. 10-CV-3159, 2013 WL 3305336, at *5
(S.D.N.Y. July 1, 2013) (dismissing claim after finding that
prison officials’ “failure to provide Motrin” while plaintiff
experienced pain “[a]t most ... reflected negligence”); Vining
v. Dep't of Corr., No. 12-CV-3267, 2013 WL 2036325, at
*6 (S.D.N.Y. Apr. 5, 2013) (dismissing claim based on a
delay in treatment where plaintiff did not allege that prison
officials “intended or engineered” the delay, finding instead
that “[p]laintiff's claim flow[ed] from scheduling errors” and
“the impersonal dynamic of prison medical logistics,” all
of which amounted, “[a]t most,” to negligence); cf. Vail
v. City of New York, 68 F. Supp. 3d 412, 425 (S.D.N.Y.
2014) (dismissing deliberate-indifference claim where the
defendants, accused of administering the wrong medication,
had “[a]t most ... acted negligently”). 13
Because the allegations in the Amended Complaint do
not plausibly suggest that Medical Defendants intentionally
deprived Plaintiff of medication or recklessly failed to act
with reasonable care, Plaintiff's deliberate-indifference claim
against these Defendants must be dismissed.
4. Deliberate-Indifference Claim Against Kitt
As noted, Plaintiff alleges that after enduring “weeks” of
“unbearable” pain, he eventually notified Defendant Kitt
that he had been diagnosed with Chlamydia but had yet to
receive any treatment or medication. (Am. Compl. 2–3.) Kitt
allegedly responded: “Wow! You're burning dude; I'm going
to go speak to medical about this and I'll be right back.” (Id.
at 3.) But according to Plaintiff, Kitt did not return, and
no medical assistance was forthcoming. (Id.) Instead, after
“several days” passed, Plaintiff “overheard Kitt laughing with
[another correctional officer] about [Plaintiff's] Chlamydia
condition.” (Id.) Plaintiff did not receive medication to treat
his infection until he eventually filed a grievance with the
prison on January 1, 2019. (Id.)
According to Kitt, the gravamen of Plaintiff's claim against
him is as an “allegation[ ] of verbal harassment or
threats.” (County & Corr. Defs.’ Mem. 3.) Having framed
the claim in this fashion, Kitt argues that such allegations
“are generally an insufficient basis for an inmates [sic]
section 1983 claim.” (Id.) This may be so, but Kitt's framing
fundamentally misconstrues the nature of Plaintiff's claim.
The core of the claim is not that Kitt mocked or made light
of Plaintiff's condition, but that he failed to secure medical
attention as he promised he would. Liberally construed,
the Amended Complaint asserts a deliberate-indifference
claim against Kitt, rather than a mere allegation of verbal
harassment.
“Although deliberate indifference claims are most often
asserted against medical personnel,” Bookman v. Lindstrand,
No. 15-CV-1542, 2018 WL 3121688, at *12 (N.D.N.Y.
Feb. 14, 2018), report and recommendation adopted, 2018
WL 1470585 (N.D.N.Y. Mar. 26, 2018), “non-medical
personnel may [also] be found to have engaged in deliberate
indifference,” Haynes v. City of New York, No. 19-CV-1925,
2020 WL 4926178, at *14 n.28 (S.D.N.Y. Aug. 20, 2020)
(citing Roundtree v. City of New York, No. 15-CV-8198, 2018
WL 1586473, at *6 (S.D.N.Y. Mar. 28, 2018)). That Plaintiff
has accused a correctional officer of deliberate indifference
does not, however, alter the relevant analysis: “The same
standards apply to a claim of deliberate indifference to
serious medical needs on the part of nonmedical prison
personnel.” Feliciano v. Anderson, No. 15-CV-4106, 2017
WL 1189747, at *13 (S.D.N.Y. Mar. 30, 2017) (quoting
Hodge v. Coughlin, No. 92-CV-622, 1994 WL 519902, at
*11 (S.D.N.Y. Sept. 22, 1994), aff'd, 52 F.3d 310 (2d Cir.
1995)); see also Shepherd v. Fisher, No. 08-CV-9297, 2017
WL 666213, at *11 (S.D.N.Y. Feb. 16, 2017) (observing that
although certain defendants were “not medical personnel,” an
incarcerated plaintiff's deliberate-indifference claims against
them were “nonetheless evaluated under the ‘deliberate
indifference’ framework of the Eighth Amendment”). Courts
in this Circuit have frequently observed that to establish a
deliberate-indifference claim against nonmedical personnel,
“a plaintiff must prove that [the] nonmedical prison personnel
intentionally delayed access to medical care when the inmate
was in extreme pain and has made his medical problems
known to the attendant prison personnel or that the inmate
suffered a complete denial of medical treatment.” Haynes,
2020 WL 4926178, at *14 n.28 (quotation marks and
alteration omitted) (quoting Roundtree, 2018 WL 1586473,
at *6); Crandell v. Ross, No. 19-CV-6552, 2020 WL 134576,
at *4 (W.D.N.Y. Jan. 13, 2020) (reciting the same standard);
Young v. Choinski, 15 F. Supp. 3d 194, 200 (D. Conn.
2014) (same). “At a minimum, there must be at least
some allegations of a conscious or callous indifference to a
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prisoner's rights.” Hodge, 1994 WL 519902, at *11 (citation
omitted).
a. Objective Prong
*11 As discussed supra, Plaintiff must allege a deprivation
of medical care that is “sufficiently serious” in order
to establish the first, objective prong of his deliberate-
indifference claim. Spavone, 719 F.3d at 138. Here, there is
no question—and Defendants do not appear to contest—that
Plaintiff “was actually deprived of adequate medical care,”
Salahuddin, 467 F.3d at 279, until he filed his grievance in
January 2019. The more difficult question, rather, is “whether
the inadequacy in medical care [was] sufficiently serious.” Id.
at 280.
In the Second Circuit, it is well established that certain
sexually transmitted infections—such as HIV and Hepatitis
C—constitute sufficiently serious conditions that satisfy
the objective prong of a deliberate-indifference claim. See
Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)
(acknowledging that, for purposes of a deliberate-indifference
claim, “HIV is a serious medical condition”); Taylor v.
Naqvi, No. 17-CV-920, 2017 WL 2662192, at *2 (D.
Conn. June 20, 2017) (same); Pabon v. Wright, No. 99-
CV-2196, 2004 WL 628784, at *5 (S.D.N.Y. Mar. 29,
2004) (gathering cases for the proposition “that Hepatitis
C qualifies as a serious condition for purposes of [the
objective prong] of an Eighth Amendment [deliberate-
indifference] analysis”); cf. Samuels v. Jackson, No. 97-
CV-2420, 1999 WL 92617, at *3 (S.D.N.Y. Feb. 22, 1999)
(finding that scabies did “not qualify as a serious medical
need” because, although the plaintiff had allegedly suffered
from scratching, sores, and abrasions, he had not alleged
that the condition affected his daily activities or caused
“chronic and substantial pain” (citation omitted)). 14 By
contrast, the Court has not located any authority within this
Circuit evaluating whether Chlamydia itself constitutes a
“sufficiently serious” condition for purposes of such claims.
Turning to the relevant factors identified by the Second
Circuit, however, it is clear, first, that “a reasonable doctor
or patient would perceive [Plaintiff's] medical need ... as
important and worthy of comment or treatment,” Brock,
315 F.3d at 162 (quotation marks omitted). Indeed, the
medical personnel who examined Plaintiff in September 2018
evidently did find Plaintiff's condition worthy of treatment,
hence their decision to order medication that would treat the
infection. (See Pl.’s Opp'n 1.) Second, Plaintiff claims that his
condition caused “excruciating” pain during urination, (id.),
thus “significantly affect[ing] [a] daily activit[y].” Brock,
315 F.3d at 162; cf. James v. Kaskiw, No. 13-CV-526, 2016
WL 770193, at *5 (N.D.N.Y. Jan. 28, 2016) (assuming
that the plaintiff's urinary tract infection and kidney stones,
which caused various urinary complications, constituted
serious medical conditions); Montanez v. Feinerman, No. 10-
CV-419, 2011 WL 293715, at *2–3 (S.D. Ill. Jan. 27, 2011)
(concluding that the plaintiff's medical conditions, including
“frequent and painful urination,” constituted “serious medical
needs,” because they caused “chronic and substantial pain”
and “significantly affect[ed] his daily activities”), vacated
in part on other grounds, 439 F. App'x 545 (7th Cir.
2011). And third, Plaintiff has clearly alleged “the existence
of chronic and substantial pain,” Brock, 315 F.3d at 162
(citation omitted), particularly—although not exclusively—
when urinating, (see Am. Compl. 2; id. at 3–4 (alleging
that his condition also caused, among other ailments,
“swollen” and “tender testicles”)). Taken together, these
factors suggest that Plaintiff's condition “implicate[d] a
medical need sufficiently serious to satisfy the Fourteenth
Amendment's objective prong,” see Turner v. Correct Care
Sols., No. 18-CV-3370, 2019 WL 1115857, at *9 (S.D.N.Y.
Mar. 11, 2019).
*12 Although the Court has not located a case directly
on point within the Second Circuit, its determination is
consistent with the limited in-Circuit guidance that does exist.
See, e.g., Reeder v. Robinson, No. 16-CV-1129, 2018 WL
3121633, at *7 (N.D.N.Y. Jan. 24, 2018) (concluding, “solely
for purposes of [the] [d]efendants’ motion to dismiss, ...
that a painful outbreak of untreated [genital] herpes is a
serious medical condition”) (citing Myrick v. Anglin, 496
F. App'x 670, 674 (7th Cir. 2012) (concluding that the
plaintiff's painful, untreated herpes, which medical staff had
recognized needed treatment, constituted an “objectively
serious” condition for purposes of a deliberate-indifference
claim)). Moreover, federal courts outside the Second Circuit
have reached the same conclusion when confronted with
substantially similar facts. See Plumes v. Quinlan, 980 F.2d
738, 1992 WL 355504, at *2 (Memorandum Opinion) (9th
Cir. 1992) (concluding that a plaintiff had adequately stated
a claim for deliberate indifference based on delayed and
ineffective treatment for Chlamydia); Magee v. Williams,
No. 16-CV-123, 2018 WL 1934072, at *1 (W.D. La. Apr.
24, 2018) (same with respect to a plaintiff who allegedly
had “suffer[ed] ten months of pain from a[n] [untreated]
[C]hlamydia infection”); Spears v. Brown, No. 11-CV-299,
2012 WL 4514156, at *5 (E.D. Ark. July 9, 2012) (denying
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the defendants’ motion for summary judgment based on
undisputed evidence that the plaintiff's Chlamydia infection,
which caused “severe pain and discharge,” had gone untreated
for 40 days), report and recommendation adopted in relevant
part, 2012 WL 4514083 (E.D. Ark. Oct. 2, 2012); Harmon
v. Johnson, No. 06-CV-740, 2007 WL 4463592, at *5 (E.D.
Ark. Dec. 17, 2007) (concluding, for purposes of a summary
judgment motion, that the plaintiff had established that he
“suffered from an objectively serious medical need,” namely,
“pain in his right testicle and a tingling sensation when he
urinated”); Jolly v. Klein, 923 F. Supp. 931, 945 (S.D. Tex.
1996) (concluding that the plaintiff had adequately alleged a
serious medical need based on an undiagnosed and untreated
Chlamydia infection that produced severe testicular pain and
urinary problems, among other symptoms).
Of course, the Court is mindful that where, as here, “a plaintiff
complains of delays ... in providing needed medical treatment,
the court should consider the severity of the challenged
delay or interruption in treatment rather than the prisoner's
underlying medical condition alone in determining whether
[the] plaintiff has shown the existence of a sufficiently
serious medical need.” Balkum v. Unger, No. 06-CV-6578,
2009 WL 290439, at *5 (W.D.N.Y. Feb. 5, 2009); see also
Bellotto v. County of Orange, 248 F. App'x 232, 236 (2d
Cir. 2007) (“When a prisoner alleges a temporary delay or
interruption in the provision of otherwise adequate medical
treatment, we focus on the seriousness of the particular risk of
harm that resulted from the challenged delay or interruption
in treatment rather than the prisoner's underlying medical
condition alone.” (citation and quotation marks omitted));
Smith, 316 F.3d at 186 (“[It is] the particular risk of harm faced
by a [detainee] due to the challenged deprivation of care,
rather than the severity of the [detainee's] underlying medical
condition, considered in the abstract, that is relevant ....”).
Accordingly, Kitt argues that “[t]here is no time frame
associated with the conversation [P]laintiff claims to have
had with [him],” and thus, “it is unknown what period of
time is alleged to have passed between the time Plaintiff
had his conversation ... and the time when treatment actually
began.” (County & Corr. Defs.’ Mem. 4.) But this is only
partly true. Although the Amended Complaint does not
specify the length of time between Plaintiff's conversation
with Kitt and the day Plaintiff finally received treatment,
it does indicate that when Plaintiff overheard Kitt laughing
about his condition “several days” after their conversation,
Plaintiff still had not received treatment. (See Am. Compl. 3
(emphasis added).) At this stage of the case, an alleged delay
of “several days” is sufficient to survive a motion to dismiss,
particularly in light of the serious long-term complications
that could attend Plaintiff's untreated condition. Cf. Sherman
v. Corcella, No. 19-CV-1889, 2020 WL 4043178, at *10
(D. Conn. July 16, 2020) (concluding that an alleged three-
day delay in providing medication for a second-degree
burn satisfied the objective prong of a plaintiff's deliberate-
indifference claim for purposes of a motion to dismiss);
Bell, 980 F. Supp. 2d at 560 (assuming that a defendant's
five-day delay in providing acid reflux medication, which
caused the plaintiff to experience vomiting, was sufficient to
satisfy the objective prong of a deliberate-indifference claim);
Waters v. Bloomberg, No. 19-CV-812, 2019 WL 2343669,
at *4 (D. Conn. June 3, 2019) (concluding that a plaintiff
“sufficiently alleged an objectively serious medical need”
based on stomach pain resulting in part from a defendant's
three-day delay in emptying the plaintiff's colostomy bag). 15
Thus, “[e]ven under a narrower seriousness inquiry that
focuses on ‘the particular risk of harm’ faced by Plaintiff due
to delayed or inadequate treatment,” Vassallo v. City of New
York, No. 15-CV-7125, 2016 WL 6902478, at *9 (S.D.N.Y.
Nov. 22, 2016) (quoting Smith, 316 F.3d at 186), Plaintiff
has pled sufficient facts to satisfy the objective prong of his
deliberate-indifference claim.
b. Mens Rea Prong
*13 As noted, to establish the mens rea prong, a
“pretrial detainee must prove that the defendant-official acted
intentionally to impose the alleged condition, or recklessly
failed to act with reasonable care to mitigate the risk ... even
though the defendant-official knew, or should have known,
that the condition posed an excessive risk to health or safety.”
King v. Falco, No. 16-CV-6315, 2018 WL 6510809, at *9
(S.D.N.Y. Dec. 11, 2018) (alteration in original) (underlining
omitted) (quoting Darnell, 849 F.3d at 35). After Darnell,
therefore,
a [pretrial] detainee asserting a
Fourteenth Amendment claim for
deliberate indifference to his medical
needs can allege either that the
defendants knew that failing to provide
the complained of medical treatment
would pose a substantial risk to his
health or that the defendants should
have known that failing to provide
the omitted medical treatment would
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pose a substantial risk to the detainee's
health.
Charles, 925 F.3d at 87 (emphasis in original); cf. Haynes,
2020 WL 4926178, at *14 n.28 (noting that, to establish a
deliberate-indifference claim against nonmedical personnel, a
plaintiff must show that the personnel “intentionally delayed
access to medical care when the inmate was in extreme
pain and ha[d] made his medical problems known to the ...
personnel or that the inmate suffered a complete denial of
medical treatment”). 16 As courts have observed, however,
the post-Darnell inquiry may prove especially challenging at
the motion-to-dismiss stage. See Haynes, 2020 WL 4926178,
at *7; King, 2018 WL 6510809, at *9 (“Distinguishing
between negligent and reckless medical care is a difficult task,
especially at the motion-to-dismiss stage where courts lack
the benefit of expert opinion.” (alteration omitted)). Here,
that is, the Court must determine, “without the benefit of
medical expertise, whether an objectively reasonable person
in [Kitt's] position would have known, or should have known,
that [his] actions or omissions posed an excessive risk of harm
to [Plaintiff].” Davis v. McCready, 283 F. Supp. 3d 108, 120
(S.D.N.Y. 2007).
*14 Although the Amended Complaint is rather sparse in
detail, it still manages to allege that Plaintiff notified Kitt
of a serious medical condition, that Kitt acknowledged the
severity and urgency of the condition and promised to seek
help, and that Kitt failed to seek help as promised. (See
Am. Compl. 2–3.) Case law from and within the Second
Circuit demonstrates that, at this stage of the case, these
allegations plausibly suggest that Kitt either “intentionally [ ]
impose[d] the alleged condition, or recklessly failed to act
with reasonable care to mitigate the risk that the condition
posed to [Plaintiff] even though [Kitt] knew, or should
have known, that the condition posed an excessive risk to
health or safety.” See Darnell, 849 F.3d at 35. In Whitley
v. Bowden, No. 17-CV-3564, 2018 WL 2170313 (S.D.N.Y.
May 10, 2018) (“Bowden”), for example, the plaintiff alleged
that after he swallowed 20 un-prescribed pills in front of
a corrections officer and other prison personnel, the officer
simply “laughed and walked off.” Id. at *1 (alteration and
record citation omitted). Sometime later, the plaintiff told
the officer he felt sick, but the officer told the plaintiff he
“didn't care,” and threatened to move the plaintiff to another
correctional facility. Id. at *2 (record citation omitted). “These
allegations alone,” this Court observed, “may be sufficient
to plausibly state a claim for deliberate indifference, because
[the officer] knew that [the] [p]laintiff had overdosed and
was already experiencing symptoms, but threatened to move
him to another prison rather than provide medical assistance.”
Id. at *10. 17 Moreover, following the officer's threat, the
plaintiff alleged that he proceeded to swallow an additional 30
pills in front of the officer. Id. at *2. But despite the plaintiff's
second apparent suicide attempt, the officer suggested that the
plaintiff had simply swallowed toilet paper, and again walked
away without seeking assistance. Id. The Court found this too
was “sufficient to plausibly allege [the officer's] deliberate
indifference, even assuming [the officer] was not sure what
[the plaintiff] actually swallowed.” Id. at *10 (quotation
marks and record citation omitted). Accordingly, these claims
survived the defendants’ motion to dismiss. See id.
Similarly, in King v. Falco, the plaintiff complained to
a doctor about hearing loss he was experiencing after a
concussion. 2018 WL 6510809, at *2. The doctor, however,
allegedly “provided no treatment, further examination, or
referral for [the] plaintiff's hearing loss.” Id. at *9. Applying
the objective standard applicable for pretrial detainees, the
court concluded that, at the motion-to-dismiss stage, the
plaintiff had adequately alleged that the doctor “knew or
should have known of the risk of excessive harm [the] plaintiff
faced from his ear pain and hearing loss, and ... failed to
act to mitigate the risk.” Id. Likewise, in Whitley v. Ort, No.
17-CV-3652, 2018 WL 4684144 (S.D.N.Y. Sept. 28, 2018)
(“Ort”), the plaintiff notified a nurse that he had been raped
and was in need of medical assistance. Id. at *2. But after
leaving to seek help, the nurse allegedly was “thwarted by
[c]orrections [o]fficers who told her to keep the situation
quiet,” and thus, she failed to secure medical assistance for the
plaintiff. Id. at *9. “Drawing all reasonable inferences in favor
of [the] [p]laintiff,” this Court found “these allegations [ ]
sufficient to plausibly state a claim for deliberate indifference,
because [the nurse] knew that [the] [p]laintiff had been raped,
but failed to provide him medical assistance.” Id. 18
*15 Here, as in Bowden, Plaintiff brought a serious medical
condition to the attention of a corrections officer. But whereas
the defendant in Bowden failed to express alarm, thereby
forcing the Court to infer that he knew or should have known
there was a substantial risk based on the circumstances,
Defendant Kitt apparently did acknowledge the seriousness
of Plaintiff's condition. Indeed, Kitt not only expressed alarm,
(see Am. Compl. 3 (“Wow! You're burning dude[.]”)), but
also promised to seek urgent medical attention, (see id. (“I'm
going to go speak to medical about this and I'll be right
back.”). Here, then, the inference that Kitt knew or should
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have known there was a substantial risk of serious harm
facing Plaintiff is arguably stronger than it was in Bowden.
Cf. Sherman, 2020 WL 4043178, at *10 (observing, for
purposes of a motion to dismiss, that the defendant's alleged
promise “to provide [the plaintiff] with medication,” and
her subsequent failure to do so, “sufficiently established
facts indicating [that the defendant] acted with conscious
disregard to [the plaintiff's] serious medical needs”). And, as
in Bowden—as well as in King and Ort—Defendant evidently
failed to seek medical attention as promised. Although it is
true that Plaintiff has “not alleged that Kitt failed to notify
Medical as he reportedly claimed he would,” (County &
Corr. Defs.’ Mem. 4), at this stage in the proceeding, the
Court finds that such an allegation is implicit in the Amended
Complaint. Indeed, when Plaintiff overheard Kitt laughing
about his condition “several days” after Kitt had vowed to
seek help, Plaintiff still had not received treatment. (See Am.
Compl. 3.) Moreover, the medical team's speedy response
when Plaintiff finally did lodge a grievance suggests that,
had Kitt notified them as promised, some assistance would
have been quickly forthcoming. Finally, the fact that Kitt
was overheard laughing about Plaintiff's condition several
days later suggests that this ordeal had not simply slipped
Kitt's mind. Kitt clearly remembered Plaintiff's condition
and presumably could have checked to see whether he had
received treatment, but there is no indication he did so.
Thus, accepting Plaintiff's allegations as true, the Court finds
that Plaintiff has adequately stated a claim for deliberate
indifference against Defendant Kitt.
5. State Law Claims
To the extent Plaintiff attempts to allege any state law
claims, they must be dismissed for failure to file a notice of
claim. Under New York law, “as a condition precedent to
bringing a claim against a municipality, a plaintiff must file
a notice of claim within 90 days after her claim accrues.”
Russell v. Westchester Cmty. Coll., No. 16-CV-1712, 2017
WL 4326545, at *5 (S.D.N.Y. Sept. 27, 2017) (citing N.Y.
Gen. Mun. Law § 50-e(1)(a)); see also N.Y. Gen. Mun. Law
§ 50-k(6) (“No action ... shall be prosecuted or maintained
against the city ... or an employee unless notice of claim
shall have been made and served upon the city ....”); Olsen v.
County of Nassau, No. 05-CV-3623, 2008 WL 4838705, at
*1 (E.D.N.Y. Nov. 4, 2008) (“As a ‘condition precedent’ to
commencing a tort action against New York municipalities, or
any of their officers, agents, or employees, New York General
Municipal Law § 50-e requires plaintiffs to file a notice of
claim within ninety days after the claim arises.” (citation
omitted)). Moreover, “in a federal court, state notice-of-claim
statutes apply to state-law claims.” Hardy v. N.Y.C. Health
& Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (emphasis
omitted).
“Federal courts do not have jurisdiction to hear complaints
from plaintiffs who have failed to comply with the notice of
claim requirement, or to grant permission to file a late notice.”
Gibson v. Comm'r of Mental Health, No. 04-CV-4350, 2006
WL 1234971, at *5 (S.D.N.Y. May 8, 2006). Further, “the
burden is on [the] [p]laintiff to demonstrate compliance with
the notice of claim requirements.” Peritz v. Nassau Cnty. Bd.
of Coop. Educ. Servs., No. 16-CV-5478, 2019 WL 2410816,
at *4 (E.D.N.Y. June 7, 2019); see also Naples v. Stefanelli,
972 F. Supp. 2d 373, 390 (E.D.N.Y. 2013) (“To survive a
motion to dismiss, a plaintiff must affirmatively plead that a
notice of claim was filed.” (citing, inter alia, N.Y. Gen. Mun.
Law § 50-i(1)(b))). “The notice of claim requirements are
strictly construed, and a plaintiff's ‘failure to comply with the
mandatory New York statutory notice-of-claim requirements
generally results in dismissal of his claims.’ ” Smith v. City
of New York, No. 04-CV-3286, 2010 WL 3397683, at *15
(S.D.N.Y. Aug. 27, 2010) (citation omitted), aff'd sub nom.
Smith v. Tobon, 529 F. App'x 36 (2d Cir. 2013).
Because Plaintiff failed to affirmatively plead that he filed
a notice of claim with respect to any state law claims,
those claims are dismissed. See El v. City of New York,
No. 14-CV-9055, 2015 WL 1873099, at *8 (S.D.N.Y. Apr.
23, 2015) (“Absent a showing of such a notice of claim,
the complaint may be dismissed for failure to state a cause
of action.” (citation omitted)); Naples, 972 F. Supp. 2d at
390 (dismissing state law claims against municipality where
“the [a]mended [c]omplaint is void of any allegation that a
notice of claim was filed prior to the commencement of [the]
action”).
III. Conclusion
*16 For the foregoing reasons, the Court grants in full
the Municipal Defendants and Medical Defendants’ Motion
To Dismiss, and partially grants and partially denies the
County and Correctional Defendants’ Motion To Dismiss. In
light of Plaintiff's pro se status, and because this is the first
adjudication of Plaintiff's claims on the merits, the claims
that are dismissed are dismissed without prejudice. If Plaintiff
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wishes to file a second amended complaint alleging additional
facts and otherwise addressing the deficiencies identified
above, Plaintiff must do so within 30 days of the date of this
Opinion & Order. Failure to properly and timely amend will
likely result in dismissal of the already-dismissed claims with
prejudice. In case of no further amendment, the Action will
proceed on the surviving deliberate-indifference claim with
respect to Defendant Kitt.
The Clerk of Court is respectfully directed to terminate the
pending Motions, (Dkt. Nos. 42, 46), and to mail a copy of
this Opinion & Order to Plaintiff at the address listed on the
docket.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 738365
Footnotes
1 This Opinion refers to the County and Correct Care as “Municipal Defendants”; Ulloa, Gendell, and
Asseauguste as “Medical Defendants”; Spano and Kitt as “Correctional Defendants”; and all Defendants
collectively as “Defendants.”
2 Where appropriate, the Court also considers factual allegations contained in Plaintiff's opposition papers to
the extent those allegations are consistent with the Amended Complaint. See Alsaifullah v. Furco, No. 12-
CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (“[W]here a pro se plaintiff is faced with a
motion to dismiss, a court may consider materials outside the complaint to the extent that they are consistent
with the allegations in the complaint.” (citation, italics, and quotation marks omitted)); Gadson v. Goord, No.
96-CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997) (“[T]he mandate to read the papers of
pro se litigants generously makes it appropriate to consider [a] plaintiff's additional materials, such as his
opposition memorandum.” (italics and citations omitted)).
3 Unless otherwise noted, page references to Plaintiff's submissions refer to the ECF stamp at the top of the
page.
4 For reasons discussed infra n.7, the Court will construe Plaintiff's May 29, 2020 letter as his Opposition to
Defendants’ Motions To Dismiss.
5 A court may take judicial notice of a fact “that is not subject to reasonable dispute because it ... can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned ... at any
stage in the proceeding,” including on a motion to dismiss. Allianz Glob. Investors GmbH v. Bank of Am.
Corp., 457 F. Supp. 3d 401, 410 n.3 (S.D.N.Y. 2020) (alteration in original) (quoting Fed. R. Evid. 201). Courts
have taken judicial notice of facts from reputable medical sources such as the CDC in order to provide basic
background information. See Basank v. Decker, — F. Supp. 3d —, 2020 WL 1953847, at *7 (S.D.N.Y. Apr.
23, 2020) (taking judicial notice of COVID-19 complications based on CDC websites); Lin v. Metro. Life Ins.
Co., No. 07-CV-3218, 2009 WL 806572, at *1–2 & n.2 (S.D.N.Y. Mar. 30, 2009) (taking judicial notice of
background information regarding Hepatitis B based in part on a CDC website), reconsideration denied, 2010
WL 668817 (S.D.N.Y. Feb. 25, 2010), aff'd, 410 F. App'x 413 (2d Cir. 2001).
The Court notes that symptoms of Chlamydia in men include, among others, “[a] burning sensation when
urinating[,] [as well as] [p]ain and swelling in one or both testicles (although this is less common).” Chlamydia
- CDC Fact Sheet 2. “Untreated chlamydia may also increase [an individual's] chances of getting or giving HIV
– the virus that causes AIDS,” and, in rare cases, may “prevent a man from being able to have children.” Id.
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6 Although Plaintiff's letter was not received and docketed until May 29, 2020, it is dated May 14, 2020—
that is, 12 days before Municipal and Medical Defendants filed their Motion To Dismiss, and 19 days before
County and Correctional Defendants filed their Motion To Dismiss, (see Dkt. Nos. 42, 46). Thus, insofar as
Plaintiff's letter “endeavor[s] to address the[ ] allegations forwarded from [Defendants’] counsel,” (Pl.’s Opp'n
1), Plaintiff only could have responded to the summary of arguments outlined in Defendants’ respective pre-
motion letters, (see Letter from Paul A. Sanders, Esq., to Court (Apr. 14, 2020) (Dkt. No. 37); Letter from
Jane Hogan Felix, Esq., to Court (Apr. 15, 2020) (Dkt. No. 39)).
7 Although Plaintiff's May 29, 2020 letter to the Court was written before Plaintiff could have reviewed either
Motion To Dismiss, Municipal and Medical Defendants and County and Correctional Defendants filed their
Reply Memoranda on July 8, 2020 and July 21, 2020, respectively, apparently treating Plaintiff's May 29
letter as his Opposition filing. Because the subsequently-filed Dumel Affidavit simply requested discovery
without responding substantively to either Motion, and because Plaintiff subsequently failed to file a more
traditional Opposition brief when given the opportunity, the Court will also construe Plaintiff's May 29 letter
as his Opposition.
8 Section 1983 claims against Correct Care have previously been evaluated as Monell claims. See Villa v.
Westchester County, No. 19-CV-428, 2020 WL 4505968, at *3–4 (S.D.N.Y. Aug. 5, 2020) (considering and
dismissing a Monell claim against Correct Care); Mercedes v. Westchester County, No. 18-CV-4087, 2019
WL 1429566, at *5 (S.D.N.Y. Mar. 29, 2019) (same); Tutora v. Correct Care Sols., LLC, No. 17-CV-9169,
2019 WL 1383646, at *4 (S.D.N.Y. Mar. 27, 2019) (same).
9 The Westchester County Department of Correction (“WCDOC”) is not a party to this Action. (See Am. Compl.
1.)
10 Plaintiff does not provide any specific examples of other similar lawsuits.
11 The Second Circuit indicated in Darnell that, to prevent confusion, the second prong under the Fourteenth
Amendment analysis should now be referred to as the “mens rea prong,” while the second prong under the
Eighth Amendment analysis might still appropriately be referred to as the “subjective prong.” See Darnell,
849 F.3d at 29 (italics omitted).
12 The Second Circuit has since confirmed that “[a]lthough Darnell did not specifically address medical
treatment, the same principle applies” to such claims. Charles v. Orange County, 925 F.3d 73, 87 (2d Cir.
2019) (citation omitted).
13 Although the deliberate-indifference claims in Bell, Santos, Vining, and Vail were all analyzed under the
subjective prong, because the court concluded in each case that the challenged conduct amounted, at most,
to negligence, the conduct would still be insufficient to state a claim under the post-Darnell, objective mens rea
prong. See, e.g., Charles, 925 F.3d at 87 (observing that, after Darnell, “[a] plaintiff must show something more
than mere negligence to establish deliberate indifference in the Fourteenth Amendment context” (citation and
internal quotation marks omitted)).
14 Hepatitis C is a “chronic viral liver disease that can result in inflamation [sic], scarring, and ultimately cirrhosis
of the liver.” Pabon, 2004 WL 628784, at *1.
“HIV (human immunodeficiency virus) is a virus that attacks the body's immune system” and which, if left
untreated, can lead to AIDS. CDC, About HIV, CDC.gov, https://www.cdc.gov/hiv/basics/whatishiv.html (last
visited Nov. 30, 2020).
Scabies “is an infestation of the skin by the human itch mite,” common symptoms of which include
“intense itching and a pimple-like skin rash.” CDC, Scabies Frequently Asked Questions, CDC.gov, https://
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www.cdc.gov/parasites/scabies/gen_info/faqs.html (last visited Nov. 30, 2020). “Scabies in adults frequently
is sexually acquired.” Id.
15 “In men, untreated chlamydia can cause urethral infection and complications such as swollen and tender
testicles,” and “[p]ersons with a chlamydia infection have an increased chance of getting other [sexually
transmitted] infections such as gonorrhea or HIV.” N.Y. State Dep't of Health, Chlamydia (chlamydia
trachomatis genital infection) 2 (Nov. 2006), https://www.health.ny.gov/diseases/communicable/chlamydia/
docs/fact_sheet.pdf; see also Chlamydia - CDC Fact Sheet 2 (“Untreated chlamydia may also increase [an
individual's] chances of getting or giving HIV – the virus that causes AIDS,” and, in rare cases, “[C]hlamydia
can prevent a man from being able to have children.”). Thus, Plaintiff's untreated Chlamydia clearly posed a
serious long-term risk to his health. Indeed, Plaintiff alleges not only that he experienced extreme pain while
urinating, but also that he exhibited one of the symptoms—swollen and tender testicles, (see Am. Compl. 4)
—associated with untreated Chlamydia.
16 As noted, courts have repeatedly emphasized that deliberate-indifference claims against nonmedical
personnel are to be evaluated under the same standards as deliberate-indifference claims against medical
personnel. See, e.g., Feliciano, 2017 WL 1189747, at *13. But whereas the Second Circuit clarified in Darnell
“that deliberate indifference, in the context of a Fourteenth Amendment due process claim, can be shown by
something akin to recklessness, and does not require proof of a malicious or callous state of mind,” Charles,
925 F.3d at 86 (citing Darnell, 849 F.3d at 33–34), the standard often invoked with respect to nonmedical
personnel appears to require a more culpable mental state, referring only to a defendant's “intentional[ ]
delay[ ] [of] access to medical care,” see, e.g., Roundtree, 2018 WL 1586473, at *6 (emphasis added) (citation
omitted). Although the Court has not identified a case that addresses or resolves this tension, it observes
that the oft-quoted standard for nonmedical personnel comes from Hodge, 1994 WL 519902, at *11, a 1994
Southern District case that long predated the Second Circuit's 2017 decision in Darnell. Thus, in view of clear
authority that deliberate-indifference claims are to be evaluated in the same way regardless of whether the
defendants are medical or nonmedical personnel, the Court will evaluate Plaintiff's claim against Kitt under
the standard articulated in Darnell, which, as noted, “can be shown by something akin to recklessness,”
Charles, 925 F.3d at 86.
17 Because the plaintiff in Bowden was an inmate, as opposed to a pretrial detainee, the Court analyzed his
deliberate-indifference claim under the Eighth Amendment, rather than under the Due Process Clause of
the Fourteenth Amendment. See 2018 WL 2170313, at *6–7. As discussed, this means the second prong of
the plaintiff's claim was defined subjectively, which requires the charged officials to be “subjectively reckless
in their denial of medical care.” Id. at *7 (citation omitted). As courts have observed, this standard is more
demanding than the objective standard used to evaluate the second prong of a pretrial detainee's deliberate-
indifference claim. See Feliciano, 2017 WL 1189747, at *12–13 (observing that whereas the requisite mens
rea under the subjective standard is “akin to subjective recklesness[ ] as the term is used in criminal law,” and
thus “require[s] that the charged official act or fail to act while actually aware of a substantial risk that serious
inmate harm [will] result,” the requisite mens rea under the objective standard “more closely resembles
recklessness as the term is used in the civil context, which does not require the defendant to be subjectively
aware of the harm resulting from his acts or omissions” (quotation marks and citations omitted)); King, 2018
WL 6510809, at *7 n.8 (noting that the objective standard used to evaluate the second prong of a deliberate-
indifference claim under the Fourteenth Amendment is “less stringent” than the subjective standard used to
evaluate this prong under the Eighth Amendment). Thus, although Bowden was an Eighth Amendment case,
a defendant's conduct that satisfies the subjective prong in an Eighth Amendment case will, by definition,
satisfy the less rigorous objective standard in a Fourteenth Amendment case such as this.
18 The plaintiff's deliberate-indifference claim in Ort, as in Bowden, arose under the Eighth Amendment. See
Ort, 2018 WL 4684144, at *7–8; see also supra n.17.
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Engles v. Jones, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 6832085
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Jessie ENGLES, Plaintiff,
v.
Sgt. Jerry JONES, et al., Defendants.
6:13-CV-6461 EAW
|
Signed 12/28/2018
Attorneys and Law Firms
Donald W. O'Brien, Jr., Woods Oviatt Gilman LLP, Rochester,
NY, for Plaintiff.
Bernard F. Sheehan, NYS Attorney General's Office
Department of Law, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
*1 Plaintiff Jessie Engles (“Plaintiff”) commenced the
instant action on August 16, 2013. (Dkt. 1). The operative
pleading is the Second Amended Complaint (Dkt. 60),
which asserts various claims under 42 U.S.C. §§ 1983 and
1985 related to Plaintiff’s incarceration at the Five Points
Correctional Facility (“Five Points”) and his treatment at the
Central New York Psychiatric Center (“CNYPC”).
Discovery in this matter has closed (Dkt. 85), and defendants
Sgt. Jerry Jones (“Sgt. Jones”), C.O. Richard Hardy, C.O.
Jeffrey Cavalussi, C.O. Elmer Parish, Sgt. Eric Morton,
C.O. Travis Hill, C.O. Eric Farly, C.O. P. Harrison (“C.O.
Harrison”), Nurse Audrey C. Sykes (“Nurse Sykes”), and
Assistant Commissioner Mike Rasmus (“A.C. Rasmus”)
(collectively “Defendants”) have filed a motion for partial
summary judgment (Dkt. 88). In particular, Defendants seek
summary judgment as to: (1) Plaintiff’s claims against C.O.
Harrison, Nurse Sykes, and A.C. Rasmus; (2) Plaintiff’s claim
for denial of access to the courts; (3) Plaintiff’s claim for
denial of his right to practice his religion; (4) Plaintiff’s
claim of “threats and intimidation” against Sgt. Jones; and (5)
Plaintiff’s claims for violations of 42 U.S.C. § 1985. (Id.). For
the reasons set forth below, Defendants' motion is denied as
to Plaintiff’s claims against C.O. Harrison and granted in all
other respects.
BACKGROUND
I. Procedural Background
Plaintiff, then proceeding pro se, commenced this action on
August 16, 2013. (Dkt. 1). 1 By leave of court, Plaintiff
filed an Amended Complaint on June 17, 2014. (Dkt. 12).
Defendants moved for dismissal or summary judgment as to
the Amended Complaint (Dkt. 25; Dkt. 33); the Court granted
in part and denied in part Defendants' motions on November
16, 2015, while also granting Plaintiff leave to file a second
amended complaint as to certain claims (Dkt. 46).
Thereafter, on January 11, 2016, the Court appointed counsel
to represent Plaintiff. (Dkt. 57). Through counsel, Plaintiff
filed the Second Amended Complaint on February 25, 2016.
(Dkt. 60). The Second Amended Complaint contains the
following causes of action: (1) excessive use of force and
failure to intervene as to defendants Morton, Hill, Farly,
Hardy, Parish, and Cavalussi; (2) “threats and intimidation”
as to Sgt. Jones; (3) deliberate indifference/failure to provide
proper medical care as to Nurse Sykes; (4) deprivation of
Plaintiff’s First Amendment right to practice his religion as
to Sgt. Jones and various John Doe defendants; (5) denial of
access to the Courts as to various John Doe defendants; and
(6) denial of due process in connection with a disciplinary
hearing as to A.C. Rasmus. (Id. at 10-13).
Discovery in this matter closed on June 1, 2017. (Dkt. 79). On
May 16, 2018, Defendants filed the instant motion for partial
summary judgment. (Dkt. 88). Plaintiff filed a response on
September 4, 2018 (Dkt. 97) and Defendants replied on
October 1, 2018 (Dkt. 99).
II. Factual Background
*2 The following facts are taken from Defendants' Local
Rule 56 Statement of Facts (Dkt. 88-1) and Plaintiff’s
response thereto (Dkt. 97-3), as well as the declarations
and accompanying exhibits submitted by the parties. With
respect to background facts that the parties have not briefed in
connection with the instant motion, the Court has referenced
the Second Amended Complaint.
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In August 2010, Plaintiff was incarcerated at Five Points.
Plaintiff testified at his deposition that he was entitled to
have headphones as a special accommodation, but that no
headphones had been provided to him. (Dkt. 97 at 25-26).
Plaintiff further testified that on August 16, 2010, he informed
C.O. Harrison that he needed his headphones or he was going
to “wind up cutting up.” (Id. at 25). Plaintiff maintains that
CO. Harrison stated he would “look and check into it” and “do
what [he could] do to get [Plaintiff] some” headphones. (Id.).
Plaintiff testified that, thereafter, Sgt. Jones “made rounds”
and Plaintiff told him that he was “losing it” and that if he
did not get his headphones, he was “going to wind up hurting
[himself].” (Id.). Plaintiff also repeated his warnings to non-
defendant Lieutenant Lavack, stating that if he did not receive
the headphones that day, he was “going to wind up cutting
up.” (Id. at 26). Lieutenant Lavack allegedly replied that the
staff would “deal with [Plaintiff] then when [he] cut up,”
which Plaintiff interpreted as Lieutenant Lavack “calling [his]
bluff.” (Id.).
Approximately 15 minutes after Plaintiff spoke with
Lieutenant Lavack, C.O. Harrison came to Plaintiff’s cell with
the “shower cart” and gave Plaintiff a razor and a nail clipper.
(Id. at 27). Plaintiff testified that he immediately clipped the
safety guard off the razor and used it to slit his wrist. (Id.).
Plaintiff stated that he was bleeding for approximately 30
minutes before C.O. Harrison returned to collect the razor,
and that he “let[ ] [the blood] leak out all over the floor” and
“rubb[ed] it on the walls, into the toilet area.” (Id.).
Plaintiff was thereafter transported for treatment for his
wounds. (Dkt. 60 at ¶¶ 30-34). Plaintiff claims that while
he was on a stretcher being transported, he was restrained
by defendants Cavalussi, Hardy, and Farly, and defendants
Parish, Hardy, and Hill assaulted him, which resulted in
defendant Hill breaking Plaintiff’s finger, among other
injuries. (Id. at ¶¶ 34, 36). Plaintiff further alleges that
defendant Morton and Sgt. Jones were present during the
assault and failed to intervene. (Id. at ¶ 38).
Plaintiff was taken to the Cayuga Medical Center (“CMC”)
on August 16, 2010. (Dkt. 97 at 30). Plaintiff was treated
for a laceration to his left wrist and a fracture of his left
third metacarpal bone. (Id.). A splint was placed on Plaintiff’s
left hand. (Id. at 35). Plaintiff was discharged from CMC on
August 17, 2010. (Id.). The discharge instructions related to
his hand fracture state that “[t]he usual treatment is splinting
for four to six weeks” and that he should not remove the splint
until instructed to do so by his doctor. (Id.).
In the Second Amended Complaint, Plaintiff alleges that
upon his return from CMC on August 17, 2010, and until
he was admitted to CNYPC, he was held in the “observation
stripped cell” at Five Points. (Dkt. 60 at ¶ 43). Plaintiff claims
that during this period of time, he was “supposed to receive
his Ramadan meals following his daily fast” but that Sgt.
Jones, who was supervising his suicide watch, ordered that
Plaintiff’s Ramadan meals be withheld. (Id. at ¶ 44). Plaintiff
alleges that pursuant to Sgt. Jones' directions, defendants John
Doe Nos. 6-10 withheld all meals from Plaintiff for a seven-
day period. (Id.).
*3 On August 27, 2010, Plaintiff was admitted to CNYPC.
(Dkt. 88-1 at ¶ 10; Dkt. 97-3 at ¶ 10). Nurse Sykes, a registered
nurse, was assigned to CNYPC at that time. (Dkt. 88-1 at
¶¶ 3-5; Dkt. 97-3 at ¶¶ 3-5). Upon admission, Plaintiff was
examined by non-defendant Dr. Ahmed for psychiatric issues
and by non-defendant Dr. Kaskiw for physical issues. (Dkt.
88-1 at ¶ 14; Dkt. 97-3 at ¶ 14). At the time of admission,
a notation was made incorrectly stating that Plaintiff had a
splint on his left hand for a fracture of the fourth metacarpal
(as opposed to his actual injury, a fracture of his third
metacarpal). (Dkt. 88-1 at ¶ 18; Dkt. 97-3 at ¶ 19). Dr. Kaskiw
examined Plaintiff’s hand when he was admitted and noted
that there was slight swelling and a decreased range of motion
but that Plaintiff was not in any pain. (Dkt. 88-1 at ¶¶ 20-23;
Dkt. 97-3 at ¶¶ 20-23).
Splints are not allowed on the wards at CNYPC because they
contain metal, which presents a safety concern. (Dkt. 88-1
at ¶ 31; Dkt. 97-3 at ¶ 31). In accordance with this policy,
Plaintiff’s splint was removed, and Dr. Kaskiw ordered that
the fourth and fifth fingers on Plaintiff’s left hand be “buddy
taped” together.” (Dkt. 88-1 at ¶¶ 32-33; Dkt. 97-3 at ¶¶
32-33). Non-defendant Nurse Mullaly removed the splint
from Plaintiff’s finger and Nurse Sykes applied the buddy
tape. (Dkt. 88-5 at ¶ 14). Plaintiff’s hand continued to be
monitored and the buddy taping was discontinued by Dr.
Kaskiw on September 14, 2010. (Dkt. 88-1 at ¶¶ 45, 52; Dkt.
97-3 at ¶¶ 45, 52). Plaintiff’s medical records do not show any
lasting issues related to his fractured metacarpal. (Dkt. 88-1
at ¶ 55; Dkt. 97-3 at ¶ 55).
In opposition to Defendants' motion for summary judgment,
Plaintiff has submitted a sworn declaration by Maria Martins,
M.D. (“Dr. Martins”), an emergency medicine physician.
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(Dkt. 97-2). Dr. Martins states that the removal of Plaintiff’s
splint and the buddy taping of his fourth and fifth fingers
“was not consistent with the standard of care” and “did
not result in the appropriate immobilization of [Plaintiff’s]
left hand.” (Id. at ¶ 6). Dr. Martins further indicates that
Dr. Kaskiw and Nurse Sykes “proceeded on the basis of
inaccurate information and, as a result, implemented an
incorrect plan of care.” (Id. at ¶ 7).
Upon returning to Five Points from CNYPC, Plaintiff was
charged with various rules violations related to the events
of August 16, 2010. (Dkt. 88-1 at ¶ 59; Dkt. 97-3 at ¶ 59).
A.C. Rasmus conducted a disciplinary hearing related to the
charges that concluded on January 5, 2011 (the “Disciplinary
Hearing”). (Dkt. 88-1 at ¶ 60; Dkt. 97-3 at ¶ 60). A.C. Rasmus
found Plaintiff guilty of four rules violations and imposed a
punishment of 60-days confinement in the special housing
unit (the “SHU”), two months loss of good-time credits, and
loss of package, commissary, and phone privileges. (Dkt. 88-2
at 24). The SHU sentence was suspended until August 7,
2011, and was ultimately never served by Plaintiff. (Dkt. 88-1
at ¶¶ 62-63; Dkt. 97-3 at ¶¶ 62-63). Moreover, the time for
implementing that sentence has now passed, and so Plaintiff
will never be required to serve it. (Dkt. 88-2 at ¶¶ 17-19).
There is no record that A.C. Rasmus’s determination based
on the Disciplinary Hearing was ever reversed or expunged.
(Dkt. 88-1 at ¶ 68; Dkt. 97-3 at ¶ 68).
Plaintiff alleges that on February 3, 2011, Sgt. Jones verbally
threatened him, telling him that if he filed a lawsuit regarding
the events of August 16, 2010, his “stay [at Five Points] won't
be nice.” (Dkt. 60 at ¶ 41). Plaintiff alleges that Sgt. Jones
told him, in sum and substance, that if he pursued a claim
against Sgt. Jones, Sgt. Jones would harm Plaintiff and cause
him to be housed in the SHU. (Id.). Plaintiff claims that he
filed a grievance regarding Sgt. Jones' verbal threats against
him, but that “[u]pon information and belief, John Does Nos.
1 through 5 either failed or refused to process” his grievance.
(Id. at ¶ 42).
*4 The Department of Corrections and Community
Supervision’s (“DOCCS”) records indicate that Plaintiff filed
and appealed to completion only one grievance during the
time period relevant to this litigation. (Dkt. 88-1 at ¶ 75;
Dkt. 97-3 at ¶ 75). That grievance relates solely to Plaintiff’s
claims of assault and denial of medical treatment related to
the events of August 16, 2010, and makes no mention of any
threats by Sgt. Jones, the denial of Ramadan meals, or failure
to process any other grievances submitted by Plaintiff.
DISCUSSION
I. Standard of Review
Rule 56 of the Federal Rules of Civil Procedure provides that
summary judgment should be granted if the moving party
establishes “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 Court should grant summary
judgment if, after considering the evidence in the light most
favorable to the nonmoving party, the court finds that no
rational jury could find in favor of that party. Scott v. Harris,
550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) ).
“The moving party bears the burden of showing the absence
of a genuine dispute as to any material fact....” Crawford
v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.
2014). “Where the non-moving party will bear the burden
of proof at trial, the party moving for summary judgment
may meet its burden by showing the evidentiary materials
of record, if reduced to admissible evidence, would be
insufficient to carry the non-movant’s burden of proof at
trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986) ). Once the moving party has met its
burden, the opposing party “must do more than simply show
that there is some metaphysical doubt as to the material facts,
and may not rely on conclusory allegations or unsubstantiated
speculation.” Robinson v. Concentra Health Servs., Inc., 781
F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co.,
654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-
moving party “must come forward with specific evidence
demonstrating the existence of a genuine dispute of material
fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
II. Claims Against C.O. Harrison
Defendants seek summary judgment as to Plaintiff’s claims
against C.O. Harrison. In support of this request, Defendants
note that: (1) the sole allegation against C.O. Harrison is that
he gave Plaintiff the razor Plaintiff used to cut himself; (2)
Plaintiff does not allege that C.O. Harrison was present for or
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participated in the assault upon him; and (3) Plaintiff has not
included C.O. Harrison as a defendant in any of the six causes
of action set forth in the Second Amended Complaint. (Dkt.
88-7 at 6-7). Plaintiff argues in opposition that the allegations
in the Second Amended Complaint, which Plaintiff reiterated
at his deposition, establish that CO. Harrison was deliberately
indifferent to a risk of danger to Plaintiff’s safety. (Dkt. 97-4
at 6-7). In reply, Defendants argue that the Second Amended
Complaint does not contain a deliberate indifference claim
with respect to C.O. Harrison. (Dkt. 99-2 at 1-2).
*5 The Court finds, on the record before it, that summary
judgment as to C.O. Harrison is not warranted. The Court
acknowledges that the Second Amended Complaint does not
explicitly state a deliberate indifference claim as to C.O.
Harrison. However, it is well-established that “[t]he function
of the pleadings is to give opposing parties notice of the
facts on which the pleader will rely, and, in the absence
of prejudice to the opposing party, the court may allow the
pleadings to be amended to conform them to the evidence
at any time, even after judgment.” Wierzbic v. Cty. of Erie,
No. 13-CV-978S, 2018 WL 550521, at *11 (W.D.N.Y. Jan.
25, 2018) (quotation omitted). Moreover, “an issue raised for
the first time in a motion for summary judgment may start
the amendment process.” Id. (quotation omitted); see also
Chartier v. Matthews Assocs., No. 93 CIV. 1212 (PKL), 1994
WL 582938, at *2 (S.D.N.Y. Oct. 20, 1994) (“A district court
may, in its sound discretion, ‘construe[ ] [a party’s] summary
judgment motion also as a motion to amend [that party’s
pleading] under Fed. R. Civ. Pro. 15(a).’ ”) (alterations in
original) (quoting Block v. First Blood Associates, 988 F.2d
344, 350 (2d Cir. 1993) ).
Here, the Court finds it appropriate to construe Plaintiff’s
opposition to Defendants' motion for summary judgment
as a request to amend the Second Amended Complaint to
assert a deliberate indifference claim as to C.O. Harrison
and to grant that request. For the reasons set forth below,
the factual allegations set forth in the Second Amended
Complaint (and reiterated by Plaintiff at deposition) are
sufficient to support a deliberate indifference claim as to C.O.
Harrison and the allegations put Defendants on notice as to
the basis for that claim. Accordingly, “there is no basis for
Defendants to claim surprise or prejudice by the ... claim[.]”
Wierzbic, 2018 WL 550521, at *11 (on a motion for summary
judgment, deeming complaint amended to include trespass
claim because although “trespass was not a named cause
of action,” the factual allegations were “sufficient to state a
claim for trespass and put Defendants on notice of a trespass
claim”). Accordingly, the Court will permit Plaintiff to file a
Third Amended Complaint that contains an express claim for
deliberate indifference to serious medical needs against C.O.
Harrison. To be clear, the Third Amended Complaint cannot
contain new factual allegations, but is solely for the purpose
of clarifying the record and setting forth explicitly the legal
theory on which C.O. Harrison was included as a defendant in
this matter. Plaintiff must file the Third Amended Complaint
by no later than January 11, 2019, and Defendants must file
their Answer thereto by no later than January 25, 2019. The
Third Amended Complaint should comport with the instant
Decision and Order in all respects and include only those
claims (and Defendants) as to which the Court has allowed
Plaintiff to proceed.
The Court further finds that there are genuine issues of
material fact regarding Plaintiff’s deliberate indifference
claim against CO. Harrison. “The Eighth Amendment
explicitly prohibits the infliction of cruel and unusual
punishment.... A prisoner advancing an Eighth Amendment
claim for denial of medical care must allege and prove
deliberate indifference to a serious medical need.” Jean v.
Barber, No. 9:09-CV-430 MAD/GHL, 2011 WL 2975218,
at *4 (N.D.N.Y. July 21, 2011) (quotation omitted). “[T]here
are both objective and subjective requirements to succeed on
an Eighth Amendment claim regarding serious mental health
needs. First, the danger posed by the deliberate indifference
must be ‘sufficiently serious’ from an objective perspective;
and second, the defendant must have acted with deliberate
indifference to that need (i.e., subjectively failed to address
the danger).” Young v. Choinski, 15 F. Supp. 3d 194, 199 (D.
Conn. 2014) (emphasis in original).
*6 In the specific context of a suicide risk, “[c]ourts which
have considered the issue have ruled that in the context of
suicide, jailers are not required to safeguard every inmate;”
however, they are required to protect inmates “presenting a
‘strong likelihood of suicide.’ ” Jean, 2011 WL 2975218,
at *4 (quoting Burke v. Warren County Sheriffs Dep't No.
90-CV-597, 1994 WL 6755042, at *6 (N.D.N.Y. Nov. 25,
1994) ); see also Young, 15 F. Supp. 3d at 199 (“propensities
to attempt suicide, harm oneself, and/or exhibit severe
depression or anxiety attacks” are “sufficiently serious” to
support an Eighth Amendment claim). A “previous threat”
is sufficient to establish a strong likelihood of suicide. Jean,
2011 WL 2975218, at *4.
Here, Plaintiff testified at his deposition that he informed
C.O. Harrison that, if he did not receive his requested
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headphones, he was going to “wind up cutting up.” (Dkt.
97 at 25). A reasonable jury could find that this was a
threat of suicide. Plaintiff further testified that despite having
witnessed this explicit threat of self-harm, C.O. Harrison
nonetheless provided Plaintiff with a razor the very same
day. (Id. at 27). Were a jury to credit this testimony, it could
reasonably conclude that C.O. Harrison was deliberately
indifferent to Plaintiff’s serious mental health needs—
namely, his propensity to attempt suicide or otherwise harm
himself. See Young v. Choinski, 15 F. Supp. 3d 172, 185 (D.
Conn. 2014) (denying motion for summary judgment where
the plaintiff inmate informed the defendant corrections officer
that he was “feeling suicidal” and the defendant failed to
take any action to obtain mental health assistance for the
plaintiff); cf. Kelsey v. City of N.Y., 306 F. App'x 700, 703 (2d
Cir. 2009) (noting that “deliberate indifference [is] lacking
where officers take affirmative and reasonable steps to protect
detainees from suicide”). Accordingly, summary judgment as
to Plaintiff’s claim against C.O. Harrison is not warranted.
III. Claims Under 42 U.S.C. § 1985
In the Second Amended Complaint, Plaintiff purports to
assert his excessive use of force and failure to intervene,
“threats and intimidation,” and free exercise of religion claims
pursuant to 42 U.S.C. § 1985, as well as 42 U.S.C. § 1983.
(Dkt. 60 at ¶¶ 53, 56, 62). Defendants argue that, to the extent
these claims are premised on 42 U.S.C. § 1985, no reasonable
jury could find in Plaintiff’s favor. The Court agrees.
Section 1985 prohibits conspiracies to violate an individual’s
civil rights. To prevail on a § 1985 conspiracy claim, a
plaintiff must show: “1) a conspiracy; 2) for the purpose of
depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and 3) an act in
furtherance of the conspiracy; 4) whereby a person is either
injured in his person or property or deprived of any right or
privilege of a citizen of the United States.” Dolan v. Connolly,
794 F.3d 290, 296 (2d Cir. 2015) (quoting Britt v. Garcia, 457
F.3d 264, 269 n.4 (2d Cir. 2006) ). “The conspiracy must also
be motivated by some racial or perhaps otherwise class-based,
invidious discriminatory animus.” Id. (quotation omitted).
Here, Defendants argue that there is no evidence tending
to show a conspiracy, nor any evidence of discriminatory
animus. (Dkt. 88-7 at 7-8). Defendants further argue that,
in any event, the intracorporate conspiracy doctrine bars a
§ 1985 claim against DOCCS employees acting within the
scope of their employment. (Id. at 8). Plaintiff’s opposition
papers fail to respond to these arguments.
*7 “In moving for summary judgment against a party who
will bear the ultimate burden of proof at trial, the movant’s
burden will be satisfied if he can point to an absence of
evidence to support an essential element of the nonmoving
party’s claim.” Goenaga v. Mar. of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995). Here, Defendants have
pointed to an absence of any evidence to support a finding
of conspiracy or a finding of discriminatory animus, both
of which are essential elements of a § 1985 claim. Plaintiff
has failed, in opposition, to produce or identify any such
evidence. See Hall v. Bevier, No. 06-CV-00505F, 2009 WL
3165604, at *4 (W.D.N.Y. Sept. 28, 2009) (granting summary
judgment as to § 1985 claim where the plaintiff failed to
submit any evidence supporting a claim of discriminatory
animus or establishing the existence of a conspiracy).
Moreover, Defendants are correct that Plaintiff’s § 1985
claims are barred by the intracorporate conspiracy doctrine.
See Richard v. Leclaire, No. 915CV00006BKSTWD, 2017
WL 4349381, at *5 (N.D.N.Y. Sept. 29, 2017) (noting the
“appropriateness of applying the [intracorporate conspiracy]
doctrine in a prison setting” and dismissing claims against
DOCCS employees). Accordingly, Defendants have satisfied
their burden of establishing their entitlement to summary
judgment as to Plaintiff’s § 1985 claims.
IV. Deliberate Indifference Claim as to Nurse Sykes
Defendants request summary judgment as to Plaintiff’s
Eighth Amendment deliberate indifference claim as to Nurse
Sykes. Defendants argue that no reasonable jury could
conclude that Nurse Sykes had the required state of mind to
support a deliberate indifference claim. For the reasons that
follow, the Court agrees.
As noted above, the Eighth Amendment prohibits cruel
and unusual punishment, which encompasses deliberate
indifference to an inmate’s serious medical needs. See Estelle
v. Gamble, 429 U.S. 97, 104-05 (1976). “The deliberate
indifference standard requires the plaintiff to prove that the
prison official knew of and disregarded the plaintiff’s serious
medical needs.” Chance v. Armstrong, 143 F.3d 698, 703
(2d Cir. 1998). “ ‘Deliberate indifference’ describes a mental
state more blameworthy than negligence; but a plaintiff is not
required to show that the defendant acted for the very purpose
of causing harm or with knowledge that harm will result.
Deliberate indifference is a state of mind that is the equivalent
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of criminal recklessness.” Hernandez v. Keane, 341 F.3d 137,
144 (2d Cir. 2003) (internal quotations and citations).
Here, Defendants argue that regardless of whether Plaintiff
has established that he had a serious medical need, there
is no evidence that Nurse Sykes acted with deliberate
indifference. (Dkt. 88-7 at 10-14). Instead, Defendants argue
the evidence of record demonstrates that Nurse Sykes (and
the other medical staff at CNYPC) “did their best to address
[Plaintiff’s] concerns.” (Id. at 11). The Court agrees with
Defendants that, on the record before it, no reasonable
jury could find that Nurse Sykes knew of and disregarded
Plaintiff’s medical needs.
Plaintiff’s claims against Nurse Sykes are based on his
contention that she and Dr. Kaskiw “disregard[ed] the
discharge instructions” from CMC and did not “bother[ ] to
review the [CMC] records” before deciding that buddy taping
Plaintiff’s fingers was medically appropriate. (Dkt. 97-4 at
8-9). Plaintiff argues that, because of this purported failure
to review the CMC records, Nurse Sykes had a “mistaken
understanding of the nature of Plaintiff’s injuries”—namely,
she was unaware that he sustained a fracture to his third
metacarpal, “which is not a finger but a bone of the
hand”—based on which she incorrectly thought that buddy
taping Plaintiff’s fingers “would provide the necessary
immobilization to allow the fracture of Plaintiff’s hand to heal
properly.” (Id.).
Plaintiff’s deliberate indifference claim against Nurse Sykes
is defective in several ways, most significantly because it
is inconsistent with the uncontroverted evidence of record.
In direct contradiction to Plaintiff’s claim that Nurse Sykes
and Dr. Kaskiw simply disregarded the discharge instructions
from CMC, Nurse Sykes has submitted a sworn declaration
indicating that she did not have access to Plaintiff’s medical
records from CMC when she treated him in August 2010.
(Dkt. 99 at ¶¶ 8-12). Nurse Sykes further explained that it
was not unusual, when a patient is admitted to CNYPC from
DOCCS, for “paperwork from an outside hospital” not to
accompany that patient. (Id. at ¶¶ 13-16). As such, the only
information Nurse Sykes had at the time she was treating
Plaintiff was a statement from DOCCS that he had fractured
his fourth metacarpal. (Id. at ¶ 19). Nurse Sykes cannot be
held liable for information that was unavailable to her, nor
could any reasonable jury find, on the record before the Court,
that she deliberately ignored the discharge instructions from
CMC, as Plaintiff argues.
*8 Plaintiff’s reliance on Dr. Martins' declaration to
establish deliberate indifference is also unavailing, for
multiple reasons. 2 First, Dr. Martins has offered her expert
opinion that Nurse Sykes' actions did not comport with
the appropriate medical “standard of care.” (Dkt. 97-2 at
¶ 6). However, it is well-established that expert testimony
that a defendant “deviated significantly from the appropriate
standard of care ... constitutes, at most, a medical malpractice
claim which may be cognizable in a state court but not
in a federal § 1983 action.” Bowman v. Campbell, 850
F. Supp. 144, 147 (N.D.N.Y. 1994); see also Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[N]egligence,
even if it constitutes medical malpractice, does not, without
more, engender a constitutional claim.”). Second, Dr. Martins'
opinion is based on her knowledge that Plaintiff had suffered
a fracture in the third metacarpal, but that information was not
available to Nurse Sykes at the time she treated Plaintiff. In
other words, nothing in Dr. Martins' declaration suggests that
Nurse Sykes' actions in buddy taping Plaintiff’s fingers were
taken recklessly or in bad faith, as opposed to being a sincere
(if ultimately ineffectual) attempt to immobilize the fracture
in Plaintiff’s hand. To the contrary, Dr. Martins acknowledges
that the buddy taping was based on a “misunderstanding
of the true nature of [Plaintiff’s] fracture.” (Dkt. 97-2
at ¶ 13). Mistakes and misunderstandings in providing
medical treatment do not constitute deliberate indifference.
See Estelle, 429 U.S. at 105-06 (“an inadvertent failure to
provide adequate medical care” does not violate the Eighth
Amendment).
The Court rejects Plaintiff’s argument that it was
inappropriate for Dr. Kaskiw and Nurse Sykes to take into
account the potential danger of allowing Plaintiff to possess a
metal splint in determining the appropriate medical course of
action. Plaintiff presented a known suicide risk. As the Court
discussed in the context of Plaintiff’s claims against C.O.
Harrison, Nurse Sykes and the other personnel at CNYPC
were therefore under an obligation to take reasonable steps
to prevent Plaintiff from harming himself. As such, it was
wholly appropriate for CNYPC staff to take into account
the potential of a metal splint to be sharpened and used
for inflicting harm in determining whether buddy taping
was a preferable alternative. The same is true for the other
alternative treatments suggested by Dr. Martins. In particular,
Nurse Sykes explained that it would be inappropriate for
a suicidal patient to be given an ACE bandage or lengths
of gauze because they could be used in an attempt to hang
oneself, and that an Orthoglass cast could be removed and
used as a weapon. (Dkt. 99 at ¶¶ 38-43). These are not merely
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arbitrary rules, as Plaintiff seems to suggest, but necessary
considerations when dealing with patients with a propensity
for self-harm.
In sum, the record before the Court establishes, at most,
that Nurse Sykes was mistaken in her opinion that buddy
taping Plaintiff’s fingers was a medically appropriate course
of treatment, because she lacked all the pertinent information.
This is insufficient to demonstrate deliberate indifference to
Plaintiff’s medical needs. Accordingly, Defendants' motion
for summary judgment is granted as to Plaintiff’s claim
against Nurse Sykes. 3
V. Failure to Exhaust Administrative Remedies
In his Second Amended Complaint Plaintiff asserts a claim
for “threats and intimidation” against Sgt. Jones and a claim
for deprivation of Plaintiff’s First Amendment right to the
free exercise of his religion (based on the alleged denial
of Ramadan meals) as to Sgt. Jones and several John Doe
defendants. (Dkt. 60 at ¶¶ 54-56, 60-62). Defendants seek
summary judgment as to these two claims, contending that
Plaintiff failed to exhaust his administrative remedies with
respect to them.
*9 The Prison Litigation Reform Act (“PLRA”) provides
that “[n]o action shall be brought with respect to prison
conditions under section 1983 ..., or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.” 42 U.S.C.A. § 1997e. “[T]he PLRA’s exhaustion
requirement applies to ‘all inmate suits about prison life,
whether they involve general circumstances or particular
episodes.’ ” Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir.
2002) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002) ).
To satisfy the PLRA’s exhaustion requirement, “prisoners
in New York must ordinarily follow a three-step [DOCCS]
grievance process. The first step in that process is the
filing of a grievance with the Inmate Grievance Resolution
Committee. Next, the inmate may appeal an adverse decision
to the prison superintendent. Finally, the inmate may appeal
the superintendent’s decision to the Central Office Review
Committee (‘CORC’). In general, it is only upon completion
of all three levels of review that a prisoner may seek relief in
federal court under § 1983.” Crenshaw v. Syed, 686 F. Supp.
2d 234, 236 (W.D.N.Y. 2010) (internal citation omitted).
“[T]he PLRA does not require the exhaustion of all
administrative remedies, but only those that are ‘available’
to the inmate. To be “available” under the PLRA, a remedy
must afford ‘the possibility of some relief for the action
complained of.’ ” Hubbs v. Suffolk Cty. Sheriff’s Dep't, 788
F.3d 54, 59 (2d Cir. 2015) (quoting Abney v. McGinnis, 380
F.3d 663, 667 (2d Cir. 2004) ). The Supreme Court has
recognized three circumstances in which an administrative
remedy is “unavailable”: (1) “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”; (2) when the
“administrative scheme” is “so opaque that it becomes,
practically speaking, incapable of use”; and (3) “when prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation,
or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60
(2016). “Whether an administrative remedy was available to
a prisoner in a particular prison or prison system is ultimately
a question of law, even when it contains factual elements.” Id.
With respect to the burden of proof, “failure to exhaust is an
affirmative defense” which “must be pleaded and proved by
a defendant.” Lopez v. Cipolini, 136 F. Supp. 3d 570, 580
(S.D.N.Y. 2015) (citations and quotations omitted). However,
once a defendant demonstrates that the plaintiff has not
exhausted his administrative remedies, “the burden of proof
shifts to the plaintiff to show that his case falls under at
least one of the exceptions” to the exhaustion requirement.
Perry v. Rupert, No. 9:10-CV-1033 LEK/TWD, 2013 WL
6816795, at *4 (N.D.N.Y. Dec. 20, 2013); see also Hubbs
v. Suffolk Cty. Sheriffs Dep't, 788 F.3d 54, 59 (2d Cir. 2015)
(once defendants meet their initial burden of showing failure
to exhaust, the burden shifts to the plaintiff to “demonstrate
that other factors ... rendered a nominally available procedure
unavailable as a matter of fact”).
In this case, Defendants have met their initial burden of
demonstrating that Plaintiff failed to exhaust his threats and
intimidation claim and his free exercise claim. DOCCS'
records regarding Plaintiff show that he “filed and appealed
to completion only one grievance at Five Points Correctional
Facility around the time of the alleged attack in August
2010.” (Dkt. 88-1 at ¶ 75). This grievance, a copy of which
has been submitted to the Court, relates solely to Plaintiff’s
claims of assault and denial of medical care and contains no
mention of threats and intimidation by Sgt. Jones or denial of
Ramadan meals. (Dkt. 88-3 at 30).
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*10 Plaintiff maintains that, notwithstanding the lack of
any record, he did file a grievance regarding Sgt. Jones'
actions, which was improperly processed. (Dkt. 97-4 at
12-14). Plaintiff states that he cannot provide proof of such
filing because “all of his legal paperwork was lost at Wende
Correctional Facility.” (Id.). In the alternative, Plaintiff argues
that the “extreme emotional turmoil” he was experiencing
excuses his failure to file grievances. (Id. at 14).
On the record before the Court, there are no genuine
issues of material fact regarding Plaintiff’s failure to exhaust
his administrative remedies. Defendants have demonstrated
through admissible evidence that there is no record of Plaintiff
having grieved his threats and intimidation claim or his free
exercise claim. Plaintiff’s unsupported assertion that he filed
a grievance but that it was somehow lost or destroyed is
insufficient to establish a genuine issue of material fact. See
Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555 (W.D.N.Y.
2018) (“[C]ourts have consistently held ... that an inmate’s
general claim that his grievance was lost or destroyed does not
excuse the exhaustion requirement.” (quotation omitted) );
Mims v. Yehl, No. 13-CV-6405-FPG, 2014 WL 4715883, at *4
(W.D.N.Y. Sept. 22, 2014) (inmate’s “unsupported statement”
that he has submitted a grievance is “insufficient at the
summary judgment stage”); Veloz v. N.Y., 339 F. Supp. 2d 505,
516 (S.D.N.Y. 2004) (“[An] inmate’s unsupported claims that
his grievances were lost at the Grievance Committee Office
or destroyed by officers ... fails to excuse [the] inmate from
fully grieving remedies[.]” (citation omitted) ).
Plaintiff’s argument that he was experiencing emotional
turmoil that prevented him from filing grievances is similarly
unavailing. Plaintiff rests his argument on the “special
circumstances” exception to the exhaustion requirement
previously recognized by the Second Circuit. (See Dkt.
97-4 at 14 (citing Hemphill v. N.Y., 380 F. 3d 680, 686
(2d Cir. 2004) ). However, the Supreme Court in Ross
expressly rejected the application of any such exception,
holding that “the PLRA’s text suggests no limits on an
inmate’s obligation to exhaust—irrespective of any ‘special
circumstances.’ ” 136 S. Ct. at 1856; see also Scott, 298 F.
Supp. 3 at 551 (noting that “the third prong of Hemphill,
relating to ‘special circumstances,’ was abrogated by the
Supreme Court’s decision in Ross”). “This Court is not aware
of any cases post-Ross ... to have found ... that a prisoner’s
failure to exhaust was excused because that prisoner’s mental
health condition rendered unavailable otherwise-available
administrative remedies.” Galberth v. Washington, No. 14
CIV. 691 (KPF), 2017 WL 3278921, at *10 (S.D.N.Y. July 31,
2017), aff'd, 743 F. App'x 479 (2d Cir. 2018). To the contrary,
as noted by the Galberth court, “[w]here courts have been
presented with inward-looking justifications for a failure to
exhaust, which are based in a prisoner’s subjective sense of
what was available, such justifications have been rejected.”
Id. (collecting cases).
In any event, even assuming that Plaintiff’s emotional
turmoil could excuse his failure to exhaust in theory,
there is no evidence that Plaintiff was actually rendered
incapable of using the grievance process. To the contrary,
Plaintiff’s emotional state did not prevent him from filing and
appealing to completion a grievance related to the alleged
assault and denial of medical care. See Bennett v. James,
737 F. Supp. 2d 219, 227 (S.D.N.Y. 2010), aff'd, 441 F.
App'x 816 (2d Cir. 2011) (inmate’s claim that his physical
and emotional condition prevented him from exhausting
his administrative remedies was inconsistent with having
filed two federal lawsuits during the relevant time period).
Under these circumstances, Defendants have borne their
burden of demonstrating that Plaintiff failed to exhaust his
administrative remedies, and Plaintiff has not shown that any
exceptions to the exhaustion requirement apply. As such,
Defendants are entitled to summary judgment as to Plaintiff’s
claim for threats and intimidation by Sgt. Jones and Plaintiff’s
claim for denial of his right to the free exercise of his religion.
VI. Denial of Access to Courts Claim
*11 In the Second Amended Complaint, Plaintiff asserts
a denial of access to the courts claim as to five John
Doe defendants, based on the alleged failure to properly
process his grievance. (Dkt. 60 at ¶¶ 63-68). These John
Doe defendants have never been identified. Defendants seek
summary judgment on this claim based on the failure to
identify the John Doe defendants and further argue that, in any
event, there is no constitutional right to a grievance process.
(Dkt. 88-7 at 20-21). Plaintiff has not responded to these
arguments.
Defendants are entitled to summary judgment on Plaintiff’s
claim for denial of access to the courts. Discovery in this
matter has closed and there is no indication in the record
before the Court that the identity of the John Doe defendants
has been ascertained. Dismissal of claims against John Doe
defendants is appropriate where a plaintiff “has had ample
time and opportunity to discover the identity of the John Doe
Defendants and serve them,” but has failed to do so. Jones
v. Rock, No. 9:12-CV-0447 NAM/TWD, 2015 WL 791547,
at *21 (N.D.N.Y. Feb. 24, 2015); see also Coward v. Town
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& Vill. of Harrison, 665 F. Supp. 2d 281, 299 (S.D.N.Y.
2009) (“The John Doe Defendants are entitled to summary
judgment on the grounds ... that Plaintiff had ample time to
identify them but has failed to do so or to demonstrate why
he has been unable to do so in the five years since he initiated
this lawsuit.”). As such, the Court finds that Defendants are
entitled to summary judgment as to Plaintiff’s denial of access
to the courts claim because that claim is asserted solely against
John Doe defendants who have never been identified.
VII. Due Process Claim Against A.C. Rasmus
In the Second Amended Complaint, Plaintiff alleges that A.C.
Rasmus' conduct of the Disciplinary Hearing violated his
right to due process. (Dkt. 60 at ¶¶ 69-72). Defendants seek
summary judgment as to this claim, arguing that Plaintiff
cannot show the deprivation of a protected liberty interest,
because (1) the 60-day SHU sentence was suspended and
never served and (2) the loss of good-time credits cannot
be challenged in a § 1983 proceeding. (Dkt. 88-7 at 21-25).
Plaintiff has not responded to this aspect of Defendants'
motion.
To maintain a claim for violation of the right to either
procedural or substantive due process, Plaintiff must
demonstrate the deprivation of a protected liberty interest.
Baez v. Pinker, 673 F. App'x 50, 52 (2d Cir. 2016); see also
Israel v. Bradt, 228 F. Supp. 3d 237, 239 (W.D.N.Y. 2017).
“However, lawfully incarcerated persons retain only a narrow
range of protected liberty interests.” Klos v. Haskell, 48
F.3d 81, 86 (2d Cir. 1995) (quotation omitted). “To establish
a constitutionally protected liberty interest triggering due
process concerns, plaintiff must show that he was subjected
to an atypical and significant hardship ... in relation to the
ordinary incidents of prison life.” Israel, 228 F. Supp. 3d at
239. If a prisoner-plaintiff “cannot establish that he had a
protected liberty interest in being free from the punishment
that was imposed upon him as a result of [a] hearing, he has no
due process claim under the Fourteenth Amendment.” Scott
v. Albury, 156 F.3d 283, 286 (2d Cir. 1998).
Defendants are correct that the suspended 60-day SHU
sentence does not constitute a protected liberty interest. See
Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992)
(where the plaintiff did not serve the sentence imposed at
a disciplinary hearing, he “suffered no interference with a
liberty interest and has no valid claim for relief”); Crenshaw
v. Korbar, No. 09-CV-6167L, 2013 WL 1681833, at *3
(W.D.N.Y. Apr. 17, 2013) (“To make out a valid Fourteenth
Amendment claim for a denial of due process, plaintiff must
show that defendants deprived him of a protected liberty
interest. Plaintiff can make no such showing, for the simple
reason that he never served any time on the charges [at
issue].”).
*12 Defendants are also correct that Plaintiff cannot
maintain a § 1983 claim based on the loss of good-time
credits. The loss of good-time credits “impacts the overall
length of confinement” and “[w]hen a litigant makes a
constitutional challenge to a determination that affects the
overall length of his imprisonment, the ‘sole federal remedy
is a writ of habeas corpus.’ ” King v. Wenderlich, No. 14-
CV-6491-FPG, 2018 WL 3756751, at *5 n.1 (W.D.N.Y. Aug.
8, 2018) (quoting Preiser v. Rodriguez, 411 U.S. 475, 500
(1973) ). Moreover, pursuant to Heck v. Humphrey, 512
U.S. 477 (1994), a plaintiff seeking money damages “for
allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid ... must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas
corpus.” Id. at 486-487. “In a subsequent case, Edwards v.
Balisok, 520 U.S. 641 (1997), the Court made clear that
Heck’s favorable termination rule applies to challenges made
under § 1983 to procedures used in disciplinary proceedings
that deprived a prisoner of good-time credits.” Peralta v.
Vasquez, 467 F.3d 98, 103 (2d Cir. 2006). Here, there
is no indication (and Plaintiff does not argue) that A.C.
Rasmus' determination at the Disciplinary Hearing has ever
been reversed, expunged, or otherwise called into question.
Accordingly, Plaintiff cannot challenge the loss of his good-
time credits in this § 1983 action.
The other penalties imposed by A.C. Rasmus (loss of
package, commissary, and phone privileges) (see Dkt. 88-2 at
24) do not rise to the level of deprivation of a protected liberty
interest. See, e.g., Johnson v. Enu, No. 08-CV-158 (FHS/
DNH), 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011)
(suspension of recreation, commissary, and phone privileges
does not implicate a protected liberty interest); Smart v.
Goord, 441 F. Supp. 2d 631, 640 (S.D.N.Y. 2006) (“the loss
of phone, package, and commissary privileges does not give
rise to a protected liberty interest”). Accordingly, the Court
agrees with Defendants that Plaintiff cannot establish that
he was deprived of a protected liberty interest and therefore
cannot maintain a claim for deprivation of due process. The
Court accordingly grants Defendants' motion for summary
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judgement as to Plaintiff’s due process claim against A.C.
Rasmus.
CONCLUSION
For the foregoing reasons, Defendants' motion for partial
summary judgment (Dkt. 88) is denied as to Plaintiff’s claim
against C.O. Harrison and granted in all other respects.
Plaintiff’s opposition to Defendants' motion (Dkt. 97) is
deemed a request to amend the Second Amended Complaint
to assert a deliberate indifference claim as to C.O. Harrison
and is granted. Plaintiff is directed to file a Third Amended
Complaint in conformity with the instant Decision and Order
by no later than January 11, 2019. Defendants shall file
an Answer to the Third Amended Complaint by not later
than January 25, 2019. The Clerk of Court is directed to
terminate Nurse Audrey C. Sykes, Assistant Commissioner
Mike Rasmus, and John Does Nos. 1 through 10 as defendants
in this matter.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 6832085
Footnotes
1 Plaintiff initially commenced this action in the United States District Court for the Northern District of New
York; the matter was transferred to this Court pursuant to 28 U.S.C. § 1406(a) on August 29, 2013. (Dkt. 6).
2 Defendants argue that Dr. Martins' declaration should be disregarded because Plaintiff did not identify her as
an expert witness or provide an expert report. (Dkt. 99-2 at 3-4). Because the Court concludes that Dr. Martins'
declaration is insufficient to establish deliberate indifference by Nurse Sykes, it does not reach this argument.
3 Defendants argue in the alternative that Nurse Sykes is entitled to qualified immunity. (Dkt. 88-7 at 14-16).
Because the Court finds that Plaintiff has failed to adduce evidence sufficient to maintain a claim against
Nurse Sykes, it need not and does not consider this alternative argument.
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Este-Green v. Astrue, Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 2473509
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Donna ESTE–GREEN, Plaintiff,
v.
Michael J. ASTRUE, Comm'r
of Social Security, Defendant.
No. 5:09–CV–0722 (GTS/GHL).
|
Aug. 7, 2009.
West KeySummary
1 Social Security Exhaustion of other
remedies
Representative for a social security payee
failed to exhaust her administrative remedies
before filing her claim since there was no
final decision after a hearing. The Social
Security Administration (SSA) garnished the
representative's wages after attempting to work
out a repayment plan since the representative
was overpaid on behalf of the payee. The
representative contacted the SSA to complain
about the garnishment and shortly thereafter, the
representative filed the action with the Small
Claims Court, without having a hearing or final
order from the Commissioner of Social Security.
Social Security Act, § 205(g), 42 U.S.C.A. §
405(g).
29 Cases that cite this headnote
Attorneys and Law Firms
Donna Este–Green, Hempstead, NY, pro se.
Hon. Andrew T. Baxter, United States Attorney for the
Northern District of New York, William H. Pease, Esq.,
Assistant U.S. Attorney, of Counsel, Syracuse, NY.
DECISION and ORDER
Hon. GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se action filed
by Donna Este–Green (“Plaintiff”) to recover funds allegedly
owed to her by the Social Security Administration, is a motion
by Michael J. Astrue, Commissioner of Social Security
(“Defendant”) to dismiss the action pursuant to Fed.R.Civ.P.
12(b)(1) for lack of subject matter jurisdiction due to
Plaintiff's failure to exhaust her administrative remedies
before filing suit. (Dkt. No. 3.) Plaintiff has not opposed the
motion. For the reasons set forth below, Defendant's motion
is granted, and Plaintiff's Complaint is dismissed.
I. BACKGROUND
A. Procedural History
On or around May 27, 2009, Plaintiff brought this
action in Small Claims Court, City of Ithaca, County
of Tompkins (“Small Claims Court”), naming the Social
Security Administration (“SSA”) as Defendant. (Dkt. No. 1,
Part 3.) Liberally construed, Plaintiff's Complaint alleges that
the SSA wrongfully garnished her wages in the amount of
five hundred seventy-one dollars ($571.00). (Id.) On June 24,
2009, the United States Attorney's Office for the Northern
District of New York removed this case from the Small
Claims Court, pursuant to the exclusive original jurisdiction
of the District Court under 42 U.S.C. §§ 405(g)-(h) and
1383(c)(3), “because Plaintiff's claim appeared to relate to the
payment of Social Security benefits to her as representative
payee for the account of Albertina King.” (Dkt. No. 3.)
B. Relevant Facts
In 1999, Plaintiff had been acting as representative payee
for Albertina King, who had been receiving Social Security
benefits under Title II of the Act. (Dkt. No. 3.) In October
1999, the SSA issued an overpayment to Plaintiff on Albertina
King's account. (Id.) In March 2001, the SSA and Plaintiff
arranged a repayment plan pursuant to which Plaintiff agreed
to repay the amount due the SSA in fifty-dollar installments
beginning on April 15, 2001. (Id.) In October 2007, the
SSA sent a letter to Plaintiff, in which the SSA stated the
following: (1) Plaintiff had been overpaid as representative
payee; (2) Plaintiff had the right to question the decision
about her overpayment and to ask that the SSA not recover
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the overpayment; (3) the SSA's past attempts to recover this
overpayment had not been successful; (4) there are actions
that the SSA can take to recover the money, including wage
garnishment; (5) Plaintiff could prevent the wage garnishment
by taking certain steps within sixty days of the letter, including
repaying the debt, agreeing to a definite repayment plan and
repaying the debt according to that plan, asking the SSA to
review the finding that she owed the amount stated and that
the SSA had the right to collect it, asking the SSA to waive
collection of the overpayment, or asking the SSA to review
its plan to collect up to fifteen percent of her disposable pay.
(Id.) In addition, the letter informed Plaintiff of how she could
repay the SSA. (Id.)
*2 Plaintiff returned this letter to the SSA, stating that the
overpayment was not her fault. (Id.) Plaintiff indicated that
she could not afford the amount owed, and that the money
that she received was used for the payee's burial. (Id.) In
March, 2008, Plaintiff spoke with a supervisor of the SSA
by telephone and negotiated a repayment plan agreement for
installments of twenty dollars ($20). (Id.) On April 29, 2008,
the SSA sent Plaintiff a billing statement indicating her debt of
five hundred seventy-one dollars ($571), and that a minimum
payment of twenty dollars ($20) must reach the SSA by May
15, 2008. (Id.) On May 6, 2008, documentation issued in
connection with the administrative garnishment of Plaintiff's
wages was returned to the SSA from Plaintiff's employer,
stating that Plaintiff was no longer employed there. (Id.)
On April 17, 2009, the SSA issued an order to Plaintiff's
employer to garnish her wages. (Id.) Plaintiff's employer
completed this order and returned it to the SSA. (Id.) On May
21, 2009, Plaintiff contacted the SSA to complain about the
garnishment. (Id.) Shortly thereafter, Plaintiff filed this action
with the Small Claims Court, and the Complaint was mailed
to the SSA on May 27, 2009.
II. APPLICABLE LEGAL STANDARDS
A. Standard Governing Motions to Dismiss for Lack
of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)
(citing Fed.R.Civ.P. 12[b][1] ). With regard to a challenge
to a determination by the Social Security Administration,
“[a]ny individual may seek judicial review under 42 U.S.C.
§ 405(g) ‘after any final decision of the Commissioner of
Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy.” Diagnostic
Cardioline Monitoring of New York, Inc. v. Leavitt, 171 F.
App'x. 374, 375 (2d Cir. March 17, 2006) (citing 42 U.S.C.
§ 405[g] ). “This final-decision-after-a-hearing requirement
is critical to the federal court's grant of subject matter
jurisdiction over these claims.” Leavitt, 171 F. App'x. at 375
(citing Weinberger v. Salfi, 422 U.S. 749, 763–64 [1975] ).
“In the absence of a final decision after a hearing, the federal
court lacks subject matter jurisdiction to entertain the claim,
and it must be dismissed.” Id. (citation omitted).
B. Standard Governing Unopposed Motions
“Where a properly filed motion is unopposed and the Court
determines that the moving party has met its burden to
demonstrate entitlement to the relief requested therein, the
non-moving party's failure to file or serve any papers as
required by this Rule shall be deemed as consent to the
granting or denial of the motion, as the case may be, unless
good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3). Defendant's
motion to dismiss was properly filed, and Plaintiff has failed
to oppose them. Therefore, the Court must determine whether
Defendant has met her burden to “demonstrate entitlement to
the relief requested” under Local Rule 7.1(b)(3). 1 An inquiry
into whether a movant has met its “burden to demonstrate
entitlement” to dismissal under Local Rule 7.1(b)(3) is a
more limited endeavor than a review of a contested motion.
Specifically, under such an analysis, the movant's burden
has appropriately been characterized as “modest.” 2 This is
because, as a practical matter, the burden requires only that the
movant present an argument that is “facially meritorious.” 3
III. ANALYSIS
*3 After carefully considering the file in this action,
including Defendant's motion to dismiss and Plaintiff's
Complaint, the Court finds that Defendant has met
his lightened burden on his unopposed motion: he has
demonstrated entitlement to the relief requested by presenting
an argument that is facially meritorious. Even if the Court
were to subject Defendant's motion to the more rigorous
scrutiny appropriate for contested motions, the Court would
find that Defendant has met his burden: Plaintiff failed to
exhaust her administrative remedies prior to commencing
this action. 4 As a result, the Court lacks subject matter
jurisdiction over Plaintiff's claims, and her Complaint is
dismissed.
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ACCORDINGLY, it is
ORDERED that Plaintiff's Complaint is DISMISSED. The
clerk is directed to enter judgment and close the case.
All Citations
Not Reported in F.Supp.2d, 2009 WL 2473509
Footnotes
1 See also Fed.R.Civ.P. 7(b)(1) (requiring motions to, inter alia, “state with particularity the grounds therefor”).
2 See, e.g., Ciaprazi v. Goord, 02–CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe, J.;
Peebles, M.J.) (characterizing defendants' threshold burden on a motion for summary judgment as “modest”)
[citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord,
Saunders v. Ricks, 03–CV–0598, 2006 WL 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, J., adopting
Report–Recommendation of Lowe, M.J.), Smith v. Woods, 03–CV–0480, 2006 WL 1133247, at *17 & n.
109 (N.D.N.Y. Apr.24, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.); see also Race
Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109–1110 (N.D.N.Y.2003) (Munson, J.) (reviewing
merely whether record contradicted defendant's arguments, and whether record supported plaintiff's claims,
in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96–CV–1269, 1997
U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3],
but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons
set forth in defendants' motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N .D.N.Y. Oct. 14,
1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95–CV–989, 1996 U.S. Dist. LEXIS 15072, at
*3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.).
3 See, e.g., Hernandez v. Nash, 00–CV–1564, 2003 U.S. Dist. LEXIS 16258, at *7–8, 2003 WL
22143709(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before a motion to dismiss may be granted under Local
Rule 7.1[b] [3], “the court must review the motion to determine whether it is facially meritorious” ) [emphasis
added; citations omitted]; accord, Topliff v. Wal–Mart Stores East LP, 04–CV–0297, 2007 U.S. Dist. LEXIS
20533, at *28 & n. 43, 2007 WL 911891 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 05–
CV–0380, 2007 U.S. Dist. LEXIS 24356, at *5–6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v.
Kooi, 04–CV–1311, 2007 U.S. Dist. LEXIS 26583, at *28–29 & n. 40, 2007 WL 951447 (N.D.N.Y. Feb. 12,
2007) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele
v. Pelkey, 03–CV–0170, 2006 U.S. Dist. LEXIS 95065, at *5 & n. 2, 2006 WL 3940592 (N.D.N.Y. Dec. 19,
2006) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, J.).
4 As noted by Defendant in his motion to dismiss, because Plaintiff failed to follow the required SSA regulations
before bringing this action, there is no final decision for the Court to review under 42 U.S.C. § 405(g).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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2019 WL 5597771
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Carlos Alexis GARCIA, Plaintiff,
v.
Commissioner Scott SEMPLE, et al., Defendants.
Case No. 3:18-cv-1226 (SRU)
|
Signed 10/30/2019
Attorneys and Law Firms
Carlos Alexis Garcia, pro se.
INITIAL REVIEW ORDER
Stefan R. Underhill, United States District Judge
*1 Carlos Alexis Garcia (“Garcia”), is incarcerated at
MacDougall-Walker Correctional Institution (“MacDougall-
Walker”). He has filed a civil rights complaint pursuant to
42 U.S.C. § 1983 regarding incidents that occurred at Enfield
Correctional Institution (“Enfield”) from February 17, 2016
to March 4, 2016. See Compl., Doc No. 1, at 5–30. He
names twenty-four employees of the State of Connecticut
Department of Correction and one Connecticut State Trooper
as defendants. See id. at 1–5. For the reasons set forth below,
the complaint is dismissed in part.
I. Standard of Review
Under Section 1915A of Title 28 of the United States Code, I
must review prisoner civil complaints and dismiss any portion
of the complaint that is frivolous, malicious, or fails to state
a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A. Although detailed allegations are
not required, the complaint must include sufficient facts to
afford the defendants fair notice of the claims and grounds
upon which they are based and to demonstrate a plausible
right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555–56 (2007). Conclusory allegations are not sufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must
plead “enough facts to state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. Nevertheless, it is
well-established that “[p]ro se complaints ‘must be construed
liberally and interpreted to raise the strongest arguments that
they suggest.’ ” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d
Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater,
623 F.3d 90, 101–02 (2d Cir. 2010) (discussing special rules
of solicitude for pro se litigants).
II. Facts
On February 17, 2016, Correctional Officer Lizon searched
Garcia's cell and discovered a box in the radiator
that contained numerous items of contraband including
homemade needles and sharpened tools for engraving and
modifying electronics. See Compl. at 6 ¶ 33 & Ex. 2 at
37–38. Officer Lizon charged Garcia with the disciplinary
offense of Contraband, Class A. See id. Custody Supervisor
Scagliarini signed off on the disciplinary report. See id. ¶
34. Captain Rios determined that Garcia's presence in the
general population posed a serious threat to the security of
other inmates and the facility and issued an order that Garcia
be placed on administrative detention pending the disposition
of the disciplinary report for contraband. See id. ¶ 32 & Ex. 1
at 35–36. He directed officers to escort Garcia to a cell in the
restrictive housing unit. See id. ¶ 32. Garcia received a copy
of the disciplinary report later that evening. See id. ¶ 35.
The following day, February 18, 2016, Disciplinary
Investigator Gottlieb interviewed Garcia regarding the
disciplinary report. See id. at 7 ¶ 36. Garcia did not deny
that the contraband items belonged to him. Instead, he argued
that the items constituted Contraband, Class B items, rather
than Contraband, Class A items. See id. ¶ 37. Investigator
Gottlieb refused to reduce the charge to contraband B. See
id. ¶ 38. He encouraged Garcia to plead guilty and accept
sanctions of seven days' of punitive segregation, thirty days'
loss of commissary privileges, fifteen days' loss of recreation
privileges and fifteen days' forfeiture of risk reduction earned
credit, rather than risk the imposition of more significant
sanctions if he were found guilty after a hearing on the
disciplinary charge. See id. Garcia was aware that a plea of
guilty to a Class A offense would also result in the loss of
contact visits with his family for two years. See id. Garcia
chose to plead guilty to the charge of Contraband, Class A
and signed the guilty plea section of the disciplinary report in
the presence of Investigator Gottlieb. See id. ¶ 39 & Ex. 3 at
39–40.
*2 On February 24, 2016, Garcia completed his confinement
in punitive segregation and Investigator Gottlieb escorted
him to a cell in general population. See id. at 8 ¶¶ 42–43.
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At approximately 1:45 p.m. on February 25, 2016, Officers
Atkins and Hazelett informed Garcia that he must accompany
them to the administrative building pursuant to the order of
Lieutenant Earley. See id. ¶¶ 44–45.
During Garcia's escort to the administrative building, Officer
Valierre informed Garcia that he would be searching his cell
and would be removing any unauthorized items. See id. at 9 ¶
46. A few minutes after reaching the administrative building,
Lieutenant Earley arrived with Intelligence Coordinator
Rodriguez, Investigator Gottlieb and K-9 Handler Jane Doe.
See id. ¶ 48. As Officers Valierre, Atkins and Hazelett
“converge[d]” on Garcia, Lieutenant Earley ordered Garcia
to place his hands behind his back. See id. ¶¶ 48–49. Instead
of putting his hands behind his back, Garcia attempted to
ask Lieutenant Earley some questions. Lieutenant Earley then
took a cannister containing a chemical agent out of his pocket,
assumed a “threatening stance” and issued another order
directing Garcia to place his hands behind his back to be
handcuffed. See id. ¶ 50. Garcia placed his hands behind
his back and officers placed the handcuffs on his wrists.
See id. at 9–10 ¶¶ 51–52. After being handcuffed, Garcia
asked Lieutenant Earley why he was being “detain[ed]”. See
id. at 10 ¶ 52. Lieutenant Earley told Garcia to relax. See
id. During Garcia's escort from the administrative building
to the medical department, officers exerted pressure on his
handcuffs causing Garcia severe pain. See id. ¶ 54.
Upon his arrival at the medical department, a medical staff
member evaluated Garcia's physical and mental health. See
id. ¶ 55. After her evaluation, the staff member signaled to
Lieutenant Earley that she had cleared Garcia for placement
in the restrictive housing unit. See id.
Upon his arrival in the restrictive housing unit, officers
subjected Garcia to a search of his clothes, body and body
cavities. See id. ¶ 56. K-9 Handler Doe was able to observe
the search and Garcia's naked body for approximately sixty
seconds. See id.
After completing the strip search, officers placed Garcia in a
“dry cell” which smelled of urine and feces. See id. at 10-11
¶¶ 57–58. The toilet in the cell, which could only be flushed
from the outside, was clogged up with “what appeared to be
bio-hazardous waste” and some areas of the walls of the cell
were covered with streaks of dried blood and excrement. See
id. The cell was equipped with cameras that enabled staff to
observe Garcia twenty-four hours a day. See id. at 10 ¶ 57.
After being secured in the cell, Garcia voiced his health and
sanitation concerns to Lieutenant Earley through the cell door,
but Lieutenant Earley ignored Garcia's complaints. See id. at
11 ¶ 59.
Lieutenant Earley explained to Garcia that his placement
on administrative detention was due to a mix-up or mis-
communication regarding the way that the initial disciplinary
report for contraband was handled or processed and the
type of sanctions that were imposed pursuant to Garcia's
plea of guilty to the disciplinary report. See id. at 12 ¶¶
65–66. Lieutenant Earley indicated that Warden Ford and
Deputy Warden Rodriguez had ordered him to place Garcia on
administrative detention and to “fix” the mix-up immediately.
See id. ¶ 70. Lieutenant Earley and Investigator Gottlieb
also mentioned that as of February 17, 2016, officials had
become aware that Garcia had engaged in criminal activity
and had referred the matter to the Connecticut State Police for
investigation. See id. at 14 ¶ 83. Both Lieutenant Earley and
Investigator Gottlieb stated that the matter was out of their
hands. See id. at 13 ¶¶ 74–75.
*3 Garcia requested that he be permitted to contact “his then
attorney at law, James R. Hardy, II” in order to protect his civil
rights. See id. at 14 ¶ 78. Lieutenant Earley denied the request
and indicated that he did not think it was an appropriate time
for Garcia to make a legal call. See id. ¶¶ 79–80.
Several hours after his placement in a cell in the restrictive
housing unit, Captain Rios came by and observed that Garcia
had placed a notice on the window of his cell door indicating
that he was going to engage in a hunger strike until prison
officials provided him with due process, equal protection and
access to a legal assistance and reasonable living conditions.
See id. at 16 ¶ 94. Captain Rios explained that only
Commissioner Semple could “re-visit” the disposition of a
disciplinary charge “with the intent to re-write mistakes and/
or produce an outside charge.” See id. at 17 ¶ 96. Although,
Captain Rios was aware that neither Warden Ford, nor Deputy
Warden Rodriguez had consulted with Commissioner Semple
prior to re-opening the February 17, 2016 disciplinary matter
against Garcia, she took no action to correct the situation. See
id. at 17 ¶ 97.
After observing the conditions in Garcia's cell, Captain Rios
transferred him to another clean cell in the restrictive housing
unit. See id. ¶ 98. Garcia asked Captain Rios for permission
to call his attorney, but she indicated that she would defer to
the decision of Lieutenant Earley and denied the request. See
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id. ¶ 99. Prior to leaving the restrictive housing unit, Captain
Rios encouraged Garcia to eat some food. See id.
A short time later, Lieutenants Scarchilli and Montefusco
spoke to Garcia regarding his confinement in the restrictive
housing unit. See id. at 17–18 ¶¶ 100–01. Lieutenant
Scarchilli became “agitated” when he learned about the lack
of communication among ranking officers and Lieutenant
Montefusco expressed disappointment regarding “Top-Level
Management's blatant abuse of policy.” See id.
On February 26, 2016, Intelligence Coordinator Rodriguez
directed Garcia to prepare himself for his interview with
Connecticut State Police Trooper Stebbins, escorted him to
an office and handed him a voluntary interview authorization
form to sign. See id. at 18 ¶¶ 102–04. Garcia signed the
authorization form under protest. See id. ¶ 104.
When Trooper Stebbins arrived at the office, he began to read
the incident report prepared by prison officials in conjunction
with the incident involving the discovery of contraband items
in Garcia's cell on February 17, 2016. See id. ¶ 106. Trooper
Stebbins indicated that Department of Correction officials had
contacted him on February 17, 2016, but he could not explain
why it had taken him until February 26, 2016 to come to
investigate the incident and the contraband items that had
been discovered in Garcia's cell. See id. at 20 ¶ 117.
Trooper Stebbins showed Garcia a copy of a photograph
of “an item in question.” See id. at 21 ¶ 122. Trooper
Stebbins then pulled a “plastic instrumentality” from his coat
pocket and asked Garcia to identify it. See id. Garcia did
not answer the question and “invoked his right against self-
incrimination.” See id. Trooper Stebbins stated that Warden
Ford, Deputy Warden Rodriguez and Lieutenant Earley had
requested that he charge Garcia with being in possession of
“said instrument, an alleged 6 inch shank.” See id. ¶ 123.
Garcia immediately requested permission to call his attorney
or Inmates' Legal Aid Services. Trooper Stebbins denied
Garcia's request and continued to interview him. See id. ¶ 124.
*4 Garcia confronted Trooper Stebbins regarding the fact
that the shank had not been placed in a bag or a container
and that Trooper Stebbins had not worn gloves while handling
the shank. See id. at 21–22 ¶¶ 128, 131. In response, Trooper
Stebbins asked Garcia to relate his version of the events
surrounding the discovery of contraband items during a
search of his cell. See id. at 22 ¶ 131. Garcia informed
Trooper Stebbins that on February 18, 2016, prison officials at
Enfield had disposed of the disciplinary report charging him
with possession of contraband items, described as homemade
needles and sharpened tools for engraving and modifying
electronics that were found in his cell on February 17, 2016.
See id. at 21 ¶ 125; Ex. 3 at 39–40. Trooper Stebbins indicated
that he was unaware that a disciplinary report had already
been issued and stated that he must speak to prison officials
about the matter. See id. at 22 ¶¶ 132–33. When he returned
to the interview room, Trooper Stebbins indicated that prison
officials had denied any wrongdoing. See id. ¶ 134.
Garcia requested that Trooper Stebbins file a criminal
complaint on his behalf against prison officials who had
threatened him on February 25, 2016. See id. ¶ 135. Trooper
Stebbins denied Garcia's request and attempted to persuade
Garcia to submit a written statement admitting that he had
possessed the shank that had been found in his cell on
February 17, 2016. See id. at 22–23 ¶¶ 135–36. Garcia
declined to submit a written statement incriminating himself.
Trooper Stebbins did not recommend that criminal charges be
filed against Garcia or anyone else in connection with any of
the items that were recovered from Garcia's cell on February
17, 2016. See id. at 23 ¶ 138 & at 28 ¶ 169.
After the interview with Trooper Stebbins had ended,
Lieutenant Earley attempted to convince Garcia to sign a
document admitting that he had been aware of contraband
being smuggled into Enfield. See id. ¶¶ 140–41. Lieutenant
Earley indicated that if Garcia signed the document, he would
either release Garcia from the restrictive housing unit or
permit Garcia to make a telephone call to an attorney or the
Inmates' Legal Aid Services office. See id. ¶ 142. Garcia
denied any knowledge of contraband being brought into
Enfield and did not sign the document. See id. ¶ 141. During
his meeting with Lieutenant Earley, Garcia stated that he
needed to see a psychologist, but Lieutenant Earley ignored
his request. See id. at 24 ¶ 143.
On February 27, 2016, Lieutenant Lee spoke to Garcia. See
id. ¶ 147. She stated that she thought “there was a clear abuse
of the policy, but that he should wait it out because they're
probably making you sweat.” See id. On February 28, 2016,
Lieutenant Kit spoke to Garcia and indicated that his detention
in the restrictive housing unit was “un-called for” and was a
form of retaliation. See id. at 25 ¶ 148.
On March 2, 2016, Counselor Timbro indicated that he would
attempt to convince prison officials to permit Garcia to make
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a legal telephone call. See id. ¶ 149. Garcia did not hear from
Counselor Timbro again. See id.
Later that day, Counselor Supervisor Bowman visited Garcia
and vowed to look into his request for a legal telephone call.
See id. ¶ 150. Garcia did not hear from Counselor Supervisor
Bowman again. See id.
During the morning of March 3, 2016, Deputy Warden
Rodriguez spoke to Garcia and informed him that it was
permissible to reinstate disciplinary charges without the
written approval of the Commissioner of Correction. See id. ¶
151. Garcia learned that Deputy Warden Rodriguez believed
Trooper Stebbins should have charged him with possession
of a dangerous weapon and that Deputy Warden Rodriguez
had recommended that Garcia be placed on administrative
segregation status at Northern Correctional Institution. See
id. at 25–26 ¶¶ 152–53. Other prison officials disagreed with
that recommendation. See id. at 25 ¶ 152. When Garcia
accused Deputy Warden Rodriguez and other prison officials
of engaging in reckless and retaliatory behavior by holding
him accountable for mistakes that were made by employees
of the Department of Correction regarding the handling of
the disciplinary report charging him with contraband, Deputy
Warden Rodriguez stated that Garcia would be moved from
Enfield “one way or another.” See id. at 26 ¶¶ 154–55.
*5 At approximately 1:10 p.m., Garcia advised Lieutenant
Earley that he had spoken to Deputy Warden Rodriguez and
would be filing a law suit over deprivations that had occurred.
See id. at 26–27 ¶¶ 158–59. A short time later, Garcia spoke
to Lieutenant Earley and Captain Hunter and indicated that he
intended “to hold them accountable for the series of breaks
in command” in connection with actions taken in response to
the discovery of items of contraband in his cell. See id. at 27
¶¶ 160–62.
On March 3, 2016, Director Offender Classification and
Population Management Maiga approved the request by
Warden Ford and District Administrator Quiros to raise
Garcia's overall security level to a level 4, designated Garcia
as a high security inmate and directed Warden Ford to hold
a hearing regarding the placement of Garcia on high security
status. See id. at 28 ¶ 166 & Exs. 8, 9 at 47–48. Warden Ford
did not hold a hearing. See id. at 28 ¶ 166.
On March 4, 2016, Lieutenant Earley and Property Officer
Valierre informed Garcia that he would be transferred from
Enfield to another prison facility pursuant to an order from
Deputy Warden Rodriguez. See id. at 27 ¶ 164. Property
Officer Valierre stated that Deputy Warden Rodriguez had
ordered him to confiscate Garcia's Nintendo 3DS XL game
console and fourteen games as contraband. See id. at 27–28 ¶
165. At approximately 4:00 p.m., prison officials transported
Garcia to MacDougall-Walker, a high security facility. See id.
at 28 ¶ 166 & Ex. 7 at 46. Garcia claims that prison officials
at MacDougall-Walker confined him in a restrictive housing
unit. See id. ¶ 167.
Approximately ten days after his transfer to MacDougall-
Walker, Garcia filed multiple grievances regarding the
incidents that had occurred at Enfield in February and early
March 2016. See id. at 29 ¶ 170 & Exs. 11–18 at 50–65.
Garcia received receipts from Grievance Coordinator Bennett
for two of the four grievances that he filed in March 2016. See
id. & Ex. 19 at 66. On May 4, and May 31, 2016, Garcia filed
grievance appeals regarding the incidents that had occurred at
Enfield in February and early March 2016. See id. & Exs. 20–
21 at 67–68. He never received responses to his grievances or
grievance appeals. See id.
On February 14, 2017, at MacDougall-Walker, Garcia spoke
to Commissioner Semple about what had transpired at Enfield
in February and March 2016, after a search of his cell had
revealed items meeting the definition of contraband. See id.
at ¶ 172. Commissioner Semple requested that Garcia notify
him regarding the individuals who were responsible for the
incidents in question. See id. ¶ 173. Garcia wrote a letter to
Commissioner Semple on February 15, 2017 and placed the
letter in the mail on February 16, 2017. See id. Garcia is
doubtful that the letter reached Commissioner Semple. See id.
III. Discussion
Garcia contends that the defendants violated his rights under
the First, Fourth, Fifth, Eighth and Fourteenth Amendments.
In addition, he asserts a state law claim of intentional
infliction of emotional distress. He seeks declaratory and
injunctive relief and monetary damages.
A. Connecticut State Trooper Stebbins
Garcia alleges that Trooper Stebbins came to interview and
question him on February 26, 2016. Garcia contends that
Trooper Stebbins attempted to persuade him to admit to
having possessed the 6-inch shank that was allegedly found in
his cell during a search on February 17, 2016. Garcia claims
that he invoked his right against self-incrimination and did
not admit to or make a statement regarding possession of the
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shank that had allegedly been found in his cell. Garcia alleges
that at another point during the interview, he demanded
that Trooper Stebbins permit him to call his attorney or the
Inmates' Legal Aid Services, but Stebbins denied the request
and continued to interview him.
*6 The Fifth Amendment to the United States Constitution
provides in relevant part: “No person ... shall be compelled in
any criminal case to be a witness against himself.” U.S. Const.
amend. V. It is applicable to state criminal proceedings by
virtue of the Fourteenth Amendment. See Malloy v. Hogan,
378 U.S. 1, 6 (1964). To the extent that Garcia is claiming
that Trooper Stebbins infringed on his right to counsel by
not honoring the invocation of his right to an attorney
under Miranda v. Arizona, 384 U.S. 436 (1966), 1 the right
to counsel during a custodial interrogation recognized in
Miranda is merely a procedural safeguard whether it arises
under the Fifth or Sixth Amendment and a violation of
Miranda rights does not give rise to a civil rights claim
under 42 U.S.C. § 1983. See Myers v. Cty. of Nassau, 825
F. Supp. 2d 359, 367 (E.D.N.Y. 2011) (“The remedy for a
violation of this right [to counsel under the Fifth Amendment]
is exclusion of any self-incriminating statements from use
at a criminal proceeding, and not an action for damages
under Section 1983.”) (citing Jocks v. Tavernier, 316 F.3d
128, 138 (2d Cir. 2003); Neighbour v. Covert, 68 F.3d 1508,
1510 (2d Cir. 1995); Paige v. City of New York, 2011 WL
3701923, *3 (E.D.N.Y. 2011); McZorn v. Endicott Police
Dept., 2008 WL 163581, *9 (N.D.N.Y. 2008)). Furthermore,
Garcia concedes that Trooper Stebbins did not recommend
that criminal charges be brought against him. Nor does Garcia
allege that the State of Connecticut ever filed criminal charges
against him in connection with the items found in his cell
on February 17, 2016. Accordingly, any claim that Trooper
Stebbins violated Garcia's Fifth Amendment right to counsel
during the interview is dismissed. See 28 U.S.C. § 1915A(b)
(1).
Garcia also contends that he asked Trooper Stebbins to “lodge
a formal criminal complaint” against several defendants who
had threatened him on February 25, 2016, but Trooper
Stebbins decided not to recommend that such charges be filed
by the State of Connecticut. Garcia has no constitutionally
protected right to a proper investigation. See Lewis v.
Gallivan, 315 F. Supp. 2d 313, 316–17 (W.D.N.Y. 2004)
(“There is ... no constitutional right to an investigation
by government officials.”) (internal quotation marks and
citations omitted); Santossio v. City of Bridgeport, 2004 WL
2381559, at *4 (D. Conn. Sept. 28, 2004) (“the United States
Constitution does not grant plaintiffs a right to an adequate
investigation or adequate after-the-fact punishment”) (citing
cases). Furthermore, a victim of allegedly criminal conduct is
not entitled to a criminal investigation or the prosecution of
the alleged perpetrator of the crime. See Leeke v. Timmerman,
454 U.S. 83, (1981) (inmates alleging beating by prison
guards lack standing to challenge prison officials' request to
magistrate not to issue arrest warrants); Linda R. S. v. Richard
D., 410 U.S. 614, 619 (1973) (“in American jurisprudence at
least, a private citizen lacks a judicially cognizable interest in
the prosecution or nonprosecution of another”); McCrary v.
Cty. of Nassau, 493 F. Supp. 2d 581, 588 (E.D.N.Y. 2007) (“A
private citizen does not have a constitutional right to compel
government officials to arrest or prosecute another person.”).
*7 Thus, the fact that Trooper Stebbins chose not to
pursue criminal charges against any of the defendants for
their alleged threatening conduct towards Garcia does not
constitute a constitutional violation. Because Garcia has no
right to have any of the defendants prosecuted for allegedly
threatening him, the allegation that Trooper Stebbins refused
to pursue criminal charges against any of the defendants for
their alleged threatening conduct towards Garcia fails to state
a claim upon which relief may be granted and is dismissed.
See 28 U.S.C. § 1915A(b)(1).
B. Commissioner Semple
Garcia describes Commissioner Semple as being responsible
for the overall operation of the State of Connecticut
Department of Correction, including MacDougall-Walker.
See Compl. at 2 ¶ 4. Garcia does not refer to Commissioner
Semple as having been involved in the events that occurred at
Enfield in February and early March 2016 or indicate that he
made any attempt to contact Commissioner Semple at the time
of the events. Furthermore, Garcia's allegations regarding the
conduct of the defendants, other than Commissioner Semple,
suggest that those defendants did not contact or inform
Commissioner Semple regarding the decision to place him on
administrative detention on February 25, 2016, or the decision
to raise his security level and to place him on high security
status on March 3, 2016, or the decision to transfer him to
MacDougall-Walker in early March 2016.
It was not until almost a year later on February 14,
2017, at MacDougall-Walker, that Garcia allegedly spoke
to Commissioner Semple regarding the incidents that had
occurred at Enfield in February and March 2016. See Compl.
¶ 172. During that conversation, Commissioner Semple
suggested that Garcia send him a list of the prison officials
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who were responsible for or had been involved in the
incidents that had occurred at Enfield. See id. Garcia states
that he sent a letter to Commissioner Semple on February 16,
2017, but he does not think it reached the Commissioner. See
id. ¶ 173.
These allegations do not state a claim that Commissioner
Semple was aware of or involved in the incidents that
occurred at Enfield in February 2016. Garcia conceded that
for a period of time after he sent the letter in February 2017, he
did not pursue the matter with the Commissioner because he
feared that he might be “subjected to unimaginable treatment
at such a high risk facility filled with lifers.” Id. Garcia
does not indicate that he ever took steps to confirm whether
Commissioner Semple received his February 2017 letter or
that he ever attempted to pursue the matter further with the
Commissioner.
The facts, as alleged, do not state a claim that Commissioner
Semple violated Garcia's federally or constitutionally
protected rights with regard to the incidents that occurred in
February 2016 at Enfield. The claims against Commissioner
Semple are dismissed. See 28 U.S.C. § 1915A(b)(1).
C. Fourth Amendment Claim
Garcia alleges that pursuant to Lieutenant Earley's February
25, 2016 order that he be placed in administrative detention
pending an investigation, Lieutenant Earley and other officers
escorted him to a room in the restrictive housing unit and
Lieutenant Earley oversaw the officers who strip searched
him. Garcia states that officers searched his clothes, body
and body cavities in the presence of K-9 Handler Jane
Doe. He describes the search as intrusive, embarrassing and
humiliating.
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
The Second Circuit has recently “reiterate[d] that inmates
retain a limited right of bodily privacy under the Fourth
Amendment.” Harris v. Miller, 818 F.3d 49, 62 (2d Cir. 2016).
When evaluating a claim that an isolated search infringed on
an inmate's right of bodily privacy, a court must consider four
factors in determining whether the search was reasonable:
“(1) the scope of the intrusion; (2) the manner in which
it was conducted; (3) the justification for initiating it; and
(4) the place in which it was conducted.” Harris, 818 F.3d
at 63 (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)). A
strip search is unconstitutional under the Fourth Amendment
“if it is unrelated to any legitimate penological goal or if it
is designed to intimidate, harass, or punish.” Jean–Laurent
v. Wilkerson, 438 F. Supp. 2d 318, 323 (S.D.N.Y. 2006)
(citations omitted).
*8 I construe Garcia's allegations as challenging the scope
of the strip search and the manner in which the search was
conducted, including the fact that a female officer was present
during the search. I conclude that Garcia has stated a plausible
Fourth Amendment claim with regard to the strip search
conducted pursuant to the order of Lieutenant Earley. Garcia,
however, has not presented specific allegations detailing how
the conduct of K-9 Handler Jane Doe violated his Fourth
Amendment rights. The Fourth Amendment claim against
K-9 Handler Jane Doe is dismissed for failure to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915A(b)
(1). The Fourth Amendment claim against Lieutenant Earle
will proceed.
D. Fifth Amendment Claim
In his description of legal claims, Garcia contends that the
defendants subjected him to “being twice put in jeopardy
for the same offense.” Compl. ¶ 181. The Double Jeopardy
Clause of the Fifth Amendment, made applicable to the
States by the Fourteenth Amendment, prohibits both multiple
punishments for the same offense and multiple prosecutions
for the same offense. See U.S. Const. amend V (“[n]or shall
any person be subject for the same offence to be twice put in
jeopardy of life or limb....”); North Carolina v. Pearce, 395
U.S. 711, 717 (1969) (“Fifth Amendment guarantee against
double jeopardy .... consist[s] of three separate constitutional
protections. It protects against a second prosecution for the
same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it
protects against multiple punishments for the same offense.”).
It is well-established that the Double Jeopardy Clause of
the Fifth Amendment is limited to criminal proceedings.
See Hudson v. United States, 522 U.S. 93, 99 (1997)
(“The [Double Jeopardy Clause] protects only against
the imposition of multiple criminal punishments for
the same offense ... and then only when such occurs
in successive proceedings”) (citations omitted). Prison
disciplinary hearings and classification decisions or hearings
are civil in nature. See Wolff v. McDonnell, 418 U.S 539,
556 (1974) (“Prison disciplinary proceedings are not part of
a criminal prosecution, and the full panoply of rights due
a defendant in such proceedings does not apply.”); Porter
v. Coughlin, 421 F.3d 141, 144, 148–49 (2d Cir. 2005)
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(finding no violation of the Double Jeopardy Clause because
disciplinary sanction of three years in a restrictive housing
unit was “clearly related to a nonpunitive interest” and was
intended as a civil remedy and the disciplinary proceeding
pursuant to which the sanction was imposed “was civil in
nature”); United States v. Hernandez-Fundora, 58 F.3d 802,
806–07 (2d Cir. 1995) (holding that even though sanction
of forty-five days of disciplinary segregation might have
had a “punitive component,” the sanction “was sufficiently
related to the government's remedial interest that it did
not constitute punishment for double jeopardy purposes”)
(internal quotation marks and citation omitted); Knight v.
Semple, 2018 WL 4623030, at *3 (D. Conn. Sept. 26, 2018)
(“Because prisoner classification is not ‘essentially criminal,’
the decision to raise [Knight's] sexual treatment needs score
and the policy under which this was done do not support a
double jeopardy claim.”) (citations omitted).
Garcia does not allege that he was charged with or convicted
of a criminal offense related to the contraband items
found in his cell on February 17, 2016. Furthermore, there
are no facts to suggest that the sanctions imposed upon
Garcia pursuant to the issuance of the disciplinary report
for contraband or Garcia's subsequent confinement in the
restrictive housing unit on administrative detention status or
Garcia's classification as a high security inmate constituted
punishment or involved criminal proceedings. Accordingly,
the Double Jeopardy Clause of the Fifth Amendment is
not applicable to Garcia's claims regarding his placement
on administrative detention and changes to his overall
security level and classification. The Fifth Amendment
double jeopardy claim is dismissed. See 28 U.S.C. § 1915A(b)
(1).
*9 The Fifth Amendment also provides: “nor shall any
person be deprived of life, liberty, or property, without due
process of law.” U.S. Const. amend. V. Because the Due
Process Clause of the Fifth Amendment applies to the federal
government and not to the state, any due process claims
asserted by Garcia under the Fifth Amendment against the
defendants, who are all State of Connecticut employees,
are not cognizable. See Dusenbery v. United States, 534
U.S. 161, 167 (2002) (“The Due Process Clause of the
Fifth Amendment prohibits the United States, as the Due
Process Clause of the Fourteenth Amendment prohibits the
States, from depriving any person of property without ‘due
process of law.’ ”); Poe v. Ullman, 367 U.S. 497, 540
(1961) (prohibitions “against the deprivation of life, liberty or
property without due process of law” set forth in Fourteenth
Amendment is applicable to state government and the same
prohibitions in Fifth Amendment are applicable to “the
Federal Government”); Ambrose v. City of New York, 623 F.
Supp. 2d 454, 466–67 (S.D.N.Y. 2009) (holding that any due
process claim against the city was properly brought under
the Fourteenth Amendment, not the Fifth Amendment). The
Fifth Amendment due process claims are dismissed. See 28
U.S.C. § 1915A(b)(1). I address the Fourteenth Amendment
due process claims in a subsequent section of this ruling.
E. Eighth Amendment Claims
Garcia includes allegations that some defendants threatened
to use force against him, subjected him to unsafe conditions
of confinement and deprived him of access to mental
health treatment. Garcia generally contends that their conduct
constituted cruel and unusual punishment in violation of the
Eighth Amendment.
Although the Constitution does not require “comfortable”
prison conditions, the Eighth Amendment imposes certain
duties on prison officials, to “ensure that inmates receive
adequate food, clothing, shelter and medical care, and must
take reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832–33 (1994)
(internal quotation marks and citations omitted). To state a
deliberate indifference to health or safety claim under the
Eighth Amendment, an inmate must demonstrate both an
objective and a subjective element.
To meet the objective element, an inmate must allege that
he was incarcerated under conditions that resulted in a
“sufficiently serious” deprivation, such as the denial of a
“life[ ] necessit[y]” or a “substantial risk of serious harm.”
Id. at 834 (internal quotation marks and citations omitted). To
meet the subjective element, an inmate must allege that the
defendant prison officials possessed culpable intent, that is,
the officials knew that he faced a substantial risk to his health
or safety and disregarded that risk by failing to take corrective
action. See id. at 834, 837. Thus, an allegation of “mere
negligen[t]” conduct is insufficient. Id. at 835. Rather, the
subjective element requires that a plaintiff allege that prison
officials acted with “a mental state equivalent to subjective
recklessness, as the term is used in criminal law.” Salahuddin
v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).
Deliberate indifference by prison officials to a prisoner's
serious medical or mental health needs constitutes cruel and
unusual punishment in violation of the Eighth Amendment.
See Spavone v. New York State Dep't of Corr. Servs., 719
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F.3d 127, 138 (2d Cir. 2013) (“The Eighth Amendment
forbids ‘deliberate indifference to serious medical needs of
prisoners,’ ... which includes needs for mental health care.”)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976), and
citing Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989)).
To state a claim for deliberate indifference to a serious
medical or mental health need, a plaintiff must meet a two-
pronged test.
Under the first prong, a plaintiff must demonstrate that his
or her medical or mental health need was “ ‘sufficiently
serious.’ ” Spavone, 719 F.3d at 138 (2d Cir. 2013) (quoting
Salahuddin, 467 F.3d at 279) (quoting Farmer, 511 U.S.
at 834). Factors relevant to the seriousness of a medical
condition include whether “a reasonable doctor or patient
would find [it] important and worthy of comment,” whether
the condition “significantly affects an individual's daily
activities,” and whether it causes “chronic and substantial
pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (quotation marks omitted). If an inmate alleges delay
or interruption in treatment rather than failure to receive
any treatment at all, “the serious medical need inquiry can
properly take into account the severity of the temporary
deprivation alleged by the prisoner.” Smith v. Carpenter, 316
F.3d 178, 186 (2d Cir. 2003). “[I]t's the particular risk of
harm faced by a prisoner due to the challenged deprivation
of care, rather than the severity of the prisoner's underlying
medical condition, considered in the abstract, that is relevant
for [these] purposes.” Id. (citing Chance, 143 F.3d at 702–03).
Subjectively, the defendant must have been actually aware of
a substantial risk that the inmate would suffer serious harm
as a result of his or her actions or inactions. See Salahuddin,
467 F.3d at 279–80.
*10 In Hudson v. McMillian, 503 U.S. 1 (1992), the
Supreme Court established the minimum standard to be
applied in determining whether force by a correctional officer
against a sentenced inmate states a constitutional claim
under the Eighth Amendment in contexts other than prison
disturbances. When an inmate claims that excessive force has
been used against him by a prison official, he has the burden
of establishing both an objective and subjective component
to his claim. See Romano v. Howarth, 998 F.2d 101, 105 (2d
Cir. 1993).
To meet the objective component, the inmate must allege
that the defendant's conduct was serious enough to have
violated “contemporary standards of decency.” Hudson, 503
U.S. at 8 (internal quotation marks and citation omitted).
The subjective component requires the inmate to show that
the prison officials acted wantonly and focuses on “whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Id. at 7 (citing Whitley v. Albers, 475 U.S. 312, 320–21
(1986)). The court considers factors including “the need for
application of force, the relationship between that need and
the amount of force used, the threat reasonably perceived
by the responsible officials, and any efforts made to temper
the severity of a forceful response.” Hudson, 503 U.S. at 7
(internal quotations and citation omitted).
1. Excessive Force
Garcia alleges that on February 25, 2016, when he did not
immediately comply with Lieutenant Earley's order to place
his hands behind his back, Lieutenant Earley withdrew his can
of a chemical agent from his pocket and “took a threatening
stance.” Compl. at 9 ¶ 50. Garcia alleges that K-9 Handler
Jane Doe and her canine were present during his placement
in handcuffs and that she was “handling her canine in an
uncontrollable manner.” See id. ¶ 48. Garcia alleges that
during his escort from the administrative building to the
medical unit, officers exerted pressure on his handcuffs which
caused them to tighten up and cause him incredible pain. See
id. at 10 ¶ 54.
Garcia does not allege that Lieutenant Earley pointed the
chemical agent cannister at him or deployed the chemical
agent at him or in his presence. It is evident that in response
to Garcia's failure to comply with his order, Lieutenant
Earley pulled out his cannister of a chemical agent in case
it became necessary to use it. That threat of force does not
meet the objective component of the Eighth Amendment
standard. See Lizardo v. Denny's, Inc., 2000 WL 976808, at
*12 (N.D.N.Y. July 13, 2000) (“Plaintiffs' claims that rest
on the threatened use of mace are also dismissed for failing
to state a constitutional injury.”), aff'd, 270 F.3d 94 (2d Cir.
2001). The Eighth Amendment excessive force claim against
Lieutenant Earley is dismissed for failure to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915A(b)(1).
With regard to K-9 Handler Jane Doe, Garcia suggests that
she did not handle her canine in a controlled manner during
his placement in handcuffs. Garcia does not allege, however,
that K-9 Handler Jane Doe permitted or directed her canine to
touch or harm him in any way. Thus, Garcia has not asserted
that he suffered a serious deprivation to his health or safety.
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The allegations against K-9 Handler Jane Doe do not meet
the objective component of the Eighth Amendment standard
and the excessive force claim against K-9 Handler Jane Doe
is dismissed for failure to state a claim upon which relief may
be granted. See 28 U.S.C. § 1915A(b)(1).
*11 Garcia does not identify the officers who allegedly held
his arms during the escort to the medical department from
the administrative building. Thus, it is unclear whether any
defendant was involved in applying pressure to the handcuffs
during the escort. Furthermore, Garcia has not alleged that
the handcuffing led to a serious deprivation. Garcia claims
that the tight handcuffs caused him “incredible” pain but does
not allege that he complained to anyone or sought treatment
for the pain or that he suffered any permanent damage to his
wrists.
I conclude that absent allegations of permanent injury
to Garcia's wrists, Garcia has asserted insufficient facts
to meet the objective prong of the Eighth Amendment
standard with regard to the conduct of any defendant who
might have been involved in the escort of Garcia from
the administrative building to the medical department. See
Burroughs v. Mitchell, 325 F. Supp. 3d 249, 270 (N.D.N.Y.
2018) (acknowledging that “to sufficiently plead an excessive
force claim based upon tight handcuffing, [an inmate] must
allege more than a temporary injury” and dismissing Eighth
Amendment excessive force claim because allegation that
“handcuffs caused [an inmate's] wrists to be cut” did not
constitute “a permanent injury.”) (internal quotation marks
omitted). The claim that during the escort of Garcia to the
medical department on February 25, 2016, officers applied
excessive pressure to Garcia's handcuffs which resulted in
pain to his wrists, is dismissed for failure to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915A(b)(1).
2. Deliberate Indifference to Mental Health Needs
Garcia claims that prior to February 2016, he had a history
of post-traumatic stress disorder and anxiety. He alleges that
at the time of his initial placement in the restrictive housing
unit on February 25, 2016, he repeatedly asked Lieutenant
Earley to arrange for him to be seen by a psychologist.
Garcia contends that Lieutenant Earley ignored his requests
for mental health treatment.
Although, on February 25, 2016, Garcia may have been
previously diagnosed as suffering from post-traumatic stress
disorder and anxiety, he does not allege that those conditions
became worse or that they affected his daily activities during
his nine-day confinement in the unit. Nor does he allege that
he requested mental health treatment at any other time during
that period of time. I conclude that Garcia has not alleged
that he suffered from a serious risk of harm to his health with
regard to the interruption or delay in mental health treatment
during his confinement in the restrictive housing unit. See
Smith, 316 F.3d at 186 (in a situation where the complaint
is a delay or interruption in treatment rather than a failure
to receive any treatment at all, “it's the particular risk of
harm faced by a prisoner due to the challenged deprivation
of care, rather than the severity of the prisoner's underlying
medical condition, considered in the abstract, that is relevant”
in determining whether the inmate suffered from a serious
medical need). Accordingly, Garcia has not asserted sufficient
facts to meet the objective prong of the Eighth Amendment
standard and the claim that Lieutenant Earley was deliberately
indifferent to Garcia's mental health needs is dismissed. See
28 U.S.C. § 1915A(b)(1).
3. Conditions of Confinement
Garcia states that on February 25, 2016, Lieutenant Earley
placed him in an odorous and unsanitary cell in the restrictive
housing unit. The cell's toilet was clogged and there appeared
to be dried blood and excrement on the walls. Upon his
placement in the cell, Garcia immediately made Lieutenant
Earley aware of the conditions, but Lieutenant Earley ignored
his complaints. Several hours later, Captain Rios became
aware of the conditions and moved Garcia to a sanitary cell
within the restrictive housing unit.
*12 Garcia does not allege that he suffered any injuries
to his health from his short-term exposure to the conditions
in the first restrictive housing unit cell. He concedes that
once Captain Rios became aware of his concerns about the
conditions in the cell, she moved him to another cell in the
restrictive housing unit that was clean and sanitary. Thus, I
conclude that Garcia has not alleged he suffered a serious
deprivation to his health from the short-term exposure to
unsanitary conditions in the restrictive housing unit. Thus,
his claim that Lieutenant Earley subjected him to conditions
of confinement that violated the Eighth Amendment is
dismissed. See 28 U.S.C. § 1915A(b)(1).
F. Fourteenth Amendment Claim
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Garcia's allegations may be construed as asserting four
Fourteenth Amendment claims. Garcia alleges that: (1) the
defendants violated Garcia's due process rights when they
failed to hold a hearing or other proceeding either before
or after they confined him in administrative detention for
nine days or before or after they classified him as a
high security inmate; (2) Property Officer Valierre violated
Garcia's due process rights when he failed to hold a hearing
or other proceeding either before or after confiscating his
Nintendo 3DS XL game console and games; (3) Deputy
Warden Rodriguez violated Garcia's due process rights
when he failed to hold a hearing or other proceeding
prior to transferring Garcia to MacDougall-Walker; and (4)
Administrative Remedies Coordinators Bennett and Ortiz
violated Garcia's due process rights by failing to properly
process or address Garcia's grievances and grievance appeals.
1. Procedural Due Process – Administrative
Detention, Risk Level Increase, Change in
Classification, Transfer to a New Facility
Garcia alleges that on February 25, 2016, Lieutenant
Earley placed him in administrative detention pending an
investigation, on March 3, 2016, Director Maiga raised
his overall classification level to a level 4, approved his
placement on high security status, and directed Warden
Ford to hold a hearing regarding that placement and on
March 4, 2016, Deputy Warden Rodriguez transferred him to
MacDougall-Walker. Garcia contends that he did not receive
a hearing or other process prior to or after the change in his
place of confinement, or his placement on high security status
or his transfer to a more restrictive prison facility.
The Fourteenth Amendment's Due Process Clause “protects
persons against deprivations of life, liberty, or property.”
U.S Const. amend. XIV. “Liberty interests protected by the
Fourteenth Amendment may arise from two sources – the Due
Process Clause itself and the laws of the States.” Hewitt v.
Helms, 459 U.S. 460, 466 (1983). The standard analysis for
a claim of a violation of procedural due process “proceeds
in two steps: We first ask whether there exists a liberty or
property interest of which a person has been deprived, and
if so we ask whether the procedures followed by the State
were constitutionally sufficient.” Swarthout v. Cooke, 562
U.S. 216, 219 (2011) (per curiam).
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court
recognized that “States may under certain circumstances
create liberty interests which are protected by the Due Process
Clause.” Id. at 483–84. A plaintiff has a protected liberty
interest only if the state created such an interest in a statute
or regulation and the deprivation of that interest caused him
to suffer an atypical and significant hardship. See Tellier v.
Fields, 280 F.3d 69, 80-81 (2d Cir. 2000).
In Arce v. Walker, 139 F.3d 329, 334–35 (2d Cir. 1998), the
Second Circuit concluded that the Sandin analysis should
be applied to determine whether placement in non-punitive
administrative segregation implicates a liberty interest. In
Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court
considered a due process claim asserted by inmates who
had been classified for placement in a high security state
prison for safety and security, rather than disciplinary reasons.
In determining whether the inmates had a liberty interest
in avoiding confinement in the very restrictive, maximum
security prison for an indefinite period of time, the Court
applied the standard set forth in Sandin. See id. at 223 (“After
Sandin, it is clear that the touchstone of the inquiry into
the existence of a protected, state-created liberty interest
in avoiding restrictive conditions of confinement is not the
language of regulations regarding those conditions but the
nature of those conditions themselves ‘in relation to the
ordinary incidents of prison life.’ ”) (quoting Sandin, 515
at 484). The Court concluded that the restrictive conditions
at Ohio State Penitentiary “taken together [ ] impose[d] an
atypical and significant hardship” on inmates and gave “rise
to a liberty interest in their avoidance.” Id. at 224.
*13 The Second Circuit has held that “in determining
whether [an inmate] endured an atypical and significant
hardship” a district court should consider the duration of the
inmate's confinement in segregation and “the extent to which
the conditions [in] ... segregation differ from other routine ...
conditions” in general population. Palmer v. Richards, 364
F.3d 60, 64 (2d Cir. 2004) (internal quotation marks and
citation omitted). With regard to duration, the Second Circuit
has resisted establishing a “bright line rule that a certain
period of ... confinement [in a restrictive housing unit]
automatically fails to implicate due process rights.” Id.
a. Administrative Detention
At approximately 1:45 p.m. on February 25, 2016, Lieutenant
Earley ordered Garcia's placement on administrative
detention status. See Compl. at 8 ¶ 44 & Ex. 5 at 43–44.
Garcia concedes that he received notice of the order regarding
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his placement on administrative detention. See Compl. at 24
¶ 144 & Ex. 5 at 43–44. The order provided that Garcia
had been placed on administrative detention pending an
investigation and because his continued presence in general
population posed a serious threat to himself, prison staff and
other inmates or the security of the facility. See Compl. at
Ex. 5 at 43. He remained on administrative detention until
prison officials transferred him to MacDougall-Walker at
approximately 4:00 p.m. on March 4, 2016. See Compl. at
Exs. 6–7 at 45–46.
Garcia was confined in a cell in the restrictive housing
unit on administrative detention status for nine days. Aside
from the unsanitary conditions of the initial cell in which
Garcia was placed for several hours, there are no allegations
suggesting that the conditions under which Garcia was
confined for the remainder of his time in the restrictive
housing unit at Enfield subjected him to an atypical and
significant hardship. Accordingly, Garcia has not alleged that
he experienced conditions that were sufficiently atypical or
significant compared to the basic conditions of prison life
to give rise to a liberty interest in their avoidance. Absent
a liberty interest, Garcia is not entitled to procedural due
process protections. I conclude that the facts as alleged in the
complaint, do not state a claim that the defendants violated
Garcia's procedural due process rights in connection with
his placement on administrative detention at Enfield for nine
days. The due process claim related to Garcia's confinement
on administrative detention status is dismissed. See 28 U.S.C.
§ 1915A(b)(1).
b. High Security Status
Garcia states that he did not receive a hearing regarding
his placement on high security status. He indicates that
pursuant to that classification, prison officials transferred
him to MacDougall-Walker and placed him in a cell in Q-
Unit. Garcia states that he endured restrictive conditions of
confinement in that unit. The complaint includes a description
of the restrictive conditions. From exhibits attached to the
complaint, it is apparent that Garcia remained confined in
Q-Unit until at least May 31, 2016. See Compl. Ex. 21 at
68. Given the duration of his confinement in the restrictive
housing unit at MacDougall-Walker, at least 89 days, and
the restrictive nature of the conditions to which Garcia was
subjected during his confinement, in that unit, I conclude that
Garcia has stated a plausible procedural due process claim
with regard to his placement on high security status.
c. Risk Level Increase
Garcia challenges the increase in his overall classification
level to a level 4. He claims that he did not receive any hearing
or other proceeding in connection with that increase in level.
*14 To assert a due process claim in connection with
a classification decision, Garcia must show that he had
a protected liberty interest in remaining free from the
classification and, if he had such an interest, that the
defendants deprived him of the interest without affording him
due process of law. See Walker v. Fischer, 523 F. App'x 43, 44
(2d Cir. 2013) (summary order) (citing Giano v. Selsky, 238
F.3d 223, 225 (2d Cir. 2001)).
In Sandin v. Conner, the Supreme Court explained that for
prisoners, a liberty interest warranting due process protection
“will be generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process
Clause of its own force ... nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484 (internal
citations omitted).
Whether restraint constitutes an “atypical and significant
hardship” depends on the totality of the circumstances,
particularly the severity and the duration of the deprivation.
See, e.g., Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir.
1999). Hardship is atypical and significant in relation to
the ordinary incidents of prison life based on a comparison
of the frequency and duration of similar conditions of
confinement. See, e.g., Colon v. Howard, 215 F.3d 227, 230–
32 (2d Cir. 2000). Atypicality should be measured against
the conditions afforded to the general population within a
given prison system, as well as those in routine administrative
confinement. See Welch v. Bartlett, 196 F.3d 389, 393 (2d
Cir. 1999). Whether conditions constitute an “atypical and
significant hardship ... in relation to the ordinary incidents of
prison life” is a matter of law. Colon, 215 F. 3d at 230.
Here, Garcia has not alleged any facts demonstrating how
is level 4 classification caused him to suffer “atypical and
significant hardship.” Thus, the allegation that the increase in
Garcia's overall risk level violated the Due Process Clause of
the Fourteenth Amendment fails to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915A(b)(1).
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d. Transfer to MacDougall-Walker
Garcia alleges that Deputy Warden Rodriguez improperly
transferred him to MacDougall-Walker, which is a more
restrictive facility than Enfield. It is well-established that
an inmate has no right to be housed in a particular prison
facility. See Meachum v. Fano, 427 U.S. 215, 225 (1976)
(no liberty interest arising from Due Process Clause itself
in transfer from low-to maximum-security prison because
“[c]onfinement in any of the State's institutions is within
the normal limits or range of custody which the conviction
has authorized the State to impose”); Olim v. Wakinekona,
461 U.S. 238, 248 (1983) (inmates have no right to be
confined in a particular prison within a given state); Andrews
v. Semple, 2017 WL 5606740, at *4 (D. Conn. Nov. 21, 2017)
(dismissing due process claim that prison officials refused
to transfer inmate to prison facility of his choice, Garner
Correctional Institution, because “he has no constitutionally
protected right to be housed” at Garner or any other facility);
Jarecke v. Hensley, 552 F. Supp. 2d 261, 265 (D. Conn.
2008) (“Inmates have no constitutionally protected right to
be confined in any particular correctional facility or housing
unit.”). Because Garcia has no liberty interest in his transfer
to a particular prison facility, his claim that Deputy Warden
Rodriguez violated his right to due process when he issued
the order that he be transferred to MacDougall-Walker on
March 4, 2016 fails to state a claim upon which relief may
be granted. See Meachum, 427 U.S. at 225 (“That life in one
prison is much more disagreeable than in another does not
in itself signify that a Fourteenth Amendment liberty interest
is implicated when a prisoner is transferred to the institution
with the more severe rules.”). The Fourteenth Amendment
claim related to Garcia's transfer to MacDougall-Walker is
dismissed. See 28 U.S.C. § 1915A(b)(1).
2. Property Claim
*15 Garcia alleges that on March 4, 2016, just before
his transfer to MacDougall-Walker, Property Officer Valierre
confiscated his Nintendo 3DS XL game console and fourteen
games. A claim for confiscation or loss of property is not
cognizable in a Section 1983 action. The Supreme Court
has held that the Due Process Clause of the Fourteenth
Amendment is not violated when a prison inmate loses
personal belongings due to the negligent or intentional actions
of correctional officers if the state provides an adequate post-
deprivation compensatory remedy. See Hudson v. Palmer,
468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527,
543 (1981).
The State of Connecticut provides an adequate remedy for the
kind of deprivation that the plaintiff alleges in Department of
Correction Administrative Directives and under Connecticut
statutes. Administrative Directive 9.6(16) & (F) provides that
the Department of Correction's “Lost Property Board shall
hear and determine any claim by an inmate in a correctional
facility who seeks compensation not exceeding ... ($3,500.00)
for lost or damaged personal property” and that an inmate
may pursue his property claim with the Connecticut Claims
Commissioner if the Board denies the claim completely or
in part. Claims for payment or refund of money by the state
may be presented to the Connecticut Claims Commission.
Conn. Gen. Stat. § 4-141 et seq. These state remedies are
not inadequate simply because an inmate anticipates a more
favorable remedy under the federal system or because it may
take a longer time under the state system before his case is
resolved. See Hudson, 468 U.S. at 535.
Garcia does not indicate that he has pursued his available
remedies through the Department of Correction's Lost
Property Board or the Office of the Claims Commissioner.
Thus, he has not alleged that the State of Connecticut's
procedures for processing property claims are inadequate.
See Riddick v. Semple, 731 F. App'x 11, 13 (2d Cir. 2018)
(affirming dismissal of inmate's deprivation of property
claim on the ground that the inmate had not alleged that
process provided by the State of Connecticut, including the
opportunity to seek relief through the Office of the Claims
Commissioner, was inadequate); Edwards v. Erfe, 588 F.
App'x 79, 80–81 (2d Cir. 2015) (same).
The allegation that Officer Valierre improperly confiscated
Garcia's Nintendo 3DS XL game console and games does not
state a violation of Garcia's due process rights. The Fourteenth
Amendment due process claim against Officer Valierre is
dismissed for failure to state a claim upon which relief may
be granted. See 28 U.S.C. § 1915A(b)(1).
3. Grievance Procedures
Garcia alleges that he filed multiple grievances and grievance
appeals at MacDougall-Walker regarding the incidents that
had occurred at Enfield in February and March 2016. Garcia
claims that Administrative Remedies Coordinators Bennett
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and Ortiz failed to respond to or properly process his
grievances or grievance appeals.
The Second Circuit has held that neither state directives
nor “state statutes ... create federally protected due
process entitlements to specific state-mandated procedures.”
Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003). Thus,
allegations that a prison official violated the procedures
set forth in a state's administrative remedy program that is
applicable to prisoner grievances do not state a claim of a
violation of an inmate's constitutional rights. See Swift v.
Tweddell, 582 F. Supp. 2d 437, 445–46 (W.D.N.Y. 2008)
(“It is well established [ ] that inmate grievances procedures
are undertaken voluntarily by the states, that they are not
constitutionally required, and accordingly that a failure to
process, investigate or respond to a prisoner's grievances does
not in itself give rise to a constitutional claim.”) (collecting
cases); Fernandez v. Armstrong, 2005 WL 733664, at *9
(D. Conn. Mar. 30, 2005) (“This district has previously held
that failure of a correctional official to comply with the
institutional grievance procedures [set forth in Administrative
Directive 9.6] is not cognizable in an action filed pursuant
to 42 U.S.C. § 1983, unless the action caused the denial of
a constitutionally or federally protected right.”). In addition,
“prisoners do not have a due process right to a thorough
investigation of grievances.” Tafari v. McCarthy, 714 F. Supp.
2d 317, 347 (N.D.N.Y. 2010) (citing Torres v. Mazzuca, 246
F. Supp. 2d 334, 341–42 (S.D.N.Y. 2003) (“The corrections
officers' failure to properly address [plaintiff's] grievances by
conducting a thorough investigation to his satisfaction does
not create a cause of action for denial of due process because
[plaintiff] was not deprived of a protected liberty interest.”)).
*16 To the extent that Garcia claims that Remedies
Coordinators Bennett and Ortiz did not respond to or ensure
that other correctional staff responded to his grievances and
appeals in a timely manner in accordance with Department
of Correction Administrative Directive 9.6, such a claim does
not rise to the level of a violation under the Fourteenth
Amendment. See Brown v. Graham, 470 F. App'x 11, 13
(2d Cir. 2012) (“Brown's argument that he has a federally-
protected liberty interest in the state's compliance with its own
prison grievance procedures is meritless.”). The Fourteenth
Amendment due process claim against Bennett and Ortiz is
dismissed. See 28 U.S.C. § 1915A(b)(1).
G. First Amendment Claims
Garcia alleges that on several occasions during late February
and early March 2016, he asked to make a telephone call
to his attorney or a legal services organization, but certain
defendants denied his requests. I construe those allegations
as a First Amendment claim of denial of access to the
courts. Garcia also asserts that Deputy Warden Rodriguez
engaged in retaliatory conduct in response to his complaints
about his placement on administrative detention for nine days
beginning on February 25, 2016. I construe those allegations
as supportive of a First Amendment retaliation claim.
1. Access to Courts
Garcia alleges that on February 25, 2016, after his placement
on administrative detention pending an investigation, he
asked Lieutenant Earley for permission to call his attorney or
the Inmates' Legal Aid Services in New Haven, Connecticut.
See Compl. at 14 ¶ 78. Later that day, Garcia asked Caption
Rios for permission to call his attorney or the Inmates' Legal
Aid Services. See id. at 17 ¶ 99. Neither Lieutenant Earley,
nor Captain Rios would permit Garcia to make a legal call on
February 25, 2016. See id. at 14 ¶ 78 & at 17 ¶ 99.
Garcia alleges that on March 2, 2016, Counselor Timbro
indicated that he would “look into” the issue of granting
Garcia permission to make a legal telephone call. See id.
at 25 ¶ 149. That afternoon, Counselor Supervisor Bowman
allegedly “vowed to look into” the issue of granting Garcia
permission to make a legal call. See id. ¶ 150. Garcia contends
that he did not hear back from either Counselor Timbro
or Counselor Supervisor Bowman at any time prior to his
transfer to MacDougall-Walker on March 4, 2016. See id. ¶¶
149–50.
It is well settled that inmates have a First Amendment right
of access to the courts. See Bounds v. Smith, 430 U.S. 817,
828 (1977) (modified on other grounds by Lewis v. Casey,
518 U.S. 343, 350 (1996)). To state a claim for denial of
access to the courts, the plaintiff is required to demonstrate
that he suffered an actual injury as a result of the conduct of
the defendants. See Lewis, 518 U.S. at 353. To establish an
actual injury, the plaintiff must allege facts showing that the
defendant took or was responsible for actions that hindered
his efforts to pursue a legal claim, prejudiced one of his
existing actions, or otherwise actually interfered with his
access to the courts. See Monsky v. Moraghan, 127 F.3d 243,
247 (2d Cir. 1997).
Garcia alleges that Lieutenant Earley and Captain Rios denied
his request to make a telephone call to his attorney or to a legal
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services organization on two occasions on one day during
his confinement on administrative detention. Garcia does not
indicate that he asked either official if he could make a legal
call on another occasion. With regard to Counselor Timbro
and Counselor Supervisor Bowman, Garcia claims that they
were both unsuccessful in facilitating his access to a legal
telephone call during the three days prior to his transfer out
of Enfield on March 4, 2016.
*17 Garcia does not allege that he could not communicate
with his attorney or the legal assistance organization in
writing during his confinement on administrative detention.
See Ahlers v. Townsend, 2014 WL 4365277, at *5 (N.D.N.Y.
Aug. 28, 2014) (“Here, Plaintiff does not allege that he was
denied the opportunity to communicate with his attorney
altogether, but rather that his ability to communicate was
sometimes delayed and intermittently denied. Conceivably,
Plaintiff could have met with his attorney via mail or in
person as well. As discussed above, his complaint is silent
with regard to these other forms of communication. Plaintiff
has thus not stated a First Amendment claim.”); Bellamy v.
McMickens, 692 F. Supp. 205, 214 (S.D.N.Y. 1988) (inmates
have no right to unlimited telephone calls and there is no
obligation to provide the “best manner of access to counsel”);
Pino v. Dalsheim, 558 F. Supp. 673, 67–75 (S.D.N.Y. 1983)
(finding that restrictions on telephone calls were permitted
because inmate had unlimited opportunities to communicate
with his attorney by written correspondence or personal visits,
even though attorney's office was located over 300 miles
from prison facility). Nor does he allege that his lack of
access to an attorney or legal assistance via telephone on
one day in February 2016 and on three days in March 2016
prejudiced a legal matter in any way. Accordingly, Garcia
does not meet the injury requirement set forth in Lewis. See
Palmer v. Semple, 2013 WL 6178530, at *3 (D. Conn. Nov.
21, 2013) (“Because plaintiff has failed to allege that he
suffered an actual injury as a result of defendants' conduct in
prohibiting him from making legal telephone calls in 2013,
his access to courts claim fails to meet the standard set
forth in Lewis .... [and is] dismissed pursuant to 28 U.S.C.
§ 1915A(b)(1).”). Garcia's claim regarding denial of access
to legal telephone calls as asserted against Lieutenant Earley,
Captain Rios, Counselor Timbro and Counselor Supervisor
Bowman is dismissed. See 28 U.S.C. § 1915A(b)(1).
2. Retaliation
When prison officials take adverse action against an
inmate, motivated by the inmate's exercise of a protected
constitutional right, a Section 1983 retaliation claim may
be sustained. See Friedl v. City of N.Y., 210 F.3d 79, 85
(2d Cir. 2000) (“In general, a section 1983 claim will
lie where the government takes negative action against an
individual because of his exercise of rights guaranteed by
the Constitution or federal laws.”). The Second Circuit
has observed, however, that retaliation claims asserted by
inmates “are easily fabricated” and “pose a substantial risk
of unwarranted judicial intrusion into matters of general
prison administration.” Dawes v. Walker, 239 F.3d 489, 491
(2d Cir. 2001), overruled on other grounds by Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002). Thus, courts must
“approach prisoner retaliation claims with skepticism and
particular care, because virtually any adverse action taken
against a prisoner by a prison official—even though otherwise
not rising to the level of a constitutional violation—can be
characterized as a constitutionally proscribed retaliatory act.”
Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (internal
quotation marks and citations omitted). To state a retaliation
claim, a plaintiff must show that his conduct or speech was
protected by the Constitution or federal law, prison officials
took adverse action against him and the protected conduct or
speech was a substantial or motivating factor in the alleged
retaliatory or adverse action by prison officials. See Gill v.
Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (citations and
internal quotation marks omitted).
Garcia alleges that on March 4, 2016, in retaliation for
his verbal complaints about being placed on administrative
detention pending an investigation as of February 25,
2016, Deputy Warden Rodriguez issued an order that he
be transferred to MacDougall-Walker and also instructed
Property Officer Valierre to confiscate his Nintendo 3DS XL
game console and games as contraband. See Compl. at 27–
28 ¶¶ 164–65. It is well-established that “the filing of prison
grievances is a constitutionally protected activity....” Davis,
320 F.3d at 352–53. Here, Garcia states that he asserted many
verbal complaints to Deputy Warden Rodriguez and others
regarding his improper placement on administrative detention
for nine days beginning on February 25, 2016. Although, not
all oral speech by an inmate constitutes protected activity,
some courts within the Second Circuit have determined that
oral complaints about the conduct of prison officials or
conditions of confinement may constitute protected speech
in the context of a First Amendment retaliation claim.
See McIntosh v. United States, 2016 WL 1274585, at *26
(S.D.N.Y. Mar. 31, 2016) (collecting cases).
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*18 As stated above, an inmate has no right to be housed
in a particular prison facility. See Meachum, 427 U.S. at 225
(no liberty interest arising from Due Process Clause itself
in transfer from low-to maximum-security prison because
“[c]onfinement in any of the State's institutions is within the
normal limits or range of custody which the conviction has
authorized the State to impose”); Jarecke, 552 F. Supp. 2d
at 265 (“Inmates have no constitutionally protected right to
be confined in any particular correctional facility or housing
unit.”). The Second Circuit has held, however, that the
transfer of an inmate to another prison facility in response
to that inmate's exercise of a protected right under the
Constitution constitutes the necessary adverse action to state
an actionable retaliation claim. See Smith v. Levine, 510
F. App'x 17, 21 (2d Cir. 2013) (“We had stated, at least
as early as 1998, that, while ‘[a] prisoner has no liberty
interest in remaining at a particular correctional facility,’
prison authorities ‘may not transfer an inmate in retaliation for
the exercise of constitutionally protected rights.’ ”) (quoting
Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998), and citing
Hendricks v. Coughlin, 114 F.3d 390, 393–94 (2d Cir. 1997);
Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987)). Garcia
contends that Warden Rodriguez threatened to transfer him
to another facility and then issued the order to have him
transferred to MacDougall-Walker in retaliation for his oral
complaints about his confinement on administrative detention
at Enfield.
In addition, courts within the Second Circuit have held that a
prison official's decision to confiscate or destroy an inmate's
property might rise to the level of adverse conduct. See
Deangelis v. Santiago, 2016 WL 4467888, at *4 (D. Conn.
Aug. 23, 2016) (“The plaintiff contends that in retaliation for
the grievances that he had submitted regarding tobacco use
by prison staff, Officer Lamotte was responsible for losing
or confiscating his Nintendo machine, games, headphones,
and clothing and issuing him a false disciplinary report for
possession of contraband. The court concludes that these
more detailed allegations state a plausible claim of retaliation
and will proceed.”); Marino v. Watts, 2014 WL 1794588,
at *6 (N.D.N.Y. May 6, 2014) (“A prison official's conduct
in confiscating, losing, or destroying an inmate's property
may constitute an adverse action for purposes of a retaliation
claim.”) (citing Mateo v. Bristow, 2013 WL 3863865, at
*5 (S.D.N.Y. July 16, 2013)) (“a plaintiff may prevail on a
retaliation claim by showing, inter alia, that prison officials
intentionally or deliberately lost or destroyed his property”)
(internal quotation marks and citation omitted). Garcia claims
that more than a year before his transfer to MacDougall-
Walker, prison officials at Enfield had authorized him to
possess a Nintendo 3DS XL game console and games, even
though another inmate had given the items to him as a
gift. Just before his transfer to MacDougall-Walker, however,
Deputy Warden directed the Property Officer to confiscate
those items as contraband.
I conclude that Garcia has plausibly alleged that his
oral complaints regarding his placement on administrative
detention constituted protected speech and Deputy Warden
Rodriguez retaliated against him for exercising that form of
speech by transferring him to MacDougall-Walker, a more
restrictive prison facility, and by directing Property Officer
Valierre to confiscate his Nintendo 3DS XL game console
and games, which had been previously approved as non-
contraband items, prior to his transfer. Those retaliation
claims will proceed against Deputy Warden Rodriguez.
H. State-Law Claim – Intentional Infliction of
Emotional Distress
In his description of legal claims, Garcia contends that the
defendants intended to inflict emotional distress upon him. He
does not otherwise mention that state-law claim.
In Connecticut, a claim of intentional infliction of emotional
distress requires a plaintiff to assert: “(1) that the actor
intended to inflict emotional distress or that he knew or should
have known that emotional distress was the likely result of his
conduct; (2) that the conduct was extreme and outrageous; (3)
that the defendant's conduct was the cause of the plaintiff's
distress; and (4) that the emotional distress sustained by
the plaintiff was severe.” Reyes v. City of Bridgeport, 152
Conn. App. 528, 543 n.13, (2014) (internal quotation marks
and citation omitted). The initial determination “[w]hether a
defendant's conduct is sufficient to satisfy the requirement
that it be extreme and outrageous is for the court.” Id. Conduct
is considered to be “outrageous in character” and “extreme
in degree” when it “exceeds all bounds usually tolerated by
decent society.” Id.
*19 Garcia does not articulate any facts to support a claim
of intentional infliction of emotional distress. I conclude
that none of the conduct described in the complaint rises
to the level of conduct that is sufficiently outrageous or
extreme to be considered “atrocious” or “utterly intolerable
in a civilized community.” Id. Accordingly, Garcia has not
stated a plausible state-law claim of intentional infliction of
emotional distress against the defendants. The claim that the
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defendants intended to inflict emotional distress upon Garcia
is dismissed. See 28 U.S.C. § 1915A(b)(1).
It is hereby ordered that:
(1) All claims against Trooper Stebbins and Commissioner
Semple, all claims against the remaining defendants for
violations of the Fifth and Eighth Amendments, the First
Amendment access to courts claim against Lieutenant
Earley, Captain Rios, Counselor Timbro and Counselor
Supervisor Bowman, the Fourteenth Amendment property
claim against Property Officer Valierre, the Fourteenth
Amendment grievance procedures claim against Remedies
Coordinators Bennett and Ortiz, the Fourteenth Amendment
due process claims related to Garcia's level increase,
placement in Administrative Detention, and transfer to
MacDougall-Walker against all defendants and the state-
law intentional infliction of emotional distress claim against
all defendants are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1). The First Amendment retaliation claims
will proceed against Deputy Warden Rodriguez, the Fourth
Amendment strip search claim will proceed Lieutenant
Earley, and the Fourteenth Amendment due process claim
related to Garcia's placement on high security status will
proceed against Warden Ford and Deputy Warden Rodriguez.
Thus, all claims against defendants Commissioner Semple,
District Administrator Quiros, Director of Classification
and Population Management Maiga, Counselor Supervisors
Vazquez, Weldon and Bowman, Counselor Timbro, Captains
Hunter and Rios, Lieutenants Kit, Lee, Montefusco and
Scarchilli, Intelligence Coordinator Rodriguez, Investigator
Gogglieb, Administrative Remedies Coordinators Bennett
and Ortiz, Property Officer Valierre, Correctional Officers
Atkins and Hazelett, Connecticut State Trooper Stebbins, and
K-9 Handler Jane Doe have been DISMISSED.
(2) Within twenty-one (21) days of this Order, the Clerk shall
prepare a summons form and send an official capacity service
packet to the U.S. Marshal's Service. The U.S. Marshals
Service shall serve the summons, a copy of the complaint
and this order on Warden Walter Ford, Deputy Warden Nick
Rodriguez and Lieutenant Earley in their official capacities
by delivering the necessary documents in person to the Office
of the Attorney General, 55 Elm Street, Hartford, CT 06141.
(3) Within twenty-one (21) days of this Order, the Clerk shall
prepare and mail a copy of the complaint, this order and
a waiver of service of process request packet each of the
following defendants in his or her individual capacities: to
Warden Walter Ford, Deputy Warden Nick Rodriguez and
Lieutenant Earley, at his or her current work. On the thirty-
fifth (35th) day after mailing, the Clerk shall report to the
court on the status of each request. If any defendant fails to
return the waiver request, the Clerk shall make arrangements
for in-person service by the U.S. Marshals Service and that
defendant shall be required to pay the costs of such service in
accordance with Federal Rule of Civil Procedure 4(d).
(4) Warden Ford, Deputy Warden Rodriguez and Lieutenant
Earley shall file their response to the complaint, either an
answer or motion to dismiss, within sixty (60) days from the
date the notice of lawsuit and waiver of service of summons
forms are mailed to them. If the defendants choose to file an
answer, they shall admit or deny the allegations and respond
to the cognizable claims recited above. They may also include
all additional defenses permitted by the Federal Rules.
*20 (5) Discovery, pursuant to Federal Rules of Civil
Procedure 26 through 37, shall be completed within six
months (180 days) from the date of this order. Discovery
requests need not be filed with the court.
(6) All motions for summary judgment shall be filed within
seven months (210 days) from the date of this order.
(7) If Garcia changes his address at any time during the
litigation of this case, Local Court Rule 83.1(c)2 provides that
Garcia MUST notify the court. Failure to do so can result
in the dismissal of the case. Garcia must give notice of a
new address even if he is incarcerated. Garcia should write
PLEASE NOTE MY NEW ADDRESS on the notice. It is
not enough to just put the new address on a letter without
indicating that it is a new address. If Garcia has more than
one pending case, he should indicate all of the case numbers
in the notification of change of address. Garcia should also
notify the defendants or the attorney for the defendants of his
new address.
(8) The Pro Se Prisoner Litigation Office shall send a courtesy
copy of the complaint and this order to the Connecticut
Attorney General and the Department of Correction Legal
Affairs Unit.
So ordered.
All Citations
Not Reported in Fed. Supp., 2019 WL 5597771
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Footnotes
1 In Miranda, the Supreme Court concluded that interrogation of individuals suspected of committing a crime
in certain custodial situations was inherently coercive. 384 U.S. at 457–58, 467, 469–70. The Court held
that statements made by an individual in those situations are not admissible unless, prior to making the
statements, law enforcement officials adequately and effectively informed the individual of his right to remain
silent and his right to an attorney and the individual freely decided to waive those rights. Id. at 478–79.
The Court stated that prior to questioning an individual during a custodial interrogation, law enforcement
officers must inform the individual that he or she “has a right to remain silent, that anything he [or she] says
can be used against him [or her] in a court of law, that he [or she] has the right to” have counsel present
during questioning, and that an attorney will be appointed to represent him prior to questioning if he or she
is “unable to afford an attorney.” Id. at 479. Miranda warnings therefore are “not themselves rights protected
by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination
[is] protected.” Michigan v. Tucker, 417 U.S. 433, 444 (1974).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 5191506
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bryant GIBBS, Plaintiff,
v.
Christopher GADWAY, Defendant.
9:19-CV-281 (GTS/DJS)
|
Signed 10/15/2019
Attorneys and Law Firms
BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points
Correctional Facility, Caller Box 119, Romulus, New York
14541.
HON. LETITIA JAMES, Attorney General of the State of
New York, OF COUNSEL: NICHOLAS L. ZAPP, ESQ.,
Assistant Attorney General, Attorney for Defendant, The
Capitol, Albany, New York 12224.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 Plaintiff, presently an inmate in the custody of the
New York State Department of Corrections and Community
Supervision (“DOCCS”), brings this pro se action pursuant to
42 U.S.C. § 1983, alleging the violation of his constitutional
rights. Dkt. No. 1, Compl. Following initial review of the
Complaint under 28 U.S.C. §§ 1915(e) and 1915A, all claims
other than an Eighth Amendment excessive force claim
against Defendant Gadway were dismissed. Dkt. No. 7. In
lieu of answering the Complaint, Defendant has moved for
summary judgment based on Plaintiff's alleged failure to
exhaust his administrative remedies. Dkt. No. 14. Plaintiff
opposes the Motion. Dkt. No. 17 (“Pl.'s Opp.”). Defendant has
filed a Reply. Dkt. No. 18. For the reasons which follow, the
Court recommends that the Motion for Summary Judgment
be granted.
I. BACKGROUND
Plaintiff alleges that he was assaulted by Defendant Gadway
in June 2016. Compl. at p. 2. That same month Plaintiff
filed an administrative grievance making this same allegation.
Dkt. No. 14-3, Declaration of Christine Gregory (“Gregory
Decl.”) at Ex. B. Given that the grievance concerned alleged
staff misconduct the grievance was forwarded directly to the
facility Superintendent. Gregory Decl. at ¶ 12. On July 16,
2016, the Superintendent responded to the grievance. Id. at
¶ 12 & Ex. C. Plaintiff alleges that he then appealed the
Superintendent's determination to DOCCS' Central Office
Review Committee. Pl.'s Opp. at pp. 4-5. DOCCS has no
record of any such appeal. Gregory Decl. at ¶ 15; Dkt. No.
14-4, Declaration of Rachael Seguin (“Seguin Decl.”), ¶ 9 &
Ex. A.
II. LEGAL STANDARD FOR
SUMMARY JUDGMENT
Pursuant to FED. R. CIV. P. 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. FED. R. CIV. P.
56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003) (“Conclusory allegations or denials are ordinarily not
sufficient to defeat a motion for summary judgment when
the moving party has set out a documentary case.”); Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.
1994). To that end, sworn statements are “more than mere
conclusory allegations subject to disregard ... they are specific
and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is
better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289
(citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
*2 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 Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.
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1998). “[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir. 1994). Furthermore, where a party is
proceeding pro se, the court must “read [his or her] supporting
papers liberally, and ... interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994); see also Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995). Nonetheless, summary judgment is
appropriate “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
III. DISCUSSION
Defendant seeks summary judgment on the ground that
Plaintiff failed to exhaust his available administrative
remedies by failing to appeal the facility-level denial of
his grievance. Dkt. No. 14-1, Def.'s Mem. of Law at pp.
6-7. Plaintiff counters that he attempted to exhaust his
administrative remedies and that, even if he did not, he should
be excused from the exhaustion requirement. Pl.'s Opp. at pp.
4-5.
A. Exhaustion Procedure
The Prison Litigation Reform Act (“PLRA”) provides, in
pertinent part, that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). The Supreme Court has held that “the PLRA's
exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002) (citation omitted). Exhaustion in prisoner cases
covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (stating that the mandatory
language of § 1997e(a) forecloses judicial discretion to craft
exceptions to the requirement). Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of
the administrative process and complying with “deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93 (2006). 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).
In New York, the administrative remedies consist of a three-
step Inmate Grievance Program (“IGP”). First, a grievance
is submitted to the Inmate Grievance Resolution Committee
(“IGRC”), a committee comprised of both inmates and
facility employees. N.Y. COMP. CODES R. & REGS.
tit. 7, § 701.5(b). An inmate must submit a grievance
“within 21 calendar days of the alleged occurrence.” Id.
at § 701.5(a). An inmate may request an extension of
the time limit within forty-five days of the date of the
alleged occurrence. Id. at § 701.6(g). The IGRC reviews and
investigates the formal complaint and then issues a written
determination. Id. at § 701.5(b). Second, upon appeal of the
IGRC decision, the superintendent of the facility reviews the
IGRC's determination and issues a decision. Id. at § 701.5(c).
Finally, upon appeal of the superintendent's decision, the
Central Office Review Committee (“CORC”) makes the final
administrative determination. Id. at § 701.5(d). Only upon
exhaustion of all three levels of review may a prisoner seek
relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp.
2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v.
Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d
116, 121 (2d Cir. 2001), overruled on other grounds by Porter
v. Nussle, 534 U.S. 516.
*3 An expedited procedure exists for grievances regarding
alleged harassment; this procedure also requires 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 then 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).
B. Plaintiff's Failure to Exhaust
Administrative Remedies
1. Whether Plaintiff Actually Filed a Grievance
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The record before the Court establishes that while DOCCS
has a record of Plaintiff's initial grievance, there is no record
of any appeal of the decision on that grievance to CORC.
Gregory Decl. at ¶ 15; Seguin Decl., ¶ 9 & Ex. A. “Included
within the IGP's exhaustion requirement is the prerequisite
that the inmate file an appeal with CORC and receive a
response from CORC prior to filing a federal lawsuit.” White
v. Drake, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011),
report and recommendation adopted, 2011 WL 4478921
(N.D.N.Y. Sept. 26, 2011); see also Berkley v. Ware, 2018
WL 3736791, at *5 (N.D.N.Y. July 6, 2018), report and
recommendation adopted, 2018 WL 3730173 (N.D.N.Y. Aug.
6, 2018) (citing cases).
Plaintiff makes a purely conclusory allegation that he
appealed the grievance denial to CORC. Pl.'s Opp. at p. 4
(“Plaintiff appealed to the CORC”). 1 Significantly, Plaintiff
has not provided a copy of the grievance appeal or even
asserted on what date he filed the appeal. Gough v. Morris,
2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018), report
and recommendation adopted, 2019 WL 416150 (N.D.N.Y.
Feb. 1, 2019) (“there is no evidence in Plaintiff's opposition,
or any other submission, of ... Plaintiff's alleged appeal to
CORC.”). 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. Toliver v.
Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016);
Richardson v. Eberth, 2016 WL 1271078, at *4 (W.D.N.Y.
Mar. 29, 2016).
Under these circumstances, the record before the Court
establishes that Plaintiff did not fully appeal his grievance
regarding the alleged assault by Gadway. He, therefore, did
not exhaust his administrative remedies.
2. Whether Plaintiff's Failure to Exhaust
Administrative Remedies May be Excused
A prisoner's failure to exhaust administrative remedies may
nonetheless be excused if remedies were unavailable to
the inmate. Ross v. Blake, 136 S. Ct. at 1858. As 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 1859-60.
*4 Plaintiff appears to make two arguments for finding that
administrative remedies were unavailable to him: the lack of
guidance in DOCCS' grievance procedure and alleged threats
made against him. Pl.'s Opp. at p. 5. Neither is sufficient to
defeat the pending Motion.
Plaintiff first claims that when he became aware that the
appeal he claims to have filed was never received by CORC
he looked to DOCCS's grievance procedure “for guidance on
what to do ... and found no guidance whatsoever on what the
next step would be.” Pl.'s Opp. at p. 5. Relying on Williams v.
Priatno, 829 F.3d 118 (2d Cir. 2016), he contends he should
be excused from the exhaustion requirement. See Pl.'s Opp.
at p. 3.
At the outset, this case presents a readily distinguishable fact
pattern from that which the Second Circuit was confronted
with in Williams. In that case, the District Court had dismissed
the complaint based on lack of exhaustion because Plaintiff
had not administratively appealed his grievance, even though
the grievance had never been officially filed by DOCCS
personnel at the correctional facility. Williams v. Priatno,
829 F.3d at 121. The Second Circuit reversed, finding that
DOCCS' grievance procedures “do not describe a mechanism
for appealing a grievance that was never filed.” Id. at 126.
On the contrary here, there is no dispute that Plaintiff filed
a grievance at the facility and that he received a response.
Gregory Decl., Exs. B & C. It is also clear that DOCCS
regulations specifically address what should have been done
in a situation such as this when an appeal has allegedly
been filed, but not responded to. Specifically, the applicable
regulation provides that “[i]f a grievant does not receive a
copy of the written notice of receipt within 45 days of filing
an appeal, the grievant should contact the IGP supervisor in
writing to confirm that the appeal was filed and transmitted
to CORC.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). This provision
provided specific guidance to Plaintiff on how to proceed
- when he did not receive notice that his appeal had been
received by CORC he should have contacted the facility
inmate grievance staff to verify that his appeal had been
received and processed. There is no evidence that Plaintiff did
so here and his failure cannot provide the basis for excusing
him from the exhaustion requirement. This is not a situation,
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as in Williams, where the procedure was “so opaque and
confusing” that the Plaintiff could have not understood how
to proceed. Williams v. Prianto, 829 F.3d at 126.
Finding Plaintiff's claims unexhausted is consistent with the
decision in Gizewski v. New York State Dep't of Corr. and
Cmty. Supervision which found that an inmate's claim is not
exhausted if he fails to avail himself of the procedure in
section 701.5(d)(3)(i). 2016 WL 3661434, at *13 (N.D.N.Y.
July 5, 2016). In Gizewski, the record established that the
plaintiff had filed an administrative appeal, but DOCCS
personnel had failed to timely forward it to CORC. Id. at
*3. Plaintiff then filed his federal lawsuit before receiving
a decision on the appeal from CORC. Id. at *13. The
Court acknowledged DOCCS' failure to properly process the
appeal, but nonetheless granted judgment to defendants in
part because “Plaintiff [wa]s also at fault for not taking any
further action” pursuant to section 701.5. Id. Plaintiff here
has a less compelling case than in Gizewski since there is no
admissible evidence that he ever, in fact, filed an appeal to
CORC.
*5 Plaintiff also claims that he was threatened and retaliated
against by Defendant. Pl.'s Opp. at p. 5. Under Ross,
threats or other intimidation by prison employees may render
administrative remedies unavailable. Ross v. Blake, 136 S.
Ct. at 1860, n.3. Plaintiff's allegations are entirely conclusory,
however. Plaintiff's Complaint claimed he was threatened
only after filing the grievance, Compl. at p. 1, and he makes
no claim that this alleged threat impacted his ability to appeal
the grievance. McGinnis v. Crissell, 2019 WL 4395410, at
*6 (N.D.N.Y. Apr. 26, 2019), report and recommendation
adopted, 2019 WL 3228867 (N.D.N.Y. July 18, 2019) (citing
cases). There is no specific allegation made by Plaintiff
at all that any retaliatory action was ever taken against
him as a result of filing the grievance. Such “general and
conclusory statements that he was threatened are insufficient
to raise a triable issue of fact as to the unavailability of
the grievance procedure because of intimidation by prison
administrators.” Lewis v. Wasielewski, 2018 WL 4732755, at
*6 (W.D.N.Y. July 10, 2018), report and recommendation
adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018) (citing
cases). Plaintiff's conclusory claims, therefore, are no basis
for denying summary judgment.
To the extent Plaintiff attempts to argue that his grievance
appeal may have been tampered with, Pl.'s Opp. at p. 5 (“Once
[inmate mail] is picked up plaintiff no longer has any control
over what happens to that piece of mail.”), his conclusory
allegation in this regard is not sufficient to defeat summary
judgment. “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); see also
Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y.
May 9, 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, n.13 (N.D.N.Y. Sept.
12, 2016) (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.”).
Accordingly, the Court finds that Plaintiff has not established
an issue of material fact as to the availability of administrative
remedies. The Court therefore recommends that Defendants'
Motion be granted based upon Plaintiff's failure to exhaust.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendant's Motion for Summary
Judgment (Dkt. No. 14) be GRANTED; and it is further
RECOMMENDED, that the Complaint be DISMISSED;
and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
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All Citations
Not Reported in Fed. Supp., 2019 WL 5191506
Footnotes
1 Plaintiff did not submit a sworn statement attesting to the fact that he filed an appeal. Nor did he file a response
to Defendant's Statement of Material Facts. Although a pro se litigant is entitled to a liberal construction of
his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve
him of his obligation to comply with the relevant procedural rules, see Marino v. Watts, 2018 WL 3121612,
at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL
1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed. Appx. 73 (2d Cir. 2019). The Court therefore will deem
the facts as set forth in Defendant's Statement of Material Facts admitted, to the extent they are properly
supported by the record.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2020)
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2020 WL 1227156
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bryant GIBBS, Plaintiff,
v.
Christopher L. GADWAY, Corr.
Officer, Clinton Corr. Fac., Defendant.
9:19-CV-0281 (GTS/DJS)
|
Signed 03/13/2020
Attorneys and Law Firms
BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points
Correctional Facility, Caller Box 119, Romulus, New York
14541.
HON. LETITIA A. JAMES, Attorney General for the State
of New York, OF COUNSEL: NICHOLAS LUKE ZAPP,
ESQ., Assistant Attorney General, Counsel for Defendant,
The Capitol, Albany, New York 12224.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se prisoner
civil rights action filed by Bryant Gibbs (“Plaintiff”)
against Christopher L. Gadway, a corrections officer
at Clinton Correctional Facility (“Defendant”), are (1)
United States Magistrate Judge Daniel J. Stewart's Report-
Recommendation recommending that Defendant's motion for
summary judgment be granted, and (2) Plaintiff's Objection
thereto. (Dkt. Nos. 19, 22.) For the reasons set forth below,
the Report-Recommendation is accepted and adopted in its
entirety, and Defendant's motion is granted.
As a threshold matter, the Court finds that Plaintiff's Objection
is untimely. Although the Objection is undated (Dkt. No.
22, at 20), its envelope is post-marked November 5, 2019
(Dkt. No. 22, Attach. 1, at 1). Even if the Court were to
assume that Plaintiff handed the envelope to correctional
officer for mailing before November 5, 2019, he could not
have done so before November 2, 2019, which is the date on
which he had an enclosed affidavit and affirmative of service
notarized (Dkt. No. 22, at 24, 26). The deadline for Plaintiff's
Objection to the Report-Recommendation (which was mailed
to him on October 15, 2019), was November 1, 2019. 1 As
a result, no timely Objection has been filed to the Report-
Recommendation; and the Objection is thus entitled to merely
a clear-error review, 2 which the Court finds it easily satisfies
for the cogent reasons stated therein (see generally Dkt. No.
19).
In any event, even if the Court were to accept Plaintiff's
untimely Objection, the Court would still accept and adopt the
Report-Recommendation. The thrust of Plaintiff's Objection
is an attempt to adduce evidence (specifically, sworn
testimony and a letter) showing that he had submitted to
the Central Office Review Committee (or “CORC”) a timely
appeal from the superintendent's denial of his grievance.
(See, e.g., Dkt. No. 22, at 21-24 [containing Plf.’s Affidavit];
Dkt. No. 22, at 25 [containing a letter from Plaintiff to
CORC]; Dkt. No. 22, at 1-20 [containing Plf.’s verified
Objections].) However, none of this evidence was submitted
to Magistrate Judge Stewart. (Compare id. with Dkt. No. 17
[Plf.’s Response to Def.’s Motion for Summary Judgment].)
This failure is inexcusable given the specific notice that
Plaintiff was twice given of the consequences of evidentiary
deficiencies in his response to Defendant's motion. (Dkt. No.
14, at 3; Dkt. No. 15.) A district court may, and ordinarily
does, refuse to consider evidentiary material that could have
been, but was not, presented to the magistrate judge in the first
instance. 3 Although Plaintiff asserts that “[i]t wasn't until
recently that [he] ... found a copy of the ... letter that he ...
[had] written to the Central Office Review Committee” (Dkt.
No. 22, at 14), he makes no showing that his failure to
discover the letter sooner occurred despite his exercise of
due diligence. Moreover, he does not even attempt to excuse
his failure to submit his sworn testimony to Magistrate
Judge Stewart. Under the circumstances, the Court finds
that considering Plaintiff's late-blossoming evidence would
frustrate the purpose of the Federal Magistrates Act of 1968.
*2 Finally, even if the Court were to consider this late-
blossoming evidence, the Court would be forced to reject it.
Ordinarily, of course, a district court may not make credibility
determinations on a motion for summary judgment. However,
that general rule contains an exception: where, as here,
the non-movant has adduced evidence that is so internally
contradictory that no reasonable juror would undertake the
suspension of disbelief necessary to credit the non-movant's
allegations. See Jeffreys v. City of New York, 426 F.3d 549,
554-55 (2d Cir. 2005) (setting forth applicable standard
for when to disregard testimony on motion for summary
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judgment). In such a circumstance, the district court must
make a credibility determination because the very act of
considering the portion of evidence that would create a
genuine dispute of material fact would constitute a rejection
of the contradictory evidence as not credible. Here, the
facts are analogous to the extreme facts present in Jeffreys.
Plaintiff has adduced evidence that purports to show both
(1) that immediately after the superintendent's denial of his
grievance on July 16, 2016, Plaintiff filed an appeal with
CORC (Dkt. No. 22, at 3, 22), and (2) “over two months”
before July 16, 2016, Plaintiff filed his appeal with CORC,
then (approximately a month later) sent a letter complaining
about its non-response to his appeal, and then (on July 16,
2016) sent a second such letter (Dkt. No. 22, at 25). It is
undisputed that Plaintiff filed his grievance on June 13, 2016.
(Dkt. No. 14, Attach. 2, at ¶ 17.) It is also undisputed that the
superintendent denied that grievance on July 16, 2016. (Id.
at ¶ 19.) It is simply impossible that Plaintiff appealed that
denial two months before July 16, 2016 (or on or about May
16, 2016).
For each of these three alternative reasons, the Court rejects
Plaintiff's Objection and accepts and adopts Magistrate Judge
Stewart's Report-Recommendation.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart's Report-
Recommendation (Dkt. No. 19) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 14) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1227156
Footnotes
1 Under the applicable rules, the time period for the filing of an Objection is fourteen (14) calendar days from
the date of filing of the Report-Recommendation (unless the fourteenth day is a Saturday, Sunday, or legal
holiday, in which case the period continues to run until then end of the next day that is not a Saturday, Sunday,
or legal holiday), plus three (3) calendar days if the Report-Recommendation was served on the objecting
party by mail. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a)
(1)(C); Fed. R. Civ. P. 6(d).
2 “When no timely objection [to a recommendation] is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition. When performing such a “clear error” review, the court is permitted to
adopt the sections reviewed “so long as those sections are not facially erroneous.” See Batista v. Walker, 94-
CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those
sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections
are not facially erroneous.”).
3 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's
report before the district court, a party has no right to present further testimony when it offers no justification
for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations
omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding
that district court did not abuse its discretion in denying plaintiff's request to present additional testimony
where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”);
cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings
would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in
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the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’
does not indicate that a secondary evidentiary hearing is required.”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2019)
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2019 WL 5191506
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bryant GIBBS, Plaintiff,
v.
Christopher GADWAY, Defendant.
9:19-CV-281 (GTS/DJS)
|
Signed 10/15/2019
Attorneys and Law Firms
BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points
Correctional Facility, Caller Box 119, Romulus, New York
14541.
HON. LETITIA JAMES, Attorney General of the State of
New York, OF COUNSEL: NICHOLAS L. ZAPP, ESQ.,
Assistant Attorney General, Attorney for Defendant, The
Capitol, Albany, New York 12224.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 Plaintiff, presently an inmate in the custody of the
New York State Department of Corrections and Community
Supervision (“DOCCS”), brings this pro se action pursuant to
42 U.S.C. § 1983, alleging the violation of his constitutional
rights. Dkt. No. 1, Compl. Following initial review of the
Complaint under 28 U.S.C. §§ 1915(e) and 1915A, all claims
other than an Eighth Amendment excessive force claim
against Defendant Gadway were dismissed. Dkt. No. 7. In
lieu of answering the Complaint, Defendant has moved for
summary judgment based on Plaintiff's alleged failure to
exhaust his administrative remedies. Dkt. No. 14. Plaintiff
opposes the Motion. Dkt. No. 17 (“Pl.'s Opp.”). Defendant has
filed a Reply. Dkt. No. 18. For the reasons which follow, the
Court recommends that the Motion for Summary Judgment
be granted.
I. BACKGROUND
Plaintiff alleges that he was assaulted by Defendant Gadway
in June 2016. Compl. at p. 2. That same month Plaintiff
filed an administrative grievance making this same allegation.
Dkt. No. 14-3, Declaration of Christine Gregory (“Gregory
Decl.”) at Ex. B. Given that the grievance concerned alleged
staff misconduct the grievance was forwarded directly to the
facility Superintendent. Gregory Decl. at ¶ 12. On July 16,
2016, the Superintendent responded to the grievance. Id. at
¶ 12 & Ex. C. Plaintiff alleges that he then appealed the
Superintendent's determination to DOCCS' Central Office
Review Committee. Pl.'s Opp. at pp. 4-5. DOCCS has no
record of any such appeal. Gregory Decl. at ¶ 15; Dkt. No.
14-4, Declaration of Rachael Seguin (“Seguin Decl.”), ¶ 9 &
Ex. A.
II. LEGAL STANDARD FOR
SUMMARY JUDGMENT
Pursuant to FED. R. CIV. P. 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. FED. R. CIV. P.
56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003) (“Conclusory allegations or denials are ordinarily not
sufficient to defeat a motion for summary judgment when
the moving party has set out a documentary case.”); Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.
1994). To that end, sworn statements are “more than mere
conclusory allegations subject to disregard ... they are specific
and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is
better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289
(citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
*2 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 Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.
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1998). “[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir. 1994). Furthermore, where a party is
proceeding pro se, the court must “read [his or her] supporting
papers liberally, and ... interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994); see also Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995). Nonetheless, summary judgment is
appropriate “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
III. DISCUSSION
Defendant seeks summary judgment on the ground that
Plaintiff failed to exhaust his available administrative
remedies by failing to appeal the facility-level denial of
his grievance. Dkt. No. 14-1, Def.'s Mem. of Law at pp.
6-7. Plaintiff counters that he attempted to exhaust his
administrative remedies and that, even if he did not, he should
be excused from the exhaustion requirement. Pl.'s Opp. at pp.
4-5.
A. Exhaustion Procedure
The Prison Litigation Reform Act (“PLRA”) provides, in
pertinent part, that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). The Supreme Court has held that “the PLRA's
exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002) (citation omitted). Exhaustion in prisoner cases
covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (stating that the mandatory
language of § 1997e(a) forecloses judicial discretion to craft
exceptions to the requirement). Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of
the administrative process and complying with “deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93 (2006). 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).
In New York, the administrative remedies consist of a three-
step Inmate Grievance Program (“IGP”). First, a grievance
is submitted to the Inmate Grievance Resolution Committee
(“IGRC”), a committee comprised of both inmates and
facility employees. N.Y. COMP. CODES R. & REGS.
tit. 7, § 701.5(b). An inmate must submit a grievance
“within 21 calendar days of the alleged occurrence.” Id.
at § 701.5(a). An inmate may request an extension of
the time limit within forty-five days of the date of the
alleged occurrence. Id. at § 701.6(g). The IGRC reviews and
investigates the formal complaint and then issues a written
determination. Id. at § 701.5(b). Second, upon appeal of the
IGRC decision, the superintendent of the facility reviews the
IGRC's determination and issues a decision. Id. at § 701.5(c).
Finally, upon appeal of the superintendent's decision, the
Central Office Review Committee (“CORC”) makes the final
administrative determination. Id. at § 701.5(d). Only upon
exhaustion of all three levels of review may a prisoner seek
relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp.
2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v.
Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d
116, 121 (2d Cir. 2001), overruled on other grounds by Porter
v. Nussle, 534 U.S. 516.
*3 An expedited procedure exists for grievances regarding
alleged harassment; this procedure also requires 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 then 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).
B. Plaintiff's Failure to Exhaust
Administrative Remedies
1. Whether Plaintiff Actually Filed a Grievance
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The record before the Court establishes that while DOCCS
has a record of Plaintiff's initial grievance, there is no record
of any appeal of the decision on that grievance to CORC.
Gregory Decl. at ¶ 15; Seguin Decl., ¶ 9 & Ex. A. “Included
within the IGP's exhaustion requirement is the prerequisite
that the inmate file an appeal with CORC and receive a
response from CORC prior to filing a federal lawsuit.” White
v. Drake, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011),
report and recommendation adopted, 2011 WL 4478921
(N.D.N.Y. Sept. 26, 2011); see also Berkley v. Ware, 2018
WL 3736791, at *5 (N.D.N.Y. July 6, 2018), report and
recommendation adopted, 2018 WL 3730173 (N.D.N.Y. Aug.
6, 2018) (citing cases).
Plaintiff makes a purely conclusory allegation that he
appealed the grievance denial to CORC. Pl.'s Opp. at p. 4
(“Plaintiff appealed to the CORC”). 1 Significantly, Plaintiff
has not provided a copy of the grievance appeal or even
asserted on what date he filed the appeal. Gough v. Morris,
2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018), report
and recommendation adopted, 2019 WL 416150 (N.D.N.Y.
Feb. 1, 2019) (“there is no evidence in Plaintiff's opposition,
or any other submission, of ... Plaintiff's alleged appeal to
CORC.”). 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. Toliver v.
Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016);
Richardson v. Eberth, 2016 WL 1271078, at *4 (W.D.N.Y.
Mar. 29, 2016).
Under these circumstances, the record before the Court
establishes that Plaintiff did not fully appeal his grievance
regarding the alleged assault by Gadway. He, therefore, did
not exhaust his administrative remedies.
2. Whether Plaintiff's Failure to Exhaust
Administrative Remedies May be Excused
A prisoner's failure to exhaust administrative remedies may
nonetheless be excused if remedies were unavailable to
the inmate. Ross v. Blake, 136 S. Ct. at 1858. As 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 1859-60.
*4 Plaintiff appears to make two arguments for finding that
administrative remedies were unavailable to him: the lack of
guidance in DOCCS' grievance procedure and alleged threats
made against him. Pl.'s Opp. at p. 5. Neither is sufficient to
defeat the pending Motion.
Plaintiff first claims that when he became aware that the
appeal he claims to have filed was never received by CORC
he looked to DOCCS's grievance procedure “for guidance on
what to do ... and found no guidance whatsoever on what the
next step would be.” Pl.'s Opp. at p. 5. Relying on Williams v.
Priatno, 829 F.3d 118 (2d Cir. 2016), he contends he should
be excused from the exhaustion requirement. See Pl.'s Opp.
at p. 3.
At the outset, this case presents a readily distinguishable fact
pattern from that which the Second Circuit was confronted
with in Williams. In that case, the District Court had dismissed
the complaint based on lack of exhaustion because Plaintiff
had not administratively appealed his grievance, even though
the grievance had never been officially filed by DOCCS
personnel at the correctional facility. Williams v. Priatno,
829 F.3d at 121. The Second Circuit reversed, finding that
DOCCS' grievance procedures “do not describe a mechanism
for appealing a grievance that was never filed.” Id. at 126.
On the contrary here, there is no dispute that Plaintiff filed
a grievance at the facility and that he received a response.
Gregory Decl., Exs. B & C. It is also clear that DOCCS
regulations specifically address what should have been done
in a situation such as this when an appeal has allegedly
been filed, but not responded to. Specifically, the applicable
regulation provides that “[i]f a grievant does not receive a
copy of the written notice of receipt within 45 days of filing
an appeal, the grievant should contact the IGP supervisor in
writing to confirm that the appeal was filed and transmitted
to CORC.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). This provision
provided specific guidance to Plaintiff on how to proceed
- when he did not receive notice that his appeal had been
received by CORC he should have contacted the facility
inmate grievance staff to verify that his appeal had been
received and processed. There is no evidence that Plaintiff did
so here and his failure cannot provide the basis for excusing
him from the exhaustion requirement. This is not a situation,
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as in Williams, where the procedure was “so opaque and
confusing” that the Plaintiff could have not understood how
to proceed. Williams v. Prianto, 829 F.3d at 126.
Finding Plaintiff's claims unexhausted is consistent with the
decision in Gizewski v. New York State Dep't of Corr. and
Cmty. Supervision which found that an inmate's claim is not
exhausted if he fails to avail himself of the procedure in
section 701.5(d)(3)(i). 2016 WL 3661434, at *13 (N.D.N.Y.
July 5, 2016). In Gizewski, the record established that the
plaintiff had filed an administrative appeal, but DOCCS
personnel had failed to timely forward it to CORC. Id. at
*3. Plaintiff then filed his federal lawsuit before receiving
a decision on the appeal from CORC. Id. at *13. The
Court acknowledged DOCCS' failure to properly process the
appeal, but nonetheless granted judgment to defendants in
part because “Plaintiff [wa]s also at fault for not taking any
further action” pursuant to section 701.5. Id. Plaintiff here
has a less compelling case than in Gizewski since there is no
admissible evidence that he ever, in fact, filed an appeal to
CORC.
*5 Plaintiff also claims that he was threatened and retaliated
against by Defendant. Pl.'s Opp. at p. 5. Under Ross,
threats or other intimidation by prison employees may render
administrative remedies unavailable. Ross v. Blake, 136 S.
Ct. at 1860, n.3. Plaintiff's allegations are entirely conclusory,
however. Plaintiff's Complaint claimed he was threatened
only after filing the grievance, Compl. at p. 1, and he makes
no claim that this alleged threat impacted his ability to appeal
the grievance. McGinnis v. Crissell, 2019 WL 4395410, at
*6 (N.D.N.Y. Apr. 26, 2019), report and recommendation
adopted, 2019 WL 3228867 (N.D.N.Y. July 18, 2019) (citing
cases). There is no specific allegation made by Plaintiff
at all that any retaliatory action was ever taken against
him as a result of filing the grievance. Such “general and
conclusory statements that he was threatened are insufficient
to raise a triable issue of fact as to the unavailability of
the grievance procedure because of intimidation by prison
administrators.” Lewis v. Wasielewski, 2018 WL 4732755, at
*6 (W.D.N.Y. July 10, 2018), report and recommendation
adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018) (citing
cases). Plaintiff's conclusory claims, therefore, are no basis
for denying summary judgment.
To the extent Plaintiff attempts to argue that his grievance
appeal may have been tampered with, Pl.'s Opp. at p. 5 (“Once
[inmate mail] is picked up plaintiff no longer has any control
over what happens to that piece of mail.”), his conclusory
allegation in this regard is not sufficient to defeat summary
judgment. “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); see also
Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y.
May 9, 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, n.13 (N.D.N.Y. Sept.
12, 2016) (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.”).
Accordingly, the Court finds that Plaintiff has not established
an issue of material fact as to the availability of administrative
remedies. The Court therefore recommends that Defendants'
Motion be granted based upon Plaintiff's failure to exhaust.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendant's Motion for Summary
Judgment (Dkt. No. 14) be GRANTED; and it is further
RECOMMENDED, that the Complaint be DISMISSED;
and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
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All Citations
Not Reported in Fed. Supp., 2019 WL 5191506
Footnotes
1 Plaintiff did not submit a sworn statement attesting to the fact that he filed an appeal. Nor did he file a response
to Defendant's Statement of Material Facts. Although a pro se litigant is entitled to a liberal construction of
his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve
him of his obligation to comply with the relevant procedural rules, see Marino v. Watts, 2018 WL 3121612,
at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL
1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed. Appx. 73 (2d Cir. 2019). The Court therefore will deem
the facts as set forth in Defendant's Statement of Material Facts admitted, to the extent they are properly
supported by the record.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 1227156
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bryant GIBBS, Plaintiff,
v.
Christopher L. GADWAY, Corr.
Officer, Clinton Corr. Fac., Defendant.
9:19-CV-0281 (GTS/DJS)
|
Signed 03/13/2020
Attorneys and Law Firms
BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points
Correctional Facility, Caller Box 119, Romulus, New York
14541.
HON. LETITIA A. JAMES, Attorney General for the State
of New York, OF COUNSEL: NICHOLAS LUKE ZAPP,
ESQ., Assistant Attorney General, Counsel for Defendant,
The Capitol, Albany, New York 12224.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se prisoner
civil rights action filed by Bryant Gibbs (“Plaintiff”)
against Christopher L. Gadway, a corrections officer
at Clinton Correctional Facility (“Defendant”), are (1)
United States Magistrate Judge Daniel J. Stewart's Report-
Recommendation recommending that Defendant's motion for
summary judgment be granted, and (2) Plaintiff's Objection
thereto. (Dkt. Nos. 19, 22.) For the reasons set forth below,
the Report-Recommendation is accepted and adopted in its
entirety, and Defendant's motion is granted.
As a threshold matter, the Court finds that Plaintiff's Objection
is untimely. Although the Objection is undated (Dkt. No.
22, at 20), its envelope is post-marked November 5, 2019
(Dkt. No. 22, Attach. 1, at 1). Even if the Court were to
assume that Plaintiff handed the envelope to correctional
officer for mailing before November 5, 2019, he could not
have done so before November 2, 2019, which is the date on
which he had an enclosed affidavit and affirmative of service
notarized (Dkt. No. 22, at 24, 26). The deadline for Plaintiff's
Objection to the Report-Recommendation (which was mailed
to him on October 15, 2019), was November 1, 2019. 1 As
a result, no timely Objection has been filed to the Report-
Recommendation; and the Objection is thus entitled to merely
a clear-error review, 2 which the Court finds it easily satisfies
for the cogent reasons stated therein (see generally Dkt. No.
19).
In any event, even if the Court were to accept Plaintiff's
untimely Objection, the Court would still accept and adopt the
Report-Recommendation. The thrust of Plaintiff's Objection
is an attempt to adduce evidence (specifically, sworn
testimony and a letter) showing that he had submitted to
the Central Office Review Committee (or “CORC”) a timely
appeal from the superintendent's denial of his grievance.
(See, e.g., Dkt. No. 22, at 21-24 [containing Plf.’s Affidavit];
Dkt. No. 22, at 25 [containing a letter from Plaintiff to
CORC]; Dkt. No. 22, at 1-20 [containing Plf.’s verified
Objections].) However, none of this evidence was submitted
to Magistrate Judge Stewart. (Compare id. with Dkt. No. 17
[Plf.’s Response to Def.’s Motion for Summary Judgment].)
This failure is inexcusable given the specific notice that
Plaintiff was twice given of the consequences of evidentiary
deficiencies in his response to Defendant's motion. (Dkt. No.
14, at 3; Dkt. No. 15.) A district court may, and ordinarily
does, refuse to consider evidentiary material that could have
been, but was not, presented to the magistrate judge in the first
instance. 3 Although Plaintiff asserts that “[i]t wasn't until
recently that [he] ... found a copy of the ... letter that he ...
[had] written to the Central Office Review Committee” (Dkt.
No. 22, at 14), he makes no showing that his failure to
discover the letter sooner occurred despite his exercise of
due diligence. Moreover, he does not even attempt to excuse
his failure to submit his sworn testimony to Magistrate
Judge Stewart. Under the circumstances, the Court finds
that considering Plaintiff's late-blossoming evidence would
frustrate the purpose of the Federal Magistrates Act of 1968.
*2 Finally, even if the Court were to consider this late-
blossoming evidence, the Court would be forced to reject it.
Ordinarily, of course, a district court may not make credibility
determinations on a motion for summary judgment. However,
that general rule contains an exception: where, as here,
the non-movant has adduced evidence that is so internally
contradictory that no reasonable juror would undertake the
suspension of disbelief necessary to credit the non-movant's
allegations. See Jeffreys v. City of New York, 426 F.3d 549,
554-55 (2d Cir. 2005) (setting forth applicable standard
for when to disregard testimony on motion for summary
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judgment). In such a circumstance, the district court must
make a credibility determination because the very act of
considering the portion of evidence that would create a
genuine dispute of material fact would constitute a rejection
of the contradictory evidence as not credible. Here, the
facts are analogous to the extreme facts present in Jeffreys.
Plaintiff has adduced evidence that purports to show both
(1) that immediately after the superintendent's denial of his
grievance on July 16, 2016, Plaintiff filed an appeal with
CORC (Dkt. No. 22, at 3, 22), and (2) “over two months”
before July 16, 2016, Plaintiff filed his appeal with CORC,
then (approximately a month later) sent a letter complaining
about its non-response to his appeal, and then (on July 16,
2016) sent a second such letter (Dkt. No. 22, at 25). It is
undisputed that Plaintiff filed his grievance on June 13, 2016.
(Dkt. No. 14, Attach. 2, at ¶ 17.) It is also undisputed that the
superintendent denied that grievance on July 16, 2016. (Id.
at ¶ 19.) It is simply impossible that Plaintiff appealed that
denial two months before July 16, 2016 (or on or about May
16, 2016).
For each of these three alternative reasons, the Court rejects
Plaintiff's Objection and accepts and adopts Magistrate Judge
Stewart's Report-Recommendation.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart's Report-
Recommendation (Dkt. No. 19) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 14) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1227156
Footnotes
1 Under the applicable rules, the time period for the filing of an Objection is fourteen (14) calendar days from
the date of filing of the Report-Recommendation (unless the fourteenth day is a Saturday, Sunday, or legal
holiday, in which case the period continues to run until then end of the next day that is not a Saturday, Sunday,
or legal holiday), plus three (3) calendar days if the Report-Recommendation was served on the objecting
party by mail. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a)
(1)(C); Fed. R. Civ. P. 6(d).
2 “When no timely objection [to a recommendation] is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition. When performing such a “clear error” review, the court is permitted to
adopt the sections reviewed “so long as those sections are not facially erroneous.” See Batista v. Walker, 94-
CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those
sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections
are not facially erroneous.”).
3 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's
report before the district court, a party has no right to present further testimony when it offers no justification
for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations
omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding
that district court did not abuse its discretion in denying plaintiff's request to present additional testimony
where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”);
cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings
would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in
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the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’
does not indicate that a secondary evidentiary hearing is required.”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Gough v. Morris, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 7199494
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Lamont GOUGH, Plaintiff,
v.
Sergeant MORRIS, Sergeant Davidson, John Doe
Correctional Officer 1, John Doe Correctional Officer
2, and John Doe Correctional Officer 3, Defendants.
9:16-CV-1107 (GTS/DJS)
|
Signed 12/14/2018
Attorneys and Law Firms
LAMONT GOUGH, Plaintiff, Pro Se, 13-A-0134, Coxsackie
Correctional Facility, Box 999, Coxsackie, New York
12051-099.
BARBARA D. UNDERWOOD, Attorney General of the
State of New York, OF COUNSEL: WILLIAM A. SCOTT,
ESQ., The Capitol, Albany, New York 12224, Attorney for
Defendants.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 On September 9, 2016, pro se Plaintiff Lamont Gough
commenced this action pursuant to 42 U.S.C. § 1983,
asserting claims arising from his confinement at Coxsackie
Correctional Facility (“Coxsackie C.F.”). Dkt. No. 1, Compl.
Plaintiff has named two Defendants, Sergeant Davidson
and Sergeant Morris, and three John Doe Defendants
who are purported to be officers at Coxsackie C.F.
Following initial review by the District Court, Plaintiff's
First Amendment retaliation claim against Defendant Morris,
Eighth Amendment excessive force claim against Defendant
Morris, and Eighth Amendment failure to intervene claim
against Defendant Davidson and the three John Does survive.
Dkt. No. 9. Specifically, Plaintiff contends that in retaliation
for filing a grievance, he was assaulted by Defendant Morris
while Defendant Davidson witnessed and did not intervene.
Compl.
Presently before this Court is the Motion for Summary
Judgment of Defendants Davidson and Morris, which
Plaintiff opposes and to which Defendants have filed a
reply. Dkt. No. 47, Defs.' Mot. Summ. J.; Dkt. No. 49,
Pl.'s Opp.; Dkt. No. 50, Defs.' Reply. Defendants contend
that Plaintiff failed to exhaust his administrative remedies,
and that his Complaint should therefore be dismissed. Dkt.
No. 47-13, Def.'s Mem. of Law. The Court finds that
Defendants have established that Plaintiff failed to exhaust
his administrative remedies and therefore recommends that
the Motion be granted. In addition, as discussed below, the
Court recommends that Plaintiff's claims against the still
unidentified Defendants be dismissed sua sponte.
I. LEGAL 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. FED. R. CIV.
P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d
Cir. 2003) (“Conclusory allegations or denials are ordinarily
not sufficient to defeat a motion for summary judgment when
the moving party has set out a documentary case.”); Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.
1994). To that end, sworn statements are “more than mere
conclusory allegations subject to disregard ... they are specific
and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is
better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289
(citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ).
*2 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 Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.
1998). “[T]he trial court's task at the summary judgment
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motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir. 1994). Furthermore, where a party
is proceeding pro se, the court must “read his supporting
papers liberally, and [ ] interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994); accord, Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995). Nonetheless, summary judgment is
appropriate “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
II. EXHAUSTION
A. Exhaustion Procedure
The Prison Litigation Reform Act (“PLRA”) provides, in
pertinent part, that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). The Supreme Court has held that “the PLRA's
exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002) (citation omitted). Exhaustion in prisoner cases
covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (stating that the mandatory
language of § 1997e(a) forecloses judicial discretion to craft
exceptions to the requirement). Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of
the administrative process and complying with “deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93 (2006). 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). 1
In New York, the administrative remedies consist of a three-
step Inmate Grievance Program (“IGP”). First, a grievance
is submitted to the Inmate Grievance Resolution Committee
(“IGRC”), a committee comprised of both inmates and
facility employees. N.Y. COMP. CODES R. & REGS.
tit. 7, § 701.5(b). An inmate must submit a grievance
“within 21 calendar days of the alleged occurrence.” Id.
at § 701.5(a). An inmate may request an extension of
the time limit within forty-five days of the date of the
alleged occurrence. Id. at § 701.6(g). The IGRC reviews and
investigates the formal complaint and then issues a written
determination. Id. at § 701.5(b). Second, upon appeal of the
IGRC decision, the superintendent of the facility reviews the
IGRC's determination and issues a decision. Id. at § 701.5(c).
Finally, upon appeal of the superintendent's decision, the
Central Office Review Committee (“CORC”) makes the final
administrative determination. Id. at § 701.5(d). Only upon
exhaustion of all three levels of review may a prisoner seek
relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp.
2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v.
Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d
116, 121 (2d Cir. 2001), overruled on other grounds by Porter
v. Nussle, 534 U.S. 516.
B. Plaintiff's Failure to Exhaust
Administrative Remedies
*3 At the time of the relevant events of this action,
Coxsackie C.F. had a grievance program to which inmates had
full access. Dkt. No. 47-3, Decl. of Rachel Seguin, at ¶¶ 4-12;
Dkt. No. 47-4, Seguin Decl., Ex. A.
There are no recorded grievances filed by Plaintiff regarding
any alleged assault or use of excessive force claims against
Defendant Morris, an alleged failure to intervene claim
against Defendant Davidson, or a retaliation claim against
Defendant Morris. See Seguin Decl. at ¶¶ 20-23. While
Plaintiff was housed at Coxsackie, Plaintiff filed five
grievances. Dkt. No. 47-8, Decl. of Tisha Surprenant, ¶ 10;
Dkt. No. 47-9, Surprenant Decl., Ex. A. Three of those five
grievances were filed before the events at issue in this lawsuit,
and so Plaintiff could not have exhausted his administrative
remedies utilizing these grievances. Surprenant Decl. at ¶ 11;
Surprenant Decl., Ex. A (reflecting filing dates of February
28, 2014, April 23, 2014, and September 10, 2014). Plaintiff
filed two grievances at Coxsackie after the date of the alleged
incident. Id. Those grievances are not related to the events at
issue in the Complaint. The first, “Unprofessional Remarks,”
was filed on April 22, 2015, four months after the events
at issue in the Complaint, and is dated March 20, 2015,
nearly three months after the events at issue. Dkt. No. 47-7,
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Seguin Decl., Ex. D. This grievance alleged that Plaintiff
was being verbally harassed, that Plaintiff's mail was being
violated, and that he was being called a rapist; that grievance
only named Counselor Iarusso. Id. While this grievance has
some similar allegations as does Plaintiff's claim, it has to do
with Counselor Iarusso “going around the jail” talking about
Plaintiff, and other verbal harassment which was allegedly
ongoing, unlike the verbal and physical alteration alleged in
the Complaint. It does not provide any allegations regarding
the physical assault and is not otherwise particularized to the
January 22, 2015 incident. The other grievance filed after
the alleged assault, “Sneakers Not Mailed Out,” pertained to
sneakers that Plaintiff believed were in the package room.
Dkt. No. 47-6, Seguin Decl., Ex. C. This grievance is not
relevant to the events at issue in the Complaint and did not
name any of the Defendants in this case. As such, neither of
these grievances could have been used to properly exhaust
Plaintiff's claims.
In his deposition, Plaintiff claimed that he did file a grievance
regarding harassment that went to the superintendent. Dkt.
No. 47-11, Decl. of Louis Jim, Ex. A, Pl.'s Dep., pp. 20-23.
Such harassment grievances are subject to expedited review,
which provides for first level review by the superintendent,
and a subsequent appeal to the Central Office Review
Committee to have fully exhausted the grievance. N.Y.
COMP. CODES R. & REGS. tit. 7, § 701.8. While Plaintiff
claims that he did appeal the superintendent's response to
CORC, there is no evidence in Plaintiff's opposition, or any
other submission, of either the harassment grievance itself,
the superintendent's response, or Plaintiff's alleged appeal to
CORC. Pl.'s Dep. at pp. 21-22. Indeed, Plaintiff testified at
his deposition that he never received a response from CORC,
and that he did not write a grievance complaining that he
did not receive a response. Id. at p. 39. Plaintiff's “vague
and conclusory allegations that he filed other grievances ...
do not, in light of the documentation that Defendants have
provided about Plaintiff's grievance history, create a factual
dispute material to the issue of whether Plaintiff exhausted
his administrative remedies.” Toliver v. Stefinik, 2016 WL
3349316, at *6 (N.D.N.Y. June 15, 2016). As such, Plaintiff
failed to exhaust his administrative remedies relative to the
complaint.
C. Whether Plaintiff's Failure to Exhaust
Administrative Remedies May be Excused
*4 A prisoner's failure to exhaust administrative remedies
may nonetheless be excused if remedies were unavailable
to the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the
Supreme Court stated in that case, “[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 1859-60.
In his opposition papers, Plaintiff claims that (1) he followed
the proper procedures and was ignored; (2) his mail was
tampered with; (3) he feared retaliation, and (4) he grieved
through informal means. See Compl. at p. 13; 2 Dkt. No. 1-1,
Exs. to Compl. at pp. 18-21; Pl.'s Opp. at pp. 2-5. None of
these allegations, however, are sufficient to raise an issue of
material fact as to the availability of administrative remedies
that would excuse his failure to exhaust.
First, in his Complaint, Plaintiff describes frustration with
Coxsackie C.F.'s grievance process, stating that he followed
the proper procedures and that he did not get any responses
and that he was “basically ignored.” Exs. to Compl. at p. 20.
In his letters to correctional facility staff, Plaintiff specifically
describes issues with Coxsackie C.F.'s mail process, stating
that the mail he attempts to send is not properly delivered and
that he believes his mail is being tampered with. Seguin Decl.,
Ex. C. at p. 21; Seguin Decl., Ex. D at p. 6. Plaintiff also makes
loose claims that his paperwork gets lost. Seguin Decl., Ex. D
at p. 6. Plaintiff attaches to his Opposition a written request
dated February 15th, 2015, in which Plaintiff asked for his
grievances back and described his frustration regarding lack
of responses and allegedly missing paperwork. Pl.'s Opp. at p.
6. However, it is entirely unclear to what this refers; it is not
evident that this relates to the claims in Plaintiff's Complaint,
and Plaintiff does not demonstrate that it does.
In his general allegations regarding the mail and being
ignored, Plaintiff fails to provide any facts regarding when
he tried to file administrative grievances or appeals regarding
the alleged assault. For example, he offers no evidence about
when or to whom he allegedly provided grievances regarding
the incident at issue in this case. Nor does he provide copies
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of the any alleged grievances regarding this incident. “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); Rodriguez v. Cross,
2017 WL 2791063, at *7 (N.D.N.Y. May 9, 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, n.13 (N.D.N.Y. Sept. 12, 2016) (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.”).
*5 Further, even if Plaintiff did believe that his attempts at
filing a grievance regarding his assault would be ineffective,
this does not excuse his failure to do so. The case law is clear
that “[p]risoners are required to exhaust their administrative
remedies ‘even if they believe that administrative remedies
would be ineffective or futile.’ ” Harrison v. Goord, 2009 WL
1605770, at *4 (S.D.N.Y. June 9, 2009); see also Woodford v.
Ngo, 548 U.S. at 89-90 (stating that “exhaustion requirements
are designed to deal with parties who do not want to exhaust,”
including those who “conclude—correctly or incorrectly—
that exhaustion is not efficient in that party's particular case.”).
Plaintiff asserts in his Complaint and deposition that he is
being consistently harassed and intimidated by officers at
Coxsackie C.F. Exs. to Compl. at p. 20; Pl.'s Dep. at p. 39.
Plaintiff also stated in his deposition that he stopped writing
grievances because he had been threatened. Pl.'s Dep. at p. 39;
see also Exs. to Compl. at p. 36. Under Ross, threats or other
intimidation by prison employees may render administrative
remedies unavailable. Ross v. Blake, 136 S. Ct. at 1860, n.3.
However, on this record such a contention is inconsistent with
Plaintiff's assertions that he did properly grieve the assault,
and with Plaintiff's filing of grievances after that time. See,
e.g., Pl.'s Opp. at ¶ 20; Seguin Decl. Ex. B; Crawford v.
Baltazar, 2018 WL 2041711, at *6 (S.D.N.Y. Apr. 30, 2018).
Instead, Plaintiff's allegations amount to a “generalized fear
of retaliation” without allegations of any specific threats or
other actions that would prevent him from filing a grievance
regarding the alleged assault. Such allegations are insufficient
to excuse a failure to exhaust. See Brown v. Napoli, 687
F. Supp. 2d 295, 297 (W.D.N.Y. 2009) (“[P]laintiff's mere
allegation of a generalized fear of retaliation is insufficient to
excuse his failure to file a grievance[.]”); see also Rodriguez
v. Cty. of Suffolk, 2014 WL 3531897, at *5 (E.D.N.Y. June 30,
2014) (“Courts tend to find mere ‘generalized fear’ when no
actual threat was made.”) (internal citation omitted).
Plaintiff also appears to contend that he satisfied the
exhaustion requirement via informal means, as in his
Complaint he states that he was interviewed by the Inspector
General. Compl. at p. 13. However, the described interactions,
indicating that prison officials were likely aware of the nature
of Plaintiff's complaint, are insufficient to constitute “proper
exhaustion.” See Davis v. Doe, 2017 WL 8640829, at 3
(N.D.N.Y. Dec. 29, 2017). See also Macias v. Zenk, 495 F.3d
37,44 (2d Cir. 2007) (“Alerting the prison officials as to the
nature of the wrong for which redress is sought, does not
constitute ‘proper exhaustion.’ ”) (internal citation omitted).
“Regardless of whether ... informal complaints put the prison
officials on notice of his grievance ‘in a substantive sense,’ ...
to satisfy the PLRA a prisoner must also procedurally exhaust
his available administrative remedies.” Id. at 43.
Plaintiff has not provided any evidence that could satisfy any
of the three circumstances that could excuse failing to exhaust
under Ross. Plaintiff does not demonstrate that the grievance
procedure operated as a dead end in that officers were unable
or unwilling to provide relief, or that the administrative
scheme was so opaque that it was incapable of use. Ross v.
Blake, 136 S. Ct. at 1853-54. Nor does Plaintiff sufficiently
allege that prison officials “ ‘misled, threatened, or otherwise
deterred’ him from utilizing the IGP.” Hooks v. Howard, 2010
WL 1235236, at *7 (N.D.N.Y. Mar. 30, 2010).
*6 Accordingly, for the foregoing reasons, the Court finds
that Plaintiff has not established an issue of material fact
as to the availability of administrative remedies. The Court
therefore recommends that Defendants' Motion be granted
based upon Plaintiff's failure to exhaust.
III. JOHN DOE DEFENDANTS
As to the still unidentified John Doe Defendants, I
recommend these Defendants be dismissed for a number of
reasons: (1) Plaintiff's failure to comply with a court order
under Fed. R. Civ. P. 16(f); 3 (2) Plaintiff's failure to prosecute
under Fed. R. Civ. P. 41(b) and N.D.N.Y.L.R. 41.2(a); and (3)
Plaintiff's failure to serve within 90 days under Fed. R. Civ.
P. 4(m). I also note that even if Plaintiff had properly named
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the John Doe Defendants, it would be of no consequence
because, as noted above, Plaintiff has failed to exhaust his
administrative remedies.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants' Motion for Summary
Judgment (Dkt. No. 47) be GRANTED and that Plaintiff's
claims be DISMISSED; and it is further
RECOMMENDED, that Plaintiff's claims against the John
Doe Defendants be DISMISSED sua sponte; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 4 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989) ); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
All Citations
Not Reported in Fed. Supp., 2018 WL 7199494
Footnotes
1 Exhaustion of administrative remedies is an affirmative defense which must be raised by the defendant. See
Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). The Named Defendants properly raised the affirmative
defense in their Answer to the Complaint. Dkt. No. 18 at ¶ 14.
2 When citing to Plaintiff's submissions, the Court will cite to the pagination assigned by the Court's Case
Management Electronic Case Files (“CM/ECF”) System.
3 The District Judge ordered Plaintiff to “take reasonable steps through discovery to ascertain their identities,”
and “advised that any unnamed individual is not timely served, the action may be dismissed against that
defendant.” Dkt. No. 9 at p. 12; see also Dkt. No. 13 (Decision and Order providing guidance on identifying
the John Doe Defendants). Discovery ended in this matter on January 31, 2018. See Dkt. No. 41.
4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you
to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday,
Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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KeyCite Yellow Flag
Report and Recommendation Adopted as Modified by Hayes v. Dahkle,
N.D.N.Y., January 19, 2018
2017 WL 9511178
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Taheen HAYES, Plaintiff,
v.
T. DAHKLE, et al., Defendants.
No. 9:16-CV-1368 (TJM/CFH)
|
Signed 10/27/2017
|
Filed 10/30/2017
Attorneys and Law Firms
Taheen Hayes, Malone, NY, pro se.
Helena O. Pederson, New York State Attorney General,
Albany, NY, for Defendants.
REPORT-RECOMMENDATION AND ORDER 1
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
*1 Plaintiff pro se Taheen Hayes (“plaintiff”), an inmate
who was, at all relevant times, in the custody of the New
York Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. §
1983, alleging that defendants, Corrections Officer (“C.O.”)
Timothy Dahkle, C.O. Jason Meier, C.O. Stephen Bence,
C.O. Edward Coon, C.O. Kristopher Hoffman, Officer
Rehabilitation Counselor (“O.R.C.”) James Iarusso, Deputy
Superintendent of Security (“DSS”) Raymond Shanley, and
Superintendent (“Supt.”) Daniel Martuscello—who, at all
relevant times, were employed at Coxsackie Correctional
Facility (“Coxsackie”)—violated his constitutional rights
under the First and Eighth Amendments. Dkt. No. 12 (“Am.
Compl.”). Presently pending before the Court is defendants'
Motion to Dismiss in part pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 12(c). Dkt. No. 26-1. Plaintiff
filed a response in opposition to the motion, and defendants
filed a reply. Dkt. Nos. 30, 31. For the following reasons, it is
recommended that defendants' motion be granted in part and
denied in part.
I. Background
The facts are related herein in the light most favorable to
plaintiff as the nonmoving party. See subsection II infra.
Plaintiff alleges that on April 15, 2016, C.O. Dahkle sexually
assaulted him during a pat-frisk. Am. Compl. ¶¶ 1-4. While
conducting the frisk, C.O. Dahkle “had his lower body
(genitals) pressed up against [plaintiff's] butt” and tightly
pressed his hands down plaintiff's back and “into the crack of
his butt (inside) all the way down and around [his] [groin].”
Id. ¶ 4. While doing so, C.O. Dahkle asked, “[d]o you consider
yourself a male or female?” and “[d]o you suck dick or
fuck men?” Id. ¶ 6. On April 16, 2016, plaintiff reported
the incident to the Prison Rape Elimination Act (“PREA”)
hotline. Id. ¶ 7. On April 17, 2016, plaintiff again reported
the incident to the PREA hotline and filed a grievance with
Coxsackie. Id. ¶¶ 8-9. The next day, plaintiff reported the
alleged sexual assault to Supt. Martuscello, who told plaintiff
that someone would contact him about the incident. Id. ¶ 11.
Plaintiff was then interviewed by the Office of Mental Health
and the Coxsackie Medical Staff. Id. ¶ 12.
Plaintiff alleges that C.O. Dahkle verbally harassed him on
at least one other occasion; on May 9, 2016, C.O. Dahkle
stated, “how much dick did you suck to come back over
here” and “do not unpack your shit faggot, if I have to
fuck you up myself you're leaving this block.” Am. Compl.
¶ 13. Later that day, Supt. Martuscello and DSS Shanley
met with plaintiff to discuss a letter plaintiff sent to Supt.
Martuscello concerning plaintiff's safety at Coxsackie. Id. ¶
14. During the meeting, plaintiff informed Supt. Martuscello
and DSS Shanley about C.O. Dahkle's harassment. Id. Supt.
Martuscello and DSS Shanley laughed at plaintiff, and DSS
Shanley stated, “what do you want me to do? I can't fire
him for threatening to fuck you up.” Id. ¶ 15. Plaintiff
also informed Supt. Martuscello and DSS Shanley about
comments and harassment he received from other Coxsackie
correction officers in response to his filing a grievance
against C.O. Dahkle. Id. Supt. Martuscello told him he was
paranoid. Id. Supt. Martuscello ordered plaintiff placed on
“investigation status” pending an interview with the Office of
Special Investigation. Id. On or about May 12, 2016, plaintiff
reported C.O. Dahkle's sexual assault and threats, as well as
Supt. Martuscello and DSS Shanley's failure to protect him or
intervene, to the Office of Special Investigation. Id. ¶ 16.
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*2 After plaintiff spoke with the Office of Special
Investigation, C.O. Dahkle continued to make “inflammatory,
derogatory and degrading statements” to plaintiff about his
hair, clothes, and sexual orientation, and called plaintiff a
snitch. Am. Compl. ¶ 17. Plaintiff reported these comments to
Supt. Martuscello, DSS Shanley, the Office of Mental Health,
and Coxsackie medical staff. Id. ¶ 18.
On May 15, 2016, C.O. Hoffman “falsified a misbehavior
report which subjected [plaintiff] to confinement for
retaliation ... because [plaintiff] filed a sexual assault
complaint against T. Dahkle and was rumored by Coxsackie
Correctional Officers to be working with the Office of Special
Investigation.” Am. Compl. ¶¶ 19, 20. The following day,
plaintiff was placed in keeplock 2 pending a disciplinary
hearing for C.O. Hoffman's misbehavior report. Id. ¶ 20.
On May 16, 2016, plaintiff met with C.O. Meier and non-
party C.O. Rowe. Am. Compl. ¶ 21. When asked why he
was keeplocked, plaintiff explained C.O. Hoffman's alleged
retaliatory misbehavior report. Id. C.O. Meier called plaintiff
a “fucking liar” and stated that he heard plaintiff telling other
inmates to call the PREA hotline and falsely report incidents
of sexual abuse. Id. Plaintiff assured C.O. Meier that he was
mistaken, and C.O. Meier became “very upset” and agitated
and ordered plaintiff back to his cell. Id. ¶¶ 21, 22. Later
that day, plaintiff attended his keeplock admission interview
with a non-party nurse while in the presence of C.O. Meier
and C.O. Rowe. Id. ¶ 23. The nurse asked plaintiff if he had
been sexually abused while in Coxsackie. Id. ¶ 24. When
plaintiff answered affirmatively, C.O. Meier “went crazy,”
yelling, “faggots like you get C.O.’s [sic] fucking fired. You
want to play these fucking games?” Id. C.O. Meier pointed
his fingers directly in plaintiff's face and threatened to “fuck
[plaintiff] up right now.” Id. ¶¶ 26, 27.
On May 17, 2016, plaintiff was transferred to the Secured
Housing Unit (“SHU”). 3 Am. Compl. ¶ 30. On May 23,
2016, plaintiff again expressed his fear and frustrations about
his safety to Supt. Martuscello and DSS Shanley, showing
them the allegedly false May 15, 2016 misbehavior report
from C.O. Hoffman and explaining C.O. Meier's threats. Id.
¶ 32. Supt. Martuscello and DSS Shanley told plaintiff to
resolve his problems at an upcoming disciplinary hearing. Id.
On May 26, 2016, plaintiff filed a grievance for the “constant
retaliatory practices by way of disciplinary action and
harrasment [sic] from C.O. Hoffman, threats from C.O. Meier
for filing grievances and a sexual complaint on Dahkle.” Am.
Compl. ¶ 36. In this grievance, plaintiff also “raise[d] the issue
of the failure to protect” and how he feared for his life. Id.
Plaintiff sent a copy of this grievance to Supt. Martuscello. Id.
On June 10, 2016, plaintiff was released from SHU. Id. ¶ 37.
When plaintiff asked his O.R.C. Counselor why a disciplinary
hearing for C.O. Hoffman's misbehavior report had never
been conducted, the Counselor told him that the misbehavior
report did not exist. Id.
*3 On June 11, 2016, Supt. Martuscello and DSS Shanley
ordered plaintiff to the Captain's office. Am. Compl. ¶ 39.
Supt. Martuscello yelled at plaintiff for filing complaints
about the alleged sexual assault and other harassment to
outside New York State agencies. Id. DSS Shanley warned
plaintiff that because he was the Deputy Director of Security,
if plaintiff initiated any further complaints, “anything [could]
happen to [him]” for “security reasons.” Id. Supt. Martuscello
threatened that if plaintiff continued to “make an issue,” he
would place him back in SHU. Id. ¶ 41. Four days later,
plaintiff filed a grievance regarding this meeting. Id. ¶ 42.
Plaintiff also filed a complaint with non-party Anthony J.
Annucci, the acting Commissioner of DOCCS, regarding the
sexual abuse, threats, harassment, and retaliatory practices he
experienced at Coxsackie. Id.
On June 20, 2016, plaintiff was transferred to a different
housing unit. Am. Compl. ¶ 43. Upon arrival, C.O. Hoffman
stated, “[d]on't get comfortable Hayes, you'll be out of here
soon.” Id. C.O. Hoffman further stated, “you mess with one of
us (C.O.’s) you got to deal with all of us.” Id. On July 7, 2016,
C.O. Hoffman banged on plaintiff's cell, and told him that
the May 15, 2016 misbehavior report he filed against plaintiff
“don't [sic] exist” and that “Dahkle said hi.” Id. ¶ 47.
On July 30, 2016, C.O. Meier attacked plaintiff from behind
and slammed him into the ground. Am. Compl. ¶ 55. C.O.
Meier then sat on plaintiff's back and repeatedly punched him
in the back, head, and face with closed fists. Id. ¶ 56. C.O.
Langtry, C.O. Bence, and C.O. Coon joined in, kicking and
punching plaintiff all over his body as he lay handcuffed on
the floor. Id. ¶ 57.
II. Legal Standard
“The standard for addressing a Rule 12(c) motion for
judgment on the pleadings is the same as that for a Rule 12(b)
(6) motion to dismiss for failure to state a claim.” Cleveland
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v. Caplaw, 448 F.3d 518, 521 (2d Cir. 2006) (citing Karedes
v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005) ).
The Court is required to “accept[ ] as true the complaint's
factual allegations and draw[ ] all inferences in the plaintiff's
favor.” Id. However, this “tenet ... is inapplicable to legal
conclusions [;thus, t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555
(2007) (holding that “entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action ... [as] courts are not bound
to accept as true a legal conclusion couched as a factual
allegation.”) ).
To defeat a motion to dismiss or a motion for judgment on
the pleadings, a claim must include “facial plausibility ... that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556 (explaining
that the plausibility test “does not impose a probability
requirement ... it simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of
illegal [conduct].”) ); see also Arar v. Ashcroft, 585 F.3d 559,
569 (2d Cir. 2009) (holding that, “[o]n a motion to dismiss,
courts require enough facts to state a claim to relief that is
plausible....”) (citations omitted).
Still, “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a
short and plain statement of the claim showing that the pleader
is entitled to relief,’ in order to ‘give the defendant fair notice
of what the ... claim is and the grounds upon which it rests.’
” Twombly, 550 U.S. at 555 (citations omitted). Although a
complaint attacked under the standard set forth in Rule 12(b)
(6) does not require detailed factual allegations, “a plaintiff's
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.” Id. (citations omitted).
*4 Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit stated,
[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
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. (internal quotation marks, citations, and footnote omitted);
see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191-92 (2d Cir. 2008) (“On occasions too numerous to count,
we have reminded district courts that ‘when [a] plaintiff
proceeds’ pro se, ... a court is obliged to construe his pleadings
liberally.”) (internal citations omitted).
III. Discussion 4
Defendants move to dismiss plaintiff's complaint in part on
the grounds that the following causes of action fail to state
a claim upon which relief could be granted: (1) plaintiff's
Eighth Amendment sexual abuse claim against defendant
C.O. Dahkle; (2) plaintiff's First Amendment retaliation claim
against defendants C.O. Dahkle, C.O. Meier, C.O. Hoffman,
Supt. Martuscello, DSS Shanley, C.O. Bence, C.O. Lantry,
and C.O. Coon; and (3) plaintiff's supervisory liability claim
against defendants Supt. Martuscello and DSS Shanley.
A. Eighth Amendment
Plaintiff claims that defendant C.O. Dahkle sexually abused
him in violation of his Eighth Amendment right “to be free
from cruel and unusual punishment and sexual abuse.” Am.
Compl. at 20. Defendants contend that C.O. Dahkle's conduct
was not “objectively, sufficiently serious” enough to amount
to an Eighth Amendment violation. Dkt. No. 26-1 at 9.
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“The Eighth Amendment protects prisoners from cruel and
unusual punishment by prison officials.” Crawford v. Cuomo,
796 F.3d 252, 256 (2d Cir. 2015) (quoting Wilson v. Seiter,
501 U.S. 294, 297 (1991) ). To state a claim under the Eighth
Amendment, a plaintiff must establish both objective and
subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262
(2d Cir. 1999). First, for the subjective element, the plaintiff
must allege that the defendant “acted with a subjectively
‘sufficiently culpable state of mind.’ ” Crawford, 796 F.3d
at 256 (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)
). Second, for the objective element, the plaintiff must
demonstrate that the “conduct was objectively ‘harmful
enough’ or ‘sufficiently serious’ to reach constitutional
dimensions.” Id. (quoting Hudson, 503 U.S. at 8, 20). “[N]ot
every malevolent touch by a prison guard gives ride to a
federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34, 37
(2010) (internal citation and quotation marks omitted). Still,
the Eighth Amendment protects conduct that is “repugnant
to the conscious of mankind”—i.e., “incompatible with
evolving standards of decency” or “involve the unnecessary
and wanton infliction of pain.” Crawford, 796 F.3d at 256
(internal citation and quotation marks omitted).
1. Boddie v. Schnieder and Crawford v. Cuomo
*5 In Boddie v. Schnieder, the Second Circuit extended
Eighth Amendment protection to inmates' claims of sexual
abuse, concluding that, “there can be no doubt that severe or
repetitive sexual abuse of an inmate by a prison officer can
be ‘objectively, sufficiently serious’ enough to constitute an
Eighth Amendment violation.” Boddie v. Schnieder, 105 F.3d
857, 861 (2d Cir. 1997). The Boddie Court concluded that
the plaintiff failed to state an Eighth Amendment claim where
a corrections officer fondled his genitals, pressed into him
with “her whole body vagina against [his] penis,” and called
him a “sexy black devil.” Id. at 860, 861-82. In reaching that
conclusion, the Court determined that “[n]o single incident
[the plaintiff] described was severe enough to be ‘objectively,
sufficiently serious’ ” or “cumulatively egregious in the harm
they inflicted.” Id. at 861 (quoting Farmer v. Brennan, 511
U.S. 825, 833-34 (1994) ).
The Court later expanded on that proposition in Crawford v.
Cuomo, stating that a single incident of sexual abuse may
violate the Eighth Amendment if it is “sufficiently severe or
serious.” Crawford, 796 F.3d at 257. The Crawford Court
explained:
[t]o show that an incident or series
of incidents was serious enough to
implicate the Constitution, an inmate
need not allege that there was
penetration, physical injury, or direct
contact with uncovered genitalia.
A corrections officer's intentional
contact with an inmate's genitalia or
other intimate area, which serves no
penological purpose and is undertaken
with the intent to gratify the officer's
sexual desire or humiliate the inmate,
violates the Eighth Amendment.
Similarly, if the situation is reversed
and the officer intentionally brings his
or her genitalia into contact with the
inmate in order to arouse or gratify
the officer's sexual desire or humiliate
the inmate, a violation is self-evident
because there can be no penological
justification for such contact.
Id. Ultimately, in assessing whether an Eighth Amendment
violation has occurred, “the principal inquiry is whether the
contact is incidental to legitimate official duties, such as a
justifiable pat frisk or strip search, or by contrast whether it
is undertaken to arouse or gratify the officer or humiliate the
inmate.” Id. at 257-58 (citing Whitley v. Albers, 475 U.S. 312,
320 (1986) (determining that an Eighth Amendment inquiry
turns on “whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically
for the very purpose of causing harm.”) ).
Crawford involved allegations of sexual abuse made by two
inmates, Thaddeus Corley and James Crawford, who alleged
that on separate occasions, a corrections officer squeezed
and fondled plaintiffs' genitalia, stating, “[t]hat doesn't feel
like a penis to me,” and “I'll run my hands up the crack of
your ass if I want to.” Crawford, 796 F.3d at 254, 255. The
Crawford Court held that the defendant corrections officer's
conduct was “unquestionably ‘repugnant to the conscience of
mankind’ and therefore violate[d] the Eighth Amendment.”
Id. at 258. The Court concluded that there is no penological
justification for “checking to see if an inmate has an erection”
and that such an extensive search of the plaintiffs' genitalia
was not “incident to any legitimate duties.” Id. Further,
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the Court held that the defendant's comments and taunts
suggested that he “undertook the search in order to arouse
himself, humiliate Crawford, or both.” Id. at 259.
The Crawford Court affirmed the underlying principles set
forth in Boddie, acknowledging that the general standard,
“which condemns [the defendant's] conduct,” remained the
same. Crawford, 796 F.3d at 259. However, the Court
noted that, “in determining the application of that standard,
the Eighth Amendment requires courts to ‘look beyond
historical conceptions to the evolving standards of decency
that mark the progress of a maturing society.’ ” Id. (quoting
Graham v. Florida, 560 U.S. 48, 58 (2010) ). “[C]onduct that
might not have risen to the level of an Eighth Amendment
violation 18 years ago” when Boddie was decided “may
no longer accord with community standards, and for that
reason may state a claim today.” Id. The Court analyzed the
“contemporary standards of decency,” focusing on state and
federal enactments that “criminalize sexual contact between
inmates and corrections officers,” including state statutes,
laws, and policies aimed at preventing sexual abuse in prison,
as well as PREA, “the first federal law to address the sexual
abuse of prisoners.” Id. Such legislation, the Court posited,
is the “ ‘clearest and most reliable objective evidence of
contemporary values.’ ” Id. at 260 (quoting Atkins v. Virginia,
536 U.S. 304, 315 (2002) ). Under this analysis, “the officer's
conduct in Boddie would flunk its own test today.” Id.
2. Application
*6 Plaintiff alleges a single incident of sexual abuse.
Am. Compl. ¶¶ 3-6. According to plaintiff, C.O. Dahkle
conducted a pat frisk during which he pressed his “lower body
(genitals) ... against [plaintiff's] butt” and ran his hands “down
[plaintiff's] back and into the crack of [his] butt (inside)”
down to his groin. Am. Compl. ¶¶ 3, 4. C.O. Dahkle also
asked plaintiff sexually-explicit questions. Id. ¶ 6. Assessing
plaintiff's claims under Crawford, and accepting the facts
alleged in the amended complaint as true, the undersigned
finds that plaintiff's allegations are sufficient to defeat the
Motion to Dismiss. As set forth above, this Court must
look to “contemporary standards of decency.” Crawford, 796
F.3d at 259; see discussion supra II.A.1. At least forty-
eight states criminalize sexual contact between corrections
officers and inmates, with some explicitly prohibiting sexual
abuse. Crawford, 796 F.3d at 259 n.8. Plaintiff points out
that New York State enacted a “zero tolerance approach to
sexual abuse.” Dkt. No. 30 at 12. New York Penal Law
§ 130.05 explicitly states that a person “committed to the
care and custody or supervision of the state department
of corrections and community supervision” is incapable of
consent. N.Y. PENAL L. § 130.05(3)(e) (2017). New York
Penal Law § 130.52 further establishes that “[a] person is
guilty of forcible touching when such person intentionally,
and for no legitimate purpose, forcibly touches the sexual
or other intimate parts of another person for the purpose
of degrading or abusing such person; or for the purpose
of gratifying the actor's sexual desire.” N.Y. PENAL L.
§ 130.52 (2017). Neither of these laws, both enacted in
2011, existed when Boddie was written. See Crawford, 796
F.3d at 259. New York State's enactment of these laws
suggests that its “contemporary values” do not tolerate even
single instances of sexual abuse in the prison setting. See
id. (highlighting states' enactment of vigorous sexual abuse
laws as indicative of the changing contemporary standards of
decency); Shepherd v. Fischer, No. 08-CV-9297 (RA), 2017
WL 666213, at *23 (S.D.N.Y. Feb. 16, 2017) (“[T]he fact that
the alleged [physical] conduct constituted a crime under New
York State law, and was the subject of national legislation
aimed at stopping such conduct in prisons, reinforces the
conclusion that every reasonable officer would have known it
violated the Eighth Amendment.”)
Although C.O. Dahkle's conduct took place during a
pat frisk, which, if properly conducted, serves a valid
penological purpose, the nature of C.O. Dahkle's alleged
actions, combined with his sexual commentary, suggests
that C.O. Dahkle intended to humiliate plaintiff or act
for his own sexual gratification. See Shepherd, 2017 WL
666213, at *18 (“Even if each pat frisk, if properly
conducted, could have served a valid penological objective,
the alleged aggressive squeezing and fondling of Plaintiff's
genitalia, combined with the accompanying threats of sexual
violence or retaliation, would allow a reasonable factfinder
to find that the corrections officers lacked a penological
purpose and intended to sexually gratify themselves, to
humiliate Shepherd, or both.”); Shannon v. Venettozzi,
670 Fed.Appx. 29, 31 (2d Cir. 2016) (summary order)
(“These [sexually-explicit] statements, in conjunction with
Shannon's description of the forcefulness of some of the
pat-downs, were sufficient to plausibly allege that Officer
McTurner conducted the pat-downs either ‘to gratify [his]
sexual desire or to humiliate’ Shannon, neither of which
is a permissible motivation, rather than for any legitimate
penological purpose.”); Allah v. Morrison, No. 14-CV-6735,
2016 WL 4017340, at *3-4 (W.D.N.Y. July 22, 2016) (“[The
defendant's] alleged taunts to [the plaintiff], including the
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statements, ‘you know what I want’ and ‘give me what I want
and you'll get what you want’, suggest that [the defendant's]
conduct was designed to humiliate [the plaintiff], gratify
herself, or both.”); see also Crawford, 796 F.3d at 259 (“[The
defendant's] demeaning comments, including the statements
‘[t]hat doesn't feel like a penis to me,’ [and] ‘I'll run my hands
up the crack of your ass if I want to’ ... suggest that [the
defendant] undertook the search in order to arouse himself,
humiliate [the plaintiff], or both.”).
Therefore, liberally construing the amended complaint,
plaintiff's allegations against C.O. Dahkle are sufficient to
state a prima facie Eighth Amendment claim. See Shannon,
670 Fed.Appx. at 31 (holding that the defendant's aggressive
pat-searches, which included hitting and squeezing the
plaintiff's genitals, coupled with threatening commentary,
if true, amounted to an Eighth Amendment violation);
Shepherd, 2017 WL 666213, at *18 (holding that the
defendant's pat-frisks, which included running his hands
between the plaintiff's buttocks, squeezing his genitals, and
whispering sexually-laden expletives into his ear, if true,
violated the Eighth Amendment); Goins v. Wosneack, 6:15-
CV-6234 EAW, 2016 WL 1271701, at *1, 5 (W.D.N.Y.
Mar. 30, 2016) (holding that the plaintiff's allegations that
the defendant corrections officer “pressed his aroused penis
against her buttocks and ‘taunted’ her” plausibly stated an
Eighth Amendment claim.). Accordingly, it is recommended
that the defendants' Motion to Dismiss on this ground be
denied.
B. First Amendment
*7 Plaintiff claims that defendants C.O. Dahkle, C.O.
Hoffman, C.O. Meier, C.O. Langtry, C.O. Bence, C.O.
Coon, DSS Shanley, and Supt. Martuscello subjected him to
verbal harassment and/or threats, physical attacks, and false
misbehavior reports in retaliation for his filing grievances.
See Am. Compl. generally. Defendants move to dismiss these
claims on three grounds:
(1) verbal harassment does not [ ] rise
to the level of adverse action necessary
to support a First Amendment
retaliation claim; (2) there are no
allegations in the complaint that the
alleged physical attack by Defendants
Meier, Langtry, Bence and Coon was
causally connected to Plaintiff's prior
grievance against Defendant Dahkle;
and (3) there are no allegations in the
complaint that the misbehavior report
issued by Defendant Hoffman was
causally connected to Plaintiff's prior
grievance against Defendant Dahkle.
Dkt. No. 26-1 at 3-4.
Courts are to “approach [First Amendment] retaliation claims
by prisoners ‘with skepticism and particular care[.]’ ” See,
e.g., Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003)
(quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001),
overruled on other grounds by Swierkiewicz v. Sorema, N.
A., 534 U.S. 506 (2002) ). A retaliation claim under Section
1983 may not be conclusory and must have some basis in
specific facts that are not inherently implausible on their face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); South Cherry
St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 110 (2d Cir.
2009). “To prove a First Amendment retaliation claim under
Section 1983, a prisoner must show that ‘(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.’ ” Espinal v. Goord, 558 F.3d 119, 128 (2d
Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d
Cir. 2004), overruled on other grounds by Swierkiewicz, 534
U.S. at 560).
To satisfy the first element of a retaliation claim, a plaintiff
must show that he engaged in a protected activity. See Espinal,
558 F.3d at 128. The Second Circuit has concluded that use of
the prison grievance system constitutes a protected activity.
See Gill, 389 F.3d at 384; Franco v. Kelly, 854 F.2d 584,
589 (2d Cir. 1988) (“Moreover, intentional obstruction of
a prisoner's right to seek redress of grievances is precisely
the sort of oppression that section 1983 is intended to
remedy.”) (alteration and internal quotation marks omitted);
see also Roseboro v. Gillespie, 791 F. Supp. 2d 353, 367
(S.D.N.Y. 2011) (finding that the filing of a grievance is a
protected activity); Mateo v. Fischer, 682 F. Supp. 2d 423,
433 (S.D.N.Y. 2010) (same). Plaintiff states that he filed
grievances against C.O. Dahkle, C.O. Hoffman, C.O. Meier,
DSS Shanley, and Supt. Martuscello. See Am. Compl. ¶¶ 7,
8, 9, 18, 36, 42. Thus, plaintiff satisfies the first prong of the
test as he has engaged in a protected activity. See id.; Gill,
389 F.3d at 384.
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1. Verbal Harassment and/or Threats
Defendants argue that plaintiff's First Amendment retaliation
claim should be dismissed because verbal harassment does
not rise to the level of adverse action necessary to support a
First Amendment retaliation claim. Dkt. No. 26-1 at 3. Verbal
harassment, absent injury, is generally insufficient to rise to
the level of a constitutional violation. See Purcell v. Coughlin,
790 F.2d 263, 265 (2d Cir. 1986) (“The claim that a prison
guard called Purcell names also did not allege any appreciable
injury and was properly dismissed.”); Ramirez v. Holmes, 921
F. Supp. 204, 210 (S.D.N.Y. 1996) (“Allegations of threats or
verbal harassment, without any injury or damage, do not state
a claim under 42 U.S.C. § 1983.”). Such statements are only
sufficiently adverse for the purpose of a First Amendment
retaliation claim if they “would deter a similarly situated
individual of ordinary firmness of exercising constitutional
rights.” Gill, 389 F.3d at 380 (quoting Davis, 389 F.3d
at 353) (internal quotation marks omitted). Verbal threats
may constitute adverse action if the threat is sufficiently
specific. McFadden v. Friedman, No. 9:12-CV-0685 (GTS/
CFH), 2015 WL 5603433, at *17 (N.D.N.Y. Sept. 23, 2015)
(citing Barrington v. New York, 806 F. Supp. 2d 730, 746
(S.D.N.Y. 2011) ). “The less direct and specific a threat, the
less likely it will deter an inmate from exercising his First
Amendment rights.” Mateo, 682 F. Supp. 2d at 434.
a. C.O. Dahkle, C.O. Hoffman, DSS Shanley
*8 Plaintiff alleges that in retaliation for his filing a
grievance against C.O. Dahkle for alleged sexual abuse and
reporting the issue to the PREA hotline: (1) C.O. Dahkle,
on two occasions, verbally harassed plaintiff, stating, “how
much dick did you suck to come back over here,” called him
a “faggot” and a “snitch,” and threatened to “fuck [him] up”
on one occasion (Am. Compl. ¶¶ 13, 17); (2) C.O. Hoffman,
on two occasions, verbally harassed plaintiff, warning him to
not get comfortable in his housing unit because “you mess
with one of us (C.O.’s) you got to deal with all of us” and
informing plaintiff that “Dahkle said hi!” (id. ¶¶ 43, 47);
and (3) DSS Shanley, on one occasion, threatened that if
plaintiff continued to complain, “anything could happen” to
him for “security reasons.” (id. ¶ 39). Accepting plaintiff's
allegations as true, the defendants' statements do not qualify
as constitutional violations because “harassing comments and
hostile behavior do not constitute adverse actions sufficient
to state a retaliation claim.” Quezada v. Roy, No. 14 Civ.
4056(CM), 2015 WL 5970355, at *21 (S.D.N.Y. Oct. 13,
2015) (citation and internal quotation marks omitted). “The
line between de minimis verbal harassment and retaliatory
adverse action ... [hinges] on the specificity and seriousness
of the words used.” Id. Mindful that inmates “may be required
to tolerate more than average citizens[ ] before a retaliatory
action taken against them is considered adverse,” Davis, 320
F.3d at 353, the undersigned concludes that C.O. Dahkle,
C.O. Hoffman, DSS Shanley's statements constitute vague
threats that lack the specificity and seriousness “to deter an
inmate from exercising his First Amendment rights” as no real
threat exists. Id. (finding that the defendant corrections officer
calling the plaintiff a “faggot” does not amount to an adverse
action); cf. Hill v. Laird, 06-CV-0126(JS)(ARL), 2016 WL
3632707, at *4 (W.D.N.Y. July 6, 2012) (denying summary
judgment and, absent injury, finding a threat sufficiently
specific where the defendant threatened, “say I found this
[noose], you were trying to hurt yourself so I had to rush
in and stop you ... [y]our arm might be broken in a few
places for a long time” if the plaintiff continued to file
grievances); Lunney v. Brureton, No. 04 Civ. 2438(LAK)
(GWG), 2007 WL 1544629, at *19 (S.D.N.Y. May 29,
2007) (denying summary judgment where, absent injury, the
defendant threatened that he would break the plaintiff's neck if
he continued to write grievances). Accordingly, C.O. Dahkle,
C.O. Hoffman, and DSS Shanley's statements do not amount
to adverse action.
b. C.O. Meier
Plaintiff alleges that in retaliation for his filing a grievance
against C.O. Dahkle for alleged sexual abuse and reporting
the issue to the PREA hotline, C.O. Meier, on May 16, 2016,
verbally harassed plaintiff by pointing his fingers directly in
his face and yelling, “you want to fucking play these games?
Faggots like you get C.O.’s fired” and threatened to “fuck
[plaintiff] up right now.” Am. Compl. ¶¶ 26, 27. On July 30,
2016, C.O. Meier physically attacked plaintiff. Id. ¶ 53-59.
Although plaintiff alleges both a threat and an injury, C.O.
Meier's May 16, 2016 statement threatened the use of
immediate force, and the defendant's failure to follow through
immediately on that threat, weighs against a finding of
adverse action. Although there is no bright-line rule as to
how attenuated the verbal threat and the alleged use of
force can be to have them be considered causally connected,
courts have dismissed claims of retaliation on the basis of
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verbal threats where the alleged use of force occurred months
after the threat. See Pierott v. Hahn, No. 9:15-CV-1415
(DNH/CFH), 2017 WL 4221117, at *8 (N.D.N.Y. July 28,
2017) (“Plaintiff has not made a strong showing of temporal
proximity in support of his retaliation claim: he merely states
that defendant Hahn threatened to punch him on August 4,
2014, and on October 1, 2014, defendant Hahn ‘decided to do
that.’ Relying solely on temporal proximity—here, a period
of approximately two months—is insufficient to support a
claim of retaliation.”); Sloane v. Mazzuca, No. 04 CV 8266
(KMK), 2006 WL 3096031, at *14 (S.D.N.Y. Oct. 31, 2006)
(concluding that the four month long “lapse of time between
the [protected activity] and the alleged retaliation strongly
suggests that there is no causal connection between these
events.”); cf. Flemming v. King, No. 14-CV-316 (DNH/
CFH), 2016 WL 5219995, at *5 (N.D.N.Y. June 20, 2016)
(“The only circumstantial evidence supporting the finding of
a causal connection is Flemming's assertions that the alleged
assaults committed by both defendants happened on the same
day that he threatened to file a lawsuit against those same
defendants. However, this temporal proximity, coupled with
the common identity between the officers who Flemming
verbalized his threat to, and the officers who allegedly
assaulted him, are sufficient to establish the third prong of
Flemming's First Amendment retaliation claim.”); Jordan v.
Garvin, No. 01CIV4393LTS/GWG, 2004 WL 302361, at *6
(S.D.N.Y. Feb. 17, 2004) (“[T]he existence of a temporal
connection as close as the one present here—just two days
—is sufficient by itself to establish the requisite inference
of a causal connection.”). That C.O. Meier attacked plaintiff
two months after he made the threat is too far removed to
coincide with the threat for purposes of constituting adverse
action, even more so because C.O. Meier's threat indicated
that he intended to act immediately. See id. Plaintiff “does
not ... allege that these threats were followed by any physical
injury[,] and as a result, they are not actionable.” LaRocco
v. N.Y.C. Dep't. of Corr., No. 99CIV.9759SHS/RLE, 2001
WL 1029044, at *5 (S.D.N.Y. Aug. 31, 2001). Absent an
appreciable injury following in close time to the threat of
force, C.O. Meier's statements, albeit inappropriate, lack
the specificity and seriousness “to deter an inmate from
exercising his First Amendment rights.” Quezada, 2015 WL
5970355, at *21. Accordingly, C.O. Meier's statements do not
amount to adverse action.
c. Supt. Martuscello
*9 Plaintiff alleges that in retaliation for his filing a
grievance against C.O. Dahkle for alleged sexual abuse and
reporting the issue to the PREA hotline, Supt. Martuscello,
on one occasion, yelled at plaintiff for his complaints and
grievances and “remind[ed] [plaintiff] of the deferred SHU
time” imposed from disciplinary sanctions. Am. Compl. ¶¶
39-41. Whether a defendant's verbal threat constitutes an
adverse action under the First Amendment depends on the
specificity and context in which the threat was communicated.
Lunney, 2007 WL 1544629, at *23.
Assessing the facts in the light most favorable to plaintiff,
Supt. Martuscello's “reminder” of plaintiff's deferred SHU
time, immediately following their discussion of plaintiff's
grievances and complaints, implied that Supt. Martuscello
would place plaintiff in SHU if he continued to file complaints
and grievances. Id. ¶ 41. Given the context and specificity
of the alleged threat—referencing plaintiff's deferred SHU
time and discussing plaintiff's grievances and complaints
—a similarly-situated person of ordinary firmness would
be deterred from filing grievances. See Hill, 2014 WL
1315226, at *8 (finding that the defendant's threat to file
false disciplinary reports to keep the plaintiff confined in
SHU amounted to an adverse action); Sanchez v. Velez, No.
08 Civ. 1519(NRB), 2009 WL 2252319, at *5 (S.D.N.Y.
July 24, 2009) (concluding that the plaintiff's allegation that
the defendant corrections officer threatened to place him
in “the box ... [which] in prison parlance typically refers
to punitive segregation” may constitute an adverse action
and is sufficient for pleading purposes). Accordingly, Supt.
Martuscello's statements amount to adverse action.
2. Causal Connection
Plaintiff claims that on July 30, 2016, C.O. Meier, C.O.
Langtry, C.O. Bence, and C.O. Coon physically attacked
him in retaliation for his grievances and complaints. 5 Am.
Compl. ¶ 53; Dkt. No. 1 ¶ 5 (Compl.). Plaintiff also contends
that defendant C.O. Hoffman “falsified a misbehavior report
which subjected [him] to confinement” in retaliation for
his grievance against C.O. Dahkle. Am. Compl. ¶¶ 19-20.
Defendants argue that plaintiff fails to adequately allege that
the July 30, 2016 physical attack and the May 15, 2016
misbehavior report were causally connected to any protected
speech. Dkt. No. 26-1 at 13-14.
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In determining whether a causal
connection exists between the
plaintiff's protected activity and a
prison official's actions, a number of
factors may be considered, including:
(i) the temporal proximity between
the protected activity and the alleged
retaliatory act; (ii) the inmate's
prior good disciplinary record; (iii)
vindication at a hearing on the matter;
and (iv) statements by the defendant
concerning his motivation.
Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002).
“The causal connection must be sufficient to support an
inference that the protected conduct played a substantial part
in the adverse action.” Id. In assessing temporal proximity,
the Second Circuit has established that no more than six
months between the protected activity and the adverse action
establishes the temporal proximity sufficient to support an
inference of causal connection. King v. McIntyre, No. 9:11-
CV-1457, 2015 WL 1781256, at *5 (N.D.N.Y. Apr. 8, 2016)
(quoting Espinal, 558 F.3d at 129) (internal quotation marks
omitted).
a. July 30, 2016 Excessive Force
*10 Plaintiff concedes that he fails to allege First
Amendment retaliation claims against defendants C.O.
Langtry, C.O. Bence, and C.O. Coon. Dkt. No. 30 at 20.
With respect to C.O. Meier, plaintiff argues that facts he set
forth in the amended complaint adequtely establish a causal
connection between the April 16, 2016 grievance against C.O.
Dahkle and the July 30, 2016 incident. Id. Additionally, in an
attempt to demonstrate causal connection, plaintiff refers the
Court to his allegation that C.O. Meier threatened to “fuck
[him] up” on May 23, 2016. Id. at 21.
As discussed above, plaintiff's filing of a grievance constitutes
a protected activity. See Gill, 389 F.3d at 384. Plaintiff's
allegation of excessive force, if true, constitutes an adverse
action. Baskerville, 224 F. Supp 2d at 731-32; Flemming,
2016 WL 5219995, at *5. Affording plaintiff special
solicitude, his allegations are sufficient to establish causal
connection. C.O. Meier's statements during the alleged use
of excessive force—(1) “I should break this shit” after
twisting plaintiff's wrist, and (2) “stay the fuck on the
wall” (Am. Compl. ¶ 58)—do not suggest a motivation for
retaliation. See Cole v. New York State DOCCS, No. 9:14-
CV-0539 (BKS/DEP), 2016 WL 5394752, at *26 (N.D.N.Y.
Aug. 25, 2016) (“While plaintiff has offered proof of his
complaints and the filing of a lawsuit against Durante,
the gap between the protected conduct asserted and the
defendant's alleged retaliatory act is tenuous ... However,
when coupled with the statements attributed to Durante,
which, if true, strongly suggest that he was motivated to
assault plaintiff for filing the lawsuit,” these circumstances
preclude dismissal). However, plaintiff does allege an earlier
confrontation with C.O. Meier on May 16, 2016 where
C.O. Meier “pointed [his hands] directly in [his] face”
and threatened to “fuck [him] up right now.” Am. Compl.
¶¶ 26-27. Although the undersigned concludes that such
conduct did not violate plaintiff's First Amendment rights,
the statements support plaintiff's broader retaliation claim.
Baskerville, 224 F. Supp. 2d at 733 n.6 (finding that,
although the defendant's comments “did not violate plaintiff's
constitutional rights” as First Amendment harassment, the
plaintiff's allegations “support[ed] his retaliation claim”
as “circumstantial evidence of retaliatory intent.”); see
subsection III.B.1.b supra. Moreover, although the alleged
physical attack took place two months later, on July 30, 2016,
this is well within the Second Circuit's six-month time frame
for establishing a causal connection between plaintiff's filing
of a grievance and C.O. Meier's use of excessive force. See
Espinal, 558 F.3d at 129 (“[W]e find that the passage of only
six months between the dismissal of [the plaintiff's] lawsuit
and an allegedly retaliatory beating ... is sufficient to support
an inference of a causal connection.”). Plaintiff further
claims that C.O. Meier issued him an “overexaggerat[ed]”
misbehavior report on May 17, 2016 charging him with, in
part, threats and violent conduct. Am. Compl. ¶ 31. That
plaintiff was found not guilty of these charges at his Tier
III disciplinary hearing also supports a causal connection as
it serves as “circumstantial evidence of retaliatory intent.”
Baskerville, 224 F. Supp. 2d at 733.
Assessing plaintiff's amended complaint in the light most
favorable to him, his First Amendment retaliation claim
against C.O. Meier is sufficient to withstand defendants'
Motion to Dismiss as he has “raised a colorable suspicion
that the adverse action[ ] taken against him may have been
in retaliation for his protected conduct....” Baskerville, 224
F. Supp. 2d at 733. As plaintiff has alleged sufficient facts
to support an inference that his protected conduct played
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a substantial role in C.O. Meier's alleged use of excessive
force, it is recommended that defendants' Motion to Dismiss,
insofar as it relates to plaintiff's claims of retaliation against
C.O. Meier, be denied. It is also recommended that plaintiff's
retaliation claims against C.O. Langtry, C.O. Bence, and C.O.
Coon be dismissed as plaintiff fails to provide any factual
allegations to support a claim that these defendants violated
his First Amendment rights.
b. May 15, 2016 Misbehavior Report
*11 Plaintiff alleges that in retaliation for his filing
grievances and complaints, C.O. Hoffman issued a falsified
misbehavior report. Am. Compl. ¶ 15. As discussed above,
the filing of a grievance constitutes a protected activity. See
Gill, 389 F.3d at 384 (finding that the plaintiff sufficiently
alleged his participation in a protected activity through his
use of the prison grievance system). Moreover, a defendant's
retaliatory filing of a falsified misbehavior report that results
in disciplinary segregated confinement constitutes adverse
action. See Gill, 389 F.3d at 384 (finding that a false
misbehavior report that resulted in the plaintiff's placement
in keeplock constituted adverse action); Gayle v. Gonyea,
313 F.3d 677, 681 (2d Cir. 2002) (emphasis added) (“An
allegation that a prison official filed false disciplinary charges
in retaliation for the exercise of a constitutionally protected
right, such as the filing of a grievance, states a claim under
§ 1983.”). “[T]he mere allegation that a false misbehavior
report has been issued to an inmate, standing alone, does not
rise to [a] level of constitutional significance.” Reed v. Doe
No. 1, No. 9:11-CV-0250 (TJM/DEP), 2012 WL 4486086, at
*5 (N.D.N.Y. July 26, 2012) (citing Boddie, 105 F.3d at 862).
However, a plaintiff's allegation that a defendant issued a
false misbehavior report in response to the plaintiff's protected
activity can support a claim of unlawful retaliation. Id. (citing
Franco v. Kelly, 854 F.2d 584, 589 (2d. Cir. 2008) ). The
plaintiff bears the burden of establishing that “the protected
conduct was a substantial or motivating factor in the prison
officials' decision to discipline the plaintiff.” Gayle, 313 F.3d
at 681.
Plaintiff alleges that on May 14, 2016, C.O. Dahkle harassed
him in front of fellow inmates and other corrections
officers, calling plaintiff a “snitch” and referring to plaintiff's
complaints and grievances regarding the alleged sexual
assault. Am. Compl. ¶ 17. The next day, C.O. Hoffman
issued plaintiff a misbehavior report alleging, in part, that
plaintiff “yell[ed] out his cell window to another inmate sating
‘yo all you gotta do is call that PREA hotline and say the
C.O. touched your dick doing a frisk or something, doesn't
matter what you say. Just make something up it works all
the time.’ ” Dkt. No. 1-1 at 4. Plaintiff appears to suggest
that C.O. Hoffman issued the May 15, 2016 misbehavior
report in response to C.O. Dahkle's “spreading rumors of
plaintiff being a homo and a snitch for ... reporting the
sexual assault....” Dkt. No. 30 at 22-23. Accepting plaintiff's
factual allegations as true, it is plausible that C.O. Hoffman
learned of plaintiff's grievances on May 14, 2016, when C.O.
Dahkle accused plaintiff of being a snitch and referenced his
grievances, or some other time, and, in turn, filed a false
misbehavior report. Am. Compl. ¶¶ 17, 19; see Linares v.
Mahunik, No. 9:05-CV-625 (GLS/RFT), 2006 WL 2595200,
at *9 (N.D.N.Y. Sept. 11, 2006) (denying the defendant's
motion to dismiss where the plaintiff filed a grievance on
April 17, 2005 and received a misbehavior report the next
day).
Defendants argue that C.O. Hoffman's statements—“you
mess with one of us (C.O's) you got to deal with all of
us” on June 20, 2016 and “Dahkle said hi!” on July 7,
2016—were made well after C.O. Hoffman filed the May
15, 2016 misbehavior report and over two months after
plaintiff's grievance against C.O. Dahkle; thus, the statements
are not causally connected to the protected conduct. Dkt.
No. 26-1 at 14. Both statements, however, occurred within
six months of plaintiff's grievance against C.O. Dahkle. Am.
Compl. ¶¶ 43, 47, 53-55; see Espinal, 558 F.3d at 129
(“[W]e find that the passage of only six months between
the dismissal of [the plaintiff's] lawsuit and an allegedly
retaliatory beating ... is sufficient to support an inference of
a causal connection.”). In addition, these statements support
plaintiff's contention that C.O. Meier and C.O. Hoffman
were retaliating against him. As further evidence of an
improper retaliatory motive, C.O. Hoffman told plaintiff that
the misbehavior report “did not exist” which suggests that the
misbehavior report was not legitimate. Id. ¶ 47. Additionally,
a Tier III disciplinary hearing was never conducted on the
charges, which further supports plaintiff's claim that the
misbehavior report was falsified, and, therefore, retaliatory.
Id.; see Odom v. Dixon, No. 04-CV-889F, 2008 WL 466255,
at *22 (W.D.N.Y. Feb. 15, 2008) (noting that dismissal of
a retaliation claim is “improper where an inmate [ ] is not
granted a hearing on the alleged false disciplinary charges.”);
Linares, 2006 WL 2595200, at *9 (“A plaintiff may meet
the burden of proving an inappropriate retaliatory motive by
presenting circumstantial evidence of a retaliatory motive,
such as temporal proximity, thus obviating the need for direct
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evidence.”). These allegations, considered together, raise a
“colorable suspicion that the adverse action[ ] taken against
[plaintiff] may have been in retaliation for his protected
conduct.” Baskerville, 224 F. Supp. 2d at 733. As plaintiff
has alleged facts sufficient to support an inference that his
protected conduct played a substantial or motivating factor
in C.O. Hoffman's filing an allegedly falsified, retaliatory
misbehavior report, it is recommended that defendants'
Motion to Dismiss, insofar as it relates to C.O. Hoffman's
retaliation, be denied.
C. Supervisory Liability
*12 Plaintiff claims that he had conversations with, and sent
grievances to, Supt. Martuscello and DSS Shanley regarding
C.O. Dahkle, C.O. Hoffman, and C.O. Meier's alleged
retaliation and plaintiff's continued safety at Coxsackie. Am.
Compl. ¶¶ 14-15, 17-18, 32, 39-41. Thus, plaintiff appears to
contend that Supt. Martuscello and DSS Shanley are liable
for C.O. Dahkle, C.O. Hoffman, and C.O. Meier's conduct
under the theory of supervisory liability. See id. Defendants
argue that plaintiff's supervisory liability claims should be
dismissed because Supt. Martuscello and DSS Shanley were
not personally involved in the alleged constitutional violation.
Dkt. No. 26-1 at 15-19.
Supervisory officials may not be held liable for their
subordinates' constitutional violations merely because they
are in a position of authority. Black v. Coughlin, 76 F.3d 72,
74 (2d Cir. 1996). In this Circuit, the “personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting
Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991) (additional citations omitted) ). However, supervisory
personnel may be considered personally involved in their
subordinate's conduct if:
(1) the defendant participated directly in the alleged
constitutional violation;
(2) the defendant, after being informed of the violation
through report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information indicating
that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (additional
citation omitted) ). 6 Absent a subordinate's underlying
constitutional violation, there can be no supervisory liability.
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003);
see Elek v. Inc. Vill. of Monroe, 815 F. Supp. 2d 801,
808 (S.D.N.Y. 2011) (collecting cases for the proposition
that “because [p]laintiff has not established any underlying
constitutional violation, she cannot state a claim for 1983
supervisory liability.”). Construing the amended complaint
liberally, plaintiff appears to allege supervisory liability under
Colon factors one, two, and five. See Colon, 58 F.3d at 873.
1. Direct Participation
Plaintiff's claim under the first factor, Supt. Martuscello's
direct participation in a constitutional violation, cannot stand.
After plaintiff first alerted him to the alleged sexual assault,
Supt. Martuscello informed plaintiff that “someone [would]
be coming to see [him] soon,” and, thereafter, plaintiff
met with non-party Sgt. Davis and the Office of Special
Investigation. Am. Compl. ¶¶ 11, 12, 16. Because it is within
the purview of a superior officer to delegate responsibility
to others, Supt. Martuscello's referral to subordinate officers
does not establish his personal involvement. See Vega v.
Artus, 610 F. Supp. 2d 185, 198 (N.D.N.Y. 2009) (finding
no personal involvement where “the only involvement of the
supervisory official was to refer the inmate's complaint to the
appropriate staff for investigation.”) (citing Ortiz-Rodriguez
v. N.Y. State Dep't of Corr. Servs., 491 F. Supp. 2d 342, 347
(W.D.N.Y. 2007) ).
2. Failure to Remedy
*13 Under the second Colon factor, failure to remedy a
wrong of which the defendant was aware, plaintiff appears to
allege that Supt. Martuscello and DSS Shanley, in their roles
as supervisors at Coxsackie, failed to take remedial measures
after being informed of alleged constitutional violations. See
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Am. Compl. ¶¶ 14-15, 17-18, 32, 39-41; Colon, 58 F.3d at
873. Defendants argue that such contentions are vague and
conclusory, and do not amount to a claim for supervisory
liability. Dkt. No. 26-1 at 17-18.
Plaintiff contends that on May 23, 2016, he spoke with Supt.
Martuscello and DSS Shanley, informing the defendants that
he “fear[ed] for life” due to the corrections officers' continued
retaliation, including C.O. Hoffman's falsified misbehavior
report and C.O. Meier's verbal threats. Am. Compl. ¶ 32.
Both defendants told plaintiff to “handle [his] problems at the
[upcoming] disciplinary hearing” while laughing and joking.
Id. On May 26, 2016, plaintiff filed a grievance for the
“constant retaliatory practices by way of disciplinary action ...
from C.O. Hoffman, threats from C.O. Meier ...” as well as
Supt. Martuscello and DSS Shanley's failure to protect him
from the continued retaliatory practices of Coxsackie staff
members. Id. ¶ 36. Plaintiff sent a copy of this grievance
directly to Supt. Martuscello. Id. On June 24, 2016, plaintiff
sent Supt. Martuscello a copy of a complaint alleging claims
of harassment and retaliation. Id. ¶ 44; Dkt. No. 12-2 at
19-30. 7 Plaintiff alleges that, C.O. Meier, C.O. Langtry, C.O.
Bence, and C.O. Coons' attacking him “could have been
avoided had [Supt. Martuscello and DSS Shanley] took [sic]
immediate action....” Dkt. No. 30 at 27.
To the extent that plaintiff suggests that Supt. Martuscello
and DSS Shanley should be held liable for C.O. Dahkle,
C.O. Meier, and C.O. Hoffman's verbal harassment, this claim
cannot proceed as the undersigned has recommended that
the underlying verbal harassment claims be dismissed for
failure to state a claim. See subsection III.B.1.a.b. supra;
see also Guillory v. Haywood, No. 9:13-CV-01564 (MAD/
TWD), 2015 WL 268933, at *20 (N.D.N.Y. Jan. 21, 2015)
(recommending the dismissal of the plaintiff's supervisory
liability claim where no underlying constitutional violation
remains); Mills v. Luplow, No. 04-CV-00005(A)(M), 2009
WL 2606240, at *14 (W.D.N.Y. Mar. 31, 2009) (“[The
plaintiff's] failure to protect and supervisory liability claims
arise only from the conduct alleged in the first and second
causes of action. Therefore, to the extent I recommend that
first and second causes of action be dismissed, I likewise
recommend that [the plaintiff's] third cause of action be
dismissed.”).
*14 Insofar as plaintiff suggests that Supt. Martuscello
and DSS Shanley should be held liable for C.O. Hoffman's
falsified misbehavior report or C.O. Dahkle's alleged sexual
assault, “[a]n isolated incident in which an inmate is deprived
of some constitutional right does not rise to supervisory
liability.” Delgado v. New York City Dep't of Corr., No.
90 Civ. 0663 (VLB), 1993 WL 597452, at *5 (S.D.N.Y.
Sept. 22, 1993); see Dallio v. Heber, 678 F. Supp. 2d 35,
43-44 (N.D.N.Y. 2009) (collecting cases for the proposition
that the second Colon factor applies to “cases involving
continuing unconstitutional conditions” rather than a single
incident). Under the second Colon factor, a supervisory
official can only be held liable if there is an “ongoing,
and therefore correctable, constitutional violation[ ]—not
a specific event that is later subject to formal review by
designated officials once the constitutional violation has
already concluded.” Carpenter v. Apple, No. 9:15-CV-1269
(GTS/CFH), 2017 WL 3887908, at *10 (N.D.N.Y. Sept. 5,
2017) (citation omitted). Here, plaintiff's allegations of a
single sexual assault and a single falsified misbehavior report
each represent specific, isolated events rather than ongoing
practices. Moreover, Supt. Martuscello and DSS Shanley
could not have effected a change in this misconduct because
plaintiff confronted Supt. Martuscello and DSS Shanley after
the alleged sexual assault and falsified misbehavior report
had already occurred and does not contend that either C.O.
Meier or C.O. Hoffman has continued this misconduct.
Thus, the defendants cannot be held responsible for failing
to remedy the alleged constitutional violations. See Burton
v. Lynch, 664 F. Supp. 2d 349, 362 (S.D.N.Y. 2009) (“A
superintendent cannot ‘remedy’ a violation of constitutional
rights which has already ceased by ordering some change in
prison conditions.”); Harnett v. Barr, 538 F. Supp. 2d 511,
524 (N.D.N.Y. 2008) (“If the official is confronted with a
violation that has already occurred and is not ongoing, then
the official will not be found personally responsible for failing
to ‘remedy’ a violation.”). Accordingly, Supt. Martuscello
and DSS Shanley were not personally involved in C.O.
Dahkle and C.O. Hoffman's constitutional violations, and,
therefore, are not liable under the second Colon factor.
3. Deliberate Indifference
Under the fifth Colon factor, deliberate indifference, plaintiff
appears to suggest that Supt. Martuscello and DSS Shanley
acted with deliberate indifference to his rights by failing to
protect him from C.O. Meier, C.O. Langtry, C.O. Bence, and
C.O. Coon's excessive force after he informed the defendants
that he feared for his life due to constant harassment and
threats. Am. Compl. ¶ 32. “[A] supervisor may be found
liable for his deliberate indifference to the rights of others by
his failure to act on information indicating unconstitutional
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acts were occurring ... provided that the plaintiff can show
an affirmative causal link between the supervisor's inaction
and [the plaintiff's] injury.” Poe v. Leonard, 282 F.3d 123,
140 (2d Cir. 2002). Moreover, “[t]he personal involvement
and liability of supervisory personnel is established when
the supervisory official has actual or constructive notice
of unconstitutional practices and demonstrates ... deliberate
indifference by failing to act.” Rahman v. Fisher, 607 F. Supp.
2d 580, 586 (S.D.N.Y. 2009) (citation and internal quotation
marks omitted).
Although plaintiff informed Supt. Martuscello and DSS
Shanley of the verbal harassment and threats, the harassment
and threats do not amount to constitutional violations, and,
therefore, the supervisory defendants cannot be held liable.
See Hernandez, 341 F.3d at 145. However, the undersigned
must review plaintiff's supervisory liability claims as they
relate to C.O. Meier as the undersigned concluded that
plaintiff stated a prima facie claim for retaliation against C.O.
Meier. 8 Arguably, when plaintiff informed Supt. Martuscello
and DSS Shanley of C.O. Meier's statements (“you want to
fucking play these games? Faggots like you get C.O.’s fired”
and threat to “fuck [plaintiff] up right now” Am. Compl.
¶¶ 26, 27), the supervisory defendants were put on “notice
of a condition that left unaddressed could be reasonably
expected to result in an assault” on plaintiff. Rahman, 607
F. Supp. 2d at 586 (S.D.N.Y. 2009); see Merriwether v.
Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989) (finding the
supervisory defendants liable for the defendant corrections
officer's excessive force where evidence demonstrated that
the supervisory defendants should have known, prior to the
physical attack, that the plaintiff was in danger but failed to
ensure his safety). Therefore, because Supt. Martuscello and
DSS Shanley had prior notice of the potential of an assault,
failed to act on that information, and plaintiff was eventually
assaulted, plaintiff has stated a claim under the fifth Colon
factor.
*15 Accordingly, plaintiff has adequately alleged Supt.
Martuscello and DSS Shanley's personal involvement under
the fifth Colon factor through their deliberate indifference to
his rights, and it is recommended that defendants' Motion to
Dismiss, insofar as it relates to supervisory claims against
Supt. Martuscello and DSS Shanley, be denied.
IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
RECOMMENDED, that defendants' partial Motion to
Dismiss (Dkt. No. 26) be GRANTED IN PART:
Insofar as it seeks dismissal of plaintiff's claims against C.O.
Dahkle, C.O. Hoffman, and C.O. Meier for verbal harassment
and/or threats, the motion be GRANTED, and the claims be
DISMISSED with prejudice; and it is further
RECOMMENDED, that defendants' partial Motion to
Dismiss (Dkt. No. 26) be DENIED IN PART:
(1) Insofar as it seeks dismissal of plaintiff's Eighth
Amendment claim against C.O. Dahkle for sexual assault,
(2) Insofar as it seeks dismissal of plaintiff's claims against
Supt. Martuscello for verbal harassment and/or threats,
(3) Insofar as it seeks dismissal of plaintiff's First
Amendment claims against C.O. Meier and C.O. Hoffman
for retaliation,
(4) Insofar as it seeks dismissal of plaintiff's supervisory
liability claims against Supt. Martuscello for C.O. Dahkle's
verbal harassment and/or threats,
(5) Insofar as it seeks dismissal of plaintiff's supervisory
liability claims against Supt. Martuscello and DSS Shanley
for C.O. Meier's retaliation,
the motion be DENIED; and it is
ORDERED, that the Clerk of the Court serve a copy of
this Report-Recommendation and Order on the parties in
accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge
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); Small v.
Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); see also 28 U.S.C.
§ 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). 9
All Citations
Not Reported in Fed. Supp., 2017 WL 9511178
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Footnotes
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 “Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him
of participation in normal prison activities.” Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995); N.Y. COMP.
CODES R. & REGS. tit. 7, § 301.6.
3 SHUs exist in all maximum and certain medium security facilities. The units “consist of single-occupancy cells
grouped so as to provide separation from the general population....” N.Y. COMP. CODES R. & REGS. tit
7, § 300.2(b). Inmates are confined in a SHU as discipline, pending resolution of misconduct charges, for
administrative or security reasons, or in other circumstances as required. Id. at pt. 301.
4 All unpublished opinions cited to by the Court in this Report-Recommendation and Order, unless otherwise
noted, have been provided to plaintiff.
5 Defendants are not seeking dismissal of plaintiff's claims for excessive force against these defendants. See
Dkt. No. 26-1.
6 Various courts in the Second Circuit have postulated how, if at all, the Iqbal decision affected the five Colon
factors which were traditionally used to determine personal involvement. Pearce v. Estate of Longo, 766
F. Supp. 2d 367, 376 (N.D.N.Y. 2011), rev'd in part on other grounds sub nom., Pearce v. Labella, 473
Fed.Appx. 16 (2d Cir. 2012) (summary order) (recognizing that several district courts in the Second Circuit
have debated Iqbal's impact on the five Colon factors); Kleehammer v. Monroe Cnty., 743 F. Supp. 2d 175
(W.D.N.Y. 2010) (holding that “[o]nly the first and part of the third Colon categories pass Iqbal's muster....”);
D'Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347 (S.D.N.Y. 2010) (disagreeing that Iqbal eliminated Colon's
personal involvement standard).
7 Plaintiff attempted to file a civil petition pursuant to New York Civil Service Law § 75 against Supt. Martuscello,
C.O. Dahkle, C.O. Hoffman and other named defendants alleging “(1) Incompetency, failure and/or neglect
in the performance of duties; (2) Abuse of Authority; (3) Harassment; (4) Misconduct; (5) threats of physical
abuse; (6) Retaliation for exercising [his] First Amendment Right to petition the government for redress of
grievance” based on the same facts as the pending motion. Dkt. No. 12-2 at 19-28. However, the New
York State Department of Civil Service informed plaintiff that they do “not have jurisdiction over the internal
personnel matters” of DOCCS. Id. at 29. DOCCS returned plaintiff's documents and informed him that his
issues “would best be addressed by the Inmate Grievance Officer at [his] facility.” Id. at 30.
8 Even though C.O. Meier's alleged verbal harassment cannot form the basis of supervisory liability claim for
First Amendment retaliation, C.O. Meier's statements serve as “circumstantial evidence of [his] retaliatory
intent” in the alleged use of excessive force against plaintiff. Thus, C.O. Meier's statements can be considered
in determining the supervisory claims against Supt. Martuscello and DSS Shanley. See Baskerville, 224 F.
Supp. 2d at 733 n.6 (finding that, although the defendant's comments “did not violate plaintiff's constitutional
rights” as First Amendment harassment, the plaintiff's allegations “support[ed] his retaliation claim” as
“circumstantial evidence of retaliatory intent.”).
9 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the Order was mailed to you
to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday,
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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. Id. § 6(a)(1)(C).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Hendricks v. Mallozzi, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 1129887
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew HENDRICKS, Plaintiff,
v.
Shelley M. MALLOZZI, Director of the Inmate
Grievance Program for DOCCS; Earl Bell,
Superintendent, Clinton Correctional Facility; D.
Holdridge, Deputy Superintendent for Security, Clinton
Correctional Facility; and C. DeLutis, Captain of
Security, Clinton Correctional Facility, Defendants.
9:20-CV-1035 (MAD/ML)
|
Signed 01/14/2022
Attorneys and Law Firms
Andrew Hendricks, Pro Se Plaintiff, Eastern New York
Correctional Facility, Box 338, Napanoch, New York 12458.
BRENDA BADDAM, ESQ., Assistant Attorney General,
LETITIA A. JAMES, Attorney General for the State of New
York Counsel for Defendants, The Capitol, Albany, New York
12224.
REPORT and RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Currently before the Court, in this civil rights action filed
by Andrew Hendricks (“Plaintiff”) against Shelley Mallozzi,
Earl Bell, D. Holdridge, and C. DeLutis (collectively
“Defendants”), is Defendants’ motion to dismiss for failure
to state a claim upon which relief may be granted pursuant
to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 17.) For the reasons set
forth below, I recommend that Defendants’ motion be granted
in part and denied in part.
I. RELEVANT BACKGROUND
A. Procedural History
On September 3, 2020, Plaintiff commenced this action by
the filing of a Complaint, accompanied by a motion for
leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)
On October 29, 2020, United States District Judge Mae A.
D'Agostino granted Plaintiff's IFP application and dismissed
the Complaint without prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1). (Dkt. No. 5.)
On November 18, 2020, Plaintiff filed an Amended
Complaint. (Dkt. No. 8.) On December 23, 2020, Judge
D'Agostino reviewed Plaintiff's Amended Complaint and set
forth the factual allegations therein. (Dkt. No. 9 at 2-4.) Judge
D'Agostino ordered that (1) Plaintiff's Amended Complaint
was accepted for filing with respect to a claim for retaliation
pursuant to the First Amendment and 42 U.S.C. § 1983,
against Defendants, and (2) any other causes of action in the
Amended Complaint were dismissed. (See generally Dkt. No.
9.)
On March 1, 2021, in lieu of an answer, Defendants filed the
pending motion to dismiss pursuant to Fed. R. Civ. P. 12(b)
(6). (Dkt. No. 17.)
B. Parties’ Briefing on Defendants’ Motion to Dismiss
1. Defendants’ Memorandum of Law
Generally, in support of their motion to dismiss, Defendants
assert the following two arguments: (1) Plaintiff's retaliation
claim fails as a matter of law, and (2) Plaintiff failed to allege
the personal involvement of Defendants Holdridge, Bell, and
Mallozzi. (Dkt. No. 17, Attach. 1 at 6-16.)
More specifically, Defendants first argue that Plaintiff's
retaliation claim fails as a matter of law because the Amended
Complaint fails to allege facts plausibly suggesting that
Defendants took an adverse action against Plaintiff or that
a causal connection existed between his protected speech
and the alleged adverse action. (Id. at 8-15.) Defendants
argue that Plaintiff's claim against Defendant DeLutis—
which is premised on grievance that Plaintiff filed against
Correction Officer Ayotte (an unnamed party to this action)
—fails because (a) Plaintiff's conclusory allegation (that
Defendant DeLutis was “sympathetic” towards C.O. Ayotte
for an unknown reason) is insufficient to overcome the
heightened burden of establishing a causal connection of
retaliation by one officer (Defendant DeLutis) on behalf of
another officer (C.O. Ayotte), (b) inmates do not have any
constitutional right to a particular prison job, (c) temporal
proximity alone is insufficient to establish an inference of
retaliation, and (d) Defendant DeLutis's actions were taken
for legitimate, non-retaliatory reasons unrelated to Plaintiff's
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protected activity—namely, a security concern. (Id. at 8-11.)
Defendants argue that Plaintiff's claim against Defendant
Holdridge—which is premised on his alleged approval of
Defendant DeLutis's decision to remove Plaintiff from his
job, a lie that he reviewed confidential documents supporting
Plaintiff's removal from his job, and failure to follow DOCCS
policies and procedures when removing Plaintiff from his job
—fails because (a) inmates do not have any constitutional
right to a particular prison job, (b) temporal proximity alone
is insufficient to establish an inference of retaliation, (c)
Plaintiff's conclusory allegation (that Defendant Holdridge
acted out of sympathy towards C.O. Ayotte for an unknown
reason) is insufficient to overcome the heightened burden
of establishing a causal connection of retaliation by one
officer (Defendant Holdridge) on behalf of another officer
(C.O. Ayotte), and (d) Defendant Holdridge's alleged lie
(that he reviewed security documents that do not exist) and
failure to follow DOCCS policy for removal of an inmate
from his job, are not constitutional violations and thus do
not give rise to liability pursuant to 42 U.S.C. § 1983. (Id.
at 11-13.) Defendants argue that Plaintiff's claim against
Defendants Bell and Mallozzi—which is premised on their
denial of his grievance appeal, failure to properly investigate
his claims, and assertion that Defendant Bell was “deceptive
and misleading” about DOCCS policy—fails because (a)
Plaintiff's conclusory allegation that Defendants Bell and
Mallozzi retaliated against him for filing a grievance against
C.O. Ayotte is insufficient to overcome the heightened burden
of establishing a causal connection of retaliation by one
officer (Defendant Bell or Defendant Mallozzi) on behalf of
another officer (C.O. Ayotte), (b) prisoners do not have a
due process right to a thorough investigation of grievances
and thus, Defendants Bell and Mallozzi's alleged incomplete
investigations are not adverse actions, (c) there is no temporal
proximity between the filing of Plaintiff's grievance against
C.O. Ayotte on October 12, 2017, and the affirmations of
Plaintiff's grievance appeals by Defendants Bell and Mallozzi
on January 18, 2018, and May 8, 2019, respectively. (Id. at
14-15.)
*2 Second, Defendants argue that based on the Second
Circuit decision set forth in Tangretti, Plaintiff must allege
facts plausibly suggesting that Defendants Holdridge, Bell,
and Mallozzi violated his First Amendment rights with
their own individual actions. (Id. at 15-17.) Defendants
argue that the Amended Complaint fails to allege that
Defendants Holdridge, Bell, and Mallozzi were (a) aware
of Plaintiff's protected speech (i.e., the grievance he filed
against C.O. Ayotte), (b) knew the extent of the investigation
into the first grievance filed by Plaintiff, or (c) acted
with retaliatory animus towards Plaintiff because of the
grievance filed against C.O. Ayotte. (Id.) Further, Defendants
argue that Plaintiff's allegations regarding Defendants Bell
and Mallozzi—that they were involved in the affirmation
of Plaintiff's grievance denial—are insufficient to allege
personal involvement. (Id.)
2. Plaintiff's Opposition
Generally, in opposition to Defendants’ motion, Plaintiff
argues that (1) the Amended Complaint alleges facts plausibly
suggesting a claim of retaliation; and (2) the Amended
Complaint plausibly alleges the personal involvement of
Defendants Holdridge, Bell, and Mallozzi. (Dkt. No. 22.)
First, Plaintiff argues that he plausibly alleged a claim of
retaliation against (1) Defendant DeLutis because (a) he
alleged that Defendant DeLutis e-mailed Ms. Hicks telling her
to remove Plaintiff from the tailor shop for no reason other
than to punish Plaintiff for filing a grievance, which was an
adverse action, and (b) there is a causal connection between
Plaintiff's grievance and his removal from the tailor shop
which can be inferred from (i) the temporal proximity of the
two incidents, (ii) Defendant DeLutis's removal of Plaintiff
from the tailor shop before conducting an investigation
into Plaintiff's grievance, and (iii) the fact that DOCCS’
policies and procedures regarding removal of inmates from a
program were not followed when removing Plaintiff from the
tailor shop, (2) he alleged that Defendant Holdridge became
personally involved in the constitutional violation (a) when
he lied about reviewing confidential documents that did not
exist, and (b) with his support of Defendant DeLutis's decision
to remove Plaintiff from the tailor shop, which “showed gross
negligence and demonstrated deliberate indifference,” (3) he
alleged that Defendants Bell and Mallozzi became personally
involved in the constitutional violation when they chose “not
to do what was right” and “remedy the wrong and in doing
so[,] showed gross negligence and demonstrated deliberate
indifference to [Plaintiff's] constitutional rights.” (Dkt. No. 22
at 4-7.)
Second, Plaintiff argues that (1) as supervisors, Defendants
Bell and Mallozzi were personally involved because they
learned of the constitutional violation through Plaintiff's
grievance appeal and failed to rectify the situation, and
(2) Defendant Holdridge was personally involved because
Plaintiff sent him a letter requesting information about
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Plaintiff's removal from the tailor shop and Defendant
Holdridge stated that he reviewed confidential documentation
supporting Plaintiff's removal and that he supported Plaintiff's
removal. (Id.)
II. LEGAL STANDARD GOVERNING MOTIONS TO
DISMISS FOR FAILURE TO STATE A CLAIM
It has long been understood that a dismissal for failure to state
a claim upon which relief can be granted, pursuant to Fed. R.
Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed.
R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability
of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting
Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
a few words regarding that ground are appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) (emphasis added). In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
*3 On the one hand, the Supreme Court has long
characterized the “short and plain” pleading standard under
Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson,
549 F. Supp. 2d at 212, n.20 (citing Supreme Court case). On
the other hand, the Supreme Court has held that, by requiring
the above-described “showing,” the pleading standard under
Fed. R. Civ. P. 8(a)(2) requires that the pleading contain
a statement that “give[s] the defendant fair notice of what
the plaintiff's claim is and the grounds upon which it rests.”
Jackson, 549 F. Supp. 2d at 212, n.17 (citing Supreme Court
cases) (emphasis added). 1
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212, n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme
Court reversed an appellate decision holding that a complaint
had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In
doing so, the Court “retire[d]” the famous statement by the
Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than
turn on the conceivability of an actionable claim, the Court
clarified, the “fair notice” standard turns on the plausibility
of an actionable claim. Id. at 1965-74. The Court explained
that, while this does not mean that a pleading need “set out
in detail the facts upon which [the claim is based],” it does
mean that the pleading must contain at least “some factual
allegation[s].” Id. at 1965. More specifically, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level [to a plausible level],” assuming (of course)
that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.
Ct. at 1950 [internal quotation marks and citations omitted].
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
*4 Because of this requirement of factual allegations
plausibly suggesting an entitlement to relief, “the tenet that
a court must accept as true all of the allegations contained
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in the complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.”
Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that
only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949
(internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. (citations omitted).
However, “in a pro se case, the court must view the
submissions by a more lenient standard than that accorded to
‘formal pleadings drafted by lawyers.’ ” Govan v. Campbell,
289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other
citations omitted). The Second Circuit has opined that the
court is obligated to “ ‘make reasonable allowances to protect
pro se litigants’ ” from inadvertently forfeiting legal rights
merely because they lack a legal education. Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a result,
Twombly and Iqbal notwithstanding, the court must continue
to “construe [a complaint] broadly, and interpret [it] to raise
the strongest arguments that [it] suggests.” Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
III. ANALYSIS
A. Whether Plaintiff Sufficiently Alleged a First
Amendment Retaliation Claim Against Defendant
DeLutis
After carefully considering the matter, I answer this question
in the affirmative for the reasons set forth below.
A cognizable claim of retaliation pursuant to 42 U.S.C. §
1983 lies when prison officials take an adverse action against
an inmate that is motivated by the inmate's exercise of a
constitutional right, including the free speech provisions of
the First Amendment. See Friedl v. City of N.Y., 210 F.3d
79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will
lie where the government takes negative action against an
individual because of his exercise of rights guaranteed by
the Constitution or federal laws.”). As the Second Circuit
has repeatedly cautioned, however, because such claims are
easily incanted and inmates often attribute adverse action,
including the issuance of misbehavior reports, to retaliatory
animus, courts must approach such claims “with skepticism
and particular care.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir. 2001), overruled on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord,
320 F.3d 346, 352 (2d Cir. 2003).
To state a prima facie claim pursuant to 42 U.S.C. § 1983 for
retaliatory conduct, a plaintiff must advance non-conclusory
allegations establishing that (1) the conduct at issue was
protected, (2) the defendants took adverse action against the
plaintiff, and (3) there was a causal connection between the
protected activity and the adverse action–in other words, that
the protected conduct was a “substantial or motivating factor”
in the prison officials’ decision to take action against the
plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247,
251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065,
2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe,
M.J.).
For purposes of this motion, it is undisputed that Plaintiff
engaged in constitutionally protected speech by the filing of
a grievance. (Dkt. No. 17, Attach. 1 at 8); see Davis v. Goord,
320 F.3d at 352-53 (“[T]he filing of prison grievances is a
constitutionally protected activity.”); Flood v. Cappelli, 18-
CV-3897, 2019 WL 3778736, at *7 (S.D.N.Y. Aug. 2, 2019)
(collecting cases) (holding that the filing of a grievance is
protected speech).
*5 I reject Defendants’ argument that the Amended
Complaint fails to allege facts plausibly suggesting that
they took an adverse action against Plaintiff. Although
courts in the Second Circuit have held that “inmates in the
DOC[C]S system do not have any constitutional, statutory,
regulatory, or precedential right to a particular prison job,”
Muhammad v. Warithu-Deen Umar, 98 F. Supp. 2d 337, 345
(W.D.N.Y. 2000) (citing Gill v. Mooney, 824 F.2d 192, 194
(2d Cir. 1987)), courts have also held that terminating a
prisoner's employment is an “adverse action” for purposes
of a First Amendment retaliation claim. Casey v. Pallito,
12-CV-0284, 2016 WL 96157, at *7 (D. Vt. Jan. 7, 2016);
see Logan v. Graham, 18-CV-0291, 2019 WL 8015209, at
*13, n.19 (N.D.N.Y. Nov. 26, 2019) (Lovric, M.J.) (finding
that the firing of the plaintiff from his job as a feed-up
porter constituted an adverse action for purposes of a First
Amendment retaliation claim); Henderson v. Vanderwerff, 13-
CV-1537, 2016 WL 660921, at *4 (N.D.N.Y. Feb. 18, 2016)
(D'Agostino, J.) (holding that the “[p]laintiff's complaint
plausibly alleges that Officer Chuttey was involved in the
adverse action of terminating [the p]laintiff from his prison
job in retaliation for his filing of the grievance against Officer
Richardson.”); Chavis v. Struebel, 317 F. Supp. 2d 232,
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238 (W.D.N.Y. 2004) (noting that “assigning the inmate [to]
less desirable work assignments satisfies the adverse action
requirement” for purposes of a prisoner's First Amendment
retaliation claim); Van Pelt v. Finn, 92-CV-2977, 1993
WL 465297, at *4 (S.D.N.Y. Nov. 12, 1993) (holding that
reassignment of an inmate to a less desirable job with lower
pay constitutes an adverse action).
In considering whether there is a “causal connection between
the protected speech and the adverse action, a court may
consider a number of factors, including any statements
made by the defendant concerning his motivation and the
temporal proximity between the protected activity and the
defendant's adverse action.” Roseboro v. Gillespie, 719 F.
Supp. 2d 353, 366 (S.D.N.Y. 2011). The Second Circuit has
“held that temporal proximity between protected conduct
and an adverse action constitutes circumstantial evidence of
retaliation,” but, at the summary judgment stage, has also
“consistently required some further evidence of retaliatory
animus before permitting a prisoner to proceed to trial on a
retaliation claim.” Washington v. Afify, 681 F. App'x 43, 46 (2d
Cir. 2017); see Ziemba v. Thomas, 390 F. Supp. 2d 136, 157
(D. Conn. 2005) (“Temporal proximity alone is not sufficient
for the plaintiff's claim to survive summary judgment.”).
I also reject Defendants’ argument that the Amended
Complaint fails to allege facts plausibly suggesting a causal
connection between Plaintiff's protected speech on October
12, 2017 (Dkt. No. 8 at ¶ 11), and Defendant DeLutis's alleged
e-mail to Ms. Hicks on October 26, 2017, telling her to
remove Plaintiff from his position in the tailor shop (Dkt. No.
8 at ¶ 27).
First, the Second Circuit has made clear that “temporal
proximity of an allegedly retaliatory [action] to a grievance
may serve as circumstantial evidence of retaliation.” Gayle
v. Gonyea, 313 F.3d 677, 683 (2d Cir. 2002) (citing Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)); see also
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
90 (2d Cir. 2015) (holding that, within the context of an
employment discrimination claim, “[a] retaliatory purpose
can be shown indirectly by timing: protected activity followed
closely in time by adverse employment action.”). Although
there is significant case law to support the contention that
temporal proximity alone is insufficient to survive a motion
for summary judgment, Washington v. Afify, 681 F. App'x 43,
46 (2d Cir. 2017), the same is not true at the motion to dismiss
stage. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 370
(S.D.N.Y. 2011) (collecting cases) (“To be sure, a ‘plaintiff
can establish a causal connection that suggests retaliation
by showing that protected activity was close in time to the
adverse action.’ Such circumstantial evidence of retaliation,
however, without more, is insufficient to survive summary
judgment.”). Defendants cite to Thomas v. Waugh, 13-
CV-0321, 2015 WL 5750945, at *4 (N.D.N.Y. Sept. 30, 2015)
(D'Agostino, J. adopting Report-Recommendation on de novo
review) (citing Slattery v. Swiss Reinsurance Am. Corp.,
248 F.3d 87, 95 (2d Cir. 2001)), which held that “temporal
proximity alone is insufficient to establish an inference of
retaliation.” However, the Second Circuit case relied on by
the Court in Thomas, did not draw such a conclusion. Slattery,
248 F.3d at 95. Instead, the Second Circuit in Slattery, held
that, in the context of an employment case, “[w]here timing is
the only basis for a claim of retaliation, and gradual adverse
job actions began well before the plaintiff ever engaged
in any protected activity, an inference of retaliation does
not arise.” Slattery, 248 F.3d at 95. Here, unlike the facts
presented in Slattery, the Amended Complaint does not allege
facts plausibly suggesting that gradual adverse job actions
began before Plaintiff was removed from his position in the
tailor shop. (See generally Dkt. No. 8.) As a result, I find
that temporal proximity alone is sufficient to infer a causal
connection at the motion to dismiss stage.
*6 Second, the Amended Complaint alleges more than mere
temporal proximity from which, a causal connection could
be inferred. As set forth by Plaintiff in his memorandum
of law, a causal connection could also be inferred based on
Defendants’ alleged failure to follow “DOCCS's policies and
procedures regarding requests for removal and removal of
inmates from program.” (Dkt. No. 22 at 4; accord Dkt. No. 8
at ¶ 34.) While Defendants’ alleged failure to follow DOCCS’
policies and procedures does not “explicitly state an intent
to retaliate, [it] is consistent with and impl[ies] a retaliatory
motive.” Burton v. Lynch, 664 F. Supp. 2d 349, 368 (S.D.N.Y.
2009).
Third, although Plaintiff alleges that Defendant DeLutis took
an adverse action against him on behalf of C.O. Ayotte
and “it is difficult to establish one defendant's retaliation
for complaints against another defendant,” Hare v. Hayden,
09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14,
2011), I find that the Amended Complaint alleges facts
plausibly suggesting a causal connection. More specifically,
Plaintiff alleges that Defendant DeLutis was “in charge of
the investigation” regarding the grievance that Plaintiff filed
against C.O. Ayotte. (Dkt. No. 8 at ¶ 26.) In addition,
the Amended Complaint alleges that (1) Plaintiff filed the
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grievance on October 20, 2017, 2 (2) on October 26, 2017,
Defendant DeLutis sent an e-mail to Ms. Hicks directing
her to remove Plaintiff from the tailor shop for “security
reasons,” and (3) on October 27, 2017, Defendant DeLutis
directed Sergeant Stuart to interview Plaintiff and C.O. Ayotte
about Plaintiff's grievance. (Dkt. No. 8 at ¶¶ 26-27.) Thus,
the Amended Complaint alleges that Defendant DeLutis was
aware of Plaintiff's protected speech (the grievance against
C.O. Ayotte) at the time he took the adverse action against
Plaintiff (directing his removal from the tailor shop) and
that those events occurred in close temporal proximity to
each other. See Young v. Shipman, 18-CV-0782, 2020 WL
1329159, at *4-5 (N.D.N.Y. Mar. 23, 2020) (Sannes, J.)
(finding that the plaintiff alleged facts plausibly suggesting a
causal connection between the plaintiff's protected speech (a
grievance that the plaintiff filed against Defendant Sawyer)
and the adverse action (taken by Defendant Shipman) where
Defendant Shipman was allegedly aware of the plaintiff's
grievance against Defendant Sawyer and the events occurred
in close temporal proximity).
As a result, I recommend that Defendants’ motion to dismiss
the Amended Complaint, arguing that Plaintiff's retaliation
claim fails as a matter of law against Defendant DeLutis, be
denied. 3
B. Whether Plaintiff Alleged Facts Plausibly
Suggesting a Retaliation Claim Against Defendants
Holdridge, Bell, and Mallozzi
For the reasons stated in Defendants’ memorandum of
law, I recommend that Plaintiff's retaliation claim against
Defendants Holdridge, Bell, and Mallozzi be dismissed for
failure to state a claim upon which relief may be granted. The
following is intended to supplement, but not supplant those
reasons.
*7 “It is well settled in this Circuit that ‘personal
involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983.’ ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)
(quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d
Cir. 1991)). In order to prevail on a section 1983 cause of
action against an individual, a plaintiff must show “a tangible
connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
“[D]irect participation as a basis of liability in this context
requires intentional participation in the conduct constituting
a violation of the victim's rights by one who knew of the facts
rendering it illegal.” Provost v. City of Newburgh, 262 F.3d
146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of
respondeat superior cannot be applied to section 1983 actions
to satisfy the prerequisite of personal involvement. Therefore,
a prison official may not be found liable for a constitutional
violation merely because of the acts of those under his
control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at
*2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58
F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994)). Thus, supervisory officials may not be
held liable for their subordinates’ constitutional violations
merely because they are in a position of authority. See Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon,
58 F.3d at 874 (holding that the fact that the defendant
occupied a high-ranking position in the New York prison
hierarchy, without more, was insufficient to establish personal
involvement). Before deciding Ashcroft v. Iqbal, 556 U.S. 62
(2009), the Second Circuit held that supervisory personnel
could be considered “personally involved” if
(1) the defendant participated directly in the alleged
constitutional violation;
(2) the defendant, after being informed of the violation
through report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed
the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon, 58 F.3d at 873 (citing Wright, 21 F.3d at 501
(additional citation omitted)).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the
Second Circuit addressed how the Supreme Court's decision
in Iqbal affected the standards in Colon for establishing
supervisory liability. Consistent with other circuits, the
Second Circuit concluded that “there is no special rule
for supervisory liability,” and held that a “plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, had violated
the Constitution.’ ” Tangreti, 983 F.3d at 618. The Second
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Circuit explained that, “ ‘the factors necessary to establish a
[§ 1983] violation will vary with the constitutional provision
at issue’ because the elements of different constitutional
violations vary. The violation must be established against
the supervisory official directly.” Id. (quoting Iqbal, 556
U.S. at 676). “District courts discussing Tangreti agree that
the decision invalidated the Colon test and mandates that a
plaintiff must establish a violation against the supervisory
official directly.” Fabrizio v. Smith, 20-CV-0011, 2021 WL
2211206, at *10 (N.D.N.Y. Mar. 10, 2021) (Lovric, M.J.)
(collecting cases), report and recommendation adopted by
2021 WL 2211023 (N.D.N.Y. June 1, 2021) (Suddaby, C.J.).
*8 “In light of Tangreti, [a] plaintiff cannot establish [a
supervisor's] personal involvement based upon the denial of
grievance and/or appeals because it does not plausibly suggest
‘[t]he factors necessary to establish’ a First Amendment ...
claim.” Bryant v. Miller, 18-CV-0494, 2021 WL 5095284, at
*20 (N.D.N.Y. July 22, 2021) (Hummel, M.J.), report and
recommendation adopted by 2021 WL 4272396 (N.D.N.Y.
Sept. 21, 2021) (Suddaby, C.J.); see Fabrizio, 2021 WL
2211206, at *10 (holding that the plaintiff's “attempt to
plead personal involvement based upon the denial of a
grievance and/or appeals, lacks merit because it does not
plausibly suggest ‘[t]he factors necessary to establish’ a
First Amendment retaliation claim.”); Zielinski v. Annucci,
17-CV-1087, 2019 WL 2479616, at *12 (N.D.N.Y. Jan. 8,
2019) (Hummel, M.J.), report and recommendation adopted
by 2019 WL 1305826 (N.D.N.Y. Mar. 22, 2019) (“[I]t is
well-established that the review, denial or affirmance of a
denial of a grievance is insufficient to establish personal
involvement.”); Gomez v. Sepiol, 11-CV-1017SR, 2014
WL 1575872, at *10 (W.D.N.Y. Apr. 11, 2014) (“[T]he
investigation of a grievance alone, is not sufficient to
allege personal involvement in the underlying constitutional
violation.”); Rosales v. Kikendall, 677 F. Supp. 2d 643,
649 (W.D.N.Y. 2010) (holding that the plaintiff failed to
establish the defendant's personal involvement based on
allegations that the defendant investigated the plaintiff's
grievance and concluded that there was no evidence that the
other defendants had retaliated against the plaintiff).
Plaintiff's allegations against Defendants Holdridge, Bell,
and Mallozzi, relate solely to their (a) denial of Plaintiff's
grievance, (b) affirmation of Plaintiff's grievance denial, and/
or (c) affirmation of Defendant DeLutis's removal of Plaintiff
from the tailor shop. (See generally Dkt. Nos. 1, 22.) After
the Second Circuit's ruling in Tangreti, these allegations are
insufficient to plausibly suggest the personal involvement
of Defendants Holdridge, Bell, and Mallozzi. As a result, I
recommend that Defendants’ motion to dismiss with respect
to Defendants Holdridge, Bell, and Mallozzi, be granted.
ACCORDINGLY, it is hereby respectfully
RECOMMENDED that Plaintiff's Amended Complaint
(Dkt. No. 8) be DISMISSED with respect to Defendants
Holdridge, Bell, and Mallozzi for failure to state a claim upon
which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)
(6); and it is further respectfully
RECOMMENDED that Defendants’ motion to dismiss
(Dkt. No. 17) be GRANTED to the extent that it sought
dismissal of Defendants Holdridge, Bell, and Mallozzi
because the Amended Complaint failed to state a claim upon
which relief may be granted, and DENIED to the extent that
it sought dismissal of the Amended Complaint with respect to
Defendant DeLutis; and it is further
ORDERED that the Clerk of the Court shall file a copy of this
Report-Recommendation on the docket of this case and serve
a copy upon the parties in accordance with the local rules. 4
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health
& 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.
All Citations
Not Reported in Fed. Supp., 2022 WL 1129887
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Footnotes
1 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768,
1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.
1995) (McAvoy, C.J.).
2 Plaintiff also alleges that this grievance was filed on October 12, 2017. (Compare Dkt. No. 8 at ¶ 11, with
Dkt. No. 8 at ¶ 26.) For purposes of this motion, the Court need not resolve whether Plaintiff's grievance was
filed on October 12, 2017, or October 20, 2017.
3 To the extent that Defendants claim that they would have taken the same action against Plaintiff absent the
protected conduct, at this stage of the litigation, the Court is unable, on a motion to dismiss, to resolve such
factual disputes. See Carl v. Dirie, 09-CV-0724, 2010 WL 3338566, at *6 (N.D.N.Y. March 29, 2010) (Treece,
M.J.) (denying the defendant's motion to dismiss retaliation claim due to factual issues surrounding whether
the defendants would have taken the same actions in the absence of retaliatory motives).
4 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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2022 WL 856885
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew HENDRICKS, Plaintiff,
v.
Shelley M. MALLOZZI, Director of the Inmate
Grievance Program for DOCCS; Earl Bell,
Superintendent, Clinton Correctional Facility; D.
Holdridge, Deputy Superintendent for Security, Clinton
Correctional Facility; and C. Delutis, Captain of
Security, Clinton Correctional Facility, Defendants.
9:20-CV-1035 (MAD/ML)
|
Signed 03/23/2022
Attorneys and Law Firms
ANDREW HENDRICKS, 07-B-0269, Eastern New York
Correctional Facility, Box 338, Napanoch, New York 12458,
Plaintiff, Pro Se.
BRENDA BADDAM, AAG, NEW YORK STATE
ATTORNEY GENERAL, The Capitol, Albany, New York
12224, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, United States District Judge:
I. INTRODUCTION
*1 Plaintiff commenced this civil rights action on September
3, 2020, alleging violations of his constitutional rights while
he was incarcerated at Clinton Correctional Facility. See
Dkt. No. 1. On October 29, 2020, this Court dismissed the
complaint without prejudice pursuant to 28 U.S.C. §§ 1915(e)
(2)(B) and 1915A(b)(1). See Dkt. No. 5. Plaintiff filed a
proposed amended complaint on November 18, 2020. See
Dkt. No. 8. In his amended complaint, Plaintiff asserted that
Defendants C. DeLutis, K. Hicks, D. Holdridge, Earl Bell,
and Shelley M. Mallozzi violated his First and Fourteenth
Amendment rights when they removed him from his prison
job in retaliation for filing a grievance against a correctional
officer. See id. at ¶¶ 24-57. On December 23, 2020, this
Court accepted the amended complaint for filing only to the
extent that it asserted First Amendment retaliation claims
against Defendants DeLutis, Holdridge, Bell, and Mallozzi,
and dismissed the remaining claims without prejudice. See
Dkt. No. 9.
On March 1, 2021, in lieu of an answer, Defendants filed
a motion to dismiss the amended complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Dkt. No. 17. On January 14, 2022, Magistrate Judge
Lovric issued a Report and Recommendation recommending
that Defendants’ motion to dismiss be granted with respect
to Defendants Holdridge, Bell, and Mallozzi, and denied
with respect to Defendant DeLutis. See Dkt. No. 28. On
January 31, 2021, Plaintiff objected to the Report and
Recommendation to the extent it recommended granting
Defendants’ motion to dismiss with respect to Defendants
Holdridge, Bell, and Mallozzi. See Dkt. No. 29. Currently
before the Court is Magistrate Judge Lovric's Report and
Recommendation and Plaintiff's objection thereto.
II. BACKGROUND
The amended complaint alleges that, on October 11, 2017,
Plaintiff was given an “Inmate Counseling Notification” by a
nonparty civilian employee of the tailor shop where Plaintiff
worked. See Dkt. No. 8 at ¶ 10. Two days later, Plaintiff
submitted a grievance to the Inmate Grievance Resolution
Committee (“IGRC”) alleging that nonparty Corrections
Officer (“C.O.”) Ayotte was harassing him in connection with
the Inmate Counseling Notification. See id. at ¶ 11. Defendant
DeLutis “was in charge of the investigation[ and] directed
[a nonparty C.O.] to interview [Plaintiff] and C.O. Ayotte
about the incident, which he did, separately, on 10/27/17.” Id.
at ¶ 26. On November 1, 2017, at the request of Defendant
DeLutis, Plaintiff was removed from his position at the tailor
shop for confidential “security reasons.” Id. at ¶ 29.
On December 11, 2017, Plaintiff filed a second grievance
complaining that his removal from his tailor shop job was
done in retaliation for the prior grievance he had filed against
C.O. Ayotte. See id. at ¶ 30. The IGRC denied the second
grievance, stating that Plaintiff was removed from the tailor
shop for legitimate security concerns. See id. at ¶ 47. The
IGRC told Plaintiff he was not allowed to know what those
security reasons were because “it might jeopardize the safety
and security of the facility.” Id.
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*2 Plaintiff appealed the IGRC's decision to the
Superintendent, Defendant Bell, on December 27, 2017.
Id. Defendant Bell ultimately denied the appeal and found
Plaintiff's retaliation claim to be “unsubstantiated” because
Plaintiff was removed from the tailor shop for legitimate
security concerns. Id. at ¶ 48. In rendering this decision,
Defendant Bell allegedly quoted the “Policy, Procedures and
Standards for Programing Inmates manual” and stated that
“[a] change in program can be made at anytime, ‘in person or
in writing ....’ ” Id. at ¶ 49. The amended complaint claims that
this quote was “nothing less than a shameless and unattractive
attempt to be deceptive and misleading” because the manual
“clearly does not say ‘in person or in writing’ in that particular
section.” Id.
Plaintiff appealed Defendant Bell's determination to the
DOCCS Central Office Review Committee (“CORC”), where
Defendant Mallozzi was serving as Director. Id. CORC
upheld Defendant Bell's determination, finding that Plaintiff
was removed from his position at the tailor shop for security
reasons. See id. at ¶ 53.
Meanwhile, on November 27, 2017, Plaintiff sent a letter
to Defendant Holdridge requesting information about his
removal from the tailor shop. See id. at ¶ 43. Defendant
Holdridge replied the same day, “stating that he had reviewed
the ‘confidential documentation supporting [Plaintiff's]
removal’ and that he ... also support[ed] the removal” because
it was “in the best interest of the facility.” Id. The complaint
asserts that Defendant Holdridge's statement that he reviewed
confidential documentation is a “deliberate and deceptive
untruth” because Plaintiff “F.O.I.L. requested any and all
documents” related to his removal and the only thing he
received was a copy of an email from Defendant DeLutis
requesting the removal. Id. at ¶¶ 44-45.
On March 1, 2021, Defendants DeLutis, Holdridge, Bell, and
Mallozzi filed a motion to dismiss the amended complaint
pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. No. 17. On
January 14, 2022, Magistrate Judge Lovric issued a Report
and Recommendation recommending, as relevant here, that
the motion to dismiss be granted as to Defendants Holdridge,
Bell, and Mallozzi. See Dkt. No. 28. Magistrate Judge
Lovric found that—after the Second Circuit's recent ruling
in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)—
a “ ‘plaintiff cannot establish [a supervisor's] personal
involvement based upon the denial of grievance and/or
appeals because it does not plausibly suggest “[t]he factors
necessary to establish” a First Amendment ... claim.’ ” Dkt.
No. 28 at 17 (quotation omitted). Noting that “Plaintiff's
allegations against Defendants Holdridge, Bell, and Mallozzi,
relate[d] solely to their (a) denial of Plaintiff's grievance,
(b) affirmation of Plaintiff's grievance denial, and/or (c)
affirmation of Defendant DeLutis's removal of Plaintiff from
the tailor shop,” Magistrate Judge Lovric concluded that
Plaintiff's “allegations are insufficient to plausibly suggest
the personal involvement of Defendants Holdridge, Bell, and
Mallozi.” Id.
Plaintiff's raises two objections to Magistrate Judge Lovric's
Report and Recommendation. First, Plaintiff argues that
the amended complaint alleged facts beyond the denial or
affirmation of the denial of a grievance that plausibly support
the personal involvement of Defendants Holdridge, Bell, and
Mallozzi in Plaintiff's retaliation claim. See Dkt. No. 29 at ¶¶
1-4. Second, Plaintiff argues that it was unfair for Magistrate
Judge Lovric to rely on Tangreti in rejecting his retaliation
claims because Tangreti was decided after Plaintiff filed his
amended complaint. See id. at ¶¶ 5-7. Plaintiff also asks for
permission to file a second amended complaint should the
Court choose to adopt the Report and Recommendation. See
id. at ¶ 7.
III. DISCUSSION
A. Standard of Review
*3 A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief. See
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation
omitted). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw
all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). This presumption of truth, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider
documents that are “integral” to that pleading, even if they are
neither physically attached to, nor incorporated by reference
into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ. P. 8(a)
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(2), with sufficient factual “heft to ‘sho[w] that the pleader
is entitled to relief.’ ” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007) (quotation omitted). Under this standard, the
pleading's “[f]actual allegations must be enough to raise a
right of relief above the speculative level,” id. at 555 (citation
omitted), and present claims that are “plausible on [their]
face.” Id. at 570. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678 (citation omitted). “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability,
it ‘stops short of the line between possibility and plausibility
of “entitlement to relief.” ’ ” Id. (quoting [Twombly, 550 U.S.]
at 557). Ultimately, “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,”
Twombly, 550 U.S. at 558, or where a plaintiff has “not
nudged [his] claims across the line from conceivable to
plausible, the[ ] complaint must be dismissed.” Id. at 570.
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has opined that the court is obligated to
“make reasonable allowances to protect pro se litigants” from
inadvertently forfeiting legal rights merely because they lack
a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)).
When a party files specific objections to a magistrate judge's
report-recommendation, the district court makes a “de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1). However, when a party
files “[g]eneral or conclusory objections or objections which
merely recite the same arguments [that he presented] to the
magistrate judge,” the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011
WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and
footnote omitted). After the appropriate review, “the court
may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1).
B. Plaintiff's Objections
Plaintiff's first objection is that his amended complaint has
alleged facts that plausibly suggest the personal involvement
of Defendants Holdridge, Bell, and Mallozzi in the events
that form the basis of his retaliation claim. See Dkt. No.
29 at ¶ 1. Specifically, Plaintiff asserts that the amended
complaint states that Defendant Holdridge “took it upon
himself to get personally involved” by responding to a letter
written by Plaintiff and “stating that he [had] reviewed the
confidential documentation supporting [Plaintiff's] removal
from the Tailor Shop ... knowing full well that no such
documentation even existed.” Id. at ¶ 2 (citing Dkt. No.
8 at ¶¶ 42-45). Plaintiff also asserts that Defendant Bell
did more than “merely deny [his] grievance on appeal”;
claiming that he “reconfigur[ed] and manipulat[ed] the
wording of DOCCS policy,” showing “blatant disregard for
and deliberate indifference to [Plaintiff's] First Amendment
rights.” Id. at ¶ 4 (citing Dkt. No. 8 at ¶¶ 46-51). Finally,
Plaintiff argues that the amended complaint states that
Defendant Mallozzi “just rubber stamped [D]efendant Bell's
decision,” making him “just as liable as [D]efendant Bell.” Id.
*4 The Court finds that Defendants’ motion to dismiss
should be granted with respect to Defendants Holdridge,
Bell, and Mallozzi. As Magistrate Judge Lovric found, “[i]t
is well settled that affirming the outcome of a disciplinary
hearing does not in itself constitute personal involvement
in any potential due process violation,” or other alleged
underlying unconstitutional conduct. Abdul-Halim v. Bruyere,
No. 9:19-CV-740, 2021 WL 3783087, *3 (N.D.N.Y. Aug.
26, 2021); see also Smart v. Annucci, No. 19-CV-7908, 2021
WL 260105, *5 (S.D.N.Y. Jan. 26, 2021) (“Failing to correct
another officer's violation does not suffice”); Gomez v. Sepiol,
No. 11-CV-1017, 2014 WL 1575872, *10 (W.D.N.Y. Apr.
11, 2014) (“[T]he investigation of a grievance alone, is not
sufficient to allege personal involvement in the underlying
constitutional violation”); Rosales v. Kikendall, 677 F. Supp.
2d 643, 649 (W.D.N.Y. 2010) (holding that the plaintiff
failed to establish the defendant's personal involvement based
on allegations that the defendant investigated the plaintiff's
grievance and concluded that there was no evidence that the
other defendants had retaliated against the plaintiff). Contrary
to Plaintiff's argument, Defendant Holdridge's reliance on
confidential documentation and Defendant Bell's alleged
error when quoting DOCCS policy do not transform their
review of his second grievance into personal involvement
in the underlying constitutional violation (the allegedly
retaliatory removal of Plaintiff from his job); nor do these
alleged actions amount to separate constitutional violations.
Plaintiff next objects to the application of the Second Circuit's
holding in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir.
2020), 1 to this case. See Dkt. No. 29 at ¶¶ 5-7. Specifically,
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Plaintiff notes that the amended complaint was filed before
the decision in Tangreti was issued, and argues that it
would be “unfair” for the Court to apply Tangreti where he
“obviously had no knowledge that the [prior] test would soon
be invalidated” at the time he wrote the amended complaint.
Id. at ¶ 7. The Court finds that Tangreti is properly applied to
this case. “[T]he general rule [is] that a court must apply the
law as it exists at the time it renders its decision.” Walsche v.
First Inv'rs Corp., 981 F.2d 649, 653 (2d Cir. 1992) (citations
omitted); see also Kremer v. Chem. Const. Corp., 623 F.2d
786, 788-89 (2d Cir. 1980), aff'd, 456 U.S. 461 (1982)
(“The general rule of long standing is that judicial precedents
normally have retroactive as well as prospective effect”).
The narrow exception to this general principle identified in
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), does not apply
here. 2
Accordingly, the Court adopts Magistrate Judge Lovric's
Report and Recommendation in its entirety.
C. Leave to Amend
Finally, Plaintiff requests leave to file a second amended
complaint should the Court choose to adopt Magistrate Judge
Lovric's Report and Recommendation. See Dkt. No. 29 at ¶
7. In general, a court should not dismiss a pro se litigant's
complaint without granting leave to amend at least once “
‘when a liberal reading of the complaint gives any indication
that a valid claim might be stated.’ ” Shomo v. City of New
York, 579 F.3d 176, 183 (2d Cir. 2009) (quoting Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
However, an opportunity to amend is not required where the
plaintiff has previously been afforded such an opportunity.
See Coleman v. brokersXpress, LLC, 375 Fed. Appx. 136,
137 (2d Cir. 2010); see also Bivona v. McLean, No. 9:19-
CV-0303, 2019 WL 2250553, *5 (N.D.N.Y. May 24, 2019);
Abascal v. Hilton, No. 04-CV-1401, 2008 WL 268366, *8
(N.D.N.Y. Jan. 13, 2008), aff'd, 357 Fed. Appx. 388 (2d Cir.
2009).
*5 Here, Plaintiff has already been afforded one opportunity
to amend the complaint and has not made any specific
showing as to how he would cure the defects that
have persisted if given a second opportunity to amend.
Accordingly, Plaintiff's request for leave to file a second
amended complaint is denied.
IV. CONCLUSION
After carefully reviewing the Report and Recommendation,
the entire record in this matter, and the applicable law, the
Court hereby
ORDERS that Magistrate Judge Lovric's Report and
Recommendation (Dkt. No. 28) is ADOPTED in its entirety
for the reasons set forth herein; and the Court further
ORDERS that Defendants’ motion to dismiss (Dkt. No. 17)
is GRANTED in part and DENIED in part; 3 and the Court
further
ORDERS that Defendants Holdridge, Bell, and Mallozzi are
terminated as Defendants in this action; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 856885
Footnotes
1 In Tangreti, the Second Circuit addressed how the Supreme Court's decision in Iqbal affected the standards
for establishing supervisory liability. Ultimately, the Second Circuit held that, to establish a constitutional
violation against a supervisor, a plaintiff “must plead and prove that [the supervisor-]defendant, through [his
or her] own individual actions, has violated the constitution.” Tangreti, 983 F.3d at 618 (internal quotation
marks omitted).
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2 “To qualify for purely prospective application, a decision ‘must establish a new principle of law, either by
overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression
whose resolution was not clearly foreshadowed’ ” and “the court must then ‘weigh’ the issue of whether
retroactive application would conflict with or further the purposes of the new rule and whether it would produce
inequitable results.” Walsche, 981 F.2d at 653 (quoting Chevron Oil Co., 404 U.S. at 106-07).
3 Plaintiff's First Amendment retaliation claim remains against Defendant DeLutis.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 832708
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Theodore HUDSON, Plaintiff,
v.
Christopher ARTUZ, Warden Philip
Coombe, Commissioner Sergeant
Ambrosino Doctor Manion Defendants.
No. 95 CIV. 4768(JSR).
|
Nov. 30, 1998.
Attorneys and Law Firms
Mr. Theodore Hudson, Great Meadow Correctional Facility,
Comstock.
Alfred A. Delicata, Esq., Assistant Attorney General, New
York.
MEMORANDUM AND ORDER
BUCHWALD, Magistrate J.
*1 Plaintiff Theodore Hudson filed this pro se action
pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's
complaint alleges defendants violated his constitutional rights
while he was an inmate at Green Haven Correctional
Facility. 1 Plaintiff's complaint was dismissed sua sponte by
Judge Thomas P. Griesa on June 26, 1995 pursuant to 28
U.S.C. § 1915(d). On September 26, 1995, the Second Circuit
Court of Appeals vacated the judgment and remanded the case
to the district court for further proceedings.
The case was reassigned to Judge Barbara S. Jones on
January 31, 1996. Defendants moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996.
Thereafter, the case was reassigned to Judge Jed S. Rakoff
on February 26, 1997. On February 26, 1998, Judge Rakoff
granted defendants' motion to dismiss, but vacated the
judgment on April 10, 1998 in response to plaintiff's motion
for reconsideration in which plaintiff claimed that he never
received defendants' motion to dismiss.
By Judge Rakoff's Order dated April 14, 1998, this case was
referred to me for general pretrial purposes and for a Report
and Recommendation on any dispositive motion. Presently
pending is defendants' renewed motion to dismiss. Plaintiff
filed a reply on July 6, 1998. For the reasons discussed
below, plaintiff's complaint is dismissed without prejudice,
and plaintiff is granted leave to replead within thirty (30) days
of the date of the entry of this order.
FACTS
Plaintiff alleges that he was assaulted by four inmates in the
Green Haven Correctional Facility mess hall on March 14,
1995. (Complaint at 4.) He alleges that he was struck with
a pipe and a fork while in the “pop room” between 6:00
p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends
that the attack left him with 11 stitches in his head, chronic
headaches, nightmares, and pain in his arm, shoulder, and
back. (Id.) Plaintiff also states that Sergeant Ambrosino
“failed to secure [the] area and separate” him from his
attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz
is that he “fail [sic] to qualify as warden.” (Complaint at
4.) Plaintiff names Commissioner Coombes as a defendant,
alleging Coombes “fail [sic] to appoint a qualified warden
over security.” (Amended Complaint at 5.) Plaintiff further
alleges that Dr. Manion refused to give him pain medication.
(Complaint at 5.) Plaintiff seeks to “prevent violent crimes”
and demands $6,000,000 in damages. (Amended Complaint
at 5.)
Defendants moved to dismiss the complaint, arguing that: (1)
the Eleventh Amendment bars suit against state defendants
for money damages; (2) the plaintiff's allegations fail to state
a claim for a constitutional violation; (3) the defendants are
qualifiedly immune from damages; and (4) plaintiff must
exhaust his administrative remedies before bringing this suit.
DISCUSSION
I find that plaintiff's complaint runs afoul of Rules 8 and
10 of the Federal Rules of Civil Procedure and dismiss the
complaint without prejudice and with leave to amend. Federal
Rule 8 requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to
give fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Powell v. Marine Midland
Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v.
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
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Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the
“principal function of pleadings under the Federal Rules is to
give the adverse party fair notice of the claim asserted so as
to enable him to answer and prepare for trial”).
*2 Rule 10 of the Federal Rules of Civil Procedure requires,
inter alia, that the allegations in a plaintiff's complaint be
made in numbered paragraphs, each of which should recite,
as far as practicable, only a single set of circumstances.
Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule
10 also requires that each claim upon which plaintiff seeks
relief be founded upon a separate transaction or occurrence.
Id. 2 The purpose of Rule 10 is to “provide an easy mode
of identification for referring to a particular paragraph in a
prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL
392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright &
A. Miller, Federal Practice and Procedure, § 1323 at 735
(1990)).
A complaint that fails to comply with these pleading rules
“presents far too heavy a burden in terms of defendants'
duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of”
a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y.1996). It may therefore be dismissed by the court.
Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When
a complaint does not comply with the requirement that it
be short and plain, the court has the power to, on its own
initiative, ... dismiss the complaint”). Dismissal, however, is
“usually reserved for those cases in which the complaint is
so confused, ambiguous, vague, or otherwise unintelligible
that its true substance, if any, is well disguised.” Id. In those
cases in which the court dismisses a pro se complaint for
failure to comply with Rule 8, it should give the plaintiff leave
to amend when the complaint states a claim that is on its
face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d
Cir.1995).
In determining whether a nonfrivolous claim is stated, the
complaint's allegations are taken as true, and the “complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to
be liberally construed in his favor when determining whether
he has stated a meritorious claim. See Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it
is difficult to determine the actual substance of the plaintiff's
complaint, outright dismissal without leave to amend the
complaint is generally disfavored as an abuse of discretion.
See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of
New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.
Mar.12, 1997).
Here, plaintiff's pro se complaint fails to satisfy the
requirements of Federal Rules 8 and 10. The complaint is
often illegible and largely incomprehensible, scattering what
appear to be allegations specific to plaintiff within a forest
of headnotes copied from prior opinions. Defendants have
answered with a boilerplate brief, which is perhaps all a
defendant can do when faced with such a complaint. The
Court is left with an insurmountable burden in attempting to
make a reasoned ruling on such muddled pleadings.
*3 Although plaintiff's complaint is substantially
incomprehensible, it appears to plead at least some claims
that cannot be termed frivolous on their face. For example,
plaintiff clearly alleges that inmates assaulted him and that
Dr. Manion refused to provide him medical attention. He also
appears to assert that Sergeant Ambrosino failed to protect
him from the attack or take steps to prevent future attacks.
(Plaintiff's Reply at 5). It is well established that an inmate's
constitutional rights are violated when prison officials act
with deliberate indifference to his safety or with intent to
cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d
Cir.1991). It is similarly well established that an inmate's
constitutional rights are violated when a prison doctor denies
his request for medical care with deliberate indifference to
the inmate's serious medical needs. Estelle v. Gamble, 429
U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v.
Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S.
1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although
plaintiff provides few facts to support his allegations, I
disagree with defendants' assertion that outright dismissal is
appropriate because it “appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Defendant's Memorandum at 5 (quoting
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)).
Because plaintiff's complaint does not comply with Rules 8
and 10, it is hereby dismissed without prejudice, and plaintiff
is granted leave to replead within thirty (30) days of the date
of the entry of this Order. In drafting his second amended
complaint, plaintiff is directed to number each paragraph and
order the paragraphs chronologically, so that each incident in
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
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which he alleges a constitutional violation is described in the
order that it occurred. Plaintiff is also directed to specifically
describe the actions of each defendant that caused plaintiff
harm, and to do so in separate paragraphs for each defendant.
Plaintiff's complaint shall contain the facts specific to the
incidents plaintiff alleges occurred, and not any facts relating
to any case that has been decided previously by a court of law.
Plaintiff's complaint shall also contain a clear statement of the
relief he seeks in addition to monetary damages.
CONCLUSION
For the reasons set forth above, plaintiff's complaint is
dismissed without prejudice, and plaintiff is granted leave to
replead within thirty (30) days of the date of the entry of this
Order.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 1998 WL 832708
Footnotes
1 Plaintiff is presently incarcerated at Sullivan Correctional Facility.
2 Rule 10 states:
(b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered
paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set
of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim
founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a
separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Jackson v. Jackson, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 981849
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Robert JACKSON, Plaintiff,
v.
C.O. Angela JACKSON, et al., Defendants.
16-CV-08516 (PMH)
|
Signed 03/16/2021
Attorneys and Law Firms
Robert Jackson, Beacon, NY, pro se.
Amanda Yoon, NYS Office of the Attorney General, New
York, NY, Rebecca Lynn Johannesen, Colorado Department
of Law, Denver, CO, for Defendants.
MEMORANDUM OPINION AND ORDER
PHILIP M. HALPERN, United States District Judge:
*1 Plaintiff Robert Jackson (“Plaintiff”), proceeding pro se
and in forma pauperis, brings this action under 42 U.S.C.
§ 1983 against Correction Officers Angela Jackson, M.
Walker, and J. James (collectively, “Defendants”). (Doc. 2,
“Compl.”). Specifically, Plaintiff alleges that in June 2015
—while incarcerated at Sing Sing Correctional Facility in
Ossining, New York (“Sing Sing”)—Defendants violated his
constitutional rights by: (1) using excessive force against him,
in violation of the Eighth Amendment; and (2) filing a false
internal complaint against him, in violation of the Fourteenth
Amendment. (See generally id.).
On July 10, 2017, Defendants moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss Plaintiff's due process
claim along with all claims for monetary damages against
them in their official capacities. (Doc. 16). By Opinion
& Order dated April 20, 2018, Judge Román granted
Defendants’ motion and granted Plaintiff leave “to file an
Amended Complaint ... on or before June 19, 2018.” (Doc.
19 at 8). Despite securing an extension of the time within
which to file his amended pleading, Plaintiff failed to do
so. Consequently, the only claim remaining in this action is
one for excessive force against Defendants in their individual
capacities.
Defendants filed an Answer on August 30, 2018 (Doc. 22)
and, with leave of Court, filed an Amended Answer on
October 2, 2019. (Doc. 29, “Am. Ans.”). Shortly thereafter,
in an Order issued on October 22, 2019, Judge Román
“waive[d] the Initial Pre-trial Conference and direct[ed] the
parties to confer and complete a Case Management Plan and
Scheduling Order....” (Doc. 30). Although Plaintiff filed a
proposed discovery plan on November 19, 2019 (Doc. 32),
Defendants filed a letter the following day to request both
an extension of time within which to submit a proposed
discovery schedule and a pre-motion conference to discuss an
anticipated motion for summary judgment on the sole issue
of administrative exhaustion (Doc. 31). There was no further
activity on the docket in this case until it was reassigned to
this Court in April 2020. 1
On April 13, 2020, the Court granted Defendants’ request,
set a briefing schedule for the extant summary judgment
motion, and directed Defendants to mail a copy of that Order
to Plaintiff; Defendants filed an affidavit of service the same
day. (Doc. 33; Doc. 34). Approximately one month later, on
May 6, 2020, Defendants filed a letter requesting an extension
of the briefing schedule. (Doc. 36). In that letter, Defendants
noted also that upon “conferr[ing] with the New York State
Division of Parole,” they had learned that Plaintiff had been
released from custody and was believed to be residing at an
address in New York, New York. (Id.). In an endorsement
dated May 7, 2020, the Court granted Defendants’ request to
extend the briefing schedule and directed Defendants to serve
a copy of that Order on Plaintiff; Defendants filed an affidavit
of service the next day indicating that the Order had been
mailed to Plaintiff's address in New York City. (Doc. 37; Doc.
38).
*2 Defendants filed their motion for summary judgment on
June 15, 2020. (Doc. 39; Doc. 40, “Def. Br.”). On July 23,
2020, Defendants filed a letter noting that Plaintiff's time to
oppose the pending motion had passed and requesting that
the Court consider the motion unopposed. (Doc. 44). The
Court endorsed the letter on July 24, 2020, extended Plaintiff's
time to file an opposition to August 24, 2020 sua sponte, and
advised that “[i]f plaintiff fails to file his opposition by August
24, 2020, the motion will be deemed fully submitted and
unopposed.” (Doc. 45). The Court also instructed Defendants
to serve a copy of that Order on Plaintiffs (id.); Defendants
filed an affidavit of service that reflected mailings to both
Fishkill and the address in New York City shortly thereafter.
(Doc. 46). The Court has received no communications from
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Jackson v. Jackson, Not Reported in Fed. Supp. (2021)
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Plaintiff since November 2019 and, as such, considers the
motion fully submitted and unopposed.
For the reasons set forth below, Defendants’ motion for
summary judgment is GRANTED.
BACKGROUND
The facts, as recited below, are taken from the Complaint,
Defendants’ Local Civil Rule 56.1 Statement (Doc. 42,
“56.1 Stmt.”), and the admissible evidence submitted by the
parties. 2
I. The Underlying Incident
Plaintiff's factual allegations, in toto, are as follows:
After an arguement [sic] with C.O.
Jackson in the messhall[,] I was taken
to the bridge area where the defendants
beat me into a seizure, then fabricated
a misbehavior report to justify their
actions.
(Compl. at 4). Plaintiff maintains that this incident occurred
on June 4, 2015. (Id.).
II. Plaintiff's Grievance
Plaintiff filed the Grievance on June 17, 2015. (Quick Aff.
¶ 9; Quick Ex. B). Therein, Plaintiff complained that as he
“was walking out [of] the messhall” on June 4, 2015, “C.O.
Ms. Jackson and ... other[s] ... beat me down....” (Quick
Ex. B). On August 14, 2015, following an investigation into
Plaintiff's complaint, the Sing Sing Superintendent issued a
written decision denying the Grievance. (Quick Aff. ¶ 11;
Quick Ex. C). In full, the Superintendent's written decision
reads as follows:
Grievant claims staff harassment.
The grievant was interviewed by a supervisor. The grievant
had nothing further to add to his original complaint and
provided no witnesses.
Staff involved were interviewed and provided a written
report denying the allegations of wrongdoing or harassing
the grievant.
Based on the investigation conducted, insufficient evidence
could be found to substantiate the grievant [sic] allegations.
Grievance is denied.
(Quick Ex. C). The Superintendent's decision advised that
Plaintiff had seven days to appeal the determination to CORC,
should he choose to do so (id.); however, there is no record
that Plaintiff ever appealed to CORC (Quick Aff. ¶ 12; Seguin
Aff. ¶¶ 6-7; Seguin Ex. B).
STANDARD OF REVIEW
*3 Pursuant to Federal Rule of Civil Procedure 56, a court
“shall grant summary judgment 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).
“A fact is ‘material’ if it ‘might affect the outcome of the suit
under the governing law,’ and is genuinely in dispute ‘if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’ ” Liverpool v. Davis, 442 F. Supp.
3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “ ‘Factual disputes
that are irrelevant or unnecessary’ are not material and thus
cannot preclude summary judgment.” Sood v. Rampersaud,
No. 12-CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17,
2013) (quoting Anderson, 477 U.S. at 248). The Court's duty,
when determining whether summary judgment is appropriate,
is “not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Id. (quoting Wilson
v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed,
the Court's function is not to determine the truth or weigh
the evidence; the task is material issue spotting, not material
issue determining. Therefore, “where there is an absence of
sufficient proof as to one essential element of a claim, any
factual disputes with respect to other elements of the claim are
immaterial....” Bellotto v. Cty. of Orange, 248 F. App'x 232,
234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d
263, 281 (2d Cir. 2006)). Claims simply cannot proceed in the
absence of sufficient proof as to an essential element.
“It is the movant's burden to show that no genuine factual
dispute exists,” Vermont Teddy Bear Co. v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970)), and a court must
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Jackson v. Jackson, Not Reported in Fed. Supp. (2021)
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“resolve all ambiguities and draw all reasonable inferences in
the non-movant's favor.” Id. (citing Giannullo v. City of New
York, 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant
has met its burden, the non-movant “must come forward
with specific facts showing that there is a genuine issue for
trial.” Liverpool, 442 F. Supp. 3d at 722 (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). The non-movant cannot defeat a summary judgment
motion by relying on “mere speculation or conjecture as to the
true nature of the facts....” Id. (quoting Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any
evidence from which a reasonable inference could be drawn
in favor of the opposing party on the issue on which summary
judgment is sought, summary judgment is improper.” Sood,
2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.
2004)).
Should there be no genuine issue of material fact, the movant
must also establish its “entitlement to judgment as a matter
of law.” In re Davis New York Venture Fund Fee Litig., 805
F. App'x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found.
Capital Partners LLC, 920 F.3d 134, 140 (2d Cir. 2019)).
Stated simply, the movant must establish that the law favors
the judgment sought. Gonzalez v. Rutherford Corp., 881 F.
Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that summary
judgment is appropriate only when ... law supports the moving
party”); Linares v. City of White Plains, 773 F. Supp. 559, 560
(S.D.N.Y. 1991) (summary judgment is appropriate when “the
law so favors the moving party that entry of judgment in favor
of the movant ... is proper”). This standard applies equally to
claims for relief and affirmative defenses. Giordano v. Market
Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010) (“The same standard
applies whether summary judgment is granted on the merits
or on an affirmative defense....”). 3
*4 The Court is, of course, mindful that “[p]ro se litigants
are afforded a special solicitude,” which includes reading
their filings “to raise the strongest arguments they suggest.”
Mortimer v. City of New York, No. 15-CV-7186, 2018 WL
1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal quotation
marks omitted). “It is through this lens of leniency towards
pro se litigants that this Court must consider a defendant's
motion for summary judgment against a pro se plaintiff,”
Adams v. George, No. 18-CV-2630, 2020 WL 5504472, at
*5 (S.D.N.Y. Sept. 8, 2020), but the mere fact that a litigant
is pro se “does not relieve the plaintiff of his duty to meet
the requirements necessary to defeat a motion for summary
judgment,” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50
(2d Cir. 2003) (internal quotation marks omitted). Where, as
here, a pro se litigant fails to oppose a motion for summary
judgment, the motion may be granted as unopposed only “if:
(1) the plaintiff has received adequate notice that failure to file
any opposition may result in dismissal of the case; and (2) the
Court is satisfied that the facts as to which there is no genuine
dispute show that the moving party is entitled to judgment
as a matter of law.” McNair v. Ponte, No. 17-CV-2976, 2020
WL 3402815, at *3 (S.D.N.Y. June 18, 2020) (quoting Warren
v. Chem. Bank, No. 96-CV-6075, 1999 WL 1256249, at *2
(S.D.N.Y. Dec. 22, 1999)). 4
ANALYSIS
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as available are
exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to
all inmate suits about prison life, whether they involve general
circumstances or particular episodes,” Hernández v. Coffey,
582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle,
534 U.S. 516, 532 (2002)), and it is “ ‘mandatory’: [a]n inmate
‘shall’ bring ‘no action’ (or said more conversationally,
may not bring any action) absent exhaustion of available
administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856
(2016) (citation omitted). “Moreover, the PLRA ‘requires
proper exhaustion, which means using all steps that the prison
grievance system holds out.’ ” Ayala-Rosario v. Westchester
Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y.
July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118,
122 (2d Cir. 2016)). This “means that ‘prisoners must
complete the administrative review process in accordance
with the applicable procedural rules—rules that are defined
not by the PLRA, but by the prison grievance process
itself.’ ” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL
1082590, at *6 (S.D.N.Y. Mar. 6, 2020) (quoting Johnson v.
Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Accordingly, the
Court looks to the process available to Plaintiff. See Dinkins
v. New York, No. 19-CV-08447, 2020 WL 5659554, at *6
(S.D.N.Y. Sept. 23, 2020).
There are three levels of review for inmate grievances at
Sing Sing. See generally Amador v. Andrews, 655 F.3d 89,
96-97 (2d Cir. 2011) (outlining the three-step process). First,
a grievance is reviewed by the Inmate Grievance Resolution
Committee (“IGRC”), a facility-level body consisting of
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inmates and facility staff members. (Quick Ex. A §§
701.4, 701.5(a)-(b); Senguin Ex. A §§ 701.4, 701.5(a)-
(b)). Second, should the inmate be dissatisfied with the
IGRC's determination, he may appeal that decision to the
Superintendent. (Quick Ex. A § 701.5(c); Senguin Ex. A
§ 701.5(c)). Finally, if the Superintendent's conclusions are
unfavorable, the inmate may appeal that decision to CORC.
(Quick Ex. A § 701.5(d); Senguin Ex. A § 701.5(d)).
However, when a grievance concerns staff harassment,
DOCCS procedures provide for an expedited review that
allows for the complaint to bypass IGRC review and proceed
before the Superintendent in the first instance. (See Quick Ex.
A § 701.8; Senguin Ex. A § 701.8). Both the Superintendent
and CORC are required to “date stamp all” grievances or
appeals forwarded to them for review (Quick Ex. A §§
701.5(c)(3), 701.5(d)(3)(i); Senguin Ex. A §§ 701.5(c)(3),
701.5(d)(3)(i)) and require entities to maintain files “for
the current calendar year plus the previous four calendar
years” (Quick Ex. A § 701.6(k)(3); Senguin Ex. A § 701.6(k)
(3)).
*5 Quick represents, as custodian of records maintained by
the IGP at Sing Sing, that grievances “are collected from
the IGRC mailbox and processed” daily, in accordance with
DOCCS procedures. (Quick Aff. ¶ 5). Quick's records reveal
that Plaintiff filed the Grievance on June 17, 2015, that the
Grievance was forwarded directly to the Superintendent as
one concerning staff harassment, and that the Superintendent
performed an investigation and issued a written decision
denying the Grievance on August 14, 2015. (Id. ¶¶ 9-11;
Quick Ex. B). However, both Quick and Seguin represent
affirmatively that they have no record of Plaintiff taking
the final step of appealing the Superintendent's decision to
CORC. (Quick Aff. ¶12; Seguin Aff. ¶¶ 6-7).
Even while granting Plaintiff—who filed nothing in
opposition to this motion, and, in fact, has filed nothing in
this case at all since November 2019 (see Doc. 32)—every
conceivable benefit of the doubt to which a pro se litigant
is entitled, there is no genuine issue of material fact on the
instant motion. Consequently, summary judgment is proper
here because: (1) Defendants established that Plaintiff failed
to exhaust his administrative remedies and, as such, also
their entitlement to summary judgment on the affirmative
defense of Plaintiff's failure to exhaust his administrative
remedies as required by the PLRA; and (2) Plaintiff was
warned that failure to file an opposition would result in the
Court concluding that the motion was unopposed. 5
CONCLUSION
Based upon the foregoing, the motion for summary judgment
is GRANTED.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 981849
Footnotes
1 There are two docket entries reflecting reassignment of this matter from Judge Román to this Court on
different dates. (See Apr. 3, 2020 Entry; Apr. 13, 2020 Entry).
2 In support of the instant motion, defense counsel filed a Declaration annexing two affidavits (with exhibits)
for the Court's consideration. (Doc. 41). The first affidavit is from Quandera T. Quick (“Quick”), the Inmate
Grievance Program (“IGP”) Supervisor at Sing Sing. (Doc. 41-1, “Quick Aff.” ¶ 1). This affidavit attaches
as exhibits copies of: (1) New York State Department of Corrections and Community Supervision Directive
(“DOCCS”) No. 4040 (id. 5-21, “Quick Ex. A”); (2) Plaintiff's June 4, 2015 Grievance (“Grievance”) (id. at
22-23, “Quick Ex. B”); and (3) the written decision issued by Michael Capra, Sing Sing's Superintendent, on
August 14, 2015 (id. at 24-25, “Quick Ex. C”). The second affidavit is from Rachael Seguin (“Seguin”), the
Assistant Director of the IGP for DOCCS and custodian of records for the Central Office Review Committee
(“CORC”). (Doc. 41-2, “Seguin Aff.”). This affidavit attaches as exhibits copies of: (1) DOCCS Directive No.
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4040 (id. at 4-20, “Seguin Ex. A”); and (2) the results of a search for appeals filed with the CORC (id. at
21-23, “Seguin Ex. B”).
3 “[T]he failure to exhaust administrative remedies in compliance with the [Prison Litigation Reform Act] is an
affirmative defense” and it “may be waived” by a defendant who fails to raise it. Banks v. Cty. of Westchester,
168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (internal quotation marks omitted). Here, Defendants’ Fourth
Affirmative Defense was failure to comply with 42 U.S.C. § 1997e. (Am. Ans. ¶ 14).
4 Given the Court's conclusion that there is no genuine issue of material fact as to exhaustion, it does not need
to reach Defendants’ request for an evidentiary hearing should the Court find otherwise.
5 Even if the Court did not grant Defendants’ motion for summary judgment, it would dismiss the action with
prejudice under Federal Rule of Civil Procedure 41(b) as a result of Plaintiff's failure to prosecute this action.
Indeed, Plaintiff has not filed anything in this case since he filed a proposed discovery schedule more than
a year ago.
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Jackson v. West, Slip Copy (2025)
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2025 WL 1033787
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Craig A. JACKSON, Plaintiff,
v.
Sergeant WEST, et al., Defendants.
No. 9:23-CV-0306 (LEK/PJE)
|
Signed February 20, 2025
Attorneys and Law Firms
Craig A. Jackson, 22-B-0406, Cayuga Correctional Facility,
P.O. Box 1186, Moravia, New York 13118, Plaintiff pro se.
ALEXANDRA L. GALUS, ESQ., LAUREN R.
ROSENBERG, ESQ., NYS Office of the Attorney General
State Capitol, Albany, New York 12224, Attorneys for
defendants.
REPORT-RECOMMENDATION AND ORDER
PAUL J. EVANGELISTA, UNITED STATES
MAGISTRATE JUDGE
*1 Plaintiff pro se Craig A. Jackson (“plaintiff”), an inmate
who was, at all relevant times, 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, alleging that defendants Sergeant West and D. Fenlong
(“defendants”) violated his constitutional rights under the
Eighth Amendment. See Dkt. No. 1 (“Compl.”). Presently
before the Court is defendants’ motion for summary judgment
brought pursuant to Rule 56 of the Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”). See Dkt. No. 26. Plaintiff did
not oppose. For the following reasons, it is recommended that
defendants’ motion be granted.
I. Background 1
On a motion for summary judgment, the facts are related in
the light most favorable to 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.”).
On June 13, 2024, the Court served upon plaintiff forms titled,
“Notice of Due Date to Respond to Motion for Summary
Judgment” and “Notification of the Consequences of Failing
to Respond to a Summary Judgment Motion. Dkt. No. 27.
These forms advise plaintiff of his deadline to respond
to defendants’ motion and advise him that if he “do[es]
not submit a proper response to the defendants’ statement
of material facts, the Court may deem [plaintiff] to have
admitted the defendants’ factual statements.” Dkt. No. 27 at
1-2; see also N.D.N.Y. L.R. 56.1(b). Plaintiff did not respond
to defendants’ Statement of Material Facts.
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 factual inferences in
favor of the nonmoving party. See Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Where a non-
movant does not respond to the motion or fails to dispute
the movant's statement of material facts, the court may
not rely solely on the moving party's statement of material
facts; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See
Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir.
2003). Therefore, the Court will, for purposes of this motion,
deem as true all properly-supported facts stated in defendants’
Statement of Material Facts. See Gubitosi v. Kapica, 154
F.3d 30, 31 n.1 (2d Cir. 1998) (accepting as true the material
facts contained in unopposed statement of material facts);
see also Demuth v. Cutting, No. 9:18-CV-789 (LEK/TWD),
2020 WL 957381, at *1 (N.D.N.Y. Feb. 3, 2020), report and
recommendation adopted, No. 9:18-CV-0789 (LEK/TWD),
2020 WL 950229 (N.D.N.Y. Feb. 27, 2020) (“Plaintiff's
failure to oppose Defendant's motion results in the admission
of properly supported facts, however the Court must still
ensure those facts show Defendant is entitled to judgment as
a matter of law.”).
A. Facts
*2 Defendants provide that plaintiff was housed at
Gouverneur from April 11, 2022, to June 13, 2022. See Dkt.
No. 26-2 at 2. Gouverneur had a fully-functioning inmate
grievance program during plaintiff's period of incarceration.
See id. (citing Dkt. No. 26-4 at ¶11). Plaintiff's claims are
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proper subjects for a grievance under 7 NYCRR § 701.1, et
seq. See Dkt. No. 26-2 at 2.
Plaintiff filed four grievances, from April 12, 2022, through
April 17, 2022, alleging that defendants West and Fenlong
assaulted him on April 11, 2022. See id. (citing Dkt. No. 26-4
at ¶14). The four grievances were consolidated into Grievance
No. GOV-0087022. See id. Due to the nature of the grievance,
it was forwarded to the Superintendent. See id. at 3. On May
5, 2022, the Superintendent issued a determination denying
plaintiff's grievance. See id. at 3 (citing Dkt. No. 26-4 at ¶28).
Defendants contend that plaintiff did not appeal the grievance
denial to CORC. See id. (citing Dkt. No. 26-4 at ¶13).
II. Legal Standards
Fed. R. Civ. P. 56 instructs courts to grant summary judgment
if “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). A fact is “material” if it “might affect the
outcome of the suit under the governing law,” and a dispute
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). Thus, while
“[f]actual disputes that are irrelevant or unnecessary” will
not preclude summary judgment, summary judgment cannot
be granted if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see also
Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only
when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of
informing a court of the basis for its motion and identifying
those portions of the record that the moving party claims will
demonstrate the absence of a genuine dispute of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
After the moving party has met its initial burden, the
nonmoving party “must do more than simply show that there
is some metaphysical doubt as to the material facts” to defeat
summary judgment. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party
may not rely on “mere conclusory allegations, speculation,
or conjecture,” Fischer v. Forrest, 968 F.3d 216, 221 (2d
Cir. 2020), and must present more than a mere “scintilla of
evidence” to support its claims, Anderson, 477 U.S. at 252. At
the same time, a court must resolve all ambiguities and draw
all inferences in favor of the nonmoving party. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S 133, 150 (2000).
The Court “may not make any credibility determinations or
weigh the evidence.” Id. Thus, a court's duty in reviewing
a motion for summary judgment is “carefully limited to
discerning whether there are any genuine issues of material
fact to be tried, not to deciding them.” Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.
1994).
Where, as here, a plaintiff proceeds pro se, the court must
grant him “special solicitude,” construe his submissions
“liberally,” and read such submissions “to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation
marks omitted) (citing Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.
1994)). This is because “a pro se litigant generally lacks both
legal training and experience and, accordingly, is likely to
forfeit important rights through inadvertence if [ ] not afforded
some degree of protection.” Tracy v. Freshwater, 623 F.3d 90,
101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475).
*3 However, the Second Circuit has cautioned district courts
that they “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.”
Triestman, 470 F.3d at 477 (citations omitted). Further, the
“special solicitude” standard does not excuse “frivolous or
vexatious filings by pro se litigants,” nor does it “exempt a
party from compliance with relevant rules of procedural and
substantive law.” Id.
III. Discussion
A. Argument
Defendants argue that this case must be dismissed because
plaintiff did not exhaust his administrative remedies prior
to commencing this action because he did not appeal the
Superintendent's denial of his grievance to CORC. See Dkt.
No. 26-1 at 5. Although plaintiff does not oppose this
motion, in his deposition, he contended that he appealed
the Superintendent's denial to CORC but did not receive a
response. See Dkt. No. 26-5 at 92-93.
B. Analysis
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1. Exhaustion Standards
The Prison Litigation Reform Act (“PLRA”) requires that
a prisoner exhaust any administrative remedies available to
him or her before bringing an action for claims arising out
of his or her incarceration. See 42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions under
section 1983 ... by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.”). The 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). “In accordance with the
PLRA ... [DOCCS] has made available a well-established
inmate grievance program ... [which] involves [ ] following
[a] three-step procedure for the filing of grievances.” Smith
v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y. 2013) (citing 7
N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7).
“Exhaustion is mandatory—unexhausted claims may not be
pursued in federal court.” Amador v. Andrews, 655 F.3d 89,
96 (2d Cir. 2011). Nonetheless, “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)).
“[T]he PLRA requires proper exhaustion, which means using
all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).”
Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir.
2006) (quotation marks and citations omitted). “[O]nce 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)). Availability means “an inmate is required to exhaust
those, but only those, grievance procedures that are ‘capable
of use’ to obtain ‘some relief for the action complained of.’
” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth
v. Churner, 532 U.S. 731, 738 (2001)). “An inmate ... must
exhaust available remedies, but need not exhaust unavailable
ones.” Id.
*4 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.
2. Declarations & Plaintiff's Deposition Testimony
Defendants submit a declaration from Laura Hutchins, the
Incarcerated Grievance Program Supervisor at Gouverneur
Correctional Facility. See Dkt. No. 25-3. Ms. Hutchins
declared that plaintiff successfully completed “shop facility
orientation” on May 16, 2022, through May 22, 2022, during
which time he was given a presentation on how to file and
exhaust grievances. See Dkt. No. 26-3 at 2, 9. Ms. Hutchins
located records of plaintiff having filed four grievances in
April 2022, regarding a staff assault on April 11, 2022, and
that these grievances were consolidated into Grievance No.
GOV-0087-22. See id. at 6.
Gouverneur's records further reveal that the Superintendent
denied plaintiff's consolidated grievance on May 5, 2022. See
Dkt. No. 26-3 at 6 (citing Dkt. No. 26-3 at 16). The denial
form advised plaintiff that “[i]f you wish to appeal the above
decision of the Superintendent, please sign below and return
this copy to the IGRC at the facility where the grievance was
filed. You have seven (7) calendar days from the receipt of
this notice to file your appeal. Please provide a reason why
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you are appealing this decision to CORC.” Id. Ms. Hutchins
declared that Gouverneur's records further show that plaintiff
never appealed the Superintendent's denial of his consolidated
grievance. See Dkt. No. 26-3 at 9.
Defendants further submit a declaration from Rachael
Seguin, Director of the Incarcerated Grievance Program
for DOCCS. See Dkt. No. 26-4 at 1. Ms. Seguin declares
that DOCCS Directive 4040 provides that DOCCS must
“maintain grievance files for the current calendar year and the
previous four calendar years,” that DOCCS maintains such
files, and that “she searched DOCCS records for any appeals
received by CORC relating to plaintiff's instant allegation.”
Dkt. No. 26-4 at 4. The records revealed that plaintiff “has not
appealed any grievances to CORC pertaining to allegations
of Eighth Amendment violations against Defendants Fenlong
and West, while Plaintiff was housed at Gouverneur C.F. in
DOCCS custody under DIN: 22-B-0405.” Id.
Defendants note that plaintiff testified at his deposition that
he “ ‘filed the appeal at Gouverneur in May, like two days
after’ he received the determination.” Dkt. No. 26-1 at 9.
Defendants contend that this assertion is incorrect because
DOCCS and Gouverneur records show that plaintiff never
appealed the Superintendent's denial. See id. Defendants
anticipate a potential argument, based on statements plaintiff
made in his deposition, of the existence of “some type of
conspiracy on behalf of the facility to hide or destroy his
paperwork,” but contend that “such allegations are conclusory
and are not sufficient to defeat a motion for summary
judgment.” Id. Thus, defendants argue that this matter must be
dismissed for plaintiff's failure to exhaust his administrative
remedies before commencing this action.
As plaintiff has not responded to the motion for summary
judgment, the Court does not have before it any of plaintiff's
positions regarding exhaustion. Out of special solicitude to
plaintiff and in an attempt to view the facts in the light
most favorable to the nonmoving party, the undersigned
has searched the record for potential arguments regarding
exhaustion. In his deposition, when asked if he “understand[s]
what the grievance process is at ... the DOCCS facility,”
plaintiff acknowledged that he attended an orientation about
grievances and stated that he “somewhat” understood the
process. Dkt. No. 26-5 at 79. Plaintiff testified that his
understanding of the grievance process is that he needs to
“follow the necessary steps. I have to follow these specific
steps.” Id. He states, “what I can do is I can bring it to the
officer's attention.... If that don't work, maybe speak to a
sergeant or something like that. If that don't get nowhere, I
write a grievance.” Id. at 79. When plaintiff was asked how he
knew to file a grievance, plaintiff stated, “This isn't my first
time in jail. I just – you know, I – I—and these grievances
that I've written, these are the first grievances I ever written
in my whole life. I just – I just knew that, you know what I
mean, I had to report it.” Id. at 80. When asked further how he
knew how to file a grievance, plaintiff responded, “I mean, I
had a bunkie in the box. I just wrote out – it wasn't no specific
thing. I just – I just took a piece of paper and just wrote down
what happened and sent it – and sent it to grievance.” Id. at
81. When the AAG asked how he knew where to send the
grievance, plaintiff testified,
*5 it's no specific place. I was in the
box. It's no specific place you have
to send a grievance. You just slide it
underneath your door. They come and
get the mail. It is not like, no, I could
go and put this in a grievance box. No,
we're locked in already. We're in a box.
Id.
The AAG inquired about the grievance orientation plaintiff
attended, to which plaintiff stated, “I am not sure about that,
man. I am not even going to even – I – I can't answer it.”
Dkt. No. 26-5 at 81-82. Plaintiff testified that he filed “like
five” grievances with respect to the issues underlying this
action. Id. at 82. When asked if he heard back about his
grievances, plaintiff testified, “I received a letter in the mail ...
facility mail, stating me that -- it was stating that it would
– they had shut it down. They – they – they shut down my
grievance. It wasn't accepted.” Id. at 83. In response to the
AAG's question whether he heard back from the grievance
office about his grievances, plaintiff testified, “yes.” Id. at 83.
Plaintiff acknowledged the Superintendent's denial and stated
that he understood the denial to mean, “it wasn't going to be
nothing that was done about the incident and that it was going
to be swept under the rug.” Id. at 84. He further testified that
he understood the Superintendent's denial to mean that “it
wasn't found valid. It was – it was shut down. It wasn't going
through.... Basically, ... it's denied.” Id. at 92.
Plaintiff testified that he “filed the appeal at Gouverneur in
May, like two days after I got – right after I got that paper in
the mail, right, I filed – I filed my appeal for it.” Dkt. No. 26-5
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at 92. He states he did not receive a response to his appeal of
the Superintendent's decision. See id. at 92-93. When asked if
it was his “understanding that the appeal you filed was going
to go to CORC,” plaintiff testified that he “didn't know where
it was going.” Id. He testified affirmatively that he filled out
the bottom portion of the Superintendent's denial form and
sent it in. See id. at 93. When plaintiff did not hear back
on his appeal of the Superintendent's denial, he did not file
another grievance or follow up with any kind of request to
the grievance office. See id. at 94. When asked why he did
not follow up, plaintiff stated, “I was still in that facility right
there. And a lot of the paperwork, a lot of stuff, it was all
against me over there. You get what I'm saying. I really didn't
have a – like I said, I put in five grievances. You showed me
four. I'm missing a grievance. You get what I'm saying?” Id. at
94-95. Plaintiff contended that he was “refused medical over
there. I did not feel safe over there. Any type of paperwork
that I do have and that I was able to escape with out of that
facility, like I'm blessed to have it. Like I – I – I didn't have
no control.” Id.
When questioned about how he filed the appeal of his
grievance denial, plaintiff testified that he “had another fellow
peer help me out in here because I'm – I'm really not law
library savvy like that. So I actually paid somebody to help me
put this whole thing together ... [s]o I could get the help that I
need because I – I – like I said, I've never been involved in this
type of stuff before .... I don't know what I am doing .... I told
my story to a couple guys ... and they helped me to get this
far. And I -- I'm struggling here, man.” Dkt. No. 26-5 at 96.
*6 Plaintiff testified that, to file his appeal of the
Superintendent's denial, he went to the law library with
another inmate who “basically did everything. I signed it and
– and we sent it out.” Dkt. No. 26-5 at 97. Plaintiff testified
that he sent his appeal to “Albany – it went to this same
address that I get all this mail from. It went to office of the
attorney – it went to you.” Id. When asked to clarify if plaintiff
was stating that he sent his appeal of the Superintendent's
decision to the Attorney General's Office, plaintiff stated, “It
went to the – all that – that's all in the same building in
Albany, right? The Attorney General's office and everything
is in Albany, two twenty – I believe it's two twenty.” Id. at
97. When confronted with the fact that the Superintendent's
denial of his grievance contained instructions stating that any
appeal of the Superintendent's decision is to be sent to the
Inmate Grievance Resolution Committee (“IGRC”) at the
facility where the grievance is filed, but that he testified he
sent it to the Attorney General's Office, plaintiff stated that
he was “not even sure” where he sent it. Dkt. No. 26-5 at
97. He stated that he is “pretty sure I sent it to the grievance.
I am not sure where it went, man. I know I sent it out. I
did every little piece of paperwork I was supposed to do.”
Id. at 98-99. When asked whether he was “fearful that your
grievance somehow wouldn't be listened to at that facility,
plaintiff replied “Grievance? I was – was more fearful for my
life.” Id. at 99.
Plaintiff testified that when he was transferred out of
Gouverneur to Cayuga, he did not follow up with the
grievance office at Cayuga or attempt to pursue his grievance
further. See Dkt. No. 26-5 at 95. Plaintiff testified that he
“didn't know I had to” as he already filed five grievances
at Gouverneur and “they shut it down.” Id. at 95. “I put the
appeal in. I didn't hear nothing about the appeal.” Id. He
says when he was transferred to Cayuga, he also did not hear
anything about his appeal. See id. Plaintiff then testified that
he did not attempt to seek the status of his grievance once
he was transferred to Cayuga because he “was happy to get
out of that facility .... it's a whole different environment in the
facility I am in now than Gouverneur. You could – you could
feel the fear over there.” Id. at 100. Plaintiff testified that once
he was transferred to Cayuga, “I could start fresh and then go
about my business, do my time, and get home. I wasn't really
like – I didn't want the whole state against me, man. I didn't
want to leave one jail and then go to another jail and I got the
police all over me there neither. So I wanted to like kind of
fly under the radar.” Id. at 101.
Plaintiff states that upon transfer to Cayuga, he did not
complete another orientation about the grievance procedure.
See Dkt. No. 26-5 at 102. As he had completed a full
orientation at Gouverneur, “the grievance thing was not
discussed” at Cayuga; he underwent a more streamlined
orientation. Id. When asked whether the original orientation at
Gouverneur covered grievances, plaintiff then testified, “I'm
not sure about all that, man. I – that's not something that I
am paying attention to, man. I came to jail to do my time,
man. Not write grievances, man. You get what I'm saying?
That's – that's – that's just what it boils down to.” Id. at 102.
When asked to clarify whether he was testifying that he never
attended an orientation that went over the grievance process,
plaintiff again stated, “I'm not sure, man. I – maybe don't be
paying attention to a lot of shit. If it – if it don't – if it don't
affect me or something like that, I'm just not paying attention
to everything. I have a short attention span on certain things.”
Id.
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Plaintiff testified that once he was transferred to Cayuga, he
was in general population, but when asked whether plaintiff
could have “stopped by the grievance office at any point in
time,” he testified, “I mean, yeah. Yes, I guess. I'm not even
sure if we even have a grievance building here at all.” Dkt. No.
26-5 at 105. Plaintiff further testified that while at Cayuga,
he was not “intimidated all,” “assaulted at all,” or “in fear for
[his] life at all,” by Cayuga staff. Id.
3. Exhaustion of Administrative Remedies
Here, the record is clear that plaintiff did not exhaust
his administrative remedies before commencing this
action. Although plaintiff testified that he appealed the
Superintendent's denial of his grievance with help from a
fellow inmate, he testified that was unsure if he sent the appeal
to the IGRC or to the Attorney General's Office or another
agency in Albany. The Court has before it no proof of his
alleged appeal.
*7 Plaintiff's testimony on exhaustion is littered with
contradictions and lacks support. Plaintiff testified that he
never received a response to his appeal, but did not follow up
while he was at Gouverneur or Cayuga. Plaintiff's testimony
was conflicting as to why plaintiff did not follow up. He
indicated that he did not fully understand the grievance
procedure, stating that he was not fully sure whether he
was given a presentation about the grievance process at
Gouverneur's orientation because he stopped paying attention
based on his belief that it was not applicable to him or due to
his short attention span. See Dkt. No. 26-5 at 102. Elsewhere
in his deposition plaintiff suggests he was in fear for his life
while at Gouverneur, but when asked if he feared filing an
appeal to CORC, he indicated he had a general fear for his
life at Gouverneur rather than a specific fear of proceeding
with the grievance procedure. See Dkt. No. 26-5 at 99. Yet,
plaintiff conceded that he did file four to five grievances while
at Gouverneur. Plaintiff testified that he did not follow up on
the grievance or pursue anything further when transferred to
Cayuga because he did not know he was supposed to. See id.
at 101. However, he also testified that he did not follow up
on his grievance once at Cayuga because he was trying to fly
under the radar, complete his time in custody, and go home.
See Dkt. No. 26-5 at 100-101.
In support of their motion for summary judgment, defendants
provide the declarations of Ms. Hutchins and Ms. Seguin, who
both declared that they checked records at both Gouverneur
and DOCCS and there is no record of his appeal. See Dkt.
Nos. 26-3, 26-4. Plaintiff does not counter defendants’ proof
with supported arguments or evidence; he does not provide
to the Court a copy of his appeal or any clarity on where
he alleges to have sent the appeal. See Dkt. No. 26-5 at 12;
See Gibbs v. Gadway, No. 9:19-CV-281 (GTS/DJS), 2019
WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019), report and
recommendation adopted, No. 9:19-CV-0281 (GTS/DJS),
2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (“Plaintiff
makes a purely conclusory allegation that he appealed the
grievance denial to CORC. Significantly, plaintiff has not
provided a copy of the grievance appeal or even asserted on
what date he filed the appeal. 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.”); see also Blake v. Porlier, No. 9:18-CV-1008
(DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y. Oct. 4,
2019), report-recommendation adopted, No. 9:18-CV-1008
(DNH/CFH), 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020) (“Even
considering that plaintiff swore under penalty of perjury that
he mailed a grievance within the allotted time frame, he did
not provide any evidence to substantiate his allegations. [ ]
Therefore, plaintiff's unsupported allegations cannot give rise
to an issue of material fact sufficient to defeat a motion for
summary judgement.) (citations omitted)). “In short, ‘[g]iven
the lack of evidence that Plaintiff's appeal to CORC was ever
filed, or ever followed up on, it is not that the full scope of
administrative remedies was not available to Plaintiff – rather,
Plaintiff failed to fully exhaust the administrative remedies
available to him.’ ” Shabazz v. Bailey, No. 9:20-CV-00057
(LEK/TWD), 2023 WL 5779533, at *7 (N.D.N.Y. June 28,
2023), report and recommendation adopted, No. 9:20-CV-57
(LEK/TWD), 2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023),
aff'd, No. 23-7252, 2025 WL 272602 (2d Cir. Jan. 23,
2025) (quoting Houston v. Coveny, No. 14-CV-6609, 2020
WL 2494439, at *3 (W.D.N.Y. May 14, 2020) and citing
Litchmore v. Williams, No. 11-CV-7546, 2013 WL 3975956,
at *6 (S.D.N.Y. Aug. 5, 2013) (“no ‘sufficient basis in the
record to find that administrative remedies were unavailable’
where, among other things, there was ‘no evidence here
that the plaintiff's appeal was actually mailed, intercepted,
or ignored’ and ‘DOCCS has no record of any appeal filed
with CORC’ ”)). “If a prisoner has failed to properly follow
each of the applicable steps before commencing litigation,
he has failed to exhaust his administrative remedies.” Scott
v. Uhler, No. 9:16-CV-403 (TJM/CFH), 2019 WL 5197139,
at *5 (N.D.N.Y. July 31, 2019), report and recommendation
adopted, 2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019).
Accordingly, the undersigned concludes that plaintiff has
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failed to exhaust his administrative remedies in that he has not
raised a material question of fact as to whether he appealed
the Superintendent's denial of his grievance to CORC. Thus,
the undersigned must next assess whether administrative
remedies were available to plaintiff.
4. Availability of Administrative Remedies
*8 New York law establishes a three-step grievance
and appeal process for prisoners. See N.Y. Comp. Codes
R. & Regs. tit. 7 (“7 N.Y.C.R.R.”), § 701.5. That
process consists of the following: (1) “[a]n inmate must
submit a complaint” with the Inmate Grievance Resolution
Committee, id. § 701.5(a)-(b); (2) if the inmate disagrees
with the response to the grievance, the inmate must “appeal
to the superintendent,” id. § 701.5(c); and (3) if the
inmate disagrees with the superintendent's findings, he
must “appeal to the CORC ... within seven calendar days
after receipt of the superintendent's written response to the
grievance,” id. § 701.5(d). “A prisoner has not exhausted
his administrative remedies until he goes through all three
levels of the grievance procedure.” Toussaint, 660 F. Supp.
2d at 523 (cleaned up). The statute also states, “[i]f a
grievant does not receive a copy of the written notice of
receipt within 45 days of filing an appeal, the grievant
should contact the IGP supervisor in writing to confirm
that the appeal was filed and transmitted to CORC.” 7
N.Y.C.R.R. § 701.5(d)(3).
Foskey v. Paige, No. 9:20-CV-504 (LEK/TWD), 2024 WL
2109150, at *3 (N.D.N.Y. May 10, 2024). 2
Applying special solicitude, it is arguable that plaintiff is
contending that administrative remedies were unavailable on
several grounds, some of them conflicting. The Supreme
Court of the United States has identified three circumstances
in which a court may find administrative remedies are not
“available” for PLRA purposes:
First, ... an administrative procedure
is unavailable when ... it operates
as a simple dead end—with officers
unable or consistently unwilling to
provide any relief to aggrieved
inmates.... Next, an administrative
scheme might be so opaque that
it becomes, practically speaking,
incapable of use. In this situation,
some mechanism exists to provide
relief, but no ordinary prisoner can
navigate it .... And finally, the same
is true when prison administrators
thwart inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Ross, 578 U.S. at 643-44. The Second Circuit has interpreted
these three circumstances as nonexhaustive as Ross focused
on the “three kinds of circumstances that were ‘relevant’ to
the facts of that case.” Williams v. Correction Officer Priatno,
829 F.3d 118, 124 n.2 (2d Cir. 2016) (citing Ross, 578 U.S.
at 643).
5. Was the Grievance Process Opaque?
a. Did Not Know How to Grieve
First, plaintiff's deposition testimony suggests that he did
not fully exhaust because was not sure how to complete the
grievance process. He testified that he had been incarcerated
in state facilities before his incarceration at Gouverneur in
2022 but never had filed a grievance before the ones he
submitted in this action. Plaintiff admits that he attended
Gouverneur's “shop facility orientation,” but states that he
was unaware if he was taught how to exhaust administrative
remedies because he did not pay attention. See Dkt. No. 26-5
at 102
The undersigned observes that the underlying incidents
are alleged to have occurred on April 11, 2022. Plaintiff
filed his four or five grievances in April 2022, which
were consolidated. The Superintendent denied plaintiff's
consolidated grievance on May 5, 2022. Plaintiff attended
“shop facility orientation” from May 16, 2022, to May 22,
2022. See Dkt. No. 26-3 at 9. Plaintiff alleges to have
appealed 3 to CORC within two days of receiving his
denial, meaning this all occurred before he competed his
facility orientation training regarding how to file and exhaust
grievances on May 16-22, 2022. See Dkt. No. 25-3 at 16; Dkt.
No. 26-3 at 9.
*9 The undersigned assesses whether plaintiff's statement
that he did not know how to grieve is sufficient to raise
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a valid argument as to opaqueness. The Second Circuit
recently explained the “opaqueness” exception to the PLRA's
exhaustion requirement applies where “[t]he regulations
simply do not contemplate the situation in which [the
prisoner] found himself, making it practically impossible
for him to ascertain whether and how he could pursue his
grievance.” Williams v. Priatno, 829 F.3d 118, 124 (2d Cir.
2016).
Liberally read, plaintiff's deposition testimony suggests
that he did not understand the grievance procedure at
any stage. However, even accepting as true that plaintiff
did not fully understand what steps needed to be taken
to exhaust his administrative remedies, plaintiff does not
demonstrate that his ignorance of the grievance process
rendered administrative remedies “opaque” as that term is
contemplated by precedent.
To the extent plaintiff appears to have testified that he did
not know how to proceed with the grievance process, plaintiff
conceded that he: was aware that a grievance process existed;
knew he had to “follow the necessary steps. I have to
follow these specific steps”; knew that if informal methods
of resolution were unsuccessful, he should file a grievance;
asked his “bunkie” to help him file grievances; filed at least
four grievances with respect to the underlying incident; and
hired a fellow inmate to assist him. Dkt. No. 26-5 at 79.
“[S]ince Plaintiff was able to discern and navigate the first
two steps of the grievance process, there is nothing to suggest
that the third step, the appeal to CORC, was opaque to such
a point that it became incapable of use.” Beauvoir v. Smith,
No. 9:14-CV-1495 (MAD/DEP), 2017 WL 4271636, at *3
(N.D.N.Y. Sept. 26, 2017).
Defendants submit records from Gouverneur demonstrating
that plaintiff successfully completed shop facility orientation
which included training on how to file a grievance and
exhaust administrative remedies. When asked about such
training, plaintiff gave vague and dismissive answers,
suggesting he was unsure if he learned about how to proceed
with a grievance and the various steps required because he
did not pay attention, believing that it was not relevant to him
and/or because he did not have a sufficient attention span to
focus. Plaintiff testified that he did not know how to grieve
and properly exhaust his grievance does demonstrate that
administrative remedies were unavailable to him. Plaintiff
concedes that he attended the orientation, but that he was
unsure if he was taught how to proceed through the grievance
process because he did not pay attention as he felt the
information was not relevant to him or he zoned out due to
attention span issues.
Similarly, when confronted at his deposition with the fact
that the Superintendent's denial of his grievance included
instructions that advised him that if he wished to appeal
the denial, he was to sign and return the appeal section to
the IGRC, plaintiff did not deny that the form contained
such instruction, but responded that he was “not even sure”
where he sent the appeal and was “pretty sure I sent it to
the grievance. I am not sure where it went, man. I know
I sent it out. I did every little piece of paperwork I was
supposed to do.” Dkt. No. 26-5 at 97-99. Plaintiff's choosing
not to pay attention to the training needed to learn how to
exhaust or declining to seek assistance does not demonstrate
that the grievance process was “essentially unknowable.”
Hill v. Tisch, No. 02-CV-390, 2016 WL 6991171, at *7
(E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to
demonstrate that the grievance “procedures were essentially
unknowable”). It demonstrates that plaintiff actively chose
against educating himself or allowing his facility to educate
him as to the grievance procedure.
*10 The undersigned recognizes that plaintiff's orientation
took place after he filed his grievances and received the
Superintendent's denial. Thus, although he may have been
untrained regarding the grievance process at the time he filed
his grievances and received the Superintendent's denial, he
attended such training by May 22, 2022, at the latest. Upon
completing the orientation, he could have reached out to the
IGRC or CORC and requested an extension 4 of time to
appeal to CORC, citing mitigating circumstances, but failed
to do so. See 7 NYCRR § 701.6(g); 5 see generally Valverde
v. Folks, No. 1:19-CV-08080-MKV, 2022 WL 836310, at
*7 (S.D.N.Y. Mar. 21, 2022) (“As such, it is possible that
if Plaintiff had sought an extension to file an appeal from
CORC, he could have received one. Plaintiff never did so.”),
aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10,
2023). Plaintiff's failure to avail himself of the grievance
procedure is based on his ignorance of the training and failure
to seek out resources rather than the opacity of the procedure.
“Courts within the Second Circuit are split regarding whether
a failure to respond by CORC constitutes unavailability
excusing a plaintiff's failure to exhaust.” High v. Switz,
No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *4
(N.D.N.Y. July 9, 2018), report and recommendation adopted
sub nom. High v. PA Switz, No. 9:17-CV-1067 (LEK/DJS),
2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018). Indeed, the
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regulations “ ‘do not describe a mechanism’ for appealing
or advancing a grievance when a grievant does not receive a
response from CORC.” Id. at *5 (quoting Williams, 829 F.3d
at 124).
Plaintiff's case differs from those in which courts held
administrative remedies were unavailable where a plaintiff
appealed to CORC, but CORC never responded or failed to
respond within a reasonable period of time. See, e.g., High,
2018 WL 3736794, at *4 (exclusing the plaintiff's failure
to exhaust where the plaintiff appealed to CORC but never
received a response, finding administrative remedies were
unavailable when CORC failed to respond). Unlike in those
cases, 6 where the Court found that administrative remedies
were unavailable because the regulations did not explain what
an inmate should do if he appealed to CORC but receives no
response, in those cases there did not appear to be a question
whether the plaintiffs actually appealed to CORC. Here,
plaintiff presents no details nor any proof of his alleged appeal
to CORC beyond his conclusory claim during his deposition.
He testified that he appealed the Superintendent's denial, but
offered conflicting testimony over where the appeal was sent
– either to the Attorney General's Office or another agency “in
Albany” or to the IGRC, did not provide a copy of the appeal,
and did not indicate that he ever attempted to follow up with
CORC or the IGRC after failing to receive any response
from his appeal. See Valverde v. Folks, No. 1:19-CV-08080
(MKV), 2022 WL 836310, at *8 (S.D.N.Y. Mar. 21, 2022),
aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10,
2023) (“Here, unlike Williams [v. Priatno], Plaintiff concedes
that his initial grievance was processed and answered. [ ] ....
Plaintiff had an avenue to appeal the denial of his grievance,
however he filed the appeal form improperly and it does not
appear that he made any attempt to ever ask the grievance
supervisor for confirmation that his appeal was received.”).
*11 Plaintiff proffered no argument or evidence that he
“received written notice that the appeal was filed or that
he attempted to contact CORC of the IGRC ... regarding
the status of his appeal before commencing this action.”
Bowie v. Woodruff, No. 9:1-8CV-0266 (BKS/ML), 2019
WL 7606078, at *6 (N.D.N.Y. Sept. 20, 2019), report and
recommendation adopted, No. 9:18-CV-00266 (BKS/ML),
2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019) (citing Fox v.
Lee, 9:15-CV-0390 (TJM/CFH), 2018 WL 8576600, at *7
(“granting summary judgment because the plaintiff did not
proffer evidence that he wrote to the IGRC or CORC inquiring
as to the status of his appeals” and “ ‘never contacted Eastern's
[IGP supervisor] in writing ... to confirm that any of his
appeals were filed and transmitted to CORC.’ ”) vacated in
part on other grounds 2023 WL 7481423 (2d. Cir. Nov. 13,
2023); see § 701.5(d)(3)(i) (noting that the IGRC dates all
CORC appeals and will forward the inmate a copy of the
receipt, and that “[i]f a grievant does not receive a copy
of the written notice of receipt within 45 days of filing an
appeal, the grievant should contact the IGP supervisor in
writing to confirm that the appeal was filed and transmitted
to CORC.”). Indeed, “[t]he record is devoid of any indication
that Plaintiff followed up with the [facility] IGP supervisor
‘to confirm that the appeal was filed and transmitted to
CORC’ when he did not receive written confirmation within
forty-five days that his appeal was received.” Shabazz, 2023
WL 5779533, at *7 (quoting 7 N.Y.C.R.R. § 701.5(d)(3)
(i) and citing Simpson v. Price, No. 9:19-CV-1413 (MAD/
ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021))
(“granting summary judgment on exhaustion grounds where
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’ and
there was no documentary evidence to corroborate the fact
plaintiff attempted to file a grievance, such as follow-up
correspondences.”); see Gizewski v. N.Y. State Dep't of Corr.
& Cmty. Supervision, No. 9:14-CV-124, 2016 WL 3661434,
at *13 (N.D.N. Y July 5, 2016) (concluding that the plaintiff
did not exhaust his administrative remedies because he failed
to take further action under § 701.5(d)(3)(i) when he did not
receive written notice of receipt by the CORC within 45 days
of filing his appeal; he did not contact the Inmate Grievance
Program to ascertain whether CORC received his appeal),
aff'd, 692 F. App'x 668 (2d Cir. 2017)).
By contrast, defendants produce records from both
Gouverneur and DOCCS, along with declarations from the
officials who maintain such records, showing that they have
no record of plaintiff having ever filed an appeal of the
Superintendent's denial of his grievance. See Dkt. Nos. 26-3,
26-4 at 7-8. Accordingly, plaintiff has failed to demonstrate
that his lack of understanding of grievance process amounts
to the grievance process being so opaque to be rendered
incapable of use.
b. Transfer
Further, plaintiff's transfer from Gouverneur to Cayuga
“does not excuse his failure to exhaust, as the grievance
process is identical in all New York state-run facilities.”
Campbell v. Prue, No. 9:16-CV-0004 (MAD/CFH), 2018
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WL 4635708, at *5 (N.D.N.Y. July 3, 2018), report and
recommendation adopted, No. 9:16-CV-0004 (MAD/CFH),
2018 WL 3574871 (N.D.N.Y. July 25, 2018) (citing Hartry
v. Cnty. of Suffolk, 755 F.Supp. 2d 422, 434 (E.D.N.Y.
2010)) (“[S]ome courts [ ] have found that transfer within
correctional facilities governed by the same governmental
agency will not excuse exhaustion, regardless of whether
the inmate had an opportunity to pursue the remedy while
at the facility where the claim arose.”) (additional citations
omitted).
Plaintiff testified at his deposition that he did not attempt to
follow up on his grievance after being transferred to Cayuga.
Plaintiff offered conflicting testimony for his reasoning
behind declining to follow up once he reached Cayuga. First,
plaintiff testified that he did not follow up at Cayuga regarding
his grievance because he did not know he was supposed to
follow up there. However, he later testified that he decided
not to pursue his grievance once at Cayuga because he
wanted to be able to serve out his time at Cayuga without
being “noticed.” Dkt. No. 26-5 at 101. Second, plaintiff
made clear that he was not in any fear while incarcerated
at Cayuga. Thus, he was not prevented from pursuing his
grievance at Cayuga. Further, as noted, plaintiff received the
Superintendent's denial of his grievance on May 5, 2022,
and remained at Gouverneur until June 13, 2022, giving him
sufficient time to pursue an appeal at Gouverneur before his
transfer. See Dkt. No. 26-2 at 2. Plaintiff's conclusory and
conflicting statements that he did not know how to use the
grievance procedure fails to demonstrate that, as a result of his
transfer to Cayuga, administrative remedies were so opaque
they were rendered incapable of use.
6. Grievance Process as a Dead End
*12 Plaintiff testified that he did not know the next step
he was supposed to take when he did not receive a response
from his alleged appeal to CORC. Plaintiff further testified
that he filed a fifth grievance regarding “medical” while
at Gouverneur but that he did not receive a response. Dkt.
No. 26-5 at 94-95. Applying a very liberal reading of
this testimony, plaintiff's statements could be interpreted as
arguing that the grievance procedure operated as a “dead
end.” However, plaintiff's testimony on this point fails to raise
a material question of fact for the reasons discussed below.
Courts have rejected arguments that the grievance procedure
was a “dead end” where the plaintiffs chose to participate
in the grievance procedure in some way, even in unrelated
matters, concluding that such participation demonstrates that
the plaintiffs did not view the grievance procedure as a
dead end. See Luke Matthews, et al. v. L. Sweeny, Clinton
Corr. Sergeant, et al., No. 9:17-CV-0503 (GTS/ML), 2025
WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025)
(citing Walker v. Ball, 16-CV-0437, 2018 WL 1415212,
at *5 (N.D.N.Y. Feb. 16, 2018)) (“While Plaintiff did not
file any grievances regarding the alleged misconduct of
Noonan and St. Johns ..., he did file grievances regarding
other issues .... This shows that Plaintiff did not view the
filing of grievances as a dead end.”), report recommendation
adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (and
others); see Barrett v. Ballard, No. 9:23-CV-113 (DNH/
DJS), 2024 WL 4627511, at *4 (N.D.N.Y. Oct. 4, 2024),
report and recommendation adopted, No. 9:23-CV-113, 2024
WL 4627801 (N.D.N.Y. Oct. 30, 2024) (“Plaintiff makes no
argument that the grievance process was unavailable to him
and cannot carry that burden especially since he claims that
he did, in fact pursue, at least at the outset, to resolve this
issue through the grievance process.”). Here, plaintiff filed
at least four grievances regarding the issues underlying this
complaint; thus, any argument suggesting that he believed the
grievance procedure to be a dead end is without force.
To the extent plaintiff's testimony that he filed a fifth
grievance that went “missing” could suggest that he believed
the grievance process was a dead end, “Courts within the
Second Circuit have continuously held that ‘mere contentions
or speculation of grievances being misplaced by officers do
not create a genuine issue of material fact when there is
no evidence to support the allegations.’ ” Blake v. Porlier,
No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at
*5 (N.D.N.Y. Oct. 4, 2019) (quoting Rodriguez v. Cross,
No. 9:15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *5
(N.D.N.Y. May 9, 2017) report and recommendation adopted,
2017 WL 1076343 (N.D.N.Y. Mar. 22, 2019)). Plaintiff
offers no proof that he filed a fifth grievance relating to the
matters underlying this suit or any support for his conclusory
claim that the fifth grievance was filed and went missing.
See Rodriguez, 2017 WL 2791063, at *5 n.13 (finding that
the plaintiff's failure to exhaust was not excused because,
although the plaintiff “state[d] that some grievances were
destroyed ... he ha[d] not submitted any copies of these
grievances, nor d[id] he specify when he attempted to file
them.”).
In sum, the undersigned concludes that plaintiff has failed
to demonstrate a material question of fact as to whether
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the grievance process amounted to a “dead end” such that
administrative remedies were unavailable to him.
7. Fear
Plaintiff testified that he was in fear for his life while he was
incarcerated at Gouverneur. See Dkt. No. 26-5 at 99. When
asked for clarification as to whether he was afraid to file a
grievance, plaintiff stated, “Grievance? I was – was more
fearful for my life.” Id. Plaintiff testified, however, that he
was not in fear once he was transferred to Cayuga. See id. at
100. He testified that he did not pursue his grievance after not
receiving a response to his alleged appeal because he did not
know he was “supposed to” but also because he “didn't want
the whole state against me, man. I didn't want to leave one
jail and then go to another jail and I got the police all over me
there neither. So I wanted to like kind of fly under the radar.”
Id. at 101.
*13 Administrative remedies may be unavailable
where “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860.
However, a generalized fear of retaliation is insufficient
to overcome a failure to exhaust administrative remedies.
Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016
WL 4411338, at *5 (N.D.N.Y. July 5, 2016). Estoppel is
found where “verbal and physical threats of retaliation,
physical assault, denial of grievance forms or writing
implements, and transfers” occur showing that defendants
acted affirmatively to prevent an inmate from availing him
or herself of the grievance procedures. Id. at *5 (quoting
Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)).
Pridgen v. Beatie, No. 9:16-CV-535 (DNH/CFH), 2018
WL 1402049, at *8 (N.D.N.Y. Jan. 17, 2018), report and
recommendation adopted, No. 9:16-C-V535 (DNH/CFH),
2018 WL 1394146 (N.D.N.Y. Mar. 19, 2018).
Here, plaintiff's generalized, conclusory arguments about
being in fear while at Gouverneur fail to state a
viable unavailability argument under the “machination,
misrepresentation, or intimidation” exception. Ross, 136 S.
Ct. at 1860. Plaintiff does not assert that any specific
individual at Gouverneur prevented him from filing an
appeal by threatening or intimidating him. Plaintiff offers no
argument or proof that defendants or other prison officials
“affirmatively or misleadingly prevented Plaintiff from filing
the appeal to CORC” or otherwise pursuing his administrative
remedies.” Shabazz, 2023 WL 5779533, at *7. Further, when
asked if he were afraid of filing a grievance, his response
suggested that he was fearful, generally, during his time at
Gouverneur, and suggested that he was not specifically afraid
of proceeding with his grievance. See Dkt. No. 26-5 at 99.
Significantly, the undisputed facts in this case belie any claims
of fear. Plaintiff filed four – and argues he filed five –
grievances at Gouverneur, defeating an argument that he was
too afraid for his life to take advantage of his administrative
remedies. See, e.g., McNab v. Doe, 686 F. App'x 49, 51 (2d
Cir. 2019) (summary order) (affirming summary judgment
dismissing the plaintiff's complaint for failure to exhaust
where although the plaintiff asserted that the defendants tried
to intimidate him because “none of the actions allegedly taken
by the defendants actually prevented [him] from submitting
his complaint letter.”); Riles v. Buchanan, 656 F. App'x
577, 581 (2d Cir. 2016) (summary order) (finding that the
defendants’ alleged threats of retaliation did not interfere
with the plaintiff's exhaustion efforts because, following a
threat, the plaintiff “thereafter submitted ... [a] grievance
in spite of this alleged threat”); Hall v. Annucci, No. 19-
CV-5521 (KMK), 2022 WL 3903255, at *10 (S.D.N.Y.
Aug. 30, 2022), aff'd, No. 22-2031, 2023 WL 7212156 (2d
Cir. Nov. 2, 2023) (“[w]here an inmate files a grievance
or appeals a grievance determination after having received
threats or suffered retaliation, the inmate's conduct ‘directly
cuts against’ ... [an] argument that ... administrative remedies
were unavailable.”) (citation omitted).
*14 Accordingly, the undersigned concludes that
plaintiff fails to demonstrate that administrative remedies
were unavailable to him on the ground that “prison
administrators thwart[ed] [him] from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Ross, 578 U.S. at 643-44.
C. Doe Defendants
The undersigned observes that plaintiff has failed to identify
or serve process on John Does 1-8, as required by Rule 4(m)
and N.D.N.Y. Local Rule 4.1, despite having ample time
and opportunity. Plaintiff commenced this action on March
8, 2023. See Compl. Discovery in this action expired in
March 2024. See Dkt. No. 22. Plaintiff has had a substantial
amount of time to identify and serve the Doe defendants,
“and the Court is under no obligation to extend the deadline
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indefinitely.” Santiagocruz v. Doe #4, No. 9:21-CV-0806
(TJM/ML), 2023 WL 9600956, at *1 n.1 (N.D.N.Y. Dec.
15, 2023), report and recommendation adopted sub nom.
Santiagocruz v. Gordon, No. 9:21-CV-806, 2024 WL 532499
(N.D.N.Y. Feb. 8, 2024) (citation omitted); see Waldo v.
Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct.
1, 1998) (Kahn, J.) (dismissing claims against Doe defendants
pursuant to Fed. R. Civ. P. Rule 4(m) where the pro se
plaintiff failed to serve the Doe defendants within a year of
commencing the action).
“All discovery is complete and thus, [P]laintiff's failure to
identify the ‘John Doe’ defendant[s] mandates dismissal.”
Epps v. City of Schenectady, No. 10-CV-1101, 2013 WL
717915, at *5 (N.D.N.Y. Feb. 27, 2013). Accordingly, the
undersigned recommends sua sponte dismissal of defendants
John Does 1-8 from this action without prejudice.
D. Dismissal
The Second Circuit has “recognized that failure to exhaust
administrative remedies is usually a ‘curable, procedural
flaw’ that can be fixed by exhausting those remedies and
then reinstituting the suit.” Neal v. Goord, 267 F.3d 116,
123 (2d Cir. 2001) (quoting Snider v. Melindez, 199 F.3d
108, 111-12 (2d Cir. 1999)), overruled on other grounds
by Porter v. Nussle, 534 U.S. 516 (2002). Thus, where
a claim is dismissed for failure to exhaust administrative
remedies, dismissal without prejudice is appropriate if the
time permitted for pursuing administrative remedies has not
expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004); see
Pettus v. McCoy, 04-CV-0471, 2006 WL 2639369, at *1-2
(N.D.N.Y. Sept. 13, 2006) (dismissing a complaint without
prejudice for failure to exhaust). However, if a prisoner 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,
86 (2d Cir. 2004); see, e.g., Hilbert v. Fischer, 12-CV-3843,
2013 WL 4774731, at *7 (S.D.N.Y. Sept. 5, 2013) (collecting
cases).
Here, plaintiff received the Superintendent's denial on May
3, 2022, and he commenced this action March 8, 2023. As
plaintiff's time to exhaust his administrative remedies has
expired, it is recommended that his complaint be dismissed
with prejudice.
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
RECOMMENDED, that defendants’ West and Fenlong's
Motion for Summary Judgment, Dkt. No. 26, be GRANTED
in its entirety with prejudice; and it is further
*15 RECOMMENDED, that the claims against the
Doe defendants be DISMISSED without prejudice based
on plaintiff's failure to timely identify and serve those
defendants; and it is
ORDERED, that the Clerk serve this Report-
Recommendation & Order on the parties in accordance with
the 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. See Roldan
v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a),
6(e). 7
All Citations
Slip Copy, 2025 WL 1033787
Footnotes
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1 Unless otherwise noted, the Court has provided plaintiff with copies of all unpublished cases cited herein.
2 As in this case,
There are ... special procedures that may be used when the grievance involves a claim of staff misconduct.
Id. § 701.8. A grievance alleging staff misconduct, once it is recorded and given a number, must be sent
directly to the Superintendent, and the Superintendent must issue a decision within twenty-five days. Id. §
701.8(f). If the grievant wishes to appeal a decision by the Superintendent to CORC, he must file a notice
of decision to appeal with the inmate grievance clerk at the bottom of the Superintendent's decision within
seven days of receipt of the decision. Id. § 701.8(h). CORC is required to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.8(i) (incorporating § 701.5).
Ayers v. Trombley, No. 9:17-CV-01229 (DNH/TWD), 2019 WL 3892864, at *10 (N.D.N.Y. July 8, 2019), report
and recommendation adopted, No. 9:17-CV-1229 (DNH/TWD), 2019 WL 3891027 (N.D.N.Y. Aug. 19, 2019).
3 As concluded, supra, the undersigned has found that plaintiff failed to demonstrate that he appealed the
Superintendent's denial to CORC.
4 The regulations provide that an individual who wishes to appeal a Superintendent's denial in the expedited
procedure has seven calendar days after receipt of the denial to do so. See 7 N.Y.C.R.R. 701.6(h)(2).
The Superintendent's denial of his grievance is dated May 5, 2022. It is unclear when he received the
Superintendent's denial, but the undersigned recognizes that his training likely came after the seven-day
period had expired. However, plaintiff demonstrates that his absence of formal training at Gouverneur did not
stop him from successfully navigating the grievance procedure at the earlier stages.
5 A request for an extension of time to file an appeal to CORC may be requested in writing, but “an exception
to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.”
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(1)(i)(a), (b). An inmate may choose to file a separate grievance
if a request for an extension is denied. See id. § 701.6(1)(i)(b). Plaintiff completed the shop facility orientation
on May 22, 2022, within forty-five days after the alleged occurrence on April 11, 2022. Thus, even if he was
untrained on how proceed with the grievance process after receiving the Superintendent's denial until after he
completed training, he still had time to request an extension to do so after receiving training. In such training,
he would have likely also been advised to write to CORC or the IGRC if he did not receive confirmation of
receipt of an appeal.
6 Further, in some cases addressing unavailability when an appeal to CORC is unanswered, the court found
administrative remedies unavailable where the inmate plaintiff was transferred before receiving a response;
here, however, plaintiff received the Superintendent's denial before being transferred and remained at
Gouverneur for over a month after receipt of the denial. See, e.g., Robinson v. Ballard, 9:13-CV-01213 (TJM/
TWD), 2017 WL 979047, at *12 (N.D.N.Y. Feb. 3, 2017), report and recommendation adopted, 2017 WL
979039 (N.D.N.Y. Mar. 13, 2017) (citing Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016)) (“as in Williams,
Plaintiff in this case was transferred to a new facility before receiving a response to his grievance and failed
to receive a response after the transfer.”); See Dkt. No. 26-2 at 2.
7 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 FED. R. CIV.
P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(C).
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Jackson v. West, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 814966
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Craig A. JACKSON, Plaintiff,
v.
Sergeant WEST, et al., Defendants.
9:23-CV-306 (LEK/PJE)
|
Signed March 14, 2025
Attorneys and Law Firms
Craig A. Jackson, Moravia, NY, Pro Se.
Alexandra L. Galus, Anthony Huntley, Lauren Rose
Rosenberg, NYS Office of the Attorney General, Albany, NY,
for Defendants Sergeant West, D. Fenlong.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Craig A. Jackson brings this pro se action
pursuant to 42 U.S.C. § 1983 against Defendants Sergeant
West, D. Fenlong, and eight John Does, asserting violations
of his constitutional rights. Dkt. No. 1. Defendants West
and Fenlong filed a motion for summary judgment, arguing
that Plaintiff failed to exhaust his administrative remedies
before commencing this action. Dkt. No. 26 (“Motion”). On
February 20, 2025, the Honorable Paul Evangelista, United
States Magistrate Judge, issued a report and recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d),
recommending that the Motion be granted. Dkt. No. 30
(“Report and Recommendation”).
No party has filed objections to the Report and
Recommendation. For the reasons that follow, the Court
adopts the Report and Recommendation in its entirety.
II. BACKGROUND
The Court assumes familiarity with the factual background
detailed in the Court's April 18, 2023 Memorandum-Decision
and Order. See Dkt. No. 4 at 2–3.
In his analysis, Judge Evangelista first noted that Plaintiff
filed four grievances relating to the staff assault that occurred
in April 2022. Id. at 8. Those grievances were consolidated
into one, id., which was denied on May 5, 2022, id. at 9. Judge
Evangelista then explained that Plaintiff was informed that he
could appeal the decision to the Superintendent of his facility,
but the records reveal that he never did so. Id. While Plaintiff
testified that he did file an appeal, Judge Evangelista found
Plaintiff's testimony to be “littered with contradictions and
lack[ing] support,” such that there was no genuine dispute of
fact on this issue. Id. at 15. He concluded that Plaintiff did not
exhaust his administrative remedies. Id. at 17.
Judge Evangelista then examined whether the grievance
process was “unavailable” to Plaintiff, such that Plaintiff
may be excused from the exhaustion requirement. Id. at
19–31. First, Judge Evangelista found that “[P]laintiff has
failed to demonstrate that his lack of understanding of [the]
grievance process amounts to the grievance process being
so opaque to be rendered incapable of use.” Id. at 25–26.
Next, Judge Evangelista found that “[P]laintiff has failed
to demonstrate a material question of fact as to whether
the grievance process amounted to a ‘dead end’ such that
administrative remedies were unavailable to him.” Id. at 29.
Lastly, Judge Evangelista explained that “Plaintiff fails to
demonstrate that administrative remedies were unavailable
to him on the ground that prison administrators thwarted
him from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 31
(cleaned up).
Judge Evangelista thus recommended that the Motion be
granted in its entirety. Id. at 33. Further, Judge Evangelista
recommended that the Court sua sponte dismiss Plaintiff's
claims against the eight John Does, because discovery has
completed and Plaintiff failed to identify the defendants. Id.
at 31–32.
III. LEGAL STANDARD
“Within fourteen days after being served with a copy [of
the Magistrate Judge's report and recommendation], any
party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court.”
28 U.S.C. § 636(b)(1)(C); see also L.R. 72.1. However, if
no objections are made, a district court need only review a
report and recommendation for clear error. See DiPilato v.
7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009)
(“The district court may adopt those portions of a report and
recommendation to which no timely objections have been
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made, provided no clear error is apparent from the face of
the record.”). Clear error “is present when upon review of
the entire record, the court is left with the definite and firm
conviction that a mistake has been committed.” Rivera v. Fed.
Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y. 2019)
(cleaned up). Upon review, a court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
IV. DISCUSSION
*2 No party objected to the Report and Recommendation
within fourteen days after being served with a copy
of it. Accordingly, the Court reviews the Report and
Recommendation for clear error. See DiPilato, 662 F. Supp.
2d at 339. Having found none, the Court approves and adopts
the Report and Recommendation in its entirety.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No.
30, is APPROVED and ADOPTED in its entirety; and it
is further
ORDERED, that the motion for summary judgment, Dkt. No.
26, is GRANTED; and it is further
ORDERED, that the Clerk close this action; and it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 814966
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Johnson v. Fraizer, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 7012961
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Andre A. JOHNSON, Plaintiff,
v.
Correctional Sgt. J. FRAIZER, Correctional Officer L.
DiRienzo and Saj, Deputy Superintendent, Defendants.
16-CV-6096 CJS
|
Signed 12/01/2016
Attorneys and Law Firms
Andre A. Johnson, Attica, NY, pro se.
Hillel David Deutsch, NYS Attorney General's Office,
Department of Law, Rochester, NY, for Defendants.
DECISION and ORDER
CHARLES J. SIRAGUSA, United States District Judge
INTRODUCTION
*1 Andre Johnson (“Plaintiff” or “Johnson”), a prison
inmate in the custody of the New York State Department
of Corrections and Community Services (“DOCCS”), brings
this action pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his federal constitutional rights by, inter
alia, retaliating against him and violating his procedural due
process rights. Now before the Court is Defendants' motion
to dismiss the Amended Complaint, for failure to exhaust
administrative remedies. The application is granted.
BACKGROUND
The operative pleading in this action is Plaintiff’s Amended
Complaint. Generally, the Amended Complaint alleges that,
at Livingston Correctional Facility (“Livingston”), after
Plaintiff filed complaints against defendant Corrections
Sergeant Fraizer (“Fraizer”), Fraizer conspired with
defendant Corrections Officer L. DiRienzo (“DiRienzo”),
who filed false misbehavior reports against him; and that
thereafter, defendant Deputy Superintendent Saj (“Saj”)
conducted a disciplinary hearing in which he violated
Plaintiff’s right to procedural due process. According to
the pleading, Saj found Plaintiff guilty of the disciplinary
infractions and sentenced him to period of confinement in the
Special Housing Unit (“SHU”).
The Amended Complaint contains certain allegations
regarding Plaintiff’s attempts to exhaust his administrative
remedies before commencing this action. In pertinent part, the
pleading makes the following statements, which are listed in
the order in which they appear:
That because of the retaliatory actions
of the Defendants the Plaintiff was also
deprived of his rights to appeal the
disposition of the Tier II hearing.
***
That because of the Defendants
retaliatory actions the Plaintiff has
been harassed, threats made towards
his life, has been subjected to unfair
and impartial hearings[.]
***
The Plaintiff has exhausted his
administrative remedies before filing
this claim, by filing formal complaints
to the Governor of the State of New
York, to the Acting Commissioner
of D.O.C.C.S., to the Superintendent
of Livingston Correctional Facility,
as well as [the] Grievance Office of
Livingston Correctional Facility, and
the Internal Affairs bureau to no avail.
Amended Complaint. However, the amended pleading also
indicates that the alleged constitutional violations occurred in
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mid– and late-January, 2016, and that Plaintiff commenced
this action a mere three weeks later, on February 17, 2016.
As an aside, Plaintiff’s contention in the Amended Complaint,
that he exhausted his administrative remedies before
commencing this action, is at odds with his statements in the
original Complaint. Specifically, in the original Complaint,
which was filed less than a month prior to the Amended
Complaint, and which was sworn to by Plaintiff under penalty
of perjury, he stated that he neither grieved his claims,
nor appealed any adverse decision concerning the grievance
process. Further, in response to the question, on the form
complaint that Plaintiff used to draft the original complaint,
“If you did not exhaust your administrative remedies, state
why you did not do so,” Plaintiff wrote, “N/A.” 1
*2 On September 30, 2016, Defendants filed the subject
motion to dismiss the Amended Complaint, for failure to
exhaust administrative remedies. Defendants contend that
the allegations in the Amended Complaint establish that
Plaintiff failed to exhaust his administrative remedies before
commencing this action. In that regard, Defendants point out
that while Plaintiff claims that he took certain actions, such as
sending complaints to the Governor of the State of New York,
such actions do not amount to exhaustion under the PLRA:
In the matter before the Court, the
complaint states that Plaintiff did
not file a grievance, appeal to the
superintendent and then appeal to [the
Central Office Review Committee]
[“]CORC[”], as he is required to do.
Instead, Plaintiff claims to have simply
written a letter to various different
agencies, waited approximately ten
days, and then filed suit. ... He
simply refused to wait for the relevant
decisions to come down and appeal
them; instead he attempted to file his
grievance and appeals all at the same
time. 2
Defendants further contend that while the Amended
Complaint alleges that Plaintiff was “deprived of his rights to
appeal the disposition of the Tier II hearing,” it “provides no
further explanation.” 3
In opposition to Defendants' motion to dismiss, Plaintiff filed
a response [#33], which makes the following arguments: 1) on
January 29, 2016, Plaintiff “filed an appeal” of his convictions
at the Tier III disciplinary hearing, but “said Appeal was
not allowed to leave the Facility”; 2) the results of the tier
disciplinary hearing could not be “grieved” through the IGP;
3) Plaintiff was not required to exhaust his administrative
remedies because in this action he is seeking only money
damages.
Because Plaintiff is a pro se inmate, the Court also takes
judicial notice of the fact that the instant lawsuit is not the
only one that he has filed in this Court concerning the events
in this action. 4 For example, on June 20, 2016, Plaintiff
filed an action, entitled “Johnson v. Annucci, et al.,” 16-
CV-6417 CJS, in which he refers to some of the same events
about which he complains in this action. Particularly, in the
Amended Complaint [#7] in that action, Plaintiff clarifies,
somewhat, his cryptic statement, in the amended complaint,
that he was “deprived” of the right to appeal, as well as the
related statement, made in response to Defendants' motion to
dismiss this action, that he attempted to appeal his disciplinary
conviction, but the appeal was “not allowed to leave the
facility”:
[O]n January 29, 2016, the Plaintiff
submitted his appeal while being
confined in S.H.U. at the Livingston
Correctional Facility, by placing in
the hands of the 11-to-7 officer
on duty said appeal in a “stamped
envelope” addressed to the Office of
the Director of the Special Housing/
Inmate Disciplinary in Albany N.Y.
Also, sending a copy of the appeal
to the office of the Governor of the
State of New York. The Defendants
refused to allow any and all legal
correspondence of the Plaintiff to leave
the facility in an attempt to hid[e] the
misconduct of Officials[.]
16-CV-6417, Docket No. [#7] at p. 5
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Johnson v. Fraizer, Not Reported in Fed. Supp. (2016)
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PRINCIPLES OF LAW
*3 At the outset, since Johnson is proceeding pro se, his
papers “must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (citation omitted).
The Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a), requires prison inmates to exhaust
such administrative remedies “as are available” before
commencing an action “with respect to prison conditions
under [42 U.S.C. §] 1983.” “The PLRA requires proper
exhaustion, which means using all steps that the prison
grievance system holds out, and doing so properly (so that the
prison grievance system addresses the issues on the merits.
Untimely or otherwise procedurally defective administrative
grievances or appeals fail to satisfy PLRA’s exhaustion
requirements.” Riles v. Buchanan, ––– Fed. Appx. ––––, 2016
WL 4572321 at *1 (2d Cir. Sep. 1, 2016) (citations and
internal quotation marks omitted).
However, the PLRA exhaustion requirement may be excused
where administrative remedies are not “available,” and there
are at least three circumstances under which such remedies
may be considered unavailable:
First, an administrative remedy may
be unavailable when it operates as a
simple dead end—with officers unable
or consistently unwilling to provide
any relief to aggrieved inmates.
Second, an administrative scheme
might be so opaque that it becomes,
practically speaking, incapable of use.
In other words, some mechanism
exists to provide relief, but no
ordinary prisoner can discern or
navigate it. Third, an administrative
remedy may be unavailable
when prison administrators thwart
inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Williams v. Correction Officer Priatno, 829 F.3d 118, 123–
24 (2d Cir. 2016) (quoting Ross v. Blake, ––– U.S. ––––,
136 S.Ct. 1850, 1859-1860 (2016); internal quotation marks
omitted).
“Inmates must exhaust their administrative remedies even if
they are seeking only money damages that are not available
in prison administrative proceedings.” Geer v. Chapman, No.
915CV952GLSATB, 2016 WL 6091699, at *3 (N.D.N.Y.
Sept. 26, 2016) (citing Giano v. Goord, 380 F.3d 670, 675-76
(2d Cir. 2004)), report and recommendation adopted, No.
915CV952GLSATB, 2016 WL 6090874 (N.D.N.Y. Oct. 18,
2016).
For retaliation claims, an New York State inmate must exhaust
his administrative remedies by utilizing New York’s three-
tiered Inmate Grievance Program (“IGP”) procedures:
DOC[C]S' Inmate Grievance Program
(“IGP”) has a regular three-tiered
process for adjudicating inmate
complaints: (1) the prisoner files a
grievance with the Inmate Grievance
Resolution Committee (“IGRC”), (2)
the prisoner may appeal an adverse
decision by the IGRC to the
superintendent of the facility, and
(3) the prisoner then may appeal an
adverse decision by the superintendent
to the Central Officer Review
Committee (“CORC”).
Quezada v. Ercole, No. 09CIV2832DLC, 2011 WL 3251811,
at *4 (S.D.N.Y. July 29, 2011) (citing Espinal v. Goord, 554
F.3d 216, 224 (2d Cir. 2009)).
On the other hand, an inmate exhausts a procedural due
process claim, arising from a prison disciplinary hearing, by
completing the disciplinary administrative appeal process.
See, Davis v. Jackson, 2016 WL 5720811 at * 7 (Noting
that the filing of an administrative appeal from a disciplinary
hearing is “the proper mode of exhaustion” for a procedural
due process claim arising from the disciplinary hearing).
*4 Where the inmate is asserting both retaliation claims and
procedural due process claims, he must separately exhaust
both types of claim, using the procedure appropriate to each
type of claim. See, Davis v. Jackson, 2016 WL 5720811
at * 7 (Observing that filing an administrative appeal from
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an underlying disciplinary proceeding was “an inappropriate
means of exhaustion for Plaintiff’s retaliation claims.”)
(collecting cases); see also, Washington v. Chaboty, No. 09
CIV. 9199 PGG, 2015 WL 1439348, at *7 (S.D.N.Y. Mar.
30, 2015) (“In certain circumstances, however, courts have
deemed a disciplinary appeal inadequate to exhaust a claim
under the PLRA. Inmate Grievance Program exhaustion
has been required, for example, where an inmate alleges
retaliation, including retaliation based on the filing of an
allegedly false misbehavior report.”) (citation omitted).
The PLRA’s exhaustion requirement is an affirmative
defense, not a jurisdictional requirement:
The Second Circuit has made clear that, in this
context, “administrative exhaustion is not a jurisdictional
predicate,” but rather, “an affirmative defense.” Giano v.
Goord, 380 F.3d 670, 675 (2d Cir. 2004). Accordingly,
“defendants bear the burden of proof[,] and prisoner
plaintiffs need not plead exhaustion with particularity.”
McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y.
2003)[.]
France v. Cty. of Westchester, No. 12-CV-5576 (KMK), 2016
WL 1270259, at *4 (S.D.N.Y. Mar. 30, 2016) (additional
citations omitted). Consequently, as Defendants admit,
dismissal under Rule 12 for failure to exhaust administrative
remedies is only appropriate where such failure is “clear”
from the face of the complaint. On this point, the Second
Circuit recently stated:
Failure to exhaust administrative
remedies is an affirmative defense
under the PLRA, not a pleading
requirement. Accordingly, inmates
are not required to specially plead
or demonstrate exhaustion in their
complaints. However, a district court
still may dismiss a complaint for
failure to exhaust administrative
remedies if it is clear on the face
of the complaint that the plaintiff
did not satisfy the PLRA exhaustion
requirement.
Williams v. Correction Officer Priatno, 829 F.3d at 122
(citations omitted).
DISCUSSION
Defendants contend that the action should be dismissed
pursuant to Fed. R. Civ. P. 12, because it is evident from the
face of Johnson’s Amended Complaint [#17] that he failed
to exhaust his administrative remedies before commencing
this action. The Court agrees with Defendants that, to the
extent that Plaintiff maintains that he did not need to exhaust
his administrative remedies because he is seeking money
damages in this action, his argument lacks merit. Similarly,
Plaintiff’s argument that his disciplinary conviction is a
“non-grievable issue” is, while true, irrelevant; although such
convictions cannot be “grieved” through the IGP, they can be,
and must be, administratively exhausted through the appeals
process, as discussed above. Additionally, Plaintiff obviously
understood that fact, since he claims that he attempted to
exhaust his procedural due process claim by appealing his
disciplinary conviction.
The Court also tends to agree with Defendants' argument
that, since Plaintiff filed this action a mere three weeks after
the events at issue, it is probable that he simply skipped the
grievance/appeal stage and came directly to Federal Court.
Certainly, Plaintiff’s original Complaint in this action tends
to support such a view.
In opposition to Defendants' arguments, Plaintiff is essentially
left with two contentions. First, he states that he attempted
to mail an appeal of his disciplinary conviction, but
unidentified persons prevented the envelope from leaving
Livingston. Indeed, Plaintiff even more broadly states, “The
Defendants refused to allow any and all legal correspondence
of the Plaintiff to leave the facility in an attempt to
hid[e] the misconduct of Officials[.]” (emphasis added).
The Court liberally construes such statements to mean that
the administrative appeals process was not “available” to
Plaintiff, because corrections staff “thwarted” his efforts.
However, Plaintiff’s contention on this point is not plausible,
and therefore need not be accepted as true. 5 First and
foremost, Plaintiff makes only a conclusory statement that
his mailing was not allowed to leave the facility, without
offering any explanation for why he believes that. Meanwhile,
his contention that all of his legal mail was similarly
purloined is belied by his admission that he was able to
send other complaints about the matter to various New York
State officials at around the same time. Plaintiff offers no
explanation for why Livingston staff would prevent him from
mailing that particular appeal, but allow him to mail out all
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his other complaints, including the original complaint in this
action.
*5 Lastly, Plaintiff claims that Livingston staff harassed him
and threatened his life, after he filed other grievances. The
Court liberally construes this statement as an argument that
the IGP procedures were not “available” to him, due to threats
from corrections staff. However, the Court does not find this
allegation plausible. To begin with, the allegation itself is
entirely conclusory, since it does not indicate who threatened
him, when he was threatened, or how he was threatened.
Moreover, the alleged threats clearly did not dissuade Plaintiff
from making and sending a wide variety of other complaints
about Livingston staff to New York State officials, including
officials at Livingston. See, Amended Complaint (“The
Plaintiff has exhausted his administrative remedies before
filing this claim, by filing formal complaints to the Governor
of the State of New York, to the Acting Commissioner of
D.O.C.C.S., to the Superintendent of Livingston Correctional
Facility, as well as [the] Grievance Office of Livingston
Correctional Facility, and the Internal Affairs bureau to no
avail.”); see also, Riles v. Buchanan, 2016 WL 4572321 at
*3 (“Nor did DOC officials' alleged threats of retaliation
interfere with his exhaustion efforts....He was not deterred
from exhausting; he simply did not exhaust in accordance
with the procedures.”).
For all of these reasons, the Court finds that it is clear, from
the face of Plaintiff’s Amended Complaint, that he failed to
exhaust his administrative remedies before commencing this
action, in violation of 42 U.S.C. § 1997e(a).
CONCLUSION
Defendants' motion to dismiss [#30] is granted, and this action
is dismissed without prejudice. The Clerk of the Court is
directed to close this action.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 7012961
Footnotes
1 “A statement in a withdrawn complaint that is superseded by an amended complaint without the statement is
no longer a conclusive judicial admission[, though] the factfinder may very well find that such a contradictory
statement reduces the credibility of the witness[.]” Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23, 32
(2d Cir. 2002) overruled on other grounds by Slayton v. Am. Exp. Co., 460 F.3d 215 (2d Cir. 2006).
2 Def. Memo of Law [#30-1] at pp. 3-4.
3 Def. Memo of Law [#30-1] at p. 1.
4 “In deciding a motion to dismiss a pro se complaint, it is appropriate to consider certain materials outside the
complaint to the extent that they are consistent with the allegations in the complaint.” Davis v. Jackson, Case
No. 15-CV-5359 (KMK), 2016 WL 5720811 at *4 (S.D.N.Y. Sep. 30, 2016) (citation and internal quotation
marks omitted).
5 In Williams v. Priatno, 829 F.3d at 124, n. 3, the Second Circuit explained why it found an SHU inmate’s
contention, that a corrections officer never filed his grievance, to be plausible. Here, there is no such
supporting facts to make Johnson’s contention plausible. Instead, there is evidence tending to refute his
assertion.
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Johnson v. Schiff, Not Reported in Fed. Supp. (2019)
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2019 WL 4688542
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Angelo D. JOHNSON, Plaintiff,
v.
Michael A. SCHIFF, et al., Defendants.
No. 17-CV-8000 (KMK)
|
Signed 09/26/2019
Attorneys and Law Firms
Angelo D. Johnson, Comstock, NY, Pro Se Plaintiff.
Annemarie S. Jones, Esq., Thomas J. Dargan, Esq., Lewis
Johs Avallone Aviles LLP, Islandia, NY, Counsel for
Supervisor Defendants.
Steven N. Schulman, Esq., Barbara K. Hathaway, Esq., New
York State Office of the Attorney General, New York, NY,
Counsel for Defendant Loughren.
Michael Davidoff, Esq., Drew, Davidoff & Edwards Law
Offices, LLP, Monticello, NY, Counsel for Correction Officer
Defendants.
Adam L. Rodd, Esq., Drake Loeb PLLC, New Windsor, NY,
Counsel for Medical Defendants.
David Bloom, Esq., Edward J. Guardaro, Esq., Kaufman
Borgeest & Ryan LLP, New York, NY, Counsel for Defendant
Guinan-Clark.
OPINION & ORDER
KENNETH M. KARAS, United States District Judge:
*1 Angelo D. Johnson (“Plaintiff”), currently an
inmate at Great Meadow Correctional Facility, brings
this pro se Action, pursuant to 42 U.S.C. § 1983,
against numerous officials at Sullivan Correctional Facility
(“Sullivan”), as well as New York State Commissioner of
Correction Thomas J. Loughren (“Loughren”) (collectively,
“Defendants”). 1 Plaintiff alleges that, while housed at
Sullivan, Defendants provided him with inadequate medical
care and unconstitutional conditions of confinement, failed to
protect him from assaults by other inmates, used excessive
force against him, denied him due process in connection with
disciplinary hearings, and conspired and retaliated against
him for filing this Action. (See Am. Compl. (Dkt. No.
14).) Before the Court are five Motions To Dismiss (the
“Motions”). (Dkt. Nos. 156, 160, 163, 168, 173.) For the
reasons that follow, the Motions are granted in part and denied
in part.
I. Background
A. Factual Background
The following facts are taken from Plaintiff's Amended
Complaint and are assumed true for purposes of resolving the
instant Motions. Given the length of the Amended Complaint,
which runs to 145 pages and 413 paragraphs, the Court
recounts only those facts necessary for consideration of the
instant Motions.
At all relevant times, Plaintiff was incarcerated at Sullivan
County Jail (“Sullivan”) as a pretrial detainee. (Am. Compl.
¶¶ 3, 51.) Plaintiff states that he “is a 41 year old[ ] black
male[ ] who suffers from high blood pressure, seizure[s], type
1 and 2 chronic migrain[e]s, chronic sinus[ ] infection[s],
eye defect[s], [a] prior right knee injury, [a] prior left
shoulder injury, and a stomach ingestion problem.” (Id. ¶
254.) Plaintiff further alleges that he “has been diagnose[d]
with[ ] depression, anxiety, post [traumatic] stress disorder,
and personality disorder,” and that he “had about [four] prior
[suicide] attempts.” (Id. ¶¶ 256–57.)
*2 Upon arrival at Sullivan on December 1, 2016, Plaintiff
“asserted clearly[ ]” to Nurse Altman and Nurse Gandulla
“all health issues” and “injuries.” (Id. ¶¶ 51–55, 255,
258.) In particular, Plaintiff disclosed an “alcohol and
heroin addiction” and stated that his “withdrawal[ ] was
starting.” (Id. ¶ 54.) Plaintiff's “obvious” withdrawal pain
grew “severe” by about December 3, 2016 — he alleges
he suffered from “agonizing belly pains, migrain[e]s, cold
and hot sweats, [inability] to eat, vomiting ‘continually,’ ...
[and] fatigue.” (Id. ¶¶ 55, 57.) However, Nurse Gandulla, who
was in charge of Sullivan's medical department, “deni[ed]
[P]laintiff adequate pain medication to detox.” (Id. ¶¶
56, 362.) Plaintiff's pain “confined [him] to a bed for 2
weeks.” (Id. ¶ 58.) During that time, Plaintiff “made numerous
direct complaints” about his “obvious condition,” which went
unanswered, to Nurse Gandulla, Nurse Altman, and Nurse
Moore, as well as to Harrell, Gabriel, and Moyer, when they
conducted “twice daily” rounds. (Id. ¶¶ 59–61.)
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Further, between December 2016 and September 2017,
Plaintiff complained to Dr. Good, Nurse Guinan-Clark, Nurse
Sauer, Nurse Gandulla, Nurse Altman, Nurse Crawley, and
Nurse Moore that his left shoulder was in “excruciating” pain.
(Id. ¶ 311.) However, he was not provided with care “because
of the County's budgetary restriction.” (Id. ¶¶ 312, 314.)
Instead, Plaintiff was given naproxen, which did not relieve
the pain and which “can be serious[ly] harmful to a person[’s]
stomach lining [and] liver.” (Id. ¶ 315.) On December 27,
2016, Plaintiff was seen by Nurse Guinan-Clark. (Id. ¶¶
268–69.) Plaintiff stated all his medical conditions, including
his left shoulder injury, and asked “why she wasn't writing
down[ ] or recording anything [he] had told her.” (Id.) She
responded that “she [does not] have to [write] because[ ] she
has a photographic memory.” (Id.) She further told Plaintiff
that the County could not pay for any knee or shoulder
surgery and that “the best [she] can do for [him] now is
replace[ ] [his] knee brace (foam) and give [him]” Motrin
and naproxen. (Id. ¶ 270.) On December 31, 2016, Plaintiff
saw Nurse Guinan-Clark again and requested housing with
better airflow to aid his “chronic sinus[ ] infection.” (Id. ¶
271.) Plaintiff also complained that the County would not
take him to see a “specialist and pay for an operation.” (Id.)
Nurse Guinan-Clark told Plaintiff that “she would speak to”
Bini and “not to worry.” (Id.) On January 3, 2017, Plaintiff
saw Nurse Guinan-Clark a third time and “qui[zz]ed” her
about his medical conditions, but she “was unable to answer
correctly.” (Id. ¶¶ 273–74.) Plaintiff further told her that the
pain in his “left shoulder [had] gotten worse,” and stated that
“there's a pinchin[g] in the nerve located in the lower neck
now,” (id. ¶ 275), but he was again told that the “County's
broke” and, further, was only given Motrin, naproxen, and
Tylenol, which “can have serious adverse effects” on his
“stomach, [kidneys], and liver,” (id. ¶ 276). Nurse Guinan-
Clark also referred Plaintiff to a doctor. (Id. ¶ 277.)
On December 31, 2016, Plaintiff was moved by Cole
and Lynch from his “medical” housing block, without
explanation, to “modular unit M-9” — a “separate segment
from the main facility of [Sullivan] — for “punitive
segregation.” (Id. at 17–18; id. ¶¶ 260–61.) 2 Plaintiff alleges
that the two conspired to move Plaintiff “because of” his “no-
nonsense spirit, mind, and energy.” (Id. at 17–18.) Plaintiff
was then given a “fabricated” misbehavior report charging
him with assault of an inmate. (Id.) Plaintiff “immediately”
filed a grievance. (Id. at 17.) On January 3, 2017, a hearing
was held regarding Plaintiff's misbehavior report, at which
Whalan served as hearing officer. (Id. ¶¶ 68–69.) Over
Plaintiff's objections, Whalan refused Plaintiff the right to
assistance, to call witnesses, and to view video footage, and
further stated that Plaintiff “ha[s] no rights in [Sullivan], plus
the administration says, ‘No!’ ” (Id. ¶¶ 67, 69–75.) Whalan
found Plaintiff guilty and sentenced him to 30 days in punitive
segregation. (Id. ¶ 73.) Plaintiff appealed, and Bini affirmed.
(Id. ¶¶ 76–77.)
*3 On January 7, 2017, Plaintiff “became violently ill 30
minutes after eating the facility lunch,” causing him to have
severe vomiting and diarrhea. (Id. ¶ 282.) A non-party prison
official observed Plaintiff “on the floor next to the toilet,”
and told him that he “alerted [the] medical department”
but that the department said Plaintiff should “drop a [sick-
call] slip.” (Id. ¶¶ 283–84.) Plaintiff requested a grievance
form and to see Calangelo, the unit supervisor. (Id. ¶¶ 284–
85.) When Calangelo came, she observed Plaintiff vomiting,
stated that “[no] one else is complaining about ... food
poison[ing],” and told Plaintiff that he would not be brought to
the medical unit. (Id. ¶¶ 286–88.) However, Calangelo offered
Plaintiff “some pepto” and told him to “drop a sick-call
slip.” (Id. ¶ 288.) Further, Nurse Altman, who saw Plaintiff
at some point, refused to provide Plaintiff with the necessary
“series of test[s].” (Id. ¶ 289.)
On January 18, 2017, Plaintiff was in modular unit M-9 for
punitive segregation. (Id. ¶ 78.) Plaintiff, who was the “only
black [inmate]” in the six-person unit, “was having serious
racial issues” with three other inmates there. (Id. ¶¶ 79–80,
82.) Plaintiff had complained to Harrell and Calangelo about
the inmate harassment, but they apparently did not remedy
the situation. (Id. ¶ 81.) Plaintiff alleges that, while showering
in the “locked ... cage shower,” the other inmates “thr[e]w
urine” on Plaintiff and “sp[a]t[ ]” on him; Plaintiff “had to
yell a good 20 minutes before the unit officer responded,”
even though the office was 10 feet away. (Id. ¶¶ 84–87.)
By the time Calangelo responded, Plaintiff's “clothes [were]
soiled with urine,” which “caused [him] to be in extreme
mental anguish,” thus “trigger[ing] [his] high blood pressure”
and migraines. (Id. ¶ 86.) As Calangelo removed Plaintiff,
Plaintiff picked up a nearby “spray bottle of bleach” and
threatened to spray the other inmates, causing Calangelo to
remove the bottle and write Plaintiff up on a “fabricated”
misbehavior report charging him with making threats. (Id. ¶¶
88–90.) Plaintiff also was relocated to modular unit M-1. (Id.
¶ 90.)
On January 22, 2017, a hearing was held by Whalan regarding
the Calangelo misbehavior report. (Id. ¶ 91.) Plaintiff alleges
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that, pursuant to a policy maintained by Schiff (the Sullivan
sheriff) “and [his] senior administration,” he was denied
his ability to prepare for the hearing. (Id. ¶¶ 92, 98.)
Notwithstanding Plaintiff's objections that he was being
prevented from having assistance, calling witnesses, and
reviewing video footage, Whalan found Plaintiff guilty and
sentenced him to 10 days in punitive segregation. (Id. ¶¶ 93–
96.) Plaintiff appealed, but Bini affirmed. (Id. ¶¶ 97, 99.)
On February 10, 2017, while still housed in punitive
segregation, Plaintiff was let out for lunch when there was
a physical altercation between Plaintiff and another inmate,
who was the aggressor. (Id. ¶¶ 100–05.) Nash “was just
standing” nearby “enjoying the spectacle” and failed to
intervene. (Id. ¶ 104.) Nash allegedly acted pursuant to
a policy maintained by “Schiff and his administration” of
“promoting and orchestrating fights amongst prisoners.” (Id.
¶¶ 10, 106.) Only after 10 minutes did Nash “call[ ] for
a code 7” alarm. (Id. ¶¶ 106–07.) Nash then “fabricated
a misbehavior report” charging Plaintiff with being the
aggressor in the fight. (Id. ¶ 113.)
On February 20, 2017, Whalan held a hearing regarding
the Nash misbehavior report. (Id. ¶¶ 115–16.) Plaintiff
alleges that he was again denied “his right to assistance
to prepare for his defense.” (Id. ¶ 117.) Notwithstanding
Plaintiff's objections and unsuccessful requests to call and
cross-examine witnesses, he was found guilty. (Id. ¶¶ 118–
23.) Plaintiff received 30 days of punitive segregation and 30
days of lost privileges. (Id. ¶ 124.) Plaintiff appealed, and Bini
affirmed. (Id. ¶ 125.)
In early July 2017, Plaintiff and another inmate got in
an argument. (Id. ¶¶ 130–32.) Compasso came, but did
nothing except “stare[ ] ... for a couple seconds” and then
leave. (Id. ¶ 133.) Plaintiff alleges that Compasso “failed to
remove[ ] a ... potential fight risk.” (Id. ¶ 134.) Some days
later, Plaintiff and the inmate again began arguing, which
turned into a physical altercation. (Id. ¶¶ 135–39.) The fight
was broken up by Cole, after which Plaintiff was taken
to the medical unit, where Nurse Altman asked if Plaintiff
had suffered any “new” injuries separate from his existing
shoulder and other conditions. (Id. ¶¶ 140–45.) Plaintiff thus
received “no medical treatment [for] his severe pain in his left
shoulder.” (Id. ¶¶ 146–47.)
*4 On July 12, 2017, Plaintiff was transferred to a new
housing unit on “c-block” and placed “into a[n] unsanitary
cell with a dysfunctional toilet.” (Id. ¶¶ 149–50.) On
July 13, 2017, Plaintiff complained to Field, Krentz, and
Besson, but they failed to remedy the problem. (Id. ¶¶ 151–
59.) Eventually, Gray and Minckler came to investigate,
but their questions focused on Plaintiff's “previous fight”
with another inmate and, further, they used racial slurs
against Plaintiff. (Id. ¶¶ 160–63.) They then demanded
Plaintiff “put [his] black fucking hands [through] the bars,”
and, when Plaintiff “approach[ed] the front of his cell
to comply,” Minckler “spray[ed]” the “fully cooperative”
Plaintiff with “O.C. spray” into his face and eyes and on
to his dreadlocks. (Id. ¶ 165.) Plaintiff, who “was barely
able to breathe” and whose eyes were “burning” and in
“excruciating pain,” was “roughly handcuffed and brought to
the medical station,” all while Minckler and Gray joked that
Plaintiff is “not so tough now.” (Id. ¶¶ 166–67.) At the medical
station, Nurse Altman gave Plaintiff oxygen, but “failed to
adequately decontaminate [him], only rinsing the face area
and eyes, ... failing to adequately decontaminate [P]laintiff's
dreadlocks.” (Id. ¶ 168.) Plaintiff was then taken to punitive
segregation in modular unit M-9 and only permitted to take
hot showers, which “reactivate[d]” the “oil base” in the O.C.
spray and caused him “unnecessary excruciating pain.” (Id.
¶¶ 169–71.) Plaintiff complained to Nurse Altman, Gray,
Minckler, Calangelo, Harrell, Gabriel, Zayas, and Joe about
the heat of the showers over the next two weeks, but they did
not permit him to take cold showers or otherwise remedy the
situation. (Id. ¶¶ 171–75.)
On July 13, 2017, Plaintiff received two misbehavior reports,
filed by Minckler and Besson, relating to the O.C. spray
incident, which charged him with various offenses relating
to refusal to obey orders. (Id. ¶¶ 176, 178.) On July 17,
2017, Whalan held a disciplinary hearing on the reports.
(Id. ¶ 178.) Plaintiff again objected unsuccessfully that he
was denied a meaningful opportunity to prepare for the
disciplinary hearing. (Id. ¶¶ 176–84.) Whalen “dismissed” the
misbehavior report filed by Besson, but found Plaintiff guilty
of the report filed by Minckler and sentenced him to 90 days
in punitive segregation. (Id. ¶¶ 185–87.) Plaintiff appealed,
but Bini affirmed. (Id. ¶¶ 188–89.)
On August 7, 2017, while housed in modular unit M-8,
Plaintiff was “feeling very dizzy” and had “a very hard
time catching [his] breath,” and called for help. (Id. ¶ 291.)
Shaw responded, and Plaintiff “told him that he felt a seizure
coming on” and to “call medical.” (Id.) However, Shaw told
him that it was “almost time for [him] to leave, and there's
no medical here pas[t] 11:00pm,” and as such Plaintiff would
“have to put in a sick call slip for tomorrow.” (Id. ¶ 292.)
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Plaintiff again told Shaw to call “emergency medical,” but
Shaw refused and left. (Id. ¶¶ 293–94.) Cole later made his
rounds, and Plaintiff asked him to “alert emergency medical[ ]
due to a pending seizure attack.” (Id. ¶ 296.) Cole refused
and told him to fill out a sick call slip. (Id. ¶ 297.) By this
point Plaintiff “had urinated on himself,” had “blood in [his]
mouth,” had “a throbbing migrain[e],” and had his “sheets [in]
disarray,” a “clear indication that [he] had a seizure.” (Id. ¶
298.)
In September 2017, Plaintiff was “finally sent out” to an
outside medical provider “for treatment” for his left shoulder
and right knee. (Id. ¶ 308.) There, he received an x-ray for
his knee, and was informed that he had “severe arthritis
couple[d] with [a] tear” in his shoulder and should undergo
“reconstructive surgery.” (Id. ¶¶ 309–10, 313.)
On September 14, 2017, while in modular unit M-5, Plaintiff
awoke with “severe stomach pains” and “diarrhea” due to
food poisoning. (Id. ¶ 301.) Plaintiff called for help, and Field
responded, but then left without contacting the medical unit.
(Id. ¶¶ 302–05.) Instead, Field served Plaintiff with a “false
misbehavior report” charging him with yelling. (Id. ¶ 306.)
In October 2017, Lewis turned up the heat in modular unit
M-5 very high, causing Plaintiff to suffer migraines and
severe pain and, further, causing mold. (Id. ¶¶ 204–06.)
When Plaintiff complained, Lewis wrote up a fabricated
and retaliatory misbehavior report. (Id. ¶¶ 203, 208–09.)
On October 24, 2017, Wilcox held a disciplinary hearing
regarding the Field misbehavior report. (Id. ¶ 195.) Plaintiff
objected on grounds that Wilcox could not be impartial
because Plaintiff had recently filed this Action (on October
16, 2017) against Sullivan prison officials by “hand[ing] over
to [Sullivan] authorities” the relevant paperwork. (Id. ¶ 196.)
Wilcox rejected the objection and verbally belittled Plaintiff.
(Id. ¶ 197.) Plaintiff further objected, unsuccessfully, that he
was denied the ability to call witnesses and to be heard. (Id. ¶¶
199–200.) Wilcox found Plaintiff guilty and sentenced him to
30 days in punitive segregation. (Id. ¶ 198.) Plaintiff appealed,
and Bini affirmed. (Id. ¶ 210.)
*5 On October 30, 2017, while in punitive segregation,
Plaintiff was let out of his cell to get lunch, when
Kleingardner “ ‘smash[ed]’ all the contents [of the food] ...
together[ ] and then wedged it [through] the bars” in order
to “belittle” Plaintiff. (Id. ¶¶ 212–15.) Plaintiff protested,
causing Kleingardner to yell at him; the two thereafter got
in a screaming match. (Id. ¶¶ 216–19.) After the argument,
Plaintiff requested a grievance form, and Kleingardner
denied him one. (Id. ¶¶ 220–21.) Kleingardner then served
Plaintiff with a “false” and “retaliat[ory]” misbehavior report
charging Plaintiff with making threats. (Id. ¶¶ 222–24, 227.)
On October 31, 2017, Plaintiff filed a grievance against
Kleingardner. (Id. ¶ 224.)
On November 4, 2017, Wilcox held a disciplinary hearing
on the Kleingardner misbehavior report. (Id. ¶ 227.) Plaintiff
unsuccessfully “objected to not being provided with a 24
hour notice of [the] misbehavior report” and to being denied
the ability to have assistance, gather evidence, and otherwise
defend his case. (Id. ¶¶ 228–34.) Plaintiff objected that Wilcox
was “retaliating against [him]” because he had filed the instant
Action. (Id. ¶ 231.) Wilcox found Plaintiff guilty, Plaintiff
appealed, and Bini affirmed. (Id. ¶ 236.)
On November 6, 2017, Plaintiff remembers returning to
consciousness from a seizure and seeing Harrell and Nurse
Sauer “debate over the cheapest way to transport [him] to the
hospital.” (Id. ¶¶ 320–21, 330.) Plaintiff was ultimately taken
to the hospital “in the back of a damn patrol car.” (Id. ¶¶ 322–
23.) While being carried to the patrol car, Plaintiff “bang[ed]
[his] head twice” and was thrown on the car's “dirty, wet
floor.” (Id. ¶ 324.) When Plaintiff returned from the hospital,
Lisa Sauer “recklessly failed to take and check” Plaintiff's
vitals. (Id. ¶¶ 326, 331, 363.)
On November 12, 2017, while in the M-1 modular unit,
Plaintiff told Nash that his head was in pain and that he
“need[ed] more air to breath[e],” after which he had a seizure.
(Id. ¶¶ 332–33.) When Plaintiff regained consciousness, he
was told that “the nurse will be right back after ... medication
rounds.” (Id. ¶ 334.) Plaintiff complained, stating that he
“could have choked or suffocated to death” while “the nurse
[was] on medication rounds.” (Id. ¶ 335.) When Nurse Sauer
arrived, she told Plaintiff that Nurse Crawley did not properly
call her. (Id.) Further, when Plaintiff did receive some medical
attention, it was not adequate as “no vitals of any sort [were]
performed.” (Id.) Later, Compasso arrived with Nurse Moore,
who “place[d] a devi[c]e upon [P]laintiff's finger.” (Id. ¶ 341.)
However, Nurse moor did not “finish the finger vital.” (Id. ¶
343.)
On December 9, 2017, Plaintiff received “paper documents
in between the cell bars,” which he recognized as “copies
of disciplinary hearings [ ]which were unlawfully conducted
without [P]laintiff[’s] knowledge and ... consent.” (Id. ¶¶
238–39.) In particular, Plaintiff alleges that Wilcox had held
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hearings without Plaintiff present that (1) found Plaintiff
guilty of unspecified charges contained in misbehavior
reports filed by Field, and imposed a punishment of 180
days in punitive segregation and (2) found Plaintiff guilty of
unspecified charges contained in misbehavior reports filed
by Crawley, Rodriguez, Gorr, and Olsen, and imposed a
punishment of 150 days in punitive segregation. (Id. ¶¶ 240–
42.) When Plaintiff learned of the hearings, he appealed, but
Bini did not respond. (Id. ¶¶ 244–45.) Plaintiff alleges that the
charges in these misbehavior reports were fabrications. (Id.
¶¶ 247–53.)
On January 5, 2018, while Plaintiff was in the M-1
modular unit, Gabriel, Lekovic, and Kleingardner came to
Plaintiff's cell while his cellmate was out on recreation.
(Id. ¶ 338.) Gabriel, Lekovic, and Kleingardner used racist
and harassing language to him. (Id. ¶ 339–40, 343, 348.)
When Plaintiff asked Gabriel “why [he was] by [Plaintiff's]
cell” given that Plaintiff had “open complaints against
[him],” the officers pulled out their handcuffs and yelled at
Plaintiff to place his hands through the cell door chute, a
“prohibited” procedure. (Id. ¶¶ 340–42.) Plaintiff did so, and
Gabriel placed handcuffs on Plaintiff, thus “cutting off the
circulation,” and “yank[ed]” Plaintiff out of his cell “without
standard video recording safety measure procedures.” (Id. ¶¶
344–45.) Gabriel, Lekovic, and Kleingardner took Plaintiff
“to the other end of the tier” and then searched Plaintiff's
cell “without any security camera.” (Id. ¶ 346.) Plaintiff
complained that this was a violation, but Gabriel yelled back,
using racist language. (Id. ¶¶ 347–48.) Gabriel, Lekovic, and
Kleingardner then “used brutal force” on Plaintiff, who was
“fully cooperative,” by repeatedly “punching and kicking
[him] upon the head, chest, arms, legs[,] and back,” after
which they dragged him back into the cell. (Id. ¶¶ 349–50.)
After the assault, Plaintiff yelled for help and stated that
he needed medical; however, when Zayas, Nurse Gandulla,
Nurse Moore, Chaboty, Matis, Moyer, Lynch, and Harrell
variously came around, they refused to provide him with any
help. (Id. ¶¶ 351–60.)
*6 Finally, Plaintiff alleges more generally that the modular
housing units, overseen by Schiff and Joe, provide inadequate
living conditions, including inadequate ventilation, bright
lighting, drastic heat changes, mold, bad smell, and “brown”
water that is “foul tasting,” “burning when dr[u]nk,”
“upset[ing] [to the] stomach,” causes “skin rashes,” and
sometimes undrinkable. (Id. ¶¶ 261–62, 366, 368–73.)
Whenever Plaintiff was placed in the M-1 unit, which
provides a “constant watch” over inmates dealing with mental
health problems, Plaintiff was housed next to “seriously
mentally ill prisoners” and was thus “expose[d] to screaming
and feces-smearing” and “constant, loud banging,” thus
causing “great psychological agony.” (Id. ¶¶ 265, 267, 366–
67.) Plaintiff also alleges that the food generally provided at
Sullivan — the preparation of which overseen by Fraser — is
“spoiled, raw, cold, [and] tampered with,” thus causing severe
pain and sickness, (id. ¶¶ 370–71); that there were “drain
flies” and “other vermin” in the showers, notwithstanding
Sullivan's attempts at “spraying” them, (id. ¶ 374); that he was
deprived of newspapers, law books, self-help books, and other
reading material, (id. ¶ 375); and that the grievance program at
Sullivan is inadequate, (id. ¶¶ 376–400). Plaintiff also alleges
that the Sullivan law library is inadequate, (id. ¶¶ 402–09),
causing him to be “unable to file” a complaint in this Action,
(id. ¶ 46), and further causing the Chief Judge McMahon to
deny the application for a temporary restraining order that
Plaintiff did file, (id. ¶ 48).
B. Procedural History
Plaintiff initiated this Action on October 16, 2017 by
filing an “Order to Show Cause for Preliminary Injunction
and Temporary Restraining Order” and accompanying
documents, along with an application to proceed in forma
pauperis (“IFP”). (Dkt. Nos. 1–9.) On October 24, 2017,
Judge McMahon issued an Order that, as relevant here, denied
the application for a TRO and preliminary injunction without
prejudice and construed the “Affidavit for TRO” filed at Dkt.
No. 5 as the initial Complaint. (See Order (Dkt. No. 10).)
On January 26, 2018, Plaintiff filed the instant Amended
Complaint. (Am. Compl. (Dkt. No. 14).) On April 11, 2018,
Judge McMahon dismissed from this Action other inmates
who had signed the Amended Complaint but who had not paid
the filing fee or submitted an IFP application. (Order of Partial
Dismissal (Dkt. No. 15).) On April 12, 2018, Judge McMahon
granted Plaintiff's IFP application. (Dkt. No. 17.)
On October 11, 2018, Correction Officer Defendants filed
their Motion To Dismiss and accompanying papers. (Not.
of Mot. (Dkt. No. 156); Decl. of Michael Davidoff, Esq. in
Supp. of Mot. (Dkt. No. 157); Mem. of Law in Supp. of
Mot. (“CO Defs.' Mem.”) (Dkt. No. 158).) On October 12,
2018, Supervisor Defendants filed their Motion To Dismiss
and accompanying papers. (Not. of Mot. (Dkt. No. 160); Decl.
of Annemarie S. Jones, Esq. in Supp. of Mot. (Dkt. No. 161);
Mem. of Law in Supp. of Mot. (“Sup. Defs.' Mem.”) (Dkt.
No. 162).) On the same date, Nurse Guinan-Clark filed her
Motion To Dismiss and accompanying papers. (Not. of Mot.
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(Dkt. No. 163); Decl. of David Bloom, Esq. in Supp. of Mot.
(Dkt. No. 164); Mem. of Law in Supp. of Mot. (“Guinan-
Clark Mem.”) (Dkt. No. 165).) On the same date, Medical
Defendants filed their Motion To Dismiss and accompanying
papers. (Not. of Mot. (Dkt. No. 168); Decl. of Adam L. Rodd,
Esq. in Supp. of Mot. (Dkt. No. 169); Mem. of Law in Supp. of
Mot. (“Med. Defs.' Mem.”) (Dkt. No. 171).) On the same date,
Loughren filed his Motion To Dismiss and accompanying
papers. (Not. of Mot. (Dkt. No. 173); Mem. of Law in Supp.
of Mot. (“Loughren Mem.”) (Dkt. No. 174).)
On November 27, 2018, Plaintiff filed a response in
opposition to Loughren. (Decl. of Angelo Johnson & Mem.
of Law in Opp'n to Mot. (“Pl.'s Loughren Mem.”) (Dkt. No.
182).) On December 18, 2018, Plaintiff filed a response in
opposition to Medical Defendants and Nurse Guinan-Clark.
(Decl. of Angelo Johnson & Mem. of Law in Opp'n to Mots.
(“Pl.'s Med. Mem.”) (Dkt. No. 193).) On December 21, 2018,
Plaintiff filed a response to Correction Officer Defendants.
(Letter from Angelo Johnson to Court (“Pl.'s CO Mem.”)
(Dkt. No. 194).) On January 8, 2018, Plaintiff filed a response
in opposition to Supervisor Defendants. (Decl. of Angelo
Johnson & Mem. of Law in Opp'n to Mot. (“Pl.'s Sup. Defs.'
Mem.”) (Dkt. No. 198).)
On January 22, 2019, Correction Officer Defendants filed a
reply. (Reply Mem. of Law in Supp. of Mot. (“CO Defs.'
Reply”) (Dkt. No. 203).) On January 23, 2019, Nurse Guinan-
Clark filed a reply. (Reply Mem. of Law in Supp. of Mot.
(“Guinan-Clark Reply”) (Dkt. No. 207).) On the same date,
Medical Defendants filed a reply. (Reply Mem. of Law in
Supp. of Mot. (“Med. Defs.' Reply”) (Dkt. No. 210).) On
the same date, Loughren filed a reply. (Reply Mem. of Law
in Supp. of Mot. (“Loughren Reply”) (Dkt. No. 212).) On
January 30, 2019, Supervisor Defendants filed a reply. (Reply
Mem. of Law in Supp. of Mot. (“Sup. Defs.' Reply”) (Dkt.
No. 214).)
II. Discussion
A. Standard of Review
*7 The Supreme Court has held that although a complaint
“does not need detailed factual allegations” to survive a
motion to dismiss, “a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation
marks, and alterations omitted). Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (quotation marks and alteration omitted).
Rather, a complaint's “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint,” id. at 563,
and a plaintiff need allege “only enough facts to state a claim
to relief that is plausible on its face,” id. at 570, if a plaintiff
has not “nudged [his or her] claim[ ] across the line from
conceivable to plausible, the[ ] complaint must be dismissed,”
id.; see also Iqbal, 556 U.S. at 679 (“Determining whether
a complaint states a plausible claim for relief will ... be a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense. But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
— but it has not ‘show[n]’ — ‘that the pleader is entitled
to relief.’ ” (citation omitted) (second alteration in original)
(quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks
a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
In considering a motion to dismiss, the Court “must accept as
true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see
also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same).
Further, “[f]or the purpose of resolving [a] motion to dismiss,
the Court ... draw[s] all reasonable inferences in favor of the
plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d
302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l
PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a
plaintiff proceeds pro se, the “complaint[ ] must be construed
liberally and interpreted to raise the strongest arguments that
[it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d
Cir. 2013) (per curiam) (quotation marks omitted). However,
“the liberal treatment afforded to pro se litigants does not
exempt a pro se party from compliance with relevant rules of
procedural and substantive law.” Bell v. Jendell, 980 F. Supp.
2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted); see
also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir.
2008) (“[P]ro se litigants generally are required to inform
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themselves regarding procedural rules and to comply with
them.” (italics and quotation marks omitted)).
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face
of the complaint, in documents appended to the complaint
or incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” Leonard F. v. Isr.
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks and citation omitted). When a plaintiff proceeds pro
se, however, the Court may consider “materials outside the
complaint to the extent that they are consistent with the
allegations in the complaint.” Alsaifullah v. Furco, No. 12-
CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2,
2013) (quotation marks omitted).
B. Analysis
Supervisor Defendants and Correction Officer Defendants
principally argue that: (1) failure to provide an adequate
grievance procedure is not a cognizable claim; (2) Plaintiff
fails to state a procedural due process claim; (3) Plaintiff fails
to state a conditions-of-confinement claim; (4) Plaintiff fails
to state an access-to-courts claim; (5) Plaintiff fails to state a
retaliation claim; (6) Plaintiff fails to state a conspiracy claim;
(7) Plaintiff fails to allege the personal involvement of certain
individuals in any constitutional violation; (8) Plaintiff fails to
state a Monell claim; and (9) Plaintiff's request for injunctive
relief is moot. (See Sup. Defs.' Mem. 9 et seq.; CO Defs.'
Mem. 17 et seq.) Medical Defendants and Nurse Guinan-
Clark argue that Plaintiff fails to state a claim of deliberate
indifference to his medical needs. (See Med. Defs.' Mem.
9 et seq.; Guinan-Clark Mem. 10 et seq.) Loughren argues
that Plaintiff fails to allege his personal involvement in any
constitutional violation. (See Loughren Mem. 9 et seq.)
*8 The Court addresses each argument separately to the
extent necessary.
1. Injunctive Relief
Plaintiff seeks prospective injunctive relief. (See Am. Compl.
138–39.) This request is moot. “[A]n inmate's transfer from
a prison facility generally moots claims for declaratory and
injunctive relief against officials of that facility.” Salahuddin
v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citations omitted).
Plaintiff has been transferred from Sullivan, a county-level
facility — and the facility at which the alleged constitutional
violations occurred — to Great Meadow, a state-level facility
managed by DOCCS. All Defendants are Sullivan officials or
state officials. The Amended Complaint does not allege, and
Plaintiff does not argue, that any Defendant has a connection
with Great Meadow. Accordingly, the Court “hold[s] moot all
injunctive and declaratory claims.” Id.
2. Personal Involvement
a. Applicable Law
“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show ... the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013). To establish
personal involvement, a plaintiff must show that:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of inmates
by failing to act on information
indicating that unconstitutional acts
were occurring.
Id. at 139 (citation, italics, and quotation marks omitted).
In other words, “[b]ecause vicarious liability is inapplicable
to ...§ 1983 suits, a plaintiff must plead that each Government-
official defendant, through the official's own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Therefore, Plaintiff must plausibly allege that Defendants'
actions fall into one of the five categories identified above.
See Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL
365493, at *4 (S.D.N.Y. Jan. 24, 2017) (holding that the five
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categories “still control[ ] with respect to claims that do not
require a showing of discriminatory intent” post-Iqbal).
b. Loughren
Plaintiff does not plausibly allege the personal involvement
of Loughren, the Commissioner of the New York State
Commission of Correction, in any alleged constitutional
violation. There is no suggestion that Loughren directly
participated in the events alleged in the Amended Complaint.
Nor, as Loughren argues (see Loughren Mem. 17), is it
plausibly alleged that Loughren, as the head of a state-
level agency, has any meaningful control of or supervision
over Sullivan, a county-level facility, such that it might
be said Loughren created or maintained an unconstitutional
policy or custom (relating, for example, to inmate medical
care or disciplinary hearings), was grossly negligent with
regard to training or supervision, or acted with deliberate
indifference to inmates' rights. Even assuming Loughren has
some supervisory authority over Sullivan, “[a] supervisory
official cannot be held liable in a § 1983 action based on
[the doctrine of] respondeat superior.” Thurmond v. Thomas-
Walsh, No. 18-CV-409, 2019 WL 1429559, at *12 (S.D.N.Y.
Mar. 29, 2019) (collecting cases). To the extent Plaintiff
alleges that he sent complaints and grievances to Loughren in
2017, while at Sullivan, and failed to receive a response, (Am.
Compl. ¶¶ 392–93), “it is well-established that an allegation
that” a supervisory official “ignored a prisoner's letter of
protest ... is insufficient to hold that officer liable for the
alleged violations.” Ward v. Capra, No. 16-CV-6533, 2019
WL 1922290, at *3 (S.D.N.Y. Apr. 30, 2019) (quotation
marks omitted) (collecting cases); see also Martinez v.
Loughren, No. 13-CV-1319, 2018 WL 1532435, at *2–4
(E.D.N.Y. Mar. 29, 2018) (holding that the plaintiff failed
to allege the personal involvement of Loughren because he
“was not a supervisory official” at the facilities in which the
plaintiff was held, and “had no direct power to control or
direct the customs and policies of the facilities” (quotation
marks omitted)), appeal dismissed (Jan. 18, 2019). Therefore,
the Court concludes that Plaintiff fails to establish Loughren's
personal involvement. 3
c. Correction Officer Defendants
*9 Correction Officer Defendants argue that, “[i]n regard
to many of the [Correction Officer Defendants], Plaintiff
either fails to allege a constitutional deprivation or fails
to allege personal involvement in such a constitutional
deprivation by such Defendant.” (CO Defs.' Mem. 20.)
This conclusory “argument” — which runs to a single
sentence without citation — entirely fails to specify which
individuals were allegedly not personally involved. (See
id.) The Court therefore declines at this stage to dismiss
any Correction Officer Defendant on personal involvement
grounds. See Grant v. City of Syracuse, No. 15-CV-445, 2017
WL 5564605, at *12 n.12 (N.D.N.Y. Nov. 17, 2017) (“Courts
need not consider cursory arguments of this kind, and the
Court declines to do so here.” (citation and quotation marks
omitted)).
d. Supervisor Defendants
Supervisor Defendants argue that Plaintiff fails to allege their
personal involvement in any alleged constitutional violation.
(Sup. Defs.' Mem. 21–26.)
As to Schiff, Plaintiff alleges that, as the Sullivan sheriff and
“decisionmaker of policies,” (Am. Compl. ¶ 10), he “and his
senior administration” maintained formal or informal policies
relating to the inmate grievance procedure, depriving inmates
of due process in disciplinary hearings, depriving inmates of
adequate medical care, orchestrating fights between inmates,
and maintaining unhygienic and inadequate conditions of
confinement, (see id. ¶¶ 92, 98, 106, 114, 117, 122, 124–
25, 177, 179, 186, 189, 194, 202, 205, 208, 211, 225–26,
237, 245–50, 264–65, 280–81, 300, 329, 334, 360, 365, 388,
394–95, 402). Yet, as noted, “[a] supervisory official cannot
be held liable in a § 1983 action based on [the doctrine
of] respondeat superior.” Thurmond, 2019 WL 1429559, at
*12 (collecting cases); see also Banks v. Annucci, 48 F.
Supp. 3d 394, 416 (N.D.N.Y. 2014) (“Where a defendant is a
supervisory official, a mere ‘linkage’ to the unlawful conduct
through the ‘chain of command’ (i.e., under the doctrine of
respondeat superior) is insufficient to show his or her personal
involvement in that unlawful conduct.” (citations omitted)).
Here, Plaintiff does not allege that Schiff had any direct
involvement in any of the alleged misconduct in the Amended
Complaint. Nor does Plaintiff allege any non-conclusory facts
suggesting that Schiff maintained an unconstitutional policy
or custom, was grossly negligent in supervising subordinates,
or exhibited deliberate indifference to Plaintiff's rights. See
Webster v. Fischer, 694 F. Supp. 2d 163, 179 (N.D.N.Y. 2010)
(“Vague and conclusory allegations that a supervisor has
failed to train or properly monitor the actions of subordinate
employees will not suffice to establish the requisite personal
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involvement and support a finding of liability.” (citation
omitted)).
As to Smith, the Sullivan “jail administrator,” (Am.
Compl. ¶ 12), Plaintiff makes no substantive allegations,
and, accordingly, necessarily fails to state his personal
involvement. See Clay v. Lee, No. 13-CV-7662, 2019 WL
1284290, at *4 (S.D.N.Y. Mar. 20, 2019) (collecting cases for
the proposition that personal involvement is not established
where the defendant's name appears only in the caption of the
complaint and no substantive allegations are made against the
defendant). To the extent Plaintiff alleges that Smith forms
part of Schiff's “senior administration,” Plaintiff fails to state
his personal involvement for the reasons above.
As to Ginty, Plaintiff alleges that he received Plaintiff's
grievances and ignored them. (Am. Compl. ¶ 281.) However,
as noted, “an allegation that a supervisory official allegedly
ignored a prisoner's letter of protest is insufficient to hold
that officer liable for the alleged violations.” Ward, 2019
WL 1922290, at *3 (quotation marks and alteration omitted)
(collecting cases). To the extent Plaintiff alleges that Ginty, as
a Sullivan captain, (Am. Compl. ¶ 13), forms part of Schiff's
“senior administration,” Plaintiff fails to state his personal
involvement for the reasons above.
*10 As to Chaboty, Plaintiff alleges that, on January 5,
2018, following the alleged assault by Gabriel, Lekovic, and
Kleingardner, Chaboty — the Sullivan undersheriff — passed
by Plaintiff's cell. (Am. Compl. ¶¶ 44, 356.) Plaintiff called
out to Chaboty saying, “[S]ome of your staff just assaulted
me early on!,” but Chaboty answered him by saying, “I'm
busy ... can't stop, I'm touring!” (Id.) As noted, an allegation
that a supervisory official ignored a prisoner's letter of protest
does not establish that officer's personal involvement; by the
same logic, an allegation that a supervisory official ignored
an oral complaint is insufficient to hold that officer liable
for the alleged violations. See Perkins v. Napoli, No. 09-
CV-6302, 2011 WL 6148988, at *7 (W.D.N.Y. Dec. 12, 2011)
(“[The plaintiff's] alleged oral complaint to [the supervisor
defendant] ..., in which [he] purportedly complained that
he had been assaulted by staff two days earlier, is also
insufficient to establish [the supervisor defendant's] personal
involvement in the [assault] incident.”). Further, to the
extent Plaintiff alleges that Chaboty is part of Schiff's
“senior administration,” Plaintiff fails to state his personal
involvement for the reasons above.
As to Bini, Plaintiff principally alleges that he repeatedly
affirmed Whalan and Wilcox's allegedly unconstitutional
disciplinary hearings. (Am. Compl. ¶¶ 77, 99, 125, 189, 210,
236, 245.) Yet, as discussed at length in Colon v. Annucci,
344 F. Supp. 3d 612 (S.D.N.Y. 2018), “[i]t is an open question
in the Second Circuit whether an appeal officer may be
held liable for failing to reverse the outcome of an allegedly
unconstitutional disciplinary hearing.” Id. at 630 (citation and
quotation marks omitted). Consistent with Colon, the Court
concludes that Bini is entitled to qualified immunity as to this
allegation because this area of law is “unsettled,” and it is
not clear that “every reasonable official” would have known
that affirming the findings of allegedly unlawful disciplinary
hearings violates an inmate's constitutional rights. Id. at
631–32 (citation omitted). In addition, Plaintiff alleges that
Bini, like Ginty, received Plaintiff's grievances and ignored
them. (Am. Compl. ¶ 337.) This allegation fails to state
Bini's personal involvement for the same reasons. Finally,
to the extent Plaintiff alleges that Bini is part of Schiff's
“senior administration,” Plaintiff fails to state his personal
involvement for the reasons above.
In sum, the Court concludes that Plaintiff fails to establish the
personal involvement of Schiff, Smith, Ginty, Chaboty, and
Bini in any constitutional violation.
3. Monell Liability
“Congress did not intend municipalities to be held liable
[under § 1983] unless action pursuant to official municipal
policy of some nature caused a constitutional tort.” Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978);
see also Pembaur v. City of Cincinnati, 475 U.S. 469,
478 (1986) (holding that a municipality may not be
liable under § 1983 “by application of the doctrine of
respondeat superior” (citation and italics omitted)). That is,
“municipalities may only be held liable when the municipality
itself deprives an individual of a constitutional right.” Newton
v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y.
2008). Therefore, “to prevail on a claim against a municipality
under [§] 1983 based on acts of a public official, a plaintiff
is required to prove: (1) actions taken under color of law;
(2) deprivation of a constitutional or statutory right; (3)
causation; (4) damages; and (5) that an official policy of the
municipality caused the constitutional injury.” Roe v. City of
Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell, 436
U.S. at 690–691). The fifth element reflects the notion that a
Monell defendant “may not be held liable under § 1983 solely
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because it employs a tortfeasor.” Bd. of County Comm'rs
v. Brown, 520 U.S. 397, 403 (1997) (citation omitted). A
plaintiff may satisfy the fifth element by alleging one of the
following:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
*11 Brandon v. City of New York, 705 F. Supp. 2d 261, 276–
77 (S.D.N.Y. 2010) (citations omitted).
Here, as noted supra Section II.B.2.d, Plaintiff repeatedly
alleges throughout the Amended Complaint that “Schiff
and his senior administration” maintain formal or informal
policies relating to the inmate grievance procedure, depriving
inmates of due process in disciplinary hearings, depriving
inmates of adequate medical care, orchestrating fights
between inmates, and maintaining unhygienic and inadequate
conditions of confinement. Yet, Plaintiff fails to allege facts
beyond those of this case, which leaves Plaintiff short of
the threshold. See Gordon v. City of New York, No. 10-
CV-5148, 2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29, 2012)
(dismissing Monell claim where the plaintiff's “allegation
[was] unsupported by anything other than the facts of what
occurred in his particular case” (citation omitted)); see also
Cox v. City of New Rochelle, No. 17-CV-8193, 2019 WL
3778735, at *8 (S.D.N.Y. Aug. 12, 2019) (dismissing Monell
claim where, “apart from the incident giving rise to this case ...
[the] [p]laintiff fail[ed] to allege facts plausibly suggesting
any other similar example of [the municipality's] failure to
supervise or train officers”). Accordingly, the Court dismisses
all claims against Defendants in their official capacities.
4. Deliberate Indifference Claims
“There are three basic theories pursuant to which inmates
customarily bring Eighth Amendment claims: (1) denial of
adequate medical care; (2) unconstitutional conditions of
confinement unrelated to medical care; and (3) failure to
protect.” Pugh v. Orange County Corr. Facility, No. 14-
CV-4854, 2016 WL 831968, at *5 (S.D.N.Y. Feb. 29, 2016)
(citation and quotation marks omitted). Plaintiff invokes all
three here. The Court addresses each in turn.
a. Applicable Law
“A pretrial detainee's claims of unconstitutional conditions
of confinement are governed by the Due Process Clause
of the Fourteenth Amendment, rather than the Cruel and
Unusual Punishments Clause of the Eight[h] Amendment.”
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). To
state a conditions of confinement claim, an inmate must
plausibly allege (1) “that he suffered a sufficiently serious
constitutional deprivation,” and (2) that the defendant “acted
with deliberate indifference.” Feliciano v. Anderson, No. 15-
CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017)
(citation omitted).
Under the first “objective” element, the inmate must show
that the “the alleged deprivation” is “sufficiently serious,”
Spavone, 719 F.3d at 138 (citation and quotation marks
omitted), that is, that “the conditions, either alone or in
combination, pose an unreasonable risk of serious damage
to his health,” Walker, 717 F.3d at 125 (citation omitted). In
the medical care context, analyzing this objective requirement
involves two inquiries: “whether the prisoner was actually
deprived of adequate medical care,” and “whether the
inadequacy in medical care is sufficiently serious,” which in
turn “requires the court to examine how the offending conduct
is inadequate and what harm, if any, the inadequacy has
caused or will likely cause the prisoner.” Salahuddin, 467 F.3d
at 279–80 (citations omitted). “There is no settled, precise
metric to guide a court in its estimation of the seriousness
of a prisoner's medical condition.” Brock v. Wright, 315 F.3d
158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit
has offered the following non-exhaustive list of factors to
consider when evaluating an inmate's medical condition: “(1)
whether a reasonable doctor or patient would perceive the
medical need in question as important and worthy of comment
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or treatment, (2) whether the medical condition significantly
affects daily activities, and (3) the existence of chronic and
substantial pain.” Id. (citation and quotation marks omitted).
*12 Under the second element, which goes to mental state,
the inmate must show that the prison official “recklessly
failed to act with reasonable care to mitigate the risk that
the condition posed to the pretrial detainee even though
the defendant-official knew, or should have known, that
the condition posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35. An official's awareness of the risk
of serious harm can be established through “inference from
circumstantial evidence,” including “from the very fact that
the risk was obvious.” Farmer v. Brennan, 511 U.S. 825,
842 (1994). However, “mere negligence” is insufficient to
state a claim for deliberate indifference. Walker, 717 F.3d
at 125 (quoting Farmer, 511 U.S. at 835). Neither does
“mere disagreement over the proper treatment ... create a
constitutional claim”; “[s]o long as the treatment given is
adequate, the fact that a prisoner might prefer a different
treatment does not give rise to a[ ] [deliberate indifference]
violation.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.
1998).
“The two-pronged framework for claims of deliberate
indifference set forth in Darnell “applies with equal measure
to failure to protect claims.” Luckey v. Jonas, No. 18-
CV-8103, 2019 WL 4194297, at *3 (S.D.N.Y. Sept. 4, 2019)
(citation and quotation marks omitted).
b. Medical Deliberate Indifference Claims
Medical Defendants and Nurse Guinan-Clark argue that
Plaintiff fails to state a claim of deliberate indifference to his
medical needs. (Med. Defs. Mem. 9 et seq.; Guinan-Clark
Mem. 10 et seq.)
i. Medical Conditions Upon Admission to Sullivan
Plaintiff alleges that, upon his admission to Sullivan
in December 2016, he suffered from drug and alcohol
withdrawal symptoms, high blood pressure, seizures,
migraines, sinus infections, eye problems, stomach problems,
knee and shoulder injuries, as well as multiple mental health
conditions; that he advised Nurses Altman, Gandulla, and
Moore (as well as correction officers Harrell, Gabriel, and
Moyer) of these conditions; and that he did not receive
adequate medical treatment. (Am. Compl. ¶¶ 51–61, 254–58,
362.) Plaintiff also alleges that he saw Nurse Guinan-Clark
three times between December 2016 and January 2017; that
he described to her his medical conditions, and in particular
described his left shoulder pain and a pinched nerve; that
she failed to properly document his medical history; that
she replaced his foam knee brace and provided Plaintiff
with Motrin and naproxen for pain and swelling relief on
December 27, 2016; that she told Plaintiff she would speak
with Bini about moving Plaintiff to a different housing unit
with better ventilation; and that she referred Plaintiff to a
doctor. (Id. ¶¶ 268–78.) 4
As to the alleged drug and alcohol withdrawal symptoms,
Medical Defendants argue that withdrawal symptoms of
“relatively short duration” are insufficient to satisfy the
objective element. (Med. Defs.' Mem. 9.) The Court
disagrees. “Courts have held that drug or alcohol withdrawal
alone constitutes a serious medical condition.” Lara-Grimaldi
v. County of Putnam, No. 17-CV-622, 2018 WL 1626348,
at *13 (S.D.N.Y. Mar. 29, 2018) (collecting cases); see
also Ryan v. County of Nassau, No. 12-CV-5343, 2018
WL 354684, at *5 (E.D.N.Y. Jan. 10, 2018) (holding that
the plaintiff's “withdrawal, combined with his numerous
psychological problems amounted to a ‘sufficiently serious’
medical problem” (citation omitted)). Medical Defendants
do not make any argument as to the mental-state element.
(See Med. Defs.' Mem. 9.) In any event, Plaintiff alleges
that he was “confined to a bed for 2 weeks, affecting all
[of his] daily normal activities,” and that during that period
he was in “great pain and mental agony”; that he “made
numerous direct complaints” to the above-named Defendants
when they made their “twice daily” medical rounds; that
these Defendants “witness[ed]” Plaintiff's “extreme pain,”
and that he was denied “adequate pain medication.” (Am.
Compl. ¶¶ 58–62.) Construed liberally, the Court finds
these allegations sufficient, at this stage, to plausibly state
a deliberate indifference claim. See Murphy v. Feliciano,
No. 17-CV-269, 2017 WL 3699353, at *6 (D. Conn. May
31, 2017) (holding deliberate indifference claim based on
alcohol withdrawal where the plaintiff alleged that “the
nurses did not offer him any treatment” and told him to
“stop whining”), on reconsideration, 2017 WL 3698490 (D.
Conn. Aug. 25, 2017), appeal dismissed 2018 WL 4705883
(2d Cir. Mar. 29, 2018); see also Farmer, 511 U.S. at
842 (holding that an official's awareness of the risk of
serious harm can be established through “inference from
circumstantial evidence,” including “from the very fact that
the risk was obvious”); cf. Harris v. Nassau County, No.
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13-CV-4728, 2016 WL 3023265, at *10 (E.D.N.Y. May
24, 2016) (dismissing deliberate indifference claim based
on withdrawal where the plaintiff did not allege that the
defendants “subjectively knew about and disregarded his
purportedly serious medical condition” (citation omitted)).
*13 As to Plaintiff's alleged pre-existing physical and mental
conditions upon admission to Sullivan, the Court notes that
it is “the particular risk of harm faced by a prisoner due to
the challenged deprivation of care, rather than the severity
of the prisoner's underlying medical condition, considered
in the abstract, that is relevant for [deliberate indifference]
purposes.” Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.
2003) (citation omitted). Here, Plaintiff principally alleges
that he had pain in his left shoulder upon arrival to Sullivan
in December 2016; that he complained of the pain to Dr.
Good and Nurses Guinan-Clark, Sauer, Gandulla, Altman,
Crawley, and Moore; that he did not receive adequate care
due to budgetary restrictions, and was only given Motrin and
naproxen and a referral to a doctor; that, only in September
2017, some 10 months later, was he “finally sent out” to
an outside doctor “for treatment” for his left shoulder and
right knee; and that there he was informed that he had
“severe arthritis couple[d] with [a] tear” and should undergo
“reconstructive surgery.” (Am. Compl. ¶¶ 308–15.) “Where
a plaintiff complains of delays or interruptions in providing
needed medical treatment, the court should consider the
severity of the challenged delay or interruption in treatment
rather than the prisoner's underlying medical condition alone
in determining whether plaintiff has shown the existence
of a sufficiently serious medical need.” Balkum v. Unger,
No. 06-CV-6578, 2009 WL 290439, at *5 (W.D.N.Y. Feb.
5, 2009). “[A] delay in treatment does not violate the
constitution unless it involves an act or failure to act
that evinces a conscious disregard of a substantial risk of
serious harm.” Pabon v. Wright, No. 99-CV-2196, 2004
WL 628784, at *8 (S.D.N.Y. Mar. 29, 2004) (citation and
quotation marks omitted), aff'd, 459 F.3d 241 (2d Cir. 2006).
“Here, Plaintiff has not alleged any conduct or behavior
that would suggest the delay [in his shoulder treatment] was
caused by [Defendants'] deliberate indifference.” Norman
v. Marcilla, No. 17-CV-9174, 2019 WL 3066426, at *5
(S.D.N.Y. July 11, 2019) (citation and quotation marks
omitted). Indeed, Plaintiff alleges that he received pain
medication and a referral; there are no allegations suggesting
that any Defendant “took affirmative steps to ensure that
[Plaintiff] would not receive [medical] treatment.” Myrie
v. Calvo, 615 F. Supp. 2d 246, 247–48 (S.D.N.Y. 2009)
(emphasis added). “Absent such allegations, the ... Amended
Complaint suggests only that [Defendants] acted, or failed to
act, with negligence amounting to medical malpractice, which
is insufficient to state a claim for deliberate indifference.”
Norman, 2019 WL 3066426, at *5 (citation and quotation
marks omitted). The Court therefore concludes that Plaintiff
fails to state a deliberate indifference claim as to the delay in
his shoulder treatment. See Bell v. Jendell, 980 F. Supp. 2d
555, 562 (S.D.N.Y. 2013) (collecting cases for the proposition
that courts dismiss deliberate indifference claims in which
inmates “merely allege a delay in the provision of medication
or treatment, but fail to allege that the delay was either
intentional or reckless” (citations omitted)). 5
ii. Illness After Meal
Plaintiff alleges that, on January 7, 2017, he became ill and
experienced serious vomiting and diarrhea after eating lunch,
that he was offered “pepto” by Calangelo, and that Nurse
Altman refused to provide him with medical treatment. (Am.
Compl. ¶¶ 282–89.) This isolated claim of food poisoning
is not, without more factual detail relating to the duration,
severity, and effects of the food poisoning, sufficient to
satisfy the objective element. See Ballard v. Lane, No.
18-CV-172, 2019 WL 1129158, at *3 (S.D.N.Y. Mar. 12,
2019) (holding objective element not satisfied as to food
contamination claim where the plaintiff did not allege “any
facts regarding the duration of the unsanitary condition”);
Roundtree v. City of New York, No. 15-CV-8198, 2018 WL
1586473, at *8 (S.D.N.Y. Mar. 28, 2018) (“The sole incident
of food poisoning did not pose an immediate danger to
[the plaintiff's] health, especially when contrasted against
other cases in which courts have found serious violations
pertaining to spoiled food.” (citation omitted)); cf. Hudson v.
City of New York, No. 15-CV-4920, 2016 WL 3976399, at *5
(S.D.N.Y. June 23, 2016) (“[C]ourts have found that, under
certain circumstances, the serving of contaminated meals
satisfies the objective prong of a conditions-of-confinement
claim.” (collecting cases)), adopted by 2016 WL 3982512
(S.D.N.Y. July 21, 2016). The Court therefore concludes that
Plaintiff fails to state a deliberate indifference claim based on
his alleged food poisoning.
iii. Treatment Following Altercations
Plaintiff alleges three incidents in which he was assaulted and
did not receive adequate medical treatment.
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First, Plaintiff alleges that, in July 2017, he had an altercation
with another inmate that caused him to sustain “a few scrapes
and cuts” and exacerbated the pre-existing pain in his left
shoulder. (Am. Compl. ¶¶ 135–47.) Plaintiff alleges that
he saw Nurse Altman and that he was given “no medical
treatment to his severe pain in his left shoulder.” (Id.)
Second, Plaintiff alleges that, also in July 2017, following an
altercation with Minckler, he was sprayed with “O.C. spray”
— that is, pepper spray — “directly into [his] eyes,” face, and
hair. (Id. ¶ 165.) This caused Plaintiff to struggle to breathe
and caused his eyes to be in “excruciating” and “burning”
pain. (Id. ¶ 167.) Plaintiff was taken to Nurse Altman
and received “oxygen many times.” (Id. ¶ 168.) However,
although Nurse Altman “rins[ed]” Plaintiff's “face area and
eyes,” she did not “adequately decontaminate [P]laintiff's
dreadlocks, even after [he] clearly complain[ed].” (Id.)
Plaintiff was returned to his housing without being given a
“cold shower to adequately decontaminate” his dreadlocks.
(Id. ¶ 169.) Instead, Plaintiff was only given “hot shower[s],”
which “reactivate[d]” and “retrigger[ed]” the “oil base” in
the spray, further causing him pain. (Id. ¶¶ 169–71.) Plaintiff
“complained directly” to numerous Defendants over the next
two weeks to get a cold shower, but they “failed to remedy”
the issue. (Id. ¶¶ 171–75.)
*14 Third, Plaintiff alleges that, in January 2018, he was
assaulted by Gabriel, Lekovic, and Kleingardner while in
his cell, after which he “immediately started yelling ...
for medical.” (Id. ¶¶ 340–50.) When another correction
officer came, Plaintiff told him he “needed medical for his
excruciating pain in his head and all over his body”; however,
that officer did nothing. (Id. ¶¶ 351–53.) At some later point,
Plaintiff spoke with Nurse Gandulla, who “failed to ... bring”
Plaintiff “to the medical station” to “examine [his] complete
body, take vitals, and treat any and all obvious ... [and] serious
injuries and provide adequate pain medicine.” (Id. ¶ 354.)
Further, Plaintiff spoke with Nurse Moore, who also “failed
to bring” Plaintiff “to the medical station.” (Id. ¶ 355.)
As to the first and third incidents, the Court concludes that,
even assuming Plaintiff was intentionally denied medical care
such that the mental-state element would be satisfied, Plaintiff
fails to allege facts plausibly suggesting that he suffered from
an injury serious enough to satisfy the objective element. See
Goodwin v. Kennedy, No. 13-CV-1774, 2015 WL 1040663
at *12 (E.D.N.Y. Mar. 10, 2015) (holding that multiple cuts
and lacerations did not satisfy objective element (collecting
cases)); Ford v. Phillips, No. 05-CV-6646, 2007 WL 946703,
at *12 (S.D.N.Y. Mar. 27, 2007) (“Abrasions, a minor bruise,
slight bleeding[,] and scratches are not injuries that may
produce death, degeneration or extreme pain....”). This is not
a case where Plaintiff has alleged that he sustained a broken
bone, a dislocation, or some other serious physical injury. See,
e.g., Munoz v. Eliezer, No. 16-CV-6049, 2018 WL 1626170,
at *6 (S.D.N.Y. Mar. 30, 2018) (holding objective element
satisfied where the plaintiff “alleged injuries of three-to-four
broken ribs and a dislocated shoulder” (collecting cases)).
The Court therefore concludes that Plaintiff fails to state a
deliberate indifference claim based on injuries suffered during
the alleged July 2017 and January 2018 altercations.
As to second incident involving pepper spray, the Court
concludes that Plaintiff fails, on the facts as alleged, to
satisfy the objective element. “[C]ourts within this Circuit
have previously found that the temporary discomfort caused
by pepper spray or mace does not constitute a ‘sufficiently
serious’ injury.” Lewis v. Clarkstown Police Dep't, No. 11-
CV-2487, 2014 WL 1364934, at *7 (S.D.N.Y. Mar. 31, 2014)
(citations omitted), on reconsideration, 2014 WL 6883468
(S.D.N.Y. Dec. 8, 2014). Here, Plaintiff does not allege
facts suggesting that he suffered permanent effects or serious
injury from the pepper spray. The Court thus concludes that
Plaintiff fails to state a deliberate indifference claim as to this
incident. See Wright v. Trapasso, No. 15-CV-4428, 2018 WL
4688940, at *11 (E.D.N.Y. Sept. 28, 2018) (holding objective
element not satisfied where the plaintiff did “not claim any
lasting physical injuries from the pepper spray”); Holmes
v. City of New York, No. 17-CV-3874, 2018 WL 4211311,
at *7 (S.D.N.Y. Sept. 4, 2018) (holding objective element
not satisfied where, “[w]hile undoubtedly uncomfortable and
painful, the[ ] temporary effects of chemical spray are not
serious medical needs because they do not rise to the level
of producing death, degeneration, or extreme pain” (citation
omitted)).
iv. Seizures
Plaintiff alleges that he suffered seizures on November 6 and
12, 2017. (Am. Compl. ¶¶ 320, 332–34.) However, Plaintiff
does not allege that he did not receive treatment. As to
the November 6, 2017 seizure, Plaintiff acknowledges that,
notwithstanding Nurse Sauer's debate with Harrell “over the
cheapest way to transport [him] to the hospital,” he was in
fact taken to a hospital. (Id. ¶¶ 321, 324–25.) And as to
the November 12, 2017 seizure, Plaintiff acknowledges that,
notwithstanding Nurse Crawley's alleged failure to provide
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him medical care, Nurse Moore came and took Plaintiff's
vitals. (Id. ¶¶ 334–43.) To the extent Plaintiff claims that
the treatment provided was inadequate, Plaintiff fails to
allege what harm he suffered as a result of the seizures and
subsequent treatment. Youngblood v. Artus, No. 10-CV-752,
2011 WL 6337774, at *7–8 (N.D.N.Y. Dec. 19, 2011) (“[The]
[p]laintiff failed to allege that he suffered harm as a result of
[the defendant's] failure to give him one dose of his seizure
medication.” (citation omitted)). And to the extent Plaintiff's
claim is focused on the delay in medical treatment following
the seizures, “temporary delays ... [in] medical treatment have
been found to satisfy the objective seriousness requirement”
only where “they have involved either a needlessly prolonged
period of delay, or a delay which caused extreme pain or
exacerbated a serious illness.” Morgan v. Shivers, No. 14-
CV-7921, 2018 WL 618451, at *8 (S.D.N.Y. Jan. 29, 2018)
(citation and quotation marks omitted). Plaintiff fails to allege
how long the alleged delay lasted and, more importantly, how
the delay caused him extreme pain or exacerbated a serious
medical condition. Without these necessary factual details,
“allegations of a limited delay ... are insufficient to plead
an objectively serious risk to Plaintiff's health rising to the
level of a constitutional claim.” Fleming v. City of New York,
No. 18-CV-4866, 2019 WL 4392522, at *11 (S.D.N.Y. Aug.
27, 2019) (citation and quotation marks omitted). The Court
therefore concludes that the Amended Complaint fails to state
a deliberate indifference claim as to the medical treatment
provided following his November 2017 seizures.
c. Conditions of Confinement Claims
*15 Supervisor and Correction Officer Defendants argue
that Plaintiff fails to state a claim for unconstitutional
conditions of confinement. (See Sup. Defs.' Mem. 12; CO
Defs.' Mem. 22.)
Plaintiff raises a litany of allegations against many aspects of
Sullivan's conditions of confinement. First, Plaintiff alleges
that the conditions in Sullivan's modular housing units are
inadequate. According to the Amended Complaint, while
housed in the M-1 unit, which provides a “constant watch”
over inmates dealing with mental health problems, Plaintiff
was housed next to “seriously mentally ill prisoners” and
was thus “expose[d] to screaming and feces-smearing” as
well as “constant, loud banging.” (Am. Compl. ¶¶ 265,
267, 366–67.) Further, whenever Plaintiff was placed in
one of Sullivan's other modular units, there was inadequate
ventilation, “widespread” mold, drastic heat changes, bad
smell, and “brown,” “foul tasting” water that is “burning
when dr[u]nk,” “upset[s] [the] stomach,” and causes “skin
rashes.” (Id. ¶¶ 261–67, 366–69, 368–73.) The Court finds,
“[a]t this stage in the litigation, [that] Plaintiff has alleged the
objective prong of his conditions of confinement claim,” as
he “has alleged that he was exposed to human excrement and
bodily fluids in a poorly ventilated cell over the course of
multiple days.” Barnes v. County of Monroe, 85 F. Supp. 3d
696, 738 (W.D.N.Y. 2015); see also Hamilton v. Smith, No.
06-CV-805, 2009 WL 3199531, at *16 (N.D.N.Y. Jan. 13,
2009) (holding objective element satisfied where the plaintiff
produced evidence of undrinkable water and inadequate
ventilation), adopted by 2009 WL 3199520 (N.D.N.Y. Sept.
30, 2009); cf. Little v. Mun. Corp., 51 F. Supp. 3d 473, 491
(S.D.N.Y. 2014) (noting that “courts in the Second Circuit
have repeatedly held sporadic or brief exposure to waste does
not amount to a constitutional violation” (collecting cases)).
Further, “[a]lthough Plaintiff has not specifically alleged
that Defendants had knowledge of [these] condition[s],
Defendants' knowledge may be inferred by the simple fact
that these Defendants must have viewed the conditions of
the cell when they placed Plaintiff in it.” Barnes, 85 F.
Supp. 3d at 738 (citation omitted); see also Brock, 315 F.3d
at 164 (“[E]vidence that the risk was obvious or otherwise
must have been known to a defendant is sufficient to permit
a jury to conclude that the defendant was actually aware
of it.” (citation omitted)). Accordingly, the Court declines
to dismiss Plaintiff's conditions-of-confinement claim as
Sullivan's modular housing units.
Separately, Plaintiff alleges that the food generally provided
to inmates at Sullivan — whose preparation is overseen by
Fraser — is “spoiled, raw, cold, [and] tampered with,” thus
causing severe pain and sickness. (Am. Compl. ¶¶ 370–71.)
This claim requires further factual development. Plaintiff has
“not stated a claim under the Fourteenth Amendment, which
requires that he allege deprivation of ‘the measure of food
necessary to maintain health,’ and he has not [plausibly]
stated a claim based on the denial of food.” Corley v. City
of New York, No. 14-CV-3202, 2017 WL 4357662, at *14
(S.D.N.Y. Sept. 28, 2017) (citation omitted). Accordingly, this
claim is dismissed.
*16 Plaintiff also alleges that throughout Sullivan there
were “drain flies” and “other vermin” in the shower, and
that Sullivan attempted to spray the area without success.
(Am. Compl. ¶ 374.) This claim too requires further factual
development. “The mere presence of vermin in a detainee's
housing area does not constitute a denial of the minimal
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civilized measure of life's necessities.” Mena v. City of New
York, No. 12-CV-28, 2014 WL 2968513, at *10 (S.D.N.Y.
June 27, 2014) (citation and quotation marks omitted).
Further, Plaintiff acknowledges that Sullivan took steps
to combat the alleged problem; there are no allegations
suggesting that any Defendant “recklessly failed to act with
reasonable care to mitigate the risk that the condition posed”
such that Plaintiff could satisfy the mental-state element.
Darnell, 849 F.3d at 35. Accordingly, this claim is dismissed.
Finally, Plaintiff alleges that for one day his toilet was
dysfunctional and overflowing, causing his cell to smell. (Am.
Compl. ¶¶ 150–69.) Plaintiff fails to allege facts plausibly
suggesting that this condition satisfies the objective element
required to state a conditions of confinement claim. See
Burroughs v. Mitchell, 325 F. Supp. 3d 249, 277 (N.D.N.Y.
2018) (dismissing conditions-of-confinement claim based
on lack of “functioning toilet or running water for four
days” (citation omitted)); Florio v. Canty, 954 F. Supp. 2d
227, 235–36 (S.D.N.Y. 2013) (holding that two instances of
confinement in cells with overflowing toilets and being forced
to walk through ankle-high human waste was “simply too
minor to state an Eighth Amendment claim”). Accordingly,
this claim is dismissed.
d. Failure-To-Protect Claims
It is well-established that “prison officials have a duty
to protect prisoners from violence at the hands of other
prisoners.” Farmer, 511 U.S. at 833 (citation, quotation
marks, and alteration omitted). To state a claim based on
prison official's failure to protect an inmate from attack
(or failed to intervene to stop an attack), a plaintiff must
plausibly allege that the prison official acted with “deliberate
indifference to a substantial risk of serious harm to an
inmate.” Taylor v. City of New York, No. 16-CV-7857, 2018
WL 1737626, at *11 (S.D.N.Y. Mar. 27, 2018) (quoting
Farmer, 511 U.S. at 828).
Plaintiff describes three incidents in which Sullivan
correction officers allegedly failed to protect his safety.
First, Plaintiff alleges that, in January 2017, while housed
in the M-9 modular unit, he was the “only black [inmate]”
in the six-person unit and “was having serious racial issues
with” three other inmates there. (Am. Compl. ¶¶ 78–80,
82.) Plaintiff complained to Harrell and Calangelo about
harassment from the other inmates, but they did not act.
(Id. ¶ 81.) On January 18, 2017, while “locked defenseless”
in a room showering, these other inmates verbally harassed
Plaintiff with racist language, “thr[e]w urine” on him, and
“sp[a]t[ ]” on him; Plaintiff “had to yell a good 20 minutes
before [Calangelo] responded,” despite the fact that the
office was “10 feet from the” shower area. (Id. ¶¶ 80–87.)
Although Plaintiff did not allege that he suffered a serious
physical injury as a result of the incident, “prison officials
have a constitutional duty to act reasonably to ensure a
safe environment for a prisoner when they are aware that
there is a significant risk of serious injury to that prisoner,”
and “[t]he failure to do so violates that prisoner's rights,
whether or not an attack actually occurs, and if it does occur,
whether or not the injuries suffered in an attack are serious.”
Douglas v. Annuci, No. 14-CV-6018, 2017 WL 5159194, at
*4 (W.D.N.Y. Nov. 7, 2017). Therefore, construed liberally,
Plaintiff has sufficiently stated a claim of failure to protect,
given Calangelo's prior notice of racial tension in the unit via
Plaintiff's recent complaints, the length of the alleged assault,
and Calangelo's alleged proximity to the incident. See Lehal
v. United States, No. 13-CV-3923, 2015 WL 9592706, at *8
(S.D.N.Y. Dec. 29, 2015) (“Courts may look to the length
of the incident, inter alia, to determine whether an officer
had a realistic opportunity to intervene.” (citation and italics
omitted)).
*17 Second, Plaintiff alleges that, on February 10, 2017, he
was involved in a physical altercation with another inmate,
who was the aggressor, while Nash “was just standing” nearby
“enjoying the spectacle” and failed to intervene. (Am. Compl.
¶¶ 100–05.) Only after 10 minutes did Nash “call[ ] for a
code 7” alarm. (Id. ¶ 106.) As with the first incident, Plaintiff
sufficiently states a claim as to this assault, as he alleges that
Nash “witnessed the attack on [him] and allegedly failed to
take action to prevent it.” Taylor, 2018 WL 1737626, at *12.
Third, Plaintiff alleges that, in early July 2017, he and
another inmate got in an argument while in their cells.
(Am. Compl. ¶ 130.) Compasso came by, but did nothing
except “stare[ ] ... for a couple seconds” and then leave.
(Id. ¶ 133.) Some days later, Plaintiff and the inmate again
began arguing, which turned into a physical altercation begun
by the other inmate. (Id. ¶¶ 135–39.) Plaintiff alleges that
Compasso, who was not present at the physical altercation,
“failed to remove[ ] a ... potential fight risk.” (Id. ¶ 134.)
Yet, “an inmate's communications about generalized safety
concerns or vague concerns of future assault by unknown
individuals are insufficient to provide knowledge that the
inmate is subject to a substantial risk of serious harm.”
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Anselmo v. Kirkpatrick, No. 19-CV-350, 2019 WL 2137469,
at *4 (N.D.N.Y. May 16, 2019) (collecting cases). Rather, a
failure-to-protect claim requires the plaintiff “allege[ ] that
he informed [the prison official] about a specific fear of
assault and [was] then assaulted.” Tubbs v. Venettozzi, No.
19-CV-126, 2019 WL 2610942, at *5 (N.D.N.Y. June 26,
2019); see also Velez v. City of New York, No. 17-CV-9871,
2019 WL 3495642, at *4 (S.D.N.Y. Aug. 1, 2019) (“Those
cases which have found officers potentially liable for failing
to prevent an attack involved clear and specific threats against
an inmate.” (collecting cases)). Here, Plaintiff does not allege
that Compasso knew that the other inmate posed a specific
and substantial risk to Plaintiff's safety, nor does he allege that
Compasso was present at the scene of the physical altercation
and in a position to intervene. Accordingly, Plaintiff fails to
state a failure-to-protect claim based on this incident. See
Rivera v. Connolly, No. 18-CV-3958, 2019 WL 3564559,
at *5 (S.D.N.Y. Aug. 6, 2019) (“[T]he amended complaint
does not allege anyone warned [the defendant] that another
inmate posed a substantial risk of serious harm to [the]
plaintiff's safety, nor does it contain any factual allegation
suggesting [the defendant] otherwise knew or learned of such
a risk.” (original alteration omitted)); Plass v. New York,
No. 19-CV-553, 2019 WL 3561760, at *3 (N.D.N.Y. Aug.
6, 2019) (holding insufficient allegation that “officers saw
an unidentified inmate attempt to cut [the plaintiff] before
the attack,” because there was no plausible suggestion “that
the officers knew of an excessive risk to [the plaintiff's]
health or safety” (citation omitted)); Haughton v. Clinton, No.
15-CV-1160, 2015 WL 9244398, at *2 (S.D.N.Y. Dec. 17,
2015) (dismissing failure-to-protect claim where the plaintiff
only told the prison official that he “feared for [his] safety,”
as that statement was “too conclusory for [the official] to
have inferred the existence of such a substantial risk”); cf.
Grant v. Hogue, No. 17-CV-3609, 2019 WL 3066378, at
*7 (S.D.N.Y. July 12, 2019) (declining to grant summary
judgment on failure-to-protect claim where the “[p]laintiff's
testimony arguably describe[d] a previous altercation with
[the other inmate] coupled with a complaint by [the] plaintiff
to prison officials or a request to be separated from the
attacker,” and where the plaintiff “arguably attribute[d] to
[the other inmate] more than verbal threats alone” because
“he sa[id] [the other inmate] came within three feet of [him]
in a fighting stance and then tried to attack [him] through a
group of correction officers” (citations, quotation marks, and
alterations omitted)).
5. Excessive Force Claims
a. Applicable Law
*18 Excessive force claims brought by pretrial detainees
“are analyzed under the Due Process Clause of the Fourteenth
Amendment, rather than the Cruel and Unusual Punishment
Clause of the Eighth Amendment.” Holland v. City of New
York, 197 F. Supp. 3d 529, 545 (S.D.N.Y. 2016) (citing City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
The Supreme Court has held that for “excessive force claims
of pretrial detainees ..., ‘the appropriate standard is solely
an objective one.’ ” Id. (alteration omitted) (citing Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)). To establish
a claim for excessive force, “a pretrial detainee must show
only that the force purposely or knowingly used against
him was objectively unreasonable.” Kingsley, 135 S. Ct. at
2473; see also Edrei v. Maguire, 892 F.3d 525, 537 (2d
Cir. 2018) (holding that “Kingsley provides the appropriate
standard for all excessive force claims brought under the
Fourteenth Amendment”). Considerations that may bear on
the reasonableness of the force used include:
[T]he relationship between the need
for the use of force and the amount of
force used; the extent of the plaintiff's
injury; any effort made by the officer to
temper or to limit the amount of force;
the severity of the security problem at
issue; the threat reasonably perceived
by the officer; and whether the plaintiff
was actively resisting.
Id.; see also Frost v. Davis, No. 17-CV-8418, 2019 WL
4512620, at *6 (S.D.N.Y. Sept. 18, 2019) (“The determination
of reasonableness must be made from the perspective of a
reasonable officer on the scene, including what the officer
knew at the time.”) (citation, alterations, and quotation marks
omitted).
b. Application
Plaintiff alleges two incidents of excessive force. First,
Plaintiff alleges that, on July 13, 2017, he complained to
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certain Defendants about a dysfunctional toilet, but they failed
to remedy the problem. (Am. Compl. ¶¶ 149–59.) Eventually,
Gray and Minckler came to investigate, and used racial slurs
against Plaintiff. (Id. ¶¶ 160–63.) They demanded Plaintiff
“put [his] black fucking hands [through] the bars,” and,
when Plaintiff “approach[ed] the front of his cell to comply,”
Minckler “spray[ed]” the “fully cooperative” Plaintiff with
pepper spray into his face and eyes and onto his dreadlocks.
(Id. ¶ 165.) Plaintiff was “roughly handcuffed and brought to
the medical station.” (Id. ¶ 166.) Plaintiff “was barely able
to breathe” and his eyes were “burning” and in “excruciating
pain.” (Id. ¶ 167.)
Second, Plaintiff alleges that, on January 5, 2018, while in
the M-1 unit, Gabriel, Lekovic, and Kleingardner came to
Plaintiff's cell and used racist and harassing language to him.
(Id. ¶¶ 338–40, 343, 348.) When Plaintiff asked Gabriel
“why [he was] by [Plaintiff's] cell” given that Plaintiff had
“open complaints against [him],” the officers pulled out their
handcuffs and yelled at Plaintiff to place his hands through
the cell door chute, a “prohibited” procedure. (Id. ¶¶ 340–
42.) Plaintiff did so, and Gabriel placed handcuffs on Plaintiff,
thus “cutting off the circulation,” and “yank[ed]” Plaintiff
out of his cell “without standard video recording safety
measure procedures.” (Id. ¶¶ 344–45.) Gabriel, Lekovic,
and Kleingardner took Plaintiff “to the other end of the
tier” and then searched Plainiff's cell “without any security
camera.” (Id. ¶ 346.) Plaintiff complained that this was a
violation, but Gabriel yelled back, using racist language. (Id.
¶¶ 347–48.) Gabriel, Lekovic, and Kleingardner then “used
brutal force” on the “fully cooperative” Plaintiff by repeatedly
“punching and kicking [him] upon the head, chest, arms,
legs[,] and back,” after which they dragged him back into the
cell. (Id. ¶¶ 349–50.)
Correction Officer Defendants argue — citing case law from,
most recently, 1993 — that Plaintiff fails to state an excessive
force claim because he does not establish that “Defendants'
actions, even if malevolent, constituted a malicious or sadistic
effort to inflict harm.” (CO Defs.' Mem. 25.) Incredibly, given
the severity of Plaintiff's allegations, this is the full extent of
Correction Officer Defendants' argument; they fail entirely to
meaningfully apply the (outdated) case law to the facts of this
case.
*19 In any event, the Court concludes that Plaintiff has
plausibly stated an excessive force claim. As to the alleged
July 2013 pepper spray incident, while “the use of a single
burst of a chemical agent, which is not a dangerous quantity,
is a constitutionally acceptable means of controlling an
unruly or disruptive inmate,” Frost, 2019 WL 4512620, at
*7 (citation and quotation marks omitted), here, Plaintiff
squarely alleges that he was fully cooperative, that Minckler
and Gray were on the other side of the cell bars (and thus
not plausibly in danger), and that the pepper spray was
intentionally sprayed directly into Plaintiff's eyes and face and
onto his hair, causing him excruciating pain that lasted for
two weeks. This is sufficient. See Shabazz v. Semple, No. 17-
CV-904, 2019 WL 1979959, at *4 (D. Conn. May 3, 2019)
(“[The plaintiff] has plausibly alleged that [the prison official]
used an unreasonable and unnecessary amount of force in
spraying him in the face when he was not resisting but was
attempting to follow the orders of [another prison official],
who was repeatedly directing him to put his arms behind his
back, and that [the first prison official] sprayed him with mace
to cause him pain rather than for a legitimate penological
purpose.” (citation omitted)); cf. Campbell v. Hanson, No. 17-
CV-1024, 2019 WL 2717691, at *4 (S.D.N.Y. June 28, 2019)
(holding, on motion for summary judgment, that the plaintiff
failed to state an excessive force claim based on use of pepper
spray where there was no dispute that the prison official used
the “spray in an effort to break up the altercation,” where the
plaintiff acknowledged “that he heard [the official] issue a
verbal warning,” and where there was no “evidence indicating
that the [pepper] spray was deployed in an effort to cause
harm rather than in a good faith effort to maintain and restore
discipline” (citation and quotation marks omitted)). Similarly,
as to the alleged January 2018 assault, Plaintiff alleges
that Gabriel, Lekovic, and Kleingardner assaulted a fully
cooperative inmate who posed no risk to prison officers. This
is sufficient. See Gulley v. Ogando, No. 19-CV-612, 2019
WL 2502753, at *3 (D. Conn. June 17, 2019) (“Given that ...
[the plaintiff] has not alleged that [he] made any attempt to
resist the efforts of officers ..., his allegations regarding the
use of kicks and punches to his head, face, back and neck by
[correction officers] ... plausibly state a claim that the force
used was intended to cause him pain or discomfort rather than
to maintain discipline or security.” (citations omitted)). 6
Accordingly, the Court holds that Plaintiff plausibly states
an excessive force claim as to the July 2017 pepper spray
incident and the January 2018 assault.
6. Procedural Due Process Claim
Supervisor Defendants argue that Plaintiff fails to state a
procedural due process claim. (Sup. Defs.' Mem. 10.)
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a. Applicable Law
“To present a due process claim, a plaintiff must establish
(1) that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of
insufficient process.” Ortiz v. McBride, 380 F.3d 649, 654
(2d Cir. 2004) (citation, alterations, and quotation marks
omitted). The Supreme Court has held that inmates retain
due process rights in prison disciplinary proceedings. See
Wolff v. McDonnell, 418 U.S. 539, 563–72 (1974) (describing
the procedural protections that inmates are to receive when
subject to significant disciplinary punishment). However,
“[p]rison discipline implicates a liberty interest [only] when
it ‘imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.’ ” Ortiz,
380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)).
The Second Circuit has explained that “[t]he length of
disciplinary confinement is one of the guiding factors in
applying Sandin’s ‘atypical and significant hardship’ test.”
Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (citation
omitted). The duration of disciplinary confinement, however,
is “not the only relevant factor,” and the Second Circuit has
“explicitly avoided a bright line rule that a certain period of
SHU confinement automatically fails to implicate due process
rights.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004)
(citations and quotation marks omitted). As a guidepost, the
Second Circuit has instructed that “[w]here the plaintiff was
confined for an intermediate duration — between 101 and 305
days — development of a detailed record of the conditions
of the confinement relative to ordinary prison conditions is
required.” Id. at 64–65 (citation and quotation marks omitted).
Even a confinement period of 280 days is not necessarily
evidence of deprivation of a liberty interest if the detainee
fails to make specific allegations about the nature of the
confinement, including time spent “within the cell, hygienic
conditions, access to programs, as well as other conditions.”
Dawkins v. Gonyea, 646 F. Supp. 2d 594, 607 (S.D.N.Y.
2009). The Second Circuit has also suggested that “evidence
of the psychological effects of prolonged confinement in
isolation” may be helpful in developing the necessary record.
Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000).
*20 Regarding the process an inmate is due, a disciplinary
hearing comports with due process when an inmate receives
“advance written notice of the charges; a fair and impartial
hearing officer; a reasonable opportunity to call witnesses
and present documentary evidence; and a written statement
of the disposition, including supporting facts and reasons for
the action taken.” Luna v. Pico, 356 F.3d 481, 487 (2d Cir.
2004) (citation omitted). “In the context of prison disciplinary
hearings, the Second Circuit has said that its ‘conception
of an impartial decisionmaker is one who, inter alia, does
not prejudge the evidence and who cannot say, with utter
certainty, how he would assess evidence he has not yet seen.’
” Rahman v. Acevedo, No. 08-CV-4368, 2011 WL 6028212,
at *7 (S.D.N.Y. Dec. 5, 2011) (italics and alterations omitted)
(quoting Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir.
1990)).
b. Inmate Grievance Procedure
As Correction Officer and Supervisor Defendants argue,
(Sup. Defs.' Mem. 25), Plaintiff's general complaints about
the adequacy of the Sullivan inmate grievance procedure
and Sullivan officials' non-compliance with that procedure,
(see Am. Compl. ¶¶ 279–80, 290, 376–400), must be
dismissed. “A prisoner has no constitutional right to a prison
grievance procedure or to have his grievances investigated.”
Hayes v. County of Sullivan, 853 F. Supp. 2d 400, 434
(S.D.N.Y. 2012) (citations omitted). Put differently, “[i]nmate
grievance programs created by state law are not required by
the Constitution, and consequently, allegations that prison
officials violated those procedures do not give rise to
a cognizable § 1983 claim.” Means v. Rockland County
Corr. Facility, No. 18-CV-8290, 2019 WL 1596489, at *9
(S.D.N.Y. Apr. 15, 2019) (citation, original alterations, and
quotation marks omitted).
c. Disciplinary Proceedings
Plaintiff makes seven allegations of disciplinary proceedings
that were procedurally improper. The Court addresses them
in chronological order.
i. First Disciplinary Hearing
Plaintiff first alleges that, on December 31, 2016, Cole and
Lynch gave him a “fabricated” misbehavior report charging
him with assault and violent conduct. (Am. Compl. 17–18.)
A disciplinary hearing overseen by Whalan was held on
January 3, 2017. (Id. ¶¶ 68–69.) Whalan allegedly refused
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Plaintiff to have assistance, to call witnesses, and to view
video footage, and further stated that Plaintiff “ha[s] no rights
in [Sullivan].” (Id. ¶¶ 67, 69–75.) Whalen found Plaintiff
guilty and sentenced him to 30 days in punitive segregation.
(Id. ¶ 73.) Plaintiff appealed, and Bini affirmed. (Id. ¶¶ 76–
77.)
A “30-day confinement is right at the cut-off suggested by
the Second Circuit for a presumptively typical confinement.”
Thomas v. DeCastro, No. 14-CV-6409, 2018 WL 1322207,
at *7 (S.D.N.Y. Mar. 13, 2018) (citations, alterations, and
quotation marks omitted). That is, a 30-day ... confinement
alone is insufficient to create a liberty interest triggering due
process protections.” Colon, 344 F. Supp. 3d at 633 (emphasis
added) (collecting cases); see also Brown v. Murphy, No. 16-
CV-710, 2019 WL 2325777, at *2 (S.D.N.Y. May 30, 2019)
(“Courts in this Circuit have consistently found that such
limited periods of segregation do not, without more, constitute
‘atypical and significant hardships.’ ” (emphasis added)
(citation omitted)). Here, however, “construed liberally,”
Sykes, 723 F.3d at 403, Plaintiff plausibly alleges that he
“endured unusual ... conditions” during his confinement in
punitive segregation. Palmer, 364 F.3d at 66. In particular,
Plaintiff alleges that of the six inmates in punitive segregation,
he was the “only black” inmate and that he had “racial issues”
with three other inmates, (Am. Compl. ¶¶ 79–82); that he
endured racist harassment from the other inmates, including
verbal harassment and urine and spit being thrown on him
while in the shower, (id. ¶¶ 81–87); that he yelled for help
for twenty minutes before a prison official responded, (id.
¶ 85); that the incident caused Plaintiff “extreme mental
anguish” and “trigger[ed] [his] high blood pressure ... [and]
migrain[e]s,” such that it Plaintiff suffered “severe, crippling
pain from the migrain[e]s for 2 days,” (id. ¶ 86); and that he
“directly complained” about the other inmates to Harrell and
Calangelo, who apparently did not remedy the situation, (id. ¶
81). Taken together, the Court concludes that Plaintiff — who
has already plausibly stated a failure-to-protect claim based
on the same incident — has plausibly described an “atypical
and significant hardship ... in relation to the ordinary incidents
of prison life,” Ortiz, 380 F.3d at 654 (citation omitted), such
that Plaintiff had a protected liberty interest.
*21 Because Plaintiff has plausibly alleged “that he
possessed a liberty interest” and that Whalan “deprived
him of that interest as a result of insufficient process” in
his disciplinary hearing, id., the Court declines to dismiss
Plaintiff's due process claim based on his January 3, 2017
disciplinary hearing.
ii. Second Disciplinary Hearing
Second, Plaintiff alleges that, on January 18, 2017, Calangelo
wrote Plaintiff up on a “fabricated” misbehavior report. (Am.
Compl. ¶ 90.) A disciplinary hearing overseen by Whalan
was held on January 22, 2017. (Id. ¶ 91.) Plaintiff again
objected that he was being denied his right to assistance, to
call witnesses, to view video footage, and to present evidence,
but Whalan found Plaintiff guilty and sentenced him to 10
days in punitive segregation. (Id. ¶¶ 92–96, 98.) Plaintiff
appealed, and Bini affirmed. (Id. ¶¶ 97, 99.)
“Absent a detailed factual record, courts typically affirm
dismissals of due process claims where the period of time
spent in [restrictive housing] was short — e.g., thirty days
— and there was no indication of unusual conditions.”
Houston v. Cotter, 7 F. Supp. 3d 283, 298 (E.D.N.Y. 2014)
(citing Palmer, 364 F.3d at 66). Here, however, as above,
Plaintiff plausibly alleges facts suggesting that he suffered
an “atypical and significant hardship” during this period in
punitive segregation. Ortiz, 380 F.3d at 654 (citation omitted).
In particular, Plaintiff alleges that, on February 10, 2017,
he was “attacked” by another inmate for “for a good 10
minutes” while “Nash was just standing at the control[ ]
door box area enjoying the spectacle.” (Am. Compl. ¶¶ 100–
06.) Nash “fail[ed] to quickly and reasonably respond” and
“delay[ed] [in calling] a code 7” alarm. (Id. ¶¶ 104, 107.)
Taken together, the Court concludes that Plaintiff — who has
already plausibly stated a failure-to-protect claim based on
the same incident — has plausibly described an “atypical and
significant hardship ... in relation to the ordinary incidents of
prison life,” Ortiz, 380 F.3d at 654 (citation omitted), such
that Plaintiff had a protected liberty interest.
Because Plaintiff has plausibly alleged “that he possessed a
liberty interest” and that Whalan “deprived him of that interest
as a result of insufficient process” in his disciplinary hearing,
id., the Court declines to dismiss Plaintiff's due process claim
based on his January 22, 2017 disciplinary hearing.
iii. Third, Fourth, and Fifth Disciplinary Hearings
Third, Plaintiff alleges that, on February 10, 2017, Nash
“fabricated a misbehavior report” charging Plaintiff with
being the aggressor. (Am. Compl. ¶ 113.) A disciplinary
hearing overseen by Whalan was held on February 20, 2017.
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(Id. ¶¶ 115–16.) Plaintiff again objected that he was denied his
right to assistance, to call and cross-examine witnesses, but
Whalan found Plaintiff guilty and sentenced him to 30 days in
punitive segregation. (Id. ¶¶ 117–24.) Plaintiff appealed, and
Bini affirmed. (Id. ¶ 125.) As noted, “a 30-day ... confinement
alone is insufficient to create a liberty interest triggering due
process protections.” Colon, 344 F. Supp. 3d at 633 (citations
omitted). Here, Plaintiff has not alleged any facts suggesting
that he suffered an “atypical and significant hardship” during
this period in punitive segregation, Ortiz, 380 F.3d at 654
(citation omitted), such that he had a protected liberty interest.
Accordingly, the Court dismisses Plaintiff's due process claim
based on his February 20, 2017 disciplinary hearing.
*22 Fourth, Plaintiff alleges that, on July 13, 2017, Minckler
and Besson served Plaintiff with two false misbehavior
reports. (Am. Compl. ¶¶ 176, 178.) A disciplinary hearing
overseen by Whalan was held on July 17, 2017. (Id. ¶
178.) Plaintiff again objected that he was denied his right to
assistance and to meaningfully prepare for the hearing. (Id. ¶¶
176–84.) Whalen dismissed the misbehavior report filed by
Besson, but found Plaintiff guilty of that filed by Minckler,
and sentenced Plaintiff to 90 days in punitive segregation. (Id.
¶¶ 185–87). Plaintiff appealed, and Bini affirmed. (Id. ¶¶ 188–
89.) Yet, “90 days” in restrictive housing, “without additional
allegations, is insufficient to establish that [Plaintiff] suffered
from an atypical and significant confinement,” which Plaintiff
has not done. Elleby v. Martucello, No. 16-CV-1335, 2018
WL 3769965, at *3 (N.D.N.Y. Aug. 9, 2018). Accordingly,
the Court dismisses Plaintiff's due process claim based on his
July 17, 2017 disciplinary hearing. See Vogelfang v. Capra,
889 F. Supp. 2d 489, 511 (S.D.N.Y. 2012) (finding three
months of confinement did not trigger due process protections
where the plaintiff “[did] not plead any other facts tending to
show that her SHU confinement was uniquely harsh”).
Fifth, Plaintiff alleges that in October 2017, Lewis served
Plaintiff with a fabricated and retaliatory misbehavior report.
(Am. Compl. ¶¶ 208–09.) A disciplinary hearing overseen by
Wilcox was held on October 24, 2017. (Id. ¶ 195.) Plaintiff
objected on grounds that Wilcox could not be impartial
because Plaintiff had recently filed this Action. (Id. ¶ 196.)
Wilcox rejected the objection and further denied Plaintiff the
ability to call witnesses, present exculpatory information, and
be heard. (Id. ¶¶ 197, 199–200.) Wilcox found Plaintiff guilty
and sentenced him to 30 days in punitive segregation. (Id.
¶ 198.) Plaintiff appealed, and Bini affirmed. (Id. ¶ 210.)
As above, “a 30-day ... confinement alone is insufficient to
create a liberty interest triggering due process protections,”
Colon, 344 F. Supp. 3d at 633 (citations omitted), and Plaintiff
alleges no facts suggesting that he suffered an “atypical and
significant hardship” during this period, Ortiz, 380 F.3d at 654
(citation omitted), such that he had a protected liberty interest.
Accordingly, the Court dismisses Plaintiff's due process claim
based on his October 24, 2017 disciplinary hearing.
iv. Sixth, Seventh, and Eighth Disciplinary Hearings
Sixth, Plaintiff alleges that, on October 30, 2017,
Kleingardner served Plaintiff with a false and retaliatory
misbehavior report. (Am. Compl. ¶¶ 222–24, 227.) A
disciplinary hearing overseen by Wilcox was held on
November 4, 2017. (Id. ¶ 227.) Plaintiff unsuccessfully
“objected to not being provided with a 24 hour notice of
[the] misbehavior report,” to being denied the ability to
gather evidence and otherwise defend his case, and to the
retaliatory nature of the misbehavior report given Plaintiff's
recent filing of this Action. (Id. ¶¶ 228–34.) Wilcox found
Plaintiff guilty, Plaintiff appealed, and Bini affirmed. (Id. ¶
236.) It appears that Wilcox sentenced Plaintiff to 180 days
in punitive segregation. (Id. ¶ 232.)
Finally, seventh and eighth, Plaintiff alleges that, on
December 9, 2017, he received notice of two disciplinary
proceedings held against him without his knowledge or
presence. (Id. ¶¶ 238–39.) In those hearings, which were
allegedly held in early December, Wilcox (1) found Plaintiff
guilty of unspecified charges contained in a misbehavior
report filed by Field, and imposed a punishment of 180
days in punitive segregation; and (2) found Plaintiff guilty
of unspecified charges contained in misbehavior reports
filed by Crawley, Rodriguez, Gorr, and Olsen, and imposed
a punishment of “an additional” 150 days in punitive
segregation. (Id. ¶¶ 240–42.) When Plaintiff learned of the
hearings, he appealed, but Bini did not respond. (Id. ¶¶ 244–
45.) Plaintiff alleges that the charges in these misbehavior
reports were fabrications. (Id. ¶¶ 247–53.)
As noted, “[w]here the plaintiff was confined for an
intermediate duration — between 101 and 305 days —
development of a detailed record of the conditions of
the confinement relative to ordinary prison conditions is
required.” Palmer, 364 F.3d at 64–65 (citation and quotation
marks omitted). Here, although it is not entirely clear, Plaintiff
plausibly alleges that he received three sentences in the
“intermediate” range. Accordingly, the Court declines to
dismiss Plaintiff's procedural due process claims based on his
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November 4, 2017 and December 2017 disciplinary hearings.
See Koehl v. Bernstein, No. 10-CV-3808, 2011 WL 2436817,
at *7 (S.D.N.Y. June 17, 2011) (concluding that allegations
of 120 days in restrictive housing required discovery
and development of record to determine “whether this
intermediate sentence constitute[d] an atypical and significant
hardship”), adopted by 2011 WL 4390007 (S.D.N.Y. Sept.
21, 2011); cf. Brooks v. DiFasi, No. 93-CV-197, 1997 WL
436750, at *4 (W.D.N.Y. July 30, 1997) (holding, on motion
for summary judgment and detailed factual record, that “the
plaintiff has failed to factually establish a genuine issue as to
whether the conditions of confinement he experienced during
the 180 days of keeplock confinement created significant and
atypical hardship in comparison to the ordinary incidents of
prison life”).
7. First Amendment Right of Access Claim
*23 Plaintiff alleges that he commenced this Action in
October 2017 by filing for a TRO and preliminary injunction,
but that he was unable to file a complaint because of
inadequacies with the Sullivan law library. (Am. Compl. ¶¶
45–47, 375, 402–09). To the extent Plaintiff alleges that this
denied him his First Amendment right to access to the courts,
Plaintiff must, among other things, allege “that the defendant's
actions resulted in actual injury to the plaintiff such as the
dismissal of an otherwise meritorious legal claim.” Cancel v.
Goord, No. 00-CV-2042, 2001 WL 303713, at *4 (S.D.N.Y.
Mar. 29, 2001) (emphasis added) (citing Lewis v. Casey, 518
U.S. 343, 351 (1996)). Actual injury includes “claims that
systemic official action frustrates a plaintiff ... in preparing
and filing suits at the present time,” and “claims not in aid of
a class of suits yet to be litigated, but of specific cases that
cannot now be tried (or tried with all material evidence), no
matter what official action may be in the future.” Christopher
v. Harbury, 536 U.S. 403, 413–14 (2002) (collecting cases).
“A hypothetical injury is not sufficient.” Amaker v. Haponik,
No. 98-CV-2663, 1999 WL 76798, at *3 (S.D.N.Y. Feb. 17,
1999). Here, Plaintiff cannot show actual injury, as he in
fact filed this Action. Therefore, this claim is dismissed. See
Moore v. Westchester County, No. 18-CV-7782, 2019 WL
3889859, at *3 (S.D.N.Y. Aug. 19, 2019) (dismissing access-
to-courts claim where the plaintiff was able to file the action
(collecting cases)).
8. First Amendment Retaliation Claim
a. Applicable Law
“Prisoners have a constitutional right to petition the
government, and it is a violation of § 1983 for prison
officials to retaliate against prisoners for the exercise of
that right.” Bartley v. Collins, No. 95-CV-10161, 2006 WL
1289256, at *4 (S.D.N.Y. May 10, 2006) (citing Gayle v.
Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)). To state a First
Amendment retaliation claim, a plaintiff must allege “(1) that
the speech or conduct at issue was protected, (2) that the
defendant took adverse action against the plaintiff, and (3)
that there was a causal connection between the protected
conduct and the adverse action.” Holland, 758 F.3d at 225
(citation, alteration, and quotation marks omitted); see also
Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348,
at *9 (S.D.N.Y. Mar. 30, 2015) (same). An adverse action
is any “retaliatory conduct that would deter a similarly
situated individual of ordinary firmness from exercising his
or her constitutional rights.” Davis v. Goord, 320 F.3d 346,
353 (2d Cir. 2003) (citation omitted). “[B]ecause 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,” the Second
Circuit has instructed district courts to “approach prisoner
retaliation claims with skepticism and particular care.” Dolan
v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (citation and
quotation marks omitted); see also Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by prisoners
are prone to abuse since prisoners can claim retaliation for
every decision they dislike.” (citation and quotation marks
omitted)). “In considering whether a causal connection exists,
a court may infer an improper or retaliatory motive in the
adverse action from: (1) the temporal proximity of the filing
to the grievance and the disciplinary action; (2) the inmate's
prior good disciplinary record; (3) vindication at a hearing on
the matter; and (4) statements by the defendant regarding his
motive for disciplining the plaintiff.” Thomas v. DeCastro,
No. 14-CV-6409, 2019 WL 1428365, at *9 (S.D.N.Y. Mar.
29, 2019) (citation and quotation marks omitted).
b. Application
Correction Officer Defendants note the standard to state a
retaliation claim but do not make any argument for dismissal
of Plaintiff's retaliation claim, nor do they meaningfully apply
the case law to the facts of this case. (CO Defs.' Mem. 31.)
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Supervisor Defendants argue that Plaintiff alleges no adverse
action, as cell searches do not implicate a constitutional right.
(Sup. Defs.' Mem. 18–19.)
*24 As an initial matter, there can be no dispute that Plaintiff
engaged in protected conduct (1) on October 13, 2017, when
he initiated this Action by filing an application for a TRO and
preliminary injunction; and (2) on October 31, 2017, when
he filed a grievance against Kleingardner. (Am. Compl. ¶¶
45, 224.) See Davis v. Collado, No. 16-CV-7139, 2018 WL
4757966, at *12 (S.D.N.Y. Sept. 30, 2018) (“The filing of
lawsuits or prison grievances is a constitutionally protected
activity.” (collecting cases)).
As to adverse action, Plaintiff alleges that, on October
30, 2017, Kleingardner retaliated against Plaintiff's filing
this Action by denying him a grievance form and serving
him with a false misbehavior report, after which Plaintiff
filed a grievance against him. (Am. Compl. ¶¶ 220–24,
227.) Plaintiff also alleges that, on November 4, 2017,
Wilcox retaliated against Plaintiff's filing this Action and
“[Wilcox's] being a subject name[d] as a defendant” by
denying Plaintiff the ability to prepare for and be heard
at a disciplinary hearing. (Id. ¶¶ 231–32.) Plaintiff further
alleges that, in December 2017, Wilcox, Field, Crawley,
Rodriguez, Gorr, and Olsen retaliated against him by holding
two disciplinary proceedings outside of Plaintiff's presence
that resulted in Plaintiff's being sentenced to 180 and 150
days in punitive segregation. (Id. ¶¶ 238–42.) And finally,
Plaintiff alleges that, in early January 2018, Gabriel, Lekovic,
and Kleingardner retaliated against him by verbally harassing
him, searching his cell, and assaulting him. (Id. ¶¶ 338–60,
411.)
The Court agrees with Supervisor Defendants “to the extent
that neither the United States Supreme Court nor the
Second Circuit has ever held that a cell search can be
the basis of a First Amendment retaliation claim.” Davis,
2018 WL 4757966, at *12 (citations and quotation marks
omitted). But Plaintiff alleges conduct separate from the
alleged cell search. The Court concludes that this conduct,
taken soon after Plaintiff initiated this Action and filed a
grievance against Kleingardner, plausibly constitute adverse
actions that are causally connected to Plaintiff's protected
activities. See Baskerville v. Blot, 224 F. Supp. 2d 723,
732 (S.D.N.Y. 2002) (holding that inmate's allegations of
a retaliatory assault and issuance of misbehavior report
constitute adverse action “that would deter a reasonable
inmate from exercising his constitutional rights” (citations
omitted)); see also Abreu v. Lipka, ––– F. App'x ––––,
2019 WL 3540490, at *3 (2d Cir. Aug. 5, 2019) (vacating
dismissal of retaliation claim because “a severe beating,
false misbehavior reports, or the withholding of medication
could constitute sufficiently adverse actions that would
deter a prisoner of ‘ordinary firmness’ from exercising his
rights” (citation omitted)). Accordingly, the Court declines to
dismiss Plaintiff's retaliation claim.
9. Conspiracy Claim
Supervisor and Correction Officer Defendants argue that
Plaintiff fails to state a claim of conspiracy because his
allegations are conclusory. (Sup. Defs.' Mem. 19; CO Defs.'
Mem. 26.) The Court agrees.
To state a claim for a conspiracy under § 1983, Plaintiff
must allege facts showing: “(1) an agreement between two
or more state actors ...; (2) to act in concert to inflict
an unconstitutional injury; and (3) an overt act done in
furtherance of that goal causing damages.” McGee v. Dunn,
No. 09-CV-6098, 2015 WL 9077386, at *5 (S.D.N.Y.
Dec. 16, 2015) (quoting Pangburn v. Culbertson, 200 F.3d
65, 72 (2d Cir. 1999)), aff'd, 672 F. App'x 115 (2d Cir.
2017). “A conspiracy claim fails, however, where allegations
are conclusory.” Cuellar v. Love, No. 11-CV-3632, 2014
WL 1486458, at *9 (S.D.N.Y. Apr. 11, 2014); see also
Walker v. Jastremski, 430 F.3d 560, 564 n.5 (2d Cir. 2005)
(“[C]onclusory or general allegations are insufficient to state
a claim for conspiracy under § 1983.”). Rather, “[a]llegations
of a conspiracy ... must be pleaded with specificity,” a
“heightened standard.” Scalpi v. Town of E. Fishkill, No.
14-CV-2126, 2016 WL 858925, at *5 (S.D.N.Y. Feb. 29,
2016); see also Brewster v. Nassau County, 349 F. Supp.
2d 540, 547 (E.D.N.Y. 2004) (“Claims alleging conspiracies
to violate civil rights are held to a heightened pleading
standard.” (citation omitted)).
*25 Here, Plaintiff repeatedly makes reference to a
conspiracy between various Defendants, (Am. Compl. ¶¶
65, 94, 159, 190, 201–02, 208, 366, 410–13), as well as
between certain Defendants and inmates, (see id. ¶ 111),
but these conclusory and boilerplate allegations do not
plausibly suggest that there existed an agreement to violate
Plaintiff's civil rights. See Webb v. Goord, 340 F.3d 105,
110 (2d Cir. 2003). A conspiracy claim requires “some
factual basis supporting a meeting of the minds.” K.D. ex
rel. Duncan v. White Plains Sch. Dist., 921 F. Supp. 2d 197,
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208 (S.D.N.Y. 2013) (citation and quotation marks omitted).
Yet, “[c]ritically absent from the [Amended] Complaint are
any specific facts identifying ‘willful collaboration’ ” among
Defendants “to deny Plaintiff's constitutional rights ... or
[an] ‘agreement’ between the[m] ... forming the conspiracy.”
Harrison v. New York, 95 F. Supp. 3d 293, 325 (E.D.N.Y.
2015) (citations omitted). Accordingly, the Court dismisses
Plaintiff's conspiracy claim. See Cox v. City of New Rochelle,
No. 17-CV-8193, 2019 WL 3778735, at *6 (S.D.N.Y. Aug.
12, 2019) (dismissing conspiracy claim where the plaintiff did
not allege specific facts plausibly suggesting an agreement
(collecting cases)).
III. Conclusion
For the foregoing reasons, Defendants' Motions To Dismiss
are granted in part and denied in part.
Plaintiff's request for injunctive relief is dismissed.
Defendants Loughren, Schiff, Ginty, Smith, Chaboty, and
Bini are dismissed, as are Plaintiff's claims against all
Defendants in their official capacities.
Plaintiff's Fourteenth Amendment medical deliberate
indifference claims are dismissed, with the exception of his
claim against Nurses Altman, Gandulla, and Moore based on
the failure to treat his drug and alcohol withdrawal symptoms,
which remains.
Plaintiff's Fourteenth Amendment conditions-of-confinement
claims are dismissed, except as to his claim relating to
conditions in Sullivan's modular housing, which remains.
Plaintiff's Fourteenth Amendment failure-to-protect claim
with respect to the July 2017 inmate altercation is dismissed.
Plaintiff's failure-to-protect claims with respect to the January
and February 2017 inmate altercations remain.
Plaintiff's excessive force claims based on the alleged July
2017 pepper spray incident and January 2018 assault remain.
Plaintiff's Fourteenth Amendment due process claims based
on his third, fourth, and fifth disciplinary hearings are
dismissed, as are his due process claims based on Sullivan's
inmate grievance procedure. Plaintiff's due process claims
based on his first, second, sixth, seventh, and eighth
disciplinary hearings remain.
Plaintiff's First Amendment access-to-courts claim is
dismissed.
Plaintiff's First Amendment retaliation claim remains.
Plaintiff's conspiracy claim is dismissed.
The defendants and claims that are dismissed are dismissed
without prejudice. If Plaintiff wishes to file a second amended
complaint, Plaintiff must do so within 45 days of the date
of this Opinion. Plaintiff should include within that second
amended complaint all changes to correct the deficiencies
identified in this Opinion that Plaintiff wishes the Court to
consider. Plaintiff is advised that the amended complaint will
replace, not supplement, the instant Amended Complaint. The
second amended complaint must contain all of the claims,
defendants, factual allegations, and exhibits that Plaintiff
wishes the Court to consider. Further, the Court emphasizes
that Plaintiff should avoid using legal terms and phrases;
rather, Plaintiff should state, in simple terms, what happened,
when and where it happened, and who was involved. Plaintiff
should also avoid repetition and should seek to organize his
second amended complaint in an orderly fashion.
If Plaintiff fails to abide by the 45-day deadline, the claims
may be dismissed with prejudice, and the case will proceed
on his remaining claims.
The Clerk of Court is respectfully requested to terminate the
pending Motions. (Dkt. Nos. 156, 160, 163, 168, 173.)
*26 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4688542
Footnotes
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1 This Action originated with multiple plaintiffs in addition to Johnson, all of whom were dismissed for failure to
pay the filing fee or submit an IFP application. (See Order of Partial Dismissal 1 (Dkt. No. 15).) The Court also
dismissed another putative plaintiff who had filed a separate Action of his own raising similar claims. (Id. at 2.)
The Sullivan Defendants, who are sued both in their individual and official capacities, are in four groups,
organized by counsel:
(1) Supervisor Defendants. Sullivan Sheriff Michael A. Schiff (“Schiff”); Undersheriff Eric J. Chaboty
(“Chaboty”); Administrator Harold L. Smith Jr. (“Smith”); Cpt. James E. Ginty (“Ginty”); and Lt.
Christopher R. Bini (“Bini”).
(2) Correction Officer Defendants. Correction Officer (“CO”) J. Besson (“Besson”); CO Cole (“Cole”);
CO Field (“Field”); CO Kleingardner (“Kleingardner”); CO D. Lekovic (“Lekovic”); CO Lewis (“Lewis”);
CO S. Nash (“Nash”); CO Shaw (“Shaw”); Cpl. Calangelo (“Calangelo”); Cpl. Thomas E. Compasso
(“Compasso”); Cpl. Dawson (“Dawson”); Cpl. Gabriel (“Gabriel”); Cpl. Gray (“Gray”); Cpl. Matis
(“Matis”); Cpl. Whalan (“Whalan”); Cpl. Wilcox (“Wilcox”); Sgt. Harrell (“Harrell”); Sgt. Lynch (“Lynch”);
Sgt. G. Minckler (“Minckler”); Sgt. Moyer (“Moyer”); Sgt. Zayas (“Zayas”); Kitchen Manager Dale Fraser
(“Fraser”); and D.P.W. Joe (“Joe”).
(3) Medical Defendants. Registered Nurse (“RN”) W. Altman (“Nurse Altman”); RN Davis Crawley (“Nurse
Crawley”); RN Jamie Gandulla (“Nurse Gandulla”); RN W. Moore (“Nurse Moore”); Licensed Practical
Nurse (“LPN”) Sauer (“Nurse Sauer”); and Dr. Good.
(4) LPN Heather Guinan-Clark (“Nurse Guinan-Clark”).
2 Where the Amended Complaint uses inconsistent paragraph numbering, the Court cites to the relevant page.
3 Accordingly, the Court need not reach Loughren's argument that he is entitled to qualified immunity. (See
Loughren Mem. 19.)
4 Plaintiff does not appear to allege that Dr. Good, Nurse Sauer, or Nurse Crawley were involved at this stage.
5 In his opposition, Plaintiff alleges for the first time that Nurse Guinan-Clark failed to treat his hepatitis C, and
that he “got glaucoma as a consequence” of his high blood pressure in June 2018. (Pl.'s Med. Mem. 5, 10,
12, 14.) The Court will not consider these newly raised and conclusory claims at this time.
6 To the extent plaintiff asserts an excessive force claim based on rough handcuffing, that allegation fails, as
Plaintiff fails to allege any injury caused by the handcuffing. See Lynch ex rel. Lynch v. City of Mount Vernon,
567 F. Supp. 2d 459, 468–69 (S.D.N.Y. 2008) (“[T]ight handcuffing does not constitute excessive force unless
it causes some injury beyond temporary discomfort.” (collecting cases)).
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Keyes v. Venettozzi, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 991402
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Yolanda KEYES, Administratrix of the
Estate of Francisco DeJesus; Herron
Emerenciano; and Rashad Scott, Plaintiffs,
v.
Donald VENETTOZZI, Director Special Housing and
Inmate Discipline; Michael Dixon, Sergeant; Jeffery
Rock, Lieutenant; Earl Bell, Deputy Superintendent of
Security; Jerry Kowalowski, Recreation Program Leader;
and Richard Houck, Transfer Coordinator, Defendants.
9:18-CV-0372 (GTS/DJS)
|
Signed 03/31/2022
Attorneys and Law Firms
HALLIE E. MITNICK, ESQ., MEGAN WELCH, ESQ.,
PRISONERS’ LEGAL SERVICES OF NY, Counsel for
Plaintiffs, 114 Prospect Street, Ithaca, NY 14850.
HON. LETITIA A. JAMES, Attorney General for the State
of New York, ERIK B. PINSONNAULT, ESQ., Assistant
Attorney General, Counsel for Defendants, The Capitol,
Albany, NY 12224.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this prisoner civil rights
action filed by Yolanda Keyes (as administratrix of the estate
of Francisco DeJesus), 1 Herron Emerenciano, and Rashad
Scott (“Plaintiffs”) against Special Housing and Inmate
Discipline Director Donald Venettozzi, Sergeant Michael
Dixon, Deputy Superintendent of Security Earl Bell, Sergeant
Jeffery Rock, Recreation Program Leader Jerry Kowalowski,
and Transfer Coordinator Richard Houck (“Defendants”), is
Defendants’ motion for summary judgment. (Dkt. No. 69.)
For the reasons set forth below, Defendants’ motion is granted
in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiffs’ Amended Complaint
Generally, Plaintiffs’ Amended Complaint alleges that
Defendants violated their due process rights and took various
adverse actions against them at Clinton Correctional Facility
(“Clinton”) in 2015 and 2016 as a result of Plaintiffs’ election
(by fellow prisoners) to Clinton's Inmate Liaison Committee
(“ILC”) following the well-publicized escape of two inmates
(Richard Matt and David Sweat) from Clinton's Honor
Block. (Dkt. No. 17 [Pls.’ Am. Compl.].) Five claims in the
Amended Complaint survived the Court's Decision and Order
of September 23, 2019: (1) a First Amendment retaliation
claim by Plaintiff DeJesus against Defendants Dixon and
Rock; (2) a First Amendment retaliation claim by Plaintiff
Emerenciano against Defendants Kowalowski and Bell; (3) a
First Amendment retaliation claim by Plaintiff Scott against
Defendant Houck; (4) a Fourteenth Amendment due process
claim by Plaintiff Emerenciano against Defendants Bell and
Venettozzi; and (6) a supervisory liability claim by Plaintiffs
against Defendant Venettozzi. (Dkt. No. 40, at 50.)
B. Undisputed Material Facts on Defendants’ Motion
for Summary Judgment
Before reciting the undisputed material facts on Defendants’
motion, the Court observes that, in addition to their Rule 7.1
Response, Plaintiffs have submitted what they characterize as
a “Statement of Additional Facts” that “are either undisputed
or at least supported by sufficient record evidence that the
jury could accept them....” (Dkt. No. 73, Attach. 1, at 9-22.)
Of course, no Statement of Undisputed Additional Facts is
permitted under the District's Local Rules of Practice. See
N.D.N.Y. L.R. 56.1(b) (“In addition, the opposing party's
Response may set forth any assertions that the opposing party
contends are in dispute in a short and concise Statement of
Additional Material Facts in dispute ....”) (emphasis added).
Furthermore, many of Plaintiffs’ additional factual assertions
are immaterial to the resolution of the issues presented
by Defendants’ motion. Id. (permitting a “Statement of
Additional Material Facts in Dispute....”) (emphasis added).
However, to the extent Plaintiffs actually assert additional
material facts not in dispute, the Court will take them
into consideration in its below recitation of the undisputed
material facts.
*2 The following facts were asserted and supported with
accurate record citations by Defendants in their Statement of
Material Facts and either expressly admitted by Plaintiffs or
denied by them without appropriate record citations in their
response thereto. (Compare Dkt. No. 69, Attach. 1 [Defs.’
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Rule 7.1 Statement] with Dkt. No. 73, Attach. 1 [Pls.’ Rule
7.1 Resp.].)
Defendant Dixon's Misbehavior
Report Against Plaintiff DeJesus
1. At some point before January 27, 2016, Defendant Dixon
received from the staff at Clinton both a copy of both a
letter authored and sent by Plaintiff DeJesus to the State
Commission on Corrections (“SCOC”) and a direction to
investigate the letter (at least in part) for a possible violation
of disciplinary rules by Plaintiff DeJesus. 2
2. During his investigation into the matter, Defendant Dixon
interviewed Plaintiff DeJesus.
3. During this interview, Plaintiff DeJesus reiterated the same
assertions that he had included in his letter to the SCOC.
4. Based upon the letter that Plaintiff DeJesus had sent to
the SCOC, his remarks made to Defendant Dixon during
his interview, and Defendant Dixon's consultation with
Defendant Rock, Defendant Dixon issued a misbehavior
report against Plaintiff DeJesus dated January 27, 2016,
charging him with violations of Disciplinary Rules 102.10
and 107.11.
5. On February 1, 2016, Defendant Rock began to conduct
Plaintiff DeJesus’ Tier III disciplinary hearing. Defendant
Rock was the only Defendant who conducted Plaintiff
DeJesus’ Tier III disciplinary hearing.
6. Defendant Rock completed this hearing on February 12,
2016, finding Plaintiff guilty of both charges.
7. On June 3, 2016, Defendant Venettozzi reversed the
decision that had been issued by Defendant Rock after the
completion of the Tier III hearing on February 12, 2016. 3
8. Defendant Venettozzi electronically signed the document
memorializing the reversal of Defendant Rock's decision.
Defendant Kowalowski's Misbehavior
Report Against Plaintiff Emerenciano
9. Defendant Kowalowski is currently employed by the
New York State Department of Corrections and Community
Supervision (“DOCCS”) as a Recreation Program Leader
Two (“RPL Two”).
10. Excluding a brief stint between early 2016 through July
2016, when he served as a Recreation Program Leader Three
(“RPL Three”) at Upstate Correctional Facility (“Upstate”),
Defendant Kowalowski has held the position of RPL Two at
Clinton since approximately 2004 or 2005.
11. During one of the ILC's meetings at Clinton in or
around October 2015, some ILC members had expressed their
disagreement with a policy that requires inmates to lay on the
ground when an altercation occurs in the prison yard. 4
*3 12. During the ILC meeting, Plaintiff Emerenciano
expressed concerns about problems the policy could lead to
at the prison. 5
13. After this ILC meeting, the administration instructed
Defendant Kowalowski to issue a misbehavior report against
Plaintiff Emerenciano for making threats. 6 Defendant
Kowalowski issued a misbehavior report against Plaintiff
Emerenciano dated October 2, 2015, charging him with
violating Disciplinary Rules 102.10 and 104.12.
14. On October 8, 2015, Defendant Bell conducted Plaintiff
Emerenciano's Tier III disciplinary hearing at Upstate.
15. At Plaintiff Emerenciano's Tier III disciplinary hearing,
Defendant Bell served as the hearing officer.
16. Defendant Bell found Plaintiff Emerenciano guilty of the
charges set forth in the misbehavior report that Defendant
Kowalowski had issued.
17. On November 30, 2015, the Acting Director of the
Special Housing and Inmate Disciplinary Program, Corey
Bedard, reviewed and modified Plaintiff Emerenciano's
Special Housing Unit (“SHU”) confinement time from 270
days to 180 days, with 90 of those days being suspended. On
April 16, 2016, Defendant Venettozzi reversed the outcome of
the Tier III disciplinary hearing that had occurred on October
8, 2015.
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Defendant Houck's Transfer of Plaintiff Scott
18. Defendant Houck is employed by DOCCS as a
classification analyst in its Office of Classification and
Movement (“OCM”).
19. Defendant Houck works at the DOCCS’ offices located in
Albany, New York, and not at Clinton.
20. In his role as a classification analyst, Defendant Houck
oversees inmate transfers between DOCCS correctional
facilities. Defendant Houck receives reviews from individual
correctional facilities, processes those reviews and decides
these transfers. Specifically, Defendant Houck receives
reviews when a correctional facility sends an electronic copy
of a transfer referral through one of two possible methods.
First, some of the inmate “transfer referrals are scheduled at
the facility, possibly due to a change in security, or due to
an inmate's preference.” Second, some of the inmate transfer
referrals are “unscheduled transfer reviews from facilities for
other reasons, including medical or mental health reasons.”
However, before Defendant Houck receives a transfer referral
from a DOCCS facility, three DOCCS employees—the
Offender Rehabilitation Coordinator (“ORC”), Supervising
Offender Rehabilitation Coordinator (“SORC”), and the
Deputy Superintendent of Programs working at that facility
—ordinarily must approve the transfer referral. Furthermore,
ordinarily, Defendant Houck receives several hundred
transfer referrals each month.
*4 21. On October 7, 2015, Plaintiff Scott underwent what
is known as a “preference lateral transfer” review at Clinton.
22. Plaintiff Scott had indicated a preference to be transferred
to the Sullivan hub.
23. On or about October 27, 2015, Plaintiff Scott was
transferred from Clinton to Green Haven Correctional
Facility (“Green Haven”).
I. RELEVANT LEGAL STANDARDS
A. Standard Governing Motions for Summary
Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 7 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law.... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists,
the Court must resolve all ambiguities and draw all reasonable
inferences against the movant. Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the ... [record] which it believes
demonstrate[s] the absence of any genuine issue of material
fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986).
However, when the movant has met its initial burden, the
non-movant must come forward with specific facts showing
a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a),
(c), (e).
B. Standard Governing Claims Under 42 U.S.C. §
1983
Section 1983 of the Civil Rights Act of 1871 provides a civil
claim for damages against any person who, acting under color
of state law, deprives another person of a right, privilege
or immunity secured by the Constitution or the laws of the
United States. 42 U.S.C. § 1983; Thomas v. Roach, 165 F.3d
137, 142 (2d Cir. 1999). Section 1983 does not create any
substantive right in and of itself, but rather serves as the
statutory vehicle by which individuals can seek redress in
federal court for alleged violations of federal statutory or
constitutional rights. It is well established that state prisoners
are protected by Section 1983 and may bring claims based
on their deprivation of rights while subject to confinement.
Cooper v. Pate, 378 U.S. 546, 546 (1964). In a case where
a prisoner is suing prison officials based on their deprivation
of rights, Section 1983 serves a dual purpose: first, to deter
prison officials, acting as state actors, from using their
authority to deprive prisoners of their constitutional rights,
and second, to provide relief to prisoners when necessary.
Wyatt v. Cole, 504 U.S. 158, 161 (1992).
1. Standard Governing Retaliation
Claims Under the First Amendment
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*5 To establish a First Amendment retaliation claim under
Section 1983, a prisoner must show the following: “(1) ...
the speech or conduct at issue was protected, (2) ... the
defendant took adverse action against the plaintiff, and
(3) ... there was a causal connection between the protected
speech and the adverse action.” Espinal v. Goord, 558
F.3d 119, 128 (2d Cir. 2009) (internal quotation marks
and citations omitted). “[I]n the prison context ... adverse
action” is “defined ... objectively[ ] as retaliatory conduct
that would deter a similarly situated individual of ordinary
fitness from exercising ... [his or her] constitutional rights.”
Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)
(internal quotation marks and citation omitted). Notably, “this
objective test applies even where a particular plaintiff was
not himself subjectively deterred; that is, where he continued
to file grievances and lawsuits.” Gill, 389 F.3d at 381. With
respect to the existence of a causal connection between
the plaintiff's alleged protected conduct and the defendant's
alleged adverse action, although “ ‘[a] plaintiff can establish
a causal connection that suggests retaliation by showing
that protected activity was in close in time to the adverse
action[,]’ [s]uch circumstantial evidence of retaliation, ...
without more, is insufficient to survive summary judgment.”
Roseboro v. Gillespie, 791 F. Supp.2d 353, 370 (S.D.N.Y.
2011) (quoting Espinal, 558 F.3d at 129).
However, “[e]ven if [a] plaintiff makes the appropriate
showing of retaliation, defendants may avoid liability if they
demonstrate that they would have taken the adverse action
even in the absence of the protected conduct.” Brooks v. Rock,
11-CV-1171, 2014 WL 1292232, at *18 (N.D.N.Y. Mar. 28,
2014) (Sharpe, C.J.); Scott v. Coughlin, 344 F.3d 282, 287-88
(2d Cir. 2003) (“Regardless of the presence of retaliatory
motive, ... a defendant may be entitled to summary judgment
if he can show dual motivation, i.e., that even without the
improper motivation the alleged retaliatory action would have
occurred.”) (italics omitted).
“[P]risoner retaliation claims are easily fabricated, and ...
pose a substantial risk of unwarranted judicial intrusion
into matters of general prison administration.” Bennet v.
Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal quotation
marks and citations omitted). As a result, the Second
Circuit requires courts to “examine prisoners’ claims of
retaliation with skepticism and particular care.” Colon, 58
F.3d at 872. Therefore, “a plaintiff asserting such a claim
bears a heightened burden of proof and must plead the
claim with particularity.” Green v. Phillips, 04-CV-10202,
2006 WL 846272, at *3 (S.D.N.Y. Mar. 31, 2006) (citing
Brown v. Middaugh, 41. F. Supp.2d 172, 191 [N.D.N.Y.
1999]). Furthermore, a plaintiff must provide non-conclusory
allegations in support of his or her retaliation claim.
Green, 2006 WL 846272, at *3; see Williams v. Goord,
111 F. Supp.2d 280, 290 (S.D.N.Y. 2000) (“In recognition
of the reality that retaliation claims can be fabricated
easily, plaintiffs bear a somewhat heightened burden of
proof, and summary judgment can be granted if the claims
appear insubstantial.”) (internal quotation marks and citation
omitted).
Finally, allegations set forth in support of retaliation claims
“may still be deemed conclusory if [they are] (1) largely
unsubstantiated by any other direct evidence and (2) so replete
with inconsistencies and improbabilities that no reasonable
juror would undertake the suspension of disbelief necessary to
credit the allegations made in the complaint.” Smith v. Woods,
03-CV-0480, 2006 WL 1133247, at *3 (N.D.N.Y. Apr. 24,
2006).
2. Standard Governing Procedural Due Process
Claims Under the Fourteenth Amendment
The Fourteenth Amendment's Due Process Clause protects
an individual's procedural and substantive rights. Page v.
Cuomo, 478 F. Supp.3d 355, 370 (N.D.N.Y. 2020). With
regard to an individual's procedural due process rights, a
prisoner “has the right not to be deprived of a protected liberty
interest without due process of law.” Freeman v. Rideout,
808 F.2d 949, 951 (2d Cir. 1986). Therefore, to establish
a procedural due process claim, a plaintiff must show two
elements: “(1) that he possessed a liberty interest and (2) that
the defendants deprived him of that interest as a result of
insufficient process.” Giano v. Selsky, 238 F. Supp.3d 223,
225 (2d Cir. 2001).
*6 With regard to the first element, generally, “[p]rison
discipline implicates a liberty interest when it imposes
atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Burroughs, 325 F.
Supp.3d at 275. To constitute an “atypical and significant
hardship,” the conditions imposed upon the inmate must be
compared with those imposed upon the rest of the population
of the facility as well as those in administrative and protective
confinement.” Id. at 276. The Court should consider both the
duration and the conditions of confinement when assessing
the severity of the hardship. Id. Generally, confinements in
SHU for a period up to 101 days under normal conditions will
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not constitute an atypical hardship, while confinement for a
period of more than 305 days has been considered atypical
even under normal conditions. Id. The Second Circuit has
indicated that “the ultimate issue of atypicality is one of law.”
Sealey v. Giltner, 187 F.3d 578, 585 (2d Cir. 1999).
With regard to the second element, generally, the amount
of process given to a plaintiff depends on three factors:
(1) “the private interest that will be affected by the official
action;” (2) “the risk of erroneous deprivation of such interest
through the procedures used;” and (3) “the [g]overnment's
interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute
procedural requirement would entail.” Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
3. Standard Governing Supervisory Liability Claims
Under the First and Fourteenth Amendments
“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d
880, 885 [2d Cir. 1991]); see also McKinnon v. Patterson,
568 F.2d 930, 934 (2d Cir. 1977) (reiterating that, in order
to award damages under Section 1983, defendants must be
personally involved in the plaintiff's alleged constitutional
deprivation). Pursuant to this requirement, “a Section 1983
plaintiff must ‘allege a tangible connection between the
acts of the defendant and the injuries suffered.’ ” Austin v.
Pappas, 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y.
Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263
[2d Cir. 1986]) (other citation omitted). More simply stated,
a complaint needs to allege who did what, and how that
behavior is actionable under the law. Hendrickson v. U.S.
Attorney Gen., 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y.
Jan. 24, 1994). As for who did what, the Second Circuit
has defined “personal involvement” to include both direct
participation (i.e., the personal participation by a person who
has knowledge of the facts that make their conduct illegal) and
indirect participation (i.e., the ordering or helping of others to
conduct themselves in an unlawful manner). Provost v. City
of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001).
With respect to how to establish the personal involvement
of supervisory officials, “a plaintiff asserting a Section 1983
claim against a supervisory official in his individual capacity
must allege that the supervisor was personally involved in
the alleged constitutional deprivation.” Johnson v. Newburgh
Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). This
means that “a defendant in a Section 1983 action may not be
held liable for damages for constitutional violations merely
because [he or she] held a high position of authority.” Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Grullon
v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(affirming a district court's dismissal of claims against a
prison officer where the inmate-plaintiff failed to allege the
officer's personal involvement in, or awareness of, the health
and safety concerns raised by the plaintiff).
Until 2009, when the Supreme Court decided Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (“Iqbal”), the Second Circuit's
general rule was that a supervisory official's personal
involvement could have been proven by showing any five
factors:
*7 (1) the defendant participated
directly in the alleged constitutional
violation, (2) the defendant, after being
informed of the violation through a
report or appeal, failed to remedy
the wrong, (3) the defendant created
a policy or custom under which
unconstitutional practices occurred, or
allowed the continuance of such a
policy or custom, (4) the defendant
was grossly negligent in supervising
subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference to
the rights of inmates by failing to
act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“Colon”).
However, Iqbal cast some doubt on the supervisory liability
test set forth in Colon. See Reynolds v. Barrett, 685 F.3d 193,
205 (2d Cir. 2012) (stating that the decision in Iqbal caused
conflict with the Second Circuit about the continued vitality
of the supervisory liability test, but declining to rule on the
issue because it did not apply to the facts of the case). 8 It was
unclear in the Second Circuit, up until recently, how the Iqbal
decision would affect the Colon test. 9
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In December 2020, the Second Circuit held that “there is no
special rule for supervisory liability” and, that a “plaintiff
must plead and prove ‘that each [g]overnment-official
defendant, through the official's own individual actions, had
violated the Constitution.’ ” Tangreti v. Bachmann, 983 F.3d
609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676)
(“Tangreti”). “ ‘The factors necessary to establish a [Section
1983] violation will vary with the constitutional provision
at issue’ because the elements of different constitutional
violations vary.” Tangreti, 983 F.3d at 618 (quoting Iqbal,
556 U.S. at 676). Therefore, any constitutional violation
brought under Section 1983 must be established against the
supervisory official directly. Tangreti, 983 F.3d at 618.
Since Tangreti was decided in December 2020, courts in
this Circuit have interpreted it in the same way: that the
new standard in Tangreti has abrogated and completely
replaced the factors set forth in Colon. See, e.g., Zielinski v.
Annucci, 17-CV-1042, 2021 WL 2744684, at *8 (N.D.N.Y.
July 2, 2021) (explaining that the Second Circuit's holding in
Tangreti abrogated the factors from Colon and catalogued the
confusion over to what extent the Supreme Court's decision in
Iqbal effected those factors); Delaney v. Perez, 19-CV-6084,
2021 WL 3038642, at *3 (S.D.N.Y. July 16, 2021) (stating
that the standards for supervisory liability set out in Colon
may not be used, as they have been replaced with the new
standard set forth in Tangreti: that each government-official,
through the official's own individual actions, must have
violated the Constitution); Smith v. Westchester Cnty., 19-
CV-3605, 2021 WL 2856515, at *6 (S.D.N.Y. July 7, 2021)
(explaining that in the context of a Fourteenth Amendment
claim, the standards for supervisory liability from Colon may
not be used, and instead, a plaintiff must demonstrate, through
factual allegations, that each individual defendant meets all
the elements required by the specific claim raised by the
plaintiff); Savarese v. City of New York, 18-CV-5956, 2021
WL 2784501, at *28 (S.D.N.Y. July 2, 2021) (stating that
Tangreti repudiated Colon and established a new standard);
Hill v. Cook, 21-CV-0851, 2021 WL 2661676, at *3 (D.
Conn. June 29, 2021) (explaining that the Second Circuit
adopted the holding from Iqbal in their decision in Tangreti,
so ultimately, the new standard is that each defendant must
be personally aware of or disregard the alleged constitutional
violation being raised by the plaintiff).
*8 “[I]n order to establish a defendant's individual liability
in a suit brought under § 1983, a plaintiff must show,
inter alia, the defendant's personal involvement in the
alleged constitutional deprivation.” Rasheen v. Adner, 356 F.
Supp.3d 222, 235 (N.D.N.Y. 2019). Where the defendants are
supervisory officials, “a mere linkage to the unlawful conduct
through the prison chain of command (i.e., under the doctrine
of respondeat superior) is insufficient to show his or her
personal involvement in that unlawful conduct.” Id. (citing
Polk Cnty. v. Dodson, 454 U.S. 312, 325 [1981]; Richardson
v. Goord, 347 F.3d 431, 435 [2d Cir. 2003].)
II. ANALYSIS
A. Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ First Amendment Retaliation
Claims Against Them
1. Plaintiff DeJesus’ First Amendment
Retaliation Claim Against Defendant Dixon
It is well settled that an inmate's filing of grievances
while participating on an ILC and writing of complaints
to the SCOC constitute constitutionally protected activity.
See Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015)
(holding that “filing or voicing grievances on behalf of
a prison population as a member of an inmate grievance
body, such as the ILC,” constitutes constitutionally protected
conduct); Vega v. Artus, F. Supp.2d 185, 206 (N.D.N.Y.
2009) (Suddaby, J.) (recognizing that filing grievances is a
constitutionally protected activity); Wheeler v. Goord, 03-
CV-0787, 2005 WL 2180451, at *9 (N.D.N.Y. Aug. 29, 2005)
(Peebles, M.J.) (“[P]laintiff's alleged filing of grievances and
writing of letters to prison authorities ... constituted protected
activity within the ambit of First Amendment retaliation
jurisprudence.”).
Moreover, the receipt of a false misbehavior report resulting
in punishment and/or the receipt of a transfer to a different
facility have been found to constitute adverse actions. See
Cabbagestalk v. Hudson, 15-CV-0167, 2016 WL 5404233, at
*4 (N.D.N.Y. Aug. 29, 2016) (Hummel, M.J.) (“[A]n inmate's
transfer to a different facility does constitute an adverse
action if done in retaliation for the inmate's exercise of his
or her rights under the First Amendment.”) (citing Smith v.
Levine, 510 F. App'x 17, 21 [2d Cir. 2013]), adopted by
2016 WL 5394734 (N.D.N.Y. Sept. 27, 2016) (Sharpe, J.);
Reed v. Doe No. 1, 11-CV-0250, 2012 WL 4486086, at *5
(N.D.N.Y. July 26, 2012) (Peebles, M.J.) (finding that the
“filing of a false misbehavior report can qualify as an adverse
action for the purposes of a First Amendment retaliation”
where the report resulted in a fourteen-day term in keeplock
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confinement), adopted by 2012 WL 4486085 (N.D.N.Y. Sept.
27, 2012) (McAvoy, J.); Tafari v. McCarthy, 714 F. Supp.2d
317, 373 (N.D.N.Y. 2010) (Lowe, M.J., Hurd, J.) (finding
that a misbehavior report that resulted in SHU confinement
constituted an adverse action).
As a result, the issue before the Court is whether the
causation element of a retaliation claim has been established.
Defendants argue that Plaintiff DeJesus has failed to provide
evidence that Defendant Dixon issued a misbehavior report
against DeJesus for retaliatory purposes. (Dkt. No. 69, Attach.
2, at 6-9 [Defs.’ Mem. of Law].) 10 According to Defendant
Dixon, he neither attended any ILC meetings nor served on
the IGRC at the relevant time period (i.e., 2015 through 2016),
during which Plaintiff DeJesus made complaints of assault
and harassment by DOCCS staff. (Id. at 7-8.)
*9 More specifically, Defendant Dixon argues that he
received a copy of the letter-complaint that Plaintiff DeJesus
had sent to the SCOC, and was directed to investigate
whether Plaintiff DeJesus had violated any prison disciplinary
rules. (Dkt. No. 69, Attach. 6, at 2 [Dixon Decl.].) As part
of his investigation, Defendant Dixon interviewed Plaintiff
DeJesus, and Plaintiff DeJesus repeated the same assertions
that he had made in his letter to the SCOC. (Id.) At the
conclusion of his investigation, Defendant Dixon believed
that Plaintiff DeJesus “constituted a threat ... to the safety and
operation of the facility.” (Id.) Specifically, Defendant Dixon
believed that the letter written to SCOC had indicated that
Plaintiff DeJesus “would take action against any [DOCCS]
staff member who attempted to discipline [him] for future
misconduct.” (Id.) Before issuing the misbehavior report to
Plaintiff DeJesus, Defendant Dixon consulted with both a
member of the IGRC and Clinton's “tier hearing lieutenant”
to determine if Defendant Dixon was correctly perceiving a
threat from Plaintiff DeJesus. (Id. at 2-3.) 11 Both individuals
informed Defendant Dixon that Plaintiff DeJesus’ actions
warranted the issuance of a misbehavior report. (Id.)
Not surprisingly, Plaintiff DeJesus disputes Defendant
Dixon's version of events. Plaintiff DeJesus argues that
Defendant Dixon issued him a misbehavior report “expressly
upon the nature and content of his complaint letter [sent]
to the SCOC,” and his statement that he would pursue
legal action if his protected conduct resulted in unlawful
retaliation. (Dkt. No. 73, at 19-20 [Pls.’ Opp'n Mem. of Law].)
More specifically, Plaintiffs argue that it is undisputed that
Defendant Dixon issued a misbehavior report to Plaintiff
DeJesus for “filing grievances and writing complaints to the
SCOC and imposing disciplinary sanctions and placing him
in [k]eeplock confinement as retaliation for [filing] those
grievances, all of which resulted in his summary removal
from the ILC and loss of an opportunity to appear early
before the merit parole board for release consideration.” (Id.
at 18-24.)
According to Defendant Dixon's inmate misbehavior report
against Plaintiff DeJesus dated January 27, 2016, Plaintiff
DeJesus was interviewed in the IGRC office about the letter
complaint he had sent to the SCOC regarding DOCCS
officers Benware and Favreau. (Dkt. No. 69, Attach. 18.)
Furthermore, according to the misbehavior report, Plaintiff
DeJesus had written that “any attempt to discipline him will
result in a ‘[c]ivil [a]ction’ against [DOCCS officers Benware
and Favreau].” (Id.) As a result, according to the misbehavior
report, Defendant Dixon charged Plaintiff DeJesus with
making threats and engaging in verbal harassment, and
ordered that he “keeplocked,” because Defendant Dixon had
found that Plaintiff DeJesus’ statements constituted a “clear
threat to the operation of 40-1 building where he is housed
as well as the safety of [DOCCS] [o]fficers Benware and
Favreau.” (Id.)
Generally, no violation of Rules 102.10 and 107.11 occurs
when a prisoner tells a corrections officer that the prisoner will
file a lawsuit against the corrections officer, unless the lawsuit
is patently frivolous. Compare Davidson v. Lee, 104 F.3d 352,
at *1 (2d Cir. 1996) (denying defendants’ motion for summary
judgment where “Wood's [misbehavior] report arguably
supports Davidson's allegation as it refers to Davidson's threat
of litigation—‘I'm going to sue you and your family’—
therefore indicating that Davidson's propensity for filing
lawsuits may have been a factor the defendants considered in
filing the reports.”) and Amaker v. Goord, 06-CV-0490, 2012
WL 4718661, at *7 (W.D.N.Y. Aug. 16, 2012) (“[T]he hearing
officer found ‘[i]ndicating you intend to sue is not a violation
of 102.10’ ....”) with Henry v. Dinelle, 10-CV-0456, 2011 WL
5975027, at *7, n.11 (N.D.N.Y. Nov. 29, 2011) (“[F]iling a
court action that is frivolous is not constitutionally protected
activity.”).
Here, based on the current record, the Court is unable to find
that the lawsuit referenced by Plaintiff DeJesus was patently
frivolous. The Court respectfully disagrees with Defendant
Rock's understanding that Plaintiff DeJesus was saying that
he would sue even if he were charged with a disciplinary
violation “for good cause.” (Dkt. No. 69, Attach. 14, at 81.)
To the contrary, Plaintiff DeJesus expressly conditioned the
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filing of a lawsuit on “any fabrication of contraband; drugs;
weapons, etc.” (Dkt. No. 69, Attach. 19, at 8 [emphasis
added].)
*10 Under the circumstances, the Court finds that a jury
could reasonably find that there was a causal connection
between Plaintiff DeJesus’ protected speech (i.e., his
statement that he would pursue future legal action against
officers Benware and Favreau if they continued to discipline
him) and the adverse action taken by Defendant Dixon (i.e.,
his filing of the misbehavior report against Plaintiff DeJesus
that resulted in his keeplock confinement).
For all these reasons, the Court denies Defendants’ motion for
summary judgment on Plaintiff DeJesus’ First Amendment
retaliation claim against Defendant Dixon.
2. Plaintiff DeJesus’ First Amendment
Retaliation Claim Against Defendant Rock
Defendants argue that Plaintiff DeJesus has failed to provide
evidence that Defendant Rock took any adverse action
against DeJesus and that, if he did so, the adverse action
was caused by DeJesus’ protected speech. (Dkt. No. 69,
Attach. 2, at 9-10 [Defs.’ Mem. of Law].) More specifically,
Defendants argue that no evidence exists that Defendant Rock
conspired with any other Defendants, or served as a biased
hearing officer at Plaintiff DeJesus’ Tier III disciplinary
hearing. (Id.) Defendants also argue that the admissible
record evidence indicates that Defendant Rock was not
involved in the investigation into Plaintiff DeJesus’ alleged
misbehavior before being appointed hearing officer. (Id.)
Finally, Defendants argue that Defendant Rock was unaware
of Plaintiff DeJesus’ discipline history, because he was never
mentioned in any of Plaintiff DeJesus’ prior grievances made
against officers Benware and Favreau, he never served in an
active capacity at the ILC meetings, and no other Plaintiffs
testified to interacting with (or even meeting) Rock. (Id.)
Plaintiffs respond that Defendant Rock acted with a
retaliatory motivation when he improperly punished Plaintiff
DeJesus for engaging in protected conduct. (Dkt. No. 73, at
24 [Pls.’ Opp'n Mem. of Law].) More specifically, Plaintiffs
argue that “[i]t is clear from the content of the misbehavior
report, which Defendant Rock upheld and condoned, that ‘but
for’ Mr. DeJesus’ protected activities the misbehavior report
would not have been issued [sic].” (Id.)
Defendant Rock served as the presiding hearing officer for
Plaintiff DeJesus’ Tier III disciplinary hearing. According
to his declaration, when Defendant Rock was scheduled to
serve as a hearing officer, he would not partake in any
substantive pre-hearing discussions with DOCCS staff. (Dkt.
No. 69, Attach. 5, at 3 [Rock Decl.].) At the conclusion of
Plaintiff DeJesus’ Tier III disciplinary hearing, Defendant
Rock found Plaintiff DeJesus guilty of the charges contained
within the misbehavior report issued by Defendant Dixon.
(Id.) More precisely, Defendant Rock determined that, by
threatening future legal action, Plaintiff DeJesus “was trying
to preemptively identify future conflicts with [DOCCS] staff
as retaliation and to potentially deter staff from doing their
jobs.” (Id.)
“An inmate subject to a disciplinary proceeding is entitled to
an impartial hearing officer.” Allen v. Cuomo, 100 F.3d 253,
259 (2d Cir. 1996). An impartial hearing officer is “one who,
inter alia, does not prejudge the evidence and who cannot
say ... how he would assess the evidence he has not seen yet.”
Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990);
see also Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)
(“[I]t would be improper for prison officials to decide the
disposition of a case before it was heard.”).
*11 Granted, “prison disciplinary officers are not held to the
same standard of neutrality as adjudicators in other contexts.”
Allen, 100 F.3d at 259. “The degree of impartiality required
of prison officials does not rise to the level of that required of
judges generally.” Id. On a motion for summary judgment, an
inmate's subjective belief that the hearing officer was biased is
insufficient to create a genuine issue of material fact. Francis,
891 F.2d at 47; Clyde v. Schoellkopf, 714 F. Supp.2d 432,
437-38 (W.D.N.Y. 2010).
Here, it is uncontroverted that that Defendant Dixon consulted
with Defendant Rock before he issued the misbehavior
report to Plaintiff DeJesus. (Dkt. No. 69, Attach. 10, at 78.)
According to Defendant Dixon, Defendant Rock “concurred
with [his] interpretation” that, in Plaintiff DeJesus’ letter
to SCOC, his threat of future “civil action,” constituted a
“threat[ ] [against] two officers in the operation of the dorm,”
thereby warranting the issuance of a misbehavior report.
(Id. at 78.) Moreover, liberally construed, Plaintiff DeJesus’
retaliation claim against Defendant Rock alleges retaliation
not simply by failing to recuse himself as the hearing officer
(due to his involvement in the charging decision) 12 but
by conspiring with Defendant Dixon to charge him without
adequate grounds. (Dkt. No. 1, at ¶¶ 13, 67, 83, 183, 185.)
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For these reasons, the Court denies Defendants’ motion for
summary judgment on Plaintiff DeJesus’ First Amendment
retaliation claim against Defendant Rock.
3. Plaintiff Emerenciano's First Amendment
Retaliation Claim Against Defendant Kowalowski
Defendants argue that Plaintiff Emerenciano has failed to
provide any evidence establishing that any adverse action
taken by Defendant Kowalowski against Emerenciano was
caused by Emerenciano's protected speech. (Dkt. No. 69,
Attach. 2, at 10 [Defs.’ Mem. of Law].) Instead, Defendants
argue that Plaintiff Emerenciano could only “surmise” that
Defendant Kowalowski “probably had to retaliate against
[him]” because of a prior grievance that Plaintiff Emerenciano
had submitted against Defendant Kowalowski. 13 (Id.)
In response, Plaintiffs argue that the evidence establishes
as follows: (1) Plaintiff Emerenciano engaged in protected
conduct when he was voicing and relaying his constituents’
concern at the ILC meeting regarding a newly-imposed prison
yard policy that had been implemented by Defendant Bell; (2)
Defendant Kowalowski issued a misbehavior report against
Plaintiff Emerenciano for engaging in that protected conduct;
and (3) Plaintiff Emerenciano's protected conduct directly
caused Defendant Kowalowski to issue the misbehavior
report. (Dkt. No. 73, at 25-29 [Pls.’ Opp'n Mem. of Law].)
*12 During a Clinton ILC meeting in or around October
2015, Plaintiff Emerenciano and his fellow ILC members
expressed disagreement with a newly implemented policy
implemented by Defendant Bell that required inmates to
remain seated on the prison yard ground when an altercation
occurs. 14 (Dkt. No. 73, Attach. 13, at 1-2.) In particular,
inmates expressed the collective frustration that this new
policy required them to either lay down or sit on the ground
for approximately 20 to 30 minutes if any sort of altercation
between inmates occurred in the prison yard, and as a
result, be exposed to the potentially severe weather for an
unnecessarily long period of time. (Id.) For example, at the
ILC meeting, Plaintiff Emerenciano discussed a previous
fistfight (where no weapons were involved) that had occurred
between two inmates in Clinton's North Yard. (Id.) After
DOCCS officers had broken-up the fistfight and escorted
the two involved inmates off the yard, the other inmates
(who were not involved in the altercation) in the yard were
required to sit “in the cold [and] mud” for approximately
25 minutes. (Id.) At the ILC meeting, Plaintiff Emerenciano
communicated to Sergeant Hutti, Clinton's Yard Sergeant, that
the inmates were left feeling frustrated and angry that day. (Id.
at 1-2.) In addition, Plaintiff Emerenciano informed Sergeant
Hutti that, in the approaching winter months, inmates may
be less willing to comply with this new policy given the
cold weather. (Id. at 2.) Plaintiff Emerenciano stated that one
inmate's decision to not comply with this policy may create a
“chain reaction” in other inmates—a conflict that he wished
to avoid. (Id.)
Approximately 45 minutes after the ILC meeting had ended,
when Plaintiff Emerenciano had already returned to his cell,
four DOCCS officers placed him in keeplock restraints and
escorted him to SHU. (Id.) After spending almost three hours
in SHU, Plaintiff Emerenciano was informed that he was
being transferred to Upstate later that same day. (Id.) On
October 2, 2015, Plaintiff Emerenciano was transferred from
Clinton to the SHU at Upstate. (Dkt. No. 73, Attach. 15.)
On October 5, 2015, Plaintiff Emerenciano was served a
misbehavior report issued by Defendant Kowalowski. (Id.)
According to this misbehavior report, at the ILC meeting,
“[Plaintiff Emerenciano] stated that if [the policy requiring
inmates to remain on the ground of the prison yard] continues
we will have another 83 ....” (Dkt. No. 69, Attach. 25, at 1.)
Under these circumstances, the Court finds that there is a
genuine dispute of material fact as to the second element of
a claim for retaliation. While a “prison inmate has no general
constitutional right to be free from being falsely accused
in a misbehavior report,” “false accusations contained in a
misbehavior report can rise to the level of a constitutional
violation ... where the false accusation is based on something
more, such as ‘retaliation against the prisoner for exercising
a constitutional right.’ ” Tafari v. McCarthy, 714 F. Supp.2d
317, 372 (N.D.N.Y. 2010) (quoting Boddie v. Schnieder, 105
F.3d 857, 862 [2d Cir. 1997]). In other words, in the context
of a retaliation claim, there is no question that a falsified
misbehavior report constitutes an adverse action. See Gill,
389 F.3d at 381 (holding that a plaintiff's allegations that
defendants issued false misbehavior reports against him was
sufficient to allege adverse action).
As a result, again, the issue before the Court is whether the
causation element of a retaliation claim has been established.
According to Defendant Kowalowski's deposition testimony,
the basis for his issuing of a misbehavior report against
Plaintiff Emerenciano was Emerenciano's reference to a
prison riot that had occurred at Clinton in 1983. (Dkt.
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No. 69, Attach. 13, at 139-142, 146 [Kowalowski Tr.].)
Specifically, Defendant Kowalowski testified that, during the
ILC committee meeting, Plaintiff Emerenciano stated that
the newly implemented prison yard policy could lead to
frustration among the inmates, which may ultimately lead to
a riot (similar to the riot at Clinton Correctional Facility in
1983). (Id.)
Plaintiff Emerenciano argues that he made no such reference
to the 1983 Clinton prison riot, and therefore Defendant
Kowalowski's falsified misbehavior report constituted an
adverse action. (Dkt. No. 73, at 25-26 [Pls.’ Opp'n Mem.
of Law].) In fact, Plaintiff Emerenciano testified that
he was “unaware of any incident [at Clinton] in 1983”
until Defendant Kowalowski issued him the misbehavior
report. (Dkt. No. 69, Attach. 17, at 52 [Emerenciano
Tr.].) Additionally, other members—Inmate Leon, Inmate
Rashawn Scott, Inmate David Maxwell, Inmate Selah, Inmate
Newman, Inmate Matos—of the ILC committee testified to
the fact that they did not recall hearing Plaintiff Emerenciano
remark to an “83.” (Dkt. No. 69, Attach. 26, at 11, 14-15, 18,
20-21, 24-25, 29-30.) Instead, Plaintiff Emerenciano argues
that, given his role on the ILC committee, he was merely
informing DOCCS staff of the inmates’ growing frustration
regarding the prison yard policy, and proposing possible
solutions for the future. (Dkt. No. 73, at 26-27 [Pls.’ Opp'n
Mem. of Law].) Finally, of at least some materiality is the fact
that Plaintiff Emerenciano had previously filed a grievance
against Defendant Kowalowski.
*13 For all of these reasons, the Court denies Defendants’
motion for summary judgment on Plaintiff Emerenciano's
First Amendment retaliation claim against Defendant
Kowalowski.
4. Plaintiff Emerenciano's First Amendment
Retaliation Claim Against Defendant Bell
Defendants argue Plaintiff Emerenciano has failed to provide
evidence showing “one particular thing” that would motivate
Defendant Bell to retaliate against him. (Dkt. No. 69, Attach.
2, at 14 [Defs.’ Mem. of Law].)
Plaintiff Emerenciano responds (persuasively) that has
adduced admissible record evidence from which a reasonable
juror could find that (1) Emerenciano had engaged in
constitutionally protected conduct by voicing generalized
inmate concern over the newly implemented prison yard
policy to Defendant Kowalowski, and (2) he suffered an
adverse action by being charged with a disciplinary violation
by Defendant Kowalowski, and was found guilty at his Tier
III disciplinary hearing and then punished by Defendant Bell.
(Dkt. No. 73, at 25-29 [Pls.’ Opp'n Mem. of Law].) Less clear,
however, is whether Plaintiff Emerenciano has shown a causal
connection between his protected conduct and the adverse
action by Defendant Bell.
Generally, “it is difficult to establish one defendant's
retaliation for complaints against another defendant.” Hare
v. Hayden, 09-CV-3135, 2011 WL 1453798, at *4 (S.D.N.Y.
Apr. 14, 2011) (citing Wright v. Goord, 554 F.3d 255, 274
[2d Cir. 2009]). Here, Plaintiff Emerenciano must show “a
genuine issue of material fact that the protected conduct was
a substantial or motivating factor in his discipline.” Graham
v. Henderson, 89 F.3d 75, 81 (2d Cir. 1996).
Defendant Kowalowski has testified that, after the ILC
meeting at which Plaintiff Emerenciano had allegedly
mentioned the 1983 Clinton riot, Kowalowski informed
Defendant Bell of the remarks that Plaintiff Emerenciano
had made. (Dkt. No. 69, Attach. 13, at 140-41 [Kowalowski
Tr.].) However, Plaintiff Emerenciano has not provided any
admissible evidence supporting a reasonable finding that
Defendant Bell had somehow been made aware of the fact
that Defendant Kowalowski had been lying, and/or that any
portion of his misbehavior report had been falsified (an issue
that still remains in dispute). In addition, before the taking
of the adverse action at issue, Plaintiff Emerenciano had
never filed any grievances against Defendant Bell, and had
had no interaction with him. (Dkt. No. 69, Attach. 17, at
15-16 [Emerenciano Tr.].) At best, Plaintiff Emerenciano has
provided only conclusory allegations that Defendant Bell
acted with a retaliatory motivation when he found him guilty
at Emerenciano's Tier III disciplinary hearing.
The Court would add only that a guilty finding in an inmate
disciplinary hearing only needs to be supported by “some
evidence from the conclusion ... could be deduced.” Hill
v. Superintendent, 472 U.S. 445, 455 (1987). “[I]t is well-
established that a correction officer's misbehavior report may
constitute reliable evidence of guilt.” Chavez v. Gutwein,
20-CV-0342, 2021 WL 4248917, at *12 (S.D.N.Y. Sept.
17, 2021) (citing Jensen v. Mullin, 14-CV-1337, 2016 WL
5394744, at *4 [N.D.N.Y. Sept. 27, 2016]). Here, the Court
need not scrutinize Defendant Bell's reliance on certain pieces
of evidence at Plaintiff Emerenciano's Tier III disciplinary
hearing, because it is the hearing officer's responsibility, not
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the Court's, to make determinations regarding a witness's
credibility. See Hill, 472 U.S. at 455 (explaining that
application of the “some evidence” standard does not require
that the Court conduct an independent assessment of the
credibility of the witnesses).
*14 For all of these reasons, the Court grants Defendants’
motion for summary judgment on Plaintiff Emerenciano's
First Amendment retaliation claim against Defendant Bell.
5. Plaintiff Scott's First Amendment
Retaliation Claim Against Defendant Houck
Defendants argue that Plaintiff Scott has failed to show
that, before Defendant Houck authorized Scott's facility
transfer, Houck had been aware of Scott's exercise of his
constitutional rights. (Dkt. No. 69, Attach. 2, at 14-17 [Defs.’
Mem. of Law].) According to Defendants, it was Plaintiff
Scott himself who had requested the facility transfer. (Id. at
16.) Therefore, Defendants argue that Plaintiff Scott has not
shown that there was a causal connection between Defendant
Houck's approval of Plaintiff Scott's facility transfer request
and Scott's communication with media outlets and elected
officials who were seeking information on the 2015 prison
escape of inmates David Sweat and Richard Matt. (Id.)
Plaintiffs respond that Defendant Houck retaliated against
Plaintiff Scott by abruptly facilitating his transfer from
Clinton to the Green Haven hub. (Dkt. No. 73, at 29-32 [Pls.’
Opp'n Mem. of Law].) According to Plaintiffs, Defendant
Houck retaliated against Plaintiff Scott because Scott had
communicated with outside entities, including the media and
the New York Times, about the living conditions at Clinton.
(Id. at 29.) More precisely, Plaintiffs argue that a jury could
reasonably conclude, based on the nature and timing of
Plaintiff Scott's transfer that, Defendant Houck retaliated
against him by having him summarily removed from both the
ILC and Clinton. (Id.)
It is well established that a prison official may not transfer
an inmate in retaliation for the exercise of a constitutional
right. Smith v. Greene, 06-CV-0505, 2010 WL 985383, at *8
(N.D.N.Y. Feb. 3, 2010) (Baxter, M.J.) (citing Davis v. Kelly,
160 F.3d 917, 920 [2d Cir. 1998]) report-recommendation
adopted by 2010 WL 985388 (N.D.N.Y. Mar. 16, 2010)
(Suddaby, J.).
Plaintiff Scott has adduced admissible record evidence
from which a rational jury could find that he engaged in
constitutionally protected conduct when he communicated
with reporters from the New York Times to discuss the
overall environment and alleged mistreatment and abuse of
incarcerated individuals by DOCCS staff at Clinton during the
aftermath of the 2015 prison escape. Plaintiff Scott has also
adduced admissible record evidence from which a rational
jury could find that he suffered adverse action by being
transferred from Clinton to the Green Haven hub.
As a result, again, the issue before the Court is whether the
causation element of a retaliation claim has been established.
To establish a causal connection between protected conduct
and an adverse action, a plaintiff must show that “the
protected conduct was a substantial or motivating factor in the
prison officials’ decision to take action against the plaintiff.”
Ciaprazi v. Goord, 02-CV-0915, 2005 WL 3531464, at *6
(N.D.N.Y. Dec. 22, 2005) (internal quotation marks omitted).
When evaluating whether a causal connection exists between
the protected conduct and the adverse action, a court may
consider the following: “(1) the temporal proximity between
the protected activity and the alleged retaliatory act; (2) the
inmate's prior good disciplinary record; (3) vindication at a
hearing on the matter; and (4) statements by the defendant
concerning his motivation.” Vega v. Artus, 610 F. Supp.2d
185, 207 (N.D.N.Y. 2009).
*15 To establish the third element of his retaliation claim,
Plaintiff Scott relies primarily on the shortness of time
between his making a transfer request and receiving a transfer
(which was less than a month). 15 (Dkt. No. 73, at 30 [Pls.’
Opp'n Mem. of Law].) Moreover, Plaintiff Scott argues that
a jury could reasonably accept his testimony that “he did not
want to go to the Green Haven hub, nor that he ever expected
such a swift transfer that would prevent him completing his
ILC term at Clinton.” (Id.)
Defendant Houck receives electronic reviews from individual
correctional facilities, and based on these reviews, classifies
inmates based on a security level. 16 (Dkt. No. 69, Attach.
11, at 20-21 [Houck Tr.].) Defendant Houck received Plaintiff
Scott's facility transfer request on which he indicated that he
wanted to be transferred to the Sullivan hub for programming
purposes. (Dkt. No. 69, Attach. 30, at 4.) According to
Defendant Houck, DOCCS staff at Clinton approved Plaintiff
Scott's transfer request on October 9, 2015. 17 (Dkt. No. 69,
Attach. 11, at 60 [Houck Tr.].) On October 26, 2015, Plaintiff
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Scott was transferred from Clinton to the Green Haven hub.
(Dkt. No. 69, Attach. 31.)
However, although Plaintiff Scott had requested to be
transferred to the Sullivan hub, there was no guarantee that
DOCCS would have been able to accommodate his request.
Simply put, Plaintiff Scott overlooks the fact that he had no
right to be confined to an institution of his choosing. See
Davis, 160 F.3d at 920 (“A prisoner has no liberty interest in
remaining at a particular correctional facility.”).
Generally, the most desirable DOCCS “hubs” (amongst
inmates) are located in the downstate area of New York. 18
(Id. at 5.) As a result, these hubs have the longest waiting
list for inmates seeking a transfer to them. 19 (Id.) Therefore,
when an inmate requests to be transferred to a facility in any of
the three downstate hubs, Defendant Houck selects a facility
based on that inmate's preference, the availability of bed space
at those facilities, and the relevant security concerns. (Id.)
Ultimately, the goal of overseeing an inmate's facility request
is to have the inmate transferred to the facility that is closest to
his or her preferred location (subject to the available bed space
and security considerations). (Id.) Finally, an inmate plays
no part in making the final determination regarding which
facility he or she is transferred to. (Id.)
*16 Moreover, the Court is not persuaded by Plaintiff Scott's
argument that he “[n]ever expected such a swift transfer that
would prevent him from completing his ILC term at Clinton.”
(Dkt. No. 73, at 30 [Pls.’ Opp'n Mem. of Law].) The Court
notes that Plaintiff Scott could have submitted his facility
transfer once his ILC term had ended (and not before) if
he wished to serve-out the remaining portion of his term on
the ILC, or at least specified the time that he wanted to be
transferred. Given the other evidence in the case, it is of
no consequence that Plaintiff Scott was transferred less than
thirty days after submitting his request, because it is well-
settled that “temporal proximity without more is insufficient
to survive summary judgment.” Cooper v. Annucci, 18-
CV-0762, 2020 WL 8474802, at *14 (N.D.N.Y. Nov. 9,
2020) (Hummel, M.J.) (quoting Flynn v. Ward, 15-CV-1028,
2018 WL 3195095, at *11 [N.D.N.Y. June 7, 2018]). Indeed,
Plaintiff Scott could only “surmise” that his transfer was
made in retaliation based on the relative speed at which his
transfer had been processed. (Dkt. No. 69, Attach. 13, at
76 [Scott Tr.].) Such speculation, of course, is insufficient
to create a genuine dispute of material fact. See Henson v.
Gagnon, 13-CV-0590, 2015 WL 9809874, at *12 (N.D.N.Y.
Dec. 10, 2015) (Dancks, M.J.) (“[C]onclusory statements are
not sufficient to support causation in retaliation claims; the
claims must be supported by specific facts.”), report and
recommendation adopted by, 2016 WL 204494 (N.D.N.Y.
Jan. 15, 2016).
Finally, Plaintiff Scott argues that DOCCS is prohibited from
transferring an inmate to another facility while that inmate
is serving on the IGRC. 20 (Id. at 30-31.) The Court finds
this argument to be unconvincing, because, as Plaintiff Scott
himself correctly points out, he was not a member of the IGRC
at the time of his transfer to the Green Haven hub.
For all of these reasons, the Court grants Defendants’ motion
for summary judgment on Plaintiff Scott's First Amendment
retaliation claim against Defendant Houck.
B. Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ Fourteenth Amendment Due
Process Claims Against Them
1. Plaintiff Emerenciano's Fourteenth Amendment
Due Process Claim Against Defendant Bell
In their response to Defendant's motion for summary
judgment, Plaintiffs have not opposed Defendants’ request
for judgment on Plaintiff Emerenciano's due process claim
against Defendant Bell. (Dkt. No. 73, at 7, n.2 [Pls.’ Opp'n
Mem. of Law].) For these reasons, and the reasons stated in
Defendants’ memoranda of law, the Court grants Defendants’
motion for summary judgment on this claim.
2. Plaintiff Emerenciano's Fourteenth Amendment
Due Process Claim Against Defendant Venettozzi
Defendants argue that the Court must grant summary
judgment on Plaintiff Emerenciano's due process claim
against Defendant Venettozzi, because Emerenciano has
failed to establish Venettozzi's personal involvement in the
alleged incidents giving rise to the violation of Emerenciano's
due process rights. (Dkt. No. 69, Attach. 2, at 18-19 [Defs.’
Mem. of Law].)
Plaintiffs respond that Defendant Venettozzi was personally
involved in the deprivation of Plaintiff Emerenciano's
constitutional rights, because the evidence shows that
Defendant Venettozzi modified the Tier III disciplinary
hearing officer's determination. (Dkt. No. 73, at 35-36
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[Pls.’ Opp'n Mem. of Law].) Moreover, the Second
Circuit's ruling in Tangreti, Plaintiffs urge the Court to
reconsider its dismissal of their supervisory claim against
Defendants Annucci and Kirkpatrick based on their deliberate
indifference. (Id.)
The Court will address Plaintiffs’ arguments out of order,
beginning with the argument urging reconsideration of the
Court's Decision and Order of September 23, 2019. When
a party files a motion for reconsideration, “[t]he standard
for granting such a motion is strict, and reconsideration
will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked-
matters, in other words, that might reasonably be expected to
alter the conclusions reached by the court.” Shrader v. CSX
Transp., 70 F.3d 255, 257 (2d Cir. 1995). Such a motion is
“not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple[.]’ ” Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 41 (2d Cir.
2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144
[2d Cir. 1998].)
*17 In support of Plaintiffs’ sole argument for
reconsideration (that, “even before Tangreti[,] the Second
Circuit had indicated that there are cases where deliberate
indifference is so egregious that it rises to and can satisfy a
requisite unlawful discriminatory intent”), they fail to provide
the Court with any new controlling decisions or data that it
had overlooked in initially deciding the matter on Defendants’
motion to dismiss. (Dkt. No. 73, at 36 [Pls.’ Opp'n Mem.
of Law].) In other words, Plaintiffs merely provided the
Court with argument that it had already considered on the
motion to dismiss. For this reason, Plaintiffs’ motion for
reconsideration is denied as to the supervisory liability claims
against Defendants Annucci and Kirkpatrick.
Turning to Plaintiffs’ other argument (that Defendant
Venettozzi was personally involved in the deprivation of
Plaintiff Emerenciano's constitutional rights), the Court
begins by observing that, in his role as the DOCCS’
Director of Office of Special Housing and Inmate Discipline,
Defendant Venettozzi oversees the appeals submitted
by inmates stemming from their disciplinary hearing
determinations. (Dkt. No. 69, Attach. 12, at 23-24 [Venettozzi
Tr.].) Although Defendant Venettozzi's office does not
supervise the disciplinary hearing officers, it does contact the
hearing officer if an inmate appeals the hearing determination.
(Id. at 24.) Among the DOCCS employees assigned to the
Office of Special Housing and Inmate Discipline are support
staff, two Correctional Facility Operations Specialists, one
Lieutenant, one Captain, one Assistant Director, and one
Director. (Id. at 25.) Defendant Venettozzi could not recall
the approximate number of disciplinary hearing reviews (i.e.,
appeals) that his office handled, but believed it was more than
eight thousand per year. (Id. at 30.)
Defendant Venettozzi had a limited understanding of the ILC
and the nature of its meetings. (Id. at 39-40.) Defendant
Venettozzi also expressed a general unfamiliarity with the
inmate grievance process, and at his deposition could not
recall receiving any formalized training on it. 21 (Id. at
41.) Defendant Venettozzi was also unfamiliar with IGRC
Directive Number 4040 that detailing the prohibition on
officer reprisals against inmates for filing grievances. (Id. at
47.)
After the disciplinary hearing officer makes his or her
determination, an inmate has the right to appeal that
determination. (Id. at 60.) Defendant Venettozzi's office
is designated by Commissioner Annucci to review all of
the appeals stemming from Tier III disciplinary hearing
determinations. (Id.) Upon Defendant Venettozzi's office
receiving an appeal, it has 60 business days to either
affirm, modify, or reverse the appeal. (Id.) There is no
standard procedure for assigning specific appeals to specific
members of Defendant Venettozzi's team. (Id. at 63-64.)
Once a member of Defendant Venettozzi's team reviews
and comes to an initial decision on an inmate's appeal,
either Defendant Venettozzi or the office's Assistant Director,
Anthony Rodriguez (“Mr. Rodriguez”), must approve it. (Id.
at 66-67.) For some appeals, Defendant Venettozzi approves
the review decision without reviewing the hearing packet that
accompanies the appeal. (Id. at 67.) Furthermore, Defendant
Venettozzi has approved the review decision of appeals
without reviewing the inmate's appeal letter. (Id. 67-68.) In
other words, for efficiency purposes, Defendant Venettozzi
and Mr. Rodriguez do not “do a complete and thorough
stoppage and [conduct a] re-review of everyone's work.” (Id.
at 68.)
According to Defendant Venettozzi, if an inmate claimed as
his or her defense to disciplinary charges that he or she was
retaliated against by a DOCCS employee, and that inmate was
able to establish sufficient evidence of the alleged retaliation,
then the disciplinary hearing officer should dismiss the
charges against that inmate. (Id. at 111.) In previous instances,
but not all of them, when Defendant Venettozzi had approved
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a reversal of a hearing officer's determination, he has spoken
with hearing officers to offer them guidance in how to not
make mistakes when issuing their determinations. (Id. at
109-10.)
*18 On October 19, 2015, the Office of Special Housing and
Inmate Discipline received Plaintiff Emerenciano's appeal
of his Tier III disciplinary hearing determination. (Dkt. No.
73, Attach. 13.) As a result of his adjudication of guilty of
the charges set forth within the misbehavior report, Plaintiff
Emerenciano received 270 days in the SHU, as well as a loss
of privileges. (Id. at 6.)
On April 19, 2016, after a review of Plaintiff Emerenciano's
appeal, the Office of Special Housing and Inmate Discipline
modified his punishment to 180 days in the SHU, effectively
suspending 90 days of the initial punishment of SHU
confinement and loss of privileges. (Dkt. No. 69, Attach. 29.)
On April 16, 2016, Defendant Venettozzi sent an internal
memorandum to the DOCCS Superintendent of Great
Meadow Correctional Facility, Christopher L. Miller, to
inform him that the Office of Special Housing and Inmate
Discipline had modified the determination of the disciplinary
hearing that had found Plaintiff Emerenciano guilty of the
charges contained within his misbehavior report issued by
Defendant Dixon and had initially ordered him to serve 270
days in the SHU. (Dkt. No. 69, Attach. 29.) The memorandum
stated that, “per conversation with the Attorney General's
Office, no substantial evidence to support the charges [against
Plaintiff Emerenciano].” (Id.)
In an email dated April 15, 2016, from Assistant Attorney
General Christopher Fleury (“AAG Fleury”) to Defendant
Venettozzi and Nancy Heywood, and copying Corey Bedard
and Tanya Selvaag, AAG Fleury informed Defendant
Venettozzi of his “real concerns regarding the allegations”
made by Plaintiff Emerenciano and his counsel. (Dkt. No.
73, Attach. 17.) Specifically, AAG Fleury stated that he
did not believe, and a reviewing court would not believe,
that the charges set forth in the misbehavior report had not
been supported by substantial evidence. (Id.) AAG Fleury
stated his conclusion was based on the testimony of five
inmate witnesses who had corroborated the fact that Plaintiff
Emerenciano made no such reference to a 1983 prison riot
during an ILC meeting. (Id.)
A letter entitled “Review of Superintendent's Hearing” was
sent to Plaintiff Emerenciano to notify him that “[o]n
behalf of the Commissioner and in response to ... [his]
appeal, ... [the] Superintendent's hearing of October 8, 2015,
has been reviewed and administratively reversed on April
19, 2016.” (Dkt. No. 69, Attach. 29, at 2.) Defendant
Venettozzi's electronic signature is affixed towards the
bottom portion of this letter. (Id.) Also contained within the
discovery exchanged in this case is a letter titled “Review
of Superintendent's Hearing.” (Id. at 3.) This letter was sent
to Plaintiff Emerenciano to notify him that, “[o]n behalf
of the Commissioner and in response to ... [his] appeal, ...
[the] Superintendent's hearing of October 8, 2015, has been
reviewed and modified on November 30, 2015. (Id.) This
letter was electronically signed by Corey Bedard, who at the
time was serving as the DOCCS Acting Director of Special
Housing and Inmate Discipline. (Id.) According to Defendant
Venettozzi, Plaintiff Emerenciano's Tier III disciplinary
hearing determination was only modified, and not completely
reversed, because his office “did not believe that the appeal
overrode what the hearing officer (i.e., Defendant Bell) put in
[his determination] for evidence.” (Dkt. No. 69, Attach. 12,
at 156 [Venettozzi Tr.].) Defendant Venettozzi was unaware
of which DOCCS employee in his office had conducted the
review of Plaintiff Emerenciano's appeal, and he was unable
to recall details or any correspondence regarding the appeal.
(Id. at 157, 166.)
*19 As discussed above in Part II.B. of this Decision and
Order, “a plaintiff must show ... the defendant's personal
involvement in the alleged constitutional deprivation” to
establish his liability in a suit under § 1983. Grullon, 720
F.3d at 138. Among district courts in the Second Circuit, there
has been a persistent split as to “whether an allegation that
a defendant affirmed a disciplinary proceeding is sufficient
to establish” that defendant's personal involvement in the
underlying constitutional violation. Samuels v. Fischer, 168
F. Supp.3d 625, 643 (S.D.N.Y. 2016); compare Hinton v.
Prack, 12-CV-1844, 2014 WL 4627120, at *17 (N.D.N.Y.
Sept. 11, 2014) (Kahn, J.) (“Courts within the Second
Circuit are split over whether the mere allegation that a
supervisory official affirmed a disciplinary determination
is sufficient to establish personal liability. We subscribe
to the affirmance plus standard, which holds that the
mere rubber-stamping of a disciplinary determination is
insufficient to plausibly allege personal involvement.”) with
Murray v. Arquitt, 10-CV-1440, 2014 WL 4676569, at *12
(N.D.N.Y. Sept. 18, 2014) (“The affirmation of an allegedly
unconstitutional disciplinary hearing appears to establish
personal involvement.”) (Mordue, S.J.).
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Relying on the Second Circuit's 2020 decision in Tangreti v.
Bachmann, 983 F.3d 609 (2d Cir. 2020)—“which eliminated
special standards for supervisory liability and required
that alleged constitutional violations be ‘established against
supervisory officials directly,’ 983 F.3d at 618” two district
courts within this circuit have found that “a defendant's
‘fail[ure] to correct another officer's violation” at a prison
disciplinary hearing “does not suffice” to establish that
defendant's personal involvement in the alleged constitutional
violations. Chavez, 2021 WL 4248917, at *14 (citing
Washington v. Fitzpatrick, 20-CV-0911, 2021 WL 966085, at
*10 [S.D.N.Y. Mar. 15, 2021]).
“ ‘In general, the mere fact that a supervisory official
affirmed the result of a disciplinary hearing will not suffice
to establish that official's personal involvement in an alleged
constitutional violation....’ ” Caimite v. Rodriguez, 17-
CV-0919, 2020 WL 6530780, at *9 (N.D.N.Y. Apr. 9, 2020)
(Hummel, M.J.) (quoting Collins v. Ferguson, 804 F. Supp.2d
134, 140 [W.D.N.Y. 2011]). However, a supervisory official
will be found to have been personally involved if he or
she “proactively participated in reviewing the administrative
appeals as opposed to merely rubber-stamping the results.”
Whitley v. Miller, 57 F. Supp.3d 152, 161 (N.D.N.Y. 2014).
In this case, a letter titled “Review of Superintendent's
Hearing” was sent to Plaintiff Emerenciano. (Dkt. No. 69,
Attach. 29, at 3.) This letter notified Plaintiff Emerenciano
that “[o]n behalf of the Commissioner and in response
to ... [his] letter of appeal ... [the] Superintendent's hearing
of October 8, 2015, has been reviewed and modified on
November 30, 2015. (Id. at 3.) The letter contained an
itemized breakdown of the modified penalties imposed upon
Plaintiff Emerenciano. (Id.) Corey Bedard's signature is
affixed towards the bottom portion of this letter. (Id.)
On April 19, 2016, Defendant Venettozzi sent an internal
memorandum to the DOCCS Superintendent of Great
Meadow Correctional Facility, Christopher L. Miller, to
inform him that the Office of Special Housing and
Inmate Discipline had reversed the determination of
the Superintendent's hearing that had found Plaintiff
Emerenciano guilty of the charges contained within his
misbehavior report issued by Defendant Kowalowski. (Id. at
1.) The memorandum stated that, “per conversation with the
[New York State] Attorney General's Office, no substantial
evidence to support the charges.” (Id.) A second letter
titled “Review of Superintendent's Hearing” was sent to
Plaintiff Emerenciano notifying him that, “[o]n behalf of the
Commissioner ..., [the] Superintendent's hearing of October
8, 2015, has been reviewed and administratively reversed on
April 19, 2016.” (Id. at 2.) Defendant Venettozzi's electronic
signature is affixed towards the bottom portion of this letter.
(Id.)
*20 To the extent that Plaintiff Emerenciano argues that
Defendant Venettozzi's electronic signature affixed on the
letter notifying him of the expunction of the charges
constitutes personal involvement, the Court finds that Whitley
is persuasive. There, a judge of this District held that a
modification of the plaintiff's punishment and a “typewritten
form response” which stated that “there was not sufficient
grounds to reconsider the previous decision on that hearing,”
and “do[es] not constitute sufficient evidence that either
defendant proactively participated in reviewing the merits of
[the plaintiff's] claim or had otherwise ‘actively considered
the issues raised by [plaintiff] in reviewing and responding
to [his] appeal[s]’ to give rise to a question of fact regarding
either individual's personal involvement.” Whitley, 57 F.
Supp.3d at 162. As a result, the Court finds that Defendant
Venettozzi's electronic signature does not constitute his
personal involvement in Plaintiff Emerenciano's alleged due
process deprivation.
For these reasons, the Court grants Defendants’ motion for
summary judgment on Plaintiff Emerenciano's Fourteenth
Amendment due process claim against Defendant Venettozzi.
C. Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ Supervisory Liability Claims
Against Defendant Venettozzi
1. Plaintiff DeJesus’ Supervisory Liability
Claim Against Defendant Venettozzi
Defendant Venettozzi argues that the Court must grant
summary judgment in his favor as to Plaintiff DeJesus’
supervisory liability claim against him, because DeJesus has
failed to establish any grounds on which he could be held
liable as a supervisor with regard to DeJesus’ surviving
retaliation claim against Defendant Dixon. (Dkt. No. 69,
Attach. 2, at 17-20 [Defs.’ Mem. of Law].)
Plaintiffs respond that, given the totality of the circumstances,
Defendant Venettozzi should not be rewarded with
diminished liability because he ignored the unconstitutional
violations occurring at Clinton after having received notice
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of them. (Dkt. No. 73, at 32-38 [Pls.’ Opp'n Mem. of
Law].) More specifically, Plaintiff DeJesus argues that
Defendant Venettozzi violated his First Amendment rights
because he failed to prevent the Defendant Dixon's retaliation
and acted with deliberate indifference by not remedying
the alleged constitutional violations in a timely manner.
(Id.) Furthermore, Plaintiff DeJesus argues that Defendant
Venettozzi was deliberately indifferent to the retaliation
that he suffered, because “his actions ... directly enabled,
condoned, and ratified the unlawful retaliation being carried
out against ... Plaintiff DeJesus, such that it too can be
said [that] Defendant Venettozzi ... engaged in unlawful
retaliation.” (Id.) Therefore, argues Defendant DeJesus, a
“jury can reasonably and readily conclude [that] Defendant
Venettozzi was not only directly involved in the retaliation
by virtue of his direct role in relation to their disciplinary
appeals and by virtue of having not only created and/
or tolerated a custom or policy through which retaliation
against ILC members ..., but that he was aware that the
charges against these individuals were discriminatory by
being directly and expressly based upon protected conduct
and protected speech.” (Id. at 37.)
“It is well-established that a law enforcement official has
an affirmative duty to intervene on behalf of an individual
whose constitutional rights are being violated in his presence
by other officers.” Cicio v. Lamora, 08-CV-0431, 2010
WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (Peebles,
M.J.). To prove a claim of failure-to-intervene, the plaintiff
must establish that the officer-defendant had “(1) a realistic
opportunity to intervene and prevent the harm, (2) a
reasonable person in the officer's position would know that
the victim's constitutional rights were being violated, and
(3) that officer does not take reasonable steps to intervene.”
Henry v. Dinelle, 10-CV-0456, 2011 WL 5975027, at *4
(N.D.N.Y. Nov. 29, 2011) (Suddaby, J.) (citing Jean-Laurent
v. Wilkinson, 540 F. Supp.2d 501, 512 [S.D.N.Y. 2008]).
*21 On March 8, 2016, counsel for Plaintiff DeJesus
submitted a preliminary appeal from his Tier III disciplinary
hearing determination to Defendant Venettozzi's office. (Id.
at 117.) Defendant Venettozzi's office received Plaintiff
DeJesus’ appeal on March 17, 2016. (Id.) On June 3, 2016,
Defendant Venettozzi's office reversed the Superintendent's
determination as to Plaintiff DeJesus’ Tier III disciplinary
hearing because the issued misbehavior report did not
support the charges filed against Plaintiff DeJesus. (Id. at
107-08, 121-23.) As a result of the decision to reverse the
Superintendent's determination, the two charges that had been
brought against Plaintiff DeJesus were dropped. (Dkt. No. 69,
Attach. 23, at 1.) Defendant Venettozzi acknowledged that
every appeal reviewed by his office is evaluated on a case-
by-case basis, and reviews, more likely than not, go much
further in depth than merely reading the misbehavior report
that was issued to the inmate. (Dkt. No. 69, Attach. 12, at
119-21 [Venettozzi Tr.].)
Put simply, the evidence does not support Plaintiff
DeJesus’ argument regarding Defendant Venettozzi's failure
to intervene in the alleged retaliation against DeJesus
by Defendant Dixon. Instead, Plaintiff DeJesus’ argument
assumes that, because of his title as the Director of the
Office of Special Housing and Inmate Discipline, Defendant
Venettozzi knew, or reasonably should have known, about
Defendant Dixon's alleged retaliation against Plaintiff
DeJesus. Additionally, Plaintiff DeJesus does not provide
evidence showing how Defendant Venettozzi “intentionally
built and maintained a system ... [that] tolerates a wrongful
custom and policy” of deliberate indifference towards
unconstitutional retaliatory conduct. (Id.)
With regard to Plaintiffs’ apparent argument that the length
of time it took for Defendant Venettozzi's office to review
Plaintiff DeJesus’ appeal was insufficient, Plaintiffs point to
the fact that, before the reversal of the disciplinary hearing
officer's determination, counsel for Plaintiff DeJesus and
Plaintiff DeJesus himself contacted Defendant Venettozzi
to alert him to the pending appeal, and yet, the appeal
was decided more than sixty days after it was received by
Defendant Venettozzi's office. (Dkt. No. 73, at 34 [Pls.’ Opp'n
Mem. of Law].) Of course, “[r]eceiving letters of complaint
from an inmate and failing to respond is generally insufficient
to establish personal involvement.” Johnson v. McKay, 14-
CV-0803, 2015 WL 1735102, at *9 (N.D.N.Y. Apr. 16, 2015)
(report-recommendation by Dancks, M.J., adopted by Sannes,
J.); Smart v. Goord, 441 F. Supp.2d 631, 643 (S.D.N.Y. 2006)
(noting that the defendant “cannot be held liable on the sole
basis that he did not act in response to letter of protest by
[plaintiff]”); accord, Chaney v. Vena, 15-CV-0653, 2017 WL
6756645, at *7-8 (N.D.N.Y. Nov. 29, 2017) (Baxter, M.J.),
adopted by 2017 WL 6734186 (N.D.N.Y. Dec. 29, 2017)
(McAvoy, J.). Plaintiffs do not specify the manner in which
they “contacted” Defendant Venettozzi, nor the extent of any
communication that they might have had. To the extent that
Plaintiff DeJesus argues that Defendant Venettozzi did not
follow DOCCS policies regarding the sixty-day deadline to
decide an appeal, a failure to adhere to an internal policy or
state law does not constitute a violation of § 1983. H'Shaka
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v. Gorman, 444 F. Supp.3d at 355, 384-85 (N.D.N.Y. 2020)
(Suddaby, C.J.).
In any event, a violation of the 60-day deadline for a decision
on such an appeal does not violate Plaintiff DeJesus’ due
process rights, because the Fourteenth Amendment does not
require any administrative review of disciplinary convictions.
See Austin v. Fischer, 09-CV-4812, 2010 WL 3187642,
at *2 (S.D.N.Y. Aug. 11, 2020) (“Plaintiff alleges that
the Commissioner issued a decision sixty eight days after
Plaintiff's submission of his administrative appeal, exceeding
the sixty-day limit set forth in ... § 254.8 .... However, this
eight day delay does not violate Plaintiff's due process rights,
because the Fourteenth Amendment does not require any
administrative review of disciplinary convictions.”) (internal
quotation marks omitted), aff'd, 453 F. App'x 80 (2d Cir.
2011).
*22 Finally, although there may be a genuine dispute of
fact as to the degree of personal involvement that Defendant
Venettozzi had in reviewing Plaintiff DeJesus’ appeal, any
such genuine dispute of fact is not a material one. This dispute
of fact lacks materiality because, even if Defendant Dixon had
committed a constitutional violation by issuing a misbehavior
report to Plaintiff DeJesus, Defendant Venettozzi's office
reversed the Tier III disciplinary decision; it did not affirm or
partially modify the hearing officer's determination. In other
words, Defendant Venettozzi's office did indeed intervene to
correct the repercussions stemming from Defendant Dixon's
alleged unlawful retaliation.
For these reasons, the Court grants Defendants’ motion for
summary judgment on Plaintiff DeJesus’ supervisory liability
claim against Defendant Venettozzi.
2. Plaintiff Emerenciano's Supervisory
Liability Claim Against Defendant Venettozzi
Because Plaintiff Emerenciano has decided to abandon his
due process claim against Defendant Bell, and pursue his due
process claim against only Defendant Venettozzi, the Court
need only focus on Venettozzi's actions while supervising
Defendant Kowalowski in connection with Emerenciano's
disciplinary hearing.
For his supervisory liability claim to survive the pending
motion, Plaintiff Emerenciano must provide admissible
evidence from which a rational jury could render the
following three findings of fact: (1) that Defendant Venettozzi
had a realistic opportunity to intervene and prevent Defendant
Kowalowski from allegedly retaliating against Plaintiff
Emerenciano; (2) that a reasonable person in Defendant
Venettozzi's position would have known that Emerenciano's
First Amendment rights were being violated; and (3) that
Defendant Venettozzi did not take reasonable steps to
intervene to prevent further alleged retaliation by Defendant
Kowalowski. Henry, 2011 WL 5975027, at *4.
It is undisputed that, on November 30, 2015, Defendant
Venettozzi's office modified the punishment that had initially
been imposed upon Plaintiff Emerenciano after a finding of
guilt at his Tier III disciplinary hearing. (Dkt. No. 69, Attach.
29, at 3-4.) It is also undisputed that, on April 16, 2016,
Defendant Venettozzi's office ultimately reversed the finding
of guilt. (Id. at 1-2.) As indicated above in Part III.C.1. of this
Decision and Order, this reversal of a finding of guilt actually
shows that Defendant Venettozzi did indeed intervene in
Defendant Kowalowski's alleged unlawful retaliation. As a
result, Plaintiff's theory of liability involves an argument
that Defendant Venettozzi should have done so sooner:
more specifically, that, when Venettozzi's office modified
Plaintiff Emerenciano's punishment on November 30, 2015,
Venettozzi should have reversed the finding of guilt.
The problem with this argument is that Defendant Venettozzi
has no recollection of personally participating in that
modification. (Dkt. No. 69, Attach. 12, at 138-67 [Venettozzi
Tr.].) Furthermore, Plaintiff Emerenciano has no personal
knowledge of such participation. Instead, he relies on
Defendant Venettozzi's title as the head of the office
that modified Plaintiff Emerenciano's punishment as the
grounds for his supervisory liability, which is precisely
the sort of respondeat superior theory of liability that
has long been prohibited under the law. Finally, the
record contains uncontroverted evidence that, the same day
that Defendant Venettozzi learned of the concerns of an
Assistant Attorney General regarding Plaintiff Emerenciano's
disciplinary conviction, Venettozzi passed those concerns
along to a subordinate; and the very next day Venettozzi's
office reversed the finding of guilt. (See, e.g., Dkt. No. 73,
Attach. 17 [attaching email message dated April 15, 2016].)
Simply stated, based on the current record, no reasonable
jury could find Defendant Venettozzi liable for Defendant
Kowalowski's alleged unlawful retaliation.
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*23 For these reasons, the Court grants Defendants’
motion for summary judgment on Plaintiff Emerenciano's
supervisory liability claim against Defendant Venettozzi.
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 69) is GRANTED in part and DENIED in part as
described above in this Decision and Order; and it is further
ORDERED that the Clerk of Court shall enter Judgment for
Defendants on the following claims, which are DISMISSED:
(a) Plaintiff Emerenciano's retaliation claim under the First
Amendment against Defendant Bell;
(b) Plaintiff Scott's retaliation claim under the First
Amendment against Defendant Houck;
(c) Plaintiff Emerenciano's due process claim under the
Fourteenth Amendment against Defendant Bell;
(d) Plaintiff Emerenciano's due process claim under the
Fourteenth Amendment against Defendant Venettozzi;
(e) Plaintiff DeJesus’ supervisory liability claim against
Defendant Venettozzi; and
(f) Plaintiff Emerenciano's supervisory liability claim
against Defendant Venettozzi; and it is further
ORDERED that the following claims SURVIVE this motion
for summary judgment:
(a) Plaintiff DeJesus’ retaliation claim under the First
Amendment against Defendant Dixon;
(b) Plaintiff DeJesus’ retaliation claim under the First
Amendment against Defendant Rock; and
(c) Plaintiff Emerenciano's retaliation claim under the First
Amendment against Defendant Kowalowski; and it is
further
ORDERED that the Clerk of Court shall TERMINATE the
following individuals as Defendants in this action: Earl Bell,
Richard Houck, and Donald Venettozzi.
All Citations
Not Reported in Fed. Supp., 2022 WL 991402
Footnotes
1 The Court notes that, for the ease of reading, it will still refer to Francisco DeJesus as a plaintiff in this action.
2 The Court notes that, although Plaintiffs dispute “in part” this statement of material fact, they cite to no
admissible record evidence controverting it.
3 The Court notes that the Superintendent's hearing reversal resulted in the expunction of both charges against
Plaintiff DeJesus.
4 The Court deems this fact to be undisputed because Plaintiffs have failed to provide a specific record cite in
support of their partial dispute of this fact. See N.D.N.Y. L.R.(a)(3) (“Each fact listed shall set forth a specific
citation to the record where the fact is established ... Each denial shall set forth a specific citation to the record
where the factual issue arises.”); see also, e.g., Rizzo v. Health Rsch., Inc., 12-CV-1397, 2016 WL 632546,
at *2 (N.D.N.Y. Feb. 16, 2016) (“Of these 136 denials, 117 denials do not contain a specific citation to the
record. Therefore, the facts ‘denied’ by these paragraphs will be deemed admitted.”); Benson v. Otis Elevator
Co., 10-CV-3246, 2012 WL 4044619, at *1, n.1 (S.D.N.Y. Sept. 13, 2012) (deeming fact asserted by movant
to be admitted by non-movant where non-movant supported denial “only with non-specific citations to the
entire testimony of several witnesses”); Univ. Calvary Church v. City of New York, 96-CV-4606, 2000 WL
1538019, at *2, n.6 (S.D.N.Y. Oct. 17, 2000) (“Despite the clear language of Rule 56 requiring specificity,
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Plaintiffs rarely offers an exact cite in support of their version of the facts ... [A] vague cite to all of the exhibits
is simply unacceptable.”).
5 The Court notes that Defendant Kowalowski (who was present at the meeting) has testified that he heard
Plaintiff Emerenciano say that “it would only take one inmate to stand up during a similar situation in the
future, and that there will be another ‘eighty-three’ as a result.” Defendant Kowalowski interpreted this use of
the term “eighty-three” as a reference to a prison riot that had occurred at Clinton in 1983. However, Plaintiff
Emerenciano has testified that he never said such a thing and had not even known of the 1983 riot at the time.
6 The Court deems this fact to be undisputed by Plaintiffs because Plaintiffs’ Rule 7.1 Response begins with
the word “Undisputed,” and then attempts to provide more “specific[s]” about the above asserted fact. See
Washington v. City of New York, 05-CV-8884, 2009 WL 1585947, at *1 n.2 (S.D.N.Y. June 5, 2009) (holding
that “the statement provided by Defendants is taken as true because Plaintiff[’]s initial response in each
instance is ‘Admit’ ”); CA, Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at *2 n.3 (E.D.N.Y. Apr.
8, 2015) (holding that “the Court will consider each statement provided by [Plaintiff] as undisputed because
[Defendant's] initial response in each instance is, in fact, ‘Undisputed’ ”).
7 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]. As the Supreme Court has
explained, “[the non-movant] must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
8 In Iqbal, after a Pakistani Muslim detainee filed suit against federal officials for confinement based on religion,
race, and/or national origin, the Supreme Court held that “[b]ecause vicarious liability is inapplicable to ...§
1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual
actions, has violated the Constitution. Iqbal, 556 U.S. at 676.
9 In 2013, the Second Circuit decided two cases surrounding this issue: (1) in Grullon v. City of New Haven,
the Circuit implied that Iqbal may have heightened the requirements for showing a supervisor's personal
involvement (but did not directly rule on it) and (2) in Hogan v. Fischer, 738 F.3d 509, 513 n.3 (2d Cir. 2013),
the Circuit expressed no view on the extent to which Iqbal may have heightened the requirements for showing
a supervisor's personal involvement. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). More
recently, in 2019, this Court explained that the Second Circuit had not yet addressed how Iqbal affected
the standards in Colon for establishing supervisory liability, it may have limited the Colon factors (so as to
permit the use of only the first and third factors listed above). Rasheen v. Adner, 356 F. Supp.3d 222, 233-34
(N.D.N.Y. 2019).
10 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF
docketing system maintained by the Clerk's Office, and not the numbers on the documents themselves.
11 The Court notes that this “tier hearing lieutenant” was Defendant Rock (Dkt. No. 69, Attach. 10, at 78.)
12 The Court notes that “both DOC[C]S regulations and the law of this Circuit prohibit a prison official who
was involved in investigating the underlying charges from acting as a hearing officer.” Silva v. Sanford, 91-
CV-1776, 1994 WL 455170, at *12 (S.D.N.Y. Aug. 18, 1994); see also Powell v. Ward, 542 F.2d 101, 103
(2d Cir. 1976) (“[N]o person who has participated in the investigation of [the] acts complained of or who
has been a witness to such acts could be a member of a ... Superintendent's Proceeding relating to those
acts.” [emphasis added]).
13 The Court notes that Plaintiff Emerenciano had submitted a grievance against Defendant Kowalowski
because Kowalowski had not placed Emerenciano on the ILC callout list. (Dkt. No. 69, Attach. 17, at 53-54
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[Emerenciano Tr.].) In the same grievance, Plaintiff Emerenciano also requested that Defendant Kowalowski
be removed from his role as the ILC civilian representative. (Id.)
14 Defendant Kowalowski attended this ILC meeting as the “civilian staff advisor.” (Dkt. No. 73, Attach. 13, at 1.)
15 In his role as a DOCCS classification analyst, Defendant Houck oversees inmate transfers between DOCCS
correctional facilities. (Dkt. No. 69, Attach. 7, at 2 [Houck Decl.].) At the beginning of each month, Defendant
Houck receives several hundred transfer referrals from the DOCCS facilities. (Id. at 3.)
16 The Court notes that inmates are reviewed on semi-annual basis for a potential facility transfer. (Dkt. No. 69,
Attach. 7, at 3 [Houck Decl.].) This review includes an interview of the inmate. (Id.)
17 Before Defendant Houck receives a transfer referral from a correctional facility, three DOCCS employees
must ordinarily approve the referral: the offender rehabilitation coordinator (“ORC”), the supervising offender
rehabilitation coordinator (“SORC”), and the deputy superintendent of programs. (Dkt. No. 69, Attach. 7, at
2 [Houck Decl.].)
18 The Court notes that the most desirable DOCCs hubs include the Sullivan hub, the Green Haven hub, and
the New York City hub. (Dkt. No. 69, Attach. 7, at 5 [Houck Decl.].)
19 According to Defendant Houck, the wait time for inmates seeking a transfer to the Green Haven hub ordinarily
takes approximately one year. (Dkt. No. 69, Attach. 11, at 56 [Houck Tr.].) However, the Sullivan hub
experiences wait times approximately up to two years because of its small maximum-security orientation.
(Id. at 56-57.)
20 The Court notes that 7 N.Y.C.R.R. § 701.4 details the procedures for removing an inmate from his or her
role on the IGRC.
21 The Court notes that, as a corrections officer, Defendant Venettozzi had never served on the IGRC. (Id. at 42.)
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Lewis v. Hanson, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Gunn v. Milani, S.D.N.Y., September 9, 2024
2022 WL 991729
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Raymond LEWIS, Plaintiff,
v.
Jason HANSON, et al., Defendants.
9:18-CV-0012 (LEK/DJS)
|
Signed 03/31/2022
Attorneys and Law Firms
Theresa M. Trzaskoma, Allegra Noonan, Sher Tremonte LLP,
Yu Han, Morrison & Foerster LLP, New York, NY, for
Plaintiff.
Ryan T. Donovan, Ryan E. Manley, Harris, Conway &
Donovan, PLLC, Albany, NY, for Defendant Jason Hanson.
Andrew R. Safranko, Lamarche Safranko Law PLLC,
Albany, NY, for Defendant Joseph Sharpe.
Cynthia E. Neidl, Katie Louise Birchenough, Greenberg
Traurig, LLP, Albany, NY, for Defendant Scott Mere.
Eric Michael Soehnlein, Sean O'Brien, Lippes Mathias
Wexler Friedman LLP, Buffalo, NY, Lawrence H. Schaefer,
Lippes Mathias Wexler Friedman LLP, Albany, NY, for
Defendant Zachary Peck.
Barry Nelson Covert, Diane M. Perri Roberts, Maxwell C.
Radley, Patrick Mackey, Lipsitz Green Scime Cambria LLP,
Buffalo, NY, for Defendant Craig Robideau.
Mark G. Mitchell, New York State Attorney General, Albany,
NY, for Defendants Jason Kearney, John Kingston.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 On April 11, 2019, Raymond Lewis filed his
amended complaint against several corrections officers
employed by the New York State Department of Corrections
and Community Supervision (“DOCCS”) at Bare Hill
Correctional Facility in Malone, New York (“Bare Hill”),
at all times relevant to this matter: Jason Hanson, Joseph
Sharpe, Craig Robideau, Zachary Peck, Scott Mere, Jason
Kearney and John Kingston. 1 Dkt. No. 61 (“Amended
Complaint”). Plaintiff's claims arise from circumstances
surrounding a use of force incident that occurred at
Bare Hill on April 23, 2016, and Plaintiff's subsequent
requests for medical aid on April 24, 2016. See Am.
Compl. at 4. Now before the Court are motions for
summary judgment filed by Robideau, Peck, Mere, Kearney,
and Kingston (collectively, “Defendants”). Dkt. Nos. 136
(“Robideau Motion”), 136-5 (“Robideau Memorandum”),
136-4 (“Robideau Statement of Material Facts” or “Robideau
SMF”), 136-1 (“Roberts Declaration”), 136-2 (“Exhibits A-
L”), 136-3 (“Robideau Declaration”); 137 (“Peck Motion”),
137-1 (“Peck Memorandum”), 137-2 (“Peck Statement
of Material Facts” or “Peck SMF”), 137-3 (“Soehnlein
Declaration”); 138 (“Mere Motion”), 138-2 (“Mere
Memorandum”), 138-1 (“Mere SMF”), 138-3 (“Birchenough
Declaration”), 138-4 (“Mere Declaration”), Dkt. Nos 139;
(“Kearney & Kingston Motion”), 139-16 (“Kearney &
Kingston Memorandum”), 139-17 (“Kearney & Kingston
Statement of Material Facts” or “Kearney & Kingston
SMF”), 139-1 (“Kearney Declaration”), 139-2 (“Kingston
Declaration”), 139-3 (“Mitchell Declaration”), 139-4
(“Plaintiff's Deposition”), 139-5 (“Kearney Deposition”),
139-6 (“Kingston Deposition”).
Plaintiff has responded. Dkt. Nos. 149 (“Plaintiff's Response
Memorandum”), 149-3 (“Plaintiff's Response to Defendants’
Statements of Material Facts and Statement of Material Facts”
or “Plaintiff's SMF”) 2 , 149-1 (“Plaintiff's Declaration”),
149-2 (“Noonan Declaration”). And all five defendants have
replied. Dkt. Nos. 154-3 (“Robideau Reply Memorandum”),
154-2 (“Robideau Reply SMF”), 154 (“Roberts Reply
Declaration”); 152 (“Peck Reply Memorandum”), 152-1
(“Peck Reply SMF”); 155 (“Mere Reply Memorandum”),
155-1 (“Mere Reply SMF”); 151 (“Kearney & Kingston
Reply Memorandum”).
For the reasons set forth below, each of Defendants’ motions
for summary judgment is granted in part and denied in part.
II. BACKGROUND
A. Factual Background
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1. Plaintiff's Alleged Phone
Violation and Transfer to the SHU
*2 The following facts are not in dispute except where noted.
In April of 2016, all Defendants were employed as corrections
officers at Bare Hill where Plaintiff was incarcerated.
Robideau SMF ¶ 2; Mere SMF ¶ 2; Peck SMF ¶ 10;
Kearney & Kingston SMF ¶¶ 12, 20; Pl.’s SMF ¶ 1. At this
time, Plaintiff had a lawsuit pending against Officer Brian
Cowan, who Plaintiff alleged had assaulted him while he was
incarcerated at the nearby Franklin Correctional Facility. Pl.’s
SMF ¶ 3.
On April 22, 2016, Plaintiff was on “cube confinement”
and was restricted from using the telephones. Pl.’s SMF ¶
8; Kearney & Kingston SMF ¶ 2. That day, Kearney was
assigned to the E-1 dorm where Plaintiff resided. Kearney &
Kingston SMF ¶ 14. An inmate approached Kearney, asked
to use the phone, and provided Plaintiff's ID number. Id.
¶ 15–16. When Kearney saw the ID number belonged to
an inmate with restricted phone privileges, he refused the
inmate's request and instructed him to return to his cube. Id. ¶
18. Kearney and Kingston assert that Plaintiff was the inmate
who requested to use the phone, id., while Plaintiff insists he
never approached Kearney or asked to make a phone call that
day, Pl.’s SMF at 4.
The next day, April 23, 2016, Defendant Kingston was on
duty as a Watch Commander. Id. ¶¶ 20, 24. Part of his
responsibilities as Watch Commander were to check phone
logs to see if inmates who had phone restrictions had been
using them improperly. Id. at 21. That day, Kingston claims he
reviewed the phone logs and found that Plaintiff's log showed
significant usage in violation of his phone restriction. Id. at
24. Plaintiff questions the veracity of Kingston's claim that he
did not notice the phone usage until that day, asserting that,
since Kingston admitted to reviewing phone logs three out
of every five days he worked, he would have noticed before
April 23 if Plaintiff's log had indeed shown such significant,
long-term usage over an 8-day period. Pl.’s SMF at 6.
When Defendant Hanson came on duty the day of April 23,
2016, Kingston claims he asked Hanson to take Plaintiff to the
special housing unit (“SHU”) for a phone violation. Kearney
& Kingston SMF ¶ 25. Kearney claims that Hanson then
approached him, showed him a picture of Plaintiff, and asked
if he knew who Plaintiff was. Id. ¶ 26. Apparently recognizing
Plaintiff as the inmate who had asked to use the phone the day
prior, Kearney described the incident to Hanson and wrote
a memorandum describing the alleged interaction. Id. ¶¶27–
29. Plaintiff claims that Kearney could not have recognized
him from the picture, because Plaintiff did not interact with
Kearney on April 22, 2016, and was not the inmate who
requested to use the phone that day. Pl.’s SMF at 6.
At some point later on April 23, 2016, Defendants Hanson
and Robideau came to Plaintiff's dorm and instructed him to
come with them. Pl.’s SMF ¶ 9. The two officers did not tell
him why he was being transferred or where he was going, but
handcuffed Plaintiff and placed him in a van. Id. ¶ 10. The
ride in the van took between 5 and 7 minutes. Robideau SMF
¶ 6; Pl.’s SMF at 41.
*3 Plaintiff contends that during the ride in the van,
Robideau began punching and kicking him while he was
still handcuffed, saying “our buddy told us to give you the
special treatment.” Id. ¶ 11. Plaintiff further contends that
upon arriving at the SHU, he was so severely injured that he
could not walk on his own and had to be dragged out of the
van and assisted into the building. Pl.’s SMF ¶ 12. Robideau
denies that he assaulted Plaintiff in the van or that Plaintiff
had to be helped into the SHU building. Robideau Reply SMF
at 8–9.
2. The Alleged Assault in the Special Housing Unit
The parties’ accounts vary dramatically regarding what
happened once Plaintiff entered the SHU.
Plaintiff claims he was placed in the SHU strip-frisk room
together with Defendants Hanson, Robideau, Sharpe, Mere,
and another unidentified officer. Pl.’s SMF ¶¶ 13–14. Plaintiff
claims Hanson said “this nigger gets special treatment
because he filed a lawsuit against one of our brothers” before
punching him in the head and taking him to the ground. Pl.’s
SMF ¶¶ 15–16. Plaintiff then claims the other officers in the
room joined in kicking and punching him. Id. ¶ 17. Plaintiff
claims he heard one officer state “lets [sic] say he had a
weapon” and another state “lets [sic] say he assaulted one of
us.” Id. ¶ 18. According to Plaintiff's account, Plaintiff was so
severely injured he could not stand, and officers had to help
him lean against a wall. Id. ¶ 20. Nurse Harmon then came
to examine Plaintiff; Plaintiff asked for pain medication, but
she told him to sign up for sick call. Id. ¶ 21; Mere SMF ¶
17. Plaintiff alleges that Hanson then said Plaintiff looked like
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he wanted to hurt himself and needed to be placed on suicide
watch. Pl.’s SMF ¶ 22. Once Plaintiff was escorted and placed
in the suicide watch cell, Plaintiff alleges Hanson grabbed him
by the neck and told him “if I hear anything about this, it can
all happen again.” Id. ¶ 23.
However, Robideau claims he did not enter the SHU with
Plaintiff at all, but instead left once Plaintiff entered the SHU
building. Robideau Reply SMF ¶ 13–14. Defendant Mere
likewise claims that he was never in the SHU strip-frisk room
with Plaintiff, but rather was on duty in the gym. Mere Reply
SMF ¶ 14, Mere SMF ¶¶ 6, 13. Mere further claims he did not
enter the SHU until after Plaintiff was already in the suicide
watch cell, because Mere had been assigned to cover the 1:1
suicide watch over Plaintiff, Mere Reply SMF ¶¶ 21–22, and
that he was never informed or aware of the use of force in the
SHU strip-frisk room, Mere SMF ¶ 24.
Plaintiff claims the Defendants each know Brian Cowan,
the officer at Franklin Correctional Facility against whom
Plaintiff had a lawsuit pending (the “Cowan Suit”), and
assaulted him in retaliation for filing the lawsuit. Pl.’s SMF
at 14, 31, 35. Defendants each deny any association with or
knowledge of Cowan or the lawsuit. Robideau Mem. at 17;
Peck SMF ¶ 15; Mere SMF ¶ 55; Kearney & Kingston SMF
¶¶ 66, 67.
3. Plaintiff's Requests for Medical Aid
Plaintiff asserts that while in the 1:1 cell, he was in severe
pain and was having difficulty breathing. Pl.’s SMF ¶ 24.
He further claims that, although Mere was supposed to be
watching him, he was not at his post. Id. ¶ 25. Plaintiff began
kicking the door to get Mere's attention and request his asthma
inhaler. Id. ¶ 26. Mere allegedly appeared after ten minutes
and said he would “look into” it. Id. at 27. After over an
hour with no word about his inhaler, Plaintiff again began
kicking the door to get Mere's attention. Id. ¶¶ 27, 28. A
different officer arrived, but refused to help. Id. ¶ 28. Plaintiff
asserts he began kicking the door again. Id. ¶29. A third
officer responded, and shortly after, returned with a nurse and
Plaintiff's asthma medication. Id.
*4 Mere contends that he began his 1:1 watch over Plaintiff
on April 23, at 4:05 PM, did not leave his post until 10:20 PM,
logged activity every 15 minutes, and that Plaintiff could see
and communicate with him that entire time. Mere Reply SMF
¶¶ 25–26. Mere claims that Plaintiff was not only kicking
the door, but yelling and slamming his body against it. Id. ¶
26; Mere SMF ¶ 27. Mere claims Plaintiff engaged in this
loud and disruptive behavior on at least 4 occasions, and
disregarded his orders to stop. Mere SMF ¶¶ 39–44. Further,
Mere asserts Plaintiff only asked for his inhaler one time,
after which Mere responded he would “look into” getting it,
and that a nurse arrived shortly after with the medication.
Mere Reply SMF ¶ 30, Mere SMF ¶¶ 31–32. Mere claims that
Plaintiff never complained of pain or requested medical aid.
Mere SMF ¶ 37.
The next day, on April 24, 2016, Plaintiff contends he was still
in severe pain, but was not given pain medication or breakfast.
Pl.’s SMF ¶ 31–34. At 6:30 PM, Plaintiff asserts that he still
felt unwell and kicked the cell door again when he could not
see an officer outside his cell. Id. ¶ 35–36. When Defendant
Peck arrived to start his duty on the 1:1 watch over Plaintiff,
Plaintiff claims he told Peck he was having a hard time
breathing and was having an asthma attack. Id. at 37. Peck
allegedly stated he would call the medical department, but
after an hour with no help, Plaintiff again asked Peck for the
asthma spray. Id. at 38. Plaintiff claims that Peck responded
that he would have to wait, at which time Plaintiff began
kicking the door again to get the attention of a sergeant. Id.
at 39. Non-party Sergeant Tamer arrived, whereupon Plaintiff
explained he was having trouble breathing and Tamer said he
would get the spray. Id. 40–41. After an additional one and
a half hours with no response, Plaintiff went to his cell door
again, but Peck was not there. Id. ¶ 42–43. Plaintiff began
kicking his cell door again. Id. ¶ 46. Another officer arrived
and provided the inhaler 15 minutes later. Id. ¶ 46.
Peck claims that he did not know of the use of force incident
that occurred the prior day. Peck SMF ¶ 13. Peck asserts that
he visibly assessed Plaintiff, that everything seemed normal,
and that Plaintiff did not ask for medical aid, but merely
asked once when nurses would be making rounds. Peck SMF
¶ 16; Peck Dep. at 37. Afterward, Plaintiff began yelling,
kicking, and hitting his body against the door. Id. at 38–39.
Peck ordered Plaintiff to stop and requested that a roundsman
inform a sergeant of the situation. Peck SMF ¶ 20–21. Peck
claims that, at that point, Sergeant Tamer arrived and spoke
with Plaintiff, after which Plaintiff calmed down. Id. ¶ 22–23.
Around two hours later, Plaintiff resumed the same behavior.
Id. ¶ 24. When Plaintiff did not comply with a direct order to
stop, Peck issued a misbehavior ticket and Plaintiff stopped.
Id. ¶ 25. Peck denies that Plaintiff ever said he was having
chest pain or trouble breathing. Id. ¶¶ 27–28.
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4. Plaintiff's Hospital Treatment
On April 25, two days after the alleged assault, Plaintiff
claims he woke up with severe chest pain and trouble
breathing. Pl.’s SMF ¶ 47. He informed officers he needed
medical attention and was transferred to Alice Hyde Medical
Center by ambulance. Id. ¶¶ 47–50. Plaintiff informed the
medical staff he had been assaulted by corrections officers.
Id. ¶ 54. Plaintiff was diagnosed with two fractured ribs and a
collapsed lung caused by trauma which doctors stated “could
have been fatal.” Id. ¶¶ 53–56.
Plaintiff remained hospitalized until April 27, 2016, when he
was released to the Upstate Correctional Facility (“Upstate”)
where he remained in the infirmary for another week. Id. ¶ 57.
5. Misbehavior Tickets and Investigations
After arriving at Upstate, Plaintiff was issued five
misbehavior tickets. Pl.’s SMF ¶ 59. One ticket, issued by
Hanson and co-signed by Kearney, alleged Plaintiff had made
18 phone calls from April 15, 2016 to April 22, 2016 in
violation of his cube confinement status, and used the phones
in violation of a direct order from Kearney. Id. ¶ 60. This
ticket purported to justify Plaintiff's April 23, 2016, transfer
to the SHU. Id. ¶ 59. Plaintiff denies making any phone calls
or being ordered by Kearney not to use the phones, and was
found not guilty at a hearing regarding this ticket. Id. ¶ 62.
*5 Another ticket was issued by Defendant Sharpe, alleging
that during the strip frisk at the SHU, Plaintiff resisted and
violently struggled. Id. ¶ 63. Plaintiff was found guilty of this
conduct. Id. ¶ 65.
Plaintiff received two tickets written by Mere alleging he
created a disturbance while in the SHU on suicide watch. Id. ¶
66; Mere Reply SMF ¶ 68. Plaintiff was initially found guilty
of creating a disturbance, but this finding was reversed on
appeal. Pl.’s SMF ¶ 69; Mere Reply SMF ¶ 69.
The final ticket was written by Peck, alleging Plaintiff created
a disturbance while in the SHU on suicide watch. Pl.’s SMF
¶ 70, Peck Reply SMF ¶ 70. Plaintiff was found guilty of this
conduct. Pl.’s SMF ¶ 71.
6. Plaintiff's Grievance
On May 13, 2016, Plaintiff submitted a grievance regarding
the alleged assaults, his struggle to obtain medical care, and
the allegedly false tickets filed against him. Pl.’s SMF ¶ 72.
Kingston was tasked with investigating the grievance. Id. ¶
76. Kingston dismissed Plaintiff's allegations, and found the
grievance was baseless and filed only to cause harm to the
officers involved. Id. ¶ 77–80. On August 8, 2016, Plaintiff's
grievance was denied by Superintendent Uhler. Kearney &
Kingston SMF ¶ 41.
However, the DOCCS Office of Special Investigations
(“OSI”) opened an investigation into the use of force event
and Plaintiff's subsequent stay in the SHU. Mere SMF ¶ 58;
Pl.’s SMF ¶ 81. The OSI investigator, Michael Germano,
issued his report on January 3, 2017. See Birchenough
Decl. Exhibit T (“Germano Report”). The Germano Report
questioned the narrative told by staff regarding the assault
and denial of medical care, finding various inconsistencies in
their accounts regarding the nature of Plaintiff's resistance, the
Nurse's evaluation of Plaintiff, their responses to his request
for medical attention, and Plaintiff's physical state after being
put on the 1:1 watch. Pl.’s SMF ¶¶ 82–87. The Germano
Report did not reach a conclusion regarding Plaintiff's assault
allegations, but found that the involved staff failed to give
Plaintiff proper medical care after the use of force incident in
the SHU. Id. ¶ 81.
Defendant Mere asserts that any findings in the Germano
Report are irrelevant as to him because the report did not
identify him as “involved staff,” he was not interviewed or
questioned, and was not named in the final report. Mere
SMF ¶¶ 58–61. Similarly, Robideau argues that the Germano
Report supports his innocence because it found that he had
“no valuable information to clarify the events documented in
the use of force.” Robideau Reply SMF ¶ 82.
B. Procedural History
Following Plaintiff's filing of his Amended Complaint, and
the Court's partial grant of Defendant Kearney and Kingston's
motions to dismiss, Dkt. No. 100, Plaintiff has the following
claims remaining: excessive force claims against Hanson,
Sharpe, Robideau, Mere, Peck, Kearney, and Kingston under
the Eighth Amendment, Fourth Amendment, and Fourteenth
Amendment; claims for deliberate indifference to a serious
medical need against Hanson, Sharpe, Robideau, Mere, and
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Peck under the Eighth Amendment; and retaliation claims
against Hanson, Sharpe, Robideau, Mere, Peck, Kearney,
and Kingston in violation of the First and Fourteenth
Amendments.
*6 Robideau, Mere, Peck, Kearney, and Kingston now
move, respectively, for summary judgment arguing they are
entitled to judgment as a matter of law on all claims against
them. See Robideau Motion, Mere Motion, Peck Motion,
Kearney Motion.
III. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs
courts to grant summary judgment if “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). A fact is
“material” if it “might affect the outcome of the suit under
the governing law,” and a dispute 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). Thus, while “[f]actual disputes
that are irrelevant or unnecessary” will not preclude summary
judgment, “summary judgment will not lie if ... the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.; see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier
of fact could find in favor of the nonmoving party should
summary judgment be granted.”). The party seeking summary
judgment bears the burden of informing the court of the basis
for the motion and identifying those portions of the record
that the moving party claims will demonstrate the absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Similarly, a party is entitled to summary
judgment when the nonmoving party carries the ultimate
burden of proof and has failed “to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial.” Id. at 322.
In attempting to defeat a motion for summary judgment after
the moving party has met its initial burden, the nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
may not rely on mere conclusory allegations, speculation,
or conjecture, Fischer v. Forrest, 968 F.3d 216, 221 (2d
Cir. 2020), and must present more than a mere “scintilla of
evidence” supporting its claims, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). At the same time, a court must
resolve all ambiguities and draw all reasonable inferences in
favor of the nonmoving party. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). Thus, a court's duty
in reviewing a motion for summary judgment is “carefully
limited” to finding genuine disputes of fact, “not to deciding
them.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22
F.3d 1219, 1224 (2d Cir. 1994).
IV. DISCUSSION
A. Robideau Motion for Summary Judgment
Robideau argues there is no material issue of fact regarding
Plaintiff's (1) Eighth Amendment claim for use of excessive
force, (2) Fourth and Fourteenth Amendment claims for use
of excessive force, and (3) claim for retaliation, and asserts
that all claims must be dismissed. See Robideau Mem.
1. Eighth Amendment Excessive Force
The Eighth Amendment protects prisoners from cruel and
unusual punishment by prison officials. Wilson v. Seiter, 501
U.S. 294, 296–97 (1991). To establish an Eighth Amendment
claim, a plaintiff must show both an objective component, “a
deprivation that is objectively, sufficiently serious ... [,]” and
a subjective component requiring the defendant official have
“a sufficiently culpable state of mind.” Hayes v. Dahlke, 976
F.3d 259, 274 (2d Cir. 2020); see also Hudson v. McMillian,
503 U.S. 1, 7 (1992).
*7 Plaintiff alleges that Robideau used excessive force
against him by assaulting him in the back of the van while
he was being transferred to the SHU and then by assaulting
him again while in the SHU strip-frisk room. Pl.’s SMF ¶¶ 11,
14. Robideau argues there is significant evidence supporting
his claim that he was the driver of the van and that he
did not enter the SHU, and thus could not have assaulted
Plaintiff. Robideau Mem. at 9–12. Robideau argues further
that Plaintiff's self-serving testimony set forth on the record,
absent other direct or circumstantial evidence, is insufficient
to defeat summary judgment. Id.
a. Evidence Supporting Robideau's Version of Events
Robideau argues there is no dispute of material fact that,
rather than being in the back of the van as Plaintiff claims,
he was the driver of the van. He points to the DOCCS Escort
Memorandum forms filled out by Robideau and Hanson that
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lists only two officers as having been involved in Plaintiff's
transfer, Robideau SMF ¶ 10; Roberts Decl. Ex. H (“DOCCS
Escort Memorandum”), and the deposition testimony of
fellow defendant Sergeant Hanson, in which he stated that
he (Hanson) was not driving the van, Robideau Reply at
7; Roberts Decl. Exhibit G (“Hanson Deposition”) at 261.
Further, Plaintiff has admitted that the driver of the van did
not assault or speak to him. Pl.’s SMF at 41.
Robideau contends there is likewise significant evidence
supporting his claim that he did not enter the SHU after
dropping Plaintiff off. Robideau Mem. at 10. Robideau points
to the SHU logbook which shows Robideau did not sign into
the SHU building, but that Sergeant Hanson did upon arrival
with Plaintiff, Roberts Decl. Exhibit I (“SHU Log Book”); the
testimonies of Defendants Hanson and Sharpe that they were
the only two officers in the strip-frisk room with Plaintiff that
day, Hanson Dep. at 257, Roberts Decl. Exhibit J (“Sharpe
Deposition”) at 202; and the Germano Report, which found
Robideau did not have any “valuable information to clarify
the events” surrounding the use of force, Germano Report at
3.
Robideau argues that the only pieces of evidence on the
record contradicting his account are Plaintiff's own self-
serving statements made in his grievance, his deposition, and
his declaration in opposition to summary judgment. Robideau
Mem. at 7. Robideau argues his motion for summary
judgment should be granted in spite of this contradictory
evidence because “[i]t is clear in this Circuit that a nonmoving
party's proffer of solely self-serving statements, ‘without
direct or circumstantial evidence to support the charge, is
insufficient to defeat a motion for summary judgment.’ ”
Robideau Reply at 7 (quoting J.F. v. Carmel Cent. Sch. Dist.,
168 F.Supp.3d 609, 616 (S.D.N.Y. 2016)).
b. Sufficiency of Self-Serving
Statements to Defeat Summary Judgment
The Court cannot agree that such clarity exists, and declines
to adopt a blanket rule that a self-serving declarations or
deposition testimony are per-se insufficient to defeat a motion
for summary judgment, even without other evidence to
support them.
Robideau is correct that there is a line of decisions from
courts in the Southern District of New York that appears to
adopt such a rule. See, e.g., Sec. & Exch. Comm'n v. Aly,
2018 WL 1581986, *9 (S.D.N.Y. 2018); J.F., 168 F.Supp.3d
at 616; Fincher v. Depository Trust & Clearing Corp., No.
06-CV-9959, 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17,
2008). The provenance of the rule issued in these decisions
can be traced back to the Second Circuit's opinion in Argus,
Inc. v. Eastman Kodak Co., where the court held that, in
the context of establishing a causal link between a breach of
antitrust law and harm to a plaintiff-competitor, “when the
fact of injury is in issue, the ‘isolated self-serving statements’
of a plaintiff's corporate officers may not provide substantial
evidence upon which a jury can rely.” 801 F.2d 38, 42 (2d Cir.
1986). However, in applying this standard to find no genuine
issue of material fact regarding causation of injury, the Argus
court refused to allow such statements to defeat summary
judgment, not because of their nature as self-serving, but
because the testimony was inherently “conclusory” and thus
“[fell] woefully short of that necessary to outweigh the
volume of contrary facts in the record.” Id. at 45.
*8 Robideau makes much of the Second Circuit's
affirmation of one of the Southern District cases utilizing
this rule: Fincher v. Depository Trust. However, even
though the Second Circuit eventually affirmed the district
court's ruling in Fincher, it disagreed with the district
court's decision to use the above-described rule to discredit
the plaintiff's testimony at the summary judgment stage
because the plaintiff's statements were not conclusory or
speculative. See Fincher v. Depository Tr. & Clearing Corp.,
604 F.3d 712, 726 (2d Cir. 2010) (“Fincher's testimony ...
is not conclusory or speculative, as was the plaintiff's
testimony in the case relied upon by the district court
in disregarding the remarks, ... we decline to conclude
at this stage of the proceedings that Fincher's testimony
may be deemed discredited.”). The Fincher court eventually
affirmed the grant of summary judgment, not because the
plaintiff's testimony at issue was self-serving, but because it
concerned statements made by a third-party who concluded
the plaintiff had been discriminated against, and the alleged
statements represented a mere “scintilla” of evidence “in
light of their offhand, conclusory nature and the lack
of further support in the record for Fincher's claim [of
discrimination].” Id. at 727. However, the court stated that,
if the plaintiff had testified that the third-party had made
remarks that themselves were discriminatory, rather than
merely conceding in conclusory fashion that plaintiff had
been discriminated against, “[s]ummary judgment might not
have been justified.” Id. Heavily implying the Second Circuit
would consider such self-serving testimony to be sufficient to
defeat summary judgment.
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In short, the Second Circuit—rather than holding that a self-
serving statement is per se insufficient absent other supporting
evidence—has reiterated the traditional standard that when
ruling on summary judgment “[the] preliminary question for
the judge [is] not whether there is literally no evidence,
but whether there is any upon which a jury could properly
proceed to find a verdict for the party producing it,” id.
at 726 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251 (1986)), and that “[m]ere conclusory allegations,
speculation or conjecture” are insufficient to resist summary
judgment, Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.
1996). While it may be true that in some cases a party's self-
serving affidavit or testimony, unsupported by other evidence
on the record, will be insufficient to allow a reasonable jury
to properly find a verdict in that party's favor, there are other
circumstances where it may very well be sufficient.
c. Plaintiff's Record Testimony and Statements
are Sufficient to Defeat Summary Judgment
Plaintiff's allegations regarding the alleged assaults by
Robideau are not conclusory or speculative, rather, they
testify to events that allegedly happened in Plaintiff's
presence that he observed directly. See Fincher, 604 F.3d
at 726 (“Fincher's testimony ... is not conclusory or
speculative ... because Fincher was testifying to the content
of a conversation at which she was allegedly present.”). Thus,
the Court must determine if Plaintiff's repeated testimonial
statements that Robideau assaulted him in the back of the
van on the way to the SHU and assaulted him again in the
SHU strip-frisk room represent a mere “scintilla” of evidence,
insufficient to create an issue of material fact.
The Court finds the weight of evidence is not so great
that no rational jury could credit Plaintiff's testimony and
find in his favor. Robideau contends that there is “extensive
documentary and testimonial discovery establishing that
Robideau was the driver of the van.” Robideau Mem. at 10.
The only documentary evidence Robideau points to is the
Escort Memorandum listing Robideau and Hanson as having
been in the van during the transport. Escort Memorandum
at 1. However, this memorandum is not purely objective
evidence, but rather was created and signed by Robideau and
Hanson themselves. Hanson Dep. at 258. Robideau further
relies on Hanson's testimony that Hanson was not the one
driving the van, thus implying that since there were only two
officers in the van according to the Escort Memorandum, the
driver must have been Robideau. Robideau Mem. at 10. While
Hanson did testify that he does not generally drive the vans,
Hanson Dep. at 261, he explicitly stated that he did “not have
an independent recollection” of transferring Plaintiff to the
SHU, and when asked if he drove the van on that specific day,
Hanson responded “not that I recall,” id. at 259. Given the
nature of this evidence, a reasonable jury could still choose
to credit Plaintiff's account that Robideau was not the driver
of the van, but was present in back of the van and assaulted
him during the trip. 3
*9 Regarding the alleged assault in the SHU, Robideau
asserts he did not enter the SHU at all and points to (1) the
fact that he did not sign the SHU Logbook “when Sergeant
Hanson did so upon arrival with Plaintiff,” Robideau Mem.
at 11 (citing SHU Logbook at 1), (2) Hanson and Sharpe's
testimony that no other officers were present in the SHU strip-
frisk room during the use of force event with Plaintiffs, id.;
Hanson Dep. at 257; Sharpe Dep. at 201–02, and (3) the
Germano Report's indication that “Robideau did not have any
‘valuable information to clarify the events’ documented in the
use of force,” id. (citing Germano Report at 3). 4
This evidence is similarly not as conclusive as Robideau
argues. The SHU Logbook entry for Plaintiff's admission
has a designated place for the “escorting supervisor” to sign,
but no obvious place where Robideau, who was indicated
to be the “escorting officer” would have signed. See SHU
Logbook at 1; Escort Memorandum. Robideau has not
argued or established that it would have been improbable,
or even difficult, for him to enter the SHU without having
signed. Indeed, the record indicates other individuals were
able to enter and leave the SHU multiple times without
signing the logbook. Germano Report at 3. In short, a
reasonable jury could find other explanations for Robideau's
lack of signature. Further, the conclusion in the Germano
report that Robideau did not have relevant information was
based on Robideau's own testimony. Germano Report at 3.
Given the repeated consistent statements Plaintiff has made
regarding the assault in the SHU, Birchenough Decl. Ex. N
(“Plaintiff's Grievance”) at 3; Plaintiff's Dep. at 122:6–11, a
reasonable jury could choose to credit Plaintiff's testimony
over Robideau's, Sharpe's, and Hanson's.
Robideau argues that Plaintiff's testimony should be
discredited because he claimed to see Robideau behind him
in the strip-frisk room with his “peripheral visions” and one
cannot see behind themself with peripheral vision. Robideau
Mem. at 11. Robideau further argues that Sharpe and Hanson's
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statements “should be given significant weight” because
they admit they were the only ones in the strip-frisk room
during the use of force, “and there is no reason for them to
be untruthful about who else was in the SHU frisk area.”
Id. Robideau's arguments may hold merit, however such
weighing of testimony and determination of credibility is not
within in the purview of a court on a motion for summary
judgment. See Redd v. N.Y. State Div. of Parole, 678 F.3d 166,
174 (2d Cir. 2012) (“Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge.”),
While the weight of evidence may favor Robideau, the
evidence is not so conclusive that a reasonable jury could
not believe Plaintiff's assertions that Robideau was in the
back of the transfer van and in the SHU strip-frisk room
and participated in the assaults. See Franklin v. Oneida
Corr. Facility, No. 03-CV-1452, 2008 WL 2690243, at *9
(N.D.N.Y. July 1, 2008) (Kahn, J) (“As tempting as it may
be to conclude that defendants will ultimately prevail at trial,
defendants’ invitation to make a credibility determination and
reject plaintiff's version of the events on motion for summary
judgment is plainly unwarranted”); Cicio v. Lamora, No. 08-
CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010),
report and recommendation adopted, No. 08-CV-431, 2010
WL 1063864 (N.D.N.Y. Mar. 22, 2010) (“Plaintiff's testimony
that he was beaten by MacWilliams stands in contrast to
the seemingly overwhelming evidence that it did not occur
as he alleges. Nonetheless, the weighing of such competing
evidence, no matter how weak plaintiff's claim may appear,
presents a question of credibility that must be left to the
trier of fact”); see also Harris v. Miller, 818 F.3d 49, 65
(2d Cir. 2016) (holding summary judgment is inappropriate
where “a prisoner's allegations and evidentiary proffers could
reasonably, if credited, allow a rational factfinder to find that
corrections officers used force maliciously and sadistically ...
[even where] the proof of excessive force [is] weak.”).
*10 The Court thus declines to grant Robideau's motion for
summary judgment regarding Plaintiff's Eighth Amendment
claim of excessive force.
2. Fourth and Fourteenth Amendment
Excessive Force Claims Against Robideau
Plaintiff does not oppose Robideau's motion regarding his
claims for excessive force under the Fourth and Fourteenth
Amendments. See Pl.’s Resp. Mem. at 14. Thus, the Court
grants Robideau's motion regarding these claims.
3. Eighth Amendment Deliberate Indifference to
Serious Medical need Claim against Robideau
Plaintiff likewise does not oppose Robideau's motion
regarding his claim for deliberate indifference to a serious
medical need under the Eighth Amendment. Id. Thus, the
Court grants Robideau's motion regarding this claim.
4. First Amendment Retaliation Claim Against Robideau
Robideau argues that Plaintiff's claims against him alleging
retaliation should be dismissed, first, because Plaintiff did
not appropriately exhaust his administrative remedies, and
second, because there is no dispute as to material fact
regarding whether Robideau engaged in retaliatory activities.
a. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (“PLRA”) states
that “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). This
exhaustion requirement “applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). “ ‘Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules’ as a
precondition to filing a federal lawsuit.” Espinal v. Goord,
558 F.3d 119, 124 (2d Cir. 2009) (quoting Woodford v. Ngo,
548 U.S. 81, 90 (2006)). Likewise, “compliance with state
procedural rules is necessary to achieve ‘[t]he benefits of
exhaustion [that] can be realized only if the prison grievance
system is given a fair opportunity to consider the grievance.’
” Id. “The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to
system and claim to claim,’ because ‘it is the prison's
requirements, and not the PLRA, that define the boundaries
of proper exhaustion.’ ” Id. (quoting Jones v. Bock, 549 U.S.
199, 218 (2007)).
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Robideau asserts that New York State grievance procedures
require an inmate to “allege facts sufficient to put corrections
officials on notice as ‘to the nature of the claim,’ and ‘provide
enough information about the conduct’ at issue.” Robideau
Mem. at 14. Robideau argues that because “[Plaintiff] failed
to file a grievance with particularity that implicated Robideau
in any retaliatory acts towards Lewis” he has not sufficiently
exhausted his administrative remedies as to the retaliation
claim against Robideau. See id. at 15.
However, Plaintiff's Grievance alleges involvement of
specific officers, including Robideau, Pl.’s Grievance at 2–
3, and that he was beaten for retaliatory reasons, id. at 18
(“This is a case where I was severely beaten ... in retaliation
for filing a lawsuit against correction officer B. Cowan.”).
Plaintiff's Grievance also provides a detailed account of the
events, including a specific date, time, and location. Plaintiff's
Grievance at 13–15.
*11 Thus, Plaintiff's Grievance provided prison officials
with the “the necessary information to investigate the
complaints and the opportunity to learn which officers were
involved in the alleged incident” sufficient to advance the
benefits of exhaustion, and the Court finds Plaintiff has
exhausted his administrative remedies regarding the claim of
retaliation against Robideau. See Espinal, 558 F.3d at 127
(finding administrative remedies properly exhausted where
grievance alleged involvement of certain security officers
and “included the specific date, time, and location of the
incident about which he complained, and that he was beaten
for retaliatory reasons.”).
b. Robideau's Alleged Retaliatory Acts
In order to succeed on a claim of retaliation in violation of the
First Amendment, a plaintiff must show “(1) the conduct cited
as the cause for retaliation is protected; (2) the defendant took
adverse action against the plaintiff; and (3) there was a causal
connection between the protected conduct and the adverse
action.” Davis v. Goord, 320 F.3d 346, 325 (2d Cir. 2003); see
also Gill v. Pidlypchak, 389 F.3d 379 (2d Cir. 2004).
It is undisputed that filing a civil lawsuit is activity protected
by the First Amendment. Beechwood Restorative Care Ctr.
v. Leeds, 436 F.3d 147, 152 (2d Cir. 2006) (“[L]awsuits
are protected speech.”); see also Houston v. Zen Zen, 388
F.Supp.2d 172, 174 (W.D.N.Y. 2005).
An action is considered to be adverse if it “would deter
a similarly situated individual of ordinary firmness from
exercising ... constitutional rights.” Tafari v. McCarthy, 714
F.Supp.2d 317, 348 (N.D.N.Y. 2010). Robideau argues that
there is no material dispute of fact that he did not take
any adverse action against Plaintiff because he was driving
the van and did not enter the SHU. Robideau Mem. at 18.
Robideau essentially reiterates his argument above, stating
that documentary and testimonial evidence establishes his
non-involvement, and the Court should disregard evidence
to the contrary because it consists of “unsupported, self-
serving statements that have not been corroborated.” Id.
However, as above, the Court finds that a reasonable jury
could choose to credit Plaintiff's statements that Robideau
assaulted him in the back of the transfer van and in the
SHU. See supra Section IV(A)(1). It cannot be disputed that a
physical assault on a handcuffed prisoner of the type alleged
by Plaintiff would deter an individual of ordinary firmness
from exercising constitutional rights. See Baskerville v. Blot,
224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (“[Plaintiff's]
claim regarding the retaliatory assault sufficiently describes
adverse conduct that would deter a reasonable inmate from
exercising his constitutional rights.”); Flemming v. King, No.
14-CV-316, 2016 WL 5219995, at *5 (N.D.N.Y. June 20,
2016) (“[A] physical assault constitutes adverse action.”),
report and recommendation adopted, No. 14-CV-0316, 2016
WL 5173282 (N.D.N.Y. Sept. 21, 2016).
Thus, there is a material dispute of fact as to whether
Robideau undertook an adverse action.
Robideau further argues that, even if it is accepted that he
participated in the assaults, there is insufficient evidence on
the record to establish a causal connection between Plaintiff's
filing of the Cowan Suit and the assaults. Robideau Mem. at
16.
In determining whether a causal connection exists between a
plaintiff's protected activity and a prison official's actions, a
court may consider several factors including “(i) the temporal
proximity between the protected activity and the alleged
retaliatory act; (ii) the inmate's prior good disciplinary record;
(iii) vindication at a hearing on the matter; and (iv) statements
by the defendant concerning his motivation.” 5 Baskerville v.
Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon
v. Coughlin, 58 F.3d 865, 872–73 (2d Cir. 1995)).
*12 Notwithstanding the first three factors, the Court finds
that alleged statements made by Robideau are sufficient for
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a reasonable jury to conclude the assaults were connected to
the Cowan suit.
Plaintiff claims that while assaulting him in the back of the
van, Robideau stated “our buddy wants us to give you the
special treatment,” Pl.’s Grievance at 13, and that during the
alleged attack in the SHU, one officer stated “our buddy wants
us to give a nigger like you the special treatment” and “this
nigger gets the special treatment because he filed a lawsuit
against one of our brothers,” id. at 14. Robideau claims
he does not know Officer Cowan and did not make these
statements, and a jury could choose to disbelieve Plaintiff's
claims, but they are sufficient to create a material issue of fact
regarding Robideau's retaliatory motive. See Colon, 58 F.3d
at 873 (reversing grant of summary judgment where prisoner
presented direct evidence of causal connection in the form
of an alleged admission of retaliatory motive by defendant
prison official, despite defendant's denial on the record of ever
making the statement.)
Therefore, the Court finds there are issues of material fact
regarding whether Robideau retaliated against Plaintiff for
exercising his First Amendment rights and denies Robideau's
motion for summary judgment on this claim.
B. Mere Motion for Summary Judgment
Mere argues he is entitled to summary judgment on (1)
Plaintiff's claim for use of excessive force, (2) Plaintiff's
claim for deliberate indifference to a serious medical need in
violation of the Eighth Amendment, and (3) Plaintiff's claim
of retaliation in violation of the First Amendment. See Mere
Mem. at 1. Mere also argues that he is entitled to qualified
immunity. Id.
1. Eighth Amendment Excessive Force
Under 42 U.S.C. § 1983 as to Mere
“It is well settled in this Circuit that ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ” Brandon
v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019) (quoting Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Mere alleges it is “undisputed” that he was not personally
involved in the assaults on Plaintiff, because the record
establishes that he was in the gym when Plaintiff was
allegedly assaulted in the SHU. 6 Mere Mem. at 7–9. To
support this claim, Mere points to (1) his own deposition
testimony as well as that of Defendants Hanson and Sharpe
which each claim that only Hanson and Sharpe were in
the SHU room when the use-of-force event occurred, id.
at 8; Mere Dep. at 55; Hanson Dep. at 91–92; Sharpe
Dep. at 122–123; (2) Birchenough Decl. Ex. I (“Use of
Force Report”), Birchenough Decl. Ex. H (“Unusual Incident
Memorandum”), Birchenough Decl. Ex. K (“Sharpe Inmate
Misbehavior Report”), and the Germano Report, which
each show that the use-of-force event occurred around 3:10
P.M. on April 23, 2016; (3) Mere's deposition testimony,
declaration, and the DOCCS Staff Planning Grid from April
23, 2016 purportedly establishing that Mere was in the gym
at 3:10 P.M. that day, Mere Dep. at 51, Mere Decl. Ex. A
(“DOCCS Staff Planning Grid”); and (4) the fact that the
Germano Report created after the OSI investigation did not
identify Mere as “involved staff” or present during the use-
of-force event. See Germano Report. Mere also contends
that Plaintiff's Amended Complaint does not allege he was
involved in the use-of-force event in the SHU, and that
Plaintiff's Grievance likewise does not state Mere was in the
SHU room during the assault and only mentions him for the
first time after Plaintiff was placed in his SHU cell. Mere
Mem. at 7–8.
*13 However, contrary to Mere's assertions, Mere's non-
presence in the SHU during the assault is explicitly disputed
on the record. Plaintiff testified several times during his
deposition that Mere was present in the SHU strip-frisk room
during the assault, along with Robideau, Sharpe, Hanson and
another unidentified officer, and that all the officers present
assaulted him:
Q. Okay. Was Officer Mere one of the individuals who
assaulted you once you got to the SHU to the strip frisk
room?
A. I believe he was.
Q. I'm sorry?
A. I believe he was because he was in the room with them.
Q. He was in the strip frisk room?
A. Yes.
...
Q. Okay. Was he one of the ones that assaulted you?
A. All of them assaulted me.
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Pl. Dep. at 199–200; see also id. at 204, 223, 224. Likewise,
in Plaintiff's Declaration, Plaintiff alleges that Mere assaulted
him in the SHU. Pl.’s Decl. at 13–19.
The question then is whether this testimony is sufficient to
create an issue of material fact, or whether it is nothing
more than a mere scintilla of evidence. The Court find
that Plaintiff's testimony is sufficient to withstand summary
judgment.
Mere appears to argue that Plaintiff's Grievance contradicts
his later statements that Mere participated in the SHU assault
because the grievance does not name Mere specifically until
Plaintiff describes events that occurred while he was in the
SHU cell. Mere Mem. at 8.
Where a plaintiff “relies almost exclusively on his own
testimony, much of which is contradictory and incomplete[,]”
and the account is so contradictory that “no reasonable person
could believe [it],” summary judgment may be appropriate.
Jeffreys v. City of N.Y., 426 F.3d 549, 554–55 (2d Cir. 2005).
It is true that Plaintiff's Grievance does not name Mere as
one of the officers present in the SHU strip-frisk room and
that Plaintiff relies almost exclusively on his own testimony
to establish Mere's presence there. However, the Court does
not find that the grievance inherently contradicts Plaintiff's
later statements regarding Mere's participation. The grievance
states there were several officers in the strip-frisk room during
the assault and that “all the officers in the room started kicking
and punching.” Pl.’s Grievance at 3. The Court does not
find this statement, or the allegations in Plaintiff's Complaint,
so contradictory that no reasonable person could believe
Plaintiff's account.
Further, much of Mere's argument relies on the Staff Planning
Grid to establish that it was “physically impossible” for him
to be in the SHU at the time of the use-of-force event, as
well as on the testimony of other officers and the Germano
Report. Mere Mem. at 8. However, an assignment to a specific
area does not conclusively establish that Mere was physically
present in that area at the specified time. And a reasonable
jury could choose to believe Plaintiff's account over the
Staff Planning Grid, the defendant officers’ testimonies, and
the Germano Report, which was itself largely based on the
parties’ statements. Germano Report at 1–4.
While the weight of the evidence may favor Mere, a
reasonable juror could credit Plaintiff's account, and the
weighing of conflicting evidence is more properly left to
the jury. Telesford v. Tamer, No. 14-CV-1209, 2016 WL
11480163, at *4 (N.D.N.Y. Aug. 31, 2016) (“Resolving the
discrepancy between the parties’ competing evidence would
require the court to undertake a credibility determination that
is not appropriate on summary judgment.”). Thus, the Court
denies Mere's request for summary judgment as to Plaintiff's
Eighth Amendment excessive force claim.
2. Eighth Amendment Medical Indifference as to Mere
*14 To establish an Eighth Amendment violation due
to medical indifference, an inmate must prove “deliberate
indifference to [his] serious medical needs.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citing Estelle
v. Gamble, 429 U.S. 97, 104 (1976)). The deliberate
indifference requirement has both an objective and subjective
prong. St. Clair Jones v. Lamont, 379 Fed. Appx. 58, 59 (2d
Cir. 2010). Mere only argues that Plaintiff has not satisfied
the subjective prong. See Mere Mem. at 9–12.
The subjective prong requires that a defendant prison official
act with a sufficiently culpable state of mind. They must
“know[ ] of and disregard[ ] an excessive risk to inmate
health or safety.” Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). In other words, they must “act[ ] or fail[ ] to act ‘while
actually aware of a substantial risk that serious inmate harm
will result.’ ” Acosta v. Thomas, 837 Fed. Appx. 32 (2d Cir.
2020) (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006)).
Mere argues that the record establishes he was not aware
of the use-of-force event in the SHU, and thus had no
knowledge of any excessive risk of injury, and that Plaintiff
only requested his inhaler once, after which it was promptly
provided to him—therefore, Mere did not act indifferently.
Mere Mem. at 11–12.
However, as noted above, a reasonable jury could choose to
credit Plaintiff's account of events, and that account relates
a considerably different story. Plaintiff alleged on the record
that Mere was not only aware of the use of force in the
SHU, wherein five officer allegedly “beat[ ] up and kick[ed]”
Plaintiff while on the ground, but participated as well. Pl.’s
Dep. at 199:25–201:5. Shortly after the alleged attack, when
Plaintiff had been placed in his SHU cell, Plaintiff claims
he informed Mere that he could not breathe and feared
he was having an asthma attack. Id. at 209:3–209:8; Pl.’s
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Decl. ¶ 28. A reasonable jury could conclude that knowledge
of a brutal assault on Plaintiff combined with Plaintiff's
statements shortly afterward that he couldn't breathe put Mere
on notice of an excessive risk to Plaintiff's health. Baumann
v. Walsh, 36 F. Supp. 2d 508, 513 (N.D.N.Y. 1999) (“[I]f [the
defendants] were aware of [p]laintiff's injuries and subsequent
pain at the time those injuries occurred, yet failed to provide
access to necessary medical care or treatment, then an Eighth
Amendment violation would be established despite the fact
that medical treatment was later received.”).
Likewise, a dispute as to material fact exists regarding
whether Mere reacted with indifference to this excessive risk.
While Mere claims Plaintiff was given his inhaler “within a
reasonable time” after allegedly saying he couldn't breathe,
Mere Mem. at 11–12, the record evidence Mere references to
support his argument that this fact is undisputed instead shows
the opposite. Mere cites to Plaintiff's deposition testimony,
yet in that testimony, Plaintiff states that when he informed
Mere he needed his inhaler, Mere said he would “look into
it” but never provided assistance, and Plaintiff did not get his
inhaler until hours after asking Mere (and then only when a
different officer arrived). Pl.’s Dep. at 209:3–209:8, 215:9–
215:16. Mere also cites the Germano Report, which states
that Plaintiff attempted to gain the attention of “the officer
assigned to the watch” but he was met with “negative results”
and did not get his inhaler until “approximately one hour
later.” Germano Report at 1. The Germano Report also found
that “[Plaintiff] made several complaints of rib pain and
difficulty breathing immediately following the incident” and
“involved staff failed to give [Plaintiff] proper medical care
immediately after the Use of Force occurred and the following
day.” Id. at 1, 4.
*15 Indeed, Mere's alleged failure to provide assistance to
an inmate struggling to breathe, shortly after participating
in a violent assault on that inmate, could reasonably be
inferred to be, not only indifference to a serious medical
need, but an intentional delay in access to medical care.
See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (finding
deliberate indifference to serious medical need standard met
where “prison guards ... intentionally deny[ ] or delay[ ]
access to medical care.”); Archer v. Dutcher, 733 F.2d 14,
16 (2d Cir. 1984) (denying summary judgment on claim
for medical indifference where some evidence suggested
defendants delayed emergency medical aid).
Because there are disputes as to material facts regarding
whether Mere was aware of an excessive risk to Plaintiff's
health, and whether Mere acted with deliberate indifference
to that risk, the Court denies Mere's motion for summary
judgment as to Plaintiff's claim for deliberate indifference to
a severe medical need.
3. Retaliation as to Mere
As stated above, to succeed on a claim of retaliation in
violation of the First Amendment, a plaintiff must show “(1)
the conduct cited as the cause for retaliation is protected; (2)
the defendant took adverse action against the plaintiff; and (3)
there was a causal connection between the protected conduct
and the adverse action.” Davis v. Goord, 320 F.3d 346, 325
(2d Cir. 2003); see also Gill v. Pidlypchak, 389 F.3d 379 (2d
Cir. 2004).
It is undisputed that the filing of a lawsuit constitutes
protected conduct. See Mere Mem. at 16. Mere instead argues
that his conduct does not constitute an adverse action and
there was no causal connection between the alleged conduct
and the protected activity. See id. at 16–18.
Plaintiff alleges three actions that could constitute retaliation
by Mere: Mere's alleged participation in the assault in the
SHU strip-frisk room, Mere's denial of adequate medical care,
and Mere's issuance of misbehavior reports.
a. SHU Strip-Frisk Assault
The Court has already determined that issues of material
fact exist regarding whether Mere participated in the alleged
assault in the SHU strip-frisk room. See supra Section IV(B)
(1). Similar to the assault allegedly perpetrated by Robideau,
the physical assault allegedly perpetrated by Mere is sufficient
to constitute an adverse action that would deter a similarly
situated individual of ordinary firmness from exercising
constitutional rights. See Baskerville v, 224 F. Supp. 2d at
732.
Mere argues that Plaintiff “offers only conclusory evidence”
to support his claim of a causal connection between Mere's
alleged actions and the Cowan Suit. See Mere Mem. at
14. While much of the evidence presented by Plaintiff
regarding Defendants’ knowledge of the Cowan suit is indeed
conclusory or speculative, Plaintiff has also provided direct
evidence of a causal link. A reasonable factfinder could
credit Plaintiff's account that an officer stated during the
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assault in the strip-frisk room that they wanted Plaintiff
to receive “special treatment because he filed a lawsuit
against one of our brothers,” Pl.’s Dep at 187:24–188:5;
200:8–200:17, and that Mere participated in that assault.
If believed, this is sufficient to create an inference of
causation between the protected activity and the alleged
assault, even if it is not conclusively established that Mere
himself is the one who made the statement. See Roland v.
McMonagle, No. 12-CV-6331, 2015 WL 5918179, at *5–
6 (S.D.N.Y. Oct. 9, 2015) (finding summary judgment on
retaliation claim unwarranted where evidence supported an
“inference of causation” between filing of grievances and
assault by multiple corrections officers because one had
“mocked [plaintiff] for filing a grievance during the alleged
attack”).
b. Denial of Adequate Medical Care
*16 A denial of medical care in the face of great pain or
need, as is alleged by Plaintiff and supported on the record,
constitutes an adverse action sufficient to establish a claim
for retaliation. See Abreu v. Lipka, 778 F. App'x 28, 33 (2d
Cir. 2019) (“[W]ithholding of medication could constitute
sufficiently adverse actions that would deter a prisoner of
‘ordinary firmness’ from exercising his rights.”).
As stated above, a reasonable factfinder could find that
Mere's alleged assault was motivated by Plaintiff's filing
of a suit against Cowan. Given that Plaintiff’ Grievance
states the denial of medical care initially occurred only thirty
minutes to an hour after Mere supposedly took part in an
assault on Plaintiff, Pl.’s Grievance at 6, which itself was
allegedly explicitly undertaken in retaliation for the filing of
the Cowan suit, see Pl.’s Dep at 187:24–188:5; 200:8–200:17,
a factfinder could reasonably infer that this adverse-action
was similarly motivated. Roland, 2015 WL 5918179, at *5–
6 (“[S]ummary judgment is unwarranted if the evidence can
support an inference of causation.”).
c. Issuance of Misbehavior Tickets
However, the Court finds that Mere's issuance of misbehavior
tickets does not constitute an adverse action sufficient to
deter a person of ordinary firmness from exercising his rights
because the tickets were eventually dismissed and Plaintiff
never suffered adverse consequences or repercussions. See
Birchenough Decl. Ex. O–Q; compare Berry v. Tremblay,
No. 20-CV-177, 2021 WL 1575951, at *4 (N.D.N.Y. Apr.
22, 2021) (“Courts in this district have routinely found the
mere filing of a misbehavior report alone, without evidence of
other repercussions, does not constitute an adverse action.”)
(collecting cases), with Hayes v. Dahlke, 976 F.3d 259, 272–
74 (2d Cir. 2020) (finding filing of false misbehavior report
constituted adverse action where inmate-plaintiff spent time
in keeplock as a result), and Gill v. Pidlypchak, 389 F.3d
379, 384 (2d Cir. 2004) (finding adverse action where inmate-
plaintiff spent three weeks in keeplock as a result of false
misbehavior report.).
Plaintiff argues that he did suffer consequences because,
while the misbehavior reports were eventually dismissed, he
was initially found guilty and had to appeal the charges. See
Pl.’s Resp. Mem. at 35. However, Plaintiff does not present
any specific consequences or repercussions he faced as a
result of the initial guilty finding or as a result of engaging in
the appeals process. See id.
Therefore, the Court denies Mere's motion for summary
judgment as to retaliation arising from Mere's alleged use of
force in the SHU strip-search room and Mere's alleged denial
of adequate medical care, but grants summary judgment as
to retaliation arising from Mere's issuance of misbehavior
reports.
4. Qualified Immunity as to Mere
In order to establish a defense of qualified immunity, a
defendant public official must show that one of two conditions
is satisfied, either “(a) the defendant's action did not violate
clearly established law, or (b) it was objectively reasonable
for the defendant to believe that his action did not violate such
law.” Gorman v. Rensselaer Cty., 910 F.3d 40, 45 (2d Cir.
2018); see also Green v. Montgomery, 219 F.3d 52, 59 (2d Cir.
2000). “The objective reasonableness test is met if ‘officers
of reasonable competence could disagree’ on the legality of
the defendant's actions.” Green, 219 F.3d at 59 (quoting Salim
v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996)). Summary judgment
should not be granted on the basis of qualified immunity due
to objective reasonableness “unless the defendant shows that
no reasonable jury, viewing the evidence in the light most
favorable to the Plaintiff, could conclude that the defendant's
actions were objectively unreasonable in light of clearly
established law.” Husain v. Springer, 494 F.3d 108, 131 (2d
Cir. 2007).
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*17 Mere does not argue that his actions did not violate
clearly established law. See Mere Mem. at 18–20. He instead
claims that his actions were objectively reasonable and he is
thus entitled to qualified immunity as to the claims against
him derived from his alleged use of excessive force and denial
of adequate medical care. Id. 7
Regarding the claims of excessive force and retaliation
stemming from the alleged assault in the SHU strip-frisk
room, Mere argues he is entitled to qualified immunity
because he “was not present during the Use of Force Event ...
and therefore it was objectively reasonable that Officer Mere
did not intervene in a Use of Force Event of which he had
no knowledge.” Id. at 18. However, Mere's presence and
participation in the strip-frisk room assault is a contested
and material issue of fact. Construing the record in the light
most favorable to Plaintiff, a jury could reasonably credit
Plaintiff's testimony that Mere participated in the assault and
thus reasonably find that it was not objectively reasonable
for Mere to believe his actions did not violate Plaintiff's
Eighth Amendment rights. See Jeanty v. Cty. of Orange, 379
F. Supp. 2d 533, 542 (S.D.N.Y. 2005) (denying summary
judgment where plaintiff's testimony created factual dispute
regarding defendants’ use of excessive force, thus “jury could
reasonably conclude that it was not objectively reasonable
for the individual defendants to believe that their actions did
not violate plaintiff's Eighth Amendment rights.”); Brewer v.
Kamas, 533 F. Supp. 2d 318, 331 (W.D.N.Y. 2008) (finding,
where plaintiff alleged corrections officer used excessive
force, that “if the facts as alleged by Plaintiff are established
at trial, no reasonable corrections officer could reasonably
believe he was not violating Plaintiff's constitutional rights.”).
Mere also argues he is entitled to qualified immunity
regarding claims of deliberate indifference to a serious
medical need and retaliation stemming from his alleged
failure to provide Plaintiff with his inhaler while on the
1:1 suicide watch. See Mere Mem. at 19. Mere asserts it
was objectively reasonable for him to not leave his post to
personally retrieve the inhaler and that “any reasonable officer
similarly assigned to a one-on-one watch would engage the
use of other DOCCS officers such as the SHU Roundsmen ...
and would rely upon their assistance to alert medical staff.” Id.
However, construing the evidence in the light most favorable
to Plaintiff, Mere's assertions are heavily disputed. Plaintiff
asserts that Mere participated in a vicious assault upon him in
the SHU and thus knew he had been severely beaten. Pl.’s Dep
at 200:8–200:17. Shortly after, Plaintiff claims he informed
Mere he could not breathe, thought he was having an asthma
attack, and needed his inhaler. Pl.’s Grievance at 6. Rather
than contacting other officers to get medical aid, as Mere
claims he did, Plaintiff asserts that Mere simply said he would
“look into” it, walked away, and never provided any sort of
assistance. Id. at 6–7; Germano Report at 1; Pl.’s Dep. at
209:3–209:8. Plaintiff claims he did not receive his inhaler
until hours later, when he was able to contact another officer.
Pl.’s Dep. at 215:11–215:16.
*18 Again, the test for objective reasonableness is met
“if officers of reasonable competence could disagree on the
legality of the defendant's actions.” Green, 219 F.3d at 59
(quotation marks omitted). Tellingly, Mere states that “any
reasonable officer” in his position would have engaged the
use of other officers to alert medical staff. Mere Mem. at 19
(emphasis added). Thus, Mere implies that if an officer acted
as Plaintiff asserts, and never alerted medical staff or sought
assistance, no officer of reasonable competence would agree
that it was legal or proper.
A reasonable jury could credit Plaintiff's account and find it
was not objectively reasonable for Mere to believe denying
an inhaler to an inmate who had stated he couldn't breathe,
especially after participating in an assault on that inmate,
did not violate Plaintiff's right to medical care. Thus, the
objective reasonableness of Mere's actions depends on a
determination of factual questions that cannot be answered
at the summary judgment stage of litigation. See Ellington
v. Whiting, 807 F. App'x 67, 69–70 (2d Cir. 2020) (denying
summary judgment on qualified immunity grounds where
material issues of fact existed regarding whether defendants
were aware of plaintiff's condition); Robinson v. Taylor, No.
16-CV-0285, 2017 U.S. Dist. LEXIS 137233 (N.D.N.Y. Aug.
24, 2017) (denying summary judgment on qualified immunity
grounds where “resolution of the objective reasonableness of
Defendants’ actions ‘depends on the determination of certain
factual questions that cannot be answered at this stage of the
litigation.’ ”) (quoting Denton v. McKee, 332 F. Supp. 2d 659,
666 (S.D.N.Y. 2004)).
C. Peck Motion for Summary Judgment
Peck moves for summary judgment on all claims against
him, which include a claim of excessive force in violation of
the Eighth Amendment, deliberate indifference to a serious
medical need in violation of the Eight Amendment, and
retaliation in violation of the First Amendment.
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1. Excessive Force as to Peck
Plaintiff does not oppose Peck's motion regarding his claims
for excessive force. See Pl.’s Resp. Mem. at 14. Thus, the
Court grants Peck's motion for summary judgment regarding
any claims of excessive force.
2. Deliberate Indifference to a
Serious Medical Need as to Peck
To establish an Eighth Amendment violation due to deliberate
indifference to a serious medical need, an inmate must
establish both an objective and subjective prong. St. Clair
Jones v. Lamont, 379 Fed. Appx. 58, 59 (2d Cir. 2010).
Peck argues that he is entitled to judgment as a matter of law
under both the objective and subjective prongs.
a. Objective Prong
The objective prong of the deliberate indifference standard
requires that “the alleged deprivation ... be sufficiently
serious.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.
2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir. 1996)). This determination in turn requires two
further inquiries. Salahuddin v. Goord, 467 F.3d 263, 280,
279 (2d Cir. 2006). The first inquiry is “whether the prisoner
was actually deprived of adequate medical care.” Id. This
inquiry turns on whether the defendant acted “reasonably”
in response to an inmate's health risk or whether he failed
“to take reasonable measure in response to a medical
condition.” Id. at 279–80. The second inquiry is whether
the inadequacy in medical care is sufficiently serious. Id.
at 280. “[I]f the unreasonable medical care is a failure to
provide any treatment for an inmate's medical condition,
courts examine whether the inmate's medical condition is
sufficiently serious.” Id.
*19 Peck does not dispute that Plaintiff's injuries were
sufficiently serious as required by the second inquiry of the
objective prong. See Peck Reply. Mem. at 4. Peck instead
argues that the record evidence is insufficient to meet the first
inquiry of the objective prong because he reacted reasonably.
Peck Mem. at 14. Instead, Peck argues he was not aware of the
use of force against Plaintiff or Plaintiff's physical condition,
or that Plaintiff was having trouble breathing. Peck Mem. at
14. Peck further argues that, on the one occasion Plaintiff
asked if he could have his inhaler, Peck acted reasonably by
informing medical staff and contacting a supervisor. Id. at 14–
15.
Plaintiff contends Peck must have known of the use of force
against him, and thus knew of his injuries, because that
morning “another officer in the SHU told Lewis he would
not receive breakfast because he assaulted another officer.”
Pl.’s Resp. Mem. at 31. The Court finds that the mere fact
that a different officer in the SHU, on duty at a different time
of day, knew of the use-of-force incident involving Plaintiff,
is entirely too speculative and conclusory to create a triable
issue of fact as to whether Peck himself knew of the incident.
See Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020)
(“[M]ere conclusory allegations, speculation or conjecture
will not avail a party resisting summary judgment.”). Even
if the other officer's knowledge were imputed to Peck, the
other officer seemed to believe Plaintiff was the assailant, and
would not necessarily have known of any injuries Plaintiff
had received. Plaintiff's Grievance at 7A (stating the officer
said “no food for you because you assaulted a [sic] officer”).
However, Plaintiff offers more than the speculative assertion
above to support his claim that Peck knew of a serious risk
to his health. Plaintiff testified that he informed Peck he was
having a hard time breathing and was having an asthma attack,
but Peck did not do anything to help. Pl.’s Dep. at 263:16–
24; Pl.’s Grievance at 7B; Germano Report at 1–2. Plaintiff
further alleged that he requested his inhaler from Peck again,
after an hour with no assistance, and Peck told him he would
“just have to wait.” Pl.’s Grievance at 7B; Pl.’s Decl. ¶¶43–
44 8 . According to Plaintiff, he did not receive medical aid
until an additional hour and a half had passed. Pl.’s Grievance
at 7C. Additionally, a reasonable jury could take into account
the Germano Report, which found Peck exhibited “a lack of
care custody and control by departmental standards,” to find
Peck did not act reasonably.
*20 Further, the record belies Peck's assertion that he acted
reasonably because he contacted a supervisor in response to
Plaintiff's request. Notably, Peck does not cite to any record
material to support this factual assertion. See Peck Mem. at
14. Indeed, Peck denied during his deposition that he ever
requested medical attention for Plaintiff, Peck Dep. at 43:2–
43:8, Peck testified that when he contacted a roundsmen about
getting a supervisor, he did not recall mentioning any need for
medical attention and “[t]he only thing [he] wanted to have
the roundsman do was to have a sergeant come down,” id. at
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46:14–47:2, Peck also testified he did not recall ever telling
Sergeant Tamer that Plaintiff had requested medical attention
and did not contact medical directly at any point, id. at 57:5–
57:23.
Construing the evidence in the light most favorable to
Plaintiff, the Court concludes that a reasonable jury could
find Peck knew Plaintiff was in severe medical need due to
his inability to breathe, but did not act to obtain aid, and
thus did not act reasonably in response to Plaintiff's requests.
Therefore, Peck is not entitled to summary judgment under
the objective prong of the deliberate indifference standard.
b. Subjective Prong
The subjective prong of the deliberate indifference standard
requires that a defendant prison official act with a sufficiently
culpable state of mind. They must “know[ ] of and disregard[ ]
an excessive risk to inmate health or safety.” Hill, 657 F.3d at
122 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
In other words, they must “act[ ] or fail[ ] to act ‘while
actually aware of a substantial risk that serious inmate harm
will result.’ ” Acosta v. Thomas, 837 Fed. Appx. 32 (2d Cir.
2020) (quoting Salahuddin, 467 F.3d at 280).
Peck argues he did not know of and disregard an excessive
risk to inmate health or safety because he was not informed
of Plaintiff's physical condition, he did not notice any injuries
upon beginning his assignment, and that Plaintiff testified that
the extent of his medical request was for an inhaler because
he was having an asthma attack. See Peck Mem. at 15–16.
However, as stated above, a reasonable jury could credit
Plaintiff's account and find that he informed Peck he was
having an asthma attack and was unable to breathe. Pl.’s Dep.
at 263:16–24; Pl.’s Grievance at 7B; Germano Report at 1–
2. Given Peck's deposition testimony, a reasonable factfinder
could likewise find that Peck did not undertake any action to
provide medical aid in response to Plaintiff's reports that he
could not breathe. Peck Dep. at 43:2–8; 46:14–47:2; 57:5–23.
Thus, a factfinder could find Peck was aware of an excessive
risk to Plaintiff's health, and that Peck disregarded it by failing
to take any action to provide aid. 9 See Warren v. City of New
York Dep't of Corr. Med. Staff, No. 17-CV-1125, 2021 WL
1163105, at *11 (E.D.N.Y. Mar. 26, 2021) (denying summary
judgment where material dispute of fact existed regarding
whether defendant provided plaintiff medical attention in
response to asthma attack); Ennis v. Davies, No. 87-CV-1465,
1990 WL 121527, at *3 (S.D.N.Y. Aug. 14, 1990) (holding
that a jury could reasonably find that inmate's request for
his asthma medication was sufficient to make the defendants
aware of a serious medical need and failure to provide
medication constituted deliberate indifference).
*21 Thus, because there are disputes as to material facts
regarding whether Peck acted reasonably and whether he
knew of and acted with reckless disregard regarding an
excessive risk to Plaintiff's health, the Court denies Peck's
motion for summary judgment as to Plaintiff's claim for
deliberate indifference to a serious medical need.
3. Retaliation as to Peck
Plaintiff alleges Peck withheld proper medical treatment and
filed a false misbehavior report against him as retaliation for
his filing of the lawsuit against Cowan. Pl.’s Resp. Mem. at
36.
To succeed on a claim of retaliation in violation of the First
Amendment, a plaintiff must show “(1) the conduct cited as
the cause for retaliation is protected; (2) the defendant took
adverse action against the plaintiff; and (3) there was a causal
connection between the protected conduct and the adverse
action.” Davis, 320 F.3d at 325; see also Pidlypchak, 389
F.3d at 380. In determining whether a causal connection exists
between a protected activity and a prison official's actions, a
court may consider several factors including “(i) the temporal
proximity between the protected activity and the alleged
retaliatory act; (ii) the inmate's prior good disciplinary record;
(iii) vindication at a hearing on the matter; and (iv) statements
by the defendant concerning his motivation.” Baskerville, 224
F. Supp. 2d at 732 (citing Colon, 58 F.3d at 872–73 (2d Cir.
1995)).
Peck argues there is insufficient evidence on the record to
establish a causal connection between his alleged actions and
any retaliatory animus. See Peck Mem. at 22. In response,
Plaintiff asserts that there is sufficient circumstantial evidence
to infer a causal connection due to the temporal proximity
between the protected conduct and Peck's alleged retaliatory
conduct and the due to fact that Bare Hill is close
geographically to Franklin, the facility where Cowan worked.
See Pl.’s Resp. Mem. at 38–39.
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Regarding temporal proximity, the Court cannot agree that
this factor meaningfully supports a causal connection in this
case. Peck's alleged actions took place around ten months
after Plaintiff filed the Cowan Suit. Noonan Decl. Ex. 13.
While the Second Circuit “has not drawn a bright line to
define the outer limits” of temporal proximity in retaliation
cases, Gorman–Bakos v. Cornell Co-op Ext. of Schenectady
Cty., 252 F.3d 545, 554 (2d Cir. 2001), a gap of ten months
is somewhat longer than most that are found to support a
causal connection. See, e.g., Gorman-Bakos, 252 F.3d at
554 (finding five-month gap sufficiently short to support
inference of causal connection); Espinal, 558 F.3d at 129
(finding six-month gap sufficiently short). However, it is
relevant that the Cowan Suit was ongoing at the time of Peck's
alleged retaliatory actions. See Cruz v. Lee, No. 14-CV-4870,
2016 WL 1060330, at *7 (S.D.N.Y. Mar. 15, 2016) (finding
temporal proximity sufficient to support retaliation for filing
lawsuit where lawsuit was ongoing). Given that the Cowan
Suit was ongoing, but nothing occurred in the lawsuit near
in time to the alleged retaliatory acts, 10 and the suit was
filed ten months prior to the alleged acts, the Court finds this
factor does not strongly favor, nor disfavor, an inference of
causation.
*22 Militating against a finding of causal connection,
Plaintiff's prior disciplinary record could not be categorized
as “good.” It contains multiple infractions for violating direct
orders and harassment, amongst others. See Mitchell Decl.
Ex. D. Also, Plaintiff was eventually found guilty of the
misbehavior ticket issued by Peck. Pl.’s SMF at 71.
However, most significantly, Plaintiff's grounds for alleging
a causal connection are too conclusory and speculative
to create a triable issue of fact regarding Peck's alleged
retaliatory motive. Plaintiff's main argument is that “there is
ample evidence to conclude that Moving Defendants knew
other officers at Franklin – a facility located in the same
small town.” Pl.’s Resp. Mem. at 39. Namely, Plaintiff
references Peck's deposition testimony that when he goes to
trainings, there would be officers from Franklin and Upstate
Correctional there as well, Peck Dep. at 115:12–115:22, and
that Defendants Kingston and Mere stated they would run
into officers from Franklin at times, Kingston Dep. at 92:10–
92:21, Mere Dep. 18:16–19:2.
Courts must be “careful to require non-conclusory
allegations” when dealing with prisoner retaliation claims
because they are “ ‘easily fabricated,’ and accordingly ‘pose a
substantial risk of unwarranted judicial intrusion into matters
of general prison administration.’ ” Bennett v. Goord, 343
F.3d 133, 137 (2d Cir. 2003). Plaintiff did not file a suit
or complaint against Peck himself. The mere fact that Peck
works in the same general area as an officer against whom
Plaintiff filed a lawsuit, and thus conceivably could have
met that officer or others who know him, and in turn could
have potentially acted in retaliation for a suit against that
officer, is entirely too speculative and conclusory to create
an issue of material fact. Even where officers have worked
together in the same facility, allegations that one retaliated
on behalf of another have generally been found conclusory
and insufficient to withstand summary judgment absent other
evidence of retaliatory motive. See Faulk, 545 F. App'x at
59 (finding allegations too conclusory to withstand summary
judgment because “no evidence suggest[ed] that they were
motivated by, or even aware of, [the] grievance,” because
defendants were not themselves named in the grievance
and allegations they had retaliated on behalf of another
officer in the same facility were merely “conclusory”); Wright
v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (upholding
summary judgment where plaintiff alleged retaliation for
filing complaint regarding acts of other inmates and officials
at same facility, but did not name defendant). This contrasts
with cases where courts have found disputes of material fact
to exist, even though a defendant was not directly named in a
grievance or suit, because a direct connection was established
between the defendant and the officer who was the target of
the suit, or the defendant was alleged to have made statements
referencing the grievance or suit. See Colon v. Coughlin,
58 F.3d 865 (2d Cir. 1995) (“If this circumstantial evidence
represented the sum total of Colon's proof, we might be
inclined to affirm the grant of summary judgment ... [but
Colon] also presents direct evidence of retaliation, namely,
defendant Bezio's alleged admission of the existence of
a retaliatory scheme.”); Roland v. McMonagle, No. 12-
CV-6331, 2015 WL 5918179, at *5 (S.D.N.Y. Oct. 9, 2015)
(finding evidence sufficient to support inference of retaliatory
motive where one defendant lived with the two officers who
were the subject of the past grievance and “most significantly,
[plaintiff] testified that a Defendant mocked him for filing
grievances during the alleged attack”); Farid v. Goord, 200
F. Supp. 2d 220, 237 (W.D.N.Y. 2002) (finding issue of
triable fact existed as to whether false misbehavior report
was motivated by complaint against other officer where
defendant knew of the complaint “well before the filing of the
Misbehavior Report”).
*23 Because Plaintiff's allegations that Peck knew of and
was motivated by the Cowan Suit are entirely conclusory
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and speculative, the Court grant's Peck motion for summary
judgment as to Plaintiff's claims of retaliation.
D. Kearney and Kingston Motion for Summary
Judgment
Defendants Kearney and Kingston argue they are entitled
to summary judgment as to Plaintiff's claims for excessive
force in violation of the Eighth Amendment, Retaliation in
violation of the First Amendment, and are entitled to qualified
immunity. See Kearney & Kingston Mem. at 7.
1. Excessive Force and Personal
Involvement as to Kearney and Kingston
Defendants Kearney and Kingston argue that they are entitled
to summary judgment as to Plaintiff's claim of excessive
force because the record fails to establish that they were
personally involved in the constitutional violation. Id. at 8–13.
Plaintiff responds by arguing that personal involvement may
be established by showing a defendant facilitated or attempted
to cover up a constitutional violation. Pl.’s Resp. Mem. at 21–
22.
“Because vicarious liability is inapplicable to ...§ 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) “To
hold a state official liable under § 1983, a plaintiff must
plead and prove the elements of the underlying constitutional
violation directly against the official without relying on a
special test for supervisory liability.” Tangreti v. Bachmann,
983 F.3d 609, 620 (2d Cir. 2020).
Plaintiff cites several cases holding that if a defendant
attempts to facilitate or cover up a constitutional violation,
that is sufficient to find that defendant personally participated
in the violation. See, e.g., Edwards v. Annucci, No. 17-
CV-5018, 2019 WL 1284295, at *7 (S.D.N.Y. Mar. 20,
2019) (“A prisoner's well-pleaded allegation that a defendant
‘fil[ed] a false report to his supervisors in order to cover
up’ constitutional violations will ‘give rise to a plausible
inference’ that the defendant ‘was personally involved in
the purported constitutional violations.’ ”) (quoting Randle
v. Alexander, 960 F. Supp. 2d 457, 478 (S.D.N.Y. 2013)).
Additionally, this Court held in response to Kearney and
Kingston's Motion to Dismiss, Dkt. No 79, that these
allegations of facilitation and cover-up were sufficient to
establish personal involvement, See Dkt. No. 100 (“Order
on Motion to Dismiss”) at 8–9. This would imply that if
the record now presented sufficient evidence that Defendants
facilitated or attempted to cover up the use of excessive force,
a reasonable jury could find they personally participated in
the Eighth Amendment violation.
However, subsequent to the decisions Plaintiff cites and
this Court's Order on Motion to Dismiss, the Second
Circuit clarified the requirements for personal involvement in
Tangreti.
In Tangreti, an inmate filed suit under 42 U.S.C. § 1983
alleging a prison supervisor displayed deliberate indifference
to a risk of sexual abuse because the supervisor was
grossly negligent in supervising the abusing officers. Id.
at 616. The Second Circuit found that supervisory liability
of this type violated the standard set forth in Iqbal, and
that “a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has
violated the Constitution.” Id. at 616. Further, “ ‘[t]he factors
necessary to establish a [§ 1983] violation will vary with
the constitutional provision at issue’ because the elements of
different constitutional violations vary.” Id. at 618 (quoting
Iqbal, 556 U.S. at 676).
*24 Thus, while previously many court's only required a §
1983 Plaintiff to establish a “tangible connection” between a
defendant's acts and injuries suffered, see Miller v. Annucci,
No. 919-CV-0030, 2019 WL 2370295 (N.D.N.Y. June 5,
2019) (Kahn, J.); Austin v. Pappas, No. 04-CV-7263, 2008
WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008); in Tangreti, the
court required the plaintiff to show “that [defendant] violated
the Eighth Amendment by [defendant's] own conduct” and
establish the elements of her Eighth Amendment claim
directly against the defendant. Tangreti, 983 F.3d at 619.
While Plaintiff's allegations regarding excessive force against
Kearney and Kingston do not allege supervisory liability, the
reasoning in Tangreti applies with equal force here: Plaintiff
must show that Defendants violated the Eighth Amendment
by their own conduct, and establish the elements of his Eighth
Amendment claim for excessive force 11 directly against
Kearney and Kingston rather than relying on the conduct
of other officers. See Quintin v. Cty. of Nassau, No. 18-
CV-5852, 2022 WL 888950, at *3 (E.D.N.Y. Mar. 25, 2022)
(applying Tangreti outside of the supervisory context and
stating that “it is well-settled that to establish liability under
Section 1983, a plaintiff must ‘plead and prove that each
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Government-official defendant, through the official's own
individual actions, has violated the Constitution’ ” (quoting
Tangreti, 983 F.3d at 618)); Karelefsky v. Brann, No. 20-
cv-9485, 2022 WL 624424, at *2 (S.D.N.Y. Mar. 1, 2022)
(observing that to find personal involvement and “hold a
state official liable under § 1983, a plaintiff must plead and
prove the elements of the underlying constitutional violation
directly against the official.” (citing Tangreti, 983 F.3d at
620)).
As stated above, to establish an Eighth Amendment claim of
excessive force, a plaintiff must show both an objective and
subjective component. “The objective component of a claim
of cruel and unusual punishment focuses on the harm done, in
light of ‘contemporary standards of decency ... when prison
officials use force to cause harm maliciously and sadistically,
‘contemporary standards of decency always are violated.’ ”
Wright v. Goord, 554 F.3d 255, 268–69 (2d Cir. 2009). The
subjective component requires a plaintiff to show a defendant
official had “a sufficiently culpable state of mind.” Hayes v.
Dahlke, 976 F.3d 259, 274 (2d Cir. 2020); see also Hudson v.
McMillian, 503 U.S. 1, 7 (1992).
*25 A corrections officer who knowingly facilitates an
assault on an inmate could be found to have directly,
through their own actions, deprived an inmate of his right
to be free from cruel and unusual punishment by causing
physical bodily harm in the same way an officer who directly
participates in the assault deprives an inmate of such rights,
and thus the facilitating officer has “used force” to cause
harm maliciously. C.f. Smith v. Levine, 510 F. App'x 17,
20 (2d Cir. 2013) (finding complaint to have sufficiently
alleged defendant's personal participation in constitutional
violation where allegations created “obvious inference” that
defendant's action was a “precursor” to the violative act).
However, an officer who attempts to cover up an assault
after the fact, while potentially committing other violations,
may not have personally participated in cruel and unusual
punishment in the same way such that a plaintiff could
establish the elements of an excessive force claim against
them directly.
Thus, because it is admitted neither Kearney nor Kingston
participated directly in the alleged assaults on Plaintiff, the
question before the Court is whether there is sufficient
evidence on the record for a reasonable jury to conclude that
Defendants knowingly facilitated the assault.
Plaintiff argues there is evidence showing Kearney made up
the phone infraction and Plaintiff's request to use the phones
out of whole cloth, thus facilitating the assault by establishing
a pretext to transfer Plaintiff to the SHU. Pl.’s Resp. Mem.
at 23. After being shown a picture of Plaintiff, Kearney
informed Hanson that Plaintiff had asked to use the phone the
day before in violation of his cube confinement restrictions.
Pl.’s Resp. Mem. at 23; Kearney & Kingston SMF ¶ 15–
16. Plaintiff disputes that he was the inmate who approached
Kearney to make the call, Pl.’s SMF at 4; Pl.’s Resp. Mem.
at 22, and there is evidence on the record that could allow a
reasonable factfinder to credit Plaintiff's account. Hanson did
not remember ever showing Kearney a picture of Plaintiff.
Pl.’s Resp. Mem. at 22. Additionally, evidence on the record
indicates that another inmate was using Plaintiff's ID to make
phone calls during the relevant time, Mitchell Decl. Ex. O
(“Germano Deposition”) at 76, and Plaintiff was found not
guilty of the misbehavior ticket accusing him of making
phone calls in violation of cube restrictions, Mitchell Decl.
Ex. K at 59.
Making all reasonable inferences in Plaintiff's favor, a
factfinder could reasonably credit his account and conclude
that he did not ask Kearney for permission to use the phone on
April 22, 2016. A reasonable factfinder could thus conclude
Kearney was lying when, after seeing a picture of Plaintiff, he
told Hanson Plaintiff was the one who asked to use the phone,
and could infer from this dishonesty that Kearney did so to
facilitate, or aid in the facilitation of, Plaintiff's transfer to the
SHU.
Plaintiff alleges Kingston facilitated the excessive use of
force by initiating Plaintiff's transfer knowing and intending
that Plaintiff be assaulted. See Pl.’s Resp. Mem. at 24. The
alleged basis for the initial transfer of Plaintiff to the SHU
was Kingston's review of Plaintiff's phone log that showed
significant usage while Plaintiff was on cube confinement.
Kingston SMF ¶ 24. It is undisputed that Plaintiff's phone
log did indeed show significant usage while Plaintiff was
restricted from using the phone. See Mitchell Decl. Ex
M (“Phone Log”). However, the record establishes that
Kingston reviewed the phone logs 3 out of 5 days every
week he worked, Kingston Dep. at 38:9–16, would write a
misbehavior report “as soon as he knew” of multiple improper
calls made over more than one day, id., at 49:16–50:12, and
would typically find out about such a violation within a day
or two of it occurring, 50:13–50:18. However, despite this
regular review and usual habit of writing misbehavior reports
immediately, Kingston did not write a misbehavior report for
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Plaintiff until after 18 calls had accrued over the course of 8
days. Pl.’s SMF ¶ 60.
*26 A reasonable jury could conclude that Kingston did
indeed notice the phone infraction prior to April 23, 2016,
as he testified he generally would have, but did not write a
misbehavior ticket immediately as was his usual practice. A
reasonable jury could further infer the reason for delay was
to facilitate Plaintiff's transfer to the SHU as a specific time
on a specific day. Further, if a jury were to believe Plaintiff's
account that he was assaulted on April 26 during and
immediately after his transfer, it would not be unreasonable to
infer that Kingston initiated the transfer on that day in order
to facilitate the assault.
2. Retaliation as to Kearney and Kingston
Defendants argue that there is insufficient evidence on the
record to establish that their actions were sufficiently adverse
or that they were motivated by retaliation for Plaintiff's
filing of the Cowan Suit. Kearney & Kingston Mem. at 13.
Defendants also argue they would have undertaken the actions
even in the absence of the protected conduct. Id.
a. Adverse Action
Plaintiff alleges that Kearney retaliated against him by
supplying false allegations that supported a false misbehavior
ticket and co-signing that ticket, and that both Kearney
and Kingston retaliated by facilitating a retaliatory transfer
knowing and intending that Plaintiff be assaulted. Pl.’s Resp.
Mem. at 35.
The Court holds that, because Plaintiff was found innocent of
the allegations in Kearney's allegedly false ticket, Pl.’s SMF
¶ 62, and thus suffered no adverse effects due to its issuance,
this does not constitute an adverse action. See Tremblay, 2021
WL 1575951, at *4.
However, a retaliatory transfer to a facility with more
restrictions constitutes an adverse action sufficient to
discourage other inmates form exercising their rights, see
Miller, 2019 WL 2370295, at *10, especially if that transfer
is undertaken with the purpose of facilitating an assault upon
an inmate, Abreu, 778 F. App'x at 33 (“[A] severe beating,
false misbehavior reports, or the withholding of medication
could constitute sufficiently adverse actions that would deter
a prisoner of ‘ordinary firmness’ from exercising his rights.”).
Thus, if a factfinder finds Defendant's facilitated Plaintiff's
transfer to the SHU, intending that he be assaulted during
said transfer, a reasonable jury could conclude they had
undertaken adverse actions sufficient to support a claim of
retaliation.
b. Causal Connection
Courts must be “careful to require non-conclusory
allegations” when dealing with prisoner retaliation claims
because they are “ ‘easily fabricated,’ and accordingly ‘pose a
substantial risk of unwarranted judicial intrusion into matters
of general prison administration.’ ” Bennett, 343 F.3d at 137.
Plaintiff's main basis for asserting a retaliatory motive is that
Defendants work in the same general area as an officer against
whom Plaintiff filed a lawsuit, Cowan, and thus conceivably
could have met him or others who know him. See Pl.’s Resp.
Mem. at 39.
While the Court found this was insufficient to create an issue
of material fact regarding retaliatory motive as to Defendant
Peck, the Court finds differently with regard to Defendants
Kearney and Kingston. This is so because, on summary
judgment, the Court must review the record as a whole and
make all favorable inferences in favor of the nonmoving party.
See Jasco Tools, Inc. v. Dana Corp., 574 F.3d 129, 152 (2d Cir.
2009) (stating that a court considering a summary judgment
motion must view the record as a whole and “disregard all
evidence favorable to the moving party that the jury is not
required to believe” (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 135 (2000))); Howley v. Town of
Stratford, 217 F.3d 141, 151 (2d Cir. 2000) (“In determining
the appropriateness of summary judgment, the court should
not consider the record solely in piecemeal fashion ... for a
jury ... would be entitled to view the evidence as a whole.”).
*27 On the record before the Court, it has already been
determined that a reasonable factfinder could conclude that
Kearney and Kingston acted to facilitate Plaintiff's transfer to
the SHU for the purpose of his assault and that during and
immediately after that transfer Plaintiff was indeed assaulted
by other Corrections Officers who specifically stated they
were doing so in retaliation for his filing of the Cowan Suit.
Thus, a reasonable jury could infer that Defendants acted with
a similar retaliatory motive.
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c. Action Undertaken in Absence of Protected Conduct
Even if a Plaintiff establishes that he engaged in protected
activity, the defendant undertook an adverse action, and that
there is a causal relationship, a defendant may still defeat
liability if they can show by preponderance of the evidence
that they would have taken the adverse action against the
plaintiff “even in the absence of the protected conduct.”
McRae v. Fischer, No. 9:17-CV-00146, 2017 WL 3535298,
at *7 (N.D.N.Y. July 14, 2017) (quoting Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
“[I]f taken for both proper and improper reasons, state action
may be upheld if the action would have been taken based on
the proper reasons alone.” Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996).
Defendants argue that, because it is undisputed the phone
log for Plaintiff's PIN showed numerous calls were made
in violation of his cube restriction, there was an undisputed
legitimate basis for their transfer of Plaintiff to the SHU,
and thus there is no dispute as to any material fact
regarding whether they would have undertaken the same
action regardless of Plaintiff filing the Cowan Suit. Kearney
& Kingston Mem. at 18. However, Plaintiff's claim is not
merely that Defendants transferred him, but that they did so
at a specific time and date in order to facilitate his assault
at the hands of other officers. See Pl.’s Resp. Mem. at 35,
40. Despite the phone logs, a reasonable jury could find
that Defendants undertook their retaliatory actions on April
23, 2016 to facilitate an assault, and would not have done
so absent a retaliatory motive. Indeed, Kingston's testimony
indicates that, under most circumstances, an inmate who had
made calls like Plaintiff was accused of doing would have
been transferred much sooner. See Kingston Dep. 49:16–
50:12.
3. Supervisory Liability Claims as to Kearney and Kingston
Kearney and Kingston argue that Plaintiff's claims for
supervisory liability should be dismissed because they are
no longer viable following the Second Circuit's decision in
Tangreti. Kearney & Kingston Mem. at 20. Plaintiff does not
contest this assertion, see Pl.’s Mem, and the Court agrees.
Therefore, Kearney and Kingston 12 are granted summary
judgment on any claims pressed against them based on
supervisory liability.
4. Qualified Immunity as to Kearney and Kingston
In order to establish a defense of qualified immunity, a
defendant public official must show that one of two conditions
is satisfied, “(a) the defendant's action did not violate clearly
established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate
such law.” Gorman v. Rensselaer Cty., 910 F.3d 40, 45
(2d Cir. 2018); see also Green, 219 F.3d at 59. A public
official's actions are objectively reasonable if “ ‘officers of
reasonable competence could disagree’ on the legality of the
defendant's actions.” Green, 219 F.3d at 59 (quoting Salim,
93 F.3d at 91). Summary judgment should not be granted on
basis of qualified immunity due to objective reasonableness
“unless the defendant shows that no reasonable jury, viewing
the evidence in the light most favorable to the Plaintiff,
could conclude that the defendant's actions were objectively
unreasonable in light of clearly established law.” Husain, 494
F.3d at 131.
*28 To establish qualified immunity, Kearney and Kingston
rely on their previous arguments that their conduct did
not, as a matter of law, violate Plaintiff's rights, asserting
that therefore their actions were objectively reasonable and
they are entitled to qualified immunity. See Kearney &
Kingston Mem. at 22. However, the Court has found that a
reasonable jury could conclude that both or either Defendant
facilitated Plaintiff's transfer for the purposes of Plaintiff
being assaulted, in violation of his Eighth Amendment right
to be free of cruel and unusual punishment and in retaliation
for his filing of the Cowan suit. See supra Sections IV(D)(1)–
(2). Because inmates have a clearly established right not to
be retaliated against for exercise of First Amendment rights,
Burton v. Lynch, 664 F. Supp. 2d 349, 368-69 (S.D.N.Y.
2009) (“[A] claim of government retaliation for the exercise
of First Amendment rights ... alleges the violation of a
clearly established right.”), and have a clearly established
right to be free from cruel and unusual punishment, and
excessive, malicious use of force, Green, 219 F.3d at 59 (“It
is beyond dispute that the right to be free from excessive
force has long been clearly established.”), a reasonable be jury
could likewise conclude that Defendants’ actions, allegedly
facilitating these violations, were objectively unreasonable in
light of clearly established law.
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Thus, the Court finds Defendants Kearney and Kingston are
not entitled to qualified immunity regarding Plaintiff's claims
of excessive force and retaliation against them.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant Robideau's Motion for Summary
Judgment, Dkt. No. 136, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Robideau
for excessive force under the Fourth and Fourteenth
Amendments, deliberate indifference to serious medical need
under the Eighth Amendment, and any claims alleging
supervisory liability are hereby DISMISSED from this
action; Plaintiff's claims against Robideau for excessive
force under the Eighth Amendment and retaliation survive
Defendant Robideau's Motion; and it is further
ORDERED, that Defendant Mere's Motion for Summary
Judgment, Dkt. No. 138, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Mere
for excessive force under the Fourth and Fourteenth
Amendments, retaliation in so far as it relates to issuance
of misbehavior tickets, and supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against Mere
for excessive force under the Eighth Amendment, medical
indifference under the Eighth Amendment, and retaliation
related to use of force in the strip-frisk room and denial of
adequate medical care survive Defendant Mere's Motion; and
it is further
ORDERED, that Defendant Peck's Motion for Summary
Judgment, Dkt. No. 137, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Peck for
excessive force under the Fourth, Fourteenth, and Eighth
Amendments, retaliation, and supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Peck for medical indifference under the Eighth Amendment
survive Defendant Peck's Motion; and it is further
ORDERED, that Defendant Kearney's Motion for Summary
Judgment, Dkt. No. 139, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Kearney
for excessive force under the Fourth and Fourteenth
Amendments and for supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Kearney for excessive force under the Eighth Amendment
and for retaliation survive Defendant Kearney's Motion; and
it is further
ORDERED, that Defendant Kingston's Motion for Summary
Judgment, Dkt. No. 139, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Kingston
for excessive force under the Fourth and Fourteenth
Amendments and for supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Kingston for excessive force under the Eighth Amendment
and for retaliation survive Defendant Kingston's Motion; and
it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 991729
Footnotes
1 The Amended Complaint also contained claims against Bruce Yelich, but all such claims were dismissed
pursuant to the Court's order on the Motion to Dismiss filed by Kearney, Kingston, and Yelich. See Dkt. Nos.
79, 100.
2 Because Plaintiff has set forth his response to Defendants’ statements of material facts in the same document
as his own statement of material facts, the Court will cite to the sections responding to Defendants SMFs
(pages 1–42) by their page number, but will cite to the sections setting forth Plaintiff's own material facts
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(pages 43–54) by their paragraph designation in order to most clearly designate which of Plaintiff's allegedly
material facts are being referenced.
3 Robideau also argues for the first time in his reply papers that “[d]riving the van is an exclusive duty of the
Rounds 1 position, or of the Rounds 2 position if Rounds 1 is unavailable” and “Robideau without dispute
was the only available Rounds person to drive the van at the time of Lewis’ transfer because his partner,
the Rounds 2, was not available.” Robideau Reply Mem. at 3. The Court will disregard these arguments and
alleged facts because, as they were not included in Robideau's initial motion, Plaintiff has not had a chance
to appropriately respond. See In re Various Grand Jury Subpoenas, 235 F. Supp. 3d 472, 485 (S.D.N.Y.
2017) (“The law in the Second Circuit is clear that arguments or requests for relief raised for the first time in
reply briefs need not be considered. Generally, a court does not consider issues raised in a reply brief for
the first time because if a party raises a new argument in a reply brief the opposing party may not have an
adequate opportunity to respond to it.”) (citations omitted).
4 For the first time in his reply, Robideau makes the argument that he has conclusively established he was not
in the SHU strip-frisk room during the assault because Nurse Harmon testified there were only two officers
present in the room, and that Robideau had to find his partner for their assignment at 3:30 P.M. Robideau
Reply Mem. at 4, 7. Because these alleged facts and arguments are presented for the first time in Robideau's
reply memorandum, and Plaintiff has not had an appropriate chance to respond, the Court will disregard
them. See supra note 2.
5 The court notes that factors (ii) and (iii) are generally employed when an inmate claims a prison disciplinary
or administrative action is taken in retaliation, see, e.g., Faulk v. Fisher, 545 F. App'x 56, 59 (2d Cir. 2013);
Morris v. Rabsatt, 2012 WL 976035, at *7 (N.D.N.Y. 2012), and are of dubious relevance when an inmate
claims security officers have physically assaulted him.
6 It is undisputed that Mere was not present in the van during the alleged assault on Plaintiff during his transfer
to the SHU. Pl.’s SMF at 18.
7 Mere also argues he is entitled to qualified immunity as to any claims arising from his issuance of misbehavior
tickets. See Mere Mem. at 20. However, because the Court has already granted summary judgment for these
claims, the Court will not address this argument.
8 Peck argues that Plaintiff has relied “almost exclusively on his Declaration to invent questions of fact” in
response to Peck's motion. Peck Reply Mem. at 5. Peck further argues that the Court should disregard the
assertions Plaintiff makes in his declaration because they contradict Plaintiff's deposition testimony and are
“replete with inconsistencies.” Id. at 2. The Court disagrees on both counts. Plaintiff's material assertions
that he informed Peck he was having trouble breathing and requested his inhaler multiple times find support,
not only in Plaintiff's Declaration, but in both his deposition testimony and the Germano Report. Pl.’s Dep. at
263:16–24; Pl.’s Grievance at 7B. Further, while it is true that a declaration made in response to a motion for
summary judgment may be disregarded to the extent it contradicts past deposition testimony, the two must
be “actually contradictory.” Palazzo v. Corio, 232 F.3d 38. 43 (2d Cir. 2000). The Court does not agree that
Plaintiff's Declaration is inconsistent with his deposition. Peck claims that Plaintiff states Peck was not at his
post in his declaration, but in the deposition, stated that it was Mere who was not at his post. Peck Reply
Mem. at 2. While Plaintiff does state that Mere was not at his post in his deposition, Pl.’s Dep. at 208, he also
states later that Peck was not at his post the next day, id. at 265:6–8. Similarly, Peck argues it is inconsistent
for Plaintiff to claim in his later declaration that he did not receive his inhaler until after Peck did not respond,
when he admitted in his previous deposition that he received an inhaler before Peck even began his shift.
Peck Reply Mem. at 3. However, Plaintiff makes clear that, while he did receive his inhaler the day before
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while Mere was on watch, he was still short of breath the next day, and thus requested the inhaler again from
Peck. Pl.’s Grievance at 7B; Pl.’s Decl. ¶¶ 31, 38.
9 Peck argues that, to meet the subjective prong of the deliberate indifference claim against a non-medical
official, “the plaintiff must establish that the official ‘intentionally delayed access to medical care’ ” after
the plaintiff made the problem known. Peck Mem. at 13. However, an examination of the higher court
decisions from which this doctrine springs indicates that, while they consider showing intentional delay to be
sufficient to establish deliberate indifference, they do not state that such a showing is necessary to establish
deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (“[D]eliberate indifference to
serious medical needs of prisoners ... [is manifested] by prison guards in intentionally denying or delaying
access to medical care.”); Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir. 1984) (“[I]f defendants did decide
to delay emergency medical aid ... in order to make Archer suffer, surely a claim would be stated under
Estelle.”). However, to the extent such a showing is necessary, the Court finds that a reasonable jury could
find intentional delay here due to Peck's alleged complete inaction in the face of Plaintiff's statements he
was having an asthma attack and could not breathe. See Baumann v. Walsh, 36 F. Supp. 2d 508, 512
(N.D.N.Y. 1999) (finding dispute of material fact regarding whether defendants intentionally delayed care
where evidence showed they ignored plaintiff's complaints and refused medical care).
10 The only event Plaintiff points to in the Cowan Suit that happened near in time to these events is the denial of
pro bono counsel in November 2016, five months after the alleged retaliatory events. Pl.’s Resp. Mem. at 38.
11 While Plaintiff made allegations in his Amended Complaint that “none of the [Defendants] took reasonable
steps to protect [Plaintiff] from the objectively unreasonable and conscience shocking excessive force of the
others, despite being in a position to do so,” Plaintiff seems to have abandoned this argument regarding
Kingston and Kearney and thus the Court will not address it. Kingston and Kearney specifically state in their
motion for summary judgment that they are moving to dismiss all claims against them, Kearney & Kingston
Mem. at 1, but Plaintiff did not argue in his response that they were liable due to a failure to protect. See
generally Pl.’s Resp. Mem.; Pukhovich v. City of N.Y., No. 16-CV-1474, 2018 WL 4688943 at *8 (E.D.N.Y.
Sep. 27, 2018) (finding claims abandoned where complaint contained certain claim and defendants moved
for summary judgment on “all” claims and neither party mentioned the cause of action in briefing); Singleton
v. City of Newburgh, 1 F. Supp. 2d 306, 312 (S.D.N.Y. 1998) (finding claim abandoned on summary judgment
because it was not raised in the record after being asserted in the complaint).
12 Supervisory liability claims will be dismissed against all other Defendants for the same reason and on the
same grounds.
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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018)
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2018 WL 4732755
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Alfredo LEWIS, Plaintiff,
v.
Lynn WASIELEWSKI, Rebecca McDaniel, Paul
Burke, Dennis Becker and Sabato Parisi, Defendants.
15-CV-0168-RJA-MJR
|
Signed 07/09/2018
|
Filed 07/10/2018
Attorneys and Law Firms
Alfredo Lewis, Uniondale, NY, pro se.
David J. Sleight, Office of the Attorney General, Buffalo, NY,
for Defendants.
REPORT AND RECOMMENDATION
HONORABLE MICHAEL J. ROEMER, United States
Magistrate Judge
INTRODUCTION
*1 This case has been referred to the undersigned pursuant
to Section 636(b)(1) of Title 28 of the United States Code, by
the Honorable Richard J. Arcara, for hearing and reporting on
dispositive motions for consideration by the District Court.
Before the Court is defendants' motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Dkt. No. 61). For the following reasons, it is recommended
that defendants' motion for summary judgment be granted and
the complaint dismissed.
PROCEDURAL BACKGROUND
Plaintiff Alfredo Lewis (“plaintiff”), an inmate in the care and
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”) who is proceeding
pro se, claims that his constitutional rights were violated, in
contravention of Section 1983 of the Title 28 of the United
States Code, when he was retaliated against and assaulted
as a result of writing letters of complaint while incarcerated
at Gowanda Correctional Facility (“Gowanda”). (Dkt. No.
1). Plaintiff sued Gowanda and a number of individuals
employed by DOCCS as counselors and correction officers
during the relevant time period. (Dkt. No. 1). On August
28, 2015, the Court granted plaintiff’s request to proceed in
forma pauperis. (Dkt. No. 10). The Court also dismissed, with
prejudice, plaintiff’s claims against Gowanda, Supervisor
Counselor Cabeara, and all other individual defendants in
their official capacities. (Id.). The remaining defendants, sued
in their individual capacities, include Lynn Wasielewski,
Rebecca McDaniel, Paul Burke, Dennis Becker, and Sabato
Parisi. In addition to the complaint, plaintiff submitted a
number of other documents and exhibits in support of his
claims. (Dkt. Nos. 11, 13, 14, 22 and 33). Defendants filed
answers to the complaint and the Court held a preliminary
pretrial conference on August 16, 2016, at which time it
entered a Case Management Order. (Dkt. Nos. 25, 28, 31, 34,
37, 39). The parties proceeded with discovery which included
Rule 26 disclosures, document and interrogatory requests by
plaintiff, and a deposition of plaintiff by defendants. (Dkt.
Nos. 40, 43, 48, 58, 64).
Defendants filed the instant motion for summary judgment on
November 26, 2017. (Dkt. Nos. 61-63). Plaintiff submitted a
number of responses in opposition to the motion (Dkt. Nos.
65, 66, 69), and defendants filed a reply on December 22,
2017 (Dkt. No. 67).
RELEVANT FACTS
At the time of the incidents relevant to this lawsuit, plaintiff
was an inmate in the care and custody of DOCCS. 1 (Dkt.
No. 62, ¶¶ 1-2; Dkt. No. 1, pg. 2). Also at the time of the
events alleged in the complaint, defendant Lynn Wasielewski
was employed by DOCCS as a social worker at Gowanda,
defendant Rebecca McDaniel was employed by DOCCS as an
Offender Rehabilitation Coordinator at Gowanda, defendants
Paul Burke and Dennis Becker were employed by DOCCS
as correction officers at Gowanda, and defendant Sabato
Parisi was employed by DOCCS as a correction sergeant at
Gowanda. (Dkt. No. 62 at ¶¶ 3-7; Dkt. No. 1, pg. 2).
*2 Plaintiff’s Arrival at Gowanda
Plaintiff was transferred to Gowanda from Bare Hill
Correctional Facility on or around January 20, 2015. (Dkt.
No. 62-2; Dkt. No. 68, pg. 8). The conviction that resulted
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in plaintiff’s placement in DOCCS custody at that time was
stalking in the second degree. (Dkt. No. 68, pg. 5) Plaintiff
testified that upon arrival at Gowanda, he learned that he
had been transferred there in order to participate in the Sex
Offender Treatment Program (“SOP”). (Id. at 10). Plaintiff
was interviewed by McDaniel, a counselor assisting with
the SOP, on the day he arrived at Gowanda. (Id. at 8, 11).
Plaintiff testified that he informed McDaniel that because he
was not incarcerated for a sex offense, he was not required
to complete the SOP. (Id.). Plaintiff contends that McDaniel
informed him that unless he signed a paper enrolling himself
in the SOP, he would be required to serve his maximum
sentence of incarceration. (Id. at 9-11). Plaintiff emphasized
to McDaniel that the SOP was not consistent with his “merit
board” and that it would interfere with his ability to enroll
in other programs. 2 (Id. at 9, 11). Plaintiff indicates that
McDaniel became very agitated with him during the interview
as result of his opposition to participate in the SOP. (Id. at
11-12). Nonetheless, plaintiff was enrolled in the SOP and
began participating. (Dkt. No. 66, pg. 21; Dkt. No. 64, pgs.
27, 31).
In early February of 2015, plaintiff wrote letters of complaint
to Cabrera and Wasielewski. (Dkt. No. 1, pgs. 3-5; Dkt.
No. 69, pgs. 9-18). Plaintiff indicates that both of these
individuals were supervisors at Gowanda. (Id.). Specifically,
plaintiff complained about his placement in the SOP and
McDaniel’s refusal to place him in other programs. (Id.).
He complained that during the SOP meetings McDaniel
asked him inappropriate questions about his parents' sexual
relationship. (Id.). He further complained that McDaniel
would have outbursts during meetings if he or other inmates
did not provide certain answers to her questions, which caused
them to fabricate stories. (Id.).
Alleged Assault on February 6, 2015
Plaintiff contends that on February 6, 2015, Wasielewski
confronted him immediately prior to a SOP meeting. (Dkt.
No. 68, pgs. 14-15; Dkt. No. 1, pg. 6). Wasielewski was upset
that plaintiff “went over her head and McDaniel’s head by
writing to Cabrera.” (Dkt. No. 68, pg. 15). Plaintiff states
that he returned to the meeting and that after it ended, he
was approached by a correction officer who indicated that
a sergeant wanted to speak with him. (Dkt. No. 68, pg. 17;
Dkt. No. 1, pg. 6). Plaintiff reported to Parisi, the correction
sergeant. (Dkt. No. 62, ¶ 15). Plaintiff states that he was then
taken to a stairwell, told to put his hands on the wall, and
handcuffed. (Dkt. No. 68, pg. 18; Dkt. No. pg. 6). Plaintiff
claims that Parisi pulled his hair and repeatedly punched
him in the ribs. (Dkt. No. 68, pgs. 18-19; Dkt. No. pg. 6).
Plaintiff contends that Parisi stated “what the hell do [you]
think [you are] doing writing letters” and accused him of
trying to get staff members fired. (Dkt. No. 68, pg. 19; Dkt.
No. 1, pg. 6). Plaintiff alleges that Parisi stated to him: “I'm
going to put your black ass in the SHU box” and to another
officer in plaintiff’s presence: “[Plaintiff is] lucky he don't put
[plaintiff] somewhere [his] body can't be found.” (Dkt. No.
1, pg. 6).
*3 Plaintiff received an inmate misbehavior report that same
day charging him with harassment, lying and stalking. (Dkt.
No. 68, pg. 17; Dkt. No. 1, pg. 6-7). The misbehavior report,
which was written by K. Hoth and signed by Parisi, alleged
that plaintiff harassed McDaniel and included inappropriate
comments about her in his letters of complaint causing her
to fear for her safety. (Dkt. No. 69, pg. 21-22; Dkt. No.
62-5). Plaintiff contends that the charges were fabricated
by McDaniel and Wasielewski to retaliate against him for
his complaints. (Dkt. No. 1; pg. 6-7). Plaintiff was found
guilty of all three charges at a disciplinary hearing held on
February 20, 2015. (Dkt. No. 68 pg. 24; Dkt. Nos. 62-6,
62-7). Plaintiff was sentenced to ninety days in the special
housing unit (“SHU”) and ninety days loss of recreation,
packages, commissary, phone and special events. (Dkt. No.
62, ¶ 17). Plaintiff appealed the hearing determination to the
DOCSS Commissioner in Albany, New York. (Dkt. No. 68,
pg. 25; Dkt. No. 11). On or around March 6, 2015, plaintiff
was transferred to Upstate Correctional Facility (“Upstate”).
(Dkt. No. 68, pg. 27; Dkt. No. 62-2). As a result of his
appeal, plaintiff’s convictions for making a false statement
and stalking were dismissed on April 23, 2015. (Dkt. No. 68,
pgs. 24-25, 27; Dkt. No. 11). His sentence was reduced to
thirty days in SHU. (Id.).
Use of DOCCS' Grievance Procedures
In his federal court complaint, plaintiff states that he did not
file a grievance regarding the assault on February 6, 2015
“in order to keep [himself] safe from staff.” (Dkt. No. 1,
pg. 7). He further states in the complaint that “Albany was
sent a complaint by mail on what ha[d] taken place.” (Id.).
However, plaintiff provided contradictory testimony during
his deposition. Specifically, plaintiff testified during his
deposition that he filed a grievance about the February 6,
2016 incident but never received a response. (Dkt. No. 68, pg.
20). Plaintiff also testified that he wrote a letter to the State
Commission of Corrections about the incident. (Id. at 21; Dkt.
No. 62-9). When asked for clarification by defense counsel,
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plaintiff testified, “I wrote to grievance on a few different
people ... I don't think I put exactly what happened because I
didn't know if it would actually be, you know, passed off to the
wrong person ... I didn't want to let too much be known after
the threats I was getting.” (Dkt. No. 68, pg. 22). Later during
the same deposition, defense counsel asked plaintiff about
his statement in his federal court complaint indicating that he
did not grieve the incident. Plaintiff testified, in contradiction
to his earlier statement during the deposition that he filed a
grievance, that he did not file a grievance because he was
fearful that officers would further harm him. (Id. at 29-30).
Plaintiff further testified that officers harassed and threatened
him and that when he was being taken to SHU an officer stated
“go ahead and run your mouth” and “your other hand will
be broken.” (Id. at 22-23, 31-32). However, plaintiff did not
specify which officers threatened him nor is it clear exactly
when these alleged threats occurred.
Also during his deposition, plaintiff acknowledged that he
filed the instant lawsuit on February 25, 2015, less than
thirty days after the alleged assault and while he was still
incarcerated at Gowanda. (Dkt. No. 68, pgs. 29-30). When
asked by defense counsel why he was afraid to file a grievance
but was not afraid to file a lawsuit, plaintiff testified that he
believed he would be transferred out of Gowanda soon after
his disciplinary hearing. (Id. at 30). Plaintiff further testified
that he did not believe the grievance process was effective,
since he “knew it would be intercepted someway”, he did not
“see [the officers] investigating themselves” and he “wanted
somebody to come from the outside to investigate this.” (Id. at
30-31). Plaintiff also testified that he did not file a grievance
after his transfer to Upstate because he described the alleged
assault during the appeal of his disciplinary charges. (Id. at
33). Plaintiff testified that he is familiar with inmate grievance
procedures. (Id. at 22). A review of the inmate grievance
records from DOCCS shows no record of a grievance or
appeal filed by plaintiff while at Gowanda alleging retaliation
or assault by defendants. (Dkt. No. 62, ¶ 21, Dkt. No. 62-8).
DISCUSSION
*4 Pursuant to Federal Rule of Civil Procedure 56, summary
judgment is to be granted where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” See Fed. R. Civ. P. 56. A genuine
issue of material fact exists “where the evidence is such
that a reasonable jury could decide in the non-movant’s
favor.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d
Cir. 2008). “[V]iewing the evidence produced in the light
most favorable to the nonmovant, if a rational trier [of fact]
could not find for the nonmovant, then there is no genuine
issue of material fact and entry of summary judgment is
appropriate.” Bay v. Times Mirror Magazine, Inc., 936 F.2d
112, 116 (2d Cir. 1991). When a movant has met this burden,
the burden shifts to the non-movant to bring forth evidence
establishing the existence of an issue of material fact. Linares
v. McLaughlin, 423 Fed. Appx. 84, 86 (2d Cir. 2011). In
evaluating a motion for summary judgment, a court must
resolve all ambiguities and draw all reasonable inferences
in favor of the nonmoving party, and it is the burden of the
moving party to demonstrate the absence of any material facts
genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50
(2d Cir. 1988). Where a plaintiff is proceeding pro se, the
court must “construe the complaint liberally and interpret it
to raise the strongest arguments that [it] suggest[s].” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010). However, even a
pro se litigant cannot defeat a motion for summary judgment
by relying upon conclusory statements or mere allegations
unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d
Cir. 2002).
Plaintiff’s Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 (the “PLRA”)
requires an inmate to exhaust available administrative
remedies before bringing suit to complain of prison
conditions or actions taken by prison officials, such as
retaliation or excessive force. See 42 U.S.C. § 1997e(a); Ross
v. Black, 136 S. Ct. 1850, 1854-55 (2016). Exhaustion under
the PLRA is mandatory, and must occur before the filing of a
lawsuit in federal district court. Woodford v. Ngo, 548 U.S. 81,
85 (2006). In order 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 or she is incarcerated. Jones v. Bock, 549 U.S.
199, 218 (2007). DOCCS provides a detailed administrative
review and appeals system for inmate grievances in New
York. Nji v. Heath, 13 Civ. 200, 2014 U.S. Dist. LEXIS
163060, *7-6 (SDNY Nov. 10, 2014); accord 7 N.Y. Comp.
Codes R. & Regs. § 701.5. In order to exhaust administrative
remedies, the inmate must file a grievance with his or her
facility’s Inmate Grievance Resolution Committee (“IGRC”)
within 21 calendar days of the alleged occurrence. Id. If the
IGRC denies the grievance, the inmate must file an appeal
of the decision to the superintendent of his or her facility.
Id. If the appeal to the superintendent is denied, the inmate
must then appeal that determination to the Central Office
Review Committee (“CORC”) located in Albany, New York.
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Id.; accord Espinal v. Goord, 558 F.3d 119, 125-26 (2d Cir.
2009).
The record before the Court establishes that plaintiff did not
exhaust his administrative remedies before filing the instant
lawsuit. Plaintiff states in his complaint that he did not file
a grievance as to the incident on February 6, 2015. He then
provided contradictory statements during his deposition as to
whether he filed a grievance. Plaintiff initially testified during
his deposition that he filed a grievance but did not receive
a response. He later attempted to clarify the statement by
explaining that he “wrote to grievance on a few people” but
that he did not “put exactly what happened.” Plaintiff then
testified during the same deposition that he did not file a
grievance because he feared retaliation by officers. He later
testified that he did not file a grievance because he believed
the grievance process was ineffective. Indeed, a review of
DOCCS records confirms that plaintiff did not file a grievance
or appeal of the February 6, 2015 incident.
Despite plaintiff’s initial statement in his deposition that he
filed a grievance, the evidence in the record reflects that
no grievance was filed as to the February 6, 2015 incident.
This evidence includes plaintiff’s statements in his complaint,
the majority of plaintiff’s deposition testimony wherein he
indicates that he did not file a grievance, plaintiff’s deposition
testimony as to the various reasons he did not file a grievance,
and DOCCS' records, which confirm that no grievance or
appeal were filed. Thus, the Court finds that plaintiff has
not raised a genuine issue of material fact as to whether he
filed a grievance. See Jeffreys v. City of New York, 426 F.3d
549 (2d Cir. 2005) (summary judgment in favor of defendant
upheld where nothing in the record supported plaintiff’s
allegations other than his own contradictory and incomplete
testimony); Deebs v. Alstom Transp., Inc., 346 F. App'x
654, 656 (2d Cir. 2009) (“self-serving” deposition testimony
cannot, by itself, defeat summary judgment); Burwell v.
Payton, 5:12-cv-166, 2015 U.S. Dist. LEXIS 152745 (D. Vt.
Nov. 9, 2015) (where plaintiff’s deposition testimony was
contradicted by the video recording, his own statement of
undisputed facts, and the allegations of his complaint, plaintiff
failed to identify a genuine issue of material fact that would
justify reconsideration).
*5 Moreover, even if the Court were to credit plaintiff’s
initial statement during his deposition that he filed a
grievance, it remains clear that plaintiff did not fully exhaust
his administrative remedies. Plaintiff testified that he did
not receive a response to the grievance. DOCCS records
reflect that no grievance or appeal was filed regarding the
February 6, 2015 incident. Indeed, “the law is well-settled”
that an inmate’s “failure to take an available administrative
appeal, even when the initial grievance receives no response,
constituted a failure to exhaust administrative remedies.”
Garvin v. Rivera, 13-cv-7054, 2015 U.S. Dist. LEXIS 84675,
*7-8 (SDNY June 29, 2015). See also Johnson v. New York
City Dep't of Correction, 13-cv-6799, 2014 U.S. Dist. LEXIS
85444 (SDNY June 16, 2014) (“Assuming that Plaintiff filed
a timely grievance ... and received no response within five
business days[,] ... Plaintiff ... could have taken the next step
and requested a hearing.”).
Finally, plaintiff’s assertions that he sent a copy of his federal
court complaint to Albany, wrote to the State Commission
of Corrections, and that he complained about the February
6, 2015 incident during the appeal of his disciplinary
hearing determination do not constitute exhaustion under
the PLRA. The Second Circuit has held that alerting prison
officials, through informal steps, as to the nature of the
wrong for which redress is sought does not constitute proper
exhaustion. Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir.
2007). See e.g., Nji, 2014 U.S. Dist. LEXIS 163060, *9
(“[s]ending letters to persons outside the grievance process is
insufficient to establish exhaustion because it is well settled
that complaints and communications made outside of formal
grievance procedures do not satisfy the PLRA’s exhaustion
requirement”) (internal citations and quotations omitted);
David v. Doe, 9:16-cv-0994, 2017 U.S. Dist. LEXIS 213704
(NDNY Dec. 29, 2017) (prisoner who did not file a grievance
as to his constitutional claims, but instead submitted a
disciplinary appeal and told a representative of the Office of
the Inspector General about the facts alleged in his lawsuit,
did not properly exhaust his administrative remedies under
the PLRA).
Exceptions to the Exhaustion Requirement Do Not Apply
Having concluded that plaintiff failed to exhaust his
administrative remedies under the PLRA, the Court next
considers whether there is any basis for excusing plaintiff’s
failure to exhaust. In Ross v. Blake, the Supreme Court
significantly narrowed the exceptions a court may afford
a prisoner who does not comply with the exhaustion
requirement in the PLRA. 136 S. Ct. 1850 (2016).
Therein, the Supreme Court rejected the prior “special
circumstances” exceptions to the exhaustion requirement
which had previously been recognized by the Second Circuit.
Id. at 1862. The Supreme Court held instead that the PLRA
includes only a single “textual exception”, in that an inmate
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need not exhaust administrative remedies not available to him
or her. Id. at 1858. The Supreme Court went on to cite three
scenarios in which an administrative grievance procedure
would be unavailable to an inmate: (1) “[the procedure]
operates as a simple dead end – with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates”; (2) the procedure is “so opaque that it becomes,
practically speaking, incapable of use”; or (3) “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60.
Here, the record before the Court fails to demonstrate that
administrative remedies were unavailable to plaintiff. There
is no evidence that the grievance procedures were opaque or
incapable of use. As described above, DOCCS has a clear,
detailed procedure for inmate grievances. Moreover, plaintiff
testified that he was familiar with the DOCCS' grievance
procedure. Plaintiff testified that he believed the grievance
procedure was ineffective because he did not “see the officers
investigating themselves” and that he “wanted somebody to
come from the outside to investigate this.” (Dkt. No. 64,
pg. 63). However, these conclusory statements, which reflect
only plaintiff’s subjective beliefs, are insufficient to raise a
triable issue of fact as to the availability of administrative
remedies. In Woodward v. Ngo, the Supreme Court noted that
“exhaustion requirements are designed to deal with parties
who do not want to exhaust”, including those who “conclude
—correctly or incorrectly—that exhaustion is not efficient
in that party’s particular case.” 548 U.S. 81, 89-90 (2006).
See also Harrison v. Goord, 07 Civ. 1806, 2009 U.S. Dist.
LEXIS 48478, *15 (SDNY June 9, 2009) (“Prisoners are
required to exhaust their administrative remedies even if they
believe that administrative remedies would be ineffective or
futile.”) (internal citations omitted); McMillian v. Walters,
9:16-CV-0277, 2017 U.S. Dist. LEXIS 208444, *7-8 (NDNY
Dec. 18, 2017) (“An inmate’s belief that administrative
remedies would be futile is not a valid excuse establishing
the unavailability of such remedies.”). Moreover, there is no
evidence in the record to indicate that DOCCS' complaint
or grievance procedures were either opaque or operated as a
dead end. To the contrary, plaintiff was able to successfully
file an appeal of his disciplinary hearing determination to the
Commissioner in Albany, New York. His appeal resulted in a
dismissal of two charges and reduction of the amount of time
he was sentenced to SHU.
*6 Plaintiff also stated in his complaint and during his
deposition that he did not file a grievance as to the incident on
February 6, 2015 because he feared retaliation from officers
at Gowanda. However, a generalized fear of retaliation is
insufficient to overcome a failure to exhaust administrative
remedies. Brown v. Napoli, 687 F. Supp. 2d 295, 297-98
(WDNY 2009); Harrison v. Stallone, 9:06-CV-902, 2007
U.S. Dist. LEXIS 98742 (NDNY Sept. 24, 2007) (“If an
inmate could simply state that he feared retaliation, there
would be no point in having a grievance procedure[.]”).
During his deposition, plaintiff stated in a general and
conclusory manner that he was threatened and harassed.
He also testified that on one occasion an officer escorting
him to SHU told him that his hand would be broken if
he “ran his mouth”. However, plaintiff does not indicate
who made this statement nor does he indicate the date or
time it occurred. Plaintiff also fails to provide any further
details as to the alleged threat or how it was specifically
connected to his use of grievance procedures. Similarly, in
Henry v. Cty. of Nassau, an inmate argued that administrative
remedies were unavailable because defendants threatened to
have him killed or assaulted if he reported various incidents of
failure to intervene, and that on one occasion they threatened
to “jump” him if he reported an incident. CV 13-7427,
2017 U.S. Dist. LEXIS 125443 (EDNY Aug. 7, 2017). The
Eastern District of New York Court rejected these assertions
and concluded that “[p]laintiff’s statements, devoid of any
specifics, including which defendants were involved, are
insufficient to defeat summary judgment.” Id. Likewise here,
plaintiff’s general and conclusory statements that he was
threatened are insufficient to raise a triable issue of fact as
to the unavailability of the grievance procedure because of
intimidation by prison administrators. See e.g., Rodriguez v.
Cross, 15-CV-1079, 2017 U.S. Dist. LEXIS 71337 (NDNY
May 9, 2017) (plaintiff’s conclusory allegations that he “was
beaten” while attempting to access grievance procedures were
insufficient to excuse his failure to exhaust under Ross, where
he does not state “how any specific threat or subsequent act
of violence impacted his ability to exhaust administrative
remedies[.]”); Johnson v. Frazier, 16-CV-6096, 2016 U.S.
Dist. LEXIS 165987 (WDNY Dec. 1, 2016) (plaintiff’s
allegations that grievance procedures were not available due
to threats from staff were “entirely conclusory, since [plaintiff
did] not indicate who threatened him, when he was threatened
or how he was threatened.”).
Further, plaintiff’s actions after the February 6, 2015
incident directly contradict his claim that he did not file
a grievance because he feared retaliation by officers at
Gowanda. Plaintiff both wrote a letter about the incident to
the State Commissioner of Corrections and filed the instant
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federal lawsuit in February of 2015, while he was still
incarcerated at Gowanda. See Rodriguez, 2017 U.S. Dist.
LEXIS 71337 (“[P]laintiff’s failure to follow the grievance
procedures cannot be excused by fears or intimidation, when
he simultaneously made his complaints known through other
means” such as informing a nurse that officers beat him
and “air[ing] his complaints and concerns in writing outside
of the grievance procedures[.]”); Johnson, 2016 U.S. Dist.
LEXIS 165987, *13-14 (rejecting plaintiff’s contention that
administrative remedies were unavailable to him because
he was threatened by correction officers but continued to
make and send formal complaints to prison officers and
other New York State officials). Indeed, plaintiff’s own
deposition testimony belies his claim that he was afraid
to grieve the February 6, 2015 incident. Plaintiff testified
during his deposition that he was not afraid to file a federal
lawsuit while still incarcerated at Gowanda, despite alleged
threats or harassment, because he was informed that he
would be transferred to a different facility immediately
after his disciplinary hearing. It defies logic that plaintiff
would be unafraid to file a lawsuit because he believed a
transfer of facilities was imminent, but that he would still be
fearful of filing a grievance. Additional inconsistencies and
contradictions in plaintiff’s deposition testimony cast further
doubt on his claim that he was afraid to file a grievance.
Not only does plaintiff contradict himself as to whether he
filed a grievance, but he also provides varying rationales
as to why he did not file one. Plaintiff testified that he did
not file a grievance because he was fearful of the officers.
However, he also testified that he did not file a grievance
because he believed the process was ineffective and he wanted
someone from the “outside” to investigate. See Dailey v.
Fuller, 9:15-cv-1051, 2016 U.S. Dist. LEXIS 168482 (NDNY
Dec. 5, 2016) (“Even where a complaint or affidavit contains
specific assertions, the allegations may still be deemed
conclusory if they are: (1) largely unsubstantiated by any
other direct evidence and (2) so replete with inconsistencies
and improbabilities that no reasonable juror would undertake
the suspension of belief necessary to credit the allegations[.]”)
(internal citations and quotations omitted).
*7 Finally, even if the Court were to conclude that plaintiff
had been threatened at Gowanda and that those threats
prevented him from filing a grievance, there has been no
showing that administrative remedies remained unavailable
to plaintiff after he was transferred to Upstate. DOCCS
procedures provides that an inmate may request an extension
of the time limit to file a grievance within forty-five days
of the date of the alleged occurrence. See N.Y. Comp.
Codes R. & Regs., § 701.6(g). Here, the alleged assault took
place on February 6, 2015 and plaintiff was transferred to
Upstate on or about March 6, 2015. When plaintiff arrived
at Upstate, approximately twenty-nine days had elapsed
since the alleged assault, and plaintiff could have timely
requested an extension of time to file a grievance. In fact,
plaintiff had an additional seventeen days after arriving at
Upstate to request an extension of time. See Bookman v.
Linstrand, 9:15-CV-1542, 2018 U.S. Dist. LEXIS 25157
(NDNY February 14, 2018) (“Even assuming that [plaintiff’s
allegations] could be construed as creating an issue of fact
with respect to the grievance process at GMCF, it does
not create an issue of fact with respect to the availability
of the grievance process at Clinton, where plaintiff was
housed in the immediate aftermath of the alleged assault.”);
Smith v. Costello, 9:15-CV-0401, 2017 U.S. Dist. LEXIS
31341 (NDNY March 3, 2017) (specific threats against
plaintiff with respect to filing a grievance did not excuse
his failure to exhaust administrative remedies where plaintiff
had thirty-three days to request an extension of time to
file after his transfer from the facility where the threats
occurred); Wallace v. Fisher, 9:13-CV-1208, 2015 U.S. Dist.
LEXIS 169256 (NDNY Dec. 18, 2015) (concluding that
even if plaintiff’s administrative remedies were unavailable
at Watertown Correctional Facility, plaintiff did not persuade
the Court that his administrative remedies continued to be
unavailable after his transfer to Gouverneur Correctional
Facility, since after his transfer plaintiff had twelve days
in which to request an extension of the twenty-one day
deadline for filing a grievance). Thus, the Court finds no
basis in the record to excuse plaintiff’s failure to exhaust his
administrative remedies.
CONCLUSION
For the foregoing reasons, it is recommended that defendants
Lynn Wasielewski’s, Rebecca McDaniel’s, Paul Burke’s,
Dennis Becker’s and Sabato Parisi’s motion for summary
judgment be granted and the complaint dismissed. (Dkt. No.
61).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED
that this Report, Recommendation and Order be filed with the
Clerk of Court.
Unless otherwise ordered by Judge Arcara, any objections to
this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of service of this Report and
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Recommendation in accordance with the above statute, Rules
72(b), 6(a), and 6(d) of the Federal Rules of Civil Procedure,
and W.D.N.Y. L. R. Civ. P. 72. Any requests for an extension
of this deadline must be made to Judge Arcara.
Failure to file objections, or to request an extension of time
to file objections, within fourteen days of service of this
Report and Recommendation WAIVES THE RIGHT TO
APPEAL THE DISTRICT COURT'S ORDER. See Small v.
Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).
The District Court will ordinarily refuse to consider de novo
arguments, case law and/or evidentiary material which could
have been, but were not, presented to the Magistrate Judge
in the first instance. See Paterson–Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y.
L.R.Civ.P. 72(b), written objections “shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the basis for
each objection, and shall be supported by legal authority.”
Failure to comply with these provisions may result in the
District Court’s refusal to consider the objection.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 4732755
Footnotes
1 The facts described herein are taken from pleadings, motion papers, discovery and exhibits filed in this
lawsuit. Also, because plaintiff is proceeding pro se, the Court has considered all of his submissions in support
of his complaint and in opposition to defendants' motion for summary judgment, regardless of the form in
which they have been submitted.
2 A DOCCS Directive dated November 12, 2011 provides that inmates serving sentences for certain nonviolent
crimes may receive merit time allowances against their sentences provided they have, inter alia, “achieved
certain significant programmatic objections.” (Dkt. No. 69, pg. 5).
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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 4692476
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Alfredo LEWIS, Plaintiff,
v.
Lynn WASIELEWSKI, Rebecca McDaniel Paul
Burke, Dennis Becker and Sabato Parisi, Defendants.
15-CV-168-A
|
Signed 10/01/2018
Attorneys and Law Firms
Alfredo Lewis, Uniondale, NY, pro se.
David J. Sleight, Office of the Attorney General, Buffalo, NY,
for Defendants.
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA, UNITED STATES
DISTRICT JUDGE
*1 This pro se civil rights case was referred to
Magistrate Judge Michael J. Roemer for the conduct of
pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1).
On July 10, 2018, the Magistrate Judge filed a Report
and Recommendation (Dkt. No. 71) recommending that
defendants' motion for summary judgment pursuant to Fed.
R. Civ. P. 56 (Dkt. No. 61) be granted.
On September 10, 2018, pro se plaintiff Alfredo Lewis filed
objections to the Report and Recommendation. (Dkt. No. 75).
Defendants filed a response on September 10, 2018. (Dkt. No.
76). Oral argument is unnecessary.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make
a de novo determination of those portions of the Report
and Recommendation to which pro se plaintiff Lewis
has objected. Upon de novo review after reviewing the
submissions of the parties, the Court adopts the Magistrate
Judge’s findings and conclusions. It is therefore
ORDERED, pursuant to 28 U.S.C. § 636(b)(1), and for
the reasons stated in the Report and Recommendation (Dkt.
No. 71), that the defendants' Rule 56 motion for summary
judgment (Dkt. No. 61) is granted. The Clerk of the
Court shall enter judgment on behalf of defendants Lynn
Wasielewski, Rebecca McDaniel, Paul Burke, Dennis Becker,
and Sabato Parisi and shall close the case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 4692476
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Logan v. Graham, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 8015209
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Seth LOGAN, Plaintiff,
v.
Superintendent GRAHAM, Auburn Correctional
Facility; C.O. Pflueger, Auburn Correctional
Facility; Officer Scott Jones, Auburn Correctional
Facility, formerly known as C.O. Smith; and C.O.
M. Gould, Auburn Correctional Facility, Defendants.
9:18-CV-0291 (DNH/ML)
|
Signed 11/26/2019
Attorneys and Law Firms
SETH LOGAN, Plaintiff, Pro Se, 117 Avery Avenue, Buffalo,
New York 14210.
LETITIA A. JAMES, OF COUNSEL: AIMEE COWAN,
ESQ., Assistant Attorney General, Attorney General for the
State of New York, Counsel for Defendants, 300 South State
Street, Suite 300, Syracuse, New York 13202.
REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 This matter has been referred to me for a Report and
Recommendation by the Honorable David N. Hurd, United
States District Judge. Currently before the Court, in this
civil rights action filed by Seth Logan (“Plaintiff”) against
Superintendent Graham, Auburn Correctional Facility, C.O.
Pflueger, 1 Auburn Correctional Facility, Officer Scott
Jones, Auburn Correctional Facility, formerly known as
C.O. Smith, and C.O. M. Gould, Auburn Correctional
Facility (collectively “Defendants”), is Defendants’ motion
for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt.
No. 28). For the reasons set forth below, I recommend that
Defendants’ motion be granted in part and denied in part.
TABLE OF CONTENTS
I. RELEVANT BACKGROUND...––––
A. Plaintiff's Claims...––––
B. Procedural History...––––
C. Statement of Undisputed Material Facts...––––
D. Parties’ Briefing on Defendants’ Motion for Summary
Judgment...––––
II. RELEVANT LEGAL STANDARDS...––––
A. Standard Governing a Motion for Summary
Judgment...––––
B. Standard Governing Exhaustion of Administrative
Remedies...––––
III. ANALYSIS...––––
A. Plaintiff's Failure to Oppose the Merits of Defendants’
Summary Judgment Motion...––––
B. Exhaustion of Grievances AUB-67199-15 and
AUB-67567-15...––––
C. Whether Plaintiff's First Amendment Retaliation
Claims Should Nevertheless be Dismissed...––––
D. Doctrine of Qualified Immunity...––––
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, liberally construed, Plaintiff's Complaint asserts
claims of retaliation against Defendants in violation of the
First Amendment. (Dkt. No. 1; Dkt. No. 6.) The Court's
Decision and Order dated May 4, 2018, thoroughly outlines
Plaintiff's allegations and claims. (Dkt. No. 6.)
B. Procedural History
On March 8, 2018, Plaintiff commenced this action by filing
a verified Complaint against Defendants, Lieutenant Vasill,
and Lieutenant Abate (Dkt. No. 1) together with a motion
for leave to proceed in forma pauperis (Dkt. No. 2). On
May 4, 2018, the Court granted Plaintiff's motion to proceed
in forma pauperis. (Dkt. No. 6.) In addition, the Court
ordered that Plaintiff's retaliation claims against Defendants
survive sua sponte review, but the Court dismissed Plaintiff's
remaining claims including those against Lieutenant Vasill
and Lieutenant Abate. (Id.)
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On January 25, 2019, Defendants filed a letter motion
requesting dismissal for failure to prosecute. (Dkt. No.
27.) On March 6, 2019, Defendants filed a motion for
summary judgment pursuant to Fed. R. Civ. P. 56 and a
motion to dismiss for lack of prosecution. (Dkt. No. 28.)
These motions were referred to United Stated Magistrate
Judge David E. Peebles for a Report and Recommendation.
On March 27, 2019, Magistrate Judge Peebles issued a
Report and Recommendation, which recommended that (1)
the Complaint be dismissed based on Plaintiff's failure
to prosecute and to comply with the Court's orders and
local rules of practice, and (2) that Defendants’ motion
for summary judgment be denied as moot. (Dkt. No. 30.)
On April 15, 2019, Plaintiff filed a change of address
with the Court. (Dkt. No. 32.) As a result, on April 15,
2019, United States District Judge David N. Hurd sua
sponte granted an extension of time to file objections to
United Stated Magistrate Judge David E. Peebles's Report-
Recommendation of March 27, 2019. (Dkt. No. 33.) Plaintiff
did not file any objections to the Report-Recommendation
dated March 27, 2019. (See generally Docket Sheet.)
*2 On July 3, 2019, the Court denied Defendants’ motion to
dismiss and referred to me for consideration of Defendants’
motion for summary judgment. (Dkt. No. 35.) On July 3,
2019, Plaintiff was provided another opportunity to oppose
Defendants’ motion with a response due by August 20, 2019,
and a reply due by August 26, 2019. (See text notice dated
7/3/19.) On September 9, 2019, the Court issued a text
order granting Plaintiff yet another opportunity to oppose
Defendants’ motion with a deadline of September 30, 2019.
(Dkt. No. 37.)
On October 1, 2019, Plaintiff filed a response in opposition
to Defendants’ motion. (Dkt. No. 39.)
C. Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and
supported by Defendants in their Rule 7.1 Statement and not
denied by Plaintiff in a Rule 7.1 Response. (Compare Dkt.
No. 28, Attach. 1 [Defs.’ Rule 7.1 Statement] with Dkt. No.
39 [Pl.’s Response].)
1. Plaintiff was convicted in 2009 of Attempted Assault in the
First and Second Degree.
2. All claims in this matter arose out of Plaintiff's confinement
at Auburn Correctional Facility (“Auburn”), as a result of his
felony convictions in 2009.
3. Plaintiff was released from prison to the Division of Parole
on January 7, 2019. 2
4. In his Complaint, Plaintiff claims that on May 9, 2015,
Defendant Pflueger stopped Plaintiff in the Auburn recreation
yard, accused Plaintiff of being a white supremacist and stated
that he would be searching Plaintiff's cell for gang material.
5. Plaintiff alleges that the next day, on May 10, 2015,
Defendant Pflueger threatened him while Plaintiff was exiting
his cell, stating that Plaintiff “ain't gonna be around here for
long. They're gonna get you. We're not sure how yet or for
what, but it's gonna happen.”
6. According to Plaintiff, Defendant Pflueger did not make
any specific threats about anything that he specifically was
going to do to Plaintiff.
7. Plaintiff filed a grievance on May 10, 2015, complaining
about the alleged incident of May 9, 2015.
8. Defendant Pflueger responded to the grievance by memo
and stated that he stopped Plaintiff in the yard on May 9,
2015 after observing tattoos that could be interpreted as gang
affiliation tattoos.
9. Defendant Pflueger stated that he passed the information
on to the Early Warning Box—which is an avenue to convey
information to Auburn Correctional Facility's intelligence
unit—and denied threatening or harassing Plaintiff in any
way.
*3 10. Plaintiff alleges that over a month later, on June 17,
2015, Defendant Pflueger fired Plaintiff from his job as a feed
up porter.
11. Plaintiff was employed as a feed up porter at Auburn for
approximately one month until he was terminated on June 17,
2015.
12. A feed up porter's duties include retrieving food trays from
the mess hall and feeding inmates who are confined to their
cell for disciplinary reasons.
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13. On the morning of June 17, 2015, Defendant Pflueger
witnessed Plaintiff pass an unidentified item into the cell of
another inmate.
14. Defendant Pflueger ordered Plaintiff to return to his cell.
15. Plaintiff yelled profanities as he went back to his cell.
16. While in his cell, Plaintiff yelled “that faggot
motherfucker fired me.”
17. Plaintiff shouted these profanities loud enough to
communicate with another inmate on a different floor.
18. Plaintiff alleges that Defendant Pflueger fired him as a
feed up porter in retaliation for the grievance that Plaintiff
filed dated May 10, 2015.
19. Plaintiff's only basis for this belief is that there was “no
other reason” for Defendant Pflueger to fire him.
20. Based on Plaintiff's behavior on the morning of June
17, 2015, Defendant Pflueger authored a misbehavior report
dated June 17, 2015, that charged Plaintiff with several
DOCCS Directive violations including disobeying a direct
order, creating a disturbance, harassment, and making threats.
21. Defendant Correction Officer Scott Jones endorsed the
misbehavior report as a witness to a portion of these events.
22. At the time Defendant Jones endorsed the misbehavior
report dated June 17, 2015, he had no knowledge that Plaintiff
had filed a grievance against Defendant Pflueger on May 10,
2015.
23. Plaintiff testified that he had never interacted with
Defendant Jones before this incident on June 17, 2015.
24. Plaintiff testified that he had no basis to believe that at
the time Defendant Jones endorsed the misbehavior report,
Defendant Jones knew that Plaintiff had filed any grievances
against Defendant Pflueger.
25. Plaintiff filed a grievance regarding the incident on June
17, 2015, but that grievance was denied.
26. Defendant Pflueger was never counseled or disciplined as
a result of the incident on June 17, 2015.
27. As a result of the misbehavior report dated June 17, 2015,
Plaintiff was found guilty of all charges at a disciplinary
hearing and sentenced to 30 days of keep-lock confinement.
28. Plaintiff filed another grievance dated July 21, 2015,
which alleged that on July 8, 2015, he received a false report
authored by Defendant Correction Officer Mark Gould in
which, Defendant Gould recommended Plaintiff be placed in
administrative segregation.
29. Defendant Gould recommended that Plaintiff be placed in
administrative segregation based on information he received
from confidential informants, that Plaintiff planned to assault
Defendant Pflueger when he was released from keep-lock
confinement.
30. Plaintiff was given a hearing with respect to whether he
should be in administrative segregation.
31. Plaintiff agreed with the recommendation to be placed in
administrative segregation.
32. Plaintiff did not know Defendant Gould prior to his
recommendation that Plaintiff be placed in administrative
segregation.
*4 33. Plaintiff testified that he believed Defendant Gould
made the recommendation to place Plaintiff in administrative
segregation on behalf of Defendant Pflueger in retaliation for
Plaintiff's grievances, because “there [was] no other reason
[for Defendant Gould] to do it.”
34. Plaintiff admitted he has no direct evidence that Defendant
Gould recommended administrative segregation based on the
grievances filed by Plaintiff against Defendant Pflueger.
35. Plaintiff has no evidence that Defendant Gould even knew
about any grievances filed by Plaintiff against Defendant
Pflueger.
36. Plaintiff is not aware of any conversations that
Defendant Gould had with Defendant Pflueger in which they
discussed that Defendant Gould should file an administrative
segregation recommendation based on false information.
37. Plaintiff also alleged that after he was removed from his
cell in the Special Housing Unit on July 9, 2015, items went
missing after another inmate witnessed Defendant Pflueger
enter Plaintiff's cell.
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38. Defendant Pflueger did not pack Plaintiff's cell and he did
not remove any of Plaintiff's property.
39. The only basis for Plaintiff's contention that Defendant
Pflueger destroyed his property is that Michael Betters,
another inmate, reported seeing Defendant Pflueger enter
Plaintiff's cell.
40. According to Plaintiff, Michael Betters could not actually
see Defendant Pflueger in Plaintiff's cell.
41. Further, Plaintiff does not know who transported his
property to his new cell in the Special Housing Unit.
42. Plaintiff filed another grievance alleging that on August
4, 2015, and August 6, 2015, Defendant Pflueger threatened
Plaintiff while he was training another officer.
43. Defendant Pflueger responded to the grievance and
affirmed that on August 4, 2015, and August 6, 2015, he
showed various new officers the Special Housing Unit area,
but they did not stop at Plaintiff's cell and he certainly never
made any threatening or harassing statements to Plaintiff.
44. Plaintiff testified that at no point during his incarceration
did Defendant Pflueger use any force against him.
45. Plaintiff is not alleging any physical injuries with respect
to any of his claims.
46. The only basis on which Plaintiff brings retaliation claims
against Defendant Graham is because he denied Plaintiff's
grievances and allowed Defendant Pflueger's behavior to
continue.
47. Other than the grievances he filed, Plaintiff never sent
Defendant Graham any other correspondence about these
incidents and he never spoke with Defendant Graham in
person about them.
Exhaustion of Administrative Remedies
48. Plaintiff was familiar with the grievance process at
Auburn Correctional Facility during the relevant time period.
49. Plaintiff was aware of how to properly file a grievance and
where to appeal if he disagreed with the decision.
50. More specifically, Plaintiff was aware that a grievance
must be submitted to the Inmate Grievance Review
Committee (“IGRC”) and a decision by the IGRC could be
appealed to the Superintendent.
51. Further, Plaintiff was aware that a decision by the
Superintendent could be appealed to the Central Office
Review Committee (“CORC”).
52. Plaintiff testified that if an inmate does not receive a
response to his appeal to CORC, he must write to CORC and
inquire as to the status of his appeal.
*5 53. Plaintiff filed Grievance AUB-67199-15, in which
he complained that he was “labeled a gang member” by
Defendant Pflueger.
54. After an investigation, the Superintendent denied
Plaintiff's grievance and Defendant Pflueger was never
counseled or disciplined.
55. Plaintiff also filed Grievance AUB-67567-15, in which
he complained that on July 8, 2015, he received a false
report authored by Defendant Gould in which Defendant
Gould recommended Plaintiff be placed in administrative
segregation.
56. Grievance AUB 67567-15 also alleged that after Plaintiff
was removed from his cell in the Special Housing Unit on July
9, 2015, items went missing after another inmate witnessed
Defendant Pflueger packing Plaintiff's cell.
57. Defendant Graham denied Plaintiff's Grievance
AUB-67567-15.
D. Parties’ Briefing on Defendants’ Motion for
Summary Judgment
1. Defendants’ Memorandum of Law
Generally, in support of their motion for summary judgment,
Defendants assert three arguments. (See generally Dkt. No.
28, Attach. 3 [Defs.’ Mem. of Law].)
First, Defendants argue that Plaintiff failed to exhaust
his administrative remedies with respect to grievances
AUB-67199-15 and AUB-675667-15. (Id.) More specifically,
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Defendants argue that the Prison Litigation Reform Act
requires prisoners who bring a lawsuit in federal court to
first exhaust their available administrative remedies; this
requirement is mandatory such that, failure to comply subjects
the complaint to dismissal. 3 (Id.) Further, Defendants argue
that the New York State Department of Corrections and
Community Services (“DOCCS”) has the following three-
tiered administrative review and appeals process for prisoner
grievances: (1) review by the IGRC, (2) appellate review
of the IGRC decision by the prison superintendent, and (3)
appellate review of the prison superintendent by CORC.
(Id.) Defendants argue that Plaintiff failed to appeal the
prison superintendent's decision with respect to grievances
AUB-67199-15 and AUB-675667-15, to CORC and thus, the
claims contained in those grievances should be dismissed for
Plaintiff's failure to exhaust his administrative remedies. (Id.)
Second, Defendants argue that Plaintiff's first amendment
retaliation claims should be dismissed because (a) with
respect to Defendant Pflueger, (i) he lacks authority to “fire”
an inmate from his job, (ii) the record lacks any evidence
of a causal connection between Plaintiff's grievance of May
10, 2015, and the misbehavior report of June 17, 2015,
except temporal proximity, which is insufficient to survive a
motion for summary judgment, (iii) the misbehavior report
of June 17, 2015, was truthful and Plaintiff admitted that
he was appropriately charged with creating a disturbance
and harassment, (iv) Defendants presented non-retaliatory
reasons for Defendant Pflueger “firing” Plaintiff from his
porter duties and authoring the misbehavior report of June
17, 2015, (v) the alleged verbal harassment and threats are
not considered adverse actions for purposes of retaliation,
(vi) even if the alleged verbal harassment and threats did
constitute an adverse action, Plaintiff failed to demonstrate
any evidence of a causal connection, (vii) there is no
evidence of a causal connection between Defendant Gould's
recommendation that Plaintiff be placed in administrative
segregation and Plaintiff's grievances filed against Defendant
Pflueger, (viii) there is no evidence that Defendant Pflueger
removed or destroyed Plaintiff's property, and (ix) there is no
evidence of a causal nexus between the grievances he filed
and Defendant Pflueger allegedly destroying his property; (b)
with respect to Defendant Jones, (i) there is no evidence that
he had any knowledge that Plaintiff filed a grievance against
Defendant Pflueger, and (ii) the record is devoid of any
evidence establishing why he would file a false misbehavior
report against Plaintiff on behalf of Defendant Pflueger;
(c) with respect to Defendant Gould, (i) Plaintiff agreed
with the recommendation that he remain in administrative
segregation, (ii) there is no evidence in the record to support
a causal connection between Plaintiff's grievance against
Defendant Pflueger on May 10, 2015, and Defendant Gould's
administrative segregation recommendation on July 21, 2015,
and (iii) there is no evidence that Defendant Gould was aware
of Plaintiff's grievance against Defendant Pflueger; and (d)
with respect to Defendant Graham, (i) in the event that the
claims against Defendants Pflueger, Jones, and Gould are
dismissed, the claims against Defendant Graham must also
be dismissed because there is no supervisor liability where
there is no established underlying constitutional violation,
and (ii) even if the claims against Defendants Pflueger,
Jones, and Gould are not dismissed, the claims against
Defendant Graham still should be dismissed because he
was not personally involved in the alleged constitutional
violations. (Id.)
*6 Third, Defendants argue that, in the alternative, they
are entitled to dismissal pursuant to the doctrine of qualified
immunity. (Id.)
2. Defendants’ First Supplemental Letter Brief
Generally in their first supplemental letter brief, Defendants
re-assert the arguments set forth in their memorandum of law
and assert that (1) Plaintiff has repeatedly failed to oppose
Defendants’ motion despite being provided with notice of the
consequences of failing to respond to the motion two times,
and (2) as a result of Plaintiff's failure to respond, the Court
should deem (a) Defendants’ factual assertions as true, and (b)
Plaintiff to have consented to the legal arguments contained
in Defendants’ memorandum of law. (Dkt. No. 36.)
3. Defendants’ Second Supplemental Letter Brief
Generally in their second supplemental letter brief,
Defendants re-assert the arguments set forth in their
memorandum of law and assert that (1) Plaintiff sent
Defendants a “Response to Dispositive Motions,” which
incorrectly indicated that Defendants’ motion is based solely
on Plaintiff's timeliness and otherwise failed to address
Defendants’ arguments as to the merits of his claims, (2)
Plaintiff has now failed to oppose Defendants’ motion three
times after receiving notice that his response was required,
and (3) despite Plaintiff's request in his response for additional
time to respond, the Court should not grant this request
because their motion has been pending for nearly one year
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and Plaintiff “has been given great latitude with respect to the
Court's deadlines in this matter.” (Dkt. No. 38.)
4. Plaintiff's “Response to Dispositive Motions”
Generally, in opposition to Defendants’ motion for summary
judgment, Plaintiff acknowledged his failure to meet
deadlines and asked that the Court consider “many mitigating
factors that have contributed to this short coming” including
his release from prison, the requirements of his parole, and his
criminal history. (Dkt. No. 39.) In addition, Plaintiff asserts
that “all these Motions to Dismiss this complaint have been
based on timeliness.” (Id.) Plaintiff did not file a response to
Defendants’ Statement of Material Facts, an affidavit setting
forth any factual assertions, an opposition memorandum of
law, or any document that responded to Defendants’ legal
arguments. (See generally Dkt. No. 39.) In addition, Plaintiff
did not request any additional time to provide a more thorough
response to Defendants’ motion. (Id.)
II. RELEVANT LEGAL STANDARDS
A. Standard Governing a Motion for Summary
Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law.... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
*7 In determining whether a genuine issue of material fact
exists, the Court must resolve all ambiguities and draw all
reasonable inferences against the movant. Anderson, 477
U.S. at 255. In addition, “[the movant] bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the ... [record]
which it believes demonstrate[s] the absence of any genuine
issue of material fact.” Celotex v. Catrett, 477 U.S. 317,
323-24 (1986). However, when the movant has met its initial
burden, the non-movant must come forward with specific
facts showing a genuine issue of material fact for trial. Fed.
R. Civ. P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the
fact that, where a non-movant willfully fails to respond to a
motion for summary judgment, a district court has no duty
to perform an independent review of the record to find proof
of a factual dispute–even if that non-movant is proceeding
pro se. 5 (This is because the Court extends special solicitude
to the pro se litigant largely by ensuring that he or she has
received notice of the consequences of failing to properly
respond to the motion for summary judgment.) 6 As has often
been recognized by both the Supreme Court and Second
Circuit, even pro se litigants must obey a district court's
procedural rules. 7
Of course, when a non-movant willfully fails to respond to a
motion for summary judgment, “[t]he fact that there has been
no [such] response ... does not ... [by itself] mean that the
motion is to be granted automatically.” Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above,
the Court must assure itself that, based on the undisputed
material facts, the law indeed warrants judgment for the
movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y.
2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-
movant's failure to respond to the motion does is lighten the
movant's burden.
For these reasons, this Court has often enforced Local Rule
7.1(a)(3) by deeming facts set forth in a movant's statement
of material facts to be admitted, where (1) those facts are
supported by evidence in the record, and (2) the non-movant
has willfully failed to properly respond to that statement 8 –
even when the non-movant was proceeding pro se. 9
Similarly, in this District, where a non-movant has willfully
failed to respond to a movant's properly filed and facially
meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that
memorandum of law under Local Rule 7.1(b)(3). 10 Stated
another way, when a non-movant fails to oppose a legal
argument asserted by a movant, the movant may succeed
on the argument by showing that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a
properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate
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entitlement to the relief requested therein....”); Rusyniak
v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases);
Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2
& n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting
cases).
B. Standard Governing Exhaustion of Administrative
Remedies
*8 The Prison Litigation Reform Act of 1995 (“PLRA”)
requires that prisoners who bring suit in federal court must
first exhaust their available administrative remedies: “No
action shall be brought with respect to prison conditions
under § 1983 ... 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. The
PLRA was enacted “to reduce the quantity and improve the
quality of prisoner suits” by “afford[ing] corrections officials
time and opportunity to address complaints internally before
allowing the initiation of a federal case.” Porter v. Nussle,
534 U.S. 516, 524-25 (2002). In this regard, exhaustion serves
two major purposes. First, it protects “administrative agency
authority” by giving the agency “an opportunity to correct
its own mistakes with respect to the programs it administers
before it is haled into federal court, and it discourages
disregard of the agency's procedures.” Woodford v. Ngo, 548
U.S. 81, 89 (2006). Second, exhaustion promotes efficiency
because (a) “[c]laims generally can be resolved much more
quickly and economically in proceedings before an agency
than in litigation in federal court,” and (b) “even where a
controversy survives administrative review, exhaustion of
the administrative procedure may produce a useful record
for subsequent judicial consideration.” Woodford, 548 U.S.
at 89. “[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, 534 U.S. at
532.
In accordance with the PLRA, DOCCS has made available
a well-established inmate grievance program. 7 N.Y.C.R.R.
§ 701.7. Generally, the DOCCS Inmate Grievance Program
(“IGP”) involves the following three-step procedure for
the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g),
701.7. 11 First, an inmate must file a complaint with the
facility's IGP clerk within a certain number of days of the
alleged occurrence. 12 If a grievance complaint form is not
readily available, a complaint may be submitted on plain
paper. A representative of the facility's IGRC has a certain
number of days from receipt of the grievance to informally
resolve the issue. If there is no such informal resolution, then
the full IGRC conducts a hearing within a certain number of
days of receipt of the grievance, and issues a written decision
within a certain number of days of the conclusion of the
hearing. Second, a grievant may appeal the IGRC decision to
the facility's superintendent within a certain number of days of
receipt of the IGRC's written decision. The superintendent is
to issue a written decision within a certain number of days of
receipt of the grievant's appeal. Third, a grievant may appeal
to CORC within a certain number of days of receipt of the
superintendent's written decision. CORC is to render a written
decision within a certain number of days of receipt of the
appeal.
In addition, “[t]he regulations [ ] provide that if the plaintiff
does not get a ‘receipt’ from the CORC within 45 days of
the date he filed his appeal, he should contact the IGP to
make sure that his appeal was ‘received.’ ” Bell v. Napoli, 17-
CV-0850, 2018 WL 6506072, at *5 (N.D.N.Y. Dec. 11, 2018)
(Baxter, M.J.) (citing 7 N.Y.C.R.R. § 701.5(d)(3)(i)).
It is important to note that these procedural requirements
contain several safeguards. For example, if an inmate could
not file such a complaint within the required time period after
the alleged occurrence, he or she could apply to the facility's
IGP Supervisor for an exception to the time limit based on
mitigating circumstances. If that application was denied, the
inmate could file a complaint complaining that the application
was wrongfully denied. 13 Moreover, any failure by the IGRC
or the superintendent to timely respond to a grievance or
first-level appeal, respectively, can–and must–be appealed to
the next level, including CORC, to complete the grievance
process. 14
*9 Generally, if a prisoner has failed to properly follow
each of the required three steps of the above-described
grievance procedure prior to commencing litigation, he has
failed to exhaust his administrative remedies, and his claims
are subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534
U.S. at 524; Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175
(2d Cir. 2006). However, a plaintiff's failure to exhaust does
not end the inquiry. The Second Circuit has held that a three-
part inquiry is appropriate where a defendant contends that
a prisoner has failed to exhaust his available administrative
remedies, as required by the PLRA. Hemphill v. State of New
York, 380 F.3d 680, 686, 691 (2d Cir. 2004), accord, Ruggiero,
467 F.3d at 175. First, “the court must ask whether [the]
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administrative remedies [not pursued by the prisoner] were
in fact ‘available’ to the prisoner.” Hemphill, 380 F.3d at 686
(citation omitted). Second, if those remedies were available,
“the court should ... inquire as to whether [some or all of] the
defendants may have forfeited the affirmative defense of non-
exhaustion by failing to raise or preserve it ... or whether the
defendants’ own actions inhibiting the [prisoner's] exhaustion
of remedies may estop one or more of the defendants from
raising the plaintiff's failure to exhaust as a defense.” Id.
[citations omitted]. Third, if the remedies were available and
some of the defendants did not forfeit, and were not estopped
from raising, the non-exhaustion defense, “the Court should
consider whether ‘special circumstances’ have been plausibly
alleged that justify the prisoner's failure to comply with the
administrative procedural requirements.” Id. [citations and
internal quotations omitted]. 15
III. ANALYSIS
A. Plaintiff's Failure to Oppose the Merits of
Defendants’ Summary Judgment Motion
Before turning to the merits of Defendants’ motion, a
threshold issue to be addressed is the legal significance of
Plaintiff's failure to oppose the merits of Defendants’ motion.
Pursuant to Local Rule 7.1(b)(3), by failing to oppose
Defendants’ motion, Plaintiff has effectively consented to the
granting of the relief sought. That rule provides as follows:
Where a properly filed motion is
unopposed and the Court determines
that the moving party has met its
burden to demonstrate entitlement to
the relief requested therein, the non-
moving party's failure to file or serve
any papers as this Rule requires shall
be deemed as consent to the granting
or denial of the motion, as the case may
be, unless good cause is shown.
N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express,
766 F.3d 189, 194 (2d Cir. 2014) (holding that the district
courts may enter summary judgment in favor of the
moving party where the non-moving party fails to respond
in opposition, but not without first “ensur[ing] that each
statement of material fact is support by record evidence
sufficient to satisfy the movant's burden of production” and
“determin[ing] whether the legal theory of the motion is
sound”).
In this case, Plaintiff has not responded to the merits of
Defendants’ motion. The motion was properly filed by
Defendants, and Defendants through their motion have met
their burden of demonstrating entitlement to some of the relief
requested. With respect to the question of whether Defendants
have met their burden, I note that the “burden of persuasion is
lightened such that, in order to succeed, [their] motion need
only be ‘facially meritorious.’ ” See Rodriguez v. Goord, 04-
CV-0358, 2007 WL 4246443, at *1 (N.D.N.Y. Nov. 27, 2007)
(Scullin, J., adopting Report-Recommendation on clear error
review) (finding that determination of whether a movant has
satisfied its burden to demonstrate entitlement to a dismissal
under Local Rule 7.1(b)(3) “is a more limited endeavor than
a review of a contested motion to dismiss” (citing cases)).
Because Defendants have accurately cited both proper legal
authority and evidence in the record supporting the grounds
on which their motion is based with respect to Defendants
Jones and Gould as set forth below, and Plaintiff has
failed to respond in opposition to the merits of the motion
for summary judgment, I find that Defendants’ motion is
facially meritorious. Jackson, 766 F.3d at 194. Accordingly,
I recommend that the Court grant Defendants’ motion with
respect to Defendants Jones and Gould on this basis.
*10 It should also be noted that there are additional
consequences flowing from Plaintiff's failure to file an
opposition to Defendants’ Local Rule 7.1(a)(3) Statement
of Material Facts. Local Rule 7.1 provides, in relevant part,
that “[t]he Court shall deem admitted any properly supported
facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.” N.D.N.Y.
L.R. 7.1(a)(3) (emphasis in original). Courts in this district
have routinely enforced this rule in cases where a non-
movant has failed to properly respond. See, e.g., Elgamil
v. Syracuse Univ., 99-CV-0611, 2000 WL 1264122, at *1
(N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases).
Undeniably, pro se litigants are entitled to some measure
of forbearance when defending against summary judgment
motions. Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406,
415 (N.D.N.Y. 1997) (McAvoy, J.). The deference owed to
pro se litigants, however, does not extend to relieving them of
the ramifications associated with the failure to comply with
the court's local rules. Robinson v. Delgado, 96-CV-0169,
1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler,
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J., adopting Report-Recommendation on clear error review.).
Stated differently, “a pro se litigant is not relieved of his
duty to meet the requirements necessary to defeat a motion
for summary judgment.” Latouche v. Tompkins, 09-CV-0308,
2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue,
J.).
Here, because Plaintiff was warned of the consequences of
failing to properly respond to Defendants’ Local Rule 7.1
Statements (Dkt. No. 28 at 2; text notice dated July 3, 2019),
and he has failed to do so, I recommend that the Court
deem the facts contained in Defendants’ Local Rule 7.1(a)
(3) Statements as having been admitted to the extent they are
supported by accurate record citations. See, e.g., Latouche,
2011 WL 1103045, at *1; see also Champion v. Artuz, 76
F.3d 483, 486 (2d Cir. 1996). As to any facts not contained
in Defendants’ Local Rule 7.1(a)(3) Statements, in light of
the procedural posture of this case, the Court is “required
to resolve all ambiguities and draw all permissible factual
inferences” in favor of Plaintiff. Terry, 336 F.3d at 137.
B. Exhaustion of Grievances AUB-67199-15 and
AUB-67567-15
There is no dispute in this case that Plaintiff filed grievances
AUB-67199-15 dated May 10, 2015, and AUB-67567-15
dated July 21, 2015, and that he appealed the denial of
these grievances to the facility superintendent. The parties
only dispute whether Plaintiff completed the third step in the
grievance process by appealing to CORC.
Defendants submitted proof in admissible form by way of an
affidavit from Rachael Seguin, the custodian of the records
maintained by CORC. (Dkt. No. 28, Attach. 16.) In her
affidavit, Ms. Seguin stated that she searched record appeals
received by CORC filed by Plaintiff, and her search revealed
“no appeal for Grievance AUB-67199-15” and “no appeal for
Grievance AUB-67567-15.” (Id. at ¶¶11-12.)
However, with respect to grievance AUB-67199-15, Plaintiff
alleged in his verified Complaint 16 that “[o]n [July 3,
2015, he] received [the denial from the Superintendent]
and requested that it be appealed to the Central Office
Review Committee.” (Dkt. No. 1 at 5.) Similarly, Plaintiff
testified that after receiving the denial of his grievance from
the Superintendent, he appealed to CORC. (Dkt. No. 28,
Attach. 5 at 46.) Moreover, Plaintiff alleged in his verified
Complaint that on August 15, 2015, he “composed a letter
to the C.O.R.C. Inmate Grievance Program Supervisor Karen
Bellamy inquiring as to whether or not request for appeal
was received.” (Dkt. No. 1 at 5.) Likewise, Plaintiff testified
that he wrote a letter to CORC asking about the status of his
appeal. (Dkt. No. 28, Attach. 5 a 46.) Furthermore, Plaintiff
alleged in his verified Complaint that on September 2, 2015,
he “composed a letter to Auburn C.F. I.G.P. Supervisor Cheryl
Parmiter inquiring as to whether or not [his] appeal was
submitted as requested.” (Dkt. No. 1 at 5.) Similarly, Plaintiff
testified that “I believe that one I never received a response
from Central Office. So I wrote Albany's – Auburn's I.G.R.C.
and asked them what happened and they said they never
received an appeal.” (Dkt. No. 28, Attach. 5 at 46.)
*11 In addition, with respect to grievance AUB-67567-15,
Plaintiff alleged in his verified Complaint that “[o]n [August
15, 2015, he] received [the denial from the superintendent]
and requested that it be appealed to the C.O.R.C.” (Dkt.
No. 1 at 6.) Moreover, Plaintiff's verified Complaint alleged
that on September 29, 2015, he “composed another letter to
C.O.R.C.’s I.G.P. Supervisor Karen Bellamy informing her of
all grievances he was awaiting decisions on ... as he hadn't
yet received receipt of appeal for this grievance.” (Dkt. No.
1 at 6.)
Generally, conclusory allegations that an inmate appealed the
superintendent's grievance denial to CORC are insufficient
to withstand a motion for summary judgment. See Gibbs v.
Gadway, 19-CV-0281, 2019 WL 5191506, at *3 (N.D.N.Y.
Oct. 15, 2019) (Stewart, M.J.) (recommending dismissal
based on the plaintiff's failure to exhaust his administrative
remedies where the plaintiff made “a purely conclusory
allegation that he appealed the grievance denial to CORC.”).
However, the case law implies that where a plaintiff sets forth
the date that he or she appealed the grievance to CORC, that
may be enough to survive a motion for summary judgment.
C.f. Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at
*3 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.) (recommending
dismissal of the plaintiff's claims for failure to exhaust his
administrative remedies where the plaintiff “has not provided
a copy of the grievance appeal or even asserted what date
he filed the appeal.”); Gough v. Morris, 16-CV-1107, 2018
WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018) (Stewart,
M.J.) (recommending dismissal based on the plaintiff's failure
to exhaust his administrative remedies where he testified
that he appealed the superintendent's response to CORC but
there was no evidence in the record that (a) the grievance
or the superintendent's response were appealed to CORC
and, (b) despite not receiving a response from CORC, the
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plaintiff testified that he did not write to CORC to follow-
up); Campbell v. Prue, 16-CV-0004, 2018 WL 4635708, at
*5 (N.D.N.Y. July 3, 2018) (Hummel, M.J.) (“Although [the
plaintiff] alleges that he filed [a] grievance ..., plaintiff does
not state when he filed such grievance.... Further, plaintiff
has not provided a copy of the alleged grievance or the
Marcy IGRC's denial of that grievance.”); Toliver v. Stefinik,
12-CV-0077, 2016 WL 3349316, at *6 (N.D.N.Y. June 15,
2016) (D'Agostino, J.) (“vague and conclusory allegations ...
[regarding] grievances ... do not, in light of the documentation
Defendants have provided about Plaintiff's grievance history,
create a factual dispute material to the issue of whether
Plaintiff exhausted his administrative remedies.”); Smith v.
Kelly, 985 F. Supp. 2d 275, 289 (N.D.N.Y. 2013) (Suddaby, J.)
(granting the defendants’ motion for summary judgment on
the issue of exhaustion where the plaintiff failed to “identify
the name of the ‘IGRC's supervisor’ who purportedly told
him that a new prisoner does not file a grievance at Auburn
C.F. if it pertains to the prisoner's previous facility, nor does
he specify the date, means or location of this purported
communication.”).
Mindful that a court should not resolve credibility issues
when deciding a motion for summary judgment, and
that Defendants bear the ultimate burden of proving
that Plaintiff did not exhaust his administrative remedies,
I conclude that there appears to be a material issue
of fact regarding whether Plaintiff appealed grievances
AUB-67199-15 and AUB-67567-15. 17 As a result, I
recommend that Defendants’ motion be denied on this basis.
C. Whether Plaintiff's First Amendment Retaliation
Claims Should Nevertheless be Dismissed
*12 A cognizable claim of retaliation pursuant to 42 U.S.C.
§ 1983 lies when prison officials take an adverse action
against an inmate that is motivated by the inmate's exercise
of a constitutional right, including the free speech provisions
of the First Amendment. See Friedl v. City of N.Y., 210 F.3d
79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will
lie where the government takes negative action against an
individual because of his exercise of rights guaranteed by
the Constitution or federal laws.”). As the Second Circuit
has repeatedly cautioned, however, because such claims are
easily incanted and inmates often attribute adverse action,
including the issuance of misbehavior reports, to retaliatory
animus, courts must approach such claims “with skepticism
and particular care.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir. 2001), overruled on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord,
320 F.3d 346, 352 (2d Cir. 2003).
To state a prima facie claim pursuant to 42 U.S.C. § 1983 for
retaliatory conduct, a plaintiff must advance non-conclusory
allegations establishing that (1) the conduct at issue was
protected, (2) the defendants took adverse action against the
plaintiff, and (3) there was a causal connection between the
protected activity and the adverse action–in other words, that
the protected conduct was a “substantial or motivating factor”
in the prison officials’ decision to take action against the
plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247,
251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065,
2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe,
M.J.).
If the plaintiff carries this burden, then to avoid liability the
defendants must show by a preponderance of the evidence
that they would have taken action against the plaintiff even
in the absence of the protected conduct. Mount Healthy, 429
U.S. at 287. If taken for both proper and improper reasons,
state action may be upheld if the action would have been taken
based on the proper reasons alone. Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996) (citations omitted).
Analysis of retaliation claims thus requires careful
consideration of the protected activity in which the inmate
plaintiff has engaged, the adverse action taken against
him or her, and the evidence tending to link the two.
When such claims, which are exceedingly case specific, are
alleged in only conclusory fashion, and are not supported
by evidence establishing the requisite nexus between any
protected activity and the adverse action complained of,
a defendant is entitled to the entry of summary judgment
dismissing plaintiff's retaliation claims. Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
1. Defendant Pflueger
Plaintiff alleges that Defendant Pflueger retaliated against
him during four separate incidents: (1) firing Plaintiff as
a feed up porter and filing a false misbehavior report on
June 17, 2015, (2) verbal harassment on (a) an unspecified
dated in June or July 2015, (b) August 4, 2015, and (c)
August 6, 2015, (3) causing Defendant Gould to file a
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false administrative segregation recommendation, and (4) the
destruction of Plaintiff's personal property.
a. Incident on June 17, 2015 18
*13 Defendants argue that Plaintiff's retaliation claim with
respect to the incidents on June 17, 2015, fails based on
the third element, that there is no evidence in the record to
support the contention that Plaintiff was retaliated against for
his protected speech. 19
In considering whether there is a “causal connection between
the protected speech and the adverse action, a court may
consider a number of factors, including any statements made
by the defendant concerning his motivation and the temporal
proximity between the protected activity and the defendant's
adverse action.” Roseboro v. Gillespie, 719 F. Supp. 2d 353,
366 (S.D.N.Y. 2011); see also Tuitt v. Chase, 11-CV-0776,
2013 WL 877439, at *7 (N.D.N.Y. Jan. 30, 2013) (Dancks,
M.J.), report and recommendation adopted, 2013 WL 877617
(N.D.N.Y. Mar. 8, 2013) (factors relevant to a consideration
of causal connection “include: (i) the temporal proximity
between the protected activity and the alleged retaliatory
act; (ii) the inmate's prior good disciplinary record; (iii)
vindication at a hearing on the matter; and (iv) statements by
the defendant concerning his or her motivation”). The Second
Circuit has “held that temporal proximity between protected
conduct and an adverse action constitutes circumstantial
evidence of retaliation,” but has also “consistently required
some further evidence of retaliatory animus before permitting
a prisoner to proceed to trial on a retaliation claim.”
Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017);
see also Thomas v. Waugh, 13-CV-0321, 2015 WL 5750945,
at *4 (N.D.N.Y. Sept. 30, 2015) (D'Agostino, J. adopting
Report-Recommendation on de novo review) (citing Slattery
v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.
2001)) (“temporal proximity alone is insufficient to establish
an inference of retaliation.”).
*14 Here, in addition to temporal proximity connecting
Plaintiff's grievance of May 10, 2015, to the incident on
June 17, 2015, 20 Defendant Pflueger's alleged statements
provide circumstantial evidence of causation. Plaintiff's
verified Complaint alleged that on August 4, 2015, Defendant
Pflueger said to another correction officer, “[t]his is also
where we keep idiots like this guy who think they can snitch
on officers and nothing's going to happen to them,” and
“[h]ow'd that work out for you stupid? You want to help me
explain to him how our grievance procedure works?” (Dkt.
No. 1 at 24-25.) Moreover, the verified Complaint alleged
that on August 6, 2015, Defendant Pflueger said, “[o]h, and
just so you know, I didn't forget about your latest grievance
either. You better say a prayer to your White Supremacist
God that I'm not here on the day they bring you down to
the draft room, because I'll be watching the change sheet.
You're not gonna make it outta here in 1 piece.” (Dkt. No. 1
at 25.) These statements provide circumstantial evidence that
Defendant Pflueger's actions on June 17, 2015, firing Plaintiff
from his job as a feed up porter and filing a misbehavior
report against him that ultimately resulted in his placement
in keep-lock confinement for thirty days, were in retaliation
for Plaintiff's grievance of May 10, 2015. See Cole v. N.Y.S.
Dep't of Corr. and Cmty. Supervision, 14-CV-0539, 2016 WL
5394752, at *26 (N.D.N.Y. Aug. 25, 2016) (Peebles, M.J.)
(finding an issue of fact as to retaliation where the defendant
allegedly said (a) “Happy Anniversary” in reference to prior
assaults and a lawsuit that resulted from those assaults, and (b)
that the assault was “payback” for the plaintiff's grievances);
Roland v. McMonagle, 12-CV-6331, 2015 WL 5918179, at
*6 (S.D.N.Y. Oct. 9, 2015) (finding an issue of fact as to
retaliation where there was evidence that the defendants were
aware of the plaintiff's complaints and mocked him for filing
grievances). 21
As a result, the burden shifts to Defendants to show by a
preponderance of the evidence that they would have taken
action against the plaintiff even in the absence of the protected
conduct. Mount Healthy, 429 U.S. at 287.
With respect to the “firing” of Plaintiff as a feed up
porter, Defendants submitted a non-retaliatory reason—that
Defendant Pflueger observed Plaintiff pass an unidentified
object into the cell of another inmate. (Dkt. No. 28, Attach.
10 at ¶13.) However, Plaintiff testified that he did not pass
any unidentified items into another inmate's cell. (Dkt. No.
28, Attach. 5 at 51-52.) As a result, I find that a material issue
of fact remains for trial.
However, with respect to the allegedly false misbehavior
report, Plaintiff admitted some of the allegations contained in
the misbehavior report. More specifically, Plaintiff admitted
that he yelled profanities as he walked back to his cell
and that while in his cell, he made derogatory statements
about Defendant Pflueger loud enough to be heard by an
inmate on a different floor. (Dkt. No. 28, Attach. 5 at 54-55.)
This admission “suggests that ‘plaintiff committed the most
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serious, if not all, of the prohibited conduct charged in the
misbehavior report.’ ” Flynn v. Ward, 15-CV-1028, 2018 WL
3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.)
(quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)).
As a result, Defendants have established a non-retaliatory
reason for the filing of the misbehavior report of June 17,
2015. Flynn, 2018 WL 3195095, at *12 (citing Hynes v.
Squillace, 143 F.3d 653, 657 (2d Cir. 1998) (concluding that
plaintiff's admission of the underlying conduct established a
“proper, non-retaliatory reason[ ] for filing the misbehavior
report.”)); see also Hynes v. Squillace, 143 F.3d 653, 657
(2d Cir. 1998) (where plaintiff admitted to committing the
most serious, if not all, of the prohibited conduct charged
in the misbehavior report, “defendants met their burden of
demonstrating proper, non-retaliatory reasons for filing the
misbehavior report.”).
*15 As a result, I recommend that Defendants’ motion for
summary judgment be granted with respect to the allegedly
false misbehavior report of June 17, 2015, and be denied with
respect to the “firing” of Plaintiff as a feed up porter.
b. Verbal Harassment
Plaintiff alleges that sometime in June or July 2015, he
was verbally harassed when Defendant Pflueger told another
officer that he was going to “kick [P]laintiff's f******
a**.” (Dkt. No. 1 at 19.) In addition, Plaintiff alleges that on
August 4, 2015, Defendant Pflueger said to another correction
officer, “[t]his is also where we keep idiots like this guy who
think they can snitch on officers and nothing's going to happen
to them,” and “[h]ow'd that work out for you stupid? You
want to help me explain to him how our grievance procedure
works?” (Dkt. No. 1 at 24-25.) 22 Moreover, Plaintiff alleges
that on August 6, 2015, Defendant Pflueger said, “[o]h, and
just so you know, I didn't forget about your latest grievance
either. You better say a prayer to your White Supremacist God
that I'm not here on the day they bring you down to the draft
room, because I'll be watching the change sheet. You're not
gonna make it outta here in 1 piece.” (Dkt. No. 1 at 25.)
In this Circuit, allegations of verbal harassment or threats
are generally an insufficient basis for an inmate's § 1983
claim. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d
Cir. 1986) (“The claim that a prison guard called Purcell
names also did not allege any appreciable injury and was
properly dismissed”); Hayes v. Dahkle, 16-CV-1368, 2017
WL 9511178, at *7 (N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.)
(“[v]erbal harassment absent injury, is generally insufficient
to rise to the level of a constitutional violation”); Tafari
v. Paul, 06-CV-0603, 2009 WL 3260075, at *1 (W.D.N.Y.
Oct. 8, 2009) (allegations of verbal harassment or abuse,
“without a showing of an actual injury, are insufficient to
support a § 1983 claim”) (citing Lewis v. Casey, 518 U.S. 343,
349-50 (1996)); Alexander v. Deming, 03-CV-0147, 2009 WL
1044561, at *5 (W.D.N.Y. Apr. 16, 2009) (“Courts within the
Second Circuit have held that threats of disciplinary action
and verbal harassment without injury are insufficient to state
a constitutional violation”) (citing cases); Ramirez v. Holmes,
921 F. Supp. 204, 210 (S.D.N.Y. 1996) (“Allegations of
threats or verbal harassment, without any injury or damage,
do not state a claim under 42 U.S.C. § 1983.”). “Such
statements are only sufficiently adverse for the purpose
of a First Amendment retaliation claim if they ‘would
deter a similarly situated individual of ordinary firmness of
exercising constitutional rights.’ Verbal threats may constitute
[an] adverse action if the threat is sufficiently specific. ‘The
less direct and specific a threat, the less likely it will deter
an inmate from exercising his First Amendment rights.’ ”
Hayes, 2017 WL 9511178, at *7 (citations omitted). “The
line between de minimis verbal harassment and retaliatory
adverse action ... [hinges] on the specificity and seriousness
of the words used.” Quezada v. Roy, 14-CV-4056, 2015 WL
5970355, at *21 (S.D.N.Y. Oct. 13, 2015).
*16 “Mindful that inmates ‘may be required to tolerate
more than average citizens[ ] before a retaliatory action
taken against them is considered adverse’ ” Davis, 320
F.3d at 353, I conclude that Defendant Pflueger's alleged
statements constitute vague threats that lack the specificity
and seriousness “to deter an inmate from exercising his
First Amendment rights” as no real threat exists. Id.; see
Hayes, 2017 WL 9511178, at *8 (holding that where a
correction officer allegedly verbally harassed the plaintiff
on two occasions “warning him to not get comfortable in
his housing unit because ‘you mess with one of us (C.O.’s)
you got to deal with all of us’ and informing plaintiff that
‘[another correction officer] said hi!’ .... constitute vague
threats that lack the specificity and seriousness ‘to deter an
inmate from exercising his First Amendment rights’ as no real
threat exists.”).
Furthermore, with respect to Defendant Pflueger's alleged
threats of physical injury, Plaintiff “does not ... allege that
these threats were followed by any physical injury[,] and as
a result, they are not actionable.” LaRocco v. N.Y.C. Dep't
of Corr., 99-CV-9759, 2001 WL 1029044, at *5 (S.D.N.Y.
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Aug. 31, 2001). “Absent an appreciable injury following
in close time to the threat of force [Defendant Pflueger's
alleged] statement[ ], albeit inappropriate, lack the specificity
and seriousness ‘to deter an inmate from exercising his
First Amendment rights.’ ” Hayes, 2017 WL 9511178, at *8
(quoting Quezada v. Roy, 14-CV-4056, 2015 WL 5970355, at
*21 (S.D.N.Y. Oct. 13, 2015)).
As a result, to the extent the Complaint is construed
as alleging that these incidents of verbal harassment
were adverse actions—as opposed to evidence of a
causal connection with respect to other adverse actions—I
recommend dismissal of these claims.
c. Causing Defendant Gould to File a False
Administrative Segregation Recommendation
Plaintiff has failed to adduce evidence in the record that
Defendant Pflueger directed or caused Defendant Gould to
file a false misbehavior report against Plaintiff. In fact,
Defendant Gould affirmed that he “had no knowledge at
the time [his] recommendation was made that Plaintiff had
filed any grievances against Defendant [Pflueger].” (Dkt.
No. 28, Attach. 6 at ¶ 11.) In addition, Plaintiff testified
that (1) he did not know Defendant Gould before Defendant
Gould made the recommendation that Plaintiff be placed in
administrative segregation (Dkt. No. 28, Attach. 5 at 63),
(2) he has no recollection of ever seeing Defendant Gould
before the recommendation (id.), and (3) he is not aware of
any conversations that Defendant Gould had with Defendant
Pflueger, in which, they discussed that Defendant Gould
should file an administrative segregation recommendation
based on false information (id. at 65).
The contention that Defendant Pflueger retaliated against
Plaintiff by causing Defendant Gould to file a false
administrative segregation recommendation is merely a
conclusory allegation, which is insufficient to establish
genuine issue of material fact for trial. In addition, this
contention is sheer surmise on Plaintiff's part and unsupported
by the record. (Dkt. No. 28, Attach. 5 at 64 (Plaintiff testified
that the basis for his belief that Defendant Gould filed the
recommendation on Defendant Pflueger's behalf is “[b]ecause
there is no other reason to do it.”)); Cole, 2016 WL 5394752,
at *27.
As a result, I recommend dismissal of Plaintiff's retaliation
claim against Defendant Pflueger with respect to this
allegation.
d. Destruction of Plaintiff's Personal Property
Plaintiff failed to adduce any evidence that Defendant
Pflueger destroyed (or confiscated or threw away) Plaintiff's
personal property. The only evidence that Plaintiff presents in
support of his contention, is that another inmate (housed three
cells away) witnessed Defendant Pflueger in Plaintiff's cell.
(Dkt. No. 1 at 23.) However, Plaintiff admitted that the other
inmate “was inside his cell, so he couldn't see [Defendant
Pflueger] inside [Plaintiff's] cell.” (Dkt. No. 28, Attach. 5 at
71.) Moreover, it is undisputed that other individuals were
involved in the removal of Plaintiff's property from his cell
and the transportation of that property to the special housing
unit. (Id.; Dkt. No. 1 at 23.) Plaintiff is speculating that
because the other inmate saw Defendant Pflueger in Plaintiff's
cell, that Defendant Pflueger is responsible for Plaintiff's
alleged missing personal property. However, this speculation
is insufficient to create a material issue of fact for trial because
no reasonable juror could conclude that Defendant Pflueger
took an adverse action against Plaintiff by destroying his
property.
*17 As a result, I recommend dismissal of Plaintiff's
retaliation claim against Defendant Pflueger with respect to
this allegation.
2. Defendant Jones
Plaintiff failed to show a genuine issue of material fact
that his protected conduct was a substantial or motivating
factor in Defendant Jones's endorsement of Defendant
Pflueger's misbehavior report dated June 17, 2015. Graham
v. Henderson, 89 F.3d 75, 81 (2d Cir. 1996). “[I]t is difficult
to establish one defendant's retaliation for complaints against
another defendant.” Hare v. Hayden, 09-CV-3135, 2011 WL
1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (citing Wright v.
Goord, 554 F.3d 255, 274 (2d Cir. 2009)).
Here, Plaintiff did not file any grievances or complaints
against Defendant Jones. The record lacks any evidence
establishing why Defendant Jones would endorse a false
misbehavior report against Plaintiff, on Defendant Pflueger's
behalf, beyond Plaintiff's conclusory allegations. See Hill v.
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Chalanor, 128 F. App'x 187, 189 (2d Cir. 2005) (holding
that the plaintiff's claim of a causal connection between
defendant “Oliver's threats and the alleged actions of the
other defendants in connection with Hill's medical care is
wholly unsupported.”) Flynn v. Ward, 15-CV-1028, 2018 WL
3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.)
(recommending dismissal of retaliation claims where “[t]he
record lacks any evidence establishing why Alsante would
file a false misbehavior report against Flynn, on Wellenstein's
behalf, beyond Flynn's conclusory allegations.”). Without
more, the evidence does not present a genuine issue of
material fact for a jury to resolve. Flynn, 2018 WL 3195095;
see Wright, 554 F.3d at 274 (dismissing retaliation claim
against a correction officer when the only alleged basis
for retaliation was a complaint about an incident involving
another correction officer); Alicea v. Maly, 12-CV-0203,
2015 WL 4326114, at *14-15 (N.D.N.Y. July 14, 2015)
(D'Agostino, J.) (dismissing retaliation claim which alleged
that Correction Officer Trinidad retaliated against the plaintiff
for protected actions he took with respect to Correction
Officer Freeman, where the plaintiff alleged a close personal
friendship between Trinidad and Freeman and the record
was “devoid of any specifics, but replete with conclusions”);
Guillory v. Ellis, 11-CV-0600, 2014 WL 4365274, at *18
(N.D.N.Y. Aug. 28, 2014) (D'Agostino, J.) (“[I]t is difficult
to establish one defendant's retaliation for complaints against
another defendant.”); Roseboro v. Gillespie, 791 F. Supp. 2d
353, 369 (S.D.N.Y. 2011) (plaintiff failed to provide any basis
to believe that a correction counselor would retaliate for a
grievance that she was not personally named in); Ciaprai
v. Goord, 02-CV-0915, 2005 WL 3531464, at *9 (N.D.N.Y.
Dec. 22, 2005) (Sharpe, J.) (entering summary judgment on
retaliation claim where the plaintiff cited only past grievances
filed against correction officers other than the officer who
disciplined the plaintiff).
As a result, I recommend that Plaintiff's retaliation claim
against Defendant Jones be dismissed.
3. Defendant Gould
For the reasons set forth above in Parts III.C.1.c. and
III.C.2. of this Report-Recommendation, I find that the
record lacks evidence establishing a causal connection
between Defendant Gould's recommendation that Plaintiff be
placed in administrative segregation and Plaintiff's grievances
against Defendant Pflueger, beyond Plaintiff's conclusory
allegations. As a result, I recommend that Plaintiff's
retaliation claim against Defendant Gould be dismissed.
4. Defendant Graham
*18 The Second Circuit has previously indicated that
supervisory defendants may be considered personally
involved only if they “(1) directly participated in the alleged
constitutional violation, (2) failed to remedy that violation
after learning of it through a report or appeal, (3) created,
or allowed to continue, a policy or custom under which
the violation occurred, (4) had been grossly negligent in
managing subordinates who caused the violation, or (5)
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that the violation
was occurring.” Rasheen v. Adner, 356 F. Supp. 3d 222,
233 (N.D.N.Y. Jan. 28, 2019) (Hurd, D.J.) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). 23
The Supreme Court's decision in Iqbal has raised the question
of whether all of the Colon factors continue to be viable.
Keyes v. Annucci, 19-CV-0372, 2019 WL 4602240, at *17
(N.D.N.Y. Sept. 23, 2019) (Suddaby, C.J.) (citing Montanez
v. City of Syracuse, 16-CV-0550, 2019 WL 315058, at *17
(N.D.N.Y. Jan. 23, 2019) (Sannes, J.)). Neither the Second
Circuit nor the Supreme Court have made any findings on
this issue. Keyes, 2019 WL 4602240, at *17. “Courts within
the Second Circuit have taken various approaches post-Iqbal,
from finding that only the first and third factors remain viable,
to continuing to apply all factors in the absence of Second
Circuit guidance, to considering the specific constitutional
provision underlying the claim and applying all the Colon
factors to claims that rely on a standard of unreasonable
conduct or deliberate indifference but declining to apply
all of them where the claim requires instead a showing
of discriminatory intent.” Id. (see Montanez, 2019 WL
315058, at *17-18 (collecting cases) (adopting the specific
constitutional provision approach and applying all the Colon
factors to the plaintiff's Fourteenth Amendment claims
because they did not require a showing of discriminatory
intent); Carpenter v. Apple, 15-CV-1269, 2017 WL 3887908,
at *9-10 (N.D.N.Y. Sept. 5, 2017) (Suddaby, C.J.) (noting
that the majority of district courts have continued to apply
all of the Colon factors “where the constitutional violation
at issue does not require a showing of discriminatory intent”
and adopting that majority approach); Marom v. City of New
York, 15-CV-2017, 2016 WL 916424, at *15 (S.D.N.Y. 2016)
(reasoning that Iqbal supported the specific constitutional
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provision approach, and finding that all the Colon factors
might be viable for false arrest and excessive force claims
that were based on a reasonableness standard, but that the
second, fourth, and fifth factors would not apply to a First
Amendment retaliation claim because such claim contains an
intent requirement)).
The Court agrees with the specific constitutional provision
approach discussed above because it is the most consistent
with the guidance provided in Iqbal. See Iqbal, 556 U.S.
at 676 (noting that, “[t]he factors [related to whether
a government official's individual actions violated the
Constitution] necessary to establish a Bivens violation will
vary with the constitutional provision at issue,” discussing
that the First and Fifth Amendments require that the official
acted with a discriminatory purpose, and rejecting the
argument that supervisors should be held liable on such claims
merely because they knew of a subordinate's discriminatory
purpose). The Court will therefore consider only the first and
third Colon factors because Plaintiff's claims are pursuant to
the First Amendment.
*19 “[A] retaliation claim under the First amendment
requires a showing of discriminatory intent, [and as a result,]
supervisory liability will be imposed only if Plaintiff[ ]”
establishes “that the officials either (a) directly participated in
the alleged constitutional violation, or (b) created, or allowed
to continue, a policy or custom under which the violation
occurred.” Keyes, 2019 WL 4602240, at *19.
“[W]hile personal involvement cannot be founded solely on
supervision, liability can be found if the official proactively
participated in reviewing the administrative appeals as
opposed merely to rubber-stamping the results.” Molano v.
Bezio, 10-CV-6481, 2012 WL 1252630, at *5 (W.D.N.Y. Apr.
13, 2012) (citing Collins v. Ferguson, 804 F. Supp. 2d 134,
140 (W.D.N.Y. 2011); Black v. Coughlin, 76 F.3d 72, 74-75
(2d Cir. 1996)).
The record before the Court contains superintendent
responses related to four grievances. (Dkt. No. 28, Attach.
11 at 1; Dkt. No. 28, Attach. 12 at 2; Dkt. No. 28, Attach.
14 at 1; Dkt. No. 28, Attach. 15 at 6; Dkt. No. 28, Attach.
18 at 1; Dkt. No. 28, Attach. 19 at 1.) However, the
signature of the superintendent who executed the response,
in each instance, is illegible. While Defendants argue that
Defendant Graham merely rubber stamped the results of the
investigation, “notably absent from the record is any affidavit
or declaration from [Defendant Graham]” and absent “such
evidence, a factual dispute exists as to whether [Defendant
Graham] proactively participated in the decision-making
process related to [Plaintiff's] grievances.” Flynn, 2018 WL
3195095, at *13.
As such, I find that there is a triable issue of material fact for
a jury to resolve with respect to Defendant Graham's personal
involvement in Defendant Pflueger's alleged retaliatory
conduct. Flynn, 2018 WL 3195095, at *13 (citing Celotex v.
Catrett, 477 U.S. 317, 323 (1986)). Therefore, I recommend
that Defendants’ motion with respect to Defendant Graham
be denied.
D. Doctrine of Qualified Immunity
Finally, Defendants argue that, in any event, they are shielded
from liability based on the doctrine of qualified immunity.
Qualified immunity shields federal and state officials from
suit “ ‘unless [1] the official violated a statutory or
constitutional right that [2] was clearly established at the time
of the challenged conduct.’ ” Terebesi v. Torreso, 764 F.3d
217, 230 (2d Cir. 2014) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)). “A right is ‘clearly established’ if ‘it would
be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.’ ” Beckles v. City of New York,
492 F. App'x 181, 182 (2d Cir. 2012) (quoting Saucier v. Katz,
533 U.S. 194, 202 (2001)).
Here, while Defendants summarize general caselaw, their
argument in support of the qualified immunity defense is
one paragraph long, entirely conclusory, and unsupported by
any facts. Accordingly, it is recommended that Defendants’
motion on this ground, be denied. Thomas v. Delany, 17-
CV-1023, 2019 WL 4247807, at *19 (N.D.N.Y. Aug. 13,
2019) (Hummel, M.J.) (citing Roberts v. Hobbs, 10-CV-0174,
2010 WL 5888777, at *6 (E.D. Ark. Nov. 8, 2010) (summarily
denying dispositive motion containing unsupported and
conclusory qualified immunity arguments that fail to address
the particular facts or cite any relevant cases)).
ACCORDINGLY, it is
RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 28) be DENIED with respect to Plaintiff's
retaliation claims against (1) Defendant Pflueger for firing
Plaintiff as a feed up porter, and (2) Defendant Graham as
superintendent and GRANTED with respect to Plaintiff's
retaliation claims against (1) Defendants Jones, (2) Defendant
Gould, and (3) Defendant Pflueger for allegedly (a) filing
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a false misbehavior report against Plaintiff on June 17,
2015, (b) verbally harassing Plaintiff, (c) causing Defendant
Gould to file an improper recommendation of administrative
segregation, and (d) destroying Plaintiff's property.
*20 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
72.1(c), the parties have fourteen (14) days within which
to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
(citing Small v. Sec. of Health & 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.
It is hereby respectfully ORDERED that the Clerk of the
Court shall file a copy of this Report-Recommendation on
the docket of this case and serve a copy upon the parties in
accordance with the local rules. 24
All Citations
Not Reported in Fed. Supp., 2019 WL 8015209
Footnotes
1 The Court notes that Defendants sometimes refer to Defendant Pflueger as Defendant “Plfueger” or
“Pfleuger.” (See Dkt. No. 28, Attach. 1; Dkt. No. 28, Attach. 3; Dkt. No. 28, Attach. 10.) However, for the sake
of consistency, the Court will refer to him as Defendant Pflueger, as reflected on the docket. (See generally
docket sheet.)
2 The Court notes that the citation provided by Defendants for this fact does not support the fact asserted. See
New York State Dep't of Corr. And Comty. Servs., http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/
WINQ130 (last visited November 25, 2019). However, the Court deems the fact admitted because Plaintiff
failed to deny it. Estate of D.B. by Briggs v. Thousand Islands Cent. Sch. Dist., 327 F. Supp. 3d 477, 485
n.2 & n.13 (N.D.N.Y. 2018) (Suddaby, C.J.) (“where a non-movant neither admits nor disputes a fact, the
response is deemed an admission”); Costello v. N.Y. State Nurses Ass'n, 783 F. Supp. 2d 656, 661 n.5
(S.D.N.Y. 2011) (disregarding the plaintiff's responses to the defendant's statement of material facts not in
dispute where the plaintiff's response paragraphs did not specifically dispute the defendant's statements or
consisted of “conclusory allegations, speculation, or conjecture.”); In re Horowitz, 14-CV-36884, 2016 WL
1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (stating that, “a response contending to neither admit or
deny an allegation does not create a genuine issue of fact”); accord, Piacente v. Int'l Union of Bricklayers &
Allied Craftworkers, 11-CV-1458, 2015 WL 5730095, at *2 n.3 (S.D.N.Y. Sept. 30, 2015).
3 Defendants acknowledge that there are “certain caveats” to the PLRA's exhaustion requirement, however
Defendants argue that those caveats are inapplicable here.
4 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has
explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
5 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
6 Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
7 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
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8 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to the movant's
Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching
numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue
arises. N.D.N.Y. L. R. 7.1(a)(3).
9 Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F. Supp. 2d 369,
371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of
the record to find proof of a factual dispute.”).
10 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999)
(McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants
in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for
defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3]); Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.)
(deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
11 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. Mar. 31, 2010) (citation
omitted) (Suddaby, J.).
12 The Court uses the term “a certain number of days” rather than a particular time period because (1) since
the three-step process was instituted, the time periods imposed by the process have changed, and (2) the
time periods governing any particular grievance depend on the regulations and directives pending during the
time in question.
13 See Murray, 2010 WL 1235591, at *2 & n.3 (citing Groves v. Knight, 05-CV-0183, Decision and Order at 3
(N.D.N.Y. filed Aug. 4, 2009), an appeal from which was subsequently dismissed as frivolous, see Groves v.
Knight, No. 09-3641, Mandate (2d Cir. Filed Jan. 15, 2010)).
14 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next step.”);
see also Murray, 2010 WL 1235591, at *2 & n.4 (collecting cases).
15 The Court notes that the Supreme Court recently eliminated this third inquiry, and courts are no longer
permitted to excuse a prisoner's failure to exhaust his administrative remedies because of “special
circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016).
16 “Although ‘a plaintiff's pro se status does not allow him to rely on conclusory allegations or unsubstantiated
speculation to overcome a motion for summary judgment,’ Almonte v. Florio, 02-CV-6722, 2004 WL 60306,
at *3 n.10 (S.D.N.Y. Jan. 13, 2004) (citation and italics omitted), where a plaintiff ‘verifie[s] his complaint
by attesting under penalty of perjury that the statements in the complaint [are] true and to the best of his
knowledge,’ the ‘verified complaint is to be treated as an affidavit for summary judgment purposes,’ Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).” King v. Puershner, 17-CV-1373, 2019 WL 4519692, at *1 n.1
(S.D.N.Y. Sept. 19, 2019).
17 The Court notes that this conclusion is based on the special solicitude afforded to Plaintiff as a pro se litigant.
Further, the Court notes that the evidence in the record to support the exhaustion of Plaintiff's administrative
remedies is sparse. See c.f. Richardson v. Eberth, 14-CV-6138, 2016 WL 1271078, at *2-3 (W.D.N.Y. Mar.
29, 2016) (dismissing based on failure to exhaust administrative remedies where the plaintiff attached a copy
of his original grievance which did not “bear any indicia that it was received or provided to any individual at the
jail for transmission to the CORC” and his affidavit submitted in opposition failed to provide any specific details
to support his allegation that he appealed his grievance to CORC (e.g. it did not state what specific person
he gave it to in the prison, on what date he gave the appeal to anyone at the prison, or any other pertinent
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or specific information to support his allegations)); Toliver v. Stefinik, 12-CV-0077, 2016 WL 3349316, at *6
(June 15, 2016) (D'Agostino, J.) (dismissing for failure to exhaust administrative remedies where the plaintiff
submitted a copy of a formal grievance dated March 9, 2011, that was not reflected in the defendants’ records
but where the plaintiff alleged that he “circulated” the grievance to the defendants and it was unclear whether
the grievance was ever submitted to IGRC).
18 Defendants argue that Defendant Pflueger, as a correction officer, would not have had authority to fire Plaintiff
as a feed up porter. (Dkt. No. 28, Attach. 3 at 17-18; Dkt. No. 28, Attach. 10 at ¶11.) However, there is evidence
in the record that disputes this assertion and creates an issue of fact for trial. (Dkt. No. 28, Attach. 5 at 49.)
19 It is undisputed that Plaintiff engaged in constitutionally protected speech by the filing of grievances. (Dkt.
No. 1 at 5-7; Dkt. No. 28, Attach. 11; Dkt. No. 28, Attach. 12; Dkt. No. 28, Attach. 14; Dkt. No. 28, Attach. 15;
Dkt. No. 28, Attach. 18; Dkt. No. 28, Attach. 19.) See also Flood v. Cappelli, 18-CV-3897, 2019 WL 3778736,
at *7 (S.D.N.Y. Aug. 2, 2019) (collecting cases) (holding that the filing of a grievance is protected speech).
In addition, the alleged actions taken by Defendants constitute adverse actions because they would deter
a prisoner of “ordinary firmness” from exercising his rights. See Johnson v. Schiff, 17-CV-8000, 2019 WL
4688542, at *24 (S.D.N.Y. Sept. 26, 2019) (collecting cases) (holding that the filing of a false misbehavior
report against a prisoner is an adverse action); Hayes v. Dahkle, 16-CV-1368, 2017 WL 9511178, at *11
(N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.) (holding that the “filing of a falsified misbehavior report that results
in disciplinary segregated confinement constitutes adverse action.”); Casey v. Pallito, 12-CV-0284, 2016
WL 96157, at *7 (D. Vt. Jan. 7, 2016) (holding that terminating a prisoner's employment is an “adverse
action.”); Chavis v. Struebel, 317 F. Supp. 2d 232, 238 (W.D.N.Y. 2004) (noting that “assigning the inmate
[to] less desirable work assignments satisfies the adverse action requirement” for purposes of a prisoner's
First Amendment retaliation claim).
20 “In assessing temporal proximity, the Second Circuit has established that no more than six months between
the protected activity and the adverse action establishes the temporal proximity sufficient to support an
inference of causal connection.” Hayes v. Dahkle, 16-CV-1368, 2017 WL 9511178, at *9 (N.D.N.Y. Oct. 30,
2017) (Hummel, M.J.) (citing King v. McIntyre, 11-CV-1457, 2015 WL 1781256, at *5 (N.D.N.Y. Apr. 8, 2016)).
Here Plaintiff was fired as a feed up porter and Defendant Pflueger filed an allegedly false misbehavior report
on June 17, 2015, which is “well within the Second Circuit's six-month time frame for establishing a causal
connection between [P]laintiff's filing of a grievance” on May 10, 2015. Hayes, 2017 WL 9511178, at *10.
21 While Defendant Pflueger denies making the statements on August 4, 2015, and August 6, 2015, (Dkt. No.
28, Attach. 10 at ¶¶ 25-25), “[t]he court, when faced with conflicting sworn statements, must leave such
credibility determinations to a reasonable fact finder to determine.” Mack v. Wood, 17-CV-1146, 2019 WL
5197230, at *7 (N.D.N.Y. July 26, 2019) (Baxter, M.J.).
22 While this statement suggests retaliatory animus about Plaintiff's placement in administrative segregation, for
the reasons set forth in Part III.C.1.c. infra, there is no evidence before the Court that Defendant Pflueger had
any role in Plaintiff's administrative segregation placement (other than being the alleged target of Plaintiff's
planned of attack). In addition, Plaintiff accepted the recommendation that he be placed in administrative
segregation. (Dkt. No. 1 at 21-22.)
23 “In addition to satisfying one of these requirements, a plaintiff must also establish that the supervisor's actions
were the proximate cause of the plaintiff's constitutional deprivation.” Raspardo v. Carlone, 770 F.3d 97, 116
(2d Cir. 2014).
24 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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2020 WL 871197
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Seth LOGAN, Plaintiff,
v.
Superintendent GRAHAM, Auburn Correctional
Facility; C.O. Pflueger, Auburn Correctional
Facility; Officer Scott Jones, Auburn Correctional
Facility, formerly known as C.O. Smith; and C.O.
M. Gould, Auburn Correctional Facility, Defendants.
9:18-CV-291 (DNH/ML)
|
Signed 02/21/2020
Attorneys and Law Firms
SETH LOGAN, Plaintiff pro se, 177 Avery Avenue, Buffalo,
NY 14216.
HON. LETITIA JAMES, Attorney General for the State of
New York, OF COUNSEL: AIMEE COWAN, ESQ., Ass't
Attorney General, Attorney for Defendants, 300 South State
Street, Suite 300, Syracuse, NY 13202.
DECISION and ORDER
DAVID N. HURD, United States District Judge
*1 Pro se plaintiff Seth Logan brought this civil rights action
pursuant to 42 U.S.C. § 1983. On November 26, 2019, the
Honorable Miroslav Lovric, United States Magistrate Judge,
advised by Report-Recommendation that defendants’ motion
for summary judgment be granted in part and denied in
part. Specifically, Magistrate Judge Lovric recommended that
defendants’ motion for summary judgment be denied with
respect to plaintiff's retaliation claims against (1) defendant
Pflueger for firing plaintiff as a feed up porter, and (2)
defendant Graham as Superintendent, and granted with
respect to plaintiff's retaliation claims against (1) defendant
Jones, (2) defendant Gould, and (3) defendant Pflueger
for allegedly (a) filing a false misbehavior report against
plaintiff on June 17, 2015, (b) verbally harassing plaintiff, (c)
causing defendant Gould to file an improper recommendation
of administrative segregation, and (d) destroying plaintiff's
property. Defendants timely filed objections to the Report-
Recommendation with respect to the retaliation claim against
defendant Pflueger and the supervisory claims against
defendant Graham.
Based upon a de novo review of the portions of the Report-
Recommendation to which defendants objected, the Report-
Recommendation is accepted and adopted in all respects. See
28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. Defendants’ motion for summary judgment is GRANTED
in part and DENIED in part;
2. The motion is GRANTED with respect to plaintiff's
retaliation claims against (1) defendant Jones, (2) defendant
Gould, and (3) defendant Pflueger for allegedly (a) filing
a false misbehavior report against plaintiff on June 17,
2015, (b) verbally harassing plaintiff, (c) causing defendant
Gould to file an improper recommendation of administrative
segregation, and (d) destroying plaintiff's property and those
claims are DISMISSED;
3. Defendants Jones and Gould are DISMISSED from this
action;
4. The motion is DENIED with respect to plaintiff's retaliation
claims against (1) defendant Pflueger for firing plaintiff as a
feed up porter, and (2) defendant Graham as Superintendent
(relative to defendant Pflueger's alleged retaliatory conduct
of firing plaintiff as a feed up porter) and those claims shall
proceed to trial;
5. Trial is tentatively scheduled for September 14, 2020 at
9:30 a.m. in Utica, New York. Pre-trial submissions are due
on or before August 31, 2020;
6. The parties are reminded that they have the option of
referring this case to Magistrate Judge Lovric pursuant to 28
U.S.C. § 636(c) and based on his familiarity with the case,
but are free to withhold consent without adverse substantive
consequences. The parties are directed to advise the Court on
or before April 8, 2020 whether or not a consent to a jury trial
before him will be executed; and
7. If plaintiff wishes to renew his motion for the appointment
of pro bono trial counsel, he must do so within thirty (30) days
of the date of this Decision and Order. If plaintiff makes such
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a motion, the Clerk is directed to mail him a long form IFP
application.
*2 IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 871197
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2019 WL 8015209
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Seth LOGAN, Plaintiff,
v.
Superintendent GRAHAM, Auburn Correctional
Facility; C.O. Pflueger, Auburn Correctional
Facility; Officer Scott Jones, Auburn Correctional
Facility, formerly known as C.O. Smith; and C.O.
M. Gould, Auburn Correctional Facility, Defendants.
9:18-CV-0291 (DNH/ML)
|
Signed 11/26/2019
Attorneys and Law Firms
SETH LOGAN, Plaintiff, Pro Se, 117 Avery Avenue, Buffalo,
New York 14210.
LETITIA A. JAMES, OF COUNSEL: AIMEE COWAN,
ESQ., Assistant Attorney General, Attorney General for the
State of New York, Counsel for Defendants, 300 South State
Street, Suite 300, Syracuse, New York 13202.
REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 This matter has been referred to me for a Report and
Recommendation by the Honorable David N. Hurd, United
States District Judge. Currently before the Court, in this
civil rights action filed by Seth Logan (“Plaintiff”) against
Superintendent Graham, Auburn Correctional Facility, C.O.
Pflueger, 1 Auburn Correctional Facility, Officer Scott
Jones, Auburn Correctional Facility, formerly known as
C.O. Smith, and C.O. M. Gould, Auburn Correctional
Facility (collectively “Defendants”), is Defendants’ motion
for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt.
No. 28). For the reasons set forth below, I recommend that
Defendants’ motion be granted in part and denied in part.
TABLE OF CONTENTS
I. RELEVANT BACKGROUND...––––
A. Plaintiff's Claims...––––
B. Procedural History...––––
C. Statement of Undisputed Material Facts...––––
D. Parties’ Briefing on Defendants’ Motion for Summary
Judgment...––––
II. RELEVANT LEGAL STANDARDS...––––
A. Standard Governing a Motion for Summary
Judgment...––––
B. Standard Governing Exhaustion of Administrative
Remedies...––––
III. ANALYSIS...––––
A. Plaintiff's Failure to Oppose the Merits of Defendants’
Summary Judgment Motion...––––
B. Exhaustion of Grievances AUB-67199-15 and
AUB-67567-15...––––
C. Whether Plaintiff's First Amendment Retaliation
Claims Should Nevertheless be Dismissed...––––
D. Doctrine of Qualified Immunity...––––
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, liberally construed, Plaintiff's Complaint asserts
claims of retaliation against Defendants in violation of the
First Amendment. (Dkt. No. 1; Dkt. No. 6.) The Court's
Decision and Order dated May 4, 2018, thoroughly outlines
Plaintiff's allegations and claims. (Dkt. No. 6.)
B. Procedural History
On March 8, 2018, Plaintiff commenced this action by filing
a verified Complaint against Defendants, Lieutenant Vasill,
and Lieutenant Abate (Dkt. No. 1) together with a motion
for leave to proceed in forma pauperis (Dkt. No. 2). On
May 4, 2018, the Court granted Plaintiff's motion to proceed
in forma pauperis. (Dkt. No. 6.) In addition, the Court
ordered that Plaintiff's retaliation claims against Defendants
survive sua sponte review, but the Court dismissed Plaintiff's
remaining claims including those against Lieutenant Vasill
and Lieutenant Abate. (Id.)
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On January 25, 2019, Defendants filed a letter motion
requesting dismissal for failure to prosecute. (Dkt. No.
27.) On March 6, 2019, Defendants filed a motion for
summary judgment pursuant to Fed. R. Civ. P. 56 and a
motion to dismiss for lack of prosecution. (Dkt. No. 28.)
These motions were referred to United Stated Magistrate
Judge David E. Peebles for a Report and Recommendation.
On March 27, 2019, Magistrate Judge Peebles issued a
Report and Recommendation, which recommended that (1)
the Complaint be dismissed based on Plaintiff's failure
to prosecute and to comply with the Court's orders and
local rules of practice, and (2) that Defendants’ motion
for summary judgment be denied as moot. (Dkt. No. 30.)
On April 15, 2019, Plaintiff filed a change of address
with the Court. (Dkt. No. 32.) As a result, on April 15,
2019, United States District Judge David N. Hurd sua
sponte granted an extension of time to file objections to
United Stated Magistrate Judge David E. Peebles's Report-
Recommendation of March 27, 2019. (Dkt. No. 33.) Plaintiff
did not file any objections to the Report-Recommendation
dated March 27, 2019. (See generally Docket Sheet.)
*2 On July 3, 2019, the Court denied Defendants’ motion to
dismiss and referred to me for consideration of Defendants’
motion for summary judgment. (Dkt. No. 35.) On July 3,
2019, Plaintiff was provided another opportunity to oppose
Defendants’ motion with a response due by August 20, 2019,
and a reply due by August 26, 2019. (See text notice dated
7/3/19.) On September 9, 2019, the Court issued a text
order granting Plaintiff yet another opportunity to oppose
Defendants’ motion with a deadline of September 30, 2019.
(Dkt. No. 37.)
On October 1, 2019, Plaintiff filed a response in opposition
to Defendants’ motion. (Dkt. No. 39.)
C. Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and
supported by Defendants in their Rule 7.1 Statement and not
denied by Plaintiff in a Rule 7.1 Response. (Compare Dkt.
No. 28, Attach. 1 [Defs.’ Rule 7.1 Statement] with Dkt. No.
39 [Pl.’s Response].)
1. Plaintiff was convicted in 2009 of Attempted Assault in the
First and Second Degree.
2. All claims in this matter arose out of Plaintiff's confinement
at Auburn Correctional Facility (“Auburn”), as a result of his
felony convictions in 2009.
3. Plaintiff was released from prison to the Division of Parole
on January 7, 2019. 2
4. In his Complaint, Plaintiff claims that on May 9, 2015,
Defendant Pflueger stopped Plaintiff in the Auburn recreation
yard, accused Plaintiff of being a white supremacist and stated
that he would be searching Plaintiff's cell for gang material.
5. Plaintiff alleges that the next day, on May 10, 2015,
Defendant Pflueger threatened him while Plaintiff was exiting
his cell, stating that Plaintiff “ain't gonna be around here for
long. They're gonna get you. We're not sure how yet or for
what, but it's gonna happen.”
6. According to Plaintiff, Defendant Pflueger did not make
any specific threats about anything that he specifically was
going to do to Plaintiff.
7. Plaintiff filed a grievance on May 10, 2015, complaining
about the alleged incident of May 9, 2015.
8. Defendant Pflueger responded to the grievance by memo
and stated that he stopped Plaintiff in the yard on May 9,
2015 after observing tattoos that could be interpreted as gang
affiliation tattoos.
9. Defendant Pflueger stated that he passed the information
on to the Early Warning Box—which is an avenue to convey
information to Auburn Correctional Facility's intelligence
unit—and denied threatening or harassing Plaintiff in any
way.
*3 10. Plaintiff alleges that over a month later, on June 17,
2015, Defendant Pflueger fired Plaintiff from his job as a feed
up porter.
11. Plaintiff was employed as a feed up porter at Auburn for
approximately one month until he was terminated on June 17,
2015.
12. A feed up porter's duties include retrieving food trays from
the mess hall and feeding inmates who are confined to their
cell for disciplinary reasons.
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13. On the morning of June 17, 2015, Defendant Pflueger
witnessed Plaintiff pass an unidentified item into the cell of
another inmate.
14. Defendant Pflueger ordered Plaintiff to return to his cell.
15. Plaintiff yelled profanities as he went back to his cell.
16. While in his cell, Plaintiff yelled “that faggot
motherfucker fired me.”
17. Plaintiff shouted these profanities loud enough to
communicate with another inmate on a different floor.
18. Plaintiff alleges that Defendant Pflueger fired him as a
feed up porter in retaliation for the grievance that Plaintiff
filed dated May 10, 2015.
19. Plaintiff's only basis for this belief is that there was “no
other reason” for Defendant Pflueger to fire him.
20. Based on Plaintiff's behavior on the morning of June
17, 2015, Defendant Pflueger authored a misbehavior report
dated June 17, 2015, that charged Plaintiff with several
DOCCS Directive violations including disobeying a direct
order, creating a disturbance, harassment, and making threats.
21. Defendant Correction Officer Scott Jones endorsed the
misbehavior report as a witness to a portion of these events.
22. At the time Defendant Jones endorsed the misbehavior
report dated June 17, 2015, he had no knowledge that Plaintiff
had filed a grievance against Defendant Pflueger on May 10,
2015.
23. Plaintiff testified that he had never interacted with
Defendant Jones before this incident on June 17, 2015.
24. Plaintiff testified that he had no basis to believe that at
the time Defendant Jones endorsed the misbehavior report,
Defendant Jones knew that Plaintiff had filed any grievances
against Defendant Pflueger.
25. Plaintiff filed a grievance regarding the incident on June
17, 2015, but that grievance was denied.
26. Defendant Pflueger was never counseled or disciplined as
a result of the incident on June 17, 2015.
27. As a result of the misbehavior report dated June 17, 2015,
Plaintiff was found guilty of all charges at a disciplinary
hearing and sentenced to 30 days of keep-lock confinement.
28. Plaintiff filed another grievance dated July 21, 2015,
which alleged that on July 8, 2015, he received a false report
authored by Defendant Correction Officer Mark Gould in
which, Defendant Gould recommended Plaintiff be placed in
administrative segregation.
29. Defendant Gould recommended that Plaintiff be placed in
administrative segregation based on information he received
from confidential informants, that Plaintiff planned to assault
Defendant Pflueger when he was released from keep-lock
confinement.
30. Plaintiff was given a hearing with respect to whether he
should be in administrative segregation.
31. Plaintiff agreed with the recommendation to be placed in
administrative segregation.
32. Plaintiff did not know Defendant Gould prior to his
recommendation that Plaintiff be placed in administrative
segregation.
*4 33. Plaintiff testified that he believed Defendant Gould
made the recommendation to place Plaintiff in administrative
segregation on behalf of Defendant Pflueger in retaliation for
Plaintiff's grievances, because “there [was] no other reason
[for Defendant Gould] to do it.”
34. Plaintiff admitted he has no direct evidence that Defendant
Gould recommended administrative segregation based on the
grievances filed by Plaintiff against Defendant Pflueger.
35. Plaintiff has no evidence that Defendant Gould even knew
about any grievances filed by Plaintiff against Defendant
Pflueger.
36. Plaintiff is not aware of any conversations that
Defendant Gould had with Defendant Pflueger in which they
discussed that Defendant Gould should file an administrative
segregation recommendation based on false information.
37. Plaintiff also alleged that after he was removed from his
cell in the Special Housing Unit on July 9, 2015, items went
missing after another inmate witnessed Defendant Pflueger
enter Plaintiff's cell.
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38. Defendant Pflueger did not pack Plaintiff's cell and he did
not remove any of Plaintiff's property.
39. The only basis for Plaintiff's contention that Defendant
Pflueger destroyed his property is that Michael Betters,
another inmate, reported seeing Defendant Pflueger enter
Plaintiff's cell.
40. According to Plaintiff, Michael Betters could not actually
see Defendant Pflueger in Plaintiff's cell.
41. Further, Plaintiff does not know who transported his
property to his new cell in the Special Housing Unit.
42. Plaintiff filed another grievance alleging that on August
4, 2015, and August 6, 2015, Defendant Pflueger threatened
Plaintiff while he was training another officer.
43. Defendant Pflueger responded to the grievance and
affirmed that on August 4, 2015, and August 6, 2015, he
showed various new officers the Special Housing Unit area,
but they did not stop at Plaintiff's cell and he certainly never
made any threatening or harassing statements to Plaintiff.
44. Plaintiff testified that at no point during his incarceration
did Defendant Pflueger use any force against him.
45. Plaintiff is not alleging any physical injuries with respect
to any of his claims.
46. The only basis on which Plaintiff brings retaliation claims
against Defendant Graham is because he denied Plaintiff's
grievances and allowed Defendant Pflueger's behavior to
continue.
47. Other than the grievances he filed, Plaintiff never sent
Defendant Graham any other correspondence about these
incidents and he never spoke with Defendant Graham in
person about them.
Exhaustion of Administrative Remedies
48. Plaintiff was familiar with the grievance process at
Auburn Correctional Facility during the relevant time period.
49. Plaintiff was aware of how to properly file a grievance and
where to appeal if he disagreed with the decision.
50. More specifically, Plaintiff was aware that a grievance
must be submitted to the Inmate Grievance Review
Committee (“IGRC”) and a decision by the IGRC could be
appealed to the Superintendent.
51. Further, Plaintiff was aware that a decision by the
Superintendent could be appealed to the Central Office
Review Committee (“CORC”).
52. Plaintiff testified that if an inmate does not receive a
response to his appeal to CORC, he must write to CORC and
inquire as to the status of his appeal.
*5 53. Plaintiff filed Grievance AUB-67199-15, in which
he complained that he was “labeled a gang member” by
Defendant Pflueger.
54. After an investigation, the Superintendent denied
Plaintiff's grievance and Defendant Pflueger was never
counseled or disciplined.
55. Plaintiff also filed Grievance AUB-67567-15, in which
he complained that on July 8, 2015, he received a false
report authored by Defendant Gould in which Defendant
Gould recommended Plaintiff be placed in administrative
segregation.
56. Grievance AUB 67567-15 also alleged that after Plaintiff
was removed from his cell in the Special Housing Unit on July
9, 2015, items went missing after another inmate witnessed
Defendant Pflueger packing Plaintiff's cell.
57. Defendant Graham denied Plaintiff's Grievance
AUB-67567-15.
D. Parties’ Briefing on Defendants’ Motion for
Summary Judgment
1. Defendants’ Memorandum of Law
Generally, in support of their motion for summary judgment,
Defendants assert three arguments. (See generally Dkt. No.
28, Attach. 3 [Defs.’ Mem. of Law].)
First, Defendants argue that Plaintiff failed to exhaust
his administrative remedies with respect to grievances
AUB-67199-15 and AUB-675667-15. (Id.) More specifically,
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Defendants argue that the Prison Litigation Reform Act
requires prisoners who bring a lawsuit in federal court to
first exhaust their available administrative remedies; this
requirement is mandatory such that, failure to comply subjects
the complaint to dismissal. 3 (Id.) Further, Defendants argue
that the New York State Department of Corrections and
Community Services (“DOCCS”) has the following three-
tiered administrative review and appeals process for prisoner
grievances: (1) review by the IGRC, (2) appellate review
of the IGRC decision by the prison superintendent, and (3)
appellate review of the prison superintendent by CORC.
(Id.) Defendants argue that Plaintiff failed to appeal the
prison superintendent's decision with respect to grievances
AUB-67199-15 and AUB-675667-15, to CORC and thus, the
claims contained in those grievances should be dismissed for
Plaintiff's failure to exhaust his administrative remedies. (Id.)
Second, Defendants argue that Plaintiff's first amendment
retaliation claims should be dismissed because (a) with
respect to Defendant Pflueger, (i) he lacks authority to “fire”
an inmate from his job, (ii) the record lacks any evidence
of a causal connection between Plaintiff's grievance of May
10, 2015, and the misbehavior report of June 17, 2015,
except temporal proximity, which is insufficient to survive a
motion for summary judgment, (iii) the misbehavior report
of June 17, 2015, was truthful and Plaintiff admitted that
he was appropriately charged with creating a disturbance
and harassment, (iv) Defendants presented non-retaliatory
reasons for Defendant Pflueger “firing” Plaintiff from his
porter duties and authoring the misbehavior report of June
17, 2015, (v) the alleged verbal harassment and threats are
not considered adverse actions for purposes of retaliation,
(vi) even if the alleged verbal harassment and threats did
constitute an adverse action, Plaintiff failed to demonstrate
any evidence of a causal connection, (vii) there is no
evidence of a causal connection between Defendant Gould's
recommendation that Plaintiff be placed in administrative
segregation and Plaintiff's grievances filed against Defendant
Pflueger, (viii) there is no evidence that Defendant Pflueger
removed or destroyed Plaintiff's property, and (ix) there is no
evidence of a causal nexus between the grievances he filed
and Defendant Pflueger allegedly destroying his property; (b)
with respect to Defendant Jones, (i) there is no evidence that
he had any knowledge that Plaintiff filed a grievance against
Defendant Pflueger, and (ii) the record is devoid of any
evidence establishing why he would file a false misbehavior
report against Plaintiff on behalf of Defendant Pflueger;
(c) with respect to Defendant Gould, (i) Plaintiff agreed
with the recommendation that he remain in administrative
segregation, (ii) there is no evidence in the record to support
a causal connection between Plaintiff's grievance against
Defendant Pflueger on May 10, 2015, and Defendant Gould's
administrative segregation recommendation on July 21, 2015,
and (iii) there is no evidence that Defendant Gould was aware
of Plaintiff's grievance against Defendant Pflueger; and (d)
with respect to Defendant Graham, (i) in the event that the
claims against Defendants Pflueger, Jones, and Gould are
dismissed, the claims against Defendant Graham must also
be dismissed because there is no supervisor liability where
there is no established underlying constitutional violation,
and (ii) even if the claims against Defendants Pflueger,
Jones, and Gould are not dismissed, the claims against
Defendant Graham still should be dismissed because he
was not personally involved in the alleged constitutional
violations. (Id.)
*6 Third, Defendants argue that, in the alternative, they
are entitled to dismissal pursuant to the doctrine of qualified
immunity. (Id.)
2. Defendants’ First Supplemental Letter Brief
Generally in their first supplemental letter brief, Defendants
re-assert the arguments set forth in their memorandum of law
and assert that (1) Plaintiff has repeatedly failed to oppose
Defendants’ motion despite being provided with notice of the
consequences of failing to respond to the motion two times,
and (2) as a result of Plaintiff's failure to respond, the Court
should deem (a) Defendants’ factual assertions as true, and (b)
Plaintiff to have consented to the legal arguments contained
in Defendants’ memorandum of law. (Dkt. No. 36.)
3. Defendants’ Second Supplemental Letter Brief
Generally in their second supplemental letter brief,
Defendants re-assert the arguments set forth in their
memorandum of law and assert that (1) Plaintiff sent
Defendants a “Response to Dispositive Motions,” which
incorrectly indicated that Defendants’ motion is based solely
on Plaintiff's timeliness and otherwise failed to address
Defendants’ arguments as to the merits of his claims, (2)
Plaintiff has now failed to oppose Defendants’ motion three
times after receiving notice that his response was required,
and (3) despite Plaintiff's request in his response for additional
time to respond, the Court should not grant this request
because their motion has been pending for nearly one year
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and Plaintiff “has been given great latitude with respect to the
Court's deadlines in this matter.” (Dkt. No. 38.)
4. Plaintiff's “Response to Dispositive Motions”
Generally, in opposition to Defendants’ motion for summary
judgment, Plaintiff acknowledged his failure to meet
deadlines and asked that the Court consider “many mitigating
factors that have contributed to this short coming” including
his release from prison, the requirements of his parole, and his
criminal history. (Dkt. No. 39.) In addition, Plaintiff asserts
that “all these Motions to Dismiss this complaint have been
based on timeliness.” (Id.) Plaintiff did not file a response to
Defendants’ Statement of Material Facts, an affidavit setting
forth any factual assertions, an opposition memorandum of
law, or any document that responded to Defendants’ legal
arguments. (See generally Dkt. No. 39.) In addition, Plaintiff
did not request any additional time to provide a more thorough
response to Defendants’ motion. (Id.)
II. RELEVANT LEGAL STANDARDS
A. Standard Governing a Motion for Summary
Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law.... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
*7 In determining whether a genuine issue of material fact
exists, the Court must resolve all ambiguities and draw all
reasonable inferences against the movant. Anderson, 477
U.S. at 255. In addition, “[the movant] bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the ... [record]
which it believes demonstrate[s] the absence of any genuine
issue of material fact.” Celotex v. Catrett, 477 U.S. 317,
323-24 (1986). However, when the movant has met its initial
burden, the non-movant must come forward with specific
facts showing a genuine issue of material fact for trial. Fed.
R. Civ. P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the
fact that, where a non-movant willfully fails to respond to a
motion for summary judgment, a district court has no duty
to perform an independent review of the record to find proof
of a factual dispute–even if that non-movant is proceeding
pro se. 5 (This is because the Court extends special solicitude
to the pro se litigant largely by ensuring that he or she has
received notice of the consequences of failing to properly
respond to the motion for summary judgment.) 6 As has often
been recognized by both the Supreme Court and Second
Circuit, even pro se litigants must obey a district court's
procedural rules. 7
Of course, when a non-movant willfully fails to respond to a
motion for summary judgment, “[t]he fact that there has been
no [such] response ... does not ... [by itself] mean that the
motion is to be granted automatically.” Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above,
the Court must assure itself that, based on the undisputed
material facts, the law indeed warrants judgment for the
movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y.
2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-
movant's failure to respond to the motion does is lighten the
movant's burden.
For these reasons, this Court has often enforced Local Rule
7.1(a)(3) by deeming facts set forth in a movant's statement
of material facts to be admitted, where (1) those facts are
supported by evidence in the record, and (2) the non-movant
has willfully failed to properly respond to that statement 8 –
even when the non-movant was proceeding pro se. 9
Similarly, in this District, where a non-movant has willfully
failed to respond to a movant's properly filed and facially
meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that
memorandum of law under Local Rule 7.1(b)(3). 10 Stated
another way, when a non-movant fails to oppose a legal
argument asserted by a movant, the movant may succeed
on the argument by showing that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a
properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate
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entitlement to the relief requested therein....”); Rusyniak
v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases);
Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2
& n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting
cases).
B. Standard Governing Exhaustion of Administrative
Remedies
*8 The Prison Litigation Reform Act of 1995 (“PLRA”)
requires that prisoners who bring suit in federal court must
first exhaust their available administrative remedies: “No
action shall be brought with respect to prison conditions
under § 1983 ... 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. The
PLRA was enacted “to reduce the quantity and improve the
quality of prisoner suits” by “afford[ing] corrections officials
time and opportunity to address complaints internally before
allowing the initiation of a federal case.” Porter v. Nussle,
534 U.S. 516, 524-25 (2002). In this regard, exhaustion serves
two major purposes. First, it protects “administrative agency
authority” by giving the agency “an opportunity to correct
its own mistakes with respect to the programs it administers
before it is haled into federal court, and it discourages
disregard of the agency's procedures.” Woodford v. Ngo, 548
U.S. 81, 89 (2006). Second, exhaustion promotes efficiency
because (a) “[c]laims generally can be resolved much more
quickly and economically in proceedings before an agency
than in litigation in federal court,” and (b) “even where a
controversy survives administrative review, exhaustion of
the administrative procedure may produce a useful record
for subsequent judicial consideration.” Woodford, 548 U.S.
at 89. “[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, 534 U.S. at
532.
In accordance with the PLRA, DOCCS has made available
a well-established inmate grievance program. 7 N.Y.C.R.R.
§ 701.7. Generally, the DOCCS Inmate Grievance Program
(“IGP”) involves the following three-step procedure for
the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g),
701.7. 11 First, an inmate must file a complaint with the
facility's IGP clerk within a certain number of days of the
alleged occurrence. 12 If a grievance complaint form is not
readily available, a complaint may be submitted on plain
paper. A representative of the facility's IGRC has a certain
number of days from receipt of the grievance to informally
resolve the issue. If there is no such informal resolution, then
the full IGRC conducts a hearing within a certain number of
days of receipt of the grievance, and issues a written decision
within a certain number of days of the conclusion of the
hearing. Second, a grievant may appeal the IGRC decision to
the facility's superintendent within a certain number of days of
receipt of the IGRC's written decision. The superintendent is
to issue a written decision within a certain number of days of
receipt of the grievant's appeal. Third, a grievant may appeal
to CORC within a certain number of days of receipt of the
superintendent's written decision. CORC is to render a written
decision within a certain number of days of receipt of the
appeal.
In addition, “[t]he regulations [ ] provide that if the plaintiff
does not get a ‘receipt’ from the CORC within 45 days of
the date he filed his appeal, he should contact the IGP to
make sure that his appeal was ‘received.’ ” Bell v. Napoli, 17-
CV-0850, 2018 WL 6506072, at *5 (N.D.N.Y. Dec. 11, 2018)
(Baxter, M.J.) (citing 7 N.Y.C.R.R. § 701.5(d)(3)(i)).
It is important to note that these procedural requirements
contain several safeguards. For example, if an inmate could
not file such a complaint within the required time period after
the alleged occurrence, he or she could apply to the facility's
IGP Supervisor for an exception to the time limit based on
mitigating circumstances. If that application was denied, the
inmate could file a complaint complaining that the application
was wrongfully denied. 13 Moreover, any failure by the IGRC
or the superintendent to timely respond to a grievance or
first-level appeal, respectively, can–and must–be appealed to
the next level, including CORC, to complete the grievance
process. 14
*9 Generally, if a prisoner has failed to properly follow
each of the required three steps of the above-described
grievance procedure prior to commencing litigation, he has
failed to exhaust his administrative remedies, and his claims
are subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534
U.S. at 524; Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175
(2d Cir. 2006). However, a plaintiff's failure to exhaust does
not end the inquiry. The Second Circuit has held that a three-
part inquiry is appropriate where a defendant contends that
a prisoner has failed to exhaust his available administrative
remedies, as required by the PLRA. Hemphill v. State of New
York, 380 F.3d 680, 686, 691 (2d Cir. 2004), accord, Ruggiero,
467 F.3d at 175. First, “the court must ask whether [the]
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administrative remedies [not pursued by the prisoner] were
in fact ‘available’ to the prisoner.” Hemphill, 380 F.3d at 686
(citation omitted). Second, if those remedies were available,
“the court should ... inquire as to whether [some or all of] the
defendants may have forfeited the affirmative defense of non-
exhaustion by failing to raise or preserve it ... or whether the
defendants’ own actions inhibiting the [prisoner's] exhaustion
of remedies may estop one or more of the defendants from
raising the plaintiff's failure to exhaust as a defense.” Id.
[citations omitted]. Third, if the remedies were available and
some of the defendants did not forfeit, and were not estopped
from raising, the non-exhaustion defense, “the Court should
consider whether ‘special circumstances’ have been plausibly
alleged that justify the prisoner's failure to comply with the
administrative procedural requirements.” Id. [citations and
internal quotations omitted]. 15
III. ANALYSIS
A. Plaintiff's Failure to Oppose the Merits of
Defendants’ Summary Judgment Motion
Before turning to the merits of Defendants’ motion, a
threshold issue to be addressed is the legal significance of
Plaintiff's failure to oppose the merits of Defendants’ motion.
Pursuant to Local Rule 7.1(b)(3), by failing to oppose
Defendants’ motion, Plaintiff has effectively consented to the
granting of the relief sought. That rule provides as follows:
Where a properly filed motion is
unopposed and the Court determines
that the moving party has met its
burden to demonstrate entitlement to
the relief requested therein, the non-
moving party's failure to file or serve
any papers as this Rule requires shall
be deemed as consent to the granting
or denial of the motion, as the case may
be, unless good cause is shown.
N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express,
766 F.3d 189, 194 (2d Cir. 2014) (holding that the district
courts may enter summary judgment in favor of the
moving party where the non-moving party fails to respond
in opposition, but not without first “ensur[ing] that each
statement of material fact is support by record evidence
sufficient to satisfy the movant's burden of production” and
“determin[ing] whether the legal theory of the motion is
sound”).
In this case, Plaintiff has not responded to the merits of
Defendants’ motion. The motion was properly filed by
Defendants, and Defendants through their motion have met
their burden of demonstrating entitlement to some of the relief
requested. With respect to the question of whether Defendants
have met their burden, I note that the “burden of persuasion is
lightened such that, in order to succeed, [their] motion need
only be ‘facially meritorious.’ ” See Rodriguez v. Goord, 04-
CV-0358, 2007 WL 4246443, at *1 (N.D.N.Y. Nov. 27, 2007)
(Scullin, J., adopting Report-Recommendation on clear error
review) (finding that determination of whether a movant has
satisfied its burden to demonstrate entitlement to a dismissal
under Local Rule 7.1(b)(3) “is a more limited endeavor than
a review of a contested motion to dismiss” (citing cases)).
Because Defendants have accurately cited both proper legal
authority and evidence in the record supporting the grounds
on which their motion is based with respect to Defendants
Jones and Gould as set forth below, and Plaintiff has
failed to respond in opposition to the merits of the motion
for summary judgment, I find that Defendants’ motion is
facially meritorious. Jackson, 766 F.3d at 194. Accordingly,
I recommend that the Court grant Defendants’ motion with
respect to Defendants Jones and Gould on this basis.
*10 It should also be noted that there are additional
consequences flowing from Plaintiff's failure to file an
opposition to Defendants’ Local Rule 7.1(a)(3) Statement
of Material Facts. Local Rule 7.1 provides, in relevant part,
that “[t]he Court shall deem admitted any properly supported
facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.” N.D.N.Y.
L.R. 7.1(a)(3) (emphasis in original). Courts in this district
have routinely enforced this rule in cases where a non-
movant has failed to properly respond. See, e.g., Elgamil
v. Syracuse Univ., 99-CV-0611, 2000 WL 1264122, at *1
(N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases).
Undeniably, pro se litigants are entitled to some measure
of forbearance when defending against summary judgment
motions. Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406,
415 (N.D.N.Y. 1997) (McAvoy, J.). The deference owed to
pro se litigants, however, does not extend to relieving them of
the ramifications associated with the failure to comply with
the court's local rules. Robinson v. Delgado, 96-CV-0169,
1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler,
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J., adopting Report-Recommendation on clear error review.).
Stated differently, “a pro se litigant is not relieved of his
duty to meet the requirements necessary to defeat a motion
for summary judgment.” Latouche v. Tompkins, 09-CV-0308,
2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue,
J.).
Here, because Plaintiff was warned of the consequences of
failing to properly respond to Defendants’ Local Rule 7.1
Statements (Dkt. No. 28 at 2; text notice dated July 3, 2019),
and he has failed to do so, I recommend that the Court
deem the facts contained in Defendants’ Local Rule 7.1(a)
(3) Statements as having been admitted to the extent they are
supported by accurate record citations. See, e.g., Latouche,
2011 WL 1103045, at *1; see also Champion v. Artuz, 76
F.3d 483, 486 (2d Cir. 1996). As to any facts not contained
in Defendants’ Local Rule 7.1(a)(3) Statements, in light of
the procedural posture of this case, the Court is “required
to resolve all ambiguities and draw all permissible factual
inferences” in favor of Plaintiff. Terry, 336 F.3d at 137.
B. Exhaustion of Grievances AUB-67199-15 and
AUB-67567-15
There is no dispute in this case that Plaintiff filed grievances
AUB-67199-15 dated May 10, 2015, and AUB-67567-15
dated July 21, 2015, and that he appealed the denial of
these grievances to the facility superintendent. The parties
only dispute whether Plaintiff completed the third step in the
grievance process by appealing to CORC.
Defendants submitted proof in admissible form by way of an
affidavit from Rachael Seguin, the custodian of the records
maintained by CORC. (Dkt. No. 28, Attach. 16.) In her
affidavit, Ms. Seguin stated that she searched record appeals
received by CORC filed by Plaintiff, and her search revealed
“no appeal for Grievance AUB-67199-15” and “no appeal for
Grievance AUB-67567-15.” (Id. at ¶¶11-12.)
However, with respect to grievance AUB-67199-15, Plaintiff
alleged in his verified Complaint 16 that “[o]n [July 3,
2015, he] received [the denial from the Superintendent]
and requested that it be appealed to the Central Office
Review Committee.” (Dkt. No. 1 at 5.) Similarly, Plaintiff
testified that after receiving the denial of his grievance from
the Superintendent, he appealed to CORC. (Dkt. No. 28,
Attach. 5 at 46.) Moreover, Plaintiff alleged in his verified
Complaint that on August 15, 2015, he “composed a letter
to the C.O.R.C. Inmate Grievance Program Supervisor Karen
Bellamy inquiring as to whether or not request for appeal
was received.” (Dkt. No. 1 at 5.) Likewise, Plaintiff testified
that he wrote a letter to CORC asking about the status of his
appeal. (Dkt. No. 28, Attach. 5 a 46.) Furthermore, Plaintiff
alleged in his verified Complaint that on September 2, 2015,
he “composed a letter to Auburn C.F. I.G.P. Supervisor Cheryl
Parmiter inquiring as to whether or not [his] appeal was
submitted as requested.” (Dkt. No. 1 at 5.) Similarly, Plaintiff
testified that “I believe that one I never received a response
from Central Office. So I wrote Albany's – Auburn's I.G.R.C.
and asked them what happened and they said they never
received an appeal.” (Dkt. No. 28, Attach. 5 at 46.)
*11 In addition, with respect to grievance AUB-67567-15,
Plaintiff alleged in his verified Complaint that “[o]n [August
15, 2015, he] received [the denial from the superintendent]
and requested that it be appealed to the C.O.R.C.” (Dkt.
No. 1 at 6.) Moreover, Plaintiff's verified Complaint alleged
that on September 29, 2015, he “composed another letter to
C.O.R.C.’s I.G.P. Supervisor Karen Bellamy informing her of
all grievances he was awaiting decisions on ... as he hadn't
yet received receipt of appeal for this grievance.” (Dkt. No.
1 at 6.)
Generally, conclusory allegations that an inmate appealed the
superintendent's grievance denial to CORC are insufficient
to withstand a motion for summary judgment. See Gibbs v.
Gadway, 19-CV-0281, 2019 WL 5191506, at *3 (N.D.N.Y.
Oct. 15, 2019) (Stewart, M.J.) (recommending dismissal
based on the plaintiff's failure to exhaust his administrative
remedies where the plaintiff made “a purely conclusory
allegation that he appealed the grievance denial to CORC.”).
However, the case law implies that where a plaintiff sets forth
the date that he or she appealed the grievance to CORC, that
may be enough to survive a motion for summary judgment.
C.f. Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at
*3 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.) (recommending
dismissal of the plaintiff's claims for failure to exhaust his
administrative remedies where the plaintiff “has not provided
a copy of the grievance appeal or even asserted what date
he filed the appeal.”); Gough v. Morris, 16-CV-1107, 2018
WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018) (Stewart,
M.J.) (recommending dismissal based on the plaintiff's failure
to exhaust his administrative remedies where he testified
that he appealed the superintendent's response to CORC but
there was no evidence in the record that (a) the grievance
or the superintendent's response were appealed to CORC
and, (b) despite not receiving a response from CORC, the
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plaintiff testified that he did not write to CORC to follow-
up); Campbell v. Prue, 16-CV-0004, 2018 WL 4635708, at
*5 (N.D.N.Y. July 3, 2018) (Hummel, M.J.) (“Although [the
plaintiff] alleges that he filed [a] grievance ..., plaintiff does
not state when he filed such grievance.... Further, plaintiff
has not provided a copy of the alleged grievance or the
Marcy IGRC's denial of that grievance.”); Toliver v. Stefinik,
12-CV-0077, 2016 WL 3349316, at *6 (N.D.N.Y. June 15,
2016) (D'Agostino, J.) (“vague and conclusory allegations ...
[regarding] grievances ... do not, in light of the documentation
Defendants have provided about Plaintiff's grievance history,
create a factual dispute material to the issue of whether
Plaintiff exhausted his administrative remedies.”); Smith v.
Kelly, 985 F. Supp. 2d 275, 289 (N.D.N.Y. 2013) (Suddaby, J.)
(granting the defendants’ motion for summary judgment on
the issue of exhaustion where the plaintiff failed to “identify
the name of the ‘IGRC's supervisor’ who purportedly told
him that a new prisoner does not file a grievance at Auburn
C.F. if it pertains to the prisoner's previous facility, nor does
he specify the date, means or location of this purported
communication.”).
Mindful that a court should not resolve credibility issues
when deciding a motion for summary judgment, and
that Defendants bear the ultimate burden of proving
that Plaintiff did not exhaust his administrative remedies,
I conclude that there appears to be a material issue
of fact regarding whether Plaintiff appealed grievances
AUB-67199-15 and AUB-67567-15. 17 As a result, I
recommend that Defendants’ motion be denied on this basis.
C. Whether Plaintiff's First Amendment Retaliation
Claims Should Nevertheless be Dismissed
*12 A cognizable claim of retaliation pursuant to 42 U.S.C.
§ 1983 lies when prison officials take an adverse action
against an inmate that is motivated by the inmate's exercise
of a constitutional right, including the free speech provisions
of the First Amendment. See Friedl v. City of N.Y., 210 F.3d
79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will
lie where the government takes negative action against an
individual because of his exercise of rights guaranteed by
the Constitution or federal laws.”). As the Second Circuit
has repeatedly cautioned, however, because such claims are
easily incanted and inmates often attribute adverse action,
including the issuance of misbehavior reports, to retaliatory
animus, courts must approach such claims “with skepticism
and particular care.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir. 2001), overruled on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord,
320 F.3d 346, 352 (2d Cir. 2003).
To state a prima facie claim pursuant to 42 U.S.C. § 1983 for
retaliatory conduct, a plaintiff must advance non-conclusory
allegations establishing that (1) the conduct at issue was
protected, (2) the defendants took adverse action against the
plaintiff, and (3) there was a causal connection between the
protected activity and the adverse action–in other words, that
the protected conduct was a “substantial or motivating factor”
in the prison officials’ decision to take action against the
plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247,
251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065,
2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe,
M.J.).
If the plaintiff carries this burden, then to avoid liability the
defendants must show by a preponderance of the evidence
that they would have taken action against the plaintiff even
in the absence of the protected conduct. Mount Healthy, 429
U.S. at 287. If taken for both proper and improper reasons,
state action may be upheld if the action would have been taken
based on the proper reasons alone. Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996) (citations omitted).
Analysis of retaliation claims thus requires careful
consideration of the protected activity in which the inmate
plaintiff has engaged, the adverse action taken against
him or her, and the evidence tending to link the two.
When such claims, which are exceedingly case specific, are
alleged in only conclusory fashion, and are not supported
by evidence establishing the requisite nexus between any
protected activity and the adverse action complained of,
a defendant is entitled to the entry of summary judgment
dismissing plaintiff's retaliation claims. Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
1. Defendant Pflueger
Plaintiff alleges that Defendant Pflueger retaliated against
him during four separate incidents: (1) firing Plaintiff as
a feed up porter and filing a false misbehavior report on
June 17, 2015, (2) verbal harassment on (a) an unspecified
dated in June or July 2015, (b) August 4, 2015, and (c)
August 6, 2015, (3) causing Defendant Gould to file a
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false administrative segregation recommendation, and (4) the
destruction of Plaintiff's personal property.
a. Incident on June 17, 2015 18
*13 Defendants argue that Plaintiff's retaliation claim with
respect to the incidents on June 17, 2015, fails based on
the third element, that there is no evidence in the record to
support the contention that Plaintiff was retaliated against for
his protected speech. 19
In considering whether there is a “causal connection between
the protected speech and the adverse action, a court may
consider a number of factors, including any statements made
by the defendant concerning his motivation and the temporal
proximity between the protected activity and the defendant's
adverse action.” Roseboro v. Gillespie, 719 F. Supp. 2d 353,
366 (S.D.N.Y. 2011); see also Tuitt v. Chase, 11-CV-0776,
2013 WL 877439, at *7 (N.D.N.Y. Jan. 30, 2013) (Dancks,
M.J.), report and recommendation adopted, 2013 WL 877617
(N.D.N.Y. Mar. 8, 2013) (factors relevant to a consideration
of causal connection “include: (i) the temporal proximity
between the protected activity and the alleged retaliatory
act; (ii) the inmate's prior good disciplinary record; (iii)
vindication at a hearing on the matter; and (iv) statements by
the defendant concerning his or her motivation”). The Second
Circuit has “held that temporal proximity between protected
conduct and an adverse action constitutes circumstantial
evidence of retaliation,” but has also “consistently required
some further evidence of retaliatory animus before permitting
a prisoner to proceed to trial on a retaliation claim.”
Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017);
see also Thomas v. Waugh, 13-CV-0321, 2015 WL 5750945,
at *4 (N.D.N.Y. Sept. 30, 2015) (D'Agostino, J. adopting
Report-Recommendation on de novo review) (citing Slattery
v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.
2001)) (“temporal proximity alone is insufficient to establish
an inference of retaliation.”).
*14 Here, in addition to temporal proximity connecting
Plaintiff's grievance of May 10, 2015, to the incident on
June 17, 2015, 20 Defendant Pflueger's alleged statements
provide circumstantial evidence of causation. Plaintiff's
verified Complaint alleged that on August 4, 2015, Defendant
Pflueger said to another correction officer, “[t]his is also
where we keep idiots like this guy who think they can snitch
on officers and nothing's going to happen to them,” and
“[h]ow'd that work out for you stupid? You want to help me
explain to him how our grievance procedure works?” (Dkt.
No. 1 at 24-25.) Moreover, the verified Complaint alleged
that on August 6, 2015, Defendant Pflueger said, “[o]h, and
just so you know, I didn't forget about your latest grievance
either. You better say a prayer to your White Supremacist
God that I'm not here on the day they bring you down to
the draft room, because I'll be watching the change sheet.
You're not gonna make it outta here in 1 piece.” (Dkt. No. 1
at 25.) These statements provide circumstantial evidence that
Defendant Pflueger's actions on June 17, 2015, firing Plaintiff
from his job as a feed up porter and filing a misbehavior
report against him that ultimately resulted in his placement
in keep-lock confinement for thirty days, were in retaliation
for Plaintiff's grievance of May 10, 2015. See Cole v. N.Y.S.
Dep't of Corr. and Cmty. Supervision, 14-CV-0539, 2016 WL
5394752, at *26 (N.D.N.Y. Aug. 25, 2016) (Peebles, M.J.)
(finding an issue of fact as to retaliation where the defendant
allegedly said (a) “Happy Anniversary” in reference to prior
assaults and a lawsuit that resulted from those assaults, and (b)
that the assault was “payback” for the plaintiff's grievances);
Roland v. McMonagle, 12-CV-6331, 2015 WL 5918179, at
*6 (S.D.N.Y. Oct. 9, 2015) (finding an issue of fact as to
retaliation where there was evidence that the defendants were
aware of the plaintiff's complaints and mocked him for filing
grievances). 21
As a result, the burden shifts to Defendants to show by a
preponderance of the evidence that they would have taken
action against the plaintiff even in the absence of the protected
conduct. Mount Healthy, 429 U.S. at 287.
With respect to the “firing” of Plaintiff as a feed up
porter, Defendants submitted a non-retaliatory reason—that
Defendant Pflueger observed Plaintiff pass an unidentified
object into the cell of another inmate. (Dkt. No. 28, Attach.
10 at ¶13.) However, Plaintiff testified that he did not pass
any unidentified items into another inmate's cell. (Dkt. No.
28, Attach. 5 at 51-52.) As a result, I find that a material issue
of fact remains for trial.
However, with respect to the allegedly false misbehavior
report, Plaintiff admitted some of the allegations contained in
the misbehavior report. More specifically, Plaintiff admitted
that he yelled profanities as he walked back to his cell
and that while in his cell, he made derogatory statements
about Defendant Pflueger loud enough to be heard by an
inmate on a different floor. (Dkt. No. 28, Attach. 5 at 54-55.)
This admission “suggests that ‘plaintiff committed the most
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serious, if not all, of the prohibited conduct charged in the
misbehavior report.’ ” Flynn v. Ward, 15-CV-1028, 2018 WL
3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.)
(quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)).
As a result, Defendants have established a non-retaliatory
reason for the filing of the misbehavior report of June 17,
2015. Flynn, 2018 WL 3195095, at *12 (citing Hynes v.
Squillace, 143 F.3d 653, 657 (2d Cir. 1998) (concluding that
plaintiff's admission of the underlying conduct established a
“proper, non-retaliatory reason[ ] for filing the misbehavior
report.”)); see also Hynes v. Squillace, 143 F.3d 653, 657
(2d Cir. 1998) (where plaintiff admitted to committing the
most serious, if not all, of the prohibited conduct charged
in the misbehavior report, “defendants met their burden of
demonstrating proper, non-retaliatory reasons for filing the
misbehavior report.”).
*15 As a result, I recommend that Defendants’ motion for
summary judgment be granted with respect to the allegedly
false misbehavior report of June 17, 2015, and be denied with
respect to the “firing” of Plaintiff as a feed up porter.
b. Verbal Harassment
Plaintiff alleges that sometime in June or July 2015, he
was verbally harassed when Defendant Pflueger told another
officer that he was going to “kick [P]laintiff's f******
a**.” (Dkt. No. 1 at 19.) In addition, Plaintiff alleges that on
August 4, 2015, Defendant Pflueger said to another correction
officer, “[t]his is also where we keep idiots like this guy who
think they can snitch on officers and nothing's going to happen
to them,” and “[h]ow'd that work out for you stupid? You
want to help me explain to him how our grievance procedure
works?” (Dkt. No. 1 at 24-25.) 22 Moreover, Plaintiff alleges
that on August 6, 2015, Defendant Pflueger said, “[o]h, and
just so you know, I didn't forget about your latest grievance
either. You better say a prayer to your White Supremacist God
that I'm not here on the day they bring you down to the draft
room, because I'll be watching the change sheet. You're not
gonna make it outta here in 1 piece.” (Dkt. No. 1 at 25.)
In this Circuit, allegations of verbal harassment or threats
are generally an insufficient basis for an inmate's § 1983
claim. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d
Cir. 1986) (“The claim that a prison guard called Purcell
names also did not allege any appreciable injury and was
properly dismissed”); Hayes v. Dahkle, 16-CV-1368, 2017
WL 9511178, at *7 (N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.)
(“[v]erbal harassment absent injury, is generally insufficient
to rise to the level of a constitutional violation”); Tafari
v. Paul, 06-CV-0603, 2009 WL 3260075, at *1 (W.D.N.Y.
Oct. 8, 2009) (allegations of verbal harassment or abuse,
“without a showing of an actual injury, are insufficient to
support a § 1983 claim”) (citing Lewis v. Casey, 518 U.S. 343,
349-50 (1996)); Alexander v. Deming, 03-CV-0147, 2009 WL
1044561, at *5 (W.D.N.Y. Apr. 16, 2009) (“Courts within the
Second Circuit have held that threats of disciplinary action
and verbal harassment without injury are insufficient to state
a constitutional violation”) (citing cases); Ramirez v. Holmes,
921 F. Supp. 204, 210 (S.D.N.Y. 1996) (“Allegations of
threats or verbal harassment, without any injury or damage,
do not state a claim under 42 U.S.C. § 1983.”). “Such
statements are only sufficiently adverse for the purpose
of a First Amendment retaliation claim if they ‘would
deter a similarly situated individual of ordinary firmness of
exercising constitutional rights.’ Verbal threats may constitute
[an] adverse action if the threat is sufficiently specific. ‘The
less direct and specific a threat, the less likely it will deter
an inmate from exercising his First Amendment rights.’ ”
Hayes, 2017 WL 9511178, at *7 (citations omitted). “The
line between de minimis verbal harassment and retaliatory
adverse action ... [hinges] on the specificity and seriousness
of the words used.” Quezada v. Roy, 14-CV-4056, 2015 WL
5970355, at *21 (S.D.N.Y. Oct. 13, 2015).
*16 “Mindful that inmates ‘may be required to tolerate
more than average citizens[ ] before a retaliatory action
taken against them is considered adverse’ ” Davis, 320
F.3d at 353, I conclude that Defendant Pflueger's alleged
statements constitute vague threats that lack the specificity
and seriousness “to deter an inmate from exercising his
First Amendment rights” as no real threat exists. Id.; see
Hayes, 2017 WL 9511178, at *8 (holding that where a
correction officer allegedly verbally harassed the plaintiff
on two occasions “warning him to not get comfortable in
his housing unit because ‘you mess with one of us (C.O.’s)
you got to deal with all of us’ and informing plaintiff that
‘[another correction officer] said hi!’ .... constitute vague
threats that lack the specificity and seriousness ‘to deter an
inmate from exercising his First Amendment rights’ as no real
threat exists.”).
Furthermore, with respect to Defendant Pflueger's alleged
threats of physical injury, Plaintiff “does not ... allege that
these threats were followed by any physical injury[,] and as
a result, they are not actionable.” LaRocco v. N.Y.C. Dep't
of Corr., 99-CV-9759, 2001 WL 1029044, at *5 (S.D.N.Y.
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Aug. 31, 2001). “Absent an appreciable injury following
in close time to the threat of force [Defendant Pflueger's
alleged] statement[ ], albeit inappropriate, lack the specificity
and seriousness ‘to deter an inmate from exercising his
First Amendment rights.’ ” Hayes, 2017 WL 9511178, at *8
(quoting Quezada v. Roy, 14-CV-4056, 2015 WL 5970355, at
*21 (S.D.N.Y. Oct. 13, 2015)).
As a result, to the extent the Complaint is construed
as alleging that these incidents of verbal harassment
were adverse actions—as opposed to evidence of a
causal connection with respect to other adverse actions—I
recommend dismissal of these claims.
c. Causing Defendant Gould to File a False
Administrative Segregation Recommendation
Plaintiff has failed to adduce evidence in the record that
Defendant Pflueger directed or caused Defendant Gould to
file a false misbehavior report against Plaintiff. In fact,
Defendant Gould affirmed that he “had no knowledge at
the time [his] recommendation was made that Plaintiff had
filed any grievances against Defendant [Pflueger].” (Dkt.
No. 28, Attach. 6 at ¶ 11.) In addition, Plaintiff testified
that (1) he did not know Defendant Gould before Defendant
Gould made the recommendation that Plaintiff be placed in
administrative segregation (Dkt. No. 28, Attach. 5 at 63),
(2) he has no recollection of ever seeing Defendant Gould
before the recommendation (id.), and (3) he is not aware of
any conversations that Defendant Gould had with Defendant
Pflueger, in which, they discussed that Defendant Gould
should file an administrative segregation recommendation
based on false information (id. at 65).
The contention that Defendant Pflueger retaliated against
Plaintiff by causing Defendant Gould to file a false
administrative segregation recommendation is merely a
conclusory allegation, which is insufficient to establish
genuine issue of material fact for trial. In addition, this
contention is sheer surmise on Plaintiff's part and unsupported
by the record. (Dkt. No. 28, Attach. 5 at 64 (Plaintiff testified
that the basis for his belief that Defendant Gould filed the
recommendation on Defendant Pflueger's behalf is “[b]ecause
there is no other reason to do it.”)); Cole, 2016 WL 5394752,
at *27.
As a result, I recommend dismissal of Plaintiff's retaliation
claim against Defendant Pflueger with respect to this
allegation.
d. Destruction of Plaintiff's Personal Property
Plaintiff failed to adduce any evidence that Defendant
Pflueger destroyed (or confiscated or threw away) Plaintiff's
personal property. The only evidence that Plaintiff presents in
support of his contention, is that another inmate (housed three
cells away) witnessed Defendant Pflueger in Plaintiff's cell.
(Dkt. No. 1 at 23.) However, Plaintiff admitted that the other
inmate “was inside his cell, so he couldn't see [Defendant
Pflueger] inside [Plaintiff's] cell.” (Dkt. No. 28, Attach. 5 at
71.) Moreover, it is undisputed that other individuals were
involved in the removal of Plaintiff's property from his cell
and the transportation of that property to the special housing
unit. (Id.; Dkt. No. 1 at 23.) Plaintiff is speculating that
because the other inmate saw Defendant Pflueger in Plaintiff's
cell, that Defendant Pflueger is responsible for Plaintiff's
alleged missing personal property. However, this speculation
is insufficient to create a material issue of fact for trial because
no reasonable juror could conclude that Defendant Pflueger
took an adverse action against Plaintiff by destroying his
property.
*17 As a result, I recommend dismissal of Plaintiff's
retaliation claim against Defendant Pflueger with respect to
this allegation.
2. Defendant Jones
Plaintiff failed to show a genuine issue of material fact
that his protected conduct was a substantial or motivating
factor in Defendant Jones's endorsement of Defendant
Pflueger's misbehavior report dated June 17, 2015. Graham
v. Henderson, 89 F.3d 75, 81 (2d Cir. 1996). “[I]t is difficult
to establish one defendant's retaliation for complaints against
another defendant.” Hare v. Hayden, 09-CV-3135, 2011 WL
1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (citing Wright v.
Goord, 554 F.3d 255, 274 (2d Cir. 2009)).
Here, Plaintiff did not file any grievances or complaints
against Defendant Jones. The record lacks any evidence
establishing why Defendant Jones would endorse a false
misbehavior report against Plaintiff, on Defendant Pflueger's
behalf, beyond Plaintiff's conclusory allegations. See Hill v.
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Chalanor, 128 F. App'x 187, 189 (2d Cir. 2005) (holding
that the plaintiff's claim of a causal connection between
defendant “Oliver's threats and the alleged actions of the
other defendants in connection with Hill's medical care is
wholly unsupported.”) Flynn v. Ward, 15-CV-1028, 2018 WL
3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.)
(recommending dismissal of retaliation claims where “[t]he
record lacks any evidence establishing why Alsante would
file a false misbehavior report against Flynn, on Wellenstein's
behalf, beyond Flynn's conclusory allegations.”). Without
more, the evidence does not present a genuine issue of
material fact for a jury to resolve. Flynn, 2018 WL 3195095;
see Wright, 554 F.3d at 274 (dismissing retaliation claim
against a correction officer when the only alleged basis
for retaliation was a complaint about an incident involving
another correction officer); Alicea v. Maly, 12-CV-0203,
2015 WL 4326114, at *14-15 (N.D.N.Y. July 14, 2015)
(D'Agostino, J.) (dismissing retaliation claim which alleged
that Correction Officer Trinidad retaliated against the plaintiff
for protected actions he took with respect to Correction
Officer Freeman, where the plaintiff alleged a close personal
friendship between Trinidad and Freeman and the record
was “devoid of any specifics, but replete with conclusions”);
Guillory v. Ellis, 11-CV-0600, 2014 WL 4365274, at *18
(N.D.N.Y. Aug. 28, 2014) (D'Agostino, J.) (“[I]t is difficult
to establish one defendant's retaliation for complaints against
another defendant.”); Roseboro v. Gillespie, 791 F. Supp. 2d
353, 369 (S.D.N.Y. 2011) (plaintiff failed to provide any basis
to believe that a correction counselor would retaliate for a
grievance that she was not personally named in); Ciaprai
v. Goord, 02-CV-0915, 2005 WL 3531464, at *9 (N.D.N.Y.
Dec. 22, 2005) (Sharpe, J.) (entering summary judgment on
retaliation claim where the plaintiff cited only past grievances
filed against correction officers other than the officer who
disciplined the plaintiff).
As a result, I recommend that Plaintiff's retaliation claim
against Defendant Jones be dismissed.
3. Defendant Gould
For the reasons set forth above in Parts III.C.1.c. and
III.C.2. of this Report-Recommendation, I find that the
record lacks evidence establishing a causal connection
between Defendant Gould's recommendation that Plaintiff be
placed in administrative segregation and Plaintiff's grievances
against Defendant Pflueger, beyond Plaintiff's conclusory
allegations. As a result, I recommend that Plaintiff's
retaliation claim against Defendant Gould be dismissed.
4. Defendant Graham
*18 The Second Circuit has previously indicated that
supervisory defendants may be considered personally
involved only if they “(1) directly participated in the alleged
constitutional violation, (2) failed to remedy that violation
after learning of it through a report or appeal, (3) created,
or allowed to continue, a policy or custom under which
the violation occurred, (4) had been grossly negligent in
managing subordinates who caused the violation, or (5)
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that the violation
was occurring.” Rasheen v. Adner, 356 F. Supp. 3d 222,
233 (N.D.N.Y. Jan. 28, 2019) (Hurd, D.J.) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). 23
The Supreme Court's decision in Iqbal has raised the question
of whether all of the Colon factors continue to be viable.
Keyes v. Annucci, 19-CV-0372, 2019 WL 4602240, at *17
(N.D.N.Y. Sept. 23, 2019) (Suddaby, C.J.) (citing Montanez
v. City of Syracuse, 16-CV-0550, 2019 WL 315058, at *17
(N.D.N.Y. Jan. 23, 2019) (Sannes, J.)). Neither the Second
Circuit nor the Supreme Court have made any findings on
this issue. Keyes, 2019 WL 4602240, at *17. “Courts within
the Second Circuit have taken various approaches post-Iqbal,
from finding that only the first and third factors remain viable,
to continuing to apply all factors in the absence of Second
Circuit guidance, to considering the specific constitutional
provision underlying the claim and applying all the Colon
factors to claims that rely on a standard of unreasonable
conduct or deliberate indifference but declining to apply
all of them where the claim requires instead a showing
of discriminatory intent.” Id. (see Montanez, 2019 WL
315058, at *17-18 (collecting cases) (adopting the specific
constitutional provision approach and applying all the Colon
factors to the plaintiff's Fourteenth Amendment claims
because they did not require a showing of discriminatory
intent); Carpenter v. Apple, 15-CV-1269, 2017 WL 3887908,
at *9-10 (N.D.N.Y. Sept. 5, 2017) (Suddaby, C.J.) (noting
that the majority of district courts have continued to apply
all of the Colon factors “where the constitutional violation
at issue does not require a showing of discriminatory intent”
and adopting that majority approach); Marom v. City of New
York, 15-CV-2017, 2016 WL 916424, at *15 (S.D.N.Y. 2016)
(reasoning that Iqbal supported the specific constitutional
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provision approach, and finding that all the Colon factors
might be viable for false arrest and excessive force claims
that were based on a reasonableness standard, but that the
second, fourth, and fifth factors would not apply to a First
Amendment retaliation claim because such claim contains an
intent requirement)).
The Court agrees with the specific constitutional provision
approach discussed above because it is the most consistent
with the guidance provided in Iqbal. See Iqbal, 556 U.S.
at 676 (noting that, “[t]he factors [related to whether
a government official's individual actions violated the
Constitution] necessary to establish a Bivens violation will
vary with the constitutional provision at issue,” discussing
that the First and Fifth Amendments require that the official
acted with a discriminatory purpose, and rejecting the
argument that supervisors should be held liable on such claims
merely because they knew of a subordinate's discriminatory
purpose). The Court will therefore consider only the first and
third Colon factors because Plaintiff's claims are pursuant to
the First Amendment.
*19 “[A] retaliation claim under the First amendment
requires a showing of discriminatory intent, [and as a result,]
supervisory liability will be imposed only if Plaintiff[ ]”
establishes “that the officials either (a) directly participated in
the alleged constitutional violation, or (b) created, or allowed
to continue, a policy or custom under which the violation
occurred.” Keyes, 2019 WL 4602240, at *19.
“[W]hile personal involvement cannot be founded solely on
supervision, liability can be found if the official proactively
participated in reviewing the administrative appeals as
opposed merely to rubber-stamping the results.” Molano v.
Bezio, 10-CV-6481, 2012 WL 1252630, at *5 (W.D.N.Y. Apr.
13, 2012) (citing Collins v. Ferguson, 804 F. Supp. 2d 134,
140 (W.D.N.Y. 2011); Black v. Coughlin, 76 F.3d 72, 74-75
(2d Cir. 1996)).
The record before the Court contains superintendent
responses related to four grievances. (Dkt. No. 28, Attach.
11 at 1; Dkt. No. 28, Attach. 12 at 2; Dkt. No. 28, Attach.
14 at 1; Dkt. No. 28, Attach. 15 at 6; Dkt. No. 28, Attach.
18 at 1; Dkt. No. 28, Attach. 19 at 1.) However, the
signature of the superintendent who executed the response,
in each instance, is illegible. While Defendants argue that
Defendant Graham merely rubber stamped the results of the
investigation, “notably absent from the record is any affidavit
or declaration from [Defendant Graham]” and absent “such
evidence, a factual dispute exists as to whether [Defendant
Graham] proactively participated in the decision-making
process related to [Plaintiff's] grievances.” Flynn, 2018 WL
3195095, at *13.
As such, I find that there is a triable issue of material fact for
a jury to resolve with respect to Defendant Graham's personal
involvement in Defendant Pflueger's alleged retaliatory
conduct. Flynn, 2018 WL 3195095, at *13 (citing Celotex v.
Catrett, 477 U.S. 317, 323 (1986)). Therefore, I recommend
that Defendants’ motion with respect to Defendant Graham
be denied.
D. Doctrine of Qualified Immunity
Finally, Defendants argue that, in any event, they are shielded
from liability based on the doctrine of qualified immunity.
Qualified immunity shields federal and state officials from
suit “ ‘unless [1] the official violated a statutory or
constitutional right that [2] was clearly established at the time
of the challenged conduct.’ ” Terebesi v. Torreso, 764 F.3d
217, 230 (2d Cir. 2014) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)). “A right is ‘clearly established’ if ‘it would
be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.’ ” Beckles v. City of New York,
492 F. App'x 181, 182 (2d Cir. 2012) (quoting Saucier v. Katz,
533 U.S. 194, 202 (2001)).
Here, while Defendants summarize general caselaw, their
argument in support of the qualified immunity defense is
one paragraph long, entirely conclusory, and unsupported by
any facts. Accordingly, it is recommended that Defendants’
motion on this ground, be denied. Thomas v. Delany, 17-
CV-1023, 2019 WL 4247807, at *19 (N.D.N.Y. Aug. 13,
2019) (Hummel, M.J.) (citing Roberts v. Hobbs, 10-CV-0174,
2010 WL 5888777, at *6 (E.D. Ark. Nov. 8, 2010) (summarily
denying dispositive motion containing unsupported and
conclusory qualified immunity arguments that fail to address
the particular facts or cite any relevant cases)).
ACCORDINGLY, it is
RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 28) be DENIED with respect to Plaintiff's
retaliation claims against (1) Defendant Pflueger for firing
Plaintiff as a feed up porter, and (2) Defendant Graham as
superintendent and GRANTED with respect to Plaintiff's
retaliation claims against (1) Defendants Jones, (2) Defendant
Gould, and (3) Defendant Pflueger for allegedly (a) filing
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a false misbehavior report against Plaintiff on June 17,
2015, (b) verbally harassing Plaintiff, (c) causing Defendant
Gould to file an improper recommendation of administrative
segregation, and (d) destroying Plaintiff's property.
*20 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
72.1(c), the parties have fourteen (14) days within which
to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
(citing Small v. Sec. of Health & 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.
It is hereby respectfully ORDERED that the Clerk of the
Court shall file a copy of this Report-Recommendation on
the docket of this case and serve a copy upon the parties in
accordance with the local rules. 24
All Citations
Not Reported in Fed. Supp., 2019 WL 8015209
Footnotes
1 The Court notes that Defendants sometimes refer to Defendant Pflueger as Defendant “Plfueger” or
“Pfleuger.” (See Dkt. No. 28, Attach. 1; Dkt. No. 28, Attach. 3; Dkt. No. 28, Attach. 10.) However, for the sake
of consistency, the Court will refer to him as Defendant Pflueger, as reflected on the docket. (See generally
docket sheet.)
2 The Court notes that the citation provided by Defendants for this fact does not support the fact asserted. See
New York State Dep't of Corr. And Comty. Servs., http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/
WINQ130 (last visited November 25, 2019). However, the Court deems the fact admitted because Plaintiff
failed to deny it. Estate of D.B. by Briggs v. Thousand Islands Cent. Sch. Dist., 327 F. Supp. 3d 477, 485
n.2 & n.13 (N.D.N.Y. 2018) (Suddaby, C.J.) (“where a non-movant neither admits nor disputes a fact, the
response is deemed an admission”); Costello v. N.Y. State Nurses Ass'n, 783 F. Supp. 2d 656, 661 n.5
(S.D.N.Y. 2011) (disregarding the plaintiff's responses to the defendant's statement of material facts not in
dispute where the plaintiff's response paragraphs did not specifically dispute the defendant's statements or
consisted of “conclusory allegations, speculation, or conjecture.”); In re Horowitz, 14-CV-36884, 2016 WL
1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (stating that, “a response contending to neither admit or
deny an allegation does not create a genuine issue of fact”); accord, Piacente v. Int'l Union of Bricklayers &
Allied Craftworkers, 11-CV-1458, 2015 WL 5730095, at *2 n.3 (S.D.N.Y. Sept. 30, 2015).
3 Defendants acknowledge that there are “certain caveats” to the PLRA's exhaustion requirement, however
Defendants argue that those caveats are inapplicable here.
4 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has
explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
5 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
6 Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
7 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
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8 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to the movant's
Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching
numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue
arises. N.D.N.Y. L. R. 7.1(a)(3).
9 Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F. Supp. 2d 369,
371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of
the record to find proof of a factual dispute.”).
10 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999)
(McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants
in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for
defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3]); Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.)
(deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
11 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. Mar. 31, 2010) (citation
omitted) (Suddaby, J.).
12 The Court uses the term “a certain number of days” rather than a particular time period because (1) since
the three-step process was instituted, the time periods imposed by the process have changed, and (2) the
time periods governing any particular grievance depend on the regulations and directives pending during the
time in question.
13 See Murray, 2010 WL 1235591, at *2 & n.3 (citing Groves v. Knight, 05-CV-0183, Decision and Order at 3
(N.D.N.Y. filed Aug. 4, 2009), an appeal from which was subsequently dismissed as frivolous, see Groves v.
Knight, No. 09-3641, Mandate (2d Cir. Filed Jan. 15, 2010)).
14 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next step.”);
see also Murray, 2010 WL 1235591, at *2 & n.4 (collecting cases).
15 The Court notes that the Supreme Court recently eliminated this third inquiry, and courts are no longer
permitted to excuse a prisoner's failure to exhaust his administrative remedies because of “special
circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016).
16 “Although ‘a plaintiff's pro se status does not allow him to rely on conclusory allegations or unsubstantiated
speculation to overcome a motion for summary judgment,’ Almonte v. Florio, 02-CV-6722, 2004 WL 60306,
at *3 n.10 (S.D.N.Y. Jan. 13, 2004) (citation and italics omitted), where a plaintiff ‘verifie[s] his complaint
by attesting under penalty of perjury that the statements in the complaint [are] true and to the best of his
knowledge,’ the ‘verified complaint is to be treated as an affidavit for summary judgment purposes,’ Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).” King v. Puershner, 17-CV-1373, 2019 WL 4519692, at *1 n.1
(S.D.N.Y. Sept. 19, 2019).
17 The Court notes that this conclusion is based on the special solicitude afforded to Plaintiff as a pro se litigant.
Further, the Court notes that the evidence in the record to support the exhaustion of Plaintiff's administrative
remedies is sparse. See c.f. Richardson v. Eberth, 14-CV-6138, 2016 WL 1271078, at *2-3 (W.D.N.Y. Mar.
29, 2016) (dismissing based on failure to exhaust administrative remedies where the plaintiff attached a copy
of his original grievance which did not “bear any indicia that it was received or provided to any individual at the
jail for transmission to the CORC” and his affidavit submitted in opposition failed to provide any specific details
to support his allegation that he appealed his grievance to CORC (e.g. it did not state what specific person
he gave it to in the prison, on what date he gave the appeal to anyone at the prison, or any other pertinent
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or specific information to support his allegations)); Toliver v. Stefinik, 12-CV-0077, 2016 WL 3349316, at *6
(June 15, 2016) (D'Agostino, J.) (dismissing for failure to exhaust administrative remedies where the plaintiff
submitted a copy of a formal grievance dated March 9, 2011, that was not reflected in the defendants’ records
but where the plaintiff alleged that he “circulated” the grievance to the defendants and it was unclear whether
the grievance was ever submitted to IGRC).
18 Defendants argue that Defendant Pflueger, as a correction officer, would not have had authority to fire Plaintiff
as a feed up porter. (Dkt. No. 28, Attach. 3 at 17-18; Dkt. No. 28, Attach. 10 at ¶11.) However, there is evidence
in the record that disputes this assertion and creates an issue of fact for trial. (Dkt. No. 28, Attach. 5 at 49.)
19 It is undisputed that Plaintiff engaged in constitutionally protected speech by the filing of grievances. (Dkt.
No. 1 at 5-7; Dkt. No. 28, Attach. 11; Dkt. No. 28, Attach. 12; Dkt. No. 28, Attach. 14; Dkt. No. 28, Attach. 15;
Dkt. No. 28, Attach. 18; Dkt. No. 28, Attach. 19.) See also Flood v. Cappelli, 18-CV-3897, 2019 WL 3778736,
at *7 (S.D.N.Y. Aug. 2, 2019) (collecting cases) (holding that the filing of a grievance is protected speech).
In addition, the alleged actions taken by Defendants constitute adverse actions because they would deter
a prisoner of “ordinary firmness” from exercising his rights. See Johnson v. Schiff, 17-CV-8000, 2019 WL
4688542, at *24 (S.D.N.Y. Sept. 26, 2019) (collecting cases) (holding that the filing of a false misbehavior
report against a prisoner is an adverse action); Hayes v. Dahkle, 16-CV-1368, 2017 WL 9511178, at *11
(N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.) (holding that the “filing of a falsified misbehavior report that results
in disciplinary segregated confinement constitutes adverse action.”); Casey v. Pallito, 12-CV-0284, 2016
WL 96157, at *7 (D. Vt. Jan. 7, 2016) (holding that terminating a prisoner's employment is an “adverse
action.”); Chavis v. Struebel, 317 F. Supp. 2d 232, 238 (W.D.N.Y. 2004) (noting that “assigning the inmate
[to] less desirable work assignments satisfies the adverse action requirement” for purposes of a prisoner's
First Amendment retaliation claim).
20 “In assessing temporal proximity, the Second Circuit has established that no more than six months between
the protected activity and the adverse action establishes the temporal proximity sufficient to support an
inference of causal connection.” Hayes v. Dahkle, 16-CV-1368, 2017 WL 9511178, at *9 (N.D.N.Y. Oct. 30,
2017) (Hummel, M.J.) (citing King v. McIntyre, 11-CV-1457, 2015 WL 1781256, at *5 (N.D.N.Y. Apr. 8, 2016)).
Here Plaintiff was fired as a feed up porter and Defendant Pflueger filed an allegedly false misbehavior report
on June 17, 2015, which is “well within the Second Circuit's six-month time frame for establishing a causal
connection between [P]laintiff's filing of a grievance” on May 10, 2015. Hayes, 2017 WL 9511178, at *10.
21 While Defendant Pflueger denies making the statements on August 4, 2015, and August 6, 2015, (Dkt. No.
28, Attach. 10 at ¶¶ 25-25), “[t]he court, when faced with conflicting sworn statements, must leave such
credibility determinations to a reasonable fact finder to determine.” Mack v. Wood, 17-CV-1146, 2019 WL
5197230, at *7 (N.D.N.Y. July 26, 2019) (Baxter, M.J.).
22 While this statement suggests retaliatory animus about Plaintiff's placement in administrative segregation, for
the reasons set forth in Part III.C.1.c. infra, there is no evidence before the Court that Defendant Pflueger had
any role in Plaintiff's administrative segregation placement (other than being the alleged target of Plaintiff's
planned of attack). In addition, Plaintiff accepted the recommendation that he be placed in administrative
segregation. (Dkt. No. 1 at 21-22.)
23 “In addition to satisfying one of these requirements, a plaintiff must also establish that the supervisor's actions
were the proximate cause of the plaintiff's constitutional deprivation.” Raspardo v. Carlone, 770 F.3d 97, 116
(2d Cir. 2014).
24 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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Marino v. Watts, Not Reported in F.Supp.3d (2014)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 1794588
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Vincent Michael MARINO, Plaintiff,
v.
Harrell Watts, General C ounsel/BOP/DOJ, Deborah
G. Schult, Warden/BOP/DOJ, Robert Helms, SIS
Lieutenant/BOP/DOJ, Jason Poirier, Correctional
Officer/BOP/DOJ, D. Ryan, Disciplinary Hearing
Officer/BOP/DOJ, Ms. Sepanek, Counselor/
BOP/DOJ, Mr. Lucas, Case Manager/BOP/
DOJ, Joseph Smith, Correctional Officer/ BOP/
DOJ, John and Jane Does 1–20, Defendants.
No. 9:12–CV–801 (NAM/RFT).
|
Signed May 6, 2014.
Attorneys and Law Firms
Vincent Michael Marino, Welch, WV, pro se.
The Hon. Richard S. Hartunian, United States Attorney of the
Northern District of New York, Karen F. Lesperance, Esq.,
James T. Foley U.S. Courthouse, Albany, NY, for Defendants.
MEMORANDUM–DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
INTRODUCTION
*1 Plaintiff, an inmate in the federal correctional system,
brings this pro se civil rights action pursuant to Bivens
v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Defendants move (Dkt.
No. 41) to dismiss the action, on the ground of failure to
state a claim and/or res judicata. Upon referral pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c),
United States Magistrate Judge Randolph F. Treece has
prepared a ReportRecommendation and Order (Dkt. No. 47)
recommending dismissal. Plaintiff has filed objections (Dkt.
No. 41). Given the extensive nature of plaintiff's objections,
the Court conducts a de novo review. See 28 U.S.C. § 636(b)
(1)(C). As set forth below, the Report–Recommendation and
Order is accepted insofar as it summarizes the facts and
procedural background of this case, and otherwise rejected.
The Court grants dismissal of the complaint with leave to
replead certain claims.
BACKGROUND
Magistrate Judge Treece sets forth in detail the procedural
history of this action. The Court briefly summarizes it
here. On December 22, 1999, plaintiff was convicted
in the Worcester Division of the United States District
Court for the District of Massachusetts on a Racketeer
Influence and Corrupt Organizations Act violation and
related crimes. Plaintiff's claims in this action arise from
an incident occurring on December 3, 2009, while plaintiff
was incarcerated at Ray Brook Federal Correctional Institute
(“Ray Brook”). During a search of plaintiff's cell, prison
authorities found betting slips, $2,729.32 worth of unused
stamps, and ten gallons of homemade intoxicants. Plaintiff
was charged with making, possessing, or using intoxicants,
possessing gambling paraphernalia, conducting a gambling
pool, and possessing unauthorized items. On December 15,
2009, after a disciplinary hearing presided over by defendant
Disciplinary Hearing Officer (“DHO”) D. Ryan, plaintiff was
found guilty. As a result, plaintiff spent two and one-half
months in the Special Housing Unit (“SHU”) and lost 36 days
of earned good time credits. Plaintiff's administrative appeal
was denied.
Plaintiff filed a habeas corpus petition in this district pursuant
to 28 U.S.C. § 2241, seeking the restoration of the 36
days good time credits or, in the alternative, judicial review
of the December 3, 2009 video tape and an evidentiary
hearing. On October 20, 2011, the petition was transferred
to Western District of Louisiana. On April 16, 2012, United
States Magistrate Judge James D. Kirk issued a Report and
Recommendation recommending that the habeas petition be
denied with prejudice. Marino v. Schult, 2012 WL 2133630
(W.D.La. Apr. 16, 2012). Magistrate Judge Kirk summarized
plaintiff's section 2241 claims as follows:
1. DHO Officer Ryan violated Marino's due process rights
by precluding Marino from receiving core exculpatory
material evidence at his DHO hearing to prove the
critical 10 gallons of “unknown liquid” depicted in
the BOP's first incident report (# 1950877) supports
the BOP's second incident report (# 1951307) issued 2
full days later, which was false, misleading, inaccurate
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and should be expunged, since Marino was denied an
opportunity to confront and refute the evidence.
*2 2. DHO Officer Ryan violated Marino's right to due
process and his liberty interest by failing to allow Marino
to call witnesses CO/Joe Smith in his defense.
3. DHO Officer Ryan's preclusion to review the critical
video tape of Mohawk–B Unit at FCl–Ray Brook in
New York, from 8 a.m. through 2 p.m. on December
3, 2009, which data showed the second incident report
(# 1951307) dated December 5, 2009 to be inaccurate
and false since the 10 gallons of then “unknown liquid”
could not have logically turned into intoxicant 2 days
later when it did not exist and it was already deemed
“unknown liquid” in the first incident report (# 1950877)
by BOP staff and thus was not available for further
testing.
4. BOP/DOJ staff retaliated against Marino when the BOP
staff intentionally manipulated Marino's security level
points from 11 points (low level security institution)
to 24 points (high level security institution), which
adversely affects Marino, placing Marino over 500
miles away from his home, and again retaliated against
Marino by placing Marino on the “BOP's Diesel Therapy
Program” by putting him in transit without his legal mail
and legal property from December 3, 2009 to February
12, 2010 through July 13, 2010, so Marino did not
receive his legal mail and legal material until August
2010 (eight months).
5. The DHO officer's failure to dismiss the BOP's second
incident report (# 1952307) due to untimely service, in
violation of Policy Statement 5270.07 Chapter 2, page
3, subsection I, and CFR 541.11 is refuted by the BOP's
first incident report (# 1950877), in violation of Marino's
right to due process and liberty interest, since Marino
lost 36 days of earned good time credit.
6. The BOP's intentional delay of over 6 months to respond
to Marino's BP-l1 (# 570917–Al) was excessive and
required review or dismissal of the second incident
report (# 19513077).
Id. at *1–*2. On June 12, 2012, United States District Judge
James T. Trimble denied the petition and dismissed it with
prejudice for the reasons set forth in Magistrate Judge Kirk's
Report and Recommendation. Marino v. Schult, 2012 WL
2126944 (W.D. La. June 12, 2012).
On March 23, 2012 plaintiff filed the instant civil rights
action . 1 As Magistrate Judge Treece observes: “Plaintiff re-
alleged, nearly verbatim, the claims he raised in his federal
habeas petition ... and further expounded upon those claims
adding additional facts and allegations, and naming several
new Defendants.” The causes of action in the complaint
before this Court are as follows 2 :
First Cause of Action
The willful, intentional actions of Defendants: Watts,
Schult, Helms, Poirier, Ryan, Sepanek, Lucas, Smith, &
several John & Jane Does 1–20, all conspired together
with each other & others known & unknown BOP/
DOJ employees to file a false SECOND INCIDENT
REPORT # 1951307, used to days of earned good
time jail credits from Marino, as retaliation for Marino
exercising his First Amendment's Freedom of Speech &
Fifth & Sixth Amendment's Due Process as described
supra. Also violating the 8th Amendment's Cruel &
Unusual Punishment without due process of law.
*3 Second Cause of Action
The willful & intentional actions of Defendants: Watts,
Schult, Helms, Poirier, Ryan, Sepanek, Lucas, Smith &
several John & Jane Does 1–20, all conspired together
with each other & others known & unknown to retaliate
against Marino for leaving Marino in FCI Ray Brook's
SHU without access to flush the toilet, without access
to control the lights, without a shower, without clean
linen & clothes without his legal work & legal mail, over
2 months over his sanctioned DHO time in violations
of the First Amendment's Freedom of Speech, Fifth &
Sixth Amendment's Due Process failing to allow Marino
the use of the Administrative Remedy Process, and in
violations of the Eighth Amendment's Cruel & Unusual
Punishment of the United States Constitution leaving
Marino in SHU for over 2 months for a false INCIDENT
REPORT TWO # 1951307.
Third Cause of Action
The willful & intentional actions of Defendants: Watts,
Schult, Helms, Ryan, Sepanek, Lucas, Smith, Poirier,
& several John & Jane Does 1–20, retaliated against
Marino by taking Marino's Federal Rules of Civil
Procedure Book on December 3, 2009, over 600 books
Commissary bought United States Postage Stamps
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bought 3 books per week for the past 13–14 years at
various prison commissaries as the commissary records
so supports, taking Marino's 300 commissary bought
fish, seizing Marino's legal mail & legal work preventing
Marino from access to the courts, in violations of
the 1st Amendments Freedom of Speech, 5th & 6th
Amendment's Due Process & 8th Amendment's Cruel &
Unusual Punishment of the U.S. Constitution.
Fourth Cause of Action
The willful & intentional actions of Defendants: Watts,
Schult, Helms, Ryan, Sepanek, Lucas, Smith, Poirier,
& several John & Jane Does 1–20, retaliated against
Marino by “Manipulation of Marino's Custody &
Security Points” from 11 points to 24 points ...
Against Marino for exercising his First Amendment's
Freedom of Speech & Fifth & Sixth Amendment's Due
Process as seen supra, violating Marino's 1 st, 5th, &
6th Amendments, designed to place Marino in USP
Pollock, Louisiana that has a history of 15 murders,
over 300 stabbings, over 300 knife shots & known as a
“Lock Down” institution preventing Marino from access
to the Courts, Law Library & the exercise of his Due
Process, also in violations of the 8th Amendment's Cruel
& Unusual Punishment.
Fifth Cause of Action
The willful & intentional actions of Defendants: Watts,
Schult, Helms, Poirier, Ryan, Smith, Sepanek, Lucas,
& several John & Jane Does 1–20, placing Marino
on “Defendants/BOP'S Diesel Therapy Program” from
December 3, 2009 through July 13, 2010, Marino was
without his legal mail & legal work. In fact Marino did
not receive his legal work until August 2010. Marino
received some of his “Legal Mail” from 3–6 months
later, some was lost, some was destroyed, some was sent
back to sender.
Sixth Cause of Action
The willful & intentional actions of Defendants: Watts,
Schult, Helms, Poirier, Ryan, Smith, Sepanek, Lucas, &
several John & Jane Does 1–20, intentional infliction
of emotional distress and anguish, as the defendants
intended to inflict emotional distress or knew or should
have known that emotional distress was the likely result
of Defendants unconstitutional conduct as described
supra; That the conduct was extreme and outrageous
was beyond all possible bounds of decency and utterly
intolerable in a civilized community; That the actions of
Defendants were the cause of Plaintiff Marino's distress;
and That the emotional distress sustained by Marino
was severe and of a nature that no reasonable man
could be expected to endure it, in violations of the 8th
Amendment of the United States Constitution & Due
Process.
*4 (References to exhibits omitted.)
DISCUSSION
In addressing this motion to dismiss, the Court views the
facts alleged in the complaint in the light most favorable to
plaintiff and construes the complaint liberally, accepting all
factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff's favor. See Grullon v.
City of New Haven, 720 F.3d 133, 139 (2d Cir.2013). The
Court interprets this pro se plaintiff's factual allegations to
raise the strongest arguments that they suggest. See id. “The
court should freely give leave [to amend] when justice so
requires.” Fed .R.Civ.P. 15(a)(2). Moreover, a court should
not dismiss a complaint without leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated. See Grullon, 720 F.3d at
139. Leave to amend, however, is not required where “the
problem with [plaintiff's] causes of action is substantive” such
that “better pleading will not cure it.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir.2000).
Plaintiff's claim in this Court for money damages and other
relief for constitutional violations committed by federal
agents acting under color of federal law is properly brought
under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens action
shares the same “practicalities of litigation” with claims under
42 U.S.C. § 1983 for constitutional violations committed by
state agents acting under color of state law; thus, federal
courts “have typically incorporated § 1983 law into Bivens
actions.” Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995). For
purposes of this Memorandum–Decision and Order, the Court
relies on both Bivens and section 1983 case law.
Defendants seek dismissal on the ground that plaintiff's
claims are barred by application of the doctrine of res judicata
(claim preclusion). This argument lacks merit. Under the
doctrine of res judicata, a final judgment on the merits of an
action precludes the parties or their privies from relitigating
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issues that were or could have been raised in that action. See
EDP Med. Computer Sys. v. United States, 480 F.3d at 621,
624 (2d Cir.2007). Defendants cite no authority supporting
the contention that the dismissal of plaintiff's habeas corpus
petition bars his Bivens claims on res judicata grounds, nor
is the Court aware of any. 3 A Bivens claim that necessarily
implicates the validity or duration of an inmate's confinement
“is not cognizable” until the inmate successfully challenges
the validity or duration of that confinement by way of a
habeas proceeding. Tavarez, 54 F.3d at 110 (citing Heck v.
Humphrey, 512 U.S. 477, 484–85 (1994)); accord Edwards v.
Balisok, 520 U.S. 641, 645–48 (1997) (extending Heck rule
to inmates' challenges to prison disciplinary proceedings that
resulted in loss of good time credits). Such a Bivens claim
does not accrue until the successful conclusion of the habeas
proceeding, see Heck, 512 U.S. at 489–90; thus, it could not
properly have been raised within the habeas proceeding. To
the extent that plaintiff in the case at bar seeks relief that
implicates the validity of his disciplinary penalty, and thus the
duration of his confinement, his claims are not barred by res
judicata. Nor is there any basis to apply the doctrine to his
other claims.
*5 In support of their res judicata argument, defendants cite
only two cases that could arguably apply to the instant case:
Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996),
and Burgos v. Hopkins, 14 F.3d 787, 792–93 (2d Cir.1994).
Kulak and Burgos, however, concern collateral estoppel (issue
preclusion), not res judicata (claim preclusion). Collateral
estoppel precludes a party from relitigating an issue that has
been actually litigated and decided in a prior action, provided
that: (1) there is an identity of issue which has necessarily
been decided in the prior action and is decisive of the present
action; and (2) there has been a full and fair opportunity to
contest the decision now said to be controlling. See Kulak,
88 F.3d at 71–72. Kulak and Burgos applied the doctrine
of collateral estoppel to preclude inmates from relitigating
in section 1983 actions issues that had been decided in the
inmates' unsuccessful habeas proceedings. Because collateral
estoppel precludes relitigation of only those issues that have
already been litigated and decided, it does not bar relitigation
of issues that could have been raised previously but were not.
Therefore, even if the doctrine of collateral estoppel were
applied in the instant case, it would not warrant dismissal
of the entire complaint now before the Court. Moreover,
even where there is an identity of issues, collateral estoppel
does not bar a plaintiff's claims if he can show he did not
have a full and fair opportunity to litigate the issues in
the prior proceeding. Id. Whether plaintiff had a full and
fair opportunity cannot be resolved on this Rule 12(b)(6)
motion. 4 Dismissal on the ground of res judicata or collateral
estoppel is denied.
The Court now considers the merits of plaintiff's section 1983
claims.
First Cause of Action
The first cause of action claims that defendants filed the
incident report (# 1951307) underlying the disciplinary
proceeding in issue in retaliation for plaintiff's exercise of
his First Amendment rights. To state a First Amendment
retaliation claim, a plaintiff must allege “(1) that the speech
or conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was
a causal connection between the protected speech and the
adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d
Cir.2004). A finding in plaintiff's favor would necessarily
imply that there was no proper non-retaliatory basis for the
misbehavior report and subsequent disciplinary proceeding
and punishment. 5 Such a finding necessarily implicates the
duration of plaintiff's confinement and thus is barred by
Heck and Balisok. Because plaintiff's habeas corpus petition
was denied—and apparently not appealed—he cannot now
collaterally attack the duration of his confinement by way
of this Bivens action. See Balisok, 520 U.S. at 645–48.
Therefore, repleading this cause of action would be futile;
better pleading will not cure it. The first cause of action,
claiming that the filing of incident report # 1951307 was
retaliatory, is dismissed without leave to replead.
Second Cause of Action
*6 The second cause of action may be read as challenging
the conditions of plaintiff's confinement in the special housing
unit (“SHU”) resulting from the disciplinary proceeding
based on incident report # 1951307. Judge Trimble's dismissal
of the habeas petition forecloses plaintiff from challenging
the SHU sentence itself on the ground that it was based on an
invalid disciplinary sanction. See Heck and Balisok. Any such
claim is dismissed without leave to replead on the ground of
futility.
Plaintiff is not necessarily foreclosed, however, from
obtaining relief based on the conditions he experienced while
in SHU. Although he is precluded by the outcome of his
habeas proceeding from claiming that his SHU confinement
denied him a liberty interest without due process, he may be
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able to establish an Eighth Amendment claim of cruel and
unusual punishment. The Second Circuit explains:
To demonstrate that the conditions
of his confinement constitute cruel
and unusual punishment, the plaintiff
must satisfy both an objective test
and a subjective test. First, the
plaintiff must demonstrate that the
conditions of his confinement result in
unquestioned and serious deprivations
of basic human needs. Second, the
plaintiff must demonstrate that the
defendants imposed those conditions
with deliberate indifference.
Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.1996) (citations
and quotation marks omitted). Petitioner's allegations fail to
meet either test sufficiently to allege a plausible claim.
In view of plaintiff's pro se status, the Court gives him an
opportunity to replead this claim. The Court adds that, in
addition to addressing the two tests set forth in Jolly, plaintiff
should include allegations supporting a finding of personal
involvement of each defendant against whom he wishes to
pursue this claim. With respect to supervisory defendants,
the Second Circuit has construed personal involvement “to
mean direct participation, or failure to remedy the alleged
wrong after learning of it, or creation of a policy or custom
under which unconstitutional practices occurred, or gross
negligence in managing subordinates.” Black v. Coughlin,
76 F.3d 72, 74 (2d Cir.1996). If plaintiff chooses to replead
an Eighth Amendment claim based on the conditions of his
SHU confinement, the Court recommends that he also plead
whether and how he exhausted his administrative remedies
regarding SHU conditions.
Third Cause of Action
The third cause of action alleges defendants retaliated against
plaintiff by confiscating his property, including his legal
mail. A prison official's conduct in confiscating, losing, or
destroying an inmate's property may constitute an adverse
action for purposes of a retaliation claim. See, e.g., Mateo
v. Bristow, 2013 WL 3863865, *5 (S.D.N.Y. Jul. 16, 2013).
As noted above, to state a First Amendment retaliation claim,
a plaintiff must allege “(1) that the speech or conduct at
issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.”
Gill, 389 F.3d at 380. Depending on the circumstances,
confiscation of legal mail may qualify as an adverse action.
Although he lists a number of lawsuits he has brought, letters
of complaint he has written to governmental officials and
entities, and grievances he has filed, plaintiff does not specify
which constitute a protected action in the context of this claim.
Nor does he specify which of the many defendants may have
known of any particular lawsuit, letter, or grievance; which
specific defendants participated in the adverse action; or on
what basis plaintiff alleges a causal connection between a
particular lawsuit, letter, or grievances and the confiscation
of his mail or other property. Nor does he set forth a
basis for imposing liability on the supervisory defendants.
Plaintiff does not plausibly plead a retaliation claim based on
confiscation of his mail or other property.
*7 The allegation that prison officials intentionally
confiscated plaintiff's legal mail might also support a claim
of unconstitutional denial of plaintiff's access to the courts.
See Franco v. Kelly, 854 F.2d 584, 588 (2d Cir.1988). To
state a claim for denial of access to the courts, including a
claim based on interference with legal mail, plaintiff must
allege actual injury, i.e., that the defendants' actions hindered
his efforts to pursue a particular legal claim. See Davis v.
Goord, 320 F.3d 346, 351 (2d Cir.2003). Accordingly, without
identification of the underlying action that was hindered,
and the manner in which it was hindered, plaintiff does
not properly plead actual injury, and thus does not plead a
First Amendment violation. See Christopher v. Harbury, 536
U.S. 403, 415 (2002) (“[T]he underlying cause of action ...
is an element that must be described in the complaint,
just as much as allegations must describe the official acts
frustrating the litigation.”). Plaintiff fails to satisfy this
requirement. 6 Moreover, plaintiff does not specify how each
named defendant was personally involved in this alleged
deprivation. Plaintiff does not plausibly plead a claim for
denial of access to the courts. The third cause of action is
dismissed with leave to replead.
Fourth Cause of Action
Plaintiff claims that defendants retaliated against him by
manipulating his custody and security points from 11 to 24
points, resulting in his transfer to United States Penitentiary
Pollock, Louisiana, a facility which “has a history of 15
murders, over 300 stabbings, over 300 knife shots & known
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as a ‘Lock Down’ institution preventing Marino from access
to the Courts, Law Library the exercise of his Due Process,
also in violations of the 8th Amendment's Cruel & Unusual
Punishment.” It is not clear what protected action underlies
this claim. As for an adverse action, some courts have
indicated that a prison transfer may constitute an adverse
action where, as here, a plaintiff claims he was transferred
to a facility imposing more onerous conditions. See, e.g.,
Tuitt v. Chase, 2013 WL 877439, *9 (“The transfer of a
prisoner is not considered an ‘adverse action’ unless it results
in the prisoner being subjected to more onerous conditions.”).
Here, even assuming that plaintiff's transfer constitutes an
adverse action, plaintiff pleads no basis for finding the
transfer was retaliatory. Attached to the complaint is a form
dated April 27, 2006 showing his classification as 11, and
a form dated February 2, 2011 showing his classification as
24. These forms, showing an increase in plaintiff's security
classification at an unspecified time during a period of almost
five years, do not support a finding of a causal connection
between whatever protected act plaintiff relies on and the
change in his classification. Moreover, plaintiff appears to
claim that his security classification was revised shortly
after the December 3, 2009 incident, in which case the
December 3, 2009 incident and the December 15, 2009
disciplinary determination would provide defendants with a
proper non-retaliatory ground for raising plaintiff's security
points, regardless of whether they also had a retaliatory
motive, thus defeating this claim. See Lowrance v. Achtyl,
20 F.3d 529, 535 (2d Cir.1994) (stating that where adverse
action “is motivated by both proper and improper reasons, the
action may be sustained if it would have been taken even in
the absence of the improper reason.”). This cause of action
is dismissed with leave to replead. If plaintiff chooses to
replead, he should spell out what protected action he is relying
on, which of the defendants he claims is responsible for the
reclassification, and the basis for alleging a causal connection
between the protected action and the reclassification.
Fifth Cause of Action
*8 The fifth cause of action alleges defendants intentionally
placed plaintiff in their “Diesel Therapy Program” (that is,
transferred him frequently) from December 3, 2009 through
July 13, 2010. As a result, plaintiff claims, he “was without
his legal mail & legal work.” He adds: “In fact Marino did
not receive his legal work until August 2010. Marino received
some of his ‘Legal Mail’ from 3–6 months later, some was
lost, some was destroyed, some was sent back to sender.” As
discussed above in the context of the third cause of action,
to state a claim for denial of access to the courts based
on interference with legal mail, plaintiff must allege actual
injury, that is, that the defendants' actions hindered his efforts
to pursue a particular legal claim. See Davis, 320 F.3d at 351.
Accordingly, without identification of the underlying action
which was hindered, and the manner in which it was hindered,
plaintiff does not properly plead actual injury. Thus, he does
not plead a First Amendment violation in this respect. See
Christopher, 536 U.S. at 415. Moreover, plaintiff does not
specify how most of the named defendants were involved
in this alleged deprivation, nor does he set forth a basis for
supervisory liability. Plaintiff does not plausibly plead a claim
for denial of access to the courts. The fifth cause of action is
dismissed with leave to replead.
Sixth Cause of Action
The sixth cause of action is for intentional infliction of
emotional distress, a New York State common-law claim.
The Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(e),
provides: “No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the
commission of a sexual act.” 7 Plaintiff's claim for intentional
infliction of emotional distress is barred as a matter of law
by section 1997e(e). See Thompson v. Carter, 284 F.3d 411,
417–18 (2d Cir.2002). The sixth cause of action is dismissed
without prejudice.
Equal Protection
In his objection to the Report–Recommendation and Order,
plaintiff refers to an equal protection “class of one” claim.
To succeed on such a claim, a plaintiff must establish that no
rational person could regard plaintiff's circumstances to differ
from those of a comparator to a degree that would justify the
differential treatment on the basis of a legitimate government
policy. See Ruston v. Town Bd. for Town of Skaneateles, 610
F.3d 55, 59–60 (2d Cir.2010). There is nothing in plaintiff's
papers to suggest that he has a viable class of one claim. Any
such claim is dismissed without prejudice.
Due Process
In the body of the complaint, plaintiff repeatedly refers to the
Fifth Amendment right to due process. Any due process claim
plaintiff may assert based on the disciplinary proceeding
regarding the December 3, 2009 incident lacks merit as a
matter of law because it is barred by Heck and Balisok.
Any due process property interest claim regarding the items
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allegedly confiscated from plaintiff's cell on December 3,
2009 lacks merit as a matter of law because plaintiff had
statutory post-deprivation remedies available. See 31 U.S.C.
§§ 3723(a)(1); 3724. If plaintiff intended to plead either of
these claims, they are dismissed without leave to replead on
the ground of futility.
*9 Plaintiff also refers to his Sixth Amendment due
process rights. It appears that he is claiming that the
procedures utilized in the disciplinary hearing violated his
Sixth Amendment rights to be confronted with the witnesses
against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for
his defense. A prison disciplinary proceeding is not, however,
a criminal prosecution, and the Sixth Amendment does not
apply. See Sash v. Zenk, 439 F.3d 61, 63 (2d Cir.2006) (“Prison
disciplinary hearings are not treated as ‘criminal’ for purposes
of the Sixth Amendment.”). In any event, any such claim
would be barred by Heck and Balisok. Any Sixth Amendment
claims based on the procedures utilized in the disciplinary
proceeding are dismissed without leave to replead on the
ground that they are futile.
Fourth Amendment
Plaintiff also cites to the Fourth Amendment. Plaintiff cannot
maintain a Fourth Amendment claim that he was subjected to
an unreasonable cell search, because “the Fourth Amendment
proscription against unreasonable searches does not apply
within the confines of the prison cell.” Hudson v. Palmer, 468
U.S. 517, 526 (1984). Any Fourth Amendment claim based
on the fact that his cell was searched on December 3, 2009 is
dismissed without leave to replead on the ground of futility.
Other Allegations
In various parts of the complaint, plaintiff refers to lawsuits
he has brought, letters he has written, and grievances he
has filed. In this rambling, single-spaced 34–page complaint,
which contains more than 100 numbered paragraphs and
an additional 20 pages of exhibits, these references are
insufficient to apprise the Court of what additional claims
plaintiff may wish to assert. All claims not specifically
addressed above are dismissed with leave to replead. If
plaintiff decides to file an amended complaint, the Court
recommends that he avoid inserting repetitious or irrelevant
allegations.
CONCLUSION
The complaint is dismissed with leave to replead, except
that, as explained above, certain claims are dismissed without
leave to replead on the ground of futility. If plaintiff decides
to serve and file an amended complaint, he is advised that the
amended complaint will completely supersede and replace the
initial complaint. Therefore, the amended complaint should
contain all claims plaintiff wishes to pursue. Any defendant
not named in the amended pleading will no longer be a
defendant in the action. If plaintiff claims that his rights
were violated by more than one defendant, or on more than
one occasion, he should include a corresponding number
of paragraphs in his amended complaint for each such
allegation, with each paragraph specifying the alleged act of
misconduct; the date on which such misconduct occurred;
the names of each and every individual who participated in
such misconduct; where appropriate, the location where the
alleged misconduct occurred; and the nexus between such
misconduct and the rights allegedly infringed.
*10 Any amended complaint shall be filed and served on or
before the date set forth below. Plaintiff is warned that if he
fails to file and serve an amended complaint in compliance
with this Memorandum–Decision and Order on or before that
date, the case will be dismissed.
It is therefore
ORDERED that the Report–Recommendation and Order
(Dkt. No. 47) is accepted insofar as it summarizes the
facts and procedural background of this case, and otherwise
rejected; and it is further
ORDERED that defendants' motion to dismiss (Dkt. No. 34)
is granted as set forth herein; and it is further
ORDERED that the complaint is dismissed with leave to
replead in accordance with this Memorandum–Decision and
Order; and it is further
ORDERED that if plaintiff does not submit a timely amended
complaint, the matter will be reviewed by this Court for
judgment dismissing the action; and it is further
ORDERED that if plaintiff does submit a timely amended
complaint, the case shall be returned to the magistrate judge
for further proceedings; and it is further
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ORDERED that ANY AMENDED COMPLAINT SHALL
BE FILED AND SERVED ON OR BEFORE JUNE 6,
2014; and it is further
ORDERED that PLAINTIFF IS WARNED THAT
IF HE FAILS TO FILE AND SERVE AN
AMENDED COMPLAINT IN COMPLIANCE WITH
THIS MEMORANDUM–DECISION AND ORDER ON
OR BEFORE JUNE 6, 2014, THE CASE WILL BE
DISMISSED; and it is further
ORDERED that the Clerk of the Court is directed to
serve copies of this Memorandum–Decision and Order in
accordance with the Local Rules of the Northern District of
New York.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 1794588
Footnotes
1 Plaintiff filed the action in District of Columbia District Court, which transferred it to the Souuthern District of
Virginia, which transferred it to this Court on May 15, 2012.
2 The Court quotes from the complaint directly without correcting or noting errors.
3 The Court has found one unpublished Ninth Circuit decision issued in 1998, Brown v. Paige, 162 F.3d 1167
(Table), 1998 WL 756970 (9th Cir.1998), which dismissed a Bivens action on alternative grounds, one of
which was the application of res judicata to the dismissal of the plaintiff's petition under 28 U.S .C. § 2241.
In support of dismissal on this ground, the Ninth Circuit cited Hawkins v. Risely, 984 F.2d 321, 325 (9th
Cir.1993), which concerned collateral estoppel, not res judicata, and Van Strum v. Lawn, 940 F.2d 406, 409
(9th Cir.1991), which stated only that section 1983 actions and Bivens actions “are identical save for the
replacement of a state actor under § 1983 by a federal actor under Bivens.” The Brown case has never been
cited, and the Court does not view it as authoritative.
4 Plaintiff might well succeed in making such a showing; he was unrepresented, and the habeas court held
no evidentiary hearing. Compare Kulak and Burgos, both of which concerned the collateral estoppel effect
of issues determined after full hearings.
5 There is no constitutional violation where a misbehavior report is motivated by a sufficient proper reason,
even if it was also motivated by an improper reason. See Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994).
6 Plaintiff asserts that, due to the misconduct of defendants Helms, Poirier, and Schults, his “Petition for
Rehearing and/or Suggestion for Rehearing En Banc” in United States v. Marino, First Circuit Appeal No. 09–
1854, was not filed until December 21, 2009 and was dismissed as untimely on January 8, 2010. A review of
the docket in that appeal establishes that the First Circuit's January 8, 2010 order striking the petition states
as follows: “The petition for panel rehearing and for rehearing en banc is stricken as unauthorized. See Lykus
v. Corsini, 565 F.3d 1 (1st Cir.2009); 28 U.S.C. § 2244(b)(3)(E).” Thus, the petition was stricken not because
it was untimely, but because a petition for rehearing or rehearing en banc of an application for leave to file
second or successive habeas petition is barred by 28 U.S.C.A. § 2244(b)(3)(E).
7 Section 1997e(e) does not, however, warrant dismissal of the entire complaint. The absence of physical
injury does not restrict a plaintiff's ability to recover nominal damages, punitive damages, or injunctive or
declaratory relief for constitutional wrongs. See Thompson v. Carter, 284 F.3d 411, 417–18 (2002).
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Mateo v. Bristow, Not Reported in F.Supp.2d (2013)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Amaker v. Annucci, S.D.N.Y., September 30, 2016
2013 WL 3863865
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Cesar MATEO, Plaintiff,
v.
C. BRISTOW, et al., Defendants.
No. 12 Civ. 5052(RJS).
|
July 16, 2013.
Attorneys and Law Firms
Cesar Mateo, pro se.
Kevin R. Harkins, Assistant Attorney General of the State of
New York, New York, NY, for Defendant.
MEMORANDUM AND ORDER
RICHARD J. SULLIVAN, District Judge.
*1 Cesar Mateo (“Plaintiff”), proceeding pro se, brings this
action under 42 U.S.C. § 1983 against Corrections Officers
C. Bristow (“Bristow”), E. Ramos (“Ramos”), E. Maldonado
(“Maldonado”), and R. Dean (“Dean” and, collectively with
Bristow, Ramos, and Maldonado, “Defendants”), alleging
violations of the First, Eighth, and Fourteenth Amendments
of the United States Constitution. Now before the Court is
Defendants' motion to dismiss this action in its entirety. For
the reasons set forth below, Defendants' motion is granted in
part and denied in part.
I. BACKGROUND
A. Facts
Plaintiff, an inmate at Sing Sing Correctional Facility, alleges
that Defendants violated his constitutional rights during two
incidents in June 2012. 1 The first occurred on June 16, the
day Plaintiff was due to be married. (Compl.¶ 1.) Plaintiff
alleges that on that morning, as he was in his cell preparing
for his wedding ceremony, Dean and Maldonado came by,
ordered him out of the cell, and frisked him. (Id. ¶¶ 1–2.) The
two officers then searched Plaintiff's cell. (Id. ¶ 3.) Plaintiff
alleges that during the search, Maldonado told him, “This
is your wedding gift, bitch!,” “Now you are keeplocked,”
and, “This came from Sergeant Gamble.” (Id. ¶ 6.) He also
alleges that Dean told him, “So, you think that we are going
to let you get married in this jail after all those grievances
and lawsuits against officers,” and that both officers made
“threatening physical and facial gestures” that made Plaintiff
fear for his safety. (Id. ¶¶ 5–7.) Plaintiff further alleges that
the officers threatened to feed him rat poison and attempted
to physically assault him. (Id. ¶ 20.) According to Plaintiff,
Dean and Maldonado ended up confiscating Plaintiffs radio,
headphones, masking tape, and laundry bag, as well as
Plaintiff's mirror, which they broke while using it to conduct
the search. (Id. ¶ 4.) Plaintiff also alleges that he was placed
in keeplock confinement following the search. 2 (Id. ¶ 16.)
The second incident took place the following day, June 17.
On that day, a corrections officer served him with an inmate
misbehavior report, dated June 15, 2012, authored by Bristow
and co-signed and witnessed by Ramos (the “Misbehavior
Report”). (Id. ¶ 10.) The report alleged that, on June 15,
2012, “[Plaintiff] was playing his radio without the use of
headphones” and twice refused to comply with Bristow's
order to turn the radio off. (Id. ¶ 11, Ex. 2 at 1.) Plaintiff alleges
that the incident described in the Misbehavior Report never
actually occurred and that, at the time that incident supposedly
took place, Plaintiff was asleep. (Id. ¶ 12–13.) Plaintiff was
later found not guilty of the allegations in the report. (Id. ¶
14, Ex. 2 at 2.)
B. Procedural History
Plaintiff filed his Complaint on June 26, 2012. (Doc. No.
2.) On January 11, 2013, Defendants filed their motion to
dismiss. (Doc. No. 18.) Plaintiff submitted an affirmation in
opposition to that motion on February 1, 2013 (Doc. No. 20),
and the motion was fully briefed as of March 1, 2013 (Doc.
No. 21).
II. LEGAL STANDARD
*2 On a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the Court must accept all well-
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pleaded allegations contained in the complaint as true and
draw all reasonable inferences in the plaintiff's favor. See
ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir.2007); Grandon v. Merrill Lynch & Co., 147 F.3d
184, 188 (2d Cir.1998). Pro se filings in particular are read
liberally and interpreted “to raise the strongest arguments
that they suggest.” Pabon v. Wright, 459 F.3d 241, 248
(2d Cir.2006) (internal quotation marks omitted). To state
a legally sufficient claim, a complaint must allege “enough
facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). However, a pleading
that only “offers ‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not do.’ “
Id. (quoting Twombly, 550 U.S. at 555). If the plaintiff “ha[s]
not nudged [his] claims across the line from conceivable to
plausible, [his] complaint must be dismissed.” Twombly, 550
U.S. at 570. Although the Court construes the Complaint
liberally because Plaintiff is pro se, the Complaint must still
contain factual allegations that raise a “right to relief above
the speculative level” in order to survive a motion to dismiss.
Dawkins v. Gonyea, 646 F.Supp.2d 594, 603 (S.D.N.Y.2009)
(quoting Twombly, 550 U.S. at 555) (internal quotation marks
omitted).
III. DISCUSSION
Although the Complaint does not clearly define Plaintiff's
various causes of action, the Court construes it to assert claims
for (1) retaliation, in violation of the First and Fourteenth
Amendments; (2) deprivation of property, in violation of
the Fourteenth Amendment; (3) wrongful confinement, in
violation of the Eighth and Fourteenth Amendments; and
(4) harassment, in violation of the Eighth and Fourteenth
Amendments. Defendants seek to dismiss these claims on
the grounds that Plaintiff failed to exhaust his administrative
remedies and, in any event, failed to adequately plead
any cause of action. The Court will address Defendants'
exhaustion argument and then proceed to consider the
individual claims.
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1996 (“PLRA”)
prevents any prisoner from filing a § 1983 suit “until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e. The PLRA's exhaustion requirement is
“mandatory,” Porter v. Nussle, 534 U.S. 516, 524 (2002), and
“ ‘applies to all inmate suits about prison life,’ “ Johnson
v. Killian, 680 F.3d 234, 238 (2d Cir.2012) (quoting Porter,
534 U.S. at 532). “To properly exhaust a claim, a prisoner
must comply with state grievance procedures.” Kasiem v.
Switz, 756 F.Supp.2d 570, 575 (S.D.N.Y.2010) (citing Jones
v. Bock, 549 U.S. 199, 218 (2007)). In New York, prisoners
must exhaust each level of a three-tiered grievance system.
Id. (citing N.Y. Comp.Codes R. & Regs. tit. 7, § 701.5);
see also Muhammad v. Pico, No. 02 Civ. 1052(AJP), 2003
WL 21792158, at *8 (S.D.N.Y. Aug. 5, 2003) (describing
New York's grievance system). “Failure to exhaust is an
absolute bar to an inmate's action in federal court.” George
v. Morrison–Warden, No. 06 Civ. 3188(SAS), 2007 WL
1686321, at *2 (S.D.N.Y. June 11, 2007); accord Burgos v.
Craig, 307 F. App'x 469, 470 (2d Cir.2008) (“[Exhaustion]
must be completed before suit is filed....”).
*3 The Second Circuit, however, has recognized three
grounds for exceptions to the exhaustion requirement. See
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004).
First, a court must ask “whether administrative remedies were
in fact ‘available’ to the prisoner.” Id. (quoting Abney v.
McGinnis, 380 F.3d 663, 667 (2d Cir.2004)). Second, a court
should inquire whether the defendants' actions estop them
from raising the defense of non-exhaustion. Id. Finally, a court
must determine whether any “ ‘special circumstances' have
been plausibly alleged that justify ‘the prisoner's failure to
comply with administrative procedural requirements.’ “ Id.
(quoting Giano v. Goord, 380 F.3d 670, 676 (2d Cir.2004)).
Defendants seek to dismiss Plaintiff's Complaint on the
grounds that Plaintiff failed to exhaust his administrative
remedies. Where nonexhaustion is clear from the face of
a complaint, a court should dismiss the complaint under
Federal Rule of Civil Procedure 12(b) (6). See Kasiem, 756
F.Supp.2d at 574; McCoy v. Goord, 255 F.Supp.2d 233, 251
(S.D.N.Y.2003). However, where nonexhaustion is not clear
from the face of a complaint, a court should convert a Rule
12(b) motion into a Rule 56 motion for summary judgment
“limited to the narrow issue of exhaustion and the relatively
straightforward questions about ... whether remedies were
available, or whether exhaustion might be, in very limited
circumstances, excused.” McCoy, 255 F.Supp.2d at 251. In
doing so, a court must notify the parties of the conversion,
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id., and “afford [them] the opportunity to present supporting
material,” Friedl v. City of New York, 210 F.3d 79, 83 (2d
Cir.2000) (internal quotation marks omitted). Such notice and
opportunity are “especially important when a plaintiff is pro
se.” McCoy, 255 F.Supp.2d at 251.
Here, Plaintiff clearly filed the instant action before pursuing
any administrative avenue of relief. (See Compl. at 4.) This
does not mean, however, that nonexhaustion is clear on the
face of the Complaint. Exhaustion is required only with
respect to “such administrative remedies [as] are available,”
42 U.S.C. § 1997e, and the Second Circuit has recognized that
even when administrative remedies are officially available,
threats by prison officials may “render[ ] ... procedures that
would ordinarily be available ... effectively unavailable.”
Hemphill, 380 F .3d at 687 (emphasis added). Plaintiffs
Complaint alleges facts that, if true, could establish that
administrative remedies were functionally unavailable to him.
Specifically, Plaintiff alleges that while Dean and Maldonado
were tossing his cell, Dean told him, “So, you think that we
are going to let you get married in this jail after all those
grievances and lawsuits against officers.” (Compl.¶ 7.) When
considered alongside the allegations that Maldonado and
Dean threatened to poison Plaintiff, attempted to assault him,
and intentionally damaged his property—all on Plaintiff's
wedding day—Dean's barely veiled threat that Plaintiff would
suffer harm from filing further grievances conceivably could
have “deter[red] a prisoner of ‘ordinary firmness' from filing
an internal grievance.” Hemphill, 380 F.3d at 688. Because
Plaintiffs Complaint plausibly alleges that administrative
remedies were unavailable, and an inmate must exhaust only
available remedies, the Court finds that nonexhaustion is not
clear from the face of the Complaint. 3 Accordingly, the Court
cannot resolve the issue of exhaustion on Defendants' Rule
12(b)(6) motion.
*4 The Court's inability to resolve the issue of exhaustion
at this stage, however, does not preclude it from addressing
Defendants' remaining arguments in favor of dismissal. Under
§ 1997e, a court “shall on its own motion or on the motion
of a party dismiss any action brought with respect to prison
conditions under [§ 1983] ... if the court is satisfied that
the action ... fails to state a claim upon which relief can
be granted.” 42 U.S.C. § 1997e(c). Put more simply, a
“court may consider unexhausted claims on the merits only
to dismiss them ... for failure to state a claim.” McCoy,
255 F.Supp.2d at 252. Accordingly, the Court will proceed
to address Defendants' remaining arguments in support of
dismissing Plaintiff's claims.
B. Retaliation
The crux of Plaintiff s allegations is that Defendants retaliated
against him for filing grievances. (See Compl. ¶¶ 18–19,
21–23.) To state a claim for retaliation under the First
Amendment, a plaintiff must allege “(1) that the speech or
conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was
a causal connection between the protected speech and the
adverse action.” Key v. Toussaint, 660 F.Supp.2d 518, 525
(S.D.N.Y.2009) (quoting Gill v. Pidlypchak, 389 F.3d 379,
380 (2d Cir.2004)). 4 Moreover, the allegations “must support
an inference that the protected conduct was a ‘substantial
or motivating factor for the adverse actions taken by prison
officials.’ “ Dorsey v. Fisher, 468 F. App'x 25, 27 (2d
Cir.2012) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d
Cir.2003)). Finally, in the prison context, the Second Circuit
has defined “adverse action” objectively as “retaliatory
conduct ‘that would deter a similarly situated individual of
ordinary firmness from exercising ... constitutional rights.’ “
Gill, 389 F.3d at 381 (alteration in original) (quoting Davis v.
Goord, 320 F.3d 346, 353 (2d Cir.2003)).
It is well-established that inmates' filing of grievances is a
constitutionally protected exercise of their right under the
First Amendment to petition the government for the redress
of grievances. See, e.g., Graham v. Hen derson, 89 F.3d 75,
80 (2d Cir.1996) (citing Franco v. Kelly, 854 F.2d 584, 589
(2d Cir.1988)); Andino v. Fischer, 698 F.Supp.2d 362, 382
(S.D.N.Y.2010). Here, although Plaintiff does not identify any
particular grievance as the basis for the alleged retaliation he
suffered, the Complaint makes clear that in the six months
leading up to the incidents at issue, Plaintiff filed at least
two grievances. (See Compl. Exs. 9, 10.) Thus, Plaintiffs
retaliation claim satisfies the first pleading element.
Defendants, however, argue that the Complaint fails to
adequately plead either the second or third elements of
a retaliation claim. Because Plaintiff's claim is based on
two separate incidents—the June 16, 2012 cell search (the
“Search”), involving only Defendants Dean and Maldonado,
and the June 17, 2012 Misbehavior Report, involving only
Defendants Bristow and Ramos—the Court will consider
those incidents separately.
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1. The Search
*5 Turning first to the Search, Plaintiff complains of several
adverse actions. Specifically, he alleges that, in retaliation
for past grievances, Dean and Maldonado tossed his cell,
“malic[iously]” damaged his personal property, confiscated
various items, verbally harassed and threatened him, and
wrongfully subjected him to “keeplock” confinement in his
cell. (Compl.¶¶ 2–7, 16, 20.) Although not all of these actions
are sufficient to constitute an adverse action for purposes of a
retaliation claim, 5 some clearly are. For example, a plaintiff
may prevail on a retaliation claim by showing, inter alia, that
prison officials “intentionally or deliberately lost or destroyed
his property.” See Key, 660 F.Supp.2d at 526 (internal
quotation marks omitted). Similarly, verbal threats may
constitute an adverse action if they are sufficiently specific
and direct. See Lunney v. Brureton, No. 04 Civ. 2438(LAK)
(GWG), 2007 WL 1544629, at *23 (S.D.N.Y. May 29,
2007) (“[V]erbal threats may constitute adverse action ...
depend[ing] on their specificity and the context in which
they are uttered.”); see also Mateo v. Fischer, 682 F.Supp.2d
423, 434 (S.D.N.Y.2010) (“The less direct and specific a
threat, the less likely it will deter an inmate from exercising
his First Amendment rights.”); compare id. (concluding that
a prison official's threat to break an inmate's neck was
sufficiently “direct and specific” to constitute adverse action),
with Bartley v. Collins, No. 95 Civ. 10161(RJH), 2006 WL
1289256, at *6 (S.D.N.Y. May 10, 2006) (holding that threats
such as “we going to get you, you better drop the suit” do not
rise to the level of adverse action). Here, Plaintiffs allegations
that Dean and Maldonado intentionally slammed his radio
into the ground and threatened to feed him rat poison certainly
suffice to state a claim for adverse action. 6
Defendants also argue that Plaintiff fails to allege a sufficient
causal connection between his filing of grievances and Dean
and Maldonado's adverse actions. (Mem. 11–12; Reply 7–
8.) In fact, however, Plaintiff alleges that in the course
of tossing Plaintiff's cell, Dean explicitly made such a
connection by saying, “So, you think that we are going to
let you get married in this jail after all those grievances
and lawsuits against officers.” (Compl.¶ 7.) Defendants'
motion papers conspicuously ignore this allegation, and the
reason is obvious: it clearly establishes the causal connection
that allows Plaintiff's claim to survive Defendants' motion
to dismiss. Accordingly, Defendants' motion to dismiss
Plaintiffs claim of retaliation must be denied with respect to
Defendants Dean and Maldonado.
2. The Report
Defendants also attack the sufficiency of Plaintiffs allegation
that Bristow and Ramos retaliated against him by filing a
false misbehavior report. Although filing a false misbehavior
report is not itself a constitutional violation, see Bod die
v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997), it may
constitute an adverse action for purposes of a retaliation
claim, see Pidlypchak, 389 F.3d at 384. Thus, the sole
question is whether the Complaint adequately supports an
inference that Plaintiffs past grievances were a “substantial
or motivating factor” in Ramos and Bristow's decision to
issue the Misbehavior Report. See Dorsey, 468 F. App'x at 27
(internal quotation marks omitted).
*6 Courts may infer a retaliatory motive from a variety of
factors, including the timing of the report, cf. Gayle v. Gonyea,
313 F.3d 677, 683 (2d Cir.2002) (“We have held that the
temporal proximity of an allegedly retaliatory misbehavior
report to a grievance may serve as circumstantial evidence of
retaliation.”), and the report's falsity, see Baskerville v. Blot,
224 F.Supp.2d 723, 732 (S.D.N.Y.2002) (noting that “the
administrative dismissal of the misbehavior report ... weigh[s]
in plaintiffs favor); see also Gayle, 313 F.3d at 683 (“A false
reason for the report's issuance would support the inference
that the real reason was the improper one: retaliation.”). Here,
the Complaint supports a plausible inference that Bristow
and Ramos issued the Misbehavior Report in retaliation for
Plaintiffs past grievances. Plaintiff alleges that he received
the report on June 17, just one day after his confrontation
with Dean and Maldonado, and that the report ultimately was
dismissed. (Compl. ¶ 10, 14, Ex. 2 at 1–2.) The report's timing
thus connects it to Dean and Maldonado's confrontation with
Plaintiff, while the ultimate disposition of the report suggests
that the allegations were false. Together, these inferences
suffice to establish a plausible retaliatory motive.
Accordingly, Plaintiff has established the three elements of a
retaliation claim against Bristow and Ramos, and Defendants'
motion to dismiss this claim must be denied.
C. Deprivation of Property
Defendants also move to dismiss any claim for destruction
of property that Plaintiff brings. As the Court previously
noted, it construes the Complaint's allegations that Dean and
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Maldonado wrongfully damaged and confiscated Plaintiff's
property as stating a claim under the Fourteenth Amendment
for deprivation of property without due process of law. Such
a claim, however, “cannot be brought in federal court if
the relevant state court provides an adequate remedy for the
deprivation of [the property at issue].” Key v. Tanoury, No.
05 Civ. 10461(SHS), 2006 WL 3208548, at *2 (S.D.N.Y.
Nov. 3, 2006) (citing Hudson v. Palmer, 468 U.S. 517,
533 (1984)); see Allen v. City of New York, No. 09 Civ.
6229(RMB), 2011 WL 1487077, at *4 (S.D.N.Y. Mar. 16,
2011). “New York State provides such a remedy in Section
9 of the New York Court of Claims Act, which permits an
inmate such as [plaintiff] to pursue his claim for deprivation
of property against the State in the Court of Claims.” Tanoury,
2006 WL 3208548, at *2 (citing N.Y. Ct. Cl. Act § 9).
Because Plaintiff has access to this remedy, he cannot state
a claim for deprivation of property pursuant to 42 U.S.C. §
1983. See id; see also Franco v. Kelly, 854 F.2d 584, 588
(2d Cir.1988) (“[S]ection 1983[can]not be made a vehicle
for transforming mere civil tort injuries into constitutional
injuries.” (internal quotation marks omitted and alteration
in original)); Love v. Coughlin, 714 F.2d 207, 208–09 (2d
Cir.1983) (holding that “no civil rights action lies if the state
provides an adequate compensatory remedy”). Accordingly,
insofar as Plaintiff seeks to assert a constitutional claim for
deprivation of property, the claim must be dismissed.
D. Remaining Claims
*7 In addition to the foregoing claims for retaliation
and deprivation of property, the Court construes Plaintiffs
Complaint to assert claims for wrongful confinement, in
violation of the Fourteenth Amendment, and harassment,
in violation of the Eighth and Fourteenth Amendments.
Although Defendants' briefing does not discuss these claims,
the Court may nevertheless address their sufficiency sua
sponte. See 42 U.S.C. § 1997e(c) (permitting a court “on its
own motion ... [to] dismiss any action brought with respect
to prison conditions under [§ 1983] ... if the court is satisfied
that the action ... fails to state a claim upon which relief can
be granted” (emphasis added)). Doing so, the Court has no
trouble concluding that those claims are insufficiently pled to
survive dismissal.
1. Wrongful Confinement
The Second Circuit has recognized that confinement separate
from basic imprisonment—such as keeplock—can infringe
prisoners' due process rights. See, e.g., Miller v. Selsky, 111
F.3d 7, 9 (2d Cir.1997); see generally Williams v. Keane, No.
95 Civ. 379(JGK)(AJP), 1997 WL 527677, at *5–6 (S.D.N.Y.
Aug. 25, 1997) (collecting cases). A prisoner may assert a
due process claim that such confinement violates a protected
liberty interest by establishing, in part, that such confinement
“ ‘create[d] an atypical and significant hardship ... in relation
to the ordinary incidents of prison life.’ “ Shabazz v. Bezio,
No. 12–674, 2013 WL 406693, at *2 (2d Cir. Feb. 4, 2013)
(quoting Arce v. Walker, 139 F.3d 329, 334 (2d Cir.1998)).
To determine whether confinement constituted an atypical
and significant hardship, a court must consider “ ‘the extent
to which the conditions ... of the segregation differ from
other routine prison conditions and the duration of the ...
segregation imposed.’ “ Id. (quoting Davis v. Barrett, 576
F.3d 129, 133 (2d Cir.2009)). The Complaint here, however,
does not permit the Court to make this determination. For
example, it alleges no facts indicating that it was atypical for
a prisoner to be kept in keeplock; that Plaintiff was assigned
to keeplock in a procedurally defective manner; or that the
length of Plaintiff's confinement was significant. Because
Plaintiff makes no allegation that his keeplock confinement
was atypical or significant, the Court must dismiss this claim.
2. Harassment
Plaintiff's Eighth Amendment claim is similarly inadequate.
The Eighth Amendment's prohibition of cruel and unusual
punishment bars cell searches that “lack[ ] any legitimate
penological interest and [are] intended solely to harass.”
Jones v. Harris, 665 F.Supp.2d. 384, 395 (S.D.N.Y.2009).
An Eighth Amendment claim arising from cell searches
comprises a subjective element and an objective one. The
former requires the prisoner to “assert facts indicating that
the responsible prison official had a sufficiently culpable
state of mind amounting to at least deliberate indifference to
his constitutional rights.” Id. The latter requires that “[t]he
deprivation alleged by the prisoner ... be sufficiently serious
in objective terms such that it suggests denial of the minimal
civilized measure of life's necessities.” Id.
*8 Here, Plaintiff satisfies the subjective element of
an Eighth Amendment claim by alleging that Dean and
Maldonado made several statements evincing their intent
to harass and retaliate. See id. Plaintiff fails to satisfy the
objective element, however, because he does not allege that
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Dean and Maldonado caused any injuries that are cognizable
under the Eighth Amendment. Plaintiff may not have
welcomed their search of his cell, but he offers no allegation
that it represented a departure from “the ordinary course of
prison life.” Id. Indeed, given that the court in Jones found
three searches over six weeks insufficient to establish cruel
and unusual punishment, the one search to which Plaintiff
was subjected hardly rises to the level of a constitutional
violation. See id. Furthermore, to the extent Plaintiff bases
his claim on the alleged destruction and confiscation of his
property, it cannot be argued that deprivation of a radio,
roll of tape, laundry bag, and mirror constitutes a “denial of
the minimal civilized measure of life's necessities.” Id; see
Wilson v. Setter, 501 U.S. 294, 305 (1991) (holding that an
Eighth Amendment claim for inadequate prison conditions
must allege at least one “specific deprivation of a ... human
need”); Ford v. Phillips, No. 05 Civ. 6646(NRB), 2007 WL
946703, at *9 (S.D.N.Y. Mar. 27, 2007) (“[A]s a matter of
law, minor and temporary deprivations of property ... do not
violate the Eighth Amendment.”). 7 Accordingly, Plaintiff
fails to state an Eighth Amendment claim for harassment.
E. Compensatory Damages
Defendants also move to strike any prayer for damages for
emotional harm that Plaintiff wishes to assert. (See Compl. §
V (requesting “[j]udgement [sic] in my favor for damages”);
Mem. 14.). Under 42 U.S.C. § 1997e(e), “[n]o Federal civil
action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e); see Thompson v. Carter, 284
F.3d 411, 417 (2d Cir.2002) (interpreting § 1997e(e) as
barring a plaintiff from “recover[ing] damages for mental or
emotional injury for a constitutional violation in the absence
of a showing of actual physical injury”). In this case, Plaintiff
clearly fails to allege any physical injury. Accordingly, to
the extent Plaintiff seeks damages for any emotional injuries
Defendants caused, such damages are unavailable to him.
F. Qualified Immunity
Finally, in their Reply Memorandum, Defendants for the first
time assert that Dean and Maldonado are entitled to qualified
immunity in connection with their search of Plaintiff's cell.
(Reply 8–9.) It is well established, however, that a court
should not “consider arguments that are raised for the first
time in a reply brief.” Clubside, Inc. v. Valentin, 468 F.3d 144,
159 n. 5 (2d Cir.2006); see ABN Amro Verzekeringen BV v.
Geologistics Ams., Inc., 485 F.3d 85, 97 n. 12 (2d Cir.2007)
(“We decline to consider an argument raised for the first time
in a reply brief.”); Patterson v. Balsamico, 440 F.3d 104, 113
n. 5 (2d Cir.2006) (“This Court generally will not consider
arguments raised for the first time in a reply brief.”); Fisher
v. Kanas, 487 F.Supp.2d 270, 278 (E.D.N.Y.2007) (finding
that an argument raised for the first time in a reply brief was
waived); Playboy Enter. Inc. v. Dumas, 960 F.Supp. 710, 720
n. 7 (S.D.N.Y.1997) (“Arguments made for the first time in
a reply brief need not be considered by a court.”) (collecting
cases). Defendants offer no reason why that rule should
not apply here, and the Court perceives none. Accordingly,
because Defendants failed to raise qualified immunity in
their initial brief, the Court deems that argument waived
for purposes of this motion and will not consider it. See
Rowley v. City of New York, No. 00 Civ. 1793(DAB), 2005
WL 2429514, at *5 (S.D.N.Y. Sept. 30, 2005) (declining to
consider a qualified immunity argument raised for the first
time in a reply brief).
*9 Furthermore, even if they had not waived that argument,
Dean and Maldonado still would not be entitled to qualified
immunity at this stage. Defendants contend that qualified
immunity should bar Plaintiff from bringing any claims based
on the cell search because such searches are not a clearly
established basis for First, Fourth, Eighth, or Fourteenth
Amendment claims, (Reply 8–9.) Even if that is true as
a legal matter, however, Plaintiff alleges much more than
that Dean and Maldonado simply searched his cell. He
accuses them of destroying his property, threatening him,
and attempting to assault him. (See Compl. ¶¶ 3–7, 20.)
Defendants' suggestion that this case is only about a cell
search simply mischaracterizes Plaintiff's allegations and
thus fails to articulate a basis for dismissing this action on
immunity grounds.
IV. CONCLUSION
For the foregoing reasons, the Court grants in part and
denies in part Defendants' motion to dismiss. Specifically,
it dismisses Plaintiff's deprivation of property, wrongful
confinement, and harassment claims. The Court also strikes
any prayer for compensatory relief for any emotional harm
that Plaintiff allegedly suffered. The Court's dismissal of
Plaintiff's claims and prayer for compensatory damages,
however, is without prejudice to filing an amended complaint.
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See Shabazz, 2013 WL 406693, at *1 (“[C]ourts should not
dismiss a pro se complaint without granting the plaintiff at
least one opportunity to amend.” (citing Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir.2000))). Accordingly, IT IS
HEREBY ORDERED THAT Plaintiff shall submit any
amended complaint by August 16, 2013. The Court reminds
Plaintiff that any amended complaint must repeat all prior
allegations from the Complaint necessary to state the relevant
claims.
As to the remaining issues, the Court denies Defendants'
motion to dismiss the Complaint on nonexhaustion grounds
and to dismiss the retaliation claim against all Defendants.
As a result, this case must proceed to discovery on the
narrow issues of (1) whether Plaintiff's nonexhaustion of
administrative remedies is excused as to each of the
Defendants, and (2) Plaintiff's retaliation claim. In light of
Plaintiff's incarcerated status, IT IS HEREBY ORDERED
THAT this action is referred to the Honorable Gabriel
W. Gorenstein, Magistrate Judge, for general pre-trial
supervision and dispositive motions, as set forth in the
accompanying referral order.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 3863865
Footnotes
1 All facts are drawn from the Complaint (“Compl.”) and the exhibits attached thereto. In deciding this motion, the
Court has also considered Defendants' Memorandum of Law in Support of Their Motion to Dismiss (“Mem.”),
Plaintiffs Affirmation in Opposition (“Opp'n”), and Defendants' Reply Memorandum (“Reply”).
2 Inmates on keeplock confinement are subject to a variety of restrictions on top of those normally imposed on
prisoners, including limitations on visitation, correspondence, commissary access, and property. See N.Y.
Comp.Codes R. & Regs. tit. 7, § 301.6(2013).
3 The fact that Plaintiff protested the June 16, 2012 search in multiple letters to prison officials (see Opp'n
Ex. 1 (letter to Sing Sing's acting superintendent, dated June 18, 2012), Ex. 2 (same), Ex. 3 (letter to
DOCS Commissioner and Associate Inspector General, dated June 19, 2012)) does not undermine his claim
that Dean and Maldonado's threats deterred him from using the administrative grievance procedure. See
Hemphill, 380 F.3d at 688 (“[I]t should be pointed out that threats or other intimidation by prison officials may
well deter a prisoner of'ordinary firmness' from filing an internal grievance, but not from appealing directly
to individuals in positions of greater authority within the prison system, or to external structures of authority
such as state or federal courts.”).
4 Defendants devote considerable space to arguing that Plaintiff “bears a ‘heightened burden of proof’ “ on
his retaliation claim. (See Mem. 10 (quoting Key, 680 F.Supp.2d at 525).) Of course, a burden of proof is
not the same as a pleading burden and thus provides little guidance as to the standard the Court should
apply on Defendants' motion to dismiss. See, e.g., McKethan v. N.Y. State Dep't of Corr. Servs., No. 10 Civ.
3826(NRB), 2011 WL 4357375, at *8 (S.D.N.Y. Sept. 16, 2011); Williams v. Goord, 111 F.Supp.2d 280, 290
(S.D.N.Y.2000).
5 For example, numerous courts in this district have held that “a cell search is insufficient to support such a
claim.” Mateo v. Alexander, No. 10 Civ. 8427(LAP), 2012 WL 864805, at *4 (S.D.N .Y. Mar. 14, 2012).
6 Plaintiff's allegations regarding his keep lock confinement, by contrast, are a closer call. Courts in this circuit
have held that such confinement may constitute adverse action, but those cases have involved confinement
for a significant period of time. See, e.g., Gill, 389 F.3d at 383–84 (three weeks); Gill v. Calescibetta, No. 00
Civ. 1553(GTS)(DEP), 2009 WL 890661, at *5 (N.D.N.Y. Mar. 31, 2009) (sixteen days); Wells v. Wade, No.
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96 Civ. 1627(SHS), 2000 WL 1239085, at *3–4 (S.D.N.Y. Aug. 31, 2000) (thirteen days). Plaintiff entirely fails
to allege the length of his keeplock confinement, and so the Court finds that Plaintiffs allegation of wrongful
confinement is too vague and conclusory at this stage to establish it as an adverse action.
7 To the extent Plaintiff intends to assert an Eighth Amendment harassment claim based on the Misbehavior
Report, such a claim also would fail. It is well-established that a “a prison inmate has no general constitutional
right to be free from being falsely accused in a misbehavior report.” Boddie, 105 F.3d at 862; see also Mateo,
682 F.Supp.2d at 432 (collecting cases).
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2025 WL 447734
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Luke MATTHEWS; Carlos Gomez; Gentl Bonds;
Robert Smith; and Kasiem Chaves, Plaintiffs,
v.
L. SWEENEY, Clinton Corr. Sergeant; Michael Guynup,
Clinton Corr. Lieutenant; Corr. Emergency Response
Team (“CERT”) Officer 44-3; CERT Officer 44-4; CERT
Officer 44-5; and CERT Officer 44-29, Defendants.
9:17-CV-0503 (GTS/ML)
|
Signed February 10, 2025
Attorneys and Law Firms
DAVID B. RANKIN, ESQ., JONATHAN C. MOORE,
ESQ., MARC A. CANNAN, ESQ., BEDLOCK, LEVINE
& HOFFMAN, Counsel for Plaintiffs, 99 Park Avenue, 26th
Floor, New York, NY 10016.
DAVID C. WHITE, ESQ., THOMAS A. CULLEN, ESQ.,
MARK G. MITCHELL, ESQ., HON. LETITIA A. JAMES,
Attorney General for the State of New York, Counsel for
Defendants, The Capitol, Albany, NY 12224.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 The trial in this prisoner civil rights case, filed by
the five above-captioned individuals (“Plaintiffs”) against
the six above-captioned employees of the New York State
Department of Corrections and Community Supervision
(“Defendants”) pursuant to 42 U.S.C. § 1983, began with
an evidentiary hearing before the undersigned on February
5, 2025, regarding the affirmative defense of Defendants
that Plaintiffs Gomez, Smith and Bonds failed to exhaust
their available administrative remedies, as required by the
Prison Litigation Reform Act, before filing this case on
June 6, 2016 (their “exhaustion defense”). At the hearing,
documentary evidence was admitted, and testimony was
taken of Defendants’ witnesses (particularly, Cory Proscia,
Rachael Seguin, and Jonathan Nocera), as well as Plaintiffs’
witnesses (particularly, Plaintiff Gomez, Plaintiff Smith, and
non-party Manuel Nunez), 1 each of whom was able to be
cross-examined by opposing counsel. At the conclusion of the
hearing, the undersigned indicated that a written decision and
order would follow. This is that written decision and order.
For the reasons stated below, the claims of Plaintiffs Gomez,
Bonds, and Smith are dismissed because of their failure to
exhaust their available administrative remedies before filing
this action.
I. RELEVANT BACKGROUND
A. Plaintiffs’ Claims and Case's Relevant Procedural
History
Generally, the surviving claims in this case assert violations
of the Eighth Amendment and Title VI of the Civil Rights
Act of 1964 by Defendants during an investigation, at
Clinton Correctional Facility (“Clinton C.F.”), in Dannemora,
New York, into the escape of two inmates (David Sweat
and Richard Matt) from Clinton C.F., in June of 2015,
before those Plaintiff were transferred to Upstate Correctional
Facility (“Upstate C.F.”) and Sullivan Correctional Facility
(“Sullivan C.F.”). (See generally Dkt. No. 298 [Plfs.’ Third
Am. Compl.].)
Generally, his Decision and Order of March 18, 2022,
Senior U.S. District Judge Thomas J. McAvoy 2 left to
be determined, through an evidentiary hearing, Defendants’
exhaustion defense against the claims of Plaintiffs Gomez,
Bonds, and Smith. (Dkt. No. 325, at 19.) 3 Not addressed at
the evidentiary hearing are the following: (1) any exhaustion
defense against the claims of Plaintiff Negron, which
(although mentioned in Judge McAvoy's Decision and Order)
were voluntarily discontinued on January 4, 2022 (Dkt.
No. 310); (2) any exhaustion defense against the claims of
Plaintiff Matthews, with regard to which Judge McAvoy
denied Defendants’ motion for summary judgment (id. at
13-16, 19), and Defendants have since effectively abandoned
their exhaustion defense against the claims of Matthews (Dkt.
No. 364); 4 and (3) any exhaustion defense against the claims
of Plaintiff Chaves, with regard to which Defendants never
moved for summary judgment (see generally Dkt. No. 254,
Attach. 1, at 14 [attaching page “11” of Defs. Memo. of
Law, stating, “At this time, defendants do not assert a failure
to exhaust argument with respect to Chaves’ sole surviving
claim”]), and in any event Defendants have since effectively
abandoned their exhaustion defense against the claims of
Chaves (Dkt. No. 364). 5
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*2 Because this Decision and Order is intended primarily for
the review of the parties, the Court will presume the reader's
familiarity with further details regarding Plaintiffs’ claims
and the relevant procedural history of this case.
B. Parties’ Arguments
1. Defendants’ Arguments
Generally, Defendants assert four arguments. First,
Defendants argue, Plaintiff Gomez never filed grievances
at either Clinton C.F. or Upstate C.F., regarding his current
claims of mistreatment at Clinton C.F. on June 6, 2015,
and June 16, 2015; and, although he filed two grievances
at Sullivan C.F. on December 2, 2015, neither of those
grievances regarded the claims asserted in this case. (Dkt. No.
254, Attach. 1, at 9-10 [attaching pages “6” and “7” of Defs.’
Memo. of Law].) In any event, Defendants argue, Plaintiff
Gomez never filed a grievance appeal regarding the claims he
asserts. (Id.)
Second, Defendants argue, Plaintiff Bonds never filed
grievances at either Clinton C.F. or Upstate C.F., regarding
his current claims of mistreatment at Clinton C.F. on June
15, 2015; and, although, while at Sullivan C.F., he filed a
grievance regarding his current claims, that grievance was
denied by the Superintendent of Sullivan C.F., and Plaintiff
Bonds never appealed that denial. (Id. at 10-11 [attaching
pages “7” and “8” of Defs.’ Memo. of Law].) 6
Third, Defendants argue, Plaintiff Smith never filed
grievances at Clinton C.F., Upstate C.F., or Sullivan C.F.,
regarding his current claims of mistreatment at Clinton C.F.
on June 15, 2016, nor did he appeal the denial of any such
grievances. (Id. at 12-13 [attaching pages “9” and “10” of
Defs.’ Memo. of Law].)
Fourth, Defendants argue, any argument that these Plaintiffs
were not required to exhaust because the administrative
procedure offered to them operated as a “simple dead end” is
conclusory in nature. (Dkt. No. 286, at 7 [attaching page “5”
of Defs.’ Reply Memo. of Law].)
2. Plaintiffs’ Arguments
Generally, Plaintiffs assert three arguments. First, Plaintiffs
argue, Plaintiffs Gomez, Bonds and Smith should be
excused from having to exhaust their available administrative
remedies because the administrative procedure offered by the
New York State Department of Corrections and Community
Supervision operated as a “simple dead end” for plaintiffs
making the types of complaints in question (due to officers
being consistently unwilling to provide any relief to aggrieved
inmates). (Dkt. No. 281, at 11-19 [attaching pages “7” through
“15” of Plfs.’ Opp'n Memo. of Law]; Dkt. No. 372, at 2
[Plfs.’ Ltr. Motion].) More specifically, Plaintiffs argue that
Office of Special Investigations (“OSI”) Investigator John
Nocera was tasked with conducting “the majority” of the
OSI's investigation of inmate grievances and allegations of
assault that resulted from the June 2015 escape investigation
(including interviews of several corrections officers and/
or CERT officers), but that Nocera either did not conduct
those investigations or misrepresented evidence that was
provided to him during them. (Id.) As a result, Plaintiffs
argue, OSI recommended that all inmate allegations of assault
against the CERT Officers and other corrections officers be
unsubstantiated. (Id.)
II. GOVERNING LEGAL STANDARD
*3 The Prison Litigation Reform Act of 1995 (“PLRA”)
requires that prisoners who bring suit in federal court must
first exhaust their available administrative remedies: “No
action shall be brought with respect to prison conditions under
§ 1983 ... 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.
The PLRA was enacted “to reduce the quantity and improve
the quality of prisoner suits” by “afford[ing] corrections
officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” Porter
v. Nussle, 534 U.S. 516, 524-25 (2002). In this regard,
exhaustion serves two main purposes. First, it protects
“administrative agency authority” by giving the agency “an
opportunity to correct its own mistakes with respect to the
programs it administers before it is haled into federal court,
and it discourages disregard of the agency's procedures.”
Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion
promotes efficiency because (a) “[c]laims generally can be
resolved much more quickly and economically in proceedings
before an agency than in litigation in federal court,” and (b)
“even where a controversy survives administrative review,
exhaustion of the administrative procedure may produce
a useful record for subsequent judicial consideration.”
Woodford, 548 U.S. at 89. “[T]he PLRA's exhaustion
requirement applies to all inmate suits about prison life,
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whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.” Porter, 534 U.S. at 532.
In accordance with the PLRA, the New York State
Department of Corrections and Community Supervision
(“DOCCS”) has made available a well-established inmate
grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the
DOCCS Inmate Grievance Program (“IGP”) involves the
following three-step procedure for the filing of grievances. 7
N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7. 7
First, an inmate must file a complaint with the facility's
IGP clerk within a certain number of days of the alleged
occurrence. 8 If a grievance complaint form is not readily
available, a complaint may be submitted on plain paper. A
representative of the facility's inmate grievance resolution
committee (“IGRC”) has a certain number of days from
receipt of the grievance to informally resolve the issue. If
there is no such informal resolution, then the full IGRC
conducts a hearing within a certain number of days of receipt
of the grievance, and issues a written decision within a certain
number of days of the conclusion of the hearing.
Second, a grievant may appeal the IGRC decision to the
facility's superintendent within a certain number of days of
receipt of the IGRC's written decision. The superintendent is
to issue a written decision within a certain number of days of
receipt of the grievant's appeal.
*4 Third, a grievant may appeal to the central office review
committee (“CORC”) within a certain number of days of
receipt of the superintendent's written decision. CORC is to
render a written decision within a certain number of days of
receipt of the appeal.
Moreover, there is an expedited process for the review
of complaints of inmate harassment or other misconduct
by corrections officers or prison employees. 7 N.Y.C.R.R.
§ 701.8. In the event the inmate seeks expedited review,
he or she may report the misconduct to the employee's
supervisor. The inmate then files a grievance under the
normal procedures outlined above, but all grievances alleging
employee misconduct are given a grievance number, and
sent immediately to the superintendent for review. Under
the regulations, the superintendent or his designee shall
determine immediately whether the allegations, if true, would
state a “bona fide” case of harassment, and if so, shall initiate
an investigation of the complaint, either “in-house,” by the
Inspector General's Office, or by the New York State Police
Bureau of Criminal Investigations. An appeal of the adverse
decision of the superintendent may be taken to the CORC
as in the regular grievance procedure. A similar “special”
procedure is provided for claims of discrimination against an
inmate. 7 N.Y.C.R.R. § 701.9.
These procedural requirements contain several safeguards.
For example, if an inmate could not file such a complaint
within the required time period after the alleged occurrence,
he or she can apply to the facility's IGP Supervisor for an
exception to the time limit based on mitigating circumstances.
If that application is denied, the inmate can file a complaint
complaining that the application was wrongfully denied. 9
Moreover, any failure by the IGRC or the superintendent
to timely respond to a grievance or first-level appeal,
respectively, may be appealed to the next level, including
CORC, in order to complete the grievance process. 10
The Court hastens to add, however, that, although an
unprocessed grievance (i.e., a grievance that has not been
assigned a grievance number) may technically be appealed,
it need not be appealed in order for exhaustion to occur,
because the regulatory scheme advising the inmate of that
right has been found to be “too opaque.” See Williams v. Corr.
Officer Priatno, 829 F.3d 118, 126 (2d Cir. 2016) (finding
that, “even if Williams technically could have appealed his
[unprocesseed] grievance, we conclude that the regulatory
scheme providing for that appeal is ‘so opaque’ and ‘so
confusing that ... no reasonable prisoner can use [it pursuant
to Ross v. Blake, 136 S. Ct. 1850 (2016)]”).
*5 Moreover, it is important to note that DOCCS has a
separate and distinct administrative appeal process for inmate
misbehavior hearings:
A. For Tier III superintendent hearings, the appeal is to
the Commissioner's designee, Donald Selsky, D.O.C.S.
Director of Special Housing/Inmate Disciplinary
Program, pursuant to 8 N.Y.C.R.R. § 254.8;
B. For Tier II disciplinary hearings, the appeal is to the
facility superintendent pursuant to 7 N.Y.C.R.R. § 253.8;
and
C. For Tier I violation hearings, the appeal is to the facility
superintendent or a designee pursuant to 7 N.Y.C.R.R. §
252.6.
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“An individual decision or disposition of any current or
subsequent program or procedure having a written appeal
mechanism which extends review to outside the facility shall
be considered non-grievable.” 7 N.Y.C.R.R. § 701.3(e)(1).
Similarly, “an individual decision or disposition resulting
from a disciplinary proceeding ... is not grievable.” 7
N.Y.C.R.R. § 701.3(e)(2). However, “[t]he policies, rules,
and procedures of any program or procedure, including those
above, are grievable.” 7 N.Y.C.R.R. § 701.3(e)(3); see also
N.Y. Dep't Corr. Serv. Directive No. 4040 at III.E.
Generally, if a prisoner has failed to properly follow each
of the required three steps of the above-described grievance
procedure prior to commencing litigation, he has failed
to exhaust his administrative remedies, and his claims are
subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534
U.S. at 524; Ruggiero v. County of Orange, 467 F.3d 170, 175
(2d Cir. 2006). However, a plaintiff's failure to exhaust does
not end the inquiry. This is because certain exceptions exist
to the exhaustion requirement.
In particularly, in 2004, in Hemphill v. State of New York, the
Second Circuit held that a three-part inquiry is appropriate
where a defendant contends that a prisoner has failed to
exhaust his available administrative remedies, as required by
the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686,
691 (2d Cir. 2004), accord, Ruggiero, 467 F.3d at 175. First,
“the court must ask whether [the] administrative remedies
[not pursued by the prisoner] were in fact ‘available’ to
the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted).
Second, if those remedies were available, “the court should ...
inquire as to whether [some or all of] the defendants may
have forfeited the affirmative defense of non-exhaustion by
failing to raise or preserve it ... or whether the defendants’
own actions inhibiting the [prisoner's] exhaustion of remedies
may estop one or more of the defendants from raising the
plaintiff's failure to exhaust as a defense.” Id. [citations
omitted]. Third, if the remedies were available and some
of the defendants did not forfeit, and were not estopped
from raising, the non-exhaustion defense, “the Court should
consider whether ‘special circumstances’ have been plausibly
alleged that justify the prisoner's failure to comply with the
administrative procedural requirements.” Id. [citations and
internal quotations omitted].
However, in 2016, in Ross v. Blake, the Supreme Court
abrogated Hemphill’s third prong and effectively enveloped
its second prong within its first prong. Ross v. Blake, 136 S.
Ct. 1850, 1857 (2016). More specifically, under Ross, any
inquiry that previously would have been considered under
the second or third prongs of Hemphill is now considered
entirely within the context of whether administrative remedies
were actually available to the aggrieved inmate. Ross, 136 S.
Ct. at 1858. This is because, the Supreme Court explained,
the PLRA “contains its own, textual exception to mandatory
exhaustion.” Id. In particular, 42 U.S.C. § 1997e(a) provides
that only those administrative remedies that “are available”
must first be exhausted. Id. In the PLRA context, the Supreme
Court determined that “availability” means that “an inmate
is required to exhaust those, but only those, grievance
procedures that are capable of use to obtain some relief for the
action complained of.” Id. at 1859 (quotation marks omitted).
*6 To guide courts in this new analysis, the Supreme
Court has identified three kinds of circumstances in which
an administrative remedy, “although officially on the books,”
is not “available.” Ross, 136 S. Ct. at 1859. 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.
Second, “an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.” Id. Third,
an administrative remedy is not “available” when “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
Finally, two additional points bear mentioning regarding
exhaustion hearings. First, the Second Circuit has ruled that
a plaintiff in a lawsuit governed by PLRA is not entitled to a
jury trial on disputed factual issues relating to his exhaustion
of administrative remedies; rather, PLRA exhaustion is a
matter of judicial administration. Messa v. Goord, 652
F.3d 305, 308-10 (2d Cir. 2011). Second, given that non-
exhaustion is an affirmative defense, the defendant bears
the burden of proving that a prisoner has failed to exhaust
his available administrative remedies. 11 However, once a
defendant has adduced reliable evidence that administrative
remedies were available to the plaintiff and that the plaintiff
nevertheless failed to exhaust those administrative remedies,
the plaintiff must then “counter” the defendant's assertion by
persuading the Court of either exhaustion or unavailability. 12
As a result, practically speaking, while the burden of proving
this affirmative defense remains at all times on the defendant,
the plaintiff may sometimes have to adduce evidence in order
to defeat it.
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III. ANALYSIS
After carefully considering the admissible record evidence
adduced at the exhaustion hearing, the Court renders
the following three factual findings: (1) Defendants have
met their burden of proving that Plaintiffs Gomez, Smith
and Bonds failed to exhaust their administrative remedies
regarding the claims in question before filing this action;
(2) Defendants have also met their burden of proving that
administrative remedies were generally available to those
Plaintiffs during the time in question (e.g., that the grievance
procedure was working at Upstate C.F. and Sullivan C.F.
during the time in question); and (3) Plaintiffs have not
persuaded the Court that, at Upstate C.F. and Sullivan C.F.
during the time in question, the grievance procedure operated
as a “simple dead end” (with officers unable or consistently
unwilling to provide any relief to aggrieved inmates).
In support of the first factual finding, the Court relies on the
following: (1) the fact that Plaintiffs’ counsel conceded at the
exhaustion hearing that Plaintiffs Gomez, Smith and Bonds
failed to exhaust their administrative remedies regarding
the claims in question before filing this action; and (2)
alternatively, the hearing exhibits admitted during the hearing
testimony on that subject by Cory Proscia and Rachael
Seguin, as well as those witnesses’ convincing demeanor and
body language (including, but not limited to, their tone of
voice, facial expressions, and eye contact).
*7 In support of the second factual finding, the Court
relies on the following: (1) the fact that Plaintiffs’ counsel
conceded at the exhaustion hearing that Plaintiff Chaves,
Plaintiff Matthews, and non-party Manuel Nunez were able
to exhaust their available administrative remedies regarding
claims of excessive force during their removal from Clinton
C.F.; 13 and (2) alternatively, the hearing exhibits admitted
during the hearing testimony on that subject by Cory Proscia
and Rachael Seguin, as well as those witnesses’ convincing
demeanor and body language (including, but not limited to,
their tone of voice, facial expressions, and eye contact).
In support of the third factual finding, the Court relies on
the following: (1) the hearing exhibits admitted during and
after 14 the hearing testimony of OSI Investigator Jonathan
Nocera, as well as his convincing demeanor and body
language (including, but not limited to, his tone of voice,
facial expressions, and eye contact); (2) the unconvincing
demeanor and body language of non-party Manuel Nunez,
Plaintiff Gomez, 15 and Plaintiff Smith, 16 during their
hearing testimony (including, but not limited to, their tone
of voice, facial expressions, and eye contact or lack thereof);
(3) the fact that, at the exhaustion hearing, Plaintiff Bonds
chose to not even testify that he viewed the process as a
“dead end” (much less subject himself to cross-examination
on the issue); 17 and (4) alternatively, the fact that, on June
30, 2015, Plaintiffs Bonds chose to file a grievance at Sullivan
C.F. regarding the claims at issue in this action on June 30,
2015, 18 which constitutes at least some evidence that Bonds
did not view the process as a “dead end.” 19
*8 In addition, the Court makes the following three points.
First, the Court rejects Plaintiffs’ post-hearing argument that
“the purpose of the [exhaustion] hearing was not to assess
whether Mr. Bonds failed to exhaust administrative remedies”
but “to assess the weight of Plaintiffs’ evidence that DOCCS's
summarily rejected inmate complaints of harassment during
the 2015 escape investigation and the credibility of the
DOCCS employee who conducted the majority of that
investigation—John Nocera.” (Dkt. No. 378, at 1-2.) Contrary
to Plaintiffs’ interpretation of Judge McAvoy's Decision and
Order of March 18, 2022, his finding that “Plaintiffs have
met their burden of demonstrating that DOCCS personnel
rejected grievances of employee harassment arising from
[the] 2015 escape investigation regardless of the merits of
those grievances” was merely a ground to deny Defendants’
motion for summary judgment on the issue of exhaustion (the
success of which turned on whether Plaintiffs failed to exhaust
as a matter of law). (Dkt. No. 325, at 12.) 20 The question of
fact that remained for the exhaustion hearing (the outcome of
which turns on a mere preponderance of the evidence) was
“whether Plaintiffs’ administrative remedies were available
to them with respect to grievances against DOCCS personnel
surrounding the escape investigation, or whether the IGP
related to these grievances was a simple dead end.” (Id.)
Simply stated, the rejection-of-grievances-regardless-of-the-
merits fact identified by Plaintiffs was left to be proven by
them at the exhaustion hearing, unless it was conceded by
Defendants (which it was not). Furthermore, although the
Court has certainly considered Plaintiffs’ hearing evidence
as applying to all Plaintiffs (including Plaintiffs Bonds), the
Court simply finds that evidence unconvincing for the reasons
stated above and below.
Second, to prove that a grievance process operated as a
dead end, a plaintiff must show that the grievance process
“could not lead to a change in the challenged prison policies.”
Green Haven Prison Preparative Meeting of Religious Soc'y
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of Friends v. N.Y. State Dep't of Corr. & Cmty. Supervision,
16 F.4th 67, 82 (2d Cir. 2021), cert. denied sub nom. Green
Haven Preparative Meeting v. New York State Dep't of Corr.
& Cmty. Supervision, 142 S. Ct. 2676 (2022). As the Second
Circuit explained in Green Haven,
Plaintiffs ... appear to make a futility
argument, claiming that the grievance
process was ‘a dead end’ such that
they were not required to exhaust
administrative remedies .... The bar
for the availability of remedies,
however, is low. To constitute an
‘available’ remedy, a process requires
only ‘the possibility of some relief.’
Ross v. Blake, 578 U.S. 632, 643,
136 S. Ct. 1850, 195 L.Ed.2d 117
(2016) (emphasis added) (quotation
marks omitted). Here, the Incarcerated
Plaintiffs provide no evidence that a
grievance asserting that a prisoner's
religious liberty has been violated by
a limitation on the number or timing
of religious services or celebrations
could not lead to a change in the
challenged prison policies. Plaintiffs
are thus unable to avoid the exhaustion
requirement, and the Incarcerated
Plaintiffs’ RLUIPA claims fail.
Green Haven, 16 F.4th at 82 [emphasis in original]. A plaintiff
has not met this burden simply by arguing that DOCCS never
approved a grievance similar to the sort at issue in his case.
See Wright v. Georgia Dep't of Corr., 820 F. App'x 841, 845
(11th Cir. 2020) (“Wright argued that the grievance process
was an unavailable dead end because the wardens had never
approved an inmate grievance involving medical treatment;
however, he provided no factual support for this assertion.
Accordingly, the district court did not err in concluding that
the defendants satisfied their burden to show the failure to
exhaust an available remedy and Wright failed to show that
the remedy was effectively unavailable to him.”).
Third, the fact that Mr. Nunez may have experienced a
problem submitting his claim to Investigator Nocera –
particularly when Nocera was trying to investigate the claim
of Plaintiff Matthews 21 – hardly establishes that the problem
asserted by Nunez was systematic. See Barksdale v. Annucci,
15-CV-0560, 2016 WL 4708235, at *3 (N.D.N.Y. Aug. 4,
2016) (Stewart, M.J.) (“As evidence of systematic delays,
Plaintiff cites several grievances filed by other inmates, which
he notes were not stamped as received until as long as a
week and a half after they were dated .... [T]his evidence
is insufficient to establish a pattern of systematic delays
in the processing of grievances at Coxsackie.”), report-
recommendation adopted, 2016 WL 4703740 (N.D.N.Y.
Sept. 8, 2016) (Kahn, J.). This is particularly true given
that, contrary to Plaintiff's argument that Investigator Nocera
was tasked with conducting the “majority” of the OSI's
investigation of inmate grievances and allegations of assault
that resulted from the June 2015 escape investigation (Dkt.
No. 372, at 2 [Plfs.’ Ltr. Motion]; Dkt. No. 281, at 6-7
[attaching pages “2” and “3” of Plfs.’ Opp'n Memo. of Law]),
in fact, it appears (based on the available record evidence) that
Nocera conducted fewer than half of those investigations. 22
In any event, regardless of whether Nocera conducted more
than half of the investigations, the fact that other investigators
existed further weakens Mr. Nunez's claim that Investigator
Nocera's (purported) inaction rendered the entire procedure a
“dead end.”
*9 For each of these numerous alternative reasons, the
claims of Plaintiffs Gomez, Smith and Bonds are dismissed.
ACCORDINGLY, it is
ORDERED that the claims of Plaintiffs Gomez, Smith
and Bond in their Third Amended Complaint (Dkt. No.
298) are DISMISSED for failure to exhaust their available
administrative remedies before filing suit.
All Citations
Slip Copy, 2025 WL 447734
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Footnotes
1 Plaintiff Bonds did not testify. His proffered reason for not appearing was “I was given 20 minutes to ready
[sic]. First made aware of leaving on the day I had to leave. I was physically incapable of [sic].” (Dkt. No. 373
[Refusal/Waiver of Right to Be Physically Present at Court].) The Order to appear was served on Plaintiff's
counsel on January 15, 2025. (Dkt. No. 368.) At the exhaustion hearing, his counsel stated that, after speaking
with Plaintiff Bonds on February 4, 2025, counsel had learned as follows: (1) Plaintiff Bonds claims that, in
his 15 years’ experience being incarcerated he “usually” gets a day's notice before he is transported to court;
(2) here, he did not receive that one day's notice, but only twenty or thirty minutes’ notice; and (3) as a result,
he was not “prepared” because he had not showered and was not “groomed,” and because he just suffered
an injury in the gym so he had a “pain issue” as well. (Exhaust. Hrg. Tr.)
2 This case was reassigned from Judge McAvoy to the undersigned on February 13, 2024. (Dkt. No. 356.)
3 Although Judge McAvoy also stated in his Decision and Order that “Defendants may renew their summary
judgment motion following the conclusion of this hearing” (Dkt. No. 325, at 19), such a renewed motion
for summary judgment is unnecessary given the preponderance-of-the-evidence standard that governs the
Court's determination in an exhaustion hearing, as stated in the undersigned's Text Order of February 2,
2024 (Dkt. No. 366).
4 In addition, the Court notes that, on January 15, 2025, the undersigned's Courtroom Deputy, Shelly Muller,
received an email message from defense counsel confirming the fact that Defendants will not be pursuing
their exhaustion defense against the claims of Plaintiffs Matthews or Chaves at the exhaustion hearing.
5 See, supra, note 4 of this Decision and Order.
6 Defendant argues that Plaintiff Bonds initially submitted this grievance to the Superintendent of Clinton C.F.,
who responded (through a representative) that it must be filed at Sullivan C.F. (Dkt. No. 254, Attach. 1, at
10-11 [attaching pages “7” and “8” of Defs.’ Memo. of Law].)
7 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. March 31, 2010) [citation
omitted].
8 The Court uses the term “a certain number of days” rather than a particular time period because (1) since
the three-step process was instituted, the time periods imposed by the process have changed, and (2) the
time periods governing any particular grievance depend on the regulations and directives pending during the
time in question.
9 See Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *2 & n.3 (N.D.N.Y. March 31, 2010) (citing Groves
v. Knight, 05-CV-0183, Decision and Order at 3 [N.D.N.Y. filed Aug. 4, 2009], an appeal from which was
subsequently dismissed as frivolous, see Groves v. Knight, No. 09-3641, Mandate [2d Cir. filed Jan. 15,
2010].)
10 See 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next
step.”); see also Murray, 2010 WL 1235591, at *2 & n.4 [collecting cases]; cf. 7 N.Y.C.R.R. § 701.8(g) (“If
the superintendent fails to respond within the required 25 calendar day time limit the grievant may appeal
his/her grievance to CORC.”).
11 Id. at *4 [citation omitted].
12 Id. at *4 & n.17 [citing cases]; see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (noting that special
circumstances must be “plausibly alleged, ... justify[ing] the prisoner's failure to comply with administrative
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procedural requirements”); Grant v. Kopp, 17-CV-1224, 2019 WL 368378, at *4 (N.D.N.Y. Jan. 3, 2019)
(Peebles, M.J.) (“I conclude that although the burden of proof on this affirmative defense remains with the
defendant at all times, the plaintiff can be required to produce evidence in order to defeat it.”) (citing cases),
adopted, 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (Sharpe, J.).
13 The Court notes that the fact that Plaintiff Chaves, Plaintiff Matthews, and non-party Nunez were able to
exhaust their administrative remedies regarding their treatment during transfer from Clinton C.F. to Upstate
C.F. is at least some evidence that that the grievance process was available during the time in question. See
Moreau v. Ellsworth, No. 21-2997, 2023 WL 3477153, at *2 (2d Cir. May 16, 2023) (“[T]he record evidence
demonstrates that Moreau and other inmates at Eastern were able to appeal from several unfavorable IGRC
decisions during the same period. There is thus no basis to conclude that the inmate-grievance process was
unavailable.”).
14 The Court notes that, after the hearing testimony of Nocera, Plaintiffs’ counsel submitted into evidence
selected portions of the deposition testimony of several CERT Officers testifying that they do not recall having
been interviewed by OSI or DOCCS regarding the allegations in question in 2015 (at Hrg. Exs. P-10, P-11,
P-12, P-13, and P-14). Defendants’ counsel objected to the admission of these selected portions of the
deposition testimony, and the Court reserved decision on this issue. After carefully considering the matter, the
Court admits these exhibits into the record, because they do not change the outcome of the Court's decision.
In addition to the fact that nearly six years passed between the interviews and the depositions, the Court
is persuaded by the credible testimony of Nocera that the interviews occurred (as well as the corroborating
documentary evidence).
15 For example, the Court does not find credible Plaintiff Gomez's hearing testimony that (1) he tried to file a
grievance at Upstate C.F. regarding the claims at issue but was unable to do so because of a sign on his cell
gate, and (2) he did not try to file such a grievance at Sullivan C.F. because he was threatened by unidentified
officers (or anyone else) there. (Exhaust. Hrg. Tr.) The Court notes that it has carefully considered this
testimony as potentially relevant to both the first circumstance of unavailability described in Ross, 136 S. Ct.
at 1859-60 (regarding when the administrative procedure operates as a “simple dead end” because officers
are “unable or consistently unwilling to provide any relief to aggrieved inmates”) and the third circumstance of
unavailability described in Ross (regarding when “prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation”).
16 For example, the Court does not find credible Plaintiff Smith's hearing testimony that he did not file a grievance
at Upstate C.F. regarding the claims at issue because of a sign on his cell gate and/or because CERT officers
had instructed medical staff not to give him treatment. (Exhaust. Hrg. Tr.) Again, the Court has carefully
considered this testimony as potentially relevant to both the first and third circumstances of unavailability
described in Ross, 136 S. Ct. at 1859-60. See, supra, note 9 of this Decision and Order.
17 See Woodward v. Lytle, 16-CV-1174, 2019 WL 2527342, at *8 (N.D.N.Y. May 24, 2019) (Peebles, M.J.)
(recommending dismissal for failure to exhaust, because “plaintiff who bore the burden of production to
demonstrate unavailability of the grievance process failed to meet that burden in failing to present any
evidence [at the exhaustion hearing], including his own testimony, that would indicate that Ms. Hartz, or
any defendants, refused to file a grievance while he was housed in the SHU at Cape Vincent”), report-
recommendation adopted, 2019 WL 2524756, at *1 (N.D.N.Y. June 19, 2019) (Mordue, J.).
18 (See Dkt. No. 254, Attach. 2, at 12 [Ex. C to Pinsonnault Decl., attaching copy of grievance from Bonds dated
June 30, 2015]; Exhaust. Hrg. Ex. D-10.)
19 See Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018) (Stewart, M.J.) (“While
Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file
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grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead
end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (Hurd, J.); Lapierre
v. LaValley, 15-CV-1499, 2019 WL 4015689, at *5 (N.D.N.Y. Aug. 26, 2019) (Stewart, M.J.) (rejecting an
asserted “dead end” exception and granting a motion for summary judgment because the plaintiff's prior
filings “show[ ] that [he] did not view the filing of grievances as a dead end”) (citation omitted), report and
recommendation adopted, 2019 WL 4686415 (N.D.N.Y. Sept. 26, 2019) (D'Agostino, J.), aff'd, 847 F. App'x
47 (2d Cir. 2021). The Court notes that the fact that Plaintiff Bonds lost this grievance is not evidence that it
was a dead end. See McMillian v. Walters, 16-CV-0277, 2018 WL 879270, at *3 (N.D.N.Y. Feb. 14, 2018)
(D'Agostino, J.) (“Plaintiff did not provide any evidence that would suggest that the administrative procedures
act as a dead end. Although Plaintiff stated in his deposition that the grievance process ‘didn't do anything’
for him in the past ..., a record of administrative defeats for a single prisoner is not sufficient evidence to
effectively indict the system.”).
20 To be clear, the “burden” referenced by Judge McAvoy regarded Plaintiffs’ modest burden in opposing
Defendants’ motion for summary judgment, not their shifted burden of persuasion at a subsequent
exhaustion hearing (during which the Court might evaluate the credibility of Plaintiffs’ testimony under cross-
examination). See, supra, Part II of this Decision and Order (setting forth legal standard).
21 The Court notes that, at the exhaustion hearing, Mr. Nunez testified that, as Investigator Nocera was
attempting to question him regarding the claim by Plaintiff Matthews on July 2 or 3, 2015, at Sing Sing C.F,
Mr. Nunez attempted to remind Plaintiff about his own claim and did not receive a satisfactory response.
(Exhaust. Hrg. Tr.)
22 More specifically, it appears that, of the 35 OSI Interview Statements in the record that indicate the name of
the investigating officer, 16 of those statements identify that officer as Jonathan Nocera, seven identify him
as James Lovelace, four identify him as Christopher Payant, three identify him as Scott Lustan, three identify
him as Ryan Graziano, one identifies him as Felix Cotto, and one identifies him as Investigator Retrosi. (Dkt.
No. 281, Attach. 9, at 3-8, 10, 12-17, 19, 20, 22-24, 26, 28, 30, 32, 33, 36, 38, 40, 42-45, 47, 49, 52, 55, 56
[Ex. 7 to Cannan Decl., attaching “OSI Interview Statements”].)
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McGee v. McGready, Not Reported in Fed. Supp. (2018)
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2018 WL 2045094
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tony MCGEE, Plaintiff,
v.
Correction Officer MCGREADY, et al., Defendants.
16-CV-4187 (NSR)
|
Signed 04/30/2018
Attorneys and Law Firms
Tony McGee, Brooklyn, NY, pro se.
Colleen Kelly Faherty, State of New York Office of the
Attorney General, New York, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Plaintiff, Tony McGee (“Plaintiff”), an incarcerated pro
se inmate at Sing Sing Correctional Facility, brings this
action pursuant 42 U.S.C. § 1983 against Inmate Grievance
Supervisor Anthony Black (“Black”), former Corrections
Counselor Mary Jackson (“Jackson”), Sergeant Murray or
Murphy (“Sgt. Murray”), Sergeant Poole (“Sgt. Poole”)
and several other corrections officers. 1 Before this court
is Defendant Black and Jackson’s motion to dismiss the
amended complaint as against them based on failure to plead
a plausible claim, failure to exhaust administrative remedies,
and qualified immunity. For the foregoing reasons, the motion
is GRANTED.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff’s Amended
Complaint and are deemed true for the purpose of this motion.
Plaintiff alleges that on or about July 22, 2013, while in the
mess hall he was assaulted by a fellow “gang related Hispanic
inmate” who made a derogatory or offensive statement. In
response to the statement, Plaintiff punched the inmate in the
face resulting in an altercation. During the fight, Plaintiff was
repeatedly punched about the face causing several lacerations.
Plaintiff alleges that a “Black Correction Officer” 2 was
present in the mess hall, observed the incident, and failed to
prevent it and/or failed to intervene.
On or about July 11, 2013, approximately eleven days
prior to the altercation, Plaintiff spoke to Jackson and
requested that he be placed in protective custody because
he was threatened and being targeted by “gang-related
Hispanic inmates.” Jackson purportedly prepared a request
for “voluntary protective custody,” and informed Plaintiff he
would be contacted sometime later. Later that day, Plaintiff
was interviewed by Sgt. Murray concerning his request
for protective custody. Plaintiff purportedly informed Sgt.
Murray of the threats and being targeted. Plaintiff was
once again informed he would be contacted sometime later.
Plaintiff’s request was not granted. Plaintiff suggests had he
been placed in protective custody, as requested, he would
not have been assaulted and injured. Additionally, Plaintiff
asserts that Defendant Black failed to process multiple sick-
call grievances by failing to forward them to Central Office
Review Committee (“CORC”). Plaintiff asserts claims under
the Eight and Fourteenth Amendments.
STANDARD OF REVIEW
Rule 12(b)(6)
On a 12(b)(6) motion, dismissal is proper unless the complaint
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). When there
are well-pled factual allegations in the complaint, “a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at 679.
The critical inquiry is whether the plaintiff has pled sufficient
facts to nudge the claims “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss
will be denied where the allegations “allow[ ] the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
*2 Where a pro se Plaintiff is concerned, Courts must
construe the pleadings in a particularly liberal fashion.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Court
must therefore interpret the pleading “to raise the strongest
arguments that [it] suggest[s].” Harris v. City of N.Y., 607
F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation
omitted). Nevertheless, a pro se plaintiff’s pleading must
contain factual allegations that sufficiently “raise a right to
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relief above the speculative level” (Jackson v. N. Y.S. Dep't
of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) ), and
the Court’s duty to construe the complaint liberally is not “the
equivalent of a duty to re-write it.” Geldzahler v. New York
Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009).
Exhaustion
The Prison Litigation Reform Act (“PLRA”) precludes the
filing of an action “with respect to prison conditions under
[42 US.C. § 1983] ... by a prisoner confined in any jail, prison
or other correction facility until such administrative remedies
as are available are exhausted.” Williams v. Corr. Officer
Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations
omitted). Whether an inmate has exhausted all administrative
remedies turns on a review of “the state prison procedures
[available] and the prisoner’s grievance....” See Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009) citing Jones v.
Bock, 549 U.S. 199, 218 (2007). Grievances at DOCCS are
governed by the Inmate Grievance Program (“IGP”), which
is based on a three-tiered system. Id. at 125. To adjudicate
an inmate complaint: “(1) the prisoner files a grievance with
the Inmate Grievance Resolution Committee (“IGRC”), (2)
the prisoner may appeal an adverse decision by the IGRC to
the superintendent of the facility, and (3) the prisoner then
may appeal an adverse decision by the superintendent to the
CORC. Id.; see also N.Y. Comp. Codes. R. & Regs., tit. 7, §
701.7 (1999).
Notably, exhaustion is an affirmative defense, not a pleading
requirement; thus, inmate plaintiffs need not “specially plead
or demonstrate exhaustion in their complaints.” Jones, 549
U.S. at 216. Instead, Defendants must demonstrate lack
of exhaustion. Colon v. N. Y.S. Dep't of Corr. & Cmty.
Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at
*5 (S.D.N.Y. Sept. 15, 2017) citing Key v. Toussaint, 660 F.
Supp. 2d 518, 523 (S.D.N.Y. 2009).
Dismissal on a 12(b)(6) motion for failure to exhaust is
permissible where “it is clear on the face of the complaint
that the plaintiff did not satisfy the PLRA exhaustion
requirement.” Williams, 829 F.3d at 122; see also Parris
v. N.Y.S. Dep't Corr. Sews., 947 F. Supp. 2d 354, 261
(S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dep't
of Con: Med. Dep't, No. 10-CV-6309, 2011 WL 2946168,
at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of
motion was appropriate where complaint was ambiguous as
to exhaustion). Further, on such a motion, where a court is
confined to the four corners of the complaint, the documents
attached thereto, and things of which it is entitled to take
judicial notice (see, e.g., Kleinman v. Elan Corp., 706 F.3d
145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321
(2d Cir. 2011) ), a court is only permitted to consider outside
documents related to exhaustion and submitted by defendants
under limited circumstances. See, Smith v. Miller, No. 15-
CV-9561 (NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23,
2017) (noting courts can take judicial notice of administrative
records in Section 1983 cases in limited circumstances).
Those include instances where “the complaint a) was the
standard pro se form complaint that has a check-box regarding
exhaustion, b) contained allegations clearly stating that the
inmate had exhausted his administrative remedies, or c)
clearly pointed to the fact that the inmate had, in fact, not
exhausted.” Cohn, 2017 WL 4157372, at *5.
Qualified Immunity
*3 “Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011) citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). “If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent
public official should know the law governing his conduct.”
Harlow, 457 U.S. at 818-19. It is within the Court’s discretion
to determine the order in which the two prongs are analyzed.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
DISCUSSION
Plaintiff asserts § 1983 claims under the Eighth Amendment
against Defendants Black and Johnson. The essence of
Plaintiff’s claim is a failure to protect. Plaintiff’s complaint
suggest that Defendants' failure in processing or approving his
request for voluntary confinement resulted in his subsequent
assault. Or, construing the allegations liberally as the Court is
required to do, but for Defendants' failure in placing him in
voluntary protective custody, Plaintiff would not have been
attacked and injured by a fellow inmate.
Plaintiff’s 1983 complaint is that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment,
made applicable to the States by the Fourteenth. See Estelle
v. Gamble, 429 U.S, 97, 102 (1976) citing Robinson v.
California, 370 U.S. 660 (1962). “To prevail on an Eighth
Amendment claim, an inmate must first show that his injury
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is objectively a ‘sufficiently serious’ one.” Brims v. Burdi,
No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2 (S.D.N.Y.
June 23, 2004) quoting Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998). Additionally, a plaintiff must “show that
the defendant had knowledge of [the] prisoner’s problem
and was deliberately indifferent to [the] prisoner’s plight.”
Calhoun v. N. Y State Div. of Parole Officers, 999 F.2d 647,
654 (2d Cir. 1993) citing Sample v. Diecks, 885 F.2d 1099,
1110 (3d Cir. 1989).
Deliberate indifference requires a showing that the conditions
of incarceration posed a substantial risk of serious harm,
and that prison officials possessed sufficient culpable intent.
Hayes v. New York City Dep't Of Corr., 84 F.3d 614, 620
(2d Cir. 1996) citing Farmer v. Brennan, 511 U.S. 825,
834 (1994).The deliberate indifference requires a two prongs
analysis: substantial risk of serious harm, objective prong;
and sufficient culpable intent, subjective prong. Farmer, 511
U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996). Here, the objective prong is meet and not disputed.
Subjectively, the prison official acts with the requisite
sufficient culpable state of mind when he (or she) “has
knowledge that an inmate faces a substantial risk of serious
harm and he disregards that risk by failing to take reasonable
measures to abate the harm.” Hayes, 84 F.3d at 620.
Courts have denied deliberate indifference claims based
upon surprise attacks. See Fernandez v. N.Y.C. Dep't of
Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at
*4 (S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber,
No. 95-CV-0882(DAB), 2001 WL 946383 (S.D.N.Y. Aug.
21, 2001). Plaintiff alleges he provided advance notice to
Jackson and Black of threats and a possible attack. Plaintiff’s
allegation also suggest he identified the attacker(s), “gang
related Hispanic inmates” at the facility. Plaintiff’s allegations
suggest that Black and Jackson failed to take reasonable
measures to abate the impending attack. Thus, Plaintiff has
pled a plausible Eighth Amendment claim.
*4 Plaintiff’s Eighth Amendment claim, however, fails
for failure to exhaust his administrative remedies. This
case involves the use of the pro se form complaint
which contains the equivalent of a check-box exhaustion
section. The amended complaint is clear as to whether
Plaintiff alleges he grieved his claims. Plaintiff explicitly
states he filed grievances concerning, inter alia, the “5
sick call request,” the “non-protection grievances” and the
“foreseeable assault.” (See Amended Compl., Sect. IV., E
(1).) Because the exhaustion issue is an integral part of the
prisoner’s claims, the Court may refer to materials outside of
the complaint on a 12(b)(6) motion in determining whether a
plaintiff has exhausted. See Smart v. Goode, No. 04-CV-8850
(RWS), 2008 WL 591230, at *2 (S.D.N.Y. Mar. 3, 2008)
(recognizing that the Court’s previous opinion “[did] not
faithfully capture the subtlety of exhaustion doctrine in the
Second Circuit” and that the Court should have addressed
non-exhaustion as an affirmative defense).
In support of their motion, Defendants submit a declaration
from Karen Bellamy (“Bellamy”), the Director of the Inmate
Grievance Program (“IGP”). Bellamy avers that she is the
custodian of records maintained by the CORC, which is
tasked with rendering administrative decisions on grievances
filed by inmates. Based upon her review of the records,
she found that Plaintiff made other complaints concerning
meals, conditions of the facility, and “problems with security
staff” on December 17, 2013. Plaintiff, however, did not
file a grievance concerning the July 22nd incident nor his
request for voluntary confinement. Though Plaintiff attempts
to rebut Defendants' showing, mere conclusory statements
in opposition is insufficient. Accordingly, Plaintiff’s Eighth
Amendment claims must be dismissed.
Plaintiff also asserts a claim based on Defendant Black’s
failure to process his grievances, including his “5 sick call
grievances.” It is well settled that in order to succeed on a
§ 1983 claim, Plaintiff must show that he has been deprived
of a constitutional or other federal right. 42 U.S.C. § 1983.
Inmate grievances procedures are undertaken voluntarily by
the states and are not constitutionally required. Johnson v.
New York City Dep't of Health, No. 06-CV-13699 (BSJ)
(FM), 2008 WL 5378124, at *3 (S.D.N.Y. Dec. 22, 2008)
(internal citation omitted). Accordingly, a failure to process
a prisoner's grievance(s) does not in itself give rise to a
constitutional claim. Swift v. Tweddell, 582 F. Supp. 2d 437,
445-46 (W.D.N.Y. 2008) (internal citations omitted). This
claim must therefore be dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion is GRANTED
in part and DENIED in part. Plaintiff’s Eighth Amendment
and claims premised on the failure to process his grievances
are dismissed. The Clerk of the Court is respectfully directed
to terminate the motion at ECF No. 29. The parties are
directed to confer, complete and submit to the Court a
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McGee v. McGready, Not Reported in Fed. Supp. (2018)
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completed case management plan (blank form attached)
within thirty (30) days of the date of this opinion.
SO ORDERED.
Attachment
All Citations
Not Reported in Fed. Supp., 2018 WL 2045094
Footnotes
1 The operative complaint is the Amended Complaint filed February 2, 2017. (ECF No. 22.)
2 In his complaint, Plaintiff appears to identify the “Black Correction Officer” as C.O. Javier Caban.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Melvin v. County of Westchester, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Watkins v. Harlem Center for Nursing and Rehabilitation,
LLC, S.D.N.Y., September 28, 2021
2016 WL 1254394
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Erica MELVIN as Administratrix of the Estate
of Rashad McNulty, Deceased, Plaintiff,
v.
COUNTY OF WESTCHESTER; Correct Care Solutions,
LLC; New York Correct Care Solutions Medical
Services PC; Empress Ambulance Service, Inc.; Raul
Ulloa; Paulette Smith; Josh Boggi; Diane Jordan;
Gregorio Castro; and EMS John Doe, Defendants.
Case No. 14-CV-2995 (KMK)
|
Signed 03/29/2016
Attorneys and Law Firms
Jared R. Rice, Esq., Rice & Rice Attorneys At Law, Bronx,
NY, Counsel for Plaintiff.
John M. Murtagh, Jr., Esq., Denise M. Cossu, Esq., Gaines,
Novick, Ponzini, Cossu & Venditti, LLP, White Plains, NY,
Counsel for Defendants County of Westchester, Correct Care
Solutions, LLC, New York Correct Care Solutions Medical
Services PC, Raul Ulloa, Paullette Smith, Josh Boggi, and
Diane Jordan.
Ryan T. Cox, Esq., Joseph L. DeMarzo, Esq., Martin
Clearwater & Bell LLP, New York, NY, Counsel for
Defendants Empress Ambulance Service Inc. and Gregorio
Castro.
OPINION & ORDER
KENNETH M. KARAS, District Judge
*1 Erica Melvin (“Plaintiff”), as administratrix of the
estate of Rashad McNulty, deceased, brings this Second
Amended Complaint against the County of Westchester
(“Westchester”), Correct Care Solutions, LCC (“CCS”),
New York Correct Care Solutions Medical Services, PC
(“NYCCS”), Dr. Raul Ulloa (“Ulloa”), Paulette Smith
(“Smith”), Josh Boggi (“Boggi”), Diane Jordan (“Jordan”),
Empress Ambulance Service, Inc. (“Empress”), and Gregorio
Castro (“Castro”) (collectively, “Defendants”). (Dkt. No. 53.)
Before the Court are two Motions To Dismiss Plaintiff's
Second Amended Complaint, one on behalf of Westchester,
CCS, NYCCS, Ulloa, Smith, Boggi, and Jordan (collectively,
“Westchester Defendants”), and one on behalf of Empress and
Castro (collectively, “Empress Defendants”). (Dkt. Nos. 63,
66.) For the following reasons, Empress Defendants' Motion
is granted and Westchester Defendants' Motion is granted in
part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff's Second
Amended Complaint and are taken as true for the purpose of
resolving the instant Motions.
1. Events Preceding Decedent's Confinement at WCJ
A Civil Rights of Institutionalized Persons Act (“CRIPA”)
investigation was performed at Westchester County Jail
(“WCJ”) in February 2008. (Second Am. Compl. (“SAC”) ¶
18 (Dkt. No. 53).) On November 19, 2009, the Department
of Justice (“DOJ”) issued a Findings Letter to Westchester
regarding certain conditions at WCJ. (Id.) DOJ ultimately
concluded that WCJ inmates did not receive adequate medical
care. (Id.)
Between May 6, 2008 and July 25, 2010, Westchester County
Health Care Corporation (“WCHCC”) provided medical care
and treatment to inmates at WCJ, pursuant to an agreement
with Westchester (“Westchester-WCHCC Contract”). (Id.
¶ 17.) On or about January 27, 2010, WCHCC notified
Westchester of its intention to terminate the agreement
effective as of midnight on July 26, 2010. (Id. ¶ 23.)
Westchester accepted that withdrawal and, on June 16, 2010,
entered into a contract with CCS and NYCCS for the
provision of comprehensive health care to WCJ inmates
and detainees (“Westchester-NYCCS Contract”). (Id. ¶¶ 26,
31). That relationship began on or about July 26, 2010 and
continued through the events giving rise to this Action. (Id.
¶ 32).
As of January 2013, Westchester, CCS, and NYCSS
had an agreement with Empress to provide after-care
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transportation for WCJ inmates and detainees (“NYCCS-
Empress Contract”). (Id. ¶ 34.)
2. Events Relating to Decedent's Medical Care at WCJ
Rashad McNulty (“Decedent”) was confined to WCJ on
August 9, 2011 and incarcerated there until the time of his
death on January 29, 2013 (“January 29”). (Id. ¶ 37.) Shortly
after arriving at WCJ, Decedent underwent a medical intake
screening process and health assessment that showed he had
a normal blood pressure reading. (Id.)
On January 16, 2013 (“January 16”), a chest X-ray was
performed on Decedent due to his complaints of chest pains.
(Id. ¶ 39) No tests for stenosing coronary arteriosclerosis or
any other blood circulation abnormalities were performed at
that time. (Id.) Ulloa, the Medical Director at WCJ, received
the results of Decedent's X-ray on January 18, 2013. (Id. ¶
40). He did not perform or order any follow-up tests. (Id.)
*2 At approximately 2:00 a.m. on January 29, 2013,
Decedent again complained of chest pains, informing Officer
Kevin Grant (“Grant”) that he was feeling discomfort in
his chest. (Id. ¶ 41). Twelve minutes later, Decedent was
taken to the Booking Nursing Station where a simple health
assessment was performed by Boggi, a WCJ nurse. (Id. ¶
42). The assessment revealed that Decedent had abnormally
high blood pressure and a very low pulse rate. (Id.) Between
approximately 2:12 a.m. and 2:37 a.m., Boggi did not
place Decedent on a heart monitor, did not provide him
with oxygen, an intravenous line, or nitroglycerin, did not
consider a differential diagnosis, and did not call Empress
for transportation to Westchester Medical Center (“WMC”).
(Id. ¶ 44.) At approximately 2:37 a.m., Boggi called Ulloa to
inform him of the findings of the assessment. (Id. ¶ 45.) Boggi
and Ulloa discussed that Decedent had experienced the same
chest discomfort a few nights prior. (Id.) During the telephone
call, Ulloa instructed Boggi to provide Decedent with Zantac
and Mylanta to treat indigestion. (Id. ¶ 46.)
At approximately 3:00 a.m., Decedent was sent to the clinic
to receive these medications. (Id. ¶ 47). He was squealing
in pain and said to Smith, another nurse at WCJ, that he did
not want to die. (Id.) At approximately 3:24 a.m., Decedent
was transported to the booking area of WCJ, where he was
monitored and observed by Boggi. (Id. ¶ 48.) After Boggi and
Smith determined that Decedent was well enough to return to
his cell, he was sent back to his cell at approximately 4:16
a.m. (Id. ¶ 49.) Nine minutes later, Boggi, Smith, and Jordan,
also a nurse at WCJ, responded to a “Signal 3” alert and
discovered Decedent lying on the floor of the hallway after
having collapsed. (Id. ¶ 50.) Decedent was non-verbal and
dazed at this time, (id.), and Boggi characterized his low pulse
readings as “not good,” (id. ¶ 51 (internal quotation marks
omitted)). Smith told Decedent to get up and attempted to pull
him up by his arm several times. (Id. ¶ 52.) Decedent was
eventually able to lift himself up into a wheelchair, after which
Smith accused Decedent of trickery and expressed doubt that
he had a serious medical concern. (Id.) She stated, “I've been
doing this too long to be fooled,” “that's the oldest trick in
corrections, he's not going to the clinic, he's going to his cell,”
and “that's the oldest trick in the book.” (Id.) At approximately
4:30 a.m., Smith transported Decedent to his cell, (id. ¶ 53),
where he was moaning in pain, (id. ¶ 54).
When Decedent became unresponsive at around 5:00 a.m.,
Grant called Smith to inform her of Decedent's current
condition. (Id. ¶ 55.) At approximately 5:05 a.m., Smith
arrived at Decedent's cell and observed that he was still
unresponsive. (Id. ¶ 56.) She then entered his cell, provided
some degree of medical treatment, and ordered that another
“Signal 3” alert be announced. (Id.) At approximately 5:09
a.m., Jordan arrived at Decedent's cell to assist Smith. (Id. ¶
57.) Smith called Ulloa, who was not present at WCJ, to alert
him that Decedent was unconscious. (Id.)
At approximately 5:12 a.m., Smith instructed Captain Francis
Delgrosso (“Delgrosso”) to call 911. (Id. ¶ 58.) Three minutes
later, Empress dispatched an ambulance from its station
in Yonkers, located 11 miles from WCJ. (Id. ¶ 59.) At
approximately 5:16 a.m., Boggi arrived at Decedent's cell
to provide medical treatment to Decedent alongside Smith
and Jordan. (Id. ¶ 60.) At 5:38 a.m., Castro and EMS John
Doe, emergency medical service providers employed by
Empress, arrived at WCJ and unsuccessfully attempted to
have Decedent regain consciousness. (Id. ¶ 61.) Thereafter,
Empress transported Decedent to WMC, where medical staff
unsuccessfully attempted to have him regain consciousness.
(Id. ¶ 62.) Decedent was declared dead at 6:16 a.m. (Id.)
The autopsy listed his cause of death as stenosing coronary
arteriosclerosis. (Id. ¶ 65.)
In the evening of January 29, Smith called Boggi to discuss
the events surrounding Decedent's death and made clear that
the nurses needed to “stick together.” (Id. ¶ 63.) When Smith
again called Boggi later that evening, he did not answer her
calls. (Id.)
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B. Procedural Background
*3 Plaintiff commenced the instant Action on April 28,
2014, (Dkt. No. 1), and filed her Amended Complaint on
July 25, 2014, (Dkt. No. 31). 1 Plaintiff then filed her Second
Amended Complaint on December 8, 2014. (Dkt. No. 53.)
Pursuant to a Scheduling Order adopted by the Court on
February 26, 2015, (Dkt. No. 57), Westchester Defendants
submitted their Motion To Dismiss and supporting papers
on April 17, 2015, (Dkt. Nos. 63–65.) That same day,
Empress Defendants submitted their own Motion To Dismiss
and supporting papers, which included a Verified Answer
to Plaintiff's Second Amended Complaint. (Dkt. Nos. 66–
68.) Plaintiff filed her opposition papers to Westchester
Defendants' Motion on June 12, 2015, (Dkt. Nos. 82–83),
and her opposition papers to Empress Defendants' Motion on
June 30, 2015, (Dkt. Nos. 89–90). Westchester Defendants
submitted their reply on July 2, 2015, (Dkt. No. 92), and
Empress Defendants submitted their reply on July 9, 2015,
(Dkt. No. 98). The Court denied Plaintiff's application for
leave to file a sur-reply in opposition to the Motions. (Dkt.
No. 97.)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does
not need detailed factual allegations” to survive a motion to
dismiss, “a plaintiff's obligation to provide the 'grounds' of
his [or her] 'entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alterations, citations, and internal
quotation marks omitted). 2 Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (internal quotation marks and alterations
omitted). Rather, a complaint's “[f]actual allegations must be
enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Although “once a claim has been
stated adequately, it may be supported by showing any set
of facts consistent with the allegations in the complaint,”
id. at 563, and a plaintiff must allege “only enough facts to
state a claim to relief that is plausible on its face,” id. at
570, if a plaintiff has not “nudged [her] claim[ ] across the
line from conceivable to plausible, the[ ] complaint must be
dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining
whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged—but it has not 'show[n]'—'that the pleader is entitled
to relief.'” (second alteration in original) (citation omitted)
(quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks
a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
*4 In addition, “when ruling on a defendant's motion
to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam); see also Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the
sufficiency of a complaint we accept as true all factual
allegations ....” (internal quotation marks omitted)); Aegis Ins.
Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d
Cir. 2013) (“In reviewing a dismissal pursuant to Rule 12(b)
(6), we ... accept all factual allegations in the complaint as
true ....” (alterations and internal quotation marks omitted)).
Further, “[f]or the purpose of resolving [a] motion to dismiss,
the [c]ourt ... draw[s] all reasonable inferences in favor of the
plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d
302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l
PLC, 699 F.3d 141, 145 (2d Cir. 2012)).
Lastly, “[i]n ruling on a 12(b)(6) motion, ... a court may
consider the complaint[,] ... any written instrument attached to
the complaint as an exhibit[,] or any statements or documents
incorporated in it by reference,” as well as “matters of
which judicial notice may be taken, and documents either in
plaintiffs' possession or of which plaintiffs had knowledge
and relied on in bringing suit.” Kalyanaram v. Am. Ass'n of
Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44
n.1 (2d Cir. 2014) (alterations and internal quotation marks
omitted); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199
F.3d 99, 107 (2d Cir. 1999) (“In adjudicating a Rule 12(b)
(6) motion, a district court must confine its consideration
to facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint
by reference, and to matters of which judicial notice may be
taken.” (internal quotation marks omitted)).
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B. Deliberate Indifference Claims
Plaintiff alleges that “on January 29, 2013 [Decedent]
presented a severe and urgent medical need that posed a
sufficiently serious risk of death that was not treated with
adequate medical care by ... Ulloa, Boggi, Smith, Jordan,
Castro[,] and EMS John Doe.” (SAC ¶ 77.) According to
the Second Amended Complaint, these Defendants “knew of
and recklessly disregarded a substantial risk of serious harm
to [Decedent's] health and safety despite obvious indications
that he was suffering from a heart attack.” (Id. ¶ 78.)
1. Applicable Law
“The Eighth Amendment forbids deliberate indifference
to serious medical needs of prisoners.” Spavone v. N.Y.
State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir.
2013) (internal quotation marks omitted). “There are two
elements to a claim of deliberate indifference to a serious
medical condition.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d
Cir. 2009). “The first requirement is objective: the alleged
deprivation of adequate medical care must be sufficiently
serious.” Spavone, 719 F.3d at 138 (internal quotation marks
omitted). Under this objective requirement, a court must
inquire first, “whether the prisoner was actually deprived of
adequate medical care,” and second, “whether the inadequacy
in medical care is sufficiently serious.” Salahuddin v. Goord,
467 F.3d 263, 279–80 (2d Cir. 2006). The latter requires the
Court “to examine how the offending conduct is inadequate
and what harm, if any, the inadequacy has caused or will
likely cause the prisoner.” Id. at 280. As part of this objective
element, “the inmate must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious
damage to his health.” Walker v. Schult, 717 F.3d 119, 125
(2d Cir. 2013). “There is no settled, precise metric to guide
a court in its estimation of the seriousness of a prisoner's
medical condition.” Brock v. Wright, 315 F.3d 158, 162 (2d
Cir. 2003). Nevertheless, the Second Circuit has presented
“a non-exhaustive list” of factors to consider: “(1) whether
a reasonable doctor or patient would perceive the medical
need in question as ‘important and worthy of comment or
treatment,’ (2) whether the medical condition significantly
affects daily activities, and (3) ‘the existence of chronic and
substantial pain.’ ” Id.; see also Morales v. Fischer, 46 F.
Supp. 3d 239, 247 (W.D.N.Y. 2014) (same).
*5 “The second requirement is subjective: the charged
officials must be subjectively reckless in their denial of
medical care.” Spavone, 719 F.3d at 138. Here, the inquiry is
whether defendants “knew of and disregarded an excessive
risk to [a plaintiff's] health or safety” while “both aware
of facts from which the inference could be drawn that a
substantial risk of serious harm existed, and also drew the
inference.” Caiozzo, 581 F.3d at 72 (alterations and internal
quotation marks omitted); see also Farmer v. Brennan, 511
U.S. 825, 837 (1994) (“[T]he official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he [or she]
must also draw the inference.”). “Deliberate indifference is
a mental state equivalent to subjective recklessness,” and it
“requires that the charged official act or fail to act while
actually aware of a substantial risk that serious inmate harm
will result.” Nielsen, 746 F.3d at 63 (internal quotation
marks omitted); see also Gladden v. City of N.Y., No. 12-
CV-7822, 2013 WL 4647193, at *2 (S.D.N.Y. Aug. 29, 2013)
(“To meet the subjective element, the plaintiff must show
that the defendant acted with more than mere negligence,
and instead knew of and disregarded an excessive risk to
inmate health or safety.” (internal quotation marks omitted)).
In contrast, “mere medical malpractice is not tantamount
to deliberate indifference,” unless “the malpractice involves
culpable recklessness, i.e., ... a conscious disregard of a
substantial risk of serious harm.” Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998) (internal quotation marks
omitted). Moreover, “mere disagreement over the proper
treatment does not create a constitutional claim,” and “so long
as the treatment given is adequate, the fact that a prisoner
might prefer a different treatment does not give rise to an
Eighth Amendment violation.” Id.; see also Crique v. Magill,
No. 12-CV-3345, 2013 WL 3783735, at *3 (S.D.N.Y. July
9, 2013) (“The mere fact that an inmate feels that he did not
receive adequate attention ... does not constitute deliberate
indifference.”).
2. Analysis
The first question, then, is whether Decedent's condition was
sufficiently serious under the objective prong of the deliberate
indifference standard. Accepting Plaintiff's allegations as
true, this Court concludes that it was.
“[S]evere chest pain, a symptom consistent with a heart
attack, is a serious medical condition under the objective
prong of the Eighth Amendment's deliberate indifference
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standard.” Mata v. Saiz, 427 F.3d 745, 754 (10th Cir.
2005); see also Flemming v. Velardi, No. 02-CV-4113,
2003 WL 21756108, at *2 (S.D.N.Y. July 30, 2003)
(recognizing that “a severe heart condition can be sufficiently
serious” (internal quotation marks omitted)). 3 While chest
pains alone generally do not constitute a sufficiently serious
medical condition for purposes of a deliberate indifference
claim, see, e.g., Hutchinson v. N.Y. State Corr. Officers, No.
02-CV-2407, 2003 WL 22056997, at *5 (S.D.N.Y. Sept. 4,
2003) (holding the plaintiffs' allegation “that [the decedent]
was experiencing 'chest pains' ... does not constitute a
sufficiently serious condition” (citation omitted)); Flemming,
2003 WL 21756108, at *2 (finding mere allegations of “chest
pains” and “discomfort” insufficient to trigger an Eighth
Amendment claim (internal quotation marks omitted)), the
Second Amended Complaint alleges that on January 29
Plaintiff suffered not only chest pains, but also “abnormally
high blood pressure” and “a very low pulse rate,” (SAC ¶ 42).
This combination of symptoms, along with the allegations
of substantial pain, (see, e.g., id. ¶ 47 (alleging Decedent
“was squealing in pain”)), establishes Decedent's medical
condition as sufficiently serious under the objective prong,
see Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000)
(finding the objective prong satisfied by “evidence that [an
inmate] suffered from severe chest pain which he reasonabl[y]
believed was caused by a heart attack”); Escobar v. Reid,
668 F. Supp. 2d 1260, 1310 (D. Colo. 2009) (finding the
“[p]laintiff's allegations that he suffered severe chest pains
over the period of several hours [were] sufficient to establish
that his medical condition was objectively sufficiently
serious”); Adams v. Franklin, 111 F. Supp. 2d 1255, 1270
(M.D. Ala. 2000) (finding the “[p]laintiff's medical needs
were sufficiently serious” based on his allegations “that he
was suffering from chest pains and shortness of breath”);
Mandala v. Coughlin, 920 F. Supp. 342, 353 (E.D.N.Y. 1996)
(noting that “ignoring a prisoner's complaints of chest pains
where the prisoner later died of a heart attack” has been found
to constitute a serious medical need).
*6 Turing to the subjective prong, the Court next must
determine whether Defendants were deliberately indifferent
to that serious medical need. While unable to state a claim
against either Ulloa or Castro, Plaintiff has pled sufficient
facts suggesting Boggi, Smith, and Jordan acted with the
requisite mental culpability.
a. Ulloa, Boggi, Smith, and Jordan
The Second Amended Complaint asserts that Ulloa, Boggi,
Smith, and Jordan were deliberately indifferent in “denying
[Decedent] lifesaving medical treatment and wheeling him to
his cell to die.” (SAC ¶ 79.) Specifically, Plaintiff alleges that
Decedent (i) was “denied access to a heart monitor, oxygen,
intravenous fluids, nitroglycerin, a physical examination from
a doctor, and emergency medical services from third party
medical professionals” on the morning of January 29, (Pl.’s
Opp'n to Westchester Defs.' Mot. to Dismiss (“Pl.’s Opp'n
to Westchester Defs.”) 12–13 (Dkt. No. 83) (citing SAC
¶¶ 42, 44–45)), (ii) “was recklessly discharged from the
care of ... [D]efendants and sent back to his cell,” (id. at
13 (citing SAC ¶ 49)), and (iii) “was left alone in his cell
with absolutely no medical care ... as he was moaning and
agonizing in pain,” (id. at 13–14 (citing SAC ¶ 49)). The Court
addresses these allegations in chronological order, ultimately
concluding Plaintiff has plausibly pled deliberate indifference
on the part Boggi, Smith, and Jordan. As to Ulloa, however,
the Second Amended Complaint fails to satisfy the subjective
prong.
First, Plaintiff alleges that a denial of medical care occurred
on January 29, between 2:12 a.m. and 2:37 a.m., when
Boggi performed “a simple health assessment” of Decedent
in response to his complaint of chest pains. (SAC ¶ 42.) The
Second Amended Complaint faults Boggi for failing to place
Decedent on a heart monitor, provide him with nitroglycerin
or oxygen, “consider a differential diagnosis that would
include chest pain secondary to an acute obstructive coronary
artery syndrome,” or call an ambulance. (Id. ¶ 44.) While
Plaintiff has not pled that Boggi even had authority to make
such medical decisions, see Jacoby v. Cty. of Oneida, No.
05-CV-1254, 2009 WL 2971537, at *4 (N.D.N.Y. Sept. 11,
2009) (dismissing deliberate indifference claim against a
nurse who “lacked the authority to make medical decisions
directly related to [the] [p]laintiff”), the facts nonetheless fail
to suggest that at this point Boggi was “actually aware of
a substantial risk” to Decedent's health, Nielsen, 746 F.3d
at 63 (emphasis added) (internal quotation marks omitted).
That Decedent had previously complained of chest pains
on January 16, (see SAC ¶ 39), on its own, does not give
rise to an inference that Defendants had prior knowledge of
an excessive risk to his health or safety, cf. Kidkarndee v.
Koenigsmann, No. 12-CV-502, 2014 WL 1239319, at *15
(N.D.N.Y. Mar. 25, 2014) (dismissing deliberate indifference
where the plaintiff complained of chest pains for a third time
but “neither [prior] hospital visitation produced diagnoses
of a heart attack”). Plaintiff alleges no other symptoms
accompanying the original “complaints of chest pains” on
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January 16 that would suggest more than an isolated incident
of discomfort, (see SAC ¶ 39), nor does she allege that
Decedent continued to complain after he received medical
attention on that occasion or during the two weeks leading up
to his second complaint of chest discomfort, (see generally
id. ¶¶ 39–41). Furthermore, there is no allegation that
Decedent had a diagnosed heart condition. While the Second
Amended Complaint notes that no tests apart from a chest
X-ray were performed on January 16 and no follow-up tests
were performed after Ulloa received the results of the X-
ray, (see id. ¶¶ 39–40), Plaintiff's disagreements with the
diagnostic techniques and treatment by medical personnel
cannot form the basis for a § 1983 claim. These are precisely
the sorts of “issues [that] implicate medical judgments and,
at worst, negligence amounting to medical malpractice, but
not the Eighth Amendment.” Whitfield v. O'Connell, No. 09-
CV-1925, 2010 WL 1010060, at *7 (S.D.N.Y. Mar. 18, 2010)
(internal quotation marks omitted), aff'd, 402 F. App'x 563 (2d
Cir. 2010); see also Jones v. Vives, 523 F. App'x 48, 50 (2d
Cir. 2013) (finding a doctor's treatment of an inmate's broken
hand with Motrin and failure to order X-ray until several days
later was an issue of medical judgment that could not support
a § 1983 claim). Indeed, Plaintiff at no point even alleges that
the results of the X-ray warranted any follow-up by medical
personnel.
*7 Notably, the Second Amended Complaint is devoid of
any allegation that Decedent knew he had a heart condition,
that he had been previously diagnosed with a heart condition,
or that he had ever reported a heart condition to WCJ medical
personnel prior to these incidents. 4 Although awareness may
be proven “from the very fact that the risk was obvious,”
Farmer, 511 U.S. at 842; see also McMillian v. Cty. of
Onondaga, No. 13-CV-1124, 2015 WL 1403459, at *19
(N.D.N.Y. Mar. 26, 2015) (“A plaintiff ... must show that
the official was aware of facts from which one could
infer that a substantial risk of serious harm exists.”), it
cannot be said such a risk was obvious based only on
Decedent's “feeling discomfort in his chest,” (SAC ¶ 41),
accompanied by high blood pressure and a low pulse rate,
(id. ¶ 42), but nothing more, compare McCoy v. Goord,
255 F. Supp. 2d 233, 260 (S.D.N.Y. 2003) (concluding that
a plaintiff who claimed prison officials failed to treat him
for chest pains did not state an Eighth Amendment claim
of deliberate indifference), with Buffaloe v. Fein, No. 12-
CV-9469, 2013 WL 3471060, at *1–2 (S.D.N.Y. July 11,
2013) (report and recommendation) (finding both prongs
of the deliberate indifference standard satisfied where a
prison official allegedly “denied [the plaintiff] access to a
cardiologist despite being aware of his worsening cardiac
condition” where the plaintiff had experienced complications
from heart surgery he underwent prior to his placement in that
prison). Thus, that Boggi, Smith, or Jordan presumably knew
of the earlier complaint of chest pains does not give rise to
the inference that Defendants knew, prior to January 29, of an
“excessive risk” to Decedent's health, see Farmer, 511 U.S. at
837; Brown v. Jeanty, No. 03-CV-8712, 2009 WL 6065754,
at *9 (S.D.N.Y. July 23, 2009) (finding “the severe nature of
[the plaintiff's] injuries was not apparent enough to provide
notice of a substantial risk of serious harm”), adopted by
2010 WL 1047651 (S.D.N.Y. Mar. 22, 2010), or that specific
medical treatment, such as administration of nitroglycerin
or oxygen, was deliberately or recklessly withheld at this
point, see Washington v. Westchester Cty. Dep't of Corr.,
No. 13-CV-5322, 2014 WL 1778410, at *7 (S.D.N.Y. Apr.
25, 2014) (finding the plaintiff “failed to plead deliberate
indifference” by “fail[ing] to allege any facts demonstrating
that [the] [d]efendants deliberately withheld his medication”);
Baskerville v. Blot, 224 F. Supp. 2d 723, 735–36 (S.D.N.Y.
2002) (“[B]ecause [the plaintiff's] assertions do not show that
[the defendant] acted intentionally to withhold from him his
prescribed medication ..., he has failed to state an Eighth
Amendment claim of deliberate indifference to a serious
medical need.”); Joyner v. Greiner, 195 F. Supp. 2d 500, 503
(S.D.N.Y. 2002) (explaining that the subjective prong requires
“some evidence that the health care providers knowingly and
intentionally rendered improper treatment” (citing Farmer,
511 U.S. at 837)).
Without any prior knowledge, the complained-of decisions by
Boggi prior to 4:25 a.m. are not “instances of ... Decedent's
being deprived of adequate medical care,” (Pl.’s Opp'n to
Westchester Defs. 12), but rather the sort of disputes that
do not amount to constitutional violations, see Whitfield,
2010 WL 1010060, at *7 (“Disagreements over medications,
diagnostic techniques, forms of treatment, or the need for
specialists[,] or the timing of their intervention, are not
adequate grounds for a [§] 1983 claim.” (alterations and
internal quotation marks omitted)); Burke v. Pillai, No. 14-
CV-1680, 2015 WL 1565413, at *6 (D. Conn. Apr. 8, 2015)
(“[A]lthough the provision of medical care by prison officials
is not discretionary, the type and amount of medical treatment
is discretionary.” (emphasis added) (internal quotation marks
omitted)). Plaintiff's insistence that Defendants should have
conducted further tests at this early stage, at best, states a
claim for medical negligence, which is not actionable under
§ 1983. See, e.g., Estelle v. Gamble, 429 U.S. 97, 107 (1976)
(“[T]he question whether an X-ray or additional diagnostic
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techniques or forms of treatment is indicated is a classic
example of a matter for medical judgment. A medical decision
not to order an X-ray, or like measures, does not represent
cruel and unusual punishment.”); O'Diah v. Mawhir, No.
08-CV-322, 2012 WL 4482579, at *9 (N.D.N.Y. Sept. 5,
2012) (finding no Eighth Amendment violation where the
plaintiff alleged that “different or additional tests should have
been run or medication prescribed”), adopted by 2012 WL
4471183 (N.D.N.Y. Sept. 26, 2012); Joyner, 195 F. Supp. 2d
at 504–05 (finding a doctor's refusal to order an MRI not
actionable under the Eighth Amendment). Indeed, “treatment
of a prisoner's medical condition generally defeats a claim of
deliberate indifference.” Peterson v. Miller, No. 04-CV-797,
2007 WL 2071743, at *10 (N.D.N.Y. July 13, 2007) (internal
quotation marks omitted); see also Johnson v. Wright, 234 F.
Supp. 2d 352, 361 (S.D.N.Y. 2002) (“Generally, where the
dispute concerns not the absence of help, but the choice of
a certain course of treatment[,] a court will not second guess
the [medical personnel].” (alterations and internal quotation
marks omitted)). Between 2:12 a.m. and 2:37 a.m., Boggi
not only performed a health assessment of Decedent but also
called Ulloa within minutes of noting Decedent's irregular
blood pressure and pulse, so as to advise him of the findings
of that assessment and, presumably, to discuss the next
steps in Decedent's treatment. (SAC ¶¶ 45–46.) There is
thus no outright denial of care alleged here, and nor are
there accompanying facts from which it can be inferred that
Boggi knew of and disregarded a substantial risk of serious
harm to Decedent. Notwithstanding the tragic loss of life
that ultimately resulted, it bears noting that the benefit of
hindsight cannot support a claim of deliberate indifference
to a serious medical need that was unknown at the time of
treatment. See Figueroa v. Semple, No. 12-CV-982, 2015
WL 3444319, at *5 (D. Conn. May 28, 2015) (“Although
the injuries suffered by the plaintiff provide the [c]ourt with
the benefit of hindsight, they do not show that, at the time
of the incident in question, the defendants disregarded an
excessive risk to the plaintiff's safety.”); Wise v. Ranck, No.
07-CV-1899, 2008 WL 4861974, at *3 (M.D. Pa. Nov. 6,
2008) (“[D]eliberate indifference must be viewed from the
prison official's perspective at the time in question, not with
hindsight's perfect vision.”), reconsideration denied, 2009
WL 1458106 (May 26, 2009).
*8 Plaintiff's next allegation of deliberate indifference rests
upon Ulloa's misdiagnosis of indigestion and prescribed
course of treatment between 2:37 a.m. and 3:00 a.m. (See
SAC ¶¶ 45–47.) However, a “complaint that a physician has
been negligent in diagnosing or treating a [prisoner's] medical
condition does not state a valid claim of medical mistreatment
under the Eighth Amendment.” Estelle, 429 U.S. at 106; see
also Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003)
(“Because the Eighth Amendment is not a vehicle for bringing
medical malpractice claims, nor a substitute for state tort law,
not every lapse in prison medical care will rise to the level of
a constitutional violation.”); Harris v. Westchester Cty. Med.
Ctr., No. 08-CV-1128, 2011 WL 2637429, at *3 (S.D.N.Y.
July 6, 2011) (holding that allegations of misdiagnosis,
“without more,” do not state a cause of action under the
Eighth Amendment). That is precisely the case in the instant
Action, where, according to Second Amended Complaint,
“Ulloa negligently instructed ... Boggi to provide [Decedent]
with Zantac and Mylanta for what was misdiagnosed as
indigestion.” (SAC ¶ 46 (emphasis added).) 5 This allegation
falls far short of the “culpable recklessness” required under
the deliberate indifference standard, Chance, 143 F.3d at
703; see also Hernandez v. Keane, 341 F.3d 137, 144
(2d Cir. 2003) (“Deliberate indifference is a state of mind
that is the equivalent of criminal recklessness.” (internal
quotation marks omitted)), whereby a complaint must allege
a defendant “act[ed] or fail[ed] to act while actually aware
of a substantial risk that serious inmate harm will result,”
Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 836–
37); see also Beaman v. Unger, 838 F. Supp. 2d 108, 110
(W.D.N.Y. 2011) (“The most that [the plaintiff's] allegations
show, however, is that the [defendants] misdiagnosed his
injuries, and failed to recognize the severity of those injuries.
Such allegations might conceivably show malpractice, but
they do not state an Eighth Amendment claim.” (citations
omitted)); Woodhull v. Cty. of Kent, No. 04-CV-203, 2006
WL 2228986, at *10 (W.D. Mich. Aug. 3, 2006) (rejecting
claim of deliberate indifference where the defendant possibly
committed malpractice in failing to recognize the severity
of an inmate's seizure condition that ultimately resulted
in his death); Thomas v. Wright, No. 99-CV-2071, 2002
WL 31309190, at *8–9 (N.D.N.Y. 2002) (holding that,
“[a]lthough they may have failed to diagnose or even detect
his cancer,” the defendants did not act with “deliberate
indifference” because they “ordered medical tests, prescribed
courses of treatments, and monitored his laboratory and
radiological reports”); Ortiz v. Makram, No. 96-CV-3285,
2000 WL 1876667, at *9 (S.D.N.Y. Dec. 21, 2000) (finding no
constitutional claim where the plaintiff alleged that medical
personnel misdiagnosed his kidney pain).
The Second Amended Complaint alleges that “[Decedent]
was then recklessly sent back to his cell at approximately
4:16 a.m.,” (SAC ¶ 49), having been “monitored and observed
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by ... Boggi” after he received the prescribed medication,
(id. ¶¶ 47–48). Plaintiff further asserts that Boggi and Smith
acted “with complete indifference to [Decedent's] needs” in
“determin[ing] that he was well enough to be sent back to
his cell.” (Id. ¶ 49.) The Court, however, need not accept
Plaintiff's legal conclusions as to Defendants' states of mind,
see Iqbal, 556 U.S. at 678 (reaffirming that “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions”); Crupar-
Weinmann v. Paris Baguette Am., Inc., 41 F. Supp. 3d 411, 414
(S.D.N.Y. 2014) (determining that the plaintiff's assertion as
to the defendant's recklessness “is merely a legal conclusion
and therefore must be disregarded”); Banks v. United States,
No. 10-CV-6613, 2011 WL 4100454, at *16 (S.D.N.Y.
Sept. 15, 2011) (“[p]utting aside [the] plaintiff's repeated
legal conclusions that various defendants were ‘negligent’
or demonstrated ‘deliberate indifference’ ”), adopted by
2011 WL 5454550 (S.D.N.Y. Nov. 9, 2011), and instead
focuses solely on the factual allegations contained in the
Second Amended Complaint. As alleged, “Decedent's chest
pains,” (SAC ¶ 49), even coupled with his low pulse and
high blood pressure, do not suggest Defendants were at this
time aware of a substantial risk of serious harm, let alone
that they knowingly disregarded such a risk, see Brown,
2009 WL 6065754, at *9 (“Without such notice [of the
severity of the inmate's injuries], [the defendant] could not
have acted with deliberate indifference”); McCoy, 255 F.
Supp. 2d at 260 (holding “that [the defendant] kept [the
plaintiff] waiting for twenty-five minutes and then sent him
back to his cell without treating his chest pains does not
amount to a constitutional deprivation” where the plaintiff
failed to allege, inter alia, “that [the defendant] subjectively
exhibited a deliberate indifference to his medical condition”).
“The [second] deliberate indifference prong sets a high bar,”
Bouknight v. Yee-Cheen Doung, No. 09-CV-5817, 2011 WL
2682103, at *5 (S.D.N.Y. July 8, 2011); see also Hot v. Carmel
Cent. Sch. Dist., 994 F. Supp. 225, 228 (S.D.N.Y. 1998) (“The
deliberate indifference standard is a high one.”), which the
facts alleged by Plaintiff have not yet reached.
*9 Lastly, Plaintiff alleges a complete denial of care between
4:25 a.m. and 5:00 a.m., (see SAC ¶¶ 50–54), after “Boggi,
Smith, and Jordan responded to a 'Signal 3' alert and found ...
Decedent lying on the floor of the hallway,” (id. ¶ 50).
At approximately 4:30 a.m., Smith “recklessly transported”
Decedent to his cell “instead of to a medical facility” and, in
doing so, “intentionally interfered” with his medical treatment
while Boggi and Jordan recklessly failed to “interven[e]
and ... make appropriate accommodations for ... Decedent to
urgently receive medical care at a medical facility.” (Id. ¶ 53.)
In alleging that “Boggi, Smith, and Jordan recklessly failed
to provide ... Decedent with any medical treatment,” (id.
¶ 54 (emphasis added)), the Second Amended Complaint
puts forth a plausible claim of deliberate indifference, see
Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y.
1984) (“Deliberate indifference, the second essential element,
is properly pleaded by allegations,” inter alia, “of 'complete
denial' of medical treatment ....”), aff'd, 762 F.2d 990 (2d
Cir. 1985); accord Hilton v. Wright, 928 F. Supp. 2d 530,
547 (N.D.N.Y. 2013) (“When the alleged deprivation is that
the defendant failed to provide any treatment for the medical
condition, 'courts examine whether the inmate's medical
condition is sufficiently serious.'” (emphasis in original)
(quoting Salahuddin, 467 F.3d at 280)).
By 4:25 a.m., Decedent's chest pains had persisted for
over two hours and apparently had not been relieved by
the prescribed medication. (See SAC ¶ 50 (alleging that
at approximately 4:25 a.m. “Decedent was non-verbal and
dazed” after “collapsing from feeling dizzy”).) To the
contrary, it seems clear that his condition had worsened
over the course of the morning, given that “he collapsed,
was dazed, [and] had low pulse readings that ... Boggi
characterized as ‘not good’ ....” (Id. ¶ 51.) Boggi, Smith,
and Jordan, however, took no “reasonable measures to abate
[the risk of serious harm],” Farmer, 511 U.S. at 847; see
also Johnson, 234 F. Supp. 2d at 360 (“Although federal
courts are reluctant to second guess medical judgments
and constitutionalize medical malpractice claims where the
prisoner has actually received medical treatment, deliberate
indifference will be found where the medical attention
rendered was so woefully inadequate as to amount to no
treatment at all.” (alterations and internal quotation marks
and citations omitted)); indeed, they did not provide him
with any care. 6 Despite the evident incorrectness of the
initial diagnosis, Boggi, Smith, and Jordan sent Decedent
back to his cell, leaving him “moaning and agonizing in
pain while he was having a fatal heart attack.” (SAC ¶
54.) See Baptiste v. Warden at Ottisville, FCI N.Y., No. 09-
CV-5523, 2010 WL 3185748, at *8 (S.D.N.Y. Aug. 11, 2010)
(finding the plaintiff's claims “sufficiently plausible to survive
a motion to dismiss” where he alleged that the defendant
doctor “watched [him] endure ‘pain and suffering [and]
loss of eyesight,’ instead of discontinuing the [prescribed
treatment] and performing additional tests to arrive at a
more conclusive diagnosis”); Candelaria v. Erickson, No. 01-
CV-8594, 2005 WL 1529566, at *6 (S.D.N.Y. June 28, 2005)
(holding that the plaintiff satisfied the subjective prong by
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alleging that the defendants were aware that a misdiagnosis
may have occurred but failed to take additional diagnostic
measures); cf. Harrison v. Barkley, 219 F.3d 132, 139 (2d
Cir. 2000) (“Consciously disregarding an inmate's legitimate
medical needs is not ‘mere medical malpractice.’ ” (quoting
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996))). It
was not until approximately 5:12 a.m., seven minutes after
the second “Signal 3” alert in response to Decedent's collapse,
that medical personnel took steps to provide any care, but
given Decedent's demise soon thereafter, those steps were too
late. (See SAC ¶ 58 (“[A]t approximately 5:12 a.m., 911 was
finally called ....”).) In alleging that Boggi, Smith, and Jordan
denied Decedent medical treatment between 4:25 a.m. and
5:00 a.m. in the face of his serious medical condition, Plaintiff
has plausibly pled that these three Defendants acted with a
sufficiently culpable state of mind for liability under § 1983.
*10 By contrast, the Second Amended Complaint reveals
that Ulloa was neither present at WCJ during this time period
nor updated about Decedent's status until approximately 5:09
a.m. (SAC ¶¶ 45, 57.) Plaintiff presents no factual allegations
suggesting that Ulloa knew, or had any reason to know, prior
to the call from Smith that he had misdiagnosed Decedent
more than two hours earlier and that Decedent's condition had
deteriorated over the course of the morning. There is thus no
basis from which to infer deliberate indifference on the part
of Ulloa.
In light of the foregoing analyses, the Court finds the
Second Amended Complaint states a viable claim of
deliberate indifference against Boggi, Smith, and Jordan.
Ulloa, however, is entitled to dismissal as to this cause of
action.
b. Castro
According to the Second Amended Complaint, Castro “knew
of and disregarded a substantial risk of serious harm to
[Decedent's] health and safety despite being informed that
he was suffering from a heart attack.” (SAC ¶ 80.) Plaintiff
further alleges that his “actions in responding to ... WCJ
from Yonkers ... instead of having an Empress ambulance on-
site ... show a deliberate indifference to ... Decedent's serious
medical needs.” (Id. ¶ 81.) However, these two bare assertions
are insufficient to state a claim for deliberate indifference
against Castro.
It is well established that “[c]onclusory allegations that
medical staff defendants were aware of a [prisoner's]
medical needs and failed to provide adequate care are
generally insufficient to state an Eighth Amendment claim
of inadequate medical care.” Flemming v. Smith, No. 11-
CV-804, 2014 WL 3698004, at *6 (N.D.N.Y. July 24, 2014);
see also Gumbs, 2012 WL 3705009, at *12 (“[C]onclusory
allegations that defendants were aware of [a] plaintiff's
medical needs ... but failed to respond are generally not
sufficient proof of [the] defendants' deliberate indifference
and cannot survive a Rule 12(b)(6) motion to dismiss.”);
Adekoya v. Holder, 751 F. Supp. 2d 688, 697 (S.D.N.Y.
2010) (finding conclusory allegations that the defendants
were aware of the plaintiff's medical needs and failed to
provide adequate care insufficient to defeat a motion to
dismiss); Evans v. Albany Cty. Corr. Facility, No. 05-
CV-1400, 2009 WL 1401645, at *9 (N.D.N.Y. May 14, 2009)
(noting that “a showing of deliberate indifference requires
more than just vague and conclusory allegations” (internal
quotation marks omitted)). Yet, the Second Amended
Complaint is entirely devoid of factual support for the above-
mentioned conclusions that Castro's conduct and state of
mind constituted deliberate indifference. (See SAC ¶¶ 80–81.)
Plaintiff at no point alleges that Castro, as an EMS responder,
engaged in any unnecessary or undue delay in responding to
the call from WCJ, nor does she allege that Castro rendered
any sort of improper treatment once he reached Decedent.
There is also no allegation that Castro had any authority with
which to direct the dispatching of EMS responders to various
destinations or anything to do with the placement of Empress
ambulances, that Castro was a “policymaker” at Empress,
or that Castro had actual or even constructive knowledge
as to the availability of Empress resources and/or personnel
stationed closer to WCJ than from where he responded. (See
generally id. ¶¶ 58–59, 61–62.)
In her opposition papers, Plaintiff asserts that “the subjective
test was met several times over as Castro was well aware of
the excessive risk to ... Decedent's health on the morning of
January 29.” (Pl.’s Opp'n to Empress Defs.' Mot. to Dismiss
(“Pl.’s Opp'n to Empress Defs.”) 12 (Dkt. No. 91).) This,
however, entirely disregards the remainder of that second
prong, which requires that an official not only know of an
excessive risk but also disregard that risk. See Gladden, 2013
WL 4647193, at *2. The Second Amended Complaint is
devoid of plausible allegations that Castro knowingly and
recklessly disregarded any risk to Decedent's health, even as
he allegedly knew Decedent was suffering a heart attack. (See
SAC ¶ 80.) Indeed, Plaintiff's only support for the issue of
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mental culpability is her conclusion that “the SAC properly
alleges that Castro knew of and recklessly disregarded a
substantial risk of serious harm to [Decedent's] health and
safety,” (Pl.'s Opp'n to Empress Defs. 11), which merely cites
to a bare assertion from the Second Amended Complaint, (see
SAC ¶ 78). This regurgitation of conclusory allegations is
insufficient to state a claim. See Morales, 46 F. Supp. 3d at 251
(holding that the “[p]laintiff's conclusory claims in opposition
do not demonstrate the requisite state of mind for deliberate
indifference”); cf. Hidalgo v. Kikendall, No. 08-CV-7536,
2009 WL 2176334, at *4 (S.D.N.Y. July 22, 2009) (granting
motion to dismiss where a defendant's “name only appears
twice in the complaint, in conclusory statements that [the
defendant] displayed deliberate indifference to [the plaintiff's]
medical needs”); Dove v. Fordham Univ., 56 F. Supp. 2d
330, 335 (S.D.N.Y. 1999) (“[W]here the complaint names a
defendant in the caption but contains no allegations indicating
how the defendant violated the law or injured the plaintiff, a
motion to dismiss the complaint in regard to that defendant
should be granted.”) (internal quotation marks omitted), aff'd
sub nom. Dove v. O'Hare, 26 F. 3d 354 (2d Cir. 2000).
*11 The Court, therefore, dismisses the deliberate
indifference cause of action as to Castro.
C. Monell Claims
According to the Second Amended Complaint, “the policies,
practices and customs of ... Westchester, CCS, NYCCS, and
Empress ... were inadequate in that there was a deliberate
indifference to the[ ] serious medical needs” of “WCJ
inmates and detainees.” (SAC ¶ 73.) Yet, for the reasons set
forth below, this cause of action brought under Monell v.
Department of Social Services of City of New York, 436 U.S.
658 (1978) fails to state a claim upon which relief can be
granted.
1. Applicable Law
A municipal defendant “cannot be held liable under § 1983 on
a respondeat superior theory.” Monell, 436 U.S. at 691 (italics
omitted); see also Jones v. Town of E. Haven, 691 F.3d 72,
80 (2d Cir. 2012) (reaffirming that “a municipality cannot be
held liable on a respondeat superior basis for the tort of its
employee” (italics omitted)). Rather, for a plaintiff to prevail
on a § 1983 claim against a municipal employer, she must
satisfy the requirements set forth in Monell and its progeny,
which adhere to the well-settled principle that “Congress did
not intend municipalities to be held liable [under § 1983]
unless action pursuant to official municipal policy of some
nature caused a constitutional tort.” Monell, 436 U.S. at
691; see also Hunter v. City of N.Y., 35 F. Supp. 3d 310,
322 (E.D.N.Y. 2014) (“In order to sustain a claim for relief
pursuant to § 1983 against a municipal defendant, a plaintiff
must show the existence of an official policy or custom
that caused injury and a direct causal connection between
that policy or custom and the deprivation of a constitutional
right.”).
A plaintiff may satisfy the “policy or custom” requirement by
alleging one of the following:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
Brandon v. City of N.Y., 705 F. Supp. 2d 261, 276–77
(S.D.N.Y. 2010) (citations omitted). In addition, a plaintiff
must establish a causal link between the municipality's policy,
custom, or practice and the alleged constitutional injury. See
Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)
(holding that “a plaintiff must demonstrate that, through
its deliberate conduct, the municipality was the moving
force behind the alleged injury” (internal quotation marks
omitted)); Tieman v. City of Newburgh, No. 13-CV-4178,
2015 WL 1379652, at *12 (S.D.N.Y. Mar. 26, 2015) (“[T]here
must be a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation” (internal
quotation marks omitted)); Johnson v. City of N.Y., No. 06-
CV-9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011)
(noting that “a plaintiff must establish a causal connection
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—an affirmative link—between the [municipal] policy and
the deprivation of his [or her] constitutional rights” (internal
quotation marks omitted)).
*12 “Normally, a custom or policy cannot be shown by
pointing to a single instance of unconstitutional conduct
by a mere employee of the municipality.” Tieman, 2015
WL 1379652, at *12 (alterations and internal quotation
marks omitted); see also City of Okla. City v. Tuttle, 471
U.S. 808, 823–24 (1985) (plurality opinion) (“Proof of a
single incident of unconstitutional activity is not sufficient
to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing,
unconstitutional municipal policy ... [that] can be attributed
to a municipal policymaker.”); Brogdon v. City of New
Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A
single incident by itself is generally insufficient to establish
the affirmative link between the municipal policy or custom
and the alleged unconstitutional violation.”). There are at least
two circumstances that courts have expressly identified as
constituting a municipal policy: “where there is an officially
promulgated policy as that term is generally understood,” and
“where a single act is taken by a municipal employee who, as
a matter of [s]tate law, has final policymaking authority in the
area in which the action was taken.” Newton v. City of N.Y.,
566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008) (footnote omitted).
“A municipal ‘custom,’ on the other hand, need not receive
formal approval by the appropriate decisionmaker,” id., but
nonetheless “may fairly subject a municipality to liability on
the theory that the relevant practice is so widespread as to
have the force of law,” Kucharczyk v. Westchester Cty., 95 F.
Supp. 3d 529, 539 (S.D.N.Y. 2015) (internal quotation marks
omitted); see also Tieman, 2015 WL 1379652, at *16 (“To
prevail on this theory of municipal liability, ... a plaintiff
must prove that the custom at issue is permanent and well-
settled.”).
2. Analysis
The Second Amended Complaint contends that “[t]he actions,
omissions, and decisions made by Defendants ... regarding
the provision of comprehensive health care to WCJ inmates
and detainees constitute their policies, practices[,] and
customs.” (SAC ¶ 69.) Notwithstanding this broad assertion,
Plaintiff's allegations fail to plausibly allege a Monell claim
against Defendants. 7
a. Westchester, CCS, and NYCCS
The Second Amended Complaint alleges three theories of
liability that seek to demonstrate a “policy and custom” of
Westchester, CCS, and NYCCS for purposes of Monell: (i) a
formal policy of understaffing; (ii) a “practice of dispatching
ambulances” from Yonkers, rather than from an on-site
facility; and (iii) a pattern of providing inadequate health care
to WCJ inmates and detainees. (SAC ¶¶ 71–72, 74.) 8
*13 As to the first, the Second Amended Complaint alleges
a formal policy of Westchester, CCS, and NYCCS “to not
have a physician present at ... WCJ at all times ....” (Id. ¶ 72.)
Plaintiff specifically complains that the Westchester-NYCCS
Contract required “only two physicians [be] provided to
WCJ inmates and detainees for 40[-]hour shifts.” (Id. ¶
33.) 9 Yet in doing so, Plaintiff provides no constitutional
benchmark against which to measure the staffing levels under
that contractual agreement. The Court is thus left to rely on the
general consensus that an allegation of understaffing, without
more, does not amount to a constitutional violation. See, e.g.,
McDowell v. Brown, 392 F.3d 1283, 1291 (11th Cir. 2004)
(affirming that a plaintiff “cannot rely on a generalized policy
of understaffing” to sustain a § 1983 claim); Free v. Granger,
887 F.2d 1552, 1556 (11th Cir. 1989) (“It is not sufficient,
however, to point to the absence of a medical doctor, or
of a round-the-clock nurse, and decry the staffing policy as
unconstitutional.”). The Second Amended Complaint fails to
provide that something more.
Plaintiff presents no allegations that Westchester, NYCCS,
and CCS had “actual or constructive notice that the [staffing
policy] is substantially certain to result in the violation of
[inmates'] constitutional rights.” Alvarado, 22 F. Supp. 3d
at 218 (internal quotation marks omitted). Indeed, there
is no allegation of a constitutional deprivation or of a
resulting injury to accompany Plaintiff's complaint that Ulloa
“was not present at ... WCJ” during the early morning
hours of January 29. (SAC ¶ 45.) Just as Decedent “is not
entitled to the treatment of his choice, it follows that he
is not entitled to receive treatment from a person of his
choice.” Scarbrough v. Thompson, No. 10-CV-901, 2012
WL 7761439, at *12 (N.D.N.Y. Dec. 12, 2012), adopted
by 2013 WL 1100680 (N.D.N.Y. Mar. 15, 2013). Moreover,
the Second Amended Complaint does not demonstrate
a “direct causal connection” between the constitutional
deprivation suffered by Decedent and this purported policy
of understaffing. See Hunter, 35 F. Supp. 3d at 322. Apart
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from the conclusion that the “endorsed” practice “to have
no doctor on staff on the morning of January 29 ... caused
the constitutional deprivations that were responsible for ...
[D]ecedent's death,” (Pl.’s Opp'n to Westchester Defs. 22),
Plaintiff offers no factual allegations to establish that requisite
link.
Furthermore, Plaintiff fails to allege that the supposed
understaffing at WCJ caused violations of any other inmates'
constitutional rights. See Clouthier v. Cty. of Contra Costa,
591 F.3d 1232, 1253 (9th Cir. 2010) (rejecting the plaintiff's
claim where “there was no evidence that this alleged
understaffing problem led to repeated violations of inmates'
constitutional rights” (citing City of Canton v. Harris, 489
U.S. 378, 398 (1989) (O'Connor, J., concurring in part and
dissenting in part))). The Second Amended Complaint points
to no other occasion when Westchester Defendants' staffing
policy “contributed to or exacerbated an inmate's medical
condition.” McDowell, 392 F.3d at 1290−91 (“While [the
plaintiff's] case is tragic, he cannot point to another occasion
when the [j]ail's understaffing, and resulting inability
to transport, contributed to or exacerbated an inmate's
medical condition.”). “Simply put, this isolated incident,
however unfortunate, does not demonstrate evidence of
[Westchester Defendants'] ‘persistent’ or ‘widespread’ policy
of understaffing the [j]ail so as to delay the transfer of
inmates.” Id. Even presuming that “the lack of physician
access for WCJ inmates and detainees” deprived Decedent
of his constitutional rights on January 29, 2013, (SAC
¶ 74), “[a] Monell claim cannot go forward based on
conclusory claims regarding a single incident without more
evidence that connects this incident to a municipal policy or
practice,” Pittman v. City of N.Y., No. 14-CV-4140, 2014 WL
7399308, at *7 (E.D.N.Y. Dec. 30, 2014); see also Batista
v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“Absent
a showing of a causal link between an official policy or
custom and the plaintiffs' injury, Monell prohibits a finding of
liability against the [c]ity.”); Gordon v. City of N.Y., No. 10-
CV-5148, 2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29, 2012)
(dismissing a Monell claim where the plaintiff's “allegation is
unsupported by anything other than the facts of what occurred
in his particular case”). This first theory of liability thus
cannot sustain a Monell claim against Westchester, CCS, and
NYCCS.
*14 The Second Amended Complaint additionally alleges
“a policy of said Defendants to refrain from transporting
inmates with serious medical needs to ... WMC in a
timely fashion.” (SAC ¶ 72.) Specifically, Plaintiff complains
that, pursuant to “the agreement between ... Westchester,
CCS, NYCCS, and Empress,” (id. ¶ 34), “the placement
of the closest ambulance available to WCJ inmates and
detainees was [11] miles away in Yonkers,” (id.). Yet, in
noting that Delgrosso called 911 the morning of January
29, 2013, (see id. ¶ 58), the Second Amended Complaint
indicates the Empress ambulance that arrived at WCJ that
morning had been dispatched by 911, not pursuant to any
such agreement regarding inmate transport, (cf. Westchester-
NYCCS Contract, at Schedule A, 15 (contracting for
the “transporting of inmates for non-emergency health
services” (emphasis added))). It follows that any alleged harm
caused to Decedent by the ambulance's response time cannot
be linked to a contractual provision evidencing any municipal
policy on the part of Westchester, CCS, and NYCCS.
Moreover, both the Westchester-NYCCS Contract and
the NYCCS-Empress Contract are absolutely silent as to
the stationing of ambulances. (See generally Westchester-
NYCCS Contract; Murtagh Decl. Ex. D (“NYCCS-Empress
Contract”).) 10 Regarding patient transport, the former
merely provides that NYCCS will arrange and pay for
the “transporting of inmates for non-emergency health
services.” (Westchester-NYCCS Contract, at Schedule A,
15 (emphasis added).) The NYCCS-Empress Contract “to
provide off[-]site ambulatory services to [i]nmates” at
WCJ similarly includes no mention of the placement of
ambulances to be dispatched to fulfill this contractual
obligation. (NYCCS-Empress Contract at unnumbered 1.)
Clearly, neither gives rise to any inference of a policy or
practice on the stationing of ambulances or the response time
of an ambulance dispatched in emergency situations. 11 The
Second Amended Complaint, therefore, fails to sufficiently
attribute to Westchester, CCS, and NYCCS a “practice
of dispatching ambulances” from Yonkers in emergency
situations, (SAC ¶ 71), let alone to adequately allege that such
a policy would be unconstitutional. 12
*15 As a final theory of liability, Plaintiff asserts that “the
policies, practices, and customs of Defendants ... led to the
refusal to provide adequate medical care to WCJ inmates and
detainees; to the delay of proper care to WCJ inmates and
detainees; to the negligent training of its employees; to the
lack of physician access for WCJ inmates and detainees; and
to the misdiagnosis and indifference of [Decedent's] serious
medical needs ....” (SAC ¶ 74.) However, “[a]llegations
that a defendant acted pursuant to a policy or custom[,]
without any facts suggesting the policy's existence, are plainly
insufficient.” Moore v. City of N.Y., No. 08-CV-8879, 2010
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WL 742981, at *6 (S.D.N.Y. Mar. 2, 2010) (internal quotation
marks omitted). Plaintiff offers no such facts, and her bare
assertions, therefore, will not sustain a Monell claim. See
Maynard v. City of N.Y., No. 13-CV-3412, 2013 WL 6667681,
at *4 (S.D.N.Y. Dec. 17, 2013) (“Conclusory allegations that
there was such a policy or custom, without identifying or
alleging supporting facts, is insufficient to state a claim.”); 5
Borough Pawn, LLC v. City of N.Y., 640 F. Supp. 2d 268, 299
(S.D.N.Y. 2009) (concluding that the “plaintiffs' pleading ...
does not unlock the doors of discovery because their assertion
that the [c]ity has an unconstitutional policy is based on
nothing more than their unsupported supposition” (alterations
and internal quotation marks omitted)).
To the extent Plaintiff looks to the Findings Letter
to support this claim, such reliance is wholly
misguided. The CRIPA investigation examined medical
care provided at WCJ in 2008, (see generally
U.S. Dep't of Justice, “CRIPA Investigation of the
Westchester County Jail, Valhalla, New York” (Nov.
19, 2009), http://www.justice.gov/sites/default/files/crt/
legacy/2010/12/15/Westchester_findlet_11-19-09.pdf), well
before Westchester entered into a contract with NYCCS,
(see SAC ¶ 18). 13 Given that investigation involved a
different health care provider, there is no basis to attribute
the resulting report to CCS's and NYCCS's performance
nearly four years later under a subsequent contract. See
Thomas, 2013 WL 3357171, at *6 (rejecting the plaintiff's
reliance on the Findings Letter where the allegations post-
dated its publication and where neither CCS nor NYCCS
were mentioned therein). Nor can CCS and NYCCS be
charged with awareness of any unconstitutional acts by their
employees, since the Findings Letter faults conduct that
occurred under the watch of a different provider. While
Westchester, on the other hand, was certainly aware of the
results of that investigation, this is not a case “of municipal
inaction in the face of government-documented misconduct
through investigations,” Hunter, 35 F. Supp. 3d at 323–24,
considering that Westchester subsequently arranged for a new
agreement concerning the provision of medical care at WCJ.
In failing to present sufficient facts of any policy or custom,
the Second Amended Complaint cannot hold Westchester,
CCS, and NYCCS liable.
b. Empress
As to Empress, Plaintiff alleges that, pursuant to its contract
with NYCCS, “it was the official policy of ... Empress
to station its ambulance responsible for WCJ inmates and
detainees in Yonkers, ... [11] miles away.” (SAC ¶ 70.)
The Court, however, has already noted that the terms of
the Empress-NYCCS Contract make no provision as to the
stationing of ambulances, (see NYCCS-Empress Contract at
unnumbered 1), and thus cannot give rise to formal policy for
purposes of Monell liability. Moreover, while Plaintiff asserts
that the “said practice of dispatching ambulances was so
persistent and widespread that it constituted an official policy
or custom,” (SAC ¶ 71), this general conclusion does not
suffice to satisfy the requirements of Monell, see Maynard,
2013 WL 6667681, at *4. Indeed, the Second Amended
Complaint faults “[t]he inadequate average response time
provided by Empress through its agreement with Westchester,
CCS, and NYCCS,” (SAC ¶ 34), but puts forth no allegations
of any other unconstitutional incidents in that regard, see
Pittman, 2014 WL 7399308, at *7.
*16 Even if such a policy did exist, the Second Amended
Complaint has not plausibly plead that any charged official
acted or failed to act while actually aware of substantial risk
that serious harm would result. See Nielsen, 746 F.3d at 63.
Plaintiff complains that “Empress did not dispatch one of its
ambulances that was stationed on site at the Valhalla campus
within yards of ... Decedent.” (SAC ¶ 59.) Even accepting
as true the implication that there was an on-site ambulance
available to respond to the call from WCJ on January 29, there
is no allegation that the dispatch occurred with the requisite
mental culpability on the part of an Empress official. See
Salahuddin, 467 F.3d at 280. At most, the facts contained
in the Second Amended Complaint suggest a potentially
negligent dispatch, which does not amount to a constitutional
violation. See Gladden, 2013 WL 4647193, at *2. 14
As the only other evidence to suggest prior knowledge
of “[t]he inadequate average response time provided by
Empress through its agreement with Westchester, CCS, and
NYCCS,” (SAC ¶ 34), the Second Amended Complaint
points to the findings of the prior CRIPA investigation,
(id. ¶ 18). Yet, Plaintiff's self-serving conclusion aside, (see
Pl.’s Opp'n to Empress Defs. 10 (“The SAC also linked
those findings of substandard care to Empress ....”)), this
earlier investigation bears absolutely no relation to Empress'
provision of ambulatory services under the Empress-
NYCCS Contract, (see generally CRIPA Investigation of
the Westchester County Jail). Plaintiff's allegations relate to
conduct that occurred nearly four years after the CRIPA
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investigation, and there is no indication, either in the Findings
Letter or in the Second Amended Complaint, that Empress
had any affiliation with WCJ in 2008. See Thomas, 2013
WL 3357171, at *6 (finding the plaintiff's reliance on
an earlier DOJ investigation insufficient where he failed
to “alleg[e] that [the municipal defendant] or any of its
policymakers were the subject of or privy to the results
of the [i]nvestigation [r]eport”). Moreover, the Findings
Letter includes neither any mention of Empress, nor any
reference to inadequate EMS response times. Compare id.
(dismissing Monell claim where “the medical care policies
found [by DOJ to be] deficient at WCJ ... are unlike the
deprivation of medical care [the] [p]laintiff alleges here”),
with Kucharczyk, 95 F. Supp. 3d at 544–45 (finding 2009
DOJ report “sufficient to allege a widespread practice at WCJ
of which policymakers were aware,” because the plaintiff
alleged “that the deficiencies in medical care and the medical
grievance process at WCJ affected his ability to receive care
in 2012”). Without any allegation that Empress ever received
complaints, administrative or otherwise, with respect to its
response times, the Second Amended Complaint fails to
allege any “actual or constructive notice that the [ambulance
stationing] is substantially certain to result in the violation
of [inmates'] constitutional rights.” Canton, 489 U.S. at 396
(O'Connor, J., concurring in part and dissenting in part). Once
again, Plaintiff cannot satisfy the requirements of Monell.
*17 In light of the foregoing analyses, the Court dismisses
Plaintiff's § 1983 claims against Westchester, CCS, NYCCS,
and Empress.
D. Supervisory Liability
In addition, Plaintiff alleges that “Ulloa was responsible
for supervising and training the medical staff who provided
treatment to WCJ inmates and detainees and failed to properly
supervise and train the medical staff regarding the reckless
and negligent medical treatment provided to ... Decedent on
January 29, 2013.” (SAC ¶ 83.) This allegation, however, fails
to state a claim for supervisory liability.
“To establish the liability of a supervisory official under
§ 1983, a plaintiff must show the defendant's personal
involvement in the alleged constitutional violations.”
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)
(per curiam). Personal involvement may be established by
demonstrating
(1) actual direct participation in the
constitutional violation, (2) failure to
remedy a wrong after being informed
through a report or appeal, (3) creation
of a policy or custom that sanctioned
conduct amounting to a constitutional
violation, or allowing such a policy
or custom to continue, (4) grossly
negligent supervision of subordinates
who committed a violation, or (5)
failure to act on information that
unconstitutional acts were occurring.
Elek v. Inc. Vill of Monroe, 815 F. Supp. 2d 801, 806 (S.D.N.Y.
2011) (internal quotation marks omitted).
The facts alleged here fall short of that threshold. While
Plaintiff asserts that “the inadequate supervision provided
by ... Ulloa” violated Decedent's constitutional rights, (SAC ¶
84), this conclusory allegation is insufficient to state a claim
for § 1983 supervisor liability, see Paulin v. Figlia, 916 F.
Supp. 2d 524, 536 (S.D.N.Y. 2013) (finding that the plaintiff's
“conclusory statements[,] without facts to support them,
are insufficient to attach supervisory liability” (alteration
omitted)); cf. Kiobel v. Royal Dutch Petroleum Co., 621
F.3d 111, 191 (2d Cir. 2010) (“Conclusory allegations
that the defendant violated the standards of law do not
satisfy the need for plausible factual allegations.”), aff'd,
133 S. Ct. 1659 (2013). All Plaintiff offers by way of
opposition to Westchester Defendants' Motion is disapproval
of Ulloa's diagnostic and treatment decisions. Indeed, in
complaining that Ulloa “lazily misdiagnos[ed] his condition”
and “fail[ed] to instruct that ... [D]ecedent immediately
receive life[-]saving treatment,” (Pl's Opp'n to Westchester
Defs. 25), Plaintiff merely restates her disagreement with
the medical care Decedent received. As discussed in depth
above, such assertions of negligent diagnosis or treatment
do not state a constitutional claim. See Estelle, 429 U.S.
at 106 (“[A] complaint that a physician has been negligent
in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the
Eighth Amendment.”); Baptiste, 2010 WL 3185748, at *6
(dismissing supervisory liability claim on the basis that
“the differential diagnosis did not constitute constitutionally
inadequate medical care”). These allegations, therefore,
cannot establish Ulloa's “actual direct participation” in any
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violation of Decedent's constitutional rights. See Elek, 815 F.
Supp. 2d at 806. Nor can Plaintiff's contention that “Ulloa
participated in the deprivation of ... Decedent's constitutional
rights by declining to share with his subordinates information
surrounding [Decedent's] prior chest X-ray.” (Pl.’s Opp'n to
Westchester Defs. 25.) This claim not only lacks support
in the Second Amended Complaint but, in fact, is directly
contradicted by allegations contained therein. Plaintiff
expressly notes that during their telephone conversation
Boggi and Ulloa discussed “that [Decedent] had the same
chest discomfort a couple of nights before.” (SAC ¶ 45.)
*18 Along similar lines, Plaintiff next faults Ulloa for
“fail[ing] to remedy these wrongs by not following up with
his initial reckless diagnosis.” (Pl's Opp'n to Westchester
Defs. 25.) Yet, notwithstanding Plaintiff's bare insistence as
to “[Ulloa's] knowledge that ... Decedent exhibited deadly
chest pain symptoms,” (id.), the Court has already determined
that Ulloa was not, in fact, reckless. The Second Amended
Complaint plausibly pleads deliberate indifference on the part
of Boggi, Jordan, and Smith after the first “Signal 3” alert but
provides no factual allegations suggesting Ulloa was aware of
the misdiagnosis and the substantial risk to Decedent's health.
See Nielsen, 746 F.3d at 63. Indeed, Ulloa was only notified
about the deterioration in Decedent's condition at around the
same time that the 911 call was made. (See SAC ¶ 57 (noting
that at approximately 5:09 a.m., Smith called Ulloa, who was
not present at WCJ); id. ¶ 58 (noting that at approximately
5:12 a.m., Smith instructed Delgrosso to call 911).) Since
the facts do not plausibly suggest that Ulloa had prior
knowledge of a previously unreported heart condition, or
that any unconstitutional conduct by a particular subordinate
was brought to Ulloa's attention before Decedent collapsed,
supervisory liability cannot attach here for any “failure to
remedy a wrong after being informed.” See Elek, 815 F. Supp.
2d at 806; cf. Stamile v. Cty. of Nassau, No. 10-CV-2632, 2014
WL 1236885, at *5 (E.D.N.Y. Mar. 25, 2014) (finding the
“[p]laintiffs have not adequately demonstrated supervisory
liability” where “[they] have not included any additional
factual detail to support their assertions that [the defendant]
knew about the constitutional violations”); Risch v. Hulihan,
No. 09-CV-330, 2010 WL 5463339, at *4 (N.D.N.Y. Dec. 29,
2010) (rejecting supervisory liability claim in part because
“there is nothing in the record to suggest that any of these
defendants were aware of any alleged conduct that violated
[the] plaintiff's constitutional rights”).
Even as Plaintiff offers the bare assertion that Ulloa
“otherwise failed to act,” (Pl.’s Opp'n to Westchester Defs.
25), she outlines his prescribed course of treatment, (see SAC
¶¶ 45–46 (noting Ulloa prescribed Decedent “the medications
Zantac and Mylanta” after being “advised of the findings of
[Boggi's] assessment”)), as well as his subordinates' conduct
in accordance with his directives, (see id. ¶ 47 (indicating
“[Decedent] received Zantac and Mylanta”); id. ¶ 48 (noting
Boggi then “monitored and observed” Decedent)). Thus, not
only does the Second Amended Complaint fail to suggest
that Ulloa had “information that unconstitutional acts were
occurring,” but also the allegations contained therein show he
did, in fact, act. See Elek, 815 F. Supp. 2d at 806. 15
Plaintiff, therefore, fails to state a claim based on a theory of
supervisory liability, and Defendants are entitled to dismissal
on this cause of action.
E. State Law Claims
In addition to the federal constitutional claims addressed
above, the Second Amended Complaint contains a number
of claims arising under New York state law—namely,
medical malpractice, respondeat superior, negligent hiring,
supervision, and retention, breach of contract, wrongful
death, and punitive damages. (See SAC ¶¶ 85–108.)
Because these causes of action do not present a federal
question, see 28 U.S.C. § 1331, and because Plaintiff does
not allege that Decedent's citizenship is diverse with respect
to that of Defendants, see id. § 1332; accord Adler v.
Adler, 862 F. Supp. 70, 72 (S.D.N.Y. 1994) (reaffirming
that “the citizenship of a decedent, not the executor, is the
only citizenship pertinent for diversity purposes”), the Court
may entertain these claims only pursuant to a theory of
supplemental jurisdiction, see 28 U.S.C. § 1367.
1. Empress Defendants
As discussed in detail above, this Court has already dismissed
the federal causes of action against Empress and Castro.
Where a district court “has dismissed all claims over which
it has original jurisdiction,” it “may decline to exercise
supplemental jurisdiction” over any remaining claims. 28
U.S.C. § 1367(c)(3); accord Matican v. City of N.Y., 524 F.3d
151, 154–55 (2d Cir. 2008) (“[I]f [a plaintiff] has no valid
claim under § 1983 against any defendant, it is within the
district court's discretion to decline to exercise supplemental
jurisdiction over the pendent state-law claims.”). “Once
a district court's discretion is triggered under § 1367(c)
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(3), it balances the traditional values of judicial economy,
convenience, fairness, and comity, in deciding whether to
exercise jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455
F.3d 118, 122 (2d Cir. 2006) (citations and internal quotation
marks omitted). “[I]n the usual case in which all federal-
law claims are eliminated before trial, the balance of factors
to be considered ... will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
*19 The Court finds that nothing distinguishes this Action
from “the usual case.” For one, Plaintiff's federal claims
against Empress Defendants are all dismissed prior to trial.
See Dellutri v. Vill. of Elmsford, 895 F. Supp. 2d 555,
575 (S.D.N.Y. 2012) (declining to exercise supplemental
jurisdiction where “th[e] case remains in its initial stages, and
the [p]arties have not yet proceeded to discovery”); Middleton
v. United States, No. 10-CV-6057, 2012 WL 394559, at *1
(E.D.N.Y. Feb. 7, 2012) (declining to exercise supplemental
jurisdiction because no federal claims survived a motion to
dismiss). Moreover, none of the factors that the Supreme
Court enunciated in Cohill—“judicial economy, convenience,
fairness, [or] comity”—militates against such dismissal, 484
U.S. at 350 n.7, considering that it is not alleged that Empress
Defendants had any role in the particular events that gave
rise to the surviving § 1983 claims against Boggi, Smith, and
Jordan, see Germano v. Dzurenda, No. 09-CV-1316, 2011
WL 1214435 at *20 (D. Conn. Mar. 28, 2011) (dismissing
without prejudice state-law claims against 12 defendants
once the federal claims against those same 12 defendants
were dismissed, even though federal claims remained viable
against others in the case); accord Billizone v. Jefferson Par.
Corr. Ctr., No. 14-CV-1263, 2014 WL 7139636, at *5 (E.D.
La. Dec. 15, 2014) (declining “to consider any such state
law claims against [a particular defendant] in light of the
fact that [the] plaintiff's federal claims against her are being
dismissed”); Kis v. Cty. of Schuylkill, 866 F. Supp. 1462,
1480 (E.D. Pa.1994) (explaining that where all federal claims
against some defendants were dismissed, the decision to
entertain or dismiss pendent state law claims against those
defendants was within the district court's discretion).
Accordingly, Plaintiff's state-law claims against Empress
Defendants are dismissed without prejudice to refiling in state
court.
2. Westchester Defendants
By contrast, some of Plaintiff's federal causes of action
against Westchester Defendants have survived their Motion.
The abovementioned state-law claims arise out of the same
case or controversy—i.e., the medical treatment provided
to Decedent on January 29, 2013—and thereby fall within
this Court's supplemental jurisdiction pursuant to § 1367(a).
See Oladokun v. Ryan, No. 06-CV-2330, 2011 WL 4471882,
at *11 (S.D.N.Y. Sept. 27, 2011) (explaining that § 1367
“confers mandatory supplemental jurisdiction over state law
claims that ‘form part of the same case or controversy’
as claims over which the district courts have original
jurisdiction”); Bu ex rel. Bu v. Benenson, 181 F. Supp. 2d 247,
251 (S.D.N.Y. 2001) (“Essentially, supplemental jurisdiction
will be found where the state and federal claims arise from
the same basic facts.” (italics and internal quotation marks
omitted)).
a. Medical Malpractice
Plaintiff claims that the medical treatment provided to
Decedent on January 29 “was given and rendered in an
improper, negligent, and careless manner in that Defendants”
not only “failed to employ the skill, care, and diligence
commonly and ordinarily possessed by, and required of[,]
medical care providers in the same locality ....” (SAC ¶ 86.)
As a result, Decedent suffered injuries that include, inter alia,
“tremendous conscious pain and suffering; loss of enjoyment
of life; emotional upset, shock, and fright; and death.” (Id. ¶
87.)
“Under New York law, the requisite elements of proof in a
medical malpractice action are (1) a deviation or departure
from accepted practice, and (2) evidence that such departure
was a proximate cause of injury or damage.” Torres v.
City of N.Y., 154 F. Supp. 2d 814, 819 (S.D.N.Y. 2001)
(citing Lyons v. McCauley, 675 N.Y.S.2d 375, 376 (App.
Div. 1998)); see also Gale v. Smith & Nephew, Inc., 989
F. Supp. 2d 243, 252 (S.D.N.Y. 2013) (“Under New York
law, the essential elements of a medical malpractice claim
are a departure from good and accepted medical practice and
evidence that such departure was a proximate cause of the
plaintiff's injury.” (alterations and internal quotation marks
omitted)).
In alleging Decedent suffered various injuries as a result of
the failure of Ulloa, Boggi, Smith, and Jordan “to employ
reasonable and proper steps, procedures, and practices for
the health, welfare, safety of ... Decedent,” (SAC ¶ 86),
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the Second Amended Complaint has adequately pled those
elements. Although Westchester Defendants contend that
“Plaintiff has not alleged in even rudimentary terms a
particular alleged departure from accepted medical practice”
so as to place them “on reasonable notice of the basis
of this claim,” (Westchester Defs.' Mem. of Law in Supp.
of Mot. (“Westchester Defs.' Mem.”) 27 (Dkt. No. 65)),
the Second Amended Complaint expressly incorporates the
previous paragraphs' allegations, (SAC ¶ 85), which include,
inter alia, that “Boggi failed to hook ... [D]ecedent up to a
heart monitor” or “provide [him] with oxygen,” (id. ¶ 44), that
“Ulloa negligently instructed ... Boggi to provide [Decedent]
with the medications” to treat indigestion, (id. ¶ 46), and
that Boggi, Smith, and Jordan failed to bring Decedent to
a medical facility, (id. ¶ 53). Plaintiff has thus adequately
alleged that Westchester Defendants made treating decisions
that might be considered deviations from accepted medical
practice. See Rennalls v. Alfredo, No. 12-CV-5300, 2015
WL 5730332, at *13 (S.D.N.Y. Sept. 30, 2015) (finding the
plaintiff “adequately alleged that [the defendant] deviated or
departed from accepted practices” through “allegations that
his requests for further testing were denied and that he suffers
continuing pain and difficulty hearing as a result”). The
Second Amended Complaint further alleges that the failure
to properly treat Decedent's heart condition resulted in harm
to Decedent—namely, his death. (SAC ¶ 87.) In this way,
Plaintiff has nudged her claim of medical malpractice over
the line from possible to plausible, see Twombly, 550 U.S. at
570, and Westchester Defendants are not entitled to dismissal
of this cause of action.
b. Respondeat Superior
*20 As the Fifth Cause of Action, Plaintiff alleges that
Westchester, CCS, and NYCCS “are vicariously liable for the
tortious acts committed by [their] employees within the scope
of the employment relationship and are vicariously liable for
the injuries sustained by ... Decedent.” (SAC ¶ 92.) In this
regard, Plaintiff also alleges that Ulloa, Boggi, Smith, and
Jordan were employees of Westchester, CCS, and NYCCS “at
all times between August 9, 2011 and January 29, 2013.” (Id.
¶ 90.)
“Unlike cases brought under § 1983, municipalities may
be liable for the common law torts ... committed by their
employees under the doctrine of respondeat superior.” L.B. v.
Town of Chester, 232 F. Supp. 2d 227, 239 (S.D.N.Y. 2002);
see also Raysor v. Port Auth., 768 F.2d 34, 38 (2d Cir. 1985)
(dismissing § 1983 claims under Monell but permitting state-
law claims based on respondeat superior to proceed); Bektic-
Marrero, 850 F. Supp. 2d at 434 (declining “to dismiss the
pendent state law claims against [the employer-defendant]
that depend on the doctrine of respondeat superior,” even
where the plaintiff's § 1983 claims against that defendant
were dismissed). Under this doctrine, an employer can be
held “vicariously liable for torts committed by an employee
acting within the scope of the employment ..., so long as
the tortious conduct is generally foreseeable and a natural
incident of the employment.” RJC Realty Holding Corp. v.
Republic Franklin Ins. Co., 808 N.E.2d 1263, 1265–66 (N.Y.
2004) (internal quotation marks omitted).
In incorporating the allegations contained in the previous
paragraphs of the Second Amended Complaint, (SAC ¶
89), Plaintiff provides adequate notice of the specific
tortious conduct “to be proven,” notwithstanding Westchester
Defendants' insistence to the contrary, (see Westchester Defs.'
Mem. 28) (asserting that “[t]his pleading is not sufficiently
particular to give notice ... of the particular occurrences to
be proven” (citing SAC ¶¶ 90–92)). The singular focus of
those allegations makes clear that the same facts giving rise
to the deliberate indifference claims also form the basis of
Plaintiff's state-law claims for malpractice and wrongful death
against Ulloa, Boggi, Smith, and Jordan. See Bektic-Marrero,
850 F. Supp. 2d at 434 (denying motion to dismiss respondeat
superior claim where the complaint “allege[d] that [the doctor
defendants] were [another defendant's] employees when they
took the actions that gave rise to [the decedent's] § 1983
claim,” and “[t]hose same actions form the basis of state
law claims for malpractice, wrongful death, and infliction of
emotional distress against the [d]octor [d]efendants”). Having
alleged the requisite employment status for the relevant time,
(see SAC ¶ 90), Plaintiff may proceed with this cause of
action due to the potential for vicarious liability for the acts or
omissions of Ulloa, Boggi, Smith, and Jordan as employees
of Westchester, CCS, and NYCCS, see Reyes v. City of N.Y.,
992 F. Supp. 2d 290, 299 (S.D.N.Y. 2014) (“The state law
claims ... against the [municipality] may proceed due to the
potential for vicarious liability for the actions of the officers
as its employees.”).
c. Negligent Hiring, Supervision, and Retention
According to the Second Amended Complaint, “Westchester
negligently hired, supervised, and retained CCS and NYCCS
and owed a duty to ... Decedent to ensure that he
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received adequate and proper medical care and breached
that duty when they negligently hired, supervised, and
retained unqualified and careless companies in ... CCS and
NYCCS.” (SAC ¶ 95.)
*21 In general, “[w]here an employee is acting within the
scope of his or her employment, the employer is liable under
the theory of respondeat superior[,] and no claim may proceed
against the employer for negligent hiring or retention.”
Rossetti v. Bd. of Educ., 716 N.Y.S.2d 460, 462 (App. Div.
2000); see also Velez v. City of N.Y., 730 F.3d 128, 137 (2d
Cir. 2013) (“If the employee acted within the scope of her
employment, the employer and the employee's supervisors
may be held liable for the employee's negligence only
under a theory of respondeat superior.” (italics omitted)). 16
The rationale for this restriction is that if the employee is
found negligent, then the employer must pay the judgment
regardless of the reasonableness of the hiring, training, or
supervision, whereas if the employee was not negligent, there
should be no basis for imposing liability on the employer. See
Karoon v. N.Y.C. Transit Auth., 659 N.Y.S.2d 27, 29 (App.
Div. 1997).
The Sixth Cause of Action must fail precisely because the
Second Amended Complaint offers no allegations that CCS
or NYCCS were acting outside scope of employment during
the course of events giving rise to Plaintiff's claim. See Zeak
v. United States, No. 11-CV-4253, 2015 WL 246340, at
*4 (S.D.N.Y. Jan. 20, 2015) (holding “that [the] [p]laintiff's
negligent hiring and supervision claim fails because [she]
cannot show that the alleged malpractice occurred outside the
scope of the [tortfeasors'] employment”); Stevens v. Webb,
No. 12-CV-2909, 2014 WL 1154246, at *12 (E.D.N.Y. Mar.
21, 2014) (“Because all of these allegations relate to [the
employees'] ability to perform a duty within the scope of
their employment ..., [the] plaintiff has not stated a claim for
negligent supervision and training.”). Indeed, the gravamen
of this claim centers exclusively on “the services of CCS
and NYCCS, both as independent contractors,” hired and
retained by Westchester. (SAC ¶ 97; see also id. ¶ 96
(alleging CCS's and NYCCS's prior failings in the provision
of “comprehensive health services”).) The Court, therefore,
dismisses Plaintiff's claim for negligent hiring, supervision,
and retention.
d. Breach of Contract
As the Seventh Cause of Action, Plaintiff alleges that CCS
and NYCCS are liable to Decedent for breaching the NYCCS-
Westchester Contract under which CCS and NYCCS were to
provide medical treatment to inmates at WCJ. (See SAC ¶¶
100–04.) Decedent was not a signatory to this agreement. (Id.
¶ 101.) Rather, Plaintiff argues that Decedent is a third-party
beneficiary to the NYCCS-Westchester Contract such that
she has standing to sue on his behalf for NYCCS and CCS's
alleged breach of this agreement “to provide comprehensive
health care to WCJ inmates and detainees.” (Id. (alleging that
the NYCCS-Westchester Contract “was made for the benefit
of ... Decedent”); cf. Westchester Defs.' Mem. 29.)
*22 “A third party seeking to recover on a contract
must establish that a binding contract exists between other
parties; that this contract was intended for his benefit; and
that the benefit to him was direct rather than incidental.”
Internationale Nederlanden (U.S.) Capital Corp. v. Bankers
Tr. Co., 689 N.Y.S.2d 455, 460 (App. Div. 1999); see also
Levin v. Tiber Holding Corp., 277 F.3d 243, 248 (2d Cir. 2002)
(same). A benefit is intended rather than incidental if it is
“sufficiently immediate ... to indicate the assumption by the
contracting parties of a duty to compensate [the third party]
if the benefit is lost.” State of Cali. Pub. Emps.' Ret. Sys.
v. Shearman & Sterling, 741 N.E.2d 101, 104 (N.Y. 2000).
“Where performance is to be rendered directly to a third
party under the terms of an agreement, that party must be
considered an intended beneficiary.” Flickinger v. Harold C.
Brown & Co., 947 F.2d 595, 600 (2d Cir. 1991) (internal
quotation marks omitted); cf. Internationale Nederlanden,
689 N.Y.S.2d at 460 (noting that a court must “look at the
overall purpose of the transaction” in determining whether a
third party has standing to enforce a contract). It is the burden
of that party claiming to be an intended third-party beneficiary
to demonstrate his or her right to enforcement. See Solutia
Inc. v. FMC Corp., 385 F. Supp. 2d 324, 336 (S.D.N.Y. 2005)
(citing Strauss v. Belle Realty Co., 469 N.Y.S.2d 948, 950
(App. Div. 1983), aff'd, 482 N.E.2d 34 (N.Y. 1985)).
Plaintiff here has met that burden. As a WCJ inmate, (see
SAC ¶ 37), Decedent was indeed the intended beneficiary
of the NYCCS-Westchester Contract “for the provision of
health care services to inmates and detainees at ... WCJ,” (id.
¶ 24). Courts in the Second Circuit have readily reached the
same conclusion under similar circumstances. See Zikianda v.
Cty. of Albany, No. 12-CV-1194, 2015 WL 5510956, at *37
(N.D.N.Y. Sept. 15, 2015) (finding that, as a prior detainee,
“[the] [d]ecedent was clearly an intended beneficiary of this
contract, which requires the provision of medical care to
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detainees”); Mayo v. Cty. of Albany, No. 07-CV-823, 2009
WL 935804, at *5 (N.D.N.Y. Apr. 3, 2009) (noting “there is
no doubt that [the detainee] was a third party beneficiary” of
a contract to provide medical services at a county correctional
facility), aff'd, 357 F. App'x 339 (2d Cir. 2009); Murns v. City
of N.Y., No. 00-CV-9590, 2001 WL 515201, at *5 (S.D.N.Y.
May 15, 2001) (finding that “the inmates were the intended
beneficiaries of the contract” whereby a medical provider
“agreed to provide medical services to the inmates of [c]ity
correctional facilities”).
Additionally, “to state a breach of contract claim, the
pleadings must allege the provisions of the contract upon
which the claim is based and the defendant's acts or omissions
constituting the breach.” (Dilworth v. Goldberg, 914 F. Supp.
2d 433, 457–58 (S.D.N.Y. 2012) (citations and internal
quotation marks omitted)). The Second Amended Complaint
satisfies that requirement, expressly alleging “[t]hat CCS and
NYCCS breached said contract when they did not provide
the required semiannual[ ] and annual reports” to “allow
Westchester to provide adequate oversight of the quality of
care and staffing levels providing to WCJ inmates ....” (SAC
¶ 102.)
Plaintiff, therefore, has plausibly pled a third-party claim for
breach of contract.
e. Wrongful Death
Plaintiff brings a wrongful death cause of action on behalf of
Decedent's “surviving next of kin,” which includes “at least
four children[,] who had a reasonable expectation of support
from ... Decedent and were entitled to his comfort and the
enjoyment of his society.” (SAC ¶ 107.)
Under New York law. the elements of a cause of action
for wrongful death are: “(1) the death of a human being,
(2) the wrongful act, neglect or default of the defendant by
which the decedent's death was caused, (3) the survival of
distributees who suffered pecuniary loss by reason of the
death of decedent, and (4) the appointment of a personal
representative of the decedent.” Quinn v. United States, 946 F.
Supp. 2d 267, 277 (N.D.N.Y. 2013) (quoting Chong v. N.Y.C.
Transit Auth., 441 N.Y.S.2d 24, 25–26 (App. Div. 1981)).
With respect to the third element, “[a] distributee is a person
entitled to take or share in the property of a decedent under
the statutes governing descent and distribution.” Gabriel v.
Cty. of Herkimer, 889 F. Supp. 2d 374, 406 (N.D.N.Y. 2012)
(alteration in original) (quoting N.Y. Est. Powers & Trusts
Law § 1–2.5). The damages available “in [ ] actions for
wrongful death are the fair and just compensation for the
pecuniary injuries resulting from the decedent's death to the
persons for whose benefit the action is brought.” Zikianda,
2015 WL 5510956, at *61 (brackets and internal quotation
marks omitted).
*23 The Court readily finds the first, second, and fourth
elements sufficiently plead here. See Pratt v. George Spalty
Sons, Inc., 516 N.Y.S.2d 433, 435 (Sup. Ct. 1987) (noting
that “the ‘personal representative’ of a decedent to maintain
a wrongful death action ... encompasses both executors and
administrators”). The Second Amended Complaint alleges
that “Decedent died intestate on January 29, 2013 at
approximately 6:16 a.m.,” (SAC ¶ 107), and that Plaintiff
was “duly appointed” as administratrix of Decedent's estate,
(id. ¶ 4). As discussed in detail above, the Second Amended
Complaint states a plausible claim for medical malpractice
against Westchester Defendants, which then serves as the
predicate for the Eighth Cause of Action.
As to the third element, Westchester Defendants first
argue that the pleading is defective because “[D]ecedent's
distributees are not identified,” (Westchester Defs.' Mem.
31), citing Chong in support of the proposition that “[t]he
allegation that he has ‘at least four children’ who are
his surviving ‘next of kin’ does not satisfy the statutory
requisite that the action be brought on behalf of his actual,
surviving distributes [sic],” (id. (citing Chong, 441 N.Y.S.2d
at 26)). The court in Chong, however, actually read an
allegation “that decedent had ‘next of kin,’ consisting of
his wife and children,” to mean “distributees” for purposes
of a wrongful death cause of action. 441 N.Y.S.2d at 26.
This line of argument by Westchester Defendants is thus
wholly unavailing, especially given that this Court has found
no authority to even suggest that a complaint must more
specifically identify distributees at the motion-to-dismiss
stage.
Westchester Defendants also argue that “the damages sought
here are not proper elements of the pecuniary losses under
[New York law].” (Westchester Defs.' Mem. 31.) The
Court finds this argument only partially correct. On one
hand, New York law “has steadfastly restricted recovery to
‘pecuniary injuries,’ or injuries measurable by money, and
denied recovery for grief, loss of society, affection, conjugal
fellowship[,] and consortium.” Gonzalez v. N.Y.C. Hous.
Auth., 572 N.E.2d 598, 600–01 (N.Y. 1991); see also Negron
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v. City of N.Y., 976 F. Supp. 2d 360, 374 n.9 (E.D.N.Y. 2013)
(same). The loss of Decedent's “comfort and the enjoyment
of his society,” therefore, is not recoverable. (See SAC ¶
107.) Nonetheless, Plaintiff does allege that Decedent's next
of kin suffered pecuniary loss that is indeed recoverable.
Under New York law, “the essence of the cause of action
for wrongful death ... is that the [distributees'] reasonable
expectancy of future assistance or support by the decedent
was frustrated by the decedent's death.” Gonzalez, 572 N.E.2d
at 601. These recoverable damages broadly include “[l]oss of
support, voluntary assistance and possible inheritance, as well
as medical and funeral expenses incidental to death ....” Id. In
alleging loss of “a reasonable expectation of support from ...
Decedent,” (SAC ¶ 107), the Second Amended Complaint
satisfies this third element.
Accordingly, Plaintiff's wrongful death cause of action
survives Westchester Defendants' Motion. 17
f. Punitive Damages
As the Ninth Cause of Action, Plaintiff seeks “an award of
punitive damages” from Smith on the basis that her actions
“against ... Decedent were carried out in a deliberate, cold,
callous, and intentional manner in order to injure and damage
[Decedent], his heirs, and survivors ....” (SAC ¶ 110.) 18
*24 However, there is no separate claim for punitive
damages recognized under New York law. See Weir Metro
Ambu-Serv., Inc. v. Turner, 442 N.E.2d 1268, 1268 (N.Y.
1982) (“[P]unitive damages may not be sought as a separate
cause of action.”); Paisley v. Coin Device Corp., 773 N.Y.S.2d
582, 583 (App. Div. 2004) (dismissing punitive damages
claim because “no separate cause of action for punitive
damages lies for pleading purposes”); accord Henry v.
Concord Limousine, Inc., No. 13-CV-494, 2014 WL 297303,
at *5 (E.D.N.Y. Jan. 24, 2014) (“[I]t is well settled under
New York law that punitive damages may not be asserted
as a separate cause of action.”). This final claim is thereby
dismissed, though Plaintiff may still seek punitive damages
in connection with any appropriate causes of action that
remain. See Campbell v. Aduddell, No. 11-CV-1413, 2014
WL 4659364, at *7 (N.D.N.Y. Sept. 17, 2014) (permitting the
plaintiff to include in her amended complaint a “request [for]
punitive damages as an element of damages in connection
with any or all of her causes of action”); Patterson ex rel.
T.P. v. Elmsford Union Free Sch. Dist., No. 11-CV-5133,
2012 WL 860367, at *12 n.5 (S.D.N.Y. Feb. 27, 2012)
(dismissing separate claim for punitive damages but noting
that the “[p]laintiff may still seek punitive damages, but not
as a separate cause of action and not against the [government
entity]”).
III. Conclusion
For the foregoing reasons, Empress Defendants' Motion To
Dismiss is granted in its entirety and Westchester Defendants
' Motion To Dismiss is granted in part and denied in part. 19
The Clerk of the Court is respectfully requested to terminate
the pending Motions. (See Dkt. Nos. 63, 66.)
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 1254394
Footnotes
1 A Notice of Claim pursuant to New York General Municipal Law § 50-e was timely served on Westchester
on March 13, 2013. (SAC ¶ 66.) An amended Notice of Claim was served on March 26, 2014. (Id.)
2 While Empress Defendants have indicated their intent to seek relief under Federal Rule of Civil Procedure
12(c), because an Answer to Plaintiff's Second Amended Complaint had previously been served, (see
Dkt. No. 79), that distinction ultimately has no bearing on the Court's present analysis. “The standard for
addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to
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dismiss for failure to state a claim.” Hogan v. Fischer, 738 F.3d 509, 514–15 (2d Cir. 2013) (internal quotation
marks omitted).
3 Some courts have suggested that only “[d]iagnosed heart conditions or disease have been recognized as
a serious medical condition.” Bruno v. Wright, No. 06-CV-808, 2008 WL 5100278, at *6 (N.D.N.Y. Nov.
26, 2008); see also Bennett v. Hunter, No. 02-CV-1365, 2006 WL 1174309, at *3 (N.D.N.Y. May 1, 2006)
(noting that, “[d]epending on the precise nature of the disease, generally a heart condition” will constitute a
serious medical need (emphasis added)). In this regard, it bears noting that the autopsy of Decedent listed his
cause of death as coronary arteriosclerosis, (SAC ¶ 65), a recognized heart disease, see M. Gabriel Khan,
Encyclopedia of Heart Diseases 101–03 (2005).
4 In fact, the Second Amended Complaint notes that Decedent's initial health assessment showed nothing
more than a normal blood pressure reading. (SAC ¶ 37.)
5 Plaintiff herself concedes “it is arguable that ... Decedent being denied access to a heart monitor, oxygen,
intravenous fluids, nitroglycerin, a physical examination from a doctor, and emergency medical services from
third[-]party medical professionals, and instead prescribed Mylanta and Zantac is a misdiagnosis.” (Pl.’s Opp'n
to Westchester Defs. 14.) As her only caveat to this acknowledgement, she states that “it is still plausible that
he was denied access at this time.” (Id.) But, in doing so, Plaintiff misses the point, for whether Decedent
should have had “access” to different treatment is, to reiterate, not actionable under the Eight Amendment.
See Estelle, 429 U.S. at 107; O'Diah, 2012 WL 4482579, at *9.
6 According to the Second Amended Complaint, Smith, after responding to the “Signal 3” alert, “proceeded to
state 'I've been doing this too long to be fooled,' 'that's the oldest trick in corrections, he's not going to the
clinic, he's going to his cell,' and 'that's the oldest trick in the book.'” (SAC ¶ 52.) While such comments alone
do not supply the predicate for a claim of deliberate indifference, see Gay v. Terrell, No. 12-CV-2925, 2013
WL 5437045, at *24 (E.D.N.Y. Sept. 27, 2013) (finding a prison official's allegedly unprofessional comments
did “not constitute deliberate indifference to medical needs in violation of the Eighth Amendment or any other
constitutional violation”); Gumbs v. Dynan, No. 11-CV-857, 2012 WL 3705009, at *15 (E.D.N.Y. Aug. 26,
2012) (holding that a prison official's remark, “while less than courteous in tone,” did not constitute deliberate
indifference to the inmate's medical needs), the complete denial of medical care after Decedent's collapse,
perhaps motivated by Smith's apparent skepticism of Decedent's condition, does.
7 For the purposes of resolving these Motions, the Court assumes CCS, NYCCS, and Empress to be a state
actors such that Monell would apply to these private entities providing medical care to state inmates. Various
courts in the Second Circuit have adopted this approach, see Thomas v. Westchester Cty., No. 12-CV-6718,
2013 WL 3357171, at *6 n.13 (S.D.N.Y. July 3, 2013) (“assum[ing] without deciding for the purposes of this
[m]otion that Monell would apply to private entities providing care to state inmates, such as CCS or NYCCS”);
Bektic-Marrero v. Goldberg, 850 F. Supp. 2d 418, 432–33 (S.D.N.Y. 2012) (accepting the plaintiff's argument
that a private entity acted under color of state law by virtue of its agreement to administer medical services
to inmates at WCJ), and Defendants do not argue otherwise.
8 Westchester Defendants argue that CCS is not a proper party to this Action as a mere guarantor of NYCCS's
performance of its obligations under the Westchester-NYCCS Contract. (See Westchester Defs.' Mem. of
Law in Supp. of Mot. (“Westchester Defs.' Mem.”) 6 (Dkt. No. 65); Westchester Defs.' Reply Mem. of Law in
Supp. of Mot. 1–2 (Dkt. No. 92).) The Second Amended Complaint, however, alleges that “NYCCS was at
all times a corporate affiliate of CCS created solely to be responsible for the provision of medical care and
treatment to WCJ inmates and detainees ....” (SAC ¶ 7.) Accepting this allegation as true, the Court finds
the alleged facts, though sparse, plausibly suggest that CCS, as the parent corporation, “exercised complete
dominion and control over the subsidiary,” NYCCS, so as to hold the former liable for the torts of the latter.
Potash v. Port Auth. of N.Y. & N.J., 719 N.Y.S.2d 290, 291 (App. Div. 2001); cf. Lipton v. Unumprovident
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Corp., 783 N.Y.S.2d 601, 603 (App. Div. 2004) (“Since the plaintiff has alleged no facts indicating that [the
parent] exercised such dominion and control over [the subsidiary], there is no basis upon which to predicate
liability against [the parent].”). Moreover, courts in this district have addressed similar cases brought against
both CCS and NYCCS. See, e.g., Alvarado v. Westchester Cty., 22 F. Supp. 3d 208, 217 (S.D.N.Y. 2014)
(finding “[the] plaintiffs plausibly allege” that CCS and NYCCS were deliberately indifferent to inmates' serious
medical needs).
9 Plaintiff further alleges that this staffing requirement fell short of the “medical service staffing levels ... provided
by WCHCC” in a prior contract with Westchester. (SAC ¶ 33.) However, this allegation is blatantly contradicted
by the terms of the contracts themselves, which contain identical staffing requirements and do not require a
physician to be on-site at all times. (Compare Decl. of John M. Murtagh, Esq. in Supp. of Westchester Defs.'
Mot. to Dismiss (“Murtagh Decl.”) Ex. B (“Westchester-NYCCS Contract”) Schedule A, 9–10 (Dkt. No. 64)
(“This minimum level of staffing requires that an R.N. be on-site 24 hours per day, 7 days per week, 365 days
per year,” though “the minimum level of staffing may be met by substitution of advanced level practitioners
in lieu of R.N.”), with id. Ex. C (“Westchester-WCHCC Contract”) Schedule A, 9–10 (same).) The Court may
properly consider these documents as incorporated in the Second Amended Complaint by reference, see
Leonard, 199 F.3d at 107, and “need not accept as true an allegation that is contradicted by documents on
which the complaint relies,” Williams v. Citibank, N.A., 565 F. Supp. 2d 523, 527 (S.D.N.Y. 2008) (internal
quotation marks omitted); see also Rapoport v. Asia Elec. Holding Co., Inc., 88 F. Supp. 2d 179, 184 (S.D.N.Y.
2000) (“If [incorporated] documents contradict the allegations of the ... complaint, the documents control and
[a] [c]ourt need not accept as true the allegations in the ... complaint.” (citation omitted)).
10 As with the Westchester-NYCCS Contract and the Westchester-WCHCC Contract, the Second Amended
Complaint incorporates the Empress-NYCCS Contract by reference such that the Court may properly
consider it in resolving the instant Motions. See Leonard, 199 F.3d at 107.
11 Plaintiff claims that “[t]he previous arrangement with WCHCC provided for on-site ambulance services and
adequate response times.” (SAC ¶ 34.) This allegation, however, is contradicted by the virtually identical terms
contained in the Westchester-WCHCC and Westchester-NYCCS Contracts, whereby neither document
makes mention of the stationing of ambulances. (Compare Westchester-NYCCS Contract, at Schedule A, 15,
with Westchester-WCHCC Contract, at Schedule A, 15.) Once again, the documents control. See Williams,
565 F. Supp. 2d at 527 (“The court need not accept as true an allegation that is contradicted by documents
on which the complaint relies.” (internal quotation marks omitted)).
12 In seeking to defend this claim, Plaintiff points to Westchester's failed attempt “to reach a deal with” another
company for closer ambulance stationing and CCS's failed negotiations with Empress “to stage an ambulance
closer to the prison,” (Pl.’s Opp'n to Westchester Defs. 21; see also Decl. of Jared R. Rice, Esq. in Opp'n
to Westchester Defs.' Mot. to Dismiss (“Rice Decl.”) Ex. C (“Committee Meeting Minutes”) 2 (Dkt. No. 82)).
Though “a complaint may not be amended by the briefs in opposition to a motion to dismiss,” Chamberlain
v. City of White Plains, 986 F. Supp. 2d 363, 390 n.19 (S.D.N.Y. 2013); see also Kiryas Joel All. v. Vill. of
Kiryas Joel, No. 11-CV-3982, 2011 WL 5995075, at *10 n.9 (S.D.N.Y. Nov. 29, 2011) (“[T]he plaintiffs cannot
use their opposition to the motion to dismiss to raise new claims or arguments, and thus the [c]ourt does not
address the new arguments made in the plaintiffs' memorandum.”), aff'd, 495 F. App'x 183 (2d Cir. 2012),
the Court nonetheless notes that these allegations alone do not amount to a constitutional deprivation of
care. Even if such an alternative arrangement would be desirable, it does not suggest actual or constructive
knowledge notice of an obvious “need for corrective action.” Williams v. City of N.Y., 690 F. Supp. 2d 338,
344 (S.D.N.Y. 2010).
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Melvin v. County of Westchester, Not Reported in Fed. Supp. (2016)
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13 The Second Amended Complaint not only references but also explicitly incorporates the Findings Letter,
(SAC ¶ 22 (stating that “the Findings Letter ... is incorporated by reference herein”); see also id. ¶¶ 18-21),
which the Court thus considers in resolving the instant Motions, see Leonard, 199 F.3d at 107.
14 Assuming, arguendo, a constitutional violation occurred, the Second Amended Complaint fails to adequately
allege “a direct causal link.” See Tieman, 2015 WL 1379652, at *12 (internal quotation marks omitted).
Plaintiff's circular reasoning that “[t]he causation ... is established by the deliberate indifference shown by
Empress” does nothing to salvage this claim, (see Pl.’s Opp'n to Empress Defs. 9), as the “causal connection”
is a prerequisite for municipal liability, see Johnson, 2011 WL 666161, at *3. The Court need not consider
her subsequent allegation that “Decedent's injuries and death resulted from his not being able to be treated
at WMC in a timely fashion,” (see Pl.’s Opp'n to Empress Defs. 9), which is raised for the first time in her
opposition papers, see Kiryas, 2011 WL 5995075, at *10 n.9.
15 Moreover, there are no facts giving rise to the inference that Ulloa was “grossly negligent” in supervising the
activities of Boggi, Smith, and Jordan, given that he prescribed a course of treatment and was otherwise not
informed of Decedent's condition until after the second “Signal 3” alert. The Second Amended Complaint
is also entirely devoid of allegations that Ulloa had any policymaking authority over medical care for WCJ
inmates and detainees.
16 Although a limited exception to this rule exists where the plaintiff “is seeking punitive damages from the
employer based on gross negligence in hiring, training, or supervising the employee,” see Mahar v. U.S.
Xpress Enters., Inc., 688 F. Supp. 2d 95, 110 (N.D.N.Y.), the Second Amended Complaint is devoid of
any allegation of gross negligence on the part of Westchester, see Woods v. Town of Cheektowaga, No.
11-CV-343, 2012 WL 5288767, *8 (W.D.N.Y. 2012) (“[B]ecause [the] [p]laintiffs have not alleged gross
negligence on the part of the [t]own, the exception to this general rule does not apply.”), and, in any event,
Westchester cannot be liable for punitive damages, see Martinez v. Cty. of Suffolk, 999 F. Supp. 2d 424,
433 (E.D.N.Y. 2014) (explaining that the gross negligence exception is inapplicable against a municipality
because “the State and its political subdivisions ... are not subject to punitive damages” (internal quotation
marks omitted)).
17 As a word of caution, the Court notes that, going forward, Plaintiff will need to offer proof of pecuniary loss.
See Gonzalez, 572 N.E.2d at 600–01. “The fact that there are children who are distributees of the estate is
not, by itself, sufficient to establish that there was a pecuniary loss.” Pub. Adm'r of Queens Cty. ex rel. Estate &
Beneficiaries of Guzman v. City of N.Y., No. 06-CV-7099, 2009 WL 498976, at *12 (S.D.N.Y. Feb. 24, 2009).
18 While the Second Amended Complaint does not appear to seek such relief from Westchester itself, the Court
nonetheless reiterates that the municipality would not be subject to punitive damages. See Martinez, 999
F. Supp. 2d at 433.
19 The Court dismisses the federal claims discussed herein with prejudice “ because [P]laintiffhas already had
two bites at the apple[,] and they have proven fruitless.” Treppe! v. Biovail Corp., No. 03-CV-3002, 2005
WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005); see also Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978)
(holding that the plaintiff was not entitled to “a third go-around”);Anthonyv. Brockway, No. 15-CV-451, 2015
WL 5773402, at *3 (N.D.N.Y. Sept. 30, 20 IS) (dismissing amended complaint with prejudice where the
“ [p]laintiff has already been given one opportunity to amend his complaint ..., and there is nothing in his
second amended complaint suggesting that [he] could do better given another opportunity”); Al-Qadaffi v.
Servs. forthe Underserved, No. 13-CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 20 15) (denying leave
to amend where “ [the plaintiff] has already had one chance to amend his [c]omplaint, and there is still no
indication that a valid claim might be stated if given a second chance”), aff'd, ___ F. App'x ____, 2016 WL
320938 (2d Cir. Jan 27, 20 16); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009)
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Melvin v. County of Westchester, Not Reported in Fed. Supp. (2016)
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(dismissing an amended complaint with prejudice where the plaintiff failed to cure the deficiencies identified
in his complaint despite “ being given ample opportunity to do so”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 456 of 527

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Melvin v. Cnty of Westchester
United States District Court for the Southern District of New York
March 29, 2016, Decided; March 29, 2016, Filed
Case No. 14-CV-2995 (KMK)
Reporter
2016 U.S. Dist. LEXIS 41120 *; 2016 WL 1254394
ERICA MELVIN as Administratrix of the Estate of
RASHAD MCNULTY, Deceased, Plaintiff, v. COUNTY
OF WESTCHESTER; CORRECT CARE SOLUTIONS,
LLC; NEW YORK CORRECT CARE SOLUTIONS
MEDICAL SERVICES PC; EMPRESS AMBULANCE
SERVICE, INC.; RAUL ULLOA; PAULETTE SMITH;
JOSH BOGGI; DIANE JORDAN; GREGORIO
CASTRO; and EMS JOHN DOE, Defendants.
Subsequent History: Summary judgment denied by,
Partial summary judgment granted by, in part, Partial
summary judgment denied by, in part Melvin v. Cty. of
Westchester, 2019 U.S. Dist. LEXIS 42772 (S.D.N.Y.,
Mar. 15, 2019)
Core Terms
amended complaint, allegations, deliberate indifference,
inmates, marks, quotation, cause of action, chest pain,
custom, medical care, municipal, ambulance, detainees,
medical condition, cell, substantial risk, medical
treatment, alterations, supervision, Defendants',
assertions, serious harm, disregarded, transported,
pain, constitutional right, motion to dismiss, malpractice,
dispatched, surviving
Counsel: [*1] For Plaintiff: Jared R. Rice, Esq., Rice &
Rice Attorneys At Law, Bronx, NY.
For County of Westchester, Correct Care Solutions,
LLC, New York Correct Care Solutions Medical Services
PC, Raul Ulloa, Paullette Smith, Josh Boggi, and Diane
Jordan, Defendants: John M. Murtagh, Jr., Esq., Denise
M. Cossu, Esq., Gaines, Novick, Ponzini, Cossu &
Venditti, LLP, White Plains, NY.
For Empress Ambulance Service Inc. and Gregorio
Castro, Defendants: Ryan T. Cox, Esq., Joseph L.
DeMarzo, Esq., Martin Clearwater & Bell LLP, New
York, NY.
Judges: KENNETH M. KARAS, UNITED STATES
DISTRICT JUDGE.
Opinion by: KENNETH M. KARAS
Opinion
OPINION & ORDER
Erica Melvin ("Plaintiff"), as administratrix of the estate
of Rashad McNulty, deceased, brings this Second
Amended Complaint against the County of Westchester
("Westchester"), Correct Care Solutions, LCC ("CCS"),
New York Correct Care Solutions Medical Services, PC
("NYCCS"), Dr. Raul Ulloa ("Ulloa"), Paulette Smith
("Smith"), Josh Boggi ("Boggi"), Diane Jordan
("Jordan"), Empress Ambulance Service, Inc.
("Empress"), and Gregorio Castro ("Castro")
(collectively, "Defendants"). (Dkt. No. 53.) Before the
Court are two Motions To Dismiss Plaintiff's Second
Amended Complaint, one on behalf of [*2]
Westchester, CCS, NYCCS, Ulloa, Smith, Boggi, and
Jordan (collectively, "Westchester Defendants"), and
one on behalf of Empress and Castro (collectively,
"Empress Defendants"). (Dkt. Nos. 63, 66.) For the
following reasons, Empress Defendants' Motion is
granted and Westchester Defendants' Motion is granted
in part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff's Second
Amended Complaint and are taken as true for the
purpose of resolving the instant Motions.
1. Events Preceding Decedent's Confinement at WCJ
A Civil Rights of Institutionalized Persons Act ("CRIPA")
investigation was performed at Westchester County Jail
Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 458 of 527

Page 2 of 23
("WCJ") in February 2008. (Second Am. Compl. ("SAC")
¶ 18 (Dkt. No. 53).) On November 19, 2009, the
Department of Justice ("DOJ") issued a Findings Letter
to Westchester regarding certain conditions at WCJ.
(Id.) DOJ ultimately concluded that WCJ inmates did not
receive adequate medical care. (Id.)
Between May 6, 2008 and July 25, 2010, Westchester
County Health Care Corporation ("WCHCC") provided
medical care and treatment to inmates at WCJ,
pursuant to an agreement with Westchester
("Westchester-WCHCC Contract"). (Id. ¶ [*3] 17.) On or
about January 27, 2010, WCHCC notified Westchester
of its intention to terminate the agreement effective as of
midnight on July 26, 2010. (Id. ¶ 23.) Westchester
accepted that withdrawal and, on June 16, 2010,
entered into a contract with CCS and NYCCS for the
provision of comprehensive health care to WCJ inmates
and detainees ("Westchester-NYCCS Contract"). (Id. ¶¶
26, 31). That relationship began on or about July 26,
2010 and continued through the events giving rise to
this Action. (Id. ¶ 32).
As of January 2013, Westchester, CCS, and NYCSS
had an agreement with Empress to provide after-care
transportation for WCJ inmates and detainees
("NYCCS-Empress Contract"). (Id. ¶ 34.)
2. Events Relating to Decedent's Medical Care at WCJ
Rashad McNulty ("Decedent") was confined to WCJ on
August 9, 2011 and incarcerated there until the time of
his death on January 29, 2013 ("January 29"). (Id. ¶ 37.)
Shortly after arriving at WCJ, Decedent underwent a
medical intake screening process and health
assessment that showed he had a normal blood
pressure reading. (Id.)
On January 16, 2013 ("January 16"), a chest X-ray was
performed on Decedent due to his complaints of chest
pains. (Id. ¶ 39) [*4] No tests for stenosing coronary
arteriosclerosis or any other blood circulation
abnormalities were performed at that time. (Id.) Ulloa,
the Medical Director at WCJ, received the results of
Decedent's X-ray on January 18, 2013. (Id. ¶ 40). He
did not perform or order any follow-up tests. (Id.)
At approximately 2:00 a.m. on January 29, 2013,
Decedent again complained of chest pains, informing
Officer Kevin Grant ("Grant") that he was feeling
discomfort in his chest. (Id. ¶ 41). Twelve minutes later,
Decedent was taken to the Booking Nursing Station
where a simple health assessment was performed by
Boggi, a WCJ nurse. (Id. ¶ 42). The assessment
revealed that Decedent had abnormally high blood
pressure and a very low pulse rate. (Id.) Between
approximately 2:12 a.m. and 2:37 a.m., Boggi did not
place Decedent on a heart monitor, did not provide him
with oxygen, an intravenous line, or nitroglycerin, did not
consider a differential diagnosis, and did not call
Empress for transportation to Westchester Medical
Center ("WMC"). (Id. ¶ 44.) At approximately 2:37 a.m.,
Boggi called Ulloa to inform him of the findings of the
assessment. (Id. ¶ 45.) Boggi and Ulloa discussed that
Decedent had experienced [*5] the same chest
discomfort a few nights prior. (Id.) During the telephone
call, Ulloa instructed Boggi to provide Decedent with
Zantac and Mylanta to treat indigestion. (Id. ¶ 46.)
At approximately 3:00 a.m., Decedent was sent to the
clinic to receive these medications. (Id. ¶ 47). He was
squealing in pain and said to Smith, another nurse at
WCJ, that he did not want to die. (Id.) At approximately
3:24 a.m., Decedent was transported to the booking
area of WCJ, where he was monitored and observed by
Boggi. (Id. ¶ 48.) After Boggi and Smith determined that
Decedent was well enough to return to his cell, he was
sent back to his cell at approximately 4:16 a.m. (Id. ¶
49.) Nine minutes later, Boggi, Smith, and Jordan, also
a nurse at WCJ, responded to a "Signal 3" alert and
discovered Decedent lying on the floor of the hallway
after having collapsed. (Id. ¶ 50.) Decedent was non-
verbal and dazed at this time, (id.), and Boggi
characterized his low pulse readings as "not good," (id.
¶ 51 (internal quotation marks omitted)). Smith told
Decedent to get up and attempted to pull him up by his
arm several times. (Id. ¶ 52.) Decedent was eventually
able to lift himself up into a wheelchair, after [*6] which
Smith accused Decedent of trickery and expressed
doubt that he had a serious medical concern. (Id.) She
stated, "I've been doing this too long to be fooled,"
"that's the oldest trick in corrections, he's not going to
the clinic, he's going to his cell," and "that's the oldest
trick in the book." (Id.) At approximately 4:30 a.m., Smith
transported Decedent to his cell, (id. ¶ 53), where he
was moaning in pain, (id. ¶ 54).
When Decedent became unresponsive at around 5:00
a.m., Grant called Smith to inform her of Decedent's
current condition. (Id. ¶ 55.) At approximately 5:05 a.m.,
Smith arrived at Decedent's cell and observed that he
was still unresponsive. (Id. ¶ 56.) She then entered his
cell, provided some degree of medical treatment, and
ordered that another "Signal 3" alert be announced. (Id.)
At approximately 5:09 a.m., Jordan arrived at
Decedent's cell to assist Smith. (Id. ¶ 57.) Smith called
Ulloa, who was not present at WCJ, to alert him that
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Page 3 of 23
Decedent was unconscious. (Id.)
At approximately 5:12 a.m., Smith instructed Captain
Francis Delgrosso ("Delgrosso") to call 911. (Id. ¶ 58.)
Three minutes later, Empress dispatched an ambulance
from its station in Yonkers, located [*7] 11 miles from
WCJ. (Id. ¶ 59.) At approximately 5:16 a.m., Boggi
arrived at Decedent's cell to provide medical treatment
to Decedent alongside Smith and Jordan. (Id. ¶ 60.) At
5:38 a.m., Castro and EMS John Doe, emergency
medical service providers employed by Empress,
arrived at WCJ and unsuccessfully attempted to have
Decedent regain consciousness. (Id. ¶ 61.) Thereafter,
Empress transported Decedent to WMC, where medical
staff unsuccessfully attempted to have him regain
consciousness. (Id. ¶ 62.) Decedent was declared dead
at 6:16 a.m. (Id.) The autopsy listed his cause of death
as stenosing coronary arteriosclerosis. (Id. ¶ 65.)
In the evening of January 29, Smith called Boggi to
discuss the events surrounding Decedent's death and
made clear that the nurses needed to "stick together."
(Id. ¶ 63.) When Smith again called Boggi later that
evening, he did not answer her calls. (Id.)
B. Procedural Background
Plaintiff commenced the instant Action on April 28,
2014, (Dkt. No. 1), and filed her Amended Complaint on
July 25, 2014, (Dkt. No. 31).1 Plaintiff then filed her
Second Amended Complaint on December 8, 2014.
(Dkt. No. 53.)
Pursuant to a Scheduling Order adopted by the Court
on February 26, 2015, (Dkt. No. 57), Westchester
Defendants submitted their Motion To Dismiss and
supporting papers on April 17, 2015, (Dkt. Nos. 63-65.)
That same day, Empress Defendants submitted their
own Motion To Dismiss and supporting papers, which
included a Verified Answer to Plaintiff's Second
Amended Complaint. (Dkt. Nos. 66-68.) Plaintiff filed her
opposition papers to Westchester Defendants' Motion
on June 12, 2015, (Dkt. Nos. 82-83), and her opposition
papers to Empress Defendants' Motion on June 30,
2015, (Dkt. Nos. 89-90). Westchester Defendants
submitted their reply on July 2, 2015, (Dkt. No. 92), and
Empress Defendants submitted their reply on July 9,
2015, (Dkt. No. 98). The Court denied Plaintiff's
1 A Notice of Claim pursuant to New York General Municipal
Law § 50-e was timely served on Westchester [*8] on March
13, 2013. (SAC ¶ 66.) An amended Notice of Claim was
served on March 26, 2014. (Id.)
application for leave to file a sur-reply in opposition to
the Motions. (Dkt. No. 97.)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint
"does not need detailed factual allegations" to survive a
motion to dismiss, "a plaintiff's obligation to provide the
'grounds' of his [or her] 'entitle[ment] to relief' [*9]
requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)
(alterations, citations, and internal quotation marks
omitted).2 Indeed, Rule 8 of the Federal Rules of Civil
Procedure "demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation." Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed.
2d 868 (2009). "Nor does a complaint suffice if it tenders
naked assertions devoid of further factual
enhancement." Id. (internal quotation marks and
alterations omitted). Rather, a complaint's "[f]actual
allegations must be enough to raise a right to relief
above the speculative level." Twombly, 550 U.S. at 555.
Although "once a claim has been stated adequately, it
may be supported by showing any set of facts
consistent with the allegations in the complaint," id. at
563, and a plaintiff must allege "only enough facts to
state a claim to relief that is plausible on its face," id. at
570, if a plaintiff has not "nudged [her] claim[] across the
line from conceivable to plausible, the[] complaint must
be dismissed," id.; see also Iqbal, 556 U.S. at 679
("Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. But where the well-
pleaded facts do not permit the court [*10] to infer more
than the mere possibility of misconduct, the complaint
has alleged—but it has not 'show[n]'—'that the pleader
is entitled to relief.'" (second alteration in original)
2 While Empress Defendants have indicated their intent to
seek relief under Federal Rule of Civil Procedure 12(c),
because an Answer to Plaintiff's Second Amended Complaint
had previously been served, (see Dkt. No. 79), that distinction
ultimately has no bearing on the Court's present analysis. "The
standard for addressing a Rule 12(c) motion for judgment on
the pleadings is the same as that for a Rule 12(b)(6) motion to
dismiss for failure to state a claim." Hogan v. Fischer, 738 F.3d
509, 514-15 (2d Cir. 2013) (internal quotation marks omitted).
2016 U.S. Dist. LEXIS 41120, *6
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Page 4 of 23
(citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at
678-79 ("Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading
regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions.").
In addition, "when ruling on a defendant's motion to
dismiss, a judge must accept as true all of the factual
allegations contained in the complaint." Erickson v.
Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d
1081 (2007) (per curiam); see also Nielsen v. Rabin,
746 F.3d 58, 62 (2d Cir. 2014) ("In addressing the
sufficiency of a complaint we accept as true all factual
allegations . . . ." (internal quotation marks omitted));
Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d
166, 176 (2d Cir. 2013) ("In reviewing a dismissal
pursuant [*11] to Rule 12(b)(6), we . . . accept all
factual allegations in the complaint as true . . . ."
(alterations and internal quotation marks omitted)).
Further, "[f]or the purpose of resolving [a] motion to
dismiss, the [c]ourt . . . draw[s] all reasonable inferences
in favor of the plaintiff." Daniel v. T & M Prot. Res., Inc.,
992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing
Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir.
2012)).
Lastly, "[i]n ruling on a 12(b)(6) motion, . . . a court may
consider the complaint[,] . . . any written instrument
attached to the complaint as an exhibit[,] or any
statements or documents incorporated in it by
reference," as well as "matters of which judicial notice
may be taken, and documents either in plaintiffs'
possession or of which plaintiffs had knowledge and
relied on in bringing suit." Kalyanaram v. Am. Ass'n of
Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d
42, 44 n.1 (2d Cir. 2014) (alterations and internal
quotation marks omitted); see also Leonard F. v. Isr.
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) ("In
adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of
the complaint, in documents appended to the complaint
or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken." (internal
quotation marks omitted)).
B. Deliberate Indifference Claims
Plaintiff alleges that "on January 29, 2013 [Decedent]
presented a severe and urgent medical need that posed
a sufficiently serious risk of death [*12] that was not
treated with adequate medical care by . . . Ulloa, Boggi,
Smith, Jordan, Castro[,] and EMS John Doe." (SAC ¶
77.) According to the Second Amended Complaint,
these Defendants "knew of and recklessly disregarded a
substantial risk of serious harm to [Decedent's] health
and safety despite obvious indications that he was
suffering from a heart attack." (Id. ¶ 78.)
1. Applicable Law
"The Eighth Amendment forbids deliberate indifference
to serious medical needs of prisoners." Spavone v. N.Y.
State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir.
2013) (internal quotation marks omitted). "There are two
elements to a claim of deliberate indifference to a
serious medical condition." Caiozzo v. Koreman, 581
F.3d 63, 72 (2d Cir. 2009). "The first requirement is
objective: the alleged deprivation of adequate medical
care must be sufficiently serious." Spavone, 719 F.3d at
138 (internal quotation marks omitted). Under this
objective requirement, a court must inquire first,
"whether the prisoner was actually deprived of adequate
medical care," and second, "whether the inadequacy in
medical care is sufficiently serious." Salahuddin v.
Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). The latter
requires the Court "to examine how the offending
conduct is inadequate and what harm, if any, the
inadequacy has caused or will likely cause the prisoner."
Id. at 280. As part of this objective element, "the inmate
must show that [*13] the conditions, either alone or in
combination, pose an unreasonable risk of serious
damage to his health." Walker v. Schult, 717 F.3d 119,
125 (2d Cir. 2013). "There is no settled, precise metric
to guide a court in its estimation of the seriousness of a
prisoner's medical condition." Brock v. Wright, 315 F.3d
158, 162 (2d Cir. 2003). Nevertheless, the Second
Circuit has presented "a non-exhaustive list" of factors
to consider: "(1) whether a reasonable doctor or patient
would perceive the medical need in question as
'important and worthy of comment or treatment,' (2)
whether the medical condition significantly affects daily
activities, and (3) 'the existence of chronic and
substantial pain.'" Id.; see also Morales v. Fischer, 46 F.
Supp. 3d 239, 247 (W.D.N.Y. 2014) (same).
"The second requirement is subjective: the charged
officials must be subjectively reckless in their denial of
medical care." Spavone, 719 F.3d at 138. Here, the
inquiry is whether defendants "knew of and disregarded
an excessive risk to [a plaintiff's] health or safety" while
"both aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed,
and also drew the inference." Caiozzo, 581 F.3d at 72
(alterations and internal quotation marks omitted); see
also Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct.
2016 U.S. Dist. LEXIS 41120, *10
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Page 5 of 23
1970, 128 L. Ed. 2d 811 (1994) ("[T]he official must both
be aware of facts from which the inference could be
drawn that a substantial risk of serious harm [*14]
exists, and he [or she] must also draw the inference.").
"Deliberate indifference is a mental state equivalent to
subjective recklessness," and it "requires that the
charged official act or fail to act while actually aware of a
substantial risk that serious inmate harm will result."
Nielsen, 746 F.3d at 63 (internal quotation marks
omitted); see also Gladden v. City of N.Y., No. 12-CV-
7822, 2013 U.S. Dist. LEXIS 123819, 2013 WL
4647193, at *2 (S.D.N.Y. Aug. 29, 2013) ("To meet the
subjective element, the plaintiff must show that the
defendant acted with more than mere negligence, and
instead knew of and disregarded an excessive risk to
inmate health or safety." (internal quotation marks
omitted)). In contrast, "mere medical malpractice is not
tantamount to deliberate indifference," unless "the
malpractice involves culpable recklessness, i.e., . . . a
conscious disregard of a substantial risk of serious
harm." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.
1998) (internal quotation marks omitted). Moreover,
"mere disagreement over the proper treatment does not
create a constitutional claim," and "so long as the
treatment given is adequate, the fact that a prisoner
might prefer a different treatment does not give rise to
an Eighth Amendment violation." Id.; see also Crique v.
Magill, No. 12-CV-3345, 2013 U.S. Dist. LEXIS 95617,
2013 WL 3783735, at *3 (S.D.N.Y. July 9, 2013) ("The
mere fact that an inmate feels that he did not receive
adequate attention . . . does not constitute deliberate
indifference."). [*15]
2. Analysis
The first question, then, is whether Decedent's condition
was sufficiently serious under the objective prong of the
deliberate indifference standard. Accepting Plaintiff's
allegations as true, this Court concludes that it was.
"[S]evere chest pain, a symptom consistent with a heart
attack, is a serious medical condition under the
objective prong of the Eighth Amendment's deliberate
indifference standard." Mata v. Saiz, 427 F.3d 745, 754
(10th Cir. 2005); see also Flemming v. Velardi, No. 02-
CV-4113, 2003 U.S. Dist. LEXIS 13078, 2003 WL
21756108, at *2 (S.D.N.Y. July 30, 2003) (recognizing
that "a severe heart condition can be sufficiently
serious" (internal quotation marks omitted)).3 While
3 Some courts have suggested that only "[d]iagnosed heart
conditions or disease have been recognized as a serious
medical condition." Bruno v. Wright, No. 06-CV-808, 2008 U.S.
chest pains alone generally do not constitute a
sufficiently serious medical condition for purposes of a
deliberate indifference claim, see, e.g., Hutchinson v.
N.Y. State Corr. Officers, No. 02-CV-2407, 2003 U.S.
Dist. LEXIS 15417, 2003 WL 22056997, at *5 (S.D.N.Y.
Sept. 4, 2003) (holding the plaintiffs' allegation "that [the
decedent] was experiencing 'chest pains' . . . does not
constitute a sufficiently serious condition" (citation
omitted)); Flemming, 2003 U.S. Dist. LEXIS 13078,
2003 WL 21756108, at *2 (finding mere allegations of
"chest pains" and "discomfort" insufficient to trigger an
Eighth Amendment claim (internal quotation marks
omitted)), the Second Amended Complaint alleges that
on January 29 Plaintiff suffered not only chest pains, but
also "abnormally high blood pressure" and "a very low
pulse rate," (SAC ¶ 42). This combination of symptoms,
along with the allegations [*16] of substantial pain,
(see, e.g., id. ¶ 47 (alleging Decedent "was squealing in
pain")), establishes Decedent's medical condition as
sufficiently serious under the objective prong, see
Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir.
2000) (finding the objective prong satisfied by "evidence
that [an inmate] suffered from severe chest pain which
he reasonabl[y] believed was caused by a heart
attack"); Escobar v. Reid, 668 F. Supp. 2d 1260, 1310
(D. Colo. 2009) (finding the "[p]laintiff's allegations that
he suffered severe chest pains over the period of
several hours [were] sufficient to establish that his
medical condition was objectively sufficiently serious");
Adams v. Franklin, 111 F. Supp. 2d 1255, 1270 (M.D.
Ala. 2000) (finding the "[p]laintiff's medical needs were
sufficiently serious" based on his allegations "that he
was suffering from chest pains and shortness of
breath"); Mandala v. Coughlin, 920 F. Supp. 342, 353
(E.D.N.Y. 1996) (noting that "ignoring a prisoner's
complaints of chest pains where the prisoner later died
of a heart attack" has been found to constitute a serious
medical need).
Turing to the subjective prong, the Court next must
determine whether Defendants were deliberately
indifferent to that serious medical need. While unable to
state a claim against either Ulloa or Castro, Plaintiff has
Dist. LEXIS 96374, 2008 WL 5100278, at *6 (N.D.N.Y. Nov.
26, 2008); see also Bennett v. Hunter, No. 02-CV-1365, 2006
U.S. Dist. LEXIS 100818, 2006 WL 1174309, at *3 (N.D.N.Y.
May 1, 2006) (noting that, "[d]epending on the precise nature
of the disease, generally a heart condition" will constitute a
serious medical need (emphasis added)). In this regard, it
bears noting that the autopsy of Decedent listed his
cause [*17] of death as coronary arteriosclerosis, (SAC ¶ 65),
a recognized heart disease, see M. Gabriel Khan,
Encyclopedia of Heart Diseases 101-03 (2005).
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Page 6 of 23
pled sufficient facts suggesting Boggi, Smith, and
Jordan acted with the requisite mental culpability.
a. Ulloa, Boggi, Smith, and Jordan
The Second Amended Complaint asserts that Ulloa,
Boggi, Smith, and Jordan were deliberately indifferent in
"denying [Decedent] lifesaving medical treatment and
wheeling him to his cell to die." (SAC ¶ 79.) Specifically,
Plaintiff alleges that Decedent (i) was "denied access to
a heart monitor, oxygen, intravenous fluids,
nitroglycerin, a physical examination from a doctor, and
emergency medical services from third party medical
professionals" on the morning of January 29, (Pl.'s
Opp'n to Westchester Defs.' Mot. to Dismiss ("Pl.'s
Opp'n to Westchester Defs.") 12-13 (Dkt. No. 83) (citing
SAC ¶¶ 42, 44-45)), (ii) "was recklessly discharged from
the care of . . . [D]efendants and sent back to his cell,"
(id. at 13 (citing [*18] SAC ¶ 49)), and (iii) "was left
alone in his cell with absolutely no medical care . . . as
he was moaning and agonizing in pain," (id. at 13-14
(citing SAC ¶ 49)). The Court addresses these
allegations in chronological order, ultimately concluding
Plaintiff has plausibly pled deliberate indifference on the
part Boggi, Smith, and Jordan. As to Ulloa, however, the
Second Amended Complaint fails to satisfy the
subjective prong.
First, Plaintiff alleges that a denial of medical care
occurred on January 29, between 2:12 a.m. and 2:37
a.m., when Boggi performed "a simple health
assessment" of Decedent in response to his complaint
of chest pains. (SAC ¶ 42.) The Second Amended
Complaint faults Boggi for failing to place Decedent on a
heart monitor, provide him with nitroglycerin or oxygen,
"consider a differential diagnosis that would include
chest pain secondary to an acute obstructive coronary
artery syndrome," or call an ambulance. (Id. ¶ 44.) While
Plaintiff has not pled that Boggi even had authority to
make such medical decisions, see Jacoby v. Cty. of
Oneida, No. 05-CV-1254, 2009 U.S. Dist. LEXIS 83235,
2009 WL 2971537, at *4 (N.D.N.Y. Sept. 11, 2009)
(dismissing deliberate indifference claim against a nurse
who "lacked the authority to make medical decisions
directly related to [the] [p]laintiff"), the facts nonetheless
fail [*19] to suggest that at this point Boggi was
"actually aware of a substantial risk" to Decedent's
health, Nielsen, 746 F.3d at 63 (emphasis added)
(internal quotation marks omitted). That Decedent had
previously complained of chest pains on January 16,
(see SAC ¶ 39), on its own, does not give rise to an
inference that Defendants had prior knowledge of an
excessive risk to his health or safety, cf. Kidkarndee v.
Koenigsmann, No. 12-CV-502, 2013 U.S. Dist. LEXIS
186352, 2014 WL 1239319, at *15 (N.D.N.Y. Mar. 25,
2014) (dismissing deliberate indifference where the
plaintiff complained of chest pains for a third time but
"neither [prior] hospital visitation produced diagnoses of
a heart attack"). Plaintiff alleges no other symptoms
accompanying the original "complaints of chest pains"
on January 16 that would suggest more than an isolated
incident of discomfort, (see SAC ¶ 39), nor does she
allege that Decedent continued to complain after he
received medical attention on that occasion or during
the two weeks leading up to his second complaint of
chest discomfort, (see generally id. ¶¶ 39-41).
Furthermore, there is no allegation that Decedent had a
diagnosed heart condition. While the Second Amended
Complaint notes that no tests apart from a chest X-ray
were performed on January 16 and no follow-up tests
were performed after Ulloa [*20] received the results of
the X-ray, (see id. ¶¶ 39-40), Plaintiff's disagreements
with the diagnostic techniques and treatment by medical
personnel cannot form the basis for a § 1983 claim.
These are precisely the sorts of "issues [that] implicate
medical judgments and, at worst, negligence amounting
to medical malpractice, but not the Eighth Amendment."
Whitfield v. O'Connell, No. 09-CV-1925, 2010 U.S. Dist.
LEXIS 25584, 2010 WL 1010060, at *7 (S.D.N.Y. Mar.
18, 2010) (internal quotation marks omitted), aff'd, 402
F. App'x 563 (2d Cir. 2010); see also Jones v. Vives,
523 F. App'x 48, 50 (2d Cir. 2013) (finding a doctor's
treatment of an inmate's broken hand with Motrin and
failure to order X-ray until several days later was an
issue of medical judgment that could not support a §
1983 claim). Indeed, Plaintiff at no point even alleges
that the results of the X-ray warranted any follow-up by
medical personnel.
Notably, the Second Amended Complaint is devoid of
any allegation that Decedent knew he had a heart
condition, that he had been previously diagnosed with a
heart condition, or that he had ever reported a heart
condition to WCJ medical personnel prior to these
incidents.4 Although awareness may be proven "from
the very fact that the risk was obvious," Farmer, 511
U.S. at 842; see also McMillian v. Cty. of Onondaga,
No. 13-CV-1124, 2015 U.S. Dist. LEXIS 39393, 2015
WL 1403459, at *19 (N.D.N.Y. Mar. 26, 2015) ("A
plaintiff . . . must show that the official was aware of
facts from which one could infer that a substantial risk of
4 In fact, the Second Amended Complaint notes that
Decedent's initial health assessment showed nothing more
than a normal blood pressure reading. (SAC ¶ 37.)
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Page 7 of 23
serious harm exists."), [*21] it cannot be said such a
risk was obvious based only on Decedent's "feeling
discomfort in his chest," (SAC ¶ 41), accompanied by
high blood pressure and a low pulse rate, (id. ¶ 42), but
nothing more, compare McCoy v. Goord, 255 F. Supp.
2d 233, 260 (S.D.N.Y. 2003) (concluding that a plaintiff
who claimed prison officials failed to treat him for chest
pains did not state an Eighth Amendment claim of
deliberate indifference), with Buffaloe v. Fein, No. 12-
CV-9469, 2013 U.S. Dist. LEXIS 96936, 2013 WL
3471060, at *1-2 (S.D.N.Y. July 11, 2013) (report and
recommendation) (finding both prongs of the deliberate
indifference standard satisfied where a prison official
allegedly "denied [the plaintiff] access to a cardiologist
despite being aware of his worsening cardiac condition"
where the plaintiff had experienced complications from
heart surgery he underwent prior to his placement in
that prison). Thus, that Boggi, Smith, or Jordan
presumably knew of the earlier complaint of chest pains
does not give rise to the inference that Defendants
knew, prior to January 29, of an "excessive risk" to
Decedent's health, see Farmer, 511 U.S. at 837;
Brown v. Jeanty, No. 03-CV-8712, 2009 U.S. Dist.
LEXIS 126155, 2009 WL 6065754, at *9 (S.D.N.Y. July
23, 2009) (finding "the severe nature of [the plaintiff's]
injuries was not apparent enough to provide notice of a
substantial risk of serious harm"), adopted by 2010 U.S.
Dist. LEXIS 26929, 2010 WL 1047651 (S.D.N.Y. Mar.
22, 2010), or that specific medical treatment, such as
administration of nitroglycerin [*22] or oxygen, was
deliberately or recklessly withheld at this point, see
Washington v. Westchester Cty. Dep't of Corr., No. 13-
CV-5322, 2014 U.S. Dist. LEXIS 58015, 2014 WL
1778410, at *7 (S.D.N.Y. Apr. 25, 2014) (finding the
plaintiff "failed to plead deliberate indifference" by
"fail[ing] to allege any facts demonstrating that [the]
[d]efendants deliberately withheld his medication");
Baskerville v. Blot, 224 F. Supp. 2d 723, 735-36
(S.D.N.Y. 2002) ("[B]ecause [the plaintiff's] assertions
do not show that [the defendant] acted intentionally to
withhold from him his prescribed medication . . . , he has
failed to state an Eighth Amendment claim of deliberate
indifference to a serious medical need."); Joyner v.
Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002)
(explaining that the subjective prong requires "some
evidence that the health care providers knowingly and
intentionally rendered improper treatment" (citing
Farmer, 511 U.S. at 837)).
Without any prior knowledge, the complained-of
decisions by Boggi prior to 4:25 a.m. are not "instances
of . . . Decedent's being deprived of adequate medical
care," (Pl.'s Opp'n to Westchester Defs. 12), but rather
the sort of disputes that do not amount to constitutional
violations, see Whitfield, 2010 U.S. Dist. LEXIS 25584,
2010 WL 1010060, at *7 ("Disagreements over
medications, diagnostic techniques, forms of treatment,
or the need for specialists[,] or the timing of their
intervention, [*23] are not adequate grounds for a [ § ]
1983 claim." (alterations and internal quotation marks
omitted)); Burke v. Pillai, No. 14-CV-1680, 2015 U.S.
Dist. LEXIS 45722, 2015 WL 1565413, at *6 (D. Conn.
Apr. 8, 2015) ("[A]lthough the provision of medical care
by prison officials is not discretionary, the type and
amount of medical treatment is discretionary."
(emphasis added) (internal quotation marks omitted)).
Plaintiff's insistence that Defendants should have
conducted further tests at this early stage, at best,
states a claim for medical negligence, which is not
actionable under § 1983. See, e.g., Estelle v. Gamble,
429 U.S. 97, 107, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)
("[T]he question whether an X-ray or additional
diagnostic techniques or forms of treatment is indicated
is a classic example of a matter for medical judgment. A
medical decision not to order an X-ray, or like
measures, does not represent cruel and unusual
punishment."); O'Diah v. Mawhir, No. 08-CV-322, 2012
U.S. Dist. LEXIS 138357, 2012 WL 4482579, at *9
(N.D.N.Y. Sept. 5, 2012) (finding no Eighth Amendment
violation where the plaintiff alleged that "different or
additional tests should have been run or medication
prescribed"), adopted by 2012 U.S. Dist. LEXIS 138358,
2012 WL 4471183 (N.D.N.Y. Sept. 26, 2012); Joyner,
195 F. Supp. 2d at 504-05 (finding a doctor's refusal to
order an MRI not actionable under the Eighth
Amendment). Indeed, "treatment of a prisoner's medical
condition generally defeats a claim of deliberate
indifference." Peterson v. Miller, No. 04-CV-797, 2007
U.S. Dist. LEXIS 102527, 2007 WL 2071743, at *10
(N.D.N.Y. July 13, 2007) (internal quotation marks
omitted); see also Johnson v. Wright, 234 F. Supp. 2d
352, 361 (S.D.N.Y. 2002) ("Generally, where the dispute
concerns not the absence of help, but the choice of
a [*24] certain course of treatment[,] a court will not
second guess the [medical personnel]." (alterations and
internal quotation marks omitted)). Between 2:12 a.m.
and 2:37 a.m., Boggi not only performed a health
assessment of Decedent but also called Ulloa within
minutes of noting Decedent's irregular blood pressure
and pulse, so as to advise him of the findings of that
assessment and, presumably, to discuss the next steps
in Decedent's treatment. (SAC ¶¶ 45-46.) There is thus
no outright denial of care alleged here, and nor are
there accompanying facts from which it can be inferred
that Boggi knew of and disregarded a substantial risk of
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Page 8 of 23
serious harm to Decedent. Notwithstanding the tragic
loss of life that ultimately resulted, it bears noting that
the benefit of hindsight cannot support a claim of
deliberate indifference to a serious medical need that
was unknown at the time of treatment. See Figueroa v.
Semple, No. 12-CV-982, 2015 U.S. Dist. LEXIS 68854,
2015 WL 3444319, at *5 (D. Conn. May 28, 2015)
("Although the injuries suffered by the plaintiff provide
the [c]ourt with the benefit of hindsight, they do not show
that, at the time of the incident in question, the
defendants disregarded an excessive risk to the
plaintiff's safety."); Wise v. Ranck, No. 07-CV-1899,
2008 U.S. Dist. LEXIS 90306, 2008 WL 4861974, at *3
(M.D. Pa. Nov. 6, 2008) ("[D]eliberate indifference must
be viewed from the prison official's perspective [*25] at
the time in question, not with hindsight's perfect
vision."), reconsideration denied, 2009 U.S. Dist. LEXIS
44085, 2009 WL 1458106 (May 26, 2009).
Plaintiff's next allegation of deliberate indifference rests
upon Ulloa's misdiagnosis of indigestion and prescribed
course of treatment between 2:37 a.m. and 3:00 a.m.
(See SAC ¶¶ 45-47.) However, a "complaint that a
physician has been negligent in diagnosing or treating a
[prisoner's] medical condition does not state a valid
claim of medical mistreatment under the Eighth
Amendment." Estelle, 429 U.S. at 106; see also Smith v.
Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) ("Because
the Eighth Amendment is not a vehicle for bringing
medical malpractice claims, nor a substitute for state tort
law, not every lapse in prison medical care will rise to
the level of a constitutional violation."); Harris v.
Westchester Cty. Med. Ctr., No. 08-CV-1128, 2011 U.S.
Dist. LEXIS 72566, 2011 WL 2637429, at *3 (S.D.N.Y.
July 6, 2011) (holding that allegations of misdiagnosis,
"without more," do not state a cause of action under the
Eighth Amendment). That is precisely the case in the
instant Action, where, according to Second Amended
Complaint, "Ulloa negligently instructed . . . Boggi to
provide [Decedent] with Zantac and Mylanta for what
was misdiagnosed as indigestion." (SAC ¶ 46
(emphasis added).)5 This allegation falls far short of the
5 Plaintiff herself concedes "it is arguable that . . . Decedent
being denied access [*27] to a heart monitor, oxygen,
intravenous fluids, nitroglycerin, a physical examination from a
doctor, and emergency medical services from third[-]party
medical professionals, and instead prescribed Mylanta and
Zantac is a misdiagnosis." (Pl.'s Opp'n to Westchester Defs.
14.) As her only caveat to this acknowledgement, she states
that "it is still plausible that he was denied access at this time."
(Id.) But, in doing so, Plaintiff misses the point, for whether
"culpable recklessness" required under the deliberate
indifference standard, Chance, 143 F.3d at 703; see
also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.
2003) ("Deliberate indifference is a state [*26] of mind
that is the equivalent of criminal recklessness." (internal
quotation marks omitted)), whereby a complaint must
allege a defendant "act[ed] or fail[ed] to act while
actually aware of a substantial risk that serious inmate
harm will result," Salahuddin, 467 F.3d at 280 (citing
Farmer, 511 U.S. at 836-37); see also Beaman v.
Unger, 838 F. Supp. 2d 108, 110 (W.D.N.Y. 2011) ("The
most that [the plaintiff's] allegations show, however, is
that the [defendants] misdiagnosed his injuries, and
failed to recognize the severity of those injuries. Such
allegations might conceivably show malpractice, but
they do not state an Eighth Amendment claim."
(citations omitted)); Woodhull v. Cty. of Kent, No. 04-
CV-203, 2006 U.S. Dist. LEXIS 54028, 2006 WL
2228986, at *10 (W.D. Mich. Aug. 3, 2006) (rejecting
claim of deliberate indifference where the defendant
possibly committed malpractice in failing to recognize
the severity of an inmate's seizure condition that
ultimately resulted in his death); Thomas v. Wright, No.
99-CV-2071, 2002 U.S. Dist. LEXIS 19618, 2002 WL
31309190, at *8-9 (N.D.N.Y. 2002) (holding that,
"[a]lthough they may have failed to diagnose or even
detect his cancer," the defendants did not act with
"deliberate indifference" because they "ordered medical
tests, prescribed courses of treatments, and monitored
his laboratory and radiological reports"); Ortiz v.
Makram, No. 96-CV-3285, 2000 U.S. Dist. LEXIS
18428, 2000 WL 1876667, at *9 (S.D.N.Y. Dec. 21,
2000) (finding no constitutional claim where the plaintiff
alleged that medical personnel misdiagnosed his kidney
pain).
The Second Amended Complaint alleges that
"[Decedent] was then recklessly sent back to his cell at
approximately 4:16 a.m.," (SAC ¶ 49), having been
"monitored and observed by . . . Boggi" after he
received the prescribed medication, (id. ¶¶ 47-48).
Plaintiff further asserts that Boggi and Smith acted "with
complete indifference to [Decedent's] needs" in
"determin[ing] that he was well enough to be sent back
to his cell." (Id. ¶ 49.) The Court, however, need not
accept Plaintiff's legal conclusions as to Defendants'
states of mind, see Iqbal, 556 U.S. at 678 (reaffirming
that "the tenet that a court must accept as true all of the
Decedent should have had "access" to different treatment is,
to reiterate, not actionable under the Eight Amendment. See
Estelle, 429 U.S. at 107; O'Diah, 2012 U.S. Dist. LEXIS
138357, 2012 WL 4482579, at *9.
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Page 9 of 23
allegations contained in [*28] a complaint is
inapplicable to legal conclusions"); Crupar-Weinmann v.
Paris Baguette Am., Inc., 41 F. Supp. 3d 411, 414
(S.D.N.Y. 2014) (determining that the plaintiff's assertion
as to the defendant's recklessness "is merely a legal
conclusion and therefore must be disregarded"); Banks
v. United States, No. 10-CV-6613, 2011 U.S. Dist.
LEXIS 104684, 2011 WL 4100454, at *16 (S.D.N.Y.
Sept. 15, 2011) ("[p]utting aside [the] plaintiff's repeated
legal conclusions that various defendants were
'negligent' or demonstrated 'deliberate indifference'"),
adopted by 2011 U.S. Dist. LEXIS 130997, 2011 WL
5454550 (S.D.N.Y. Nov. 9, 2011), and instead focuses
solely on the factual allegations contained in the Second
Amended Complaint. As alleged, "Decedent's chest
pains," (SAC ¶ 49), even coupled with his low pulse and
high blood pressure, do not suggest Defendants were at
this time aware of a substantial risk of serious harm, let
alone that they knowingly disregarded such a risk, see
Brown, 2009 U.S. Dist. LEXIS 126155, 2009 WL
6065754, at *9 ("Without such notice [of the severity of
the inmate's injuries], [the defendant] could not have
acted with deliberate indifference"); McCoy, 255 F.
Supp. 2d at 260 (holding "that [the defendant] kept [the
plaintiff] waiting for twenty-five minutes and then sent
him back to his cell without treating his chest pains does
not amount to a constitutional deprivation" where the
plaintiff failed to allege, inter alia, "that [the defendant]
subjectively exhibited a deliberate indifference to his
medical condition"). "The [second] [*29] deliberate
indifference prong sets a high bar," Bouknight v. Yee-
Cheen Doung, No. 09-CV-5817, 2011 U.S. Dist. LEXIS
73891, 2011 WL 2682103, at *5 (S.D.N.Y. July 8, 2011);
see also Hot v. Carmel Cent. Sch. Dist., 994 F. Supp.
225, 228 (S.D.N.Y. 1998) ("The deliberate indifference
standard is a high one."), which the facts alleged by
Plaintiff have not yet reached.
Lastly, Plaintiff alleges a complete denial of care
between 4:25 a.m. and 5:00 a.m., (see SAC ¶¶ 50-54),
after "Boggi, Smith, and Jordan responded to a 'Signal
3' alert and found . . . Decedent lying on the floor of the
hallway," (id. ¶ 50). At approximately 4:30 a.m., Smith
"recklessly transported" Decedent to his cell "instead of
to a medical facility" and, in doing so, "intentionally
interfered" with his medical treatment while Boggi and
Jordan recklessly failed to "interven[e] and . . . make
appropriate accommodations for . . . Decedent to
urgently receive medical care at a medical facility." (Id. ¶
53.) In alleging that "Boggi, Smith, and Jordan
recklessly failed to provide . . . Decedent with any
medical treatment," (id. ¶ 54 (emphasis added)), the
Second Amended Complaint puts forth a plausible claim
of deliberate indifference, see Harding v. Kuhlmann, 588
F. Supp. 1315, 1316 (S.D.N.Y. 1984) ("Deliberate
indifference, the second essential element, is properly
pleaded by allegations," inter alia, "of 'complete denial'
of medical treatment . . . ."), aff'd, 762 F.2d 990 (2d Cir.
1985); accord Hilton v. Wright, 928 F. Supp. 2d 530,
547 (N.D.N.Y. 2013) ("When [*30] the alleged
deprivation is that the defendant failed to provide any
treatment for the medical condition, 'courts examine
whether the inmate's medical condition is sufficiently
serious.'" (emphasis in original) (quoting Salahuddin,
467 F.3d at 280)).
By 4:25 a.m., Decedent's chest pains had persisted for
over two hours and apparently had not been relieved by
the prescribed medication. (See SAC ¶ 50 (alleging that
at approximately 4:25 a.m. "Decedent was non-verbal
and dazed" after "collapsing from feeling dizzy").) To the
contrary, it seems clear that his condition had worsened
over the course of the morning, given that "he collapsed,
was dazed, [and] had low pulse readings that . . . Boggi
characterized as 'not good' . . . ." (Id. ¶ 51.) Boggi,
Smith, and Jordan, however, took no "reasonable
measures to abate [the risk of serious harm]," Farmer,
511 U.S. at 847; see also Johnson, 234 F. Supp. 2d at
360 ("Although federal courts are reluctant to second
guess medical judgments and constitutionalize medical
malpractice claims where the prisoner has actually
received medical treatment, deliberate indifference will
be found where the medical attention rendered was so
woefully inadequate as to amount to no treatment at all."
(alterations and internal quotation marks and [*31]
citations omitted)); indeed, they did not provide him with
any care.6 Despite the evident incorrectness of the initial
6 According to the Second Amended Complaint, Smith, after
responding to the "Signal 3" alert, "proceeded to state 'I've
been doing this too long to be fooled,' 'that's the oldest trick in
corrections, he's not going to the clinic, he's going to his cell,'
and 'that's the oldest trick in the book.'" (SAC ¶ 52.) While
such comments alone do not supply the predicate for a claim
of deliberate indifference, see Gay v. Terrell, No. 12-CV-2925,
2013 U.S. Dist. LEXIS 139654, 2013 WL 5437045, at *24
(E.D.N.Y. Sept. 27, 2013) (finding a prison official's allegedly
unprofessional comments did "not constitute deliberate
indifference to medical needs in violation of the Eighth
Amendment or any other constitutional violation"); Gumbs v.
Dynan, No. 11-CV-857, 2012 U.S. Dist. LEXIS 120664, 2012
WL 3705009, at *15 (E.D.N.Y. Aug. 26, 2012) (holding that a
prison official's remark, "while less than courteous in tone," did
not constitute deliberate indifference to the inmate's medical
needs), the complete denial of medical care after Decedent's
collapse, perhaps motivated by Smith's apparent skepticism of
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Page 10 of 23
diagnosis, Boggi, Smith, and Jordan sent Decedent
back to his cell, leaving him "moaning and agonizing in
pain while he was having a fatal heart attack." (SAC ¶
54.) See Baptiste v. Warden at Ottisville, FCI N.Y., No.
09-CV-5523, 2010 U.S. Dist. LEXIS 81291, 2010 WL
3185748, at *8 (S.D.N.Y. Aug. 11, 2010) (finding the
plaintiff's claims "sufficiently plausible to survive a
motion to dismiss" where he alleged that the defendant
doctor "watched [him] endure 'pain and suffering [and]
loss of eyesight,' instead of discontinuing the [prescribed
treatment] and performing additional tests to arrive at a
more conclusive diagnosis"); Candelaria v. Erickson,
No. 01-CV-8594, 2005 U.S. Dist. LEXIS 12840, 2005
WL 1529566, at *6 (S.D.N.Y. June 28, 2005) (holding
that the plaintiff satisfied the subjective prong by
alleging that the defendants were aware that a
misdiagnosis may have occurred but failed to take
additional diagnostic measures); cf. Harrison v. Barkley,
219 F.3d 132, 139 (2d Cir. 2000) ("Consciously
disregarding an inmate's legitimate medical needs is not
'mere medical malpractice.'" (quoting Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996))). It was not
until approximately 5:12 a.m., seven minutes after the
second "Signal 3" alert in response to Decedent's
collapse, that medical personnel took steps to provide
any care, but given Decedent's demise soon thereafter,
those steps were too late. (See SAC ¶ 58 ("[A]t
approximately [*32] 5:12 a.m., 911 was finally called . .
. .").) In alleging that Boggi, Smith, and Jordan denied
Decedent medical treatment between 4:25 a.m. and
5:00 a.m. in the face of his serious medical condition,
Plaintiff has plausibly pled that these three Defendants
acted with a sufficiently culpable state of mind for
liability under § 1983.
By contrast, the Second Amended Complaint reveals
that Ulloa was neither present at WCJ during this time
period nor updated about Decedent's status until
approximately 5:09 a.m. (SAC ¶¶ 45, 57.) Plaintiff
presents no factual allegations suggesting that Ulloa
knew, or had any reason to know, prior to the call from
Smith that he had misdiagnosed Decedent more than
two hours earlier and that Decedent's condition had
deteriorated over the course of the morning. There is
thus no basis from which to infer deliberate indifference
on the part of Ulloa.
In light of the foregoing analyses, the Court finds the
Second Amended Complaint states a viable claim of
deliberate indifference against Boggi, Smith, and
Jordan. Ulloa, however, is entitled to dismissal as to this
Decedent's [*33] condition, does.
cause of action.
b. Castro
According to the Second Amended Complaint, Castro
"knew of and disregarded a substantial risk of serious
harm to [Decedent's] health and safety despite being
informed that he was suffering from a heart attack."
(SAC ¶ 80.) Plaintiff further alleges that his "actions in
responding to . . . WCJ from Yonkers . . . instead of
having an Empress ambulance on-site . . . show a
deliberate indifference [*34] to . . . Decedent's serious
medical needs." (Id. ¶ 81.) However, these two bare
assertions are insufficient to state a claim for deliberate
indifference against Castro.
It is well established that "[c]onclusory allegations that
medical staff defendants were aware of a [prisoner's]
medical needs and failed to provide adequate care are
generally insufficient to state an Eighth Amendment
claim of inadequate medical care." Flemming v. Smith,
No. 11-CV-804, 2014 U.S. Dist. LEXIS 101812, 2014
WL 3698004, at *6 (N.D.N.Y. July 24, 2014); see also
Gumbs, 2012 U.S. Dist. LEXIS 120664, 2012 WL
3705009, at *12 ("[C]onclusory allegations that
defendants were aware of [a] plaintiff's medical needs . .
. but failed to respond are generally not sufficient proof
of [the] defendants' deliberate indifference and cannot
survive a Rule 12(b)(6) motion to dismiss."); Adekoya v.
Holder, 751 F. Supp. 2d 688, 697 (S.D.N.Y. 2010)
(finding conclusory allegations that the defendants were
aware of the plaintiff's medical needs and failed to
provide adequate care insufficient to defeat a motion to
dismiss); Evans v. Albany Cty. Corr. Facility, No. 05-CV-
1400, 2009 U.S. Dist. LEXIS 40630, 2009 WL 1401645,
at *9 (N.D.N.Y. May 14, 2009) (noting that "a showing of
deliberate indifference requires more than just vague
and conclusory allegations" (internal quotation marks
omitted)). Yet, the Second Amended Complaint is
entirely devoid of factual support for the above-
mentioned conclusions that Castro's conduct and state
of mind constituted deliberate indifference. (See SAC ¶¶
80-81.) Plaintiff at no point alleges that Castro, [*35] as
an EMS responder, engaged in any unnecessary or
undue delay in responding to the call from WCJ, nor
does she allege that Castro rendered any sort of
improper treatment once he reached Decedent. There is
also no allegation that Castro had any authority with
which to direct the dispatching of EMS responders to
various destinations or anything to do with the
placement of Empress ambulances, that Castro was a
"policymaker" at Empress, or that Castro had actual or
even constructive knowledge as to the availability of
Empress resources and/or personnel stationed closer to
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WCJ than from where he responded. (See generally id.
¶¶ 58-59, 61-62.)
In her opposition papers, Plaintiff asserts that "the
subjective test was met several times over as Castro
was well aware of the excessive risk to . . . Decedent's
health on the morning of January 29." (Pl.'s Opp'n to
Empress Defs.' Mot. to Dismiss ("Pl.'s Opp'n to Empress
Defs.") 12 (Dkt. No. 91).) This, however, entirely
disregards the remainder of that second prong, which
requires that an official not only know of an excessive
risk but also disregard that risk. See Gladden, 2013 U.S.
Dist. LEXIS 123819, 2013 WL 4647193, at *2. The
Second Amended Complaint is devoid of plausible
allegations that Castro knowingly [*36] and recklessly
disregarded any risk to Decedent's health, even as he
allegedly knew Decedent was suffering a heart attack.
(See SAC ¶ 80.) Indeed, Plaintiff's only support for the
issue of mental culpability is her conclusion that "the
SAC properly alleges that Castro knew of and recklessly
disregarded a substantial risk of serious harm to
[Decedent's] health and safety," (Pl.'s Opp'n to Empress
Defs. 11), which merely cites to a bare assertion from
the Second Amended Complaint, (see SAC ¶ 78). This
regurgitation of conclusory allegations is insufficient to
state a claim. See Morales, 46 F. Supp. 3d at 251
(holding that the "[p]laintiff's conclusory claims in
opposition do not demonstrate the requisite state of
mind for deliberate indifference"); cf. Hidalgo v.
Kikendall, No. 08-CV-7536, 2009 U.S. Dist. LEXIS
66020, 2009 WL 2176334, at *4 (S.D.N.Y. July 22,
2009) (granting motion to dismiss where a defendant's
"name only appears twice in the complaint, in
conclusory statements that [the defendant] displayed
deliberate indifference to [the plaintiff's] medical
needs"); Dove v. Fordham Univ., 56 F. Supp. 2d 330,
335 (S.D.N.Y. 1999) ("[W]here the complaint names a
defendant in the caption but contains no allegations
indicating how the defendant violated the law or injured
the plaintiff, a motion to dismiss the complaint in regard
to that defendant should be granted." (internal quotation
marks omitted), [*37] aff'd sub nom. Dove v. O'Hare,
210 F. 3d 354 (2d Cir. 2000).
The Court, therefore, dismisses the deliberate
indifference cause of action as to Castro.
C. Monell Claims
According to the Second Amended Complaint, "the
policies, practices and customs of . . . Westchester,
CCS, NYCCS, and Empress . . . were inadequate in that
there was a deliberate indifference to the[] serious
medical needs" of "WCJ inmates and detainees." (SAC
¶ 73.) Yet, for the reasons set forth below, this cause of
action brought under Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978) fails to state a claim upon
which relief can be granted.
1. Applicable Law
A municipal defendant "cannot be held liable under §
1983 on a respondeat superior theory." Monell, 436 U.S.
at 691 (italics omitted); see also Jones v. Town of E.
Haven, 691 F.3d 72, 80 (2d Cir. 2012) (reaffirming that
"a municipality cannot be held liable on a respondeat
superior basis for the tort of its employee" (italics
omitted)). Rather, for a plaintiff to prevail on a § 1983
claim against a municipal employer, she must satisfy the
requirements set forth in Monell and its progeny, which
adhere to the well-settled principle that "Congress did
not intend municipalities to be held liable [under § 1983]
unless action pursuant to official municipal policy of
some nature caused a constitutional tort." Monell, 436
U.S. at 691; see also Hunter v. City of N.Y., 35 F. Supp.
3d 310, 322 (E.D.N.Y. 2014) ("In order to sustain a
claim for relief [*38] pursuant to § 1983 against a
municipal defendant, a plaintiff must show the existence
of an official policy or custom that caused injury and a
direct causal connection between that policy or custom
and the deprivation of a constitutional right.").
A plaintiff may satisfy the "policy or custom" requirement
by alleging one of the following:
(1) a formal policy officially endorsed by the
municipality; (2) actions taken by government
officials responsible for establishing the municipal
policies that caused the particular deprivation in
question; (3) a practice so consistent and
widespread that, although not expressly authorized,
constitutes a custom or usage of which a
supervising policy-maker must have been aware; or
(4) a failure by policymakers to provide adequate
training or supervision to subordinates to such an
extent that it amounts to deliberate indifference to
the rights of those who come into contact with the
municipal employees.
Brandon v. City of N.Y., 705 F. Supp. 2d 261, 276-77
(S.D.N.Y. 2010) (citations omitted). In addition, a plaintiff
must establish a causal link between the municipality's
policy, custom, or practice and the alleged constitutional
injury. See Roe v. City of Waterbury, 542 F.3d 31, 37
(2d Cir. 2008) (holding that "a plaintiff must demonstrate
that, through its deliberate conduct, the [*39]
municipality was the moving force behind the alleged
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Page 12 of 23
injury" (internal quotation marks omitted)); Tieman v.
City of Newburgh, No. 13-CV-4178, 2015 U.S. Dist.
LEXIS 38703, 2015 WL 1379652, at *12 (S.D.N.Y. Mar.
26, 2015) ("[T]here must be a direct causal link between
a municipal policy or custom and the alleged
constitutional deprivation" (internal quotation marks
omitted)); Johnson v. City of N.Y., No. 06-CV-9426,
2011 U.S. Dist. LEXIS 15867, 2011 WL 666161, at *3
(S.D.N.Y. Feb. 15, 2011) (noting that "a plaintiff must
establish a causal connection—an affirmative link—
between the [municipal] policy and the deprivation of his
[or her] constitutional rights" (internal quotation marks
omitted)).
"Normally, a custom or policy cannot be shown by
pointing to a single instance of unconstitutional conduct
by a mere employee of the municipality." Tieman, 2015
U.S. Dist. LEXIS 38703, 2015 WL 1379652, at *12
(alterations and internal quotation marks omitted); see
also City of Okla. City v. Tuttle, 471 U.S. 808, 823-24,
105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985) (plurality
opinion) ("Proof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell,
unless proof of the incident includes proof that it was
caused by an existing, unconstitutional municipal policy
. . . [that] can be attributed to a municipal policymaker.");
Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411,
427 (S.D.N.Y. 2002) ("A single incident by itself is
generally insufficient to establish the affirmative link
between the municipal policy or custom and the alleged
unconstitutional violation."). There are at least two
circumstances that courts have [*40] expressly
identified as constituting a municipal policy: "where
there is an officially promulgated policy as that term is
generally understood," and "where a single act is taken
by a municipal employee who, as a matter of [s]tate law,
has final policymaking authority in the area in which the
action was taken." Newton v. City of N.Y., 566 F. Supp.
2d 256, 271 (S.D.N.Y. 2008) (footnote omitted). "A
municipal 'custom,' on the other hand, need not receive
formal approval by the appropriate decisionmaker," id.,
but nonetheless "may fairly subject a municipality to
liability on the theory that the relevant practice is so
widespread as to have the force of law," Kucharczyk v.
Westchester Cty., 95 F. Supp. 3d 529, 539 (S.D.N.Y.
2015) (internal quotation marks omitted); see also
Tieman, 2015 U.S. Dist. LEXIS 38703, 2015 WL
1379652, at *16 ("To prevail on this theory of municipal
liability, . . . a plaintiff must prove that the custom at
issue is permanent and well-settled.").
2. Analysis
The Second Amended Complaint contends that "[t]he
actions, omissions, and decisions made by Defendants .
. . regarding the provision of comprehensive health care
to WCJ inmates and detainees constitute their policies,
practices[,] and customs." (SAC ¶ 69.) Notwithstanding
this broad assertion, Plaintiff's allegations fail to
plausibly allege a Monell claim against Defendants.7
a. Westchester, CCS, and NYCCS
The Second Amended Complaint alleges three theories
of liability that seek to demonstrate a "policy and
custom" of Westchester, CCS, and NYCCS for
purposes of Monell: (i) a formal policy of understaffing;
(ii) a "practice of dispatching ambulances" from
Yonkers, rather than from an on-site facility; and (iii) a
pattern of providing inadequate health care to WCJ
inmates and detainees. (SAC ¶¶ 71-72, 74.)8
7 For the purposes of resolving these Motions, [*41] the Court
assumes CCS, NYCCS, and Empress to be a state actors
such that Monell would apply to these private entities providing
medical care to state inmates. Various courts in the Second
Circuit have adopted this approach, see Thomas v.
Westchester Cty., No. 12-CV-6718, 2013 U.S. Dist. LEXIS
93697, 2013 WL 3357171, at *6 n.13 (S.D.N.Y. July 3, 2013)
("assum[ing] without deciding for the purposes of this [m]otion
that Monell would apply to private entities providing care to
state inmates, such as CCS or NYCCS"); Bektic-Marrero v.
Goldberg, 850 F. Supp. 2d 418, 432-33 (S.D.N.Y. 2012)
(accepting the plaintiff's argument that a private entity acted
under color of state law by virtue of its agreement to
administer medical services to inmates at WCJ), and
Defendants do not argue otherwise.
8 Westchester Defendants argue that CCS is not a proper
party to this Action as a mere guarantor of NYCCS's
performance of its obligations under the Westchester-NYCCS
Contract. (See Westchester [*42] Defs.' Mem. of Law in Supp.
of Mot. ("Westchester Defs.' Mem.") 6 (Dkt. No. 65);
Westchester Defs.' Reply Mem. of Law in Supp. of Mot. 1-2
(Dkt. No. 92).) The Second Amended Complaint, however,
alleges that "NYCCS was at all times a corporate affiliate of
CCS created solely to be responsible for the provision of
medical care and treatment to WCJ inmates and detainees . . .
." (SAC ¶ 7.) Accepting this allegation as true, the Court finds
the alleged facts, though sparse, plausibly suggest that CCS,
as the parent corporation, "exercised complete dominion and
control over the subsidiary," NYCCS, so as to hold the former
liable for the torts of the latter. Potash v. Port Auth. of N.Y. &
N.J., 279 A.D.2d 562, 719 N.Y.S.2d 290, 291 (App. Div. 2001);
cf. Lipton v. Unumprovident Corp., 10 A.D.3d 703, 783
N.Y.S.2d 601, 603 (App. Div. 2004) ("Since the plaintiff has
alleged no facts indicating that [the parent] exercised such
dominion and control over [the subsidiary], there is no basis
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As to the first, the Second Amended Complaint alleges
a formal policy of Westchester, [*43] CCS, and NYCCS
"to not have a physician present at . . . WCJ at all times
. . . ." (Id. ¶ 72.) Plaintiff specifically complains that the
Westchester-NYCCS Contract required "only two
physicians [be] provided to WCJ inmates and detainees
for 40[-]hour shifts." (Id. ¶ 33.)9 Yet in doing so, Plaintiff
provides no constitutional benchmark against which to
measure the staffing levels under that contractual
agreement. The Court is thus left to rely on the general
consensus that an allegation of understaffing, without
more, does not amount to a constitutional violation. See,
e.g., McDowell v. Brown, 392 F.3d 1283, 1291 (11th Cir.
2004) (affirming that a plaintiff "cannot rely on a
generalized policy of understaffing" to sustain a § 1983
claim); Free v. Granger, 887 F.2d 1552, 1556 (11th Cir.
1989) ("It is not sufficient, however, to point to the
absence of a medical doctor, or of a round-the-clock
nurse, and decry the staffing policy as
unconstitutional."). The Second Amended Complaint
upon which to predicate liability against [the parent].").
Moreover, courts in this district have addressed similar cases
brought against both CCS and NYCCS. See, e.g., Alvarado v.
Westchester Cty., 22 F. Supp. 3d 208, 217 (S.D.N.Y. 2014)
(finding "[the] plaintiffs plausibly allege" that CCS and NYCCS
were deliberately indifferent to inmates' serious medical
needs).
9 Plaintiff further alleges that this staffing requirement fell short
of the "medical service staffing levels . . . provided by
WCHCC" in a prior contract with Westchester. (SAC ¶ 33.)
However, this allegation is blatantly contradicted by the terms
of the contracts themselves, which contain [*44] identical
staffing requirements and do not require a physician to be on-
site at all times. (Compare Decl. of John M. Murtagh, Esq. in
Supp. of Westchester Defs.' Mot. to Dismiss ("Murtagh Decl.")
Ex. B ("Westchester-NYCCS Contract") Schedule A, 9-10
(Dkt. No. 64) ("This minimum level of staffing requires that an
R.N. be on-site 24 hours per day, 7 days per week, 365 days
per year," though "the minimum level of staffing may be met by
substitution of advanced level practitioners in lieu of R.N."),
with id. Ex. C ("Westchester-WCHCC Contract") Schedule A,
9-10 (same).) The Court may properly consider these
documents as incorporated in the Second Amended
Complaint by reference, see Leonard, 199 F.3d at 107, and
"need not accept as true an allegation that is contradicted by
documents on which the complaint relies," Williams v.
Citibank, N.A., 565 F. Supp. 2d 523, 527 (S.D.N.Y. 2008)
(internal quotation marks omitted); see also Rapoport v. Asia
Elecs. Holding Co., 88 F. Supp. 2d 179, 184 (S.D.N.Y. 2000)
("If [incorporated] documents contradict the allegations of the .
. . complaint, the documents control and [a] [c]ourt need not
accept as true the allegations in the . . . complaint." (citation
omitted)).
fails to provide that something more.
Plaintiff presents no allegations that Westchester,
NYCCS, and CCS had "actual or constructive notice
that the [staffing policy] is substantially certain to
result [*45] in the violation of [inmates'] constitutional
rights." Alvarado, 22 F. Supp. 3d at 218 (internal
quotation marks omitted). Indeed, there is no allegation
of a constitutional deprivation or of a resulting injury to
accompany Plaintiff's complaint that Ulloa "was not
present at . . . WCJ" during the early morning hours of
January 29. (SAC ¶ 45.) Just as Decedent "is not
entitled to the treatment of his choice, it follows that he
is not entitled to receive treatment from a person of his
choice." Scarbrough v. Thompson, No. 10-CV-901,
2012 U.S. Dist. LEXIS 186898, 2012 WL 7761439, at
*12 (N.D.N.Y. Dec. 12, 2012), adopted by 2013 U.S.
Dist. LEXIS 35888, 2013 WL 1100680 (N.D.N.Y. Mar.
15, 2013). Moreover, the Second Amended Complaint
does not demonstrate a "direct causal connection"
between the constitutional deprivation suffered by
Decedent and this purported policy of understaffing. See
Hunter, 35 F. Supp. 3d at 322. Apart from the
conclusion that the "endorsed" practice "to have no
doctor on staff on the morning of January 29 . . . caused
the constitutional deprivations that were responsible for .
. . [D]ecedent's death," (Pl.'s Opp'n to Westchester Defs.
22), Plaintiff offers no factual allegations to establish
that requisite link.
Furthermore, Plaintiff fails to allege that the supposed
understaffing at WCJ caused violations of any other
inmates' constitutional rights. See Clouthier v. Cty. of
Contra Costa, 591 F.3d 1232, 1253 (9th Cir. 2010)
(rejecting the plaintiff's claim where "there was no
evidence [*46] that this alleged understaffing problem
led to repeated violations of inmates' constitutional
rights" (citing City of Canton v. Harris, 489 U.S. 378,
398, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)
(O'Connor, J., concurring in part and dissenting in
part))). The Second Amended Complaint points to no
other occasion when Westchester Defendants' staffing
policy "contributed to or exacerbated an inmate's
medical condition." McDowell, 392 F.3d at 1290-91
("While [the plaintiff's] case is tragic, he cannot point to
another occasion when the [j]ail's understaffing, and
resulting inability to transport, contributed to or
exacerbated an inmate's medical condition."). "Simply
put, this isolated incident, however unfortunate, does
not demonstrate evidence of [Westchester Defendants']
'persistent' or 'widespread' policy of understaffing the
[j]ail so as to delay the transfer of inmates." Id. Even
presuming that "the lack of physician access for WCJ
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Page 14 of 23
inmates and detainees" deprived Decedent of his
constitutional rights on January 29, 2013, (SAC ¶ 74),
"[a] Monell claim cannot go forward based on
conclusory claims regarding a single incident without
more evidence that connects this incident to a municipal
policy or practice," Pittman v. City of N.Y., No. 14-CV-
4140, 2014 U.S. Dist. LEXIS 178420, 2014 WL
7399308, at *7 (E.D.N.Y. Dec. 30, 2014); see also
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)
("Absent a showing of a causal link between an official
policy or custom and the plaintiffs' [*47] injury, Monell
prohibits a finding of liability against the [c]ity."); Gordon
v. City of N.Y., No. 10-CV-5148, 2012 U.S. Dist. LEXIS
44251, 2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29,
2012) (dismissing a Monell claim where the plaintiff's
"allegation is unsupported by anything other than the
facts of what occurred in his particular case"). This first
theory of liability thus cannot sustain a Monell claim
against Westchester, CCS, and NYCCS.
The Second Amended Complaint additionally alleges "a
policy of said Defendants to refrain from transporting
inmates with serious medical needs to . . . WMC in a
timely fashion." (SAC ¶ 72.) Specifically, Plaintiff
complains that, pursuant to "the agreement between . . .
Westchester, CCS, NYCCS, and Empress," (id. ¶ 34),
"the placement of the closest ambulance available to
WCJ inmates and detainees was [11] miles away in
Yonkers," (id.). Yet, in noting that Delgrosso called 911
the morning of January 29, 2013, (see id. ¶ 58), the
Second Amended Complaint indicates the Empress
ambulance that arrived at WCJ that morning had been
dispatched by 911, not pursuant to any such agreement
regarding inmate transport, (cf. Westchester-NYCCS
Contract, at Schedule A, 15 (contracting for the
"transporting of inmates for non-emergency health
services" (emphasis added))). It follows that [*48] any
alleged harm caused to Decedent by the ambulance's
response time cannot be linked to a contractual
provision evidencing any municipal policy on the part of
Westchester, CCS, and NYCCS.
Moreover, both the Westchester-NYCCS Contract and
the NYCCS-Empress Contract are absolutely silent as
to the stationing of ambulances. (See generally
Westchester-NYCCS Contract; Murtagh Decl. Ex. D
("NYCCS-Empress Contract").)10 Regarding patient
10 As with the Westchester-NYCCS Contract and the
Westchester-WCHCC Contract, the Second Amended
Complaint incorporates the Empress-NYCCS Contract by
reference such that the Court may properly consider it in
transport, the former merely provides that NYCCS will
arrange and pay for the "transporting of inmates for non-
emergency health services." (Westchester-NYCCS
Contract, at Schedule A, 15 (emphasis added).) The
NYCCS-Empress Contract "to provide off[-]site
ambulatory services to [i]nmates" at WCJ similarly
includes no mention of the placement of ambulances to
be dispatched to fulfill this contractual obligation.
(NYCCS-Empress Contract at unnumbered 1.) Clearly,
neither gives rise to any inference of a policy or practice
on the stationing of ambulances or the response time of
an ambulance dispatched in emergency situations.11
The Second Amended Complaint, therefore, fails to
sufficiently attribute to Westchester, CCS, and NYCCS
a "practice of dispatching ambulances" from [*49]
Yonkers in emergency situations, (SAC ¶ 71), let alone
to adequately allege that such a policy would be
unconstitutional.12
resolving the instant Motions. See Leonard, 199 F.3d at 107.
11 Plaintiff claims that "[t]he previous arrangement with
WCHCC provided for on-site ambulance services and
adequate response times." (SAC ¶ 34.) This allegation,
however, is contradicted by the virtually identical terms
contained in the Westchester-WCHCC and Westchester-
NYCCS Contracts, whereby neither document makes mention
of the stationing of ambulances. (Compare Westchester-
NYCCS Contract, at Schedule A, 15, with Westchester-
WCHCC Contract, at Schedule A, 15.) Once again, the
documents control. See Williams, 565 F. Supp. 2d at 527
("The court need not accept as true an allegation that is
contradicted by documents on which the complaint relies."
(internal quotation marks omitted)).
12 In seeking to defend this claim, Plaintiff points to
Westchester's failed attempt "to reach a deal with" another
company for closer ambulance stationing and CCS's failed
negotiations with [*50] Empress "to stage an ambulance
closer to the prison," (Pl.'s Opp'n to Westchester Defs. 21; see
also Decl. of Jared R. Rice, Esq. in Opp'n to Westchester
Defs.' Mot. to Dismiss ("Rice Decl.") Ex. C ("Committee
Meeting Minutes") 2 (Dkt. No. 82)). Though "a complaint may
not be amended by the briefs in opposition to a motion to
dismiss," Chamberlain v. City of White Plains, 986 F. Supp. 2d
363, 390 n.19 (S.D.N.Y. 2013); see also Kiryas Joel All. v. Vill.
of Kiryas Joel, No. 11-CV-3982, 2011 U.S. Dist. LEXIS
137074, 2011 WL 5995075, at *10 n.9 (S.D.N.Y. Nov. 29,
2011) ("[T]he plaintiffs cannot use their opposition to the
motion to dismiss to raise new claims or arguments, and thus
the [c]ourt does not address the new arguments made in the
plaintiffs' memorandum."), aff'd, 495 F. App'x 183 (2d Cir.
2012), the Court nonetheless notes that these allegations
alone do not amount to a constitutional deprivation of care.
Even if such an alternative arrangement would be desirable, it
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Page 15 of 23
As a final theory of liability, Plaintiff asserts that "the
policies, practices, and customs of Defendants . . . led
to the refusal to provide adequate medical care to WCJ
inmates and detainees; to the delay of proper care to
WCJ inmates and detainees; to the negligent training of
its employees; to the lack of physician access for WCJ
inmates and detainees; and to the misdiagnosis [*51]
and indifference of [Decedent's] serious medical needs .
. . ." (SAC ¶ 74.) However, "[a]llegations that a
defendant acted pursuant to a policy or custom[,]
without any facts suggesting the policy's existence, are
plainly insufficient." Moore v. City of N.Y., No. 08-CV-
8879, 2010 U.S. Dist. LEXIS 19183, 2010 WL 742981,
at *6 (S.D.N.Y. Mar. 2, 2010) (internal quotation marks
omitted). Plaintiff offers no such facts, and her bare
assertions, therefore, will not sustain a Monell claim.
See Maynard v. City of N.Y., No. 13-CV-3412, 2013
U.S. Dist. LEXIS 178433, 2013 WL 6667681, at *4
(S.D.N.Y. Dec. 17, 2013) ("Conclusory allegations that
there was such a policy or custom, without identifying or
alleging supporting facts, is insufficient to state a
claim."); 5 Borough Pawn, LLC v. City of N.Y., 640 F.
Supp. 2d 268, 299 (S.D.N.Y. 2009) (concluding that the
"plaintiffs' pleading . . . does not unlock the doors of
discovery because their assertion that the [c]ity has an
unconstitutional policy is based on nothing more than
their unsupported supposition" (alterations and internal
quotation marks omitted)).
To the extent Plaintiff looks to the Findings Letter to
support this claim, such reliance is wholly misguided.
The CRIPA investigation examined medical care
provided at WCJ in 2008, (see generally U.S. Dep't of
Justice, "CRIPA Investigation of the Westchester
County Jail, Valhalla, New York" (Nov. 19, 2009),
http://www.justice.gov/sites/default/files/crt/legacy/
2010/12/15/Westchester_findlet_11-19-09.pdf), well
before Westchester entered into a contract with
NYCCS, [*52] (see SAC ¶ 18).13 Given that
investigation involved a different health care provider,
there is no basis to attribute the resulting report to
CCS's and NYCCS's performance nearly four years
does not suggest actual or constructive knowledge notice of
an obvious "need for corrective action." Williams v. City of
N.Y., 690 F. Supp. 2d 338, 344 (S.D.N.Y. 2010).
13 The Second Amended Complaint not only references but
also explicitly incorporates the Findings Letter, (SAC ¶ 22
(stating that "the Findings Letter . . . is incorporated by
reference herein"); see also id. ¶¶ 18-21), which the Court thus
considers in resolving the instant Motions, [*53] see Leonard,
199 F.3d at 107.
later under a subsequent contract. See Thomas, 2013
U.S. Dist. LEXIS 93697, 2013 WL 3357171, at *6
(rejecting the plaintiff's reliance on the Findings Letter
where the allegations post-dated its publication and
where neither CCS nor NYCCS were mentioned
therein). Nor can CCS and NYCCS be charged with
awareness of any unconstitutional acts by their
employees, since the Findings Letter faults conduct that
occurred under the watch of a different provider. While
Westchester, on the other hand, was certainly aware of
the results of that investigation, this is not a case "of
municipal inaction in the face of government-
documented misconduct through investigations,"
Hunter, 35 F. Supp. 3d at 323-24, considering that
Westchester subsequently arranged for a new
agreement concerning the provision of medical care at
WCJ.
In failing to present sufficient facts of any policy or
custom, the Second Amended Complaint cannot hold
Westchester, CCS, and NYCCS liable.
b. Empress
As to Empress, Plaintiff alleges that, pursuant to its
contract with NYCCS, "it was the official policy of . . .
Empress to station its ambulance responsible for WCJ
inmates and detainees in Yonkers, . . . [11] miles away."
(SAC ¶ 70.) The Court, however, has already noted that
the terms of the Empress-NYCCS Contract make no
provision as to the stationing of ambulances, (see
NYCCS-Empress Contract at unnumbered 1), and thus
cannot give rise to formal policy for purposes of Monell
liability. Moreover, while Plaintiff asserts that the "said
practice of dispatching ambulances was so persistent
and widespread that it constituted an official policy or
custom," (SAC ¶ 71), this general conclusion does not
suffice to satisfy the requirements of Monell, see
Maynard, 2013 U.S. Dist. LEXIS 178433, 2013 WL
6667681, at *4. Indeed, the Second Amended
Complaint faults "[t]he inadequate average response
time provided by Empress through its agreement with
Westchester, CCS, and NYCCS," (SAC ¶ 34), but puts
forth no allegations of any other unconstitutional
incidents in that regard, see Pittman, 2014 U.S. Dist.
LEXIS 178420, 2014 WL 7399308, at *7.
Even if such a policy did [*54] exist, the Second
Amended Complaint has not plausibly plead that any
charged official acted or failed to act while actually
aware of substantial risk that serious harm would result.
See Nielsen, 746 F.3d at 63. Plaintiff complains that
"Empress did not dispatch one of its ambulances that
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Page 16 of 23
was stationed on site at the Valhalla campus within
yards of . . . Decedent." (SAC ¶ 59.) Even accepting as
true the implication that there was an on-site ambulance
available to respond to the call from WCJ on January
29, there is no allegation that the dispatch occurred with
the requisite mental culpability on the part of an
Empress official. See Salahuddin, 467 F.3d at 280. At
most, the facts contained in the Second Amended
Complaint suggest a potentially negligent dispatch,
which does not amount to a constitutional violation. See
Gladden, 2013 U.S. Dist. LEXIS 123819, 2013 WL
4647193, at *2.14
As the only other evidence to suggest prior knowledge
of "[t]he inadequate average response time provided by
Empress through its agreement with Westchester, CCS,
and NYCCS," (SAC ¶ 34), the Second Amended
Complaint points to the findings of the prior CRIPA
investigation, (id. ¶ 18). Yet, Plaintiff's self-serving
conclusion aside, (see Pl.'s Opp'n to Empress Defs. 10
("The SAC also linked those findings of substandard
care to Empress . . . .")), this earlier investigation bears
absolutely no relation to Empress' provision of
ambulatory services under the Empress-NYCCS
Contract, (see generally CRIPA Investigation of the
Westchester County Jail). Plaintiff's allegations relate to
conduct that occurred nearly four years after the CRIPA
investigation, and there is no indication, either in the
Findings Letter or in the Second Amended Complaint,
that Empress had any affiliation with WCJ in 2008. See
Thomas, 2013 U.S. Dist. LEXIS 93697, 2013 WL
3357171, at *6 (finding the [*56] plaintiff's reliance on
an earlier DOJ investigation insufficient where he failed
to "alleg[e] that [the municipal defendant] or any of its
policymakers were the subject of or privy to the results
of the [i]nvestigation [r]eport"). Moreover, the Findings
14 Assuming, arguendo, a constitutional violation occurred, the
Second Amended Complaint fails to adequately allege "a
direct causal link." See Tieman, 2015 U.S. Dist. LEXIS 38703,
2015 WL 1379652, at *12 (internal quotation marks omitted).
Plaintiff's circular reasoning that "[t]he causation . . . is
established by the deliberate indifference shown by Empress"
does nothing to salvage this claim, (see Pl.'s Opp'n to
Empress Defs. 9), as the "causal connection" is a prerequisite
for municipal [*55] liability, see Johnson, 2011 U.S. Dist.
LEXIS 15867, 2011 WL 666161, at *3. The Court need not
consider her subsequent allegation that "Decedent's injuries
and death resulted from his not being able to be treated at
WMC in a timely fashion," (see Pl.'s Opp'n to Empress Defs.
9), which is raised for the first time in her opposition papers,
see Kiryas, 2011 U.S. Dist. LEXIS 137074, 2011 WL 5995075,
at *10 n.9.
Letter includes neither any mention of Empress, nor any
reference to inadequate EMS response times. Compare
id. (dismissing Monell claim where "the medical care
policies found [by DOJ to be] deficient at WCJ . . . are
unlike the deprivation of medical care [the] [p]laintiff
alleges here"), with Kucharczyk, 95 F. Supp. 3d at 544-
45 (finding 2009 DOJ report "sufficient to allege a
widespread practice at WCJ of which policymakers were
aware," because the plaintiff alleged "that the
deficiencies in medical care and the medical grievance
process at WCJ affected his ability to receive care in
2012"). Without any allegation that Empress ever
received complaints, administrative or otherwise, with
respect to its response times, the Second Amended
Complaint fails to allege any "actual or constructive
notice that the [ambulance stationing] is substantially
certain to result in the violation of [inmates']
constitutional rights." Canton, 489 U.S. at 396
(O'Connor, J., concurring in part and dissenting in part).
Once again, Plaintiff cannot satisfy [*57] the
requirements of Monell.
In light of the foregoing analyses, the Court dismisses
Plaintiff's § 1983 claims against Westchester, CCS,
NYCCS, and Empress.
D. Supervisory Liability
In addition, Plaintiff alleges that "Ulloa was responsible
for supervising and training the medical staff who
provided treatment to WCJ inmates and detainees and
failed to properly supervise and train the medical staff
regarding the reckless and negligent medical treatment
provided to . . . Decedent on January 29, 2013." (SAC ¶
83.) This allegation, however, fails to state a claim for
supervisory liability.
"To establish the liability of a supervisory official under §
1983, a plaintiff must show the defendant's personal
involvement in the alleged constitutional violations."
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)
(per curiam). Personal involvement may be established
by demonstrating
(1) actual direct participation in the constitutional
violation, (2) failure to remedy a wrong after being
informed through a report or appeal, (3) creation of
a policy or custom that sanctioned conduct
amounting to a constitutional violation, or allowing
such a policy or custom to continue, (4) grossly
negligent supervision of subordinates who
committed a violation, or (5) failure [*58] to act on
information that unconstitutional acts were
occurring.
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Page 17 of 23
Elek v. Inc. Vill of Monroe, 815 F. Supp. 2d 801, 806
(S.D.N.Y. 2011) (internal quotation marks omitted).
The facts alleged here fall short of that threshold. While
Plaintiff asserts that "the inadequate supervision
provided by . . . Ulloa" violated Decedent's constitutional
rights, (SAC ¶ 84), this conclusory allegation is
insufficient to state a claim for § 1983 supervisor liability,
see Paulin v. Figlia, 916 F. Supp. 2d 524, 536 (S.D.N.Y.
2013) (finding that the plaintiff's "conclusory
statements[,] without facts to support them, are
insufficient to attach supervisory liability" (alteration
omitted)); cf. Kiobel v. Royal Dutch Petroleum Co., 621
F.3d 111, 191 (2d Cir. 2010) ("Conclusory allegations
that the defendant violated the standards of law do not
satisfy the need for plausible factual allegations."), aff'd,
133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013). All Plaintiff
offers by way of opposition to Westchester Defendants'
Motion is disapproval of Ulloa's diagnostic and treatment
decisions. Indeed, in complaining that Ulloa "lazily
misdiagnos[ed] his condition" and "fail[ed] to instruct
that . . . [D]ecedent immediately receive life[-]saving
treatment," (Pl's Opp'n to Westchester Defs. 25),
Plaintiff merely restates her disagreement with the
medical care Decedent received. As discussed in depth
above, such assertions of negligent diagnosis or
treatment do not state a constitutional claim. [*59] See
Estelle, 429 U.S. at 106 ("[A] complaint that a physician
has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical
mistreatment under the Eighth Amendment."); Baptiste,
2010 U.S. Dist. LEXIS 81291, 2010 WL 3185748, at *6
(dismissing supervisory liability claim on the basis that
"the differential diagnosis did not constitute
constitutionally inadequate medical care"). These
allegations, therefore, cannot establish Ulloa's "actual
direct participation" in any violation of Decedent's
constitutional rights. See Elek, 815 F. Supp. 2d at 806.
Nor can Plaintiff's contention that "Ulloa participated in
the deprivation of . . . Decedent's constitutional rights by
declining to share with his subordinates information
surrounding [Decedent's] prior chest X-ray." (Pl.'s Opp'n
to Westchester Defs. 25.) This claim not only lacks
support in the Second Amended Complaint but, in fact,
is directly contradicted by allegations contained therein.
Plaintiff expressly notes that during their telephone
conversation Boggi and Ulloa discussed "that
[Decedent] had the same chest discomfort a couple of
nights before." (SAC ¶ 45.)
Along similar lines, Plaintiff next faults Ulloa for "fail[ing]
to remedy these wrongs by not following up with his
initial reckless diagnosis." (Pl's Opp'n to
Westchester [*60] Defs. 25.) Yet, notwithstanding
Plaintiff's bare insistence as to "[Ulloa's] knowledge that
. . . Decedent exhibited deadly chest pain symptoms,"
(id.), the Court has already determined that Ulloa was
not, in fact, reckless. The Second Amended Complaint
plausibly pleads deliberate indifference on the part of
Boggi, Jordan, and Smith after the first "Signal 3" alert
but provides no factual allegations suggesting Ulloa was
aware of the misdiagnosis and the substantial risk to
Decedent's health. See Nielsen, 746 F.3d at 63. Indeed,
Ulloa was only notified about the deterioration in
Decedent's condition at around the same time that the
911 call was made. (See SAC ¶ 57 (noting that at
approximately 5:09 a.m., Smith called Ulloa, who was
not present at WCJ); id. ¶ 58 (noting that at
approximately 5:12 a.m., Smith instructed Delgrosso to
call 911).) Since the facts do not plausibly suggest that
Ulloa had prior knowledge of a previously unreported
heart condition, or that any unconstitutional conduct by
a particular subordinate was brought to Ulloa's attention
before Decedent collapsed, supervisory liability cannot
attach here for any "failure to remedy a wrong after
being informed." See Elek, 815 F. Supp. 2d at 806; cf.
Stamile v. Cty. of Nassau, No. 10-CV-2632, 2014 U.S.
Dist. LEXIS 39320, 2014 WL 1236885, at *5 (E.D.N.Y.
Mar. 25, 2014) (finding the "[p]laintiffs have [*61] not
adequately demonstrated supervisory liability" where
"[they] have not included any additional factual detail to
support their assertions that [the defendant] knew about
the constitutional violations"); Risch v. Hulihan, No. 09-
CV-330, 2010 U.S. Dist. LEXIS 137094, 2010 WL
5463339, at *4 (N.D.N.Y. Dec. 29, 2010) (rejecting
supervisory liability claim in part because "there is
nothing in the record to suggest that any of these
defendants were aware of any alleged conduct that
violated [the] plaintiff's constitutional rights").
Even as Plaintiff offers the bare assertion that Ulloa
"otherwise failed to act," (Pl.'s Opp'n to Westchester
Defs. 25), she outlines his prescribed course of
treatment, (see SAC ¶¶ 45-46 (noting Ulloa prescribed
Decedent "the medications Zantac and Mylanta" after
being "advised of the findings of [Boggi's]
assessment")), as well as his subordinates' conduct in
accordance with his directives, (see id. ¶ 47 (indicating
"[Decedent] received Zantac and Mylanta"); id. ¶ 48
(noting Boggi then "monitored and observed"
Decedent)). Thus, not only does the Second Amended
Complaint fail to suggest that Ulloa had "information that
unconstitutional acts were occurring," but also the
allegations contained therein show he did, in fact, act.
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See Elek, 815 F. Supp. 2d at 806.15
Plaintiff, therefore, fails to state a claim based on a
theory of supervisory liability, and Defendants are
entitled to dismissal on this cause of action.
E. State Law Claims
In addition to the federal constitutional claims addressed
above, the Second Amended Complaint contains a
number of claims arising under New York state law—
namely, medical malpractice, respondeat superior,
negligent hiring, supervision, and retention, breach of
contract, wrongful death, and punitive damages. (See
SAC ¶¶ 85-108.)
Because these causes of action do not present a federal
question, see 28 U.S.C. § 1331, and because Plaintiff
does not allege that Decedent's citizenship is diverse
with respect to that of Defendants, see id. § 1332;
accord Adler v. Adler, 862 F. Supp. 70, 72 (S.D.N.Y.
1994) (reaffirming that "the citizenship of a decedent,
not the executor, is the only [*63] citizenship pertinent
for diversity purposes"), the Court may entertain these
claims only pursuant to a theory of supplemental
jurisdiction, see 28 U.S.C. § 1367.
1. Empress Defendants
As discussed in detail above, this Court has already
dismissed the federal causes of action against Empress
and Castro. Where a district court "has dismissed all
claims over which it has original jurisdiction," it "may
decline to exercise supplemental jurisdiction" over any
remaining claims. 28 U.S.C. § 1367(c)(3); accord
Matican v. City of N.Y., 524 F.3d 151, 154-55 (2d Cir.
2008) ("[I]f [a plaintiff] has no valid claim under § 1983
against any defendant, it is within the district court's
discretion to decline to exercise supplemental
jurisdiction over the pendent statelaw claims."). "Once a
district court's discretion is triggered under § 1367(c)(3),
it balances the traditional values of judicial economy,
convenience, fairness, and comity, in deciding whether
to exercise jurisdiction." Kolari v. N.Y.-Presbyterian
Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (citations and
15 Moreover, there are no facts giving [*62] rise to the
inference that Ulloa was "grossly negligent" in supervising the
activities of Boggi, Smith, and Jordan, given that he prescribed
a course of treatment and was otherwise not informed of
Decedent's condition until after the second "Signal 3" alert.
The Second Amended Complaint is also entirely devoid of
allegations that Ulloa had any policymaking authority over
medical care for WCJ inmates and detainees.
internal quotation marks omitted). "[I]n the usual case in
which all federal-law claims are eliminated before trial,
the balance of factors to be considered . . . will point
toward declining to exercise jurisdiction over the
remaining state-law claims." Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7, 108 S. Ct. 614, 98 L. Ed.
2d 720 (1988).
The Court finds that nothing distinguishes this Action
from "the usual [*64] case." For one, Plaintiff's federal
claims against Empress Defendants are all dismissed
prior to trial. See Dellutri v. Vill. of Elmsford, 895 F.
Supp. 2d 555, 575 (S.D.N.Y. 2012) (declining to
exercise supplemental jurisdiction where "th[e] case
remains in its initial stages, and the [p]arties have not
yet proceeded to discovery"); Middleton v. United
States, No. 10-CV-6057, 2012 U.S. Dist. LEXIS 15117,
2012 WL 394559, at *1 (E.D.N.Y. Feb. 7, 2012)
(declining to exercise supplemental jurisdiction because
no federal claims survived a motion to dismiss).
Moreover, none of the factors that the Supreme Court
enunciated in Cohill—"judicial economy, convenience,
fairness, [or] comity"—militates against such dismissal,
484 U.S. at 350 n.7, considering that it is not alleged
that Empress Defendants had any role in the particular
events that gave rise to the surviving § 1983 claims
against Boggi, Smith, and Jordan, see Germano v.
Dzurenda, No. 09-CV-1316, 2011 U.S. Dist. LEXIS
32078, 2011 WL 1214435 at *20 (D. Conn. Mar. 28,
2011) (dismissing without prejudice state-law claims
against 12 defendants once the federal claims against
those same 12 defendants were dismissed, even
though federal claims remained viable against others in
the case); accord Billizone v. Jefferson Par. Corr. Ctr.,
No. 14-CV-1263, 2014 U.S. Dist. LEXIS 173001, 2014
WL 7139636, at *5 (E.D. La. Dec. 15, 2014) (declining
"to consider any such state law claims against [a
particular defendant] in light of the fact that [the]
plaintiff's federal claims against her are being
dismissed"); Kis v. Cty. of Schuylkill, 866 F. Supp. 1462,
1480 (E.D. Pa.1994) (explaining that where all federal
claims against some defendants were dismissed, the
decision to entertain [*65] or dismiss pendent state law
claims against those defendants was within the district
court's discretion).
Accordingly, Plaintiff's state-law claims against Empress
Defendants are dismissed without prejudice to refiling in
state court.
2. Westchester Defendants
By contrast, some of Plaintiff's federal causes of action
against Westchester Defendants have survived their
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Motion. The abovementioned state-law claims arise out
of the same case or controversy—i.e., the medical
treatment provided to Decedent on January 29, 2013—
and thereby fall within this Court's supplemental
jurisdiction pursuant to § 1367(a). See Oladokun v.
Ryan, No. 06-CV-2330, 2011 U.S. Dist. LEXIS 109638,
2011 WL 4471882, at *11 (S.D.N.Y. Sept. 27, 2011)
(explaining that § 1367 "confers mandatory
supplemental jurisdiction over state law claims that 'form
part of the same case or controversy' as claims over
which the district courts have original jurisdiction"); Bu
ex rel. Bu v. Benenson, 181 F. Supp. 2d 247, 251
(S.D.N.Y. 2001) ("Essentially, supplemental jurisdiction
will be found where the state and federal claims arise
from the same basic facts." (italics and internal
quotation marks omitted)).
a. Medical Malpractice
Plaintiff claims that the medical treatment provided to
Decedent on January 29 "was given and rendered in an
improper, negligent, and careless manner in that
Defendants" not only "failed to employ [*66] the skill,
care, and diligence commonly and ordinarily possessed
by, and required of[,] medical care providers in the same
locality . . . ." (SAC ¶ 86.) As a result, Decedent suffered
injuries that include, inter alia, "tremendous conscious
pain and suffering; loss of enjoyment of life; emotional
upset, shock, and fright; and death." (Id. ¶ 87.)
"Under New York law, the requisite elements of proof in
a medical malpractice action are (1) a deviation or
departure from accepted practice, and (2) evidence that
such departure was a proximate cause of injury or
damage." Torres v. City of N.Y., 154 F. Supp. 2d 814,
819 (S.D.N.Y. 2001) (citing Lyons v. McCauley, 252
A.D.2d 516, 675 N.Y.S.2d 375, 376 (App. Div. 1998));
see also Gale v. Smith & Nephew, Inc., 989 F. Supp. 2d
243, 252 (S.D.N.Y. 2013) ("Under New York law, the
essential elements of a medical malpractice claim are a
departure from good and accepted medical practice and
evidence that such departure was a proximate cause of
the plaintiff's injury." (alterations and internal quotation
marks omitted)).
In alleging Decedent suffered various injuries as a result
of the failure of Ulloa, Boggi, Smith, and Jordan "to
employ reasonable and proper steps, procedures, and
practices for the health, welfare, safety of . . .
Decedent," (SAC ¶ 86), the Second Amended
Complaint has adequately pled those elements.
Although Westchester Defendants contend [*67] that
"Plaintiff has not alleged in even rudimentary terms a
particular alleged departure from accepted medical
practice" so as to place them "on reasonable notice of
the basis of this claim," (Westchester Defs.' Mem. of
Law in Supp. of Mot. ("Westchester Defs.' Mem.") 27
(Dkt. No. 65)), the Second Amended Complaint
expressly incorporates the previous paragraphs'
allegations, (SAC ¶ 85), which include, inter alia, that
"Boggi failed to hook . . . [D]ecedent up to a heart
monitor" or "provide [him] with oxygen," (id. ¶ 44), that
"Ulloa negligently instructed . . . Boggi to provide
[Decedent] with the medications" to treat indigestion, (id.
¶ 46), and that Boggi, Smith, and Jordan failed to bring
Decedent to a medical facility, (id. ¶ 53). Plaintiff has
thus adequately alleged that Westchester Defendants
made treating decisions that might be considered
deviations from accepted medical practice. See
Rennalls v. Alfredo, No. 12-CV-5300, 2015 U.S. Dist.
LEXIS 133641, 2015 WL 5730332, at *13 (S.D.N.Y.
Sept. 30, 2015) (finding the plaintiff "adequately alleged
that [the defendant] deviated or departed from accepted
practices" through "allegations that his requests for
further testing were denied and that he suffers
continuing pain and difficulty hearing as a result"). The
Second Amended Complaint further alleges [*68] that
the failure to properly treat Decedent's heart condition
resulted in harm to Decedent—namely, his death. (SAC
¶ 87.) In this way, Plaintiff has nudged her claim of
medical malpractice over the line from possible to
plausible, see Twombly, 550 U.S. at 570, and
Westchester Defendants are not entitled to dismissal of
this cause of action.
b. Respondeat Superior
As the Fifth Cause of Action, Plaintiff alleges that
Westchester, CCS, and NYCCS "are vicariously liable
for the tortious acts committed by [their] employees
within the scope of the employment relationship and are
vicariously liable for the injuries sustained by . . .
Decedent." (SAC ¶ 92.) In this regard, Plaintiff also
alleges that Ulloa, Boggi, Smith, and Jordan were
employees of Westchester, CCS, and NYCCS "at all
times between August 9, 2011 and January 29, 2013."
(Id. ¶ 90.)
"Unlike cases brought under § 1983, municipalities may
be liable for the common law torts . . . committed by
their employees under the doctrine of respondeat
superior." L.B. v. Town of Chester, 232 F. Supp. 2d 227,
239 (S.D.N.Y. 2002); see also Raysor v. Port Auth., 768
F.2d 34, 38 (2d Cir. 1985) (dismissing § 1983 claims
under Monell but permitting state-law claims based on
respondeat superior to proceed); Bektic-Marrero, 850 F.
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Supp. 2d at 434 (declining "to dismiss the pendent state
law claims against [the employer-defendant] that
depend [*69] on the doctrine of respondeat superior,"
even where the plaintiff's § 1983 claims against that
defendant were dismissed). Under this doctrine, an
employer can be held "vicariously liable for torts
committed by an employee acting within the scope of
the employment . . . , so long as the tortious conduct is
generally foreseeable and a natural incident of the
employment." RJC Realty Holding Corp. v. Republic
Franklin Ins. Co., 2 N.Y.3d 158, 808 N.E.2d 1263, 1265-
66, 777 N.Y.S.2d 4 (N.Y. 2004) (internal quotation
marks omitted).
In incorporating the allegations contained in the
previous paragraphs of the Second Amended
Complaint, (SAC ¶ 89), Plaintiff provides adequate
notice of the specific tortious conduct "to be proven,"
notwithstanding Westchester Defendants' insistence to
the contrary, (see Westchester Defs.' Mem. 28
(asserting that "[t]his pleading is not sufficiently
particular to give notice . . . of the particular occurrences
to be proven" (citing SAC ¶¶ 90-92)). The singular focus
of those allegations makes clear that the same facts
giving rise to the deliberate indifference claims also form
the basis of Plaintiff's state-law claims for malpractice
and wrongful death against Ulloa, Boggi, Smith, and
Jordan. See Bektic-Marrero, 850 F. Supp. 2d at 434
(denying motion to dismiss respondeat superior claim
where the complaint "allege[d] that [the doctor
defendants] [*70] were [another defendant's]
employees when they took the actions that gave rise to
[the decedent's] § 1983 claim," and "[t]hose same
actions form the basis of state law claims for
malpractice, wrongful death, and infliction of emotional
distress against the [d]octor [d][efendants"). Having
alleged the requisite employment status for the relevant
time, (see SAC ¶ 90), Plaintiff may proceed with this
cause of action due to the potential for vicarious liability
for the acts or omissions of Ulloa, Boggi, Smith, and
Jordan as employees of Westchester, CCS, and
NYCCS, see Reyes v. City of N.Y., 992 F. Supp. 2d
290, 299 (S.D.N.Y. 2014) ("The state law claims . . .
against the [municipality] may proceed due to the
potential for vicarious liability for the actions of the
officers as its employees.").
c. Negligent Hiring, Supervision, and Retention
According to the Second Amended Complaint,
"Westchester negligently hired, supervised, and retained
CCS and NYCCS and owed a duty to . . . Decedent to
ensure that he received adequate and proper medical
care and breached that duty when they negligently
hired, supervised, and retained unqualified and careless
companies in . . . CCS and NYCCS." (SAC ¶ 95.)
In general, "[w]here an employee is acting within the
scope of his or her employment, the [*71] employer is
liable under the theory of respondeat superior[,] and no
claim may proceed against the employer for negligent
hiring or retention." Rossetti v. Bd. of Educ., 277 A.D.2d
668, 716 N.Y.S.2d 460, 462 (App. Div. 2000); see also
Velez v. City of N.Y., 730 F.3d 128, 137 (2d Cir. 2013)
("If the employee acted within the scope of her
employment, the employer and the employee's
supervisors may be held liable for the employee's
negligence only under a theory of respondeat superior."
(italics omitted)).16 The rationale for this restriction is
that if the employee is found negligent, then the
employer must pay the judgment regardless of the
reasonableness of the hiring, training, or supervision,
whereas if the employee was not negligent, there should
be no basis for imposing liability on the employer. See
Karoon v. N.Y.C. Transit Auth., 241 A.D.2d 323, 659
N.Y.S.2d 27, 29 (App. Div. 1997).
The Sixth Cause of Action must fail precisely because
the Second Amended Complaint offers no allegations
that CCS or NYCCS were acting outside scope of
employment during the course of events giving rise to
Plaintiff's claim. See Zeak v. United States, No. 11-CV-
4253, 2015 U.S. Dist. LEXIS 6044, 2015 WL 246340, at
*4 (S.D.N.Y. Jan. 20, 2015) (holding "that [the]
[p]laintiff's negligent hiring and supervision claim fails
because [she] cannot show that the alleged malpractice
occurred outside the scope of the [tortfeasors']
employment"); Stevens v. Webb, No. 12-CV-2909, 2014
16 Although a limited exception to this rule exists where the
plaintiff "is seeking punitive damages from the employer based
on gross negligence in hiring, training, or supervising the
employee," see Mahar v. U.S. Xpress Enters., Inc., 688 F.
Supp. 2d 95, 110 (N.D.N.Y.), the Second Amended Complaint
is devoid of any allegation of gross negligence on the part of
Westchester, see Woods v. Town of Cheektowaga, No. 11-
CV-343, 2012 U.S. Dist. LEXIS 152229, 2012 WL 5288767, *8
(W.D.N.Y. 2012) ("[B]ecause [the] [p]laintiffs have not alleged
gross negligence on the part of the [t]own, the exception to
this general rule does not apply."), and, in any event,
Westchester cannot be liable for punitive damages, see
Martinez v. Cty. of Suffolk, 999 F. Supp. 2d 424, 433 (E.D.N.Y.
2014) (explaining that [*72] the gross negligence exception is
inapplicable against a municipality because "the State and its
political subdivisions . . . are not subject to punitive damages"
(internal quotation marks omitted)).
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Page 21 of 23
U.S. Dist. LEXIS 37874, 2014 WL 1154246, at *12
(E.D.N.Y. Mar. 21, 2014) ("Because all of these
allegations relate to [the employees'] ability to perform a
duty within the scope of their employment . . . , [the]
plaintiff has not stated a claim for negligent supervision
and training."). Indeed, the gravamen of this claim
centers exclusively on "the services of CCS and
NYCCS, both as independent contractors," hired and
retained by Westchester. (SAC ¶ 97; see also id. ¶ 96
(alleging CCS's and NYCCS's prior failings in the
provision of "comprehensive health services").) The
Court, therefore, dismisses Plaintiff's claim for negligent
hiring, supervision, [*73] and retention.
d. Breach of Contract
As the Seventh Cause of Action, Plaintiff alleges that
CCS and NYCCS are liable to Decedent for breaching
the NYCCS-Westchester Contract under which CCS
and NYCCS were to provide medical treatment to
inmates at WCJ. (See SAC ¶¶ 100-04.) Decedent was
not a signatory to this agreement. (Id. ¶ 101.) Rather,
Plaintiff argues that Decedent is a third-party beneficiary
to the NYCCS-Westchester Contract such that she has
standing to sue on his behalf for NYCCS and CCS's
alleged breach of this agreement "to provide
comprehensive health care to WCJ inmates and
detainees." (Id. (alleging that the NYCCS-Westchester
Contract "was made for the benefit of . . . Decedent"); cf.
Westchester Defs.' Mem. 29.)
"A third party seeking to recover on a contract must
establish that a binding contract exists between other
parties; that this contract was intended for his benefit;
and that the benefit to him was direct rather than
incidental." Internationale Nederlanden (U.S.) Capital
Corp. v. Bankers Tr. Co., 261 A.D.2d 117, 689 N.Y.S.2d
455, 460 (App. Div. 1999); see also Levin v. Tiber
Holding Corp., 277 F.3d 243, 248 (2d Cir. 2002) (same).
A benefit is intended rather than incidental if it is
"sufficiently immediate . . . to indicate the assumption by
the contracting parties of a duty to compensate [the third
party] if the benefit is lost." State of Cali. Pub. Emps.'
Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 741
N.E.2d 101, 104, 718 N.Y.S.2d 256 (N.Y. 2000). "Where
performance [*74] is to be rendered directly to a third
party under the terms of an agreement, that party must
be considered an intended beneficiary." Flickinger v.
Harold C. Brown & Co., 947 F.2d 595, 600 (2d Cir.
1991) (internal quotation marks omitted); cf.
Internationale Nederlanden, 689 N.Y.S.2d at 460 (noting
that a court must "look at the overall purpose of the
transaction" in determining whether a third party has
standing to enforce a contract). It is the burden of that
party claiming to be an intended third-party beneficiary
to demonstrate his or her right to enforcement. See
Solutia Inc. v. FMC Corp., 385 F. Supp. 2d 324, 336
(S.D.N.Y. 2005) (citing Strauss v. Belle Realty Co., 98
A.D.2d 424, 469 N.Y.S.2d 948, 950 (App. Div. 1983),
aff'd, 65 N.Y.2d 399, 482 N.E.2d 34, 492 N.Y.S.2d 555
(N.Y. 1985)).
Plaintiff here has met that burden. As a WCJ inmate,
(see SAC ¶ 37), Decedent was indeed the intended
beneficiary of the NYCCS-Westchester Contract "for the
provision of health care services to inmates and
detainees at . . . WCJ," (id. ¶ 24). Courts in the Second
Circuit have readily reached the same conclusion under
similar circumstances. See Zikianda v. Cty. of Albany,
No. 12-CV-1194, 2015 U.S. Dist. LEXIS 122363, 2015
WL 5510956, at *37 (N.D.N.Y. Sept. 15, 2015) (finding
that, as a prior detainee, "[the] [d]ecedent was clearly an
intended beneficiary of this contract, which requires the
provision of medical care to detainees"); Mayo v. Cty. of
Albany, No. 07-CV-823, 2009 U.S. Dist. LEXIS 28899,
2009 WL 935804, at *5 (N.D.N.Y. Apr. 3, 2009) (noting
"there is no doubt that [the detainee] was a third party
beneficiary" of a contract to provide medical services at
a county correctional facility), aff'd, 357 F. App'x 339 (2d
Cir. 2009); Murns v. City of N.Y., No. 00-CV-9590, 2001
U.S. Dist. LEXIS 6287, 2001 WL 515201, at *5
(S.D.N.Y. May 15, 2001) (finding that "the inmates were
the intended beneficiaries [*75] of the contract"
whereby a medical provider "agreed to provide medical
services to the inmates of [c]ity correctional facilities").
Additionally, "to state a breach of contract claim, the
pleadings must allege the provisions of the contract
upon which the claim is based and the defendant's acts
or omissions constituting the breach." Dilworth v.
Goldberg, 914 F. Supp. 2d 433, 457-58 (S.D.N.Y. 2012)
(citations and internal quotation marks omitted)). The
Second Amended Complaint satisfies that requirement,
expressly alleging "[t]hat CCS and NYCCS breached
said contract when they did not provide the required
semiannual[] and annual reports" to "allow Westchester
to provide adequate oversight of the quality of care and
staffing levels providing to WCJ inmates . . . ." (SAC ¶
102.)
Plaintiff, therefore, has plausibly pled a third-party claim
for breach of contract.
e. Wrongful Death
Plaintiff brings a wrongful death cause of action on
behalf of Decedent's "surviving next of kin," which
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Page 22 of 23
includes "at least four children[,] who had a reasonable
expectation of support from . . . Decedent and were
entitled to his comfort and the enjoyment of his society."
(SAC ¶ 107.)
Under New York law. the elements of a cause of action
for wrongful death are: "(1) the death of a human
being, [*76] (2) the wrongful act, neglect or default of
the defendant by which the decedent's death was
caused, (3) the survival of distributees who suffered
pecuniary loss by reason of the death of decedent, and
(4) the appointment of a personal representative of the
decedent." Quinn v. United States, 946 F. Supp. 2d 267,
277 (N.D.N.Y. 2013) (quoting Chong v. N.Y.C. Transit
Auth., 83 A.D.2d 546, 441 N.Y.S.2d 24, 25-26 (App. Div.
1981)). With respect to the third element, "[a] distributee
is a person entitled to take or share in the property of a
decedent under the statutes governing descent and
distribution." Gabriel v. Cty. of Herkimer, 889 F. Supp.
2d 374, 406 (N.D.N.Y. 2012) (alteration in original)
(quoting N.Y. Est. Powers & Trusts Law § 1-2.5). The
damages available "in [] actions for wrongful death are
the fair and just compensation for the pecuniary injuries
resulting from the decedent's death to the persons for
whose benefit the action is brought." Zikianda, 2015
U.S. Dist. LEXIS 122363, 2015 WL 5510956, at *61
(brackets and internal quotation marks omitted).
The Court readily finds the first, second, and fourth
elements sufficiently plead here. See Pratt v. George
Spalty Sons, Inc., 135 Misc. 2d 588, 516 N.Y.S.2d 433,
435 (Sup. Ct. 1987) (noting that "the 'personal
representative' of a decedent to maintain a wrongful
death action . . . encompasses both executors and
administrators"). The Second Amended Complaint
alleges that "Decedent died intestate on January 29,
2013 at approximately 6:16 a.m.," (SAC ¶ 107), and that
Plaintiff was "duly appointed" as administratrix of
Decedent's estate, [*77] (id. ¶ 4). As discussed in detail
above, the Second Amended Complaint states a
plausible claim for medical malpractice against
Westchester Defendants, which then serves as the
predicate for the Eighth Cause of Action.
As to the third element, Westchester Defendants first
argue that the pleading is defective because
"[D]ecedent's distributees are not identified,"
(Westchester Defs.' Mem. 31), citing Chong in support
of the proposition that "[t]he allegation that he has 'at
least four children' who are his surviving 'next of kin'
does not satisfy the statutory requisite that the action be
brought on behalf of his actual, surviving distributes
[sic]," (id. (citing Chong, 441 N.Y.S.2d at 26)). The court
in Chong, however, actually read an allegation "that
decedent had 'next of kin,' consisting of his wife and
children," to mean "distributees" for purposes of a
wrongful death cause of action. 441 N.Y.S.2d at 26.
This line of argument by Westchester Defendants is
thus wholly unavailing, especially given that this Court
has found no authority to even suggest that a complaint
must more specifically identify distributees at the
motion-to-dismiss stage.
Westchester Defendants also argue that "the damages
sought here are not proper elements of the
pecuniary [*78] losses under [New York law]."
(Westchester Defs.' Mem. 31.) The Court finds this
argument only partially correct. On one hand, New York
law "has steadfastly restricted recovery to 'pecuniary
injuries,' or injuries measurable by money, and denied
recovery for grief, loss of society, affection, conjugal
fellowship[,] and consortium." Gonzalez v. N.Y.C. Hous.
Auth., 77 N.Y.2d 663, 572 N.E.2d 598, 600-01, 569
N.Y.S.2d 915 (N.Y. 1991); see also Negron v. City of
N.Y., 976 F. Supp. 2d 360, 374 n.9 (E.D.N.Y. 2013)
(same). The loss of Decedent's "comfort and the
enjoyment of his society," therefore, is not recoverable.
(See SAC ¶ 107.) Nonetheless, Plaintiff does allege that
Decedent's next of kin suffered pecuniary loss that is
indeed recoverable. Under New York law, "the essence
of the cause of action for wrongful death . . . is that the
[distributees'] reasonable expectancy of future
assistance or support by the decedent was frustrated by
the decedent's death." Gonzalez, 572 N.E.2d at 601.
These recoverable damages broadly include "[l]oss of
support, voluntary assistance and possible inheritance,
as well as medical and funeral expenses incidental to
death . . . ." Id. In alleging loss of "a reasonable
expectation of support from . . . Decedent," (SAC ¶
107), the Second Amended Complaint satisfies this third
element.
Accordingly, Plaintiff's wrongful death cause of action
survives Westchester [*79] Defendants' Motion.17
f. Punitive Damages
17 As a word of caution, the Court notes that, going forward,
Plaintiff will need to offer proof of pecuniary loss. See
Gonzalez, 572 N.E.2d at 600-01. "The fact that there are
children who are distributees of the estate is not, by itself,
sufficient to establish that there was a pecuniary loss." Pub.
Adm'r of Queens Cty. ex rel. Estate & Beneficiaries of Guzman
v. City of N.Y., No. 06-CV-7099, 2009 U.S. Dist. LEXIS 18350,
2009 WL 498976, at *12 (S.D.N.Y. Feb. 24, 2009).
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Page 23 of 23
As the Ninth Cause of Action, Plaintiff seeks "an award
of punitive damages" from Smith on the basis that her
actions "against . . . Decedent were carried out in a
deliberate, cold, callous, and intentional manner in order
to injure and damage [Decedent], his heirs, and
survivors . . . ." (SAC ¶ 110.)18
However, there is no separate claim for punitive
damages recognized under New York law. See Weir
Metro Ambu-Serv., Inc. v. Turner, 57 N.Y.2d 911, 442
N.E.2d 1268, 1268, 456 N.Y.S.2d 757 (N.Y. 1982)
("[P]unitive damages may not be sought as a separate
cause of action."); Paisley v. Coin Device Corp., 5
A.D.3d 748, 773 N.Y.S.2d 582, 583 (App. Div. 2004)
(dismissing punitive damages claim because "no
separate cause of action for punitive damages lies for
pleading purposes"); accord Henry v. Concord
Limousine, Inc., No. 13-CV-494, 2014 U.S. Dist. LEXIS
9695, 2014 WL 297303, at *5 (E.D.N.Y. Jan. 24, 2014)
("[I]t is well settled under New York law that punitive
damages may not be asserted as a separate cause of
action."). [*80] This final claim is thereby dismissed,
though Plaintiff may still seek punitive damages in
connection with any appropriate causes of action that
remain. See Campbell v. Aduddell, No. 11-CV-1413,
2014 U.S. Dist. LEXIS 129921, 2014 WL 4659364, at *7
(N.D.N.Y. Sept. 17, 2014) (permitting the plaintiff to
include in her amended complaint a "request [for]
punitive damages as an element of damages in
connection with any or all of her causes of action");
Patterson ex rel. T.P. v. Elmsford Union Free Sch. Dist.,
No. 11-CV-5133, 2012 U.S. Dist. LEXIS 38500, 2012
WL 860367, at *12 n.5 (S.D.N.Y. Feb. 27, 2012)
(dismissing separate claim for punitive damages but
noting that the "[p]laintiff may still seek punitive
damages, but not as a separate cause of action and not
against the [government entity]").
III. Conclusion
For the foregoing reasons, Empress Defendants' Motion
To Dismiss is granted in its entirety and Westchester
Defendants' Motion To Dismiss is granted in part and
denied in part.19 The Clerk of the Court is respectfully
18 While the Second Amended Complaint does not appear to
seek such relief from Westchester itself, the Court nonetheless
reiterates that the municipality would not be subject to punitive
damages. See Martinez, 999 F. Supp. 2d at 433.
19 The Court dismisses the federal claims discussed herein
requested to terminate the pending Motions. (See Dkt.
Nos. 63, 66.)
SO ORDERED.
DATED: March 29, 2016
White Plains, New York
/s/ Kenneth M. Karas
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE
End of Document
with prejudice "because [P]laintiff has already had two bites at
the apple[,] and they have proven fruitless." Treppel v. Biovail
Corp., No. 03-CV-3002, 2005 U.S. Dist. LEXIS 18511, 2005
WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005); see also Denny
v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the
plaintiff was not entitled to "a third go-around"); Anthony v.
Brockway, No. 15-CV-451, 2015 U.S. Dist. LEXIS 133560,
2015 WL 5773402, at *3 (N.D.N.Y. Sept. 30, 20 IS)
(dismissing amended complaint with prejudice where the
"[p]laintiff has already been given one opportunity to amend
his complaint . . ., and there is nothing [*81] in his second
amended complaint suggesting that [he] could do better given
another opportunity"); Al-Qadaffi v. Servs. for the
Underserved, No. 13-CV-8193, 2015 U.S. Dist. LEXIS 17385,
2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 20 15) (denying
leave to amend where " [the plaintiff] has already had one
chance to amend his [c]omplaint, and there is still no indication
that a valid claim might be stated if given a second chance"),
aff'd, F. App'x , 2015 U.S. Dist. LEXIS 68470, 2016 WL
320938 (2d Cir. Jan 27, 2016); Bui v. Indus. Enters. of Am.,
Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an
amended complaint with prejudice where the plaintiff failed to
cure the deficiencies identified in his complaint despite "being
given ample opportunity to do so").
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Mena v. City of New York, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 3948100
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jonathan MENA, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
No. 13-cv-2430 (RJS)
|
Signed 07/19/2016
Attorneys and Law Firms
Jonathan Mena, Stormville, NY, pro se.
Omar Javed Siddiqi, Ryan Glenn Shaffer, New York City Law
Department, New York, NY, for Defendants.
OPINION AND ORDER
RICHARD J. SULLIVAN, District Judge
*1 Plaintiff Jonathan Mena, who is currently incarcerated
and proceeding pro se, brings this action pursuant to 42
U.S.C. § 1983 (“Section 1983”) against Correction Officer
Benjamin Eason (“Defendant”), alleging violations of the
Eighth Amendment. Now before the Court is Defendant's
motion for summary judgment. For the reasons set forth
below, the motion is granted.
I. BACKGROUND
A. Facts 1
On September 9, 2012, while incarcerated at the Otis Bantum
Correctional Center (“OBCC”) on Rikers Island, Plaintiff was
placed in an intake cell in the OBCC's receiving area, which
he shared with two other individuals. (56.1 Stmt. ¶¶ 2–3.)
Plaintiff alleges that the cell was extremely cold, vermin-
infested, and too small to accommodate three men. (See
Doc. No. 54-1 (“Compl.”) 4, 8.) Plaintiff further alleges that
these conditions, coupled with the constant noise made by
the two other inmates, prevented him from sleeping for the
entire 60-hour period that he was held in the cell. (See id. at
4.) Consequently, he asked Defendant, who was on duty, to
transfer him to a different cell. (56.1 Stmt. ¶¶ 7–8.) According
to Plaintiff, Defendant responded that there was “nothing he
could do” about the situation. (Id. ¶ 9; see also Doc. No. 54-2
(“Mena Dep.”) 59:5-8.)
Plaintiff avers that he filed a grievance with the OBCC to
complain about his experience in the cell. (See Compl. at 7.)
The New York City Department of Correction (“DOC”) has
an administrative grievance procedure, known as the Inmate
Grievance and Request Program (“IGRP”), for inmates
housed at facilities such as the OBCC. The IGRP, which was
available and in effect at all times relevant to this lawsuit,
requires that inmates first file a complaint with the Inmate
Grievance Resolution Committee (“IGRC”) within ten days
of the complained-of act. (56.1 Stmt. ¶¶ 11–12; see also Doc.
No. 54-3 (“IGRP Directive”) § IV(D)(1).) The IGRC then
attempts to resolve the grievance informally within five days,
and if the grievance is not informally resolved, then the inmate
may request a formal hearing before the IGRC. (56.1 Stmt. ¶
12; see also IGRP Directive §§ IV(G)-(H).) An inmate may
appeal the IGRC's decision to the commanding officer, or her
designee, and subsequent appeals may be taken to the Central
Office Review Committee (“CORC”). (56.1 Stmt. ¶ 13; see
also IGRP Directive §§ IV(I)-(J).) The CORC's decision is the
final and binding decision of the DOC; if an inmate disputes
the decision of the CORC, he may independently appeal to
the Board of Correction. (IGRP Directive at 47.) Finally, if
an inmate does not receive a timely disposition at any point
throughout the grievance process, he has the option of either
granting an extension of time to the relevant decisionmaker
(i.e., the IGRC, the commanding officer, or the CORC) or
appealing and proceeding to the next level of review. (56.1
Stmt. ¶ 14; see also IGRP Directive §§ IV(D)(9)(b), (10).)
*2 As Plaintiff himself acknowledges, after submitting the
grievance and receiving no response, he neither granted the
DOC an extension of time nor appealed. (See Compl. 7–
8; Opp'n 6.) In his Complaint, Plaintiff admits that he is
“still waiting” for a disposition of his grievance, but does
not indicate any steps he has taken to appeal any decision
before the IGRC. (See Compl. 7.) In response to a question
on the Southern District of New York Prison Complaint form
asking a plaintiff to “set forth any additional information that
is relevant to the exhaustion of your administrative remedies,”
Plaintiff repeated a number of his substantive allegations
against the OBCC staff, but did not state any information
relevant to the grievance process. (Id. at 5.) And in his
opposition brief in connection with this motion, Plaintiff
again notes that he filed “several grievances about the issues
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Mena v. City of New York, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
in question,” but he does not indicate any specific steps he
took to appeal to the IGRC or to pursue any other avenue of
appellate review within the IGRP. (Opp'n 6.)
B. Procedural History
On April 11, 2013, Plaintiff commenced this action by filing
a complaint against the City of New York, Correction Officer
Jaquon Pickwood (“Pickwood”), Correction Officer Sauda
Abdul-Malik (“Abdul-Malik”), and Defendant (collectively,
“Defendants”), pursuant to Section 1983, asserting violations
of his constitutional rights under the Eighth and Fourteenth
Amendments. (See Doc. No. 1.) On December 9, 2013,
Defendants moved to dismiss the Complaint. (Doc. No.
18.) On September 17, 2014, the Court granted Defendants'
motion to dismiss with respect to Plaintiff's claims against
the City of New York, Pickwood, and Abdul-Malik, and
Plaintiff's Fourteenth Amendment claims against Defendant
for failure to state a claim upon which relief can be
granted, but denied Defendants' motion to dismiss with
respect to Plaintiff's Eighth Amendment claim against
Officer Eason. (Doc. No. 29.) On September 11, 2015,
following the completion of discovery, Defendant filed the
instant motion for summary judgment, along with his brief
and his 56.1 Statement, arguing that Plaintiff failed to
exhaust administrative remedies, that his Eighth Amendment
conditions of confinement claim failed on the merits, and that
in any event, Defendant was entitled to qualified immunity.
(Doc. Nos. 53–55, 57.) Defendant also filed a notice pursuant
to Local Civil Rule 56.2 alerting Plaintiff of his obligation
to submit a responsive statement and informing him of the
consequences of not doing so. (Doc. No. 56.) In accordance
with Local Rule 56.2, this notice included copies of Federal
Rule of Civil Procedure 56 and Local Civil Rule 56.1.
(Id.) On October 14, 2015, Plaintiff filed a brief opposing
summary judgment and submitted several exhibits (see Doc.
No. 58), but he failed to submit a responsive 56.1 Statement.
Defendant submitted his reply on October 22, 2015. (Doc. No.
59 (“Reply”).)
II. LEGAL STANDARD
Pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment should be granted “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). There is “no genuine dispute as
to any material fact” where (1) the parties agree on all facts
(that is, there are no disputed facts); (2) the parties disagree
on some or all facts, but a reasonable fact-finder could never
accept the nonmoving party's version of the facts (that is, there
are no genuinely disputed facts), see Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
or (3) the parties disagree on some or all facts, but even on
the nonmoving party's version of the facts, the moving party
would win as a matter of law (that is, none of the factual
disputes are material), see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
In determining whether a fact is genuinely disputed, the court
“is not to weigh the evidence but is instead required to view
the evidence in the light most favorable to the party opposing
summary judgment, to draw all reasonable inferences in favor
of that party, and to eschew credibility assessments.” Weyant
v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to
show a genuine dispute, the nonmoving party must provide
“hard evidence,” D'Amico v. City of N.Y., 132 F.3d 145,
149 (2d Cir. 1998), “from which a reasonable inference
in [its] favor may be drawn,” Binder & Binder PC v.
Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation
marks omitted). “Conclusory allegations, conjecture, and
speculation,” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998), as well as the existence of a mere “scintilla of evidence
in support of the [nonmoving party's] position,” Anderson,
477 U.S. at 252, are insufficient to create a genuinely disputed
fact. A moving party is “entitled to judgment as a matter of
law” on an issue if (1) it bears the burden of proof on the
issue and the undisputed facts meet that burden; or (2) the
nonmoving party bears the burden of proof on the issue and
the moving party “ ‘show[s]’– that is, point[s] out ... – that
there is an absence of evidence [in the record] to support the
nonmoving party's [position].” See Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986).
*3 Typically, a “nonmoving party's failure to respond
to a [Local Civil] Rule 56.1 statement permits the court
to conclude that the facts asserted in the statement are
uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ.,
584 F.3d 412, 418 (2d Cir. 2009) (citing Gubitosi v. Kapica,
154 F.3d 30, 31 n.1 (2d Cir. 1998)). “This general rule applies
equally” to cases involving a pro se nonmoving party who
has been provided adequate notice of the consequences of
failing to properly respond to a summary judgment motion.
Pierre-Antoine v. City of N.Y., No. 04-cv-6987 (GEL), 2006
WL 1292076, at *3 (S.D.N.Y. May 9, 2006); see also Gilliam
v. Trustees of Sheet Metal Workers' Nat'l Pension Fund, No.
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03-cv-7421 (KMK), 2005 WL 1026330, at *1 n.2 (S.D.N.Y.
May 3, 2005). Even so, the Court “may in its discretion opt to
conduct an assiduous review of the record even where one of
the parties has failed to file such a statement,” Holtz, 258 F.3d
at 73, and the Court is obligated to construe pro se litigants'
submissions liberally, see McEachin v. McGuinnis, 357 F.3d
197, 200 (2d Cir. 2004).
Here, Plaintiff failed to submit a responsive Rule 56.1
statement, even though Defendant, pursuant to Local Civil
Rule 56.2, sent Plaintiff notice of his obligations under
Local Civil Rule 56.1 and Federal Rule of Civil Procedure
56 and sent copies of both rules. (Doc. No. 56). In light
of Plaintiff's pro se status, the Court has exercised its
discretion to independently review the record, which reveals
no controverted facts. See Holtz, 258 F.3d at 73. In fact,
as discussed below, Plaintiff's own submissions confirm the
material facts contained in Defendant's Rule 56.1 Statement.
III. DISCUSSION
Defendant argues that summary judgment should be granted
because Plaintiff has failed to comply with the administrative
exhaustion requirement of the Prison Litigation Reform Act
of 1995 (the “PLRA”). The Court agrees.
Under the PLRA, inmates bringing claims with respect
to prison conditions under Section 1983 must exhaust the
administrative remedies that are available at that prison
before proceeding in federal court. 42 U.S.C. § 1997e(a).
The PLRA's exhaustion requirement is “mandatory,” thus
“foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct.
1850, 1857 (2016); see also Woodford v. Ngo, 548 U.S. 81,
84 (2006) (describing the “invigorated exhaustion provision”
as “[a] centerpiece of the PLRA's effort to reduce the
quantity of prisoner suits” (citations and quotation marks
omitted)). Accordingly, “the law is well-settled that the failure
to take an available administrative appeal, even when the
initial grievance receives no response, constitutes a failure to
exhaust available administrative remedies.” Garvin v. Rivera,
No. 13-cv-7054 (RJS), 2015 WL 3999180, at *3 (S.D.N.Y.
June 29, 2015); accord Johnson v. N.Y.C. Dep't of Corr.,
No. 13-cv-6799 (CM), 2014 WL 2800753, at *6 (S.D.N.Y.
June 16, 2014) (“Assuming that [p]laintiff filed a timely
grievance ... and received no response within five business
days[,] ... [p]laintiff ... could have taken the next step and
requested a hearing.”); Leacock v. N.Y.C. Health Hosp. Corp.,
No. 03-cv-5440 (RMB) (GWG), 2005 WL 483363, at *7
(S.D.N.Y. Mar. 1, 2005) (“[T]hat [plaintiff] allegedly did
not receive a response to her grievance does not excuse her
from failing to exhaust the appellate remedies available to
her.”); Burns v. Moore, No. 99-cv-966 (LMM) (THK), 2002
WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) (“Thus, even
if [p]laintiff received no response to his initial grievance,
[p]laintiff could have sought the next level of review, in this
case, to the prison superintendent.”).
*4 At the OBCC, where Plaintiff was incarcerated, an
inmate must exhaust several layers of review, even if the
inmate does not receive a timely disposition at the initial
stages. (56.1 Stmt. ¶ 12–14.) Here, as Plaintiff reveals in
his own complaint and brief in opposition to the motion
for summary judgment, he did not exhaust the OBCC
administrative procedure. (Compl. 7–8; Opp'n 6.) Rather, he
indicates that he filed a grievance but otherwise did not appeal
or seek further review through the IGRP process. (Compl.
7–8 (noting that he is “still waiting” for disposition of his
grievances and did not seek review at the next levels within
IGRP); Opp'n 6 (noting that he filed “several grievances about
the issues in question,” but omitting reference to any specific
steps taken to appeal)). Accordingly, Plaintiff failed to satisfy
the PLRA exhaustion requirement.
The Court next considers whether there is any basis for
excusing Plaintiff's failure to exhaust administrative remedies
at the IGRP. Last month, the Supreme Court forcefully
disapproved of judge-made exceptions to the PLRA's
exhaustion requirement, stressing the mandatory language
of the statute. See Ross, 136 S. Ct. at 1862 (“Courts may
not engraft an unwritten ‘special circumstances’ exception
onto the PLRA's exhaustion requirement.”) In doing so,
the Supreme Court expressly rejected the Second Circuit's
prior framework under Giano v. Goord, 380 F.3d 670
(2d Cir. 2004), and, by extension, Hemphill v. New York,
380 F.3d 680, 686 (2d Cir. 2004), which recognized a
“special circumstances” exception to the PLRA's exhaustion
requirement. See Williams v. Priatno, No. 14-4777, ___ F.3d.
____, ____, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016)
(“[T]o the extent that our special circumstances exception ...
permits plaintiffs to file a lawsuit in federal court without
first exhausting administrative remedies that were, in fact,
available to them, those aspects of Giano and Hemphill are
abrogated by Ross.”).
Thus, post-Ross, the lone surviving exception to the PLRA's
exhaustion requirement is that embedded in its text: that an
inmate need only exhaust those administrative remedies that
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are “available” to him. Ross, 136 S. Ct. at 1862; see also
43 U.S.C. § 1997e(a). An inmate's failure to exhaust may
therefore be excused when his prison's grievance mechanisms
are literally or constructively “unavailable.” Ross, 136 S. Ct.
at 1858–59. The Supreme Court described three scenarios in
which administrative procedures could be “officially on the
books,” but “not capable of use to obtain relief,” and therefore
unavailable. Id. While not exhaustive, these illustrations
nonetheless guide the Court's inquiry. See Williams, 2016
WL 3729383, at *4 n.2. First, an administrative procedure
is unavailable when “it operates as a simple dead end –
with officers unable or consistently unwilling to provide
any relief to inmates.” Ross, 136 S. Ct. at 1859. If prison
administrators either lack the necessary authority to provide
any relief or possess authority but consistently decline to
exercise it, the administrative channels are not “available”
within the meaning of the PLRA. Id.; see also Booth v.
Churner, 523 U.S. 731, 736, 738 (2001) (“[T]he modifier
‘available’ requires the possibility of some relief.”). Second,
an administrative procedure is unavailable where it is “so
opaque that it becomes, practically speaking, incapable
of use.” Id. To meet this high bar, the administrative
remedy must be “essentially ‘unknowable.’ ” Id. Finally,
“a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of it
through machination, misrepresentation, or intimidation.”
Ross, 136 S. Ct. at 1860.
Here, Plaintiff has not alleged – let alone shown – that the
administrative procedures at the OBCC were unavailable
to him. Although Plaintiff's initial grievance received no
response, this alone is insufficient to show that the IGRP acted
as a mere dead end. As stated earlier, “the law is well-settled”
that an inmate's “failure to take an available administrative
appeal, even when the initial grievance receives no response,
constitutes a failure to exhaust available administrative
remedies.” Garvin, 2015 WL 3999180, at *3 (collecting
authorities). In short, the DOC's untimeliness in this case
is not enough to demonstrate the unavailability of an
administrative remedy. This is especially true in light of the
IGRP's built-in appeal mechanism, whereby inmates may
directly proceed to the next level of review in the event
of the DOC's failure to respond to a grievance. (See IGRP
Directive § IV(D)(9)(b), (10).) Furthermore, Plaintiff has not
introduced any facts to indicate that prison officials at OBCC
are “consistently unwilling to provide any relief to aggrieved
inmates.” Ross, 136 S. Ct. at 1859.
*5 Nor has Plaintiff pointed to any evidence that the
IGRP was “so opaque that it [became], practically speaking,
incapable of use” and therefore “essentially unknowable.”
Ross, 136 S. Ct. at 1859. While the Second Circuit recently
found that certain administrative grievance procedures at
a different New York State facility met this standard,
the Second Circuit's decision hinged on the “extraordinary
circumstances” specific to the case before it, for which
the applicable grievance regulations gave “no guidance
whatsoever.” See Williams, 2016 WL 3729383, at *1, *5.
Specifically, the plaintiff in Williams was housed in a
special housing unit and segregated from the regular prison
population; therefore, he gave his grievance complaint to a
correction officer to file on his behalf. Williams, 2016 WL
3729383, at *2. However, the plaintiff in Williams alleged
that the correction officer to whom he gave his complaint
failed to file it, id., and because the Second Circuit concluded
that the applicable grievance regulations gave “no guidance
whatsoever to an inmate whose grievance was never filed,”
id. at 5, it reversed the District Court's dismissal for failure to
exhaust. Here, by contrast the IGRP expressly guides inmates
in Plaintiff's position who have filed a grievance but have not
received a timely response and directs them to either grant an
extension of time to the relevant decisionmaker or to appeal to
the next level of review. (See IGRP Directive §§ IV(D)(9)(b),
(10).) In light of the IGRP's unambiguous directive, Plaintiff
has clearly failed to show that the IGRP was “essentially
unknowable.” See Ross, 136 S. Ct. at 1859.
Finally, the Court turns to the third scenario contemplated
by the Supreme Court, in which “prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id.
at 1859. Plaintiff has not demonstrated, or even suggested,
that prison administrators obstructed or interfered with his
access to administrative remedies. See, e.g., Winston v.
Woodward, No. 05-cv-3385 (RJS), 2008 WL 2263191, at
*10 (S.D.N.Y. May 30, 2008) (concluding that plaintiff's
failure to exhaust administrative remedies was not excused in
light of his “failure to put forth any corroborating evidence,
either direct or circumstantial, to support his claims that he
suffered retaliation in the form of threats, harassment and
mail tampering”). Thus, this exception to the exhaustion
requirement is also clearly inapplicable.
Therefore, the Court concludes, as a matter of law, that
Plaintiff has failed to exhaust administrative remedies
available to him through the IGRP and has failed to offer any
facts to prove that administrative remedies were not available
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to him. Because Plaintiff's claims are barred for failure to
comply with the administrative exhaustion requirement of
the PLRA, Defendant's motion for summary judgment is
granted. 2
IV. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that
Defendant's motion for summary judgment is GRANTED.
Although Plaintiff has paid the filing fee in this action and
has not applied to proceed in forma pauperis, the Court
nevertheless certifies pursuant to 28 U.S.C. § 1915(a)(3) that,
in the event Plaintiff seeks to appeal this Order in forma
pauperis, any appeal would not be taken in good faith.
The Clerk is respectfully directed to terminate the motion
pending at docket number 53, to mail a copy of this order to
Plaintiff, and to close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 3948100
Footnotes
1 The following facts are drawn from Defendant's unopposed Local Civil Rule 56.1 Statement. (Doc. No. 55
(“56.1 Statement” or “56.1 Stmt.”).) In deciding Defendant's motion for summary judgment, the Court has
also considered Plaintiff's submission in opposition to summary judgment (Doc. No. 58 (“Opp'n”)), and has
conducted an independent review of the record, notwithstanding Plaintiff's failure to submit a statement
compliant with Local Civil Rule 56.1. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d. Cir. 2001) (noting
that district court “may in its discretion opt to conduct an assiduous review of the record even when” a party
has failed to comply with Local Civil Rule 56.1 (citations and quotation marks omitted)).
2 Although Defendant has raised other grounds for summary judgment, including that Plaintiff has failed to
establish an Eighth Amendment conditions of confinement claim, and that Defendant is entitled to qualified
immunity, the Court finds it unnecessary to address these other arguments because of Plaintiff's failure to
exhaust remedies.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Foskey v. Paige, N.D.N.Y., March 4, 2024
2017 WL 2791063
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edy RODRIGUEZ, Plaintiff,
v.
J. CROSS, Sergeant, Clinton
Correctional Facility; et al., Defendants.
No. 15-CV-1079 (GTS/CFH)
|
Signed 05/09/2017
Attorneys and Law Firms
Edy Rodriguez, East Elmhurst, NY, pro se.
Ryan E. Manley, Harris, Conway & Donovan, Christopher J.
Hummel, New York State Attorney General, Albany, NY, for
Defendants.
REPORT-RECOMMENDATION AND ORDER 1
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Edy Rodriguez (“Plaintiff”), an inmate
who was, at all relevant times, in the custody of the New
York Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. §
1983, alleging that Sergeant (“Sgt.”) J. Cross, Sgt. R. Furnia,
Correction Officer (“C.O.”) G. Falcon, and C.O. J. Roberts
(collectively “Defendants”) violated his constitutional rights
under the First and Eighth Amendments. Dkt. No. 1
(“Compl.”). 2
Presently pending is defendants' motion for summary
judgment pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 56(a) for plaintiff's failure to exhaust
administrative remedies before commencing this action. Dkt.
No. 26. Plaintiff filed a response in opposition to defendants'
motion. Dkt. No. 34. Defendants filed a reply. Dkt. No. 39.
I. Background
The facts are reviewed in the light most favorable to plaintiff
as the non-moving party. See subsection II(A) infra. At
the relevant times giving rise to plaintiff's claims, plaintiff
was an inmate incarcerated at Clinton Correctional Facility
(“Clinton”).
On July 10, 2014, plaintiff wrote a letter to Sgt. Cross
“complaining about being harassed” by staff at Clinton.
Compl. at 4. Plaintiff further alleges that he was taken out of
his cell on July 14, 2014, brought to the second floor of the
facility's hospital, and subjected to a “beating” by defendants.
Compl. at 4-5. Sgt. Cross grabbed him by the hair; Sgt. Furnia
punched him; and C.O. Falcon and C.O. Roberts punched him
in the face, back, and neck. Id. at 4. Plaintiff alleges “each
one of the blows” he suffered was from the named defendants,
as well as other officers he cannot identify by name. Id. at
5-6. After the alleged incident, plaintiff was seen by a nurse
with “about ten” officers present in the room, where he admits
“having no choice,” but to tell the nurse that officers had
just beat him up. See Affirmation of Christopher J. Hummel
(“Hummel Aff.”), Dkt. No. 26-1, Exhibit (“Exh.”) A 3 at
59-60. 4
While at Clinton, plaintiff filed five grievances. See
Declaration of Christine Gregory (“Gregory Decl.”), Dkt.
No. 26-3 Exh. A at 6. Only one grievance was appealed.
Declaration of Jeffrey Hale (“Hale Decl.”), Dkt. No. 26-2 ¶¶
12-13. The subject matter of the single appealed grievance
does not concern the matter before the Court. Id. ¶ 12. The
only grievance filed that is pertinent to the pending motion
was filed on July 29, 2014. See Gregory Decl. Exh. B at 8.
This grievance alleges that plaintiff suffered “an assault by
(C.O.)” and, following the assault, did not receive appropriate
medical care. Id. The investigation into the July 29, 2014
grievance concluded that plaintiff saw his medical provider,
and medicine was given to him without any further action. Id.
at 10. The investigation did not mention anything about an
assault. Id.
*2 Plaintiff alleges that he filed a grievance regarding the
incidents described in his complaint, but an unidentified
Sergeant destroyed the grievance. Compl. at 2. He also alleges
that he was beaten by correction staff for filing the grievance.
Id. Plaintiff also states that he filed a handwritten grievance
(not on a grievance form) on July 19, 2014, regarding the July
14, 2014 incident. See Hummel Aff. Exh. A at 93. Plaintiff
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alleges that he sent a copy of this grievance to his mother and
instructed her to send it directly to Clinton “[f]rom outside.”
Id. at 94. Defendants have no record of this grievance being
filed. See Gregory Decl. Exh. A at 6. Plaintiff never inquired
further about the July 19, 2014 grievance, but maintains that
he has handwritten copies of the grievance since he did not
have access to carbon paper when he originally drafted this
grievance. See Hummel Aff. Exh. A at 94-95, 96-97. The
July 19, 2014 grievance was drafted while plaintiff was in
keeplock. Id. at 93.
Plaintiff further alleges, in his response to defendants' motion
for summary judgment, that defendants have total control
over facility mail and any failure to exhaust administrative
remedies occurred because defendants strategically removed
grievances from the mailbox to cover up their use of excessive
force against plaintiff. See Dkt. No. 34 at 4. Plaintiff
further alleges a general belief that there is a pattern of
prison officials threatening and retaliating against inmates
for filing grievances, thus making administrative remedies
unavailable. Id. at 6. Lastly, plaintiff alleges that there is
an “unwritten posture” at Clinton where inmates are not
given grievance forms unless they provide a clear description
of their complaint, or the complaint does not involve staff
misconduct. Id. at 8.
II. Discussion 5
Plaintiff alleges that defendants retaliated against him in
violation of the First Amendment, used excessive force
against him in violation of the Eighth Amendment, and
violated his Due Process rights under the First and Fourteenth
Amendments. See Compl. at 7. Defendants argue that
plaintiff's complaint should be dismissed in its entirety as
plaintiff failed to exhaust his administrative remedies with
respect to the causes of action outlined in the Complaint. See
Defendants' Memorandum of Law, Dkt. No. 26-5 at 3.
A. Legal Standard For Motions
Pursuant to Fed. R. Civ. P. 56(a)
“A court shall grant summary judgment 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 has the burden of
showing the absence of disputed material facts by providing
the Court with portions of “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,” which support the motion. FED. R. CIV.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A fact is material if it may affect the outcome of the case as
determined by substantive law, such that “a reasonable jury
could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “In
determining whether summary judgment is appropriate, [the
Court] will resolve all ambiguities and draw all reasonable
inferences against the moving party.” Skubel v. Fuoroli, 113
F.3d 330, 334 (2d Cir. 1997).
To avoid summary judgment, a non-moving party “must
do more than simply show that there is some metaphysical
doubt as to the material facts.” Carey v. Crescenzi, 923 F.2d
18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co.,
Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A
non-moving party must support such assertions by evidence
showing the existence of a genuine issue of material fact.
Carey, 923 F.2d at 19. “When no rational jury could find
in favor of the non-moving party because the evidence to
support is so slight, there is no genuine issue of material
fact and a grant of summary judgment is proper.” Gallo v.
Prudential Services, Ltd. Partnership, 22 F.3d, 1219, 1224 (2d
Cir. 1994).
*3 Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit has stated,
[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 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 and footnote omitted); see also Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191–92 (2d Cir. 2008).
B. Exhaustion of Administrative Remedies
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The Prison Litigation Reform Act (“PLRA”) requires that a
prisoner exhaust any administrative remedies available to him
or her before bringing an action for claims arising out of his or
her incarceration. Porter v. Nussle, 534 U.S. 516, 524 (2002);
see also Woodford v. Ngo, 548 U.S. 81, 82 (2006). The
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.’ ” Mauldin v. Kiff, No. 11-CV-107-
A, 2014 WL 2708434, at *4 (W.D.N.Y. June 16, 2014)
(quoting Porter, 534 U.S. at 532). Further, the exhaustion
requirement applies even where the prisoner seeks relief
not available in the administrative grievance process, such
as monetary damages. Porter, 534 U.S. 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 or she is incarcerated.
Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
omitted).
Although the Supreme Court has deemed exhaustion
mandatory, the Second Circuit has recognized that “certain
caveats apply.” Ruggiero v. County of Orange, 467 F.3d
170, 175 (2d Cir. 2006) (citation omitted). Until recently,
courts in this District followed a three-part test established
by the Second Circuit in Hemphill v. New York, 380 F.3d
680, 686 (2d Cir. 2004). Under the test established in
Hemphill, a plaintiff's failure to exhaust could be excused
if a plaintiff established that his or her failure to exhaust
was justified by “special circumstances.” Id. However, the
Supreme Court recently held that “[c]ourts may not engraft an
unwritten ‘special circumstances’ exception onto the PLRA's
exhaustion requirement.” Ross v. Blake, 136 S. Ct. 1850,
1862 (2016). As such, the special circumstances exception
previously promulgated by the Second Circuit in Hemphill
is no longer consistent with the statutory requirements of the
PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016).
*4 Although the Supreme Court's decision in
Ross eliminates the “special circumstances” exception
promulgated by Hemphill, courts must still consider the
PLRA's “textual exception to mandatory exhaustion.”
Ross, 136 S. Ct. at 1858. Under this exception, courts
must determine whether administrative remedies were
“available” to a prisoner. Id. The Supreme Court identified
three circumstances where administrative remedies may
be unavailable to a prisoner. 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. at 1859
(citing Booth v. Churner, 532 U.S. 731, 736, 738 (2001)).
“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 1860.
Here, there is no genuine dispute that at all relevant times,
DOCCS had in place a three-step inmate grievance program.
N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5. First,
the inmate must file a complaint with an inmate grievance
program (“IGP”) clerk within twenty-one days of the alleged
incident. Id. at § 701.5(a)(1). An IGP representative has
sixteen calendar days to informally resolve the issue. Id. at
§ 701.5(b)(1). If no informal resolution occurs, the Inmate
Grievance Review Committee (“IGRC”) must hold a hearing
within sixteen days of receipt of the grievance and must
issue a written decision within two working days after the
conclusion of the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the
determination is unfavorable to the inmate, the inmate may
appeal the IGRC's determination to the facility superintendent
within seven calendar days of receipt of the determination.
Id. § 701.5(c)(1). If the superintendent's determination is
unfavorable to the inmate, the inmate may appeal to the
Central Office Review Committee (“CORC”) within seven
days after receipt of the superintendent's determination. Id.
§§ 701.5(d)(i)-(ii). CORC must “review each appeal, render
a decision on the grievance, and transmit its decision to the
facility, with reasons stated, for the [inmate], the grievance
clerk, the superintendent, and any direct parties within thirty
(30) calendar days from the time the appeal was received.”
Id. § 701.5(d)(3)(ii).
1. Application
First, the Court will address whether there is any genuine
dispute that plaintiff failed to exhaust his administrative
remedies. Courts in the Second Circuit have consistently
held that any informal resolutions or relief outside of
the administrative procedures do not satisfy exhaustion
requirements. See, e.g., Macias v. Zenk, 495 F.3d 37, 43
(2d Cir. 2007) (holding that regardless of whether prison
officials know of plaintiff's complaints in a “substantive
sense,” procedural exhaustion of remedies must still occur);
Ruggiero v. Cty. of Orange, 467 F.3d 170, 177-78 (2d Cir.
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2006); Perez v. City of N.Y., No. 14 CIV. 07502(LGS), 2015
WL 3652511, at *4 (S.D.N.Y. June 11, 2015) (“Plaintiff's
allegation that he advised others of his grievance does not
excuse his failure to exhaust the administrative process.”).
Here, subsequent to the alleged events giving rise to the matter
before the Court, plaintiff states he and family members
contacted the Inspector General's Office to complain about
prison conditions and concerns of plaintiff's safety. See
Hummel Aff. Exh. A at 89, 90. Such correspondence does
not satisfy exhaustion and falls outside of the grievance
procedures. See Geer v. Chapman, No. 9:15-CV-952(GLS/
ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26,
2016), report and recommendation adopted, No. 9:15-
CV-952 (GLS/ATB), 2016 WL 6090874 (N.D.N.Y. Oct.
18, 2016) (“It is well-settled that writing letters to prison
officials, or other officials, is insufficient to properly exhaust
administrative remedies.”); Salmon v. Bellinger, No. 9:14-
CV-0827(LEK/DJS), 2016 WL 4411338, at *4 (N.D.N.Y.
July 5, 2016), report and recommendation adopted by,
No. 9:14-CV-0827(LEK/DJS), 2016 WL 4275733 (N.D.N.Y.
Aug. 12, 2016) (holding that letters sent to the Inspector
General do not satisfy exhaustion procedures).
*5 After the alleged incident of excessive force, plaintiff
was seen by a nurse in a room with “about ten” officers
present, where he admits “having no choice” but to tell the
nurse that the officers had beat him up. Hummel Aff. Exh.
A at 59-60. Plaintiff alleges filing grievances on July 19,
2014 and July 29, 2014 that mention the assault. See id. at
93; Gregory Decl. Exh. B at 6, 8-10. Defendants state that
there is no record of appeal on any grievances pertaining
to the alleged assault. Gregory Decl. ¶ 15. While plaintiff's
complaints were aired verbally and in writing, plaintiff failed
to utilize the procedures required to exhaust administrative
remedies. Timmons v. Schriro, No. 14-CV-6606(RJS), 2015
WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law
is well-settled that informal means of communicating and
pursuing a grievance, even with senior prison officials,
are not sufficient under the PLRA.”). Thus, there is no
genuine dispute that plaintiff failed to exhaust administrative
remedies.
As a result, the Court must determine whether administrative
remedies were in fact available to plaintiff. See Ross, 136 S.
Ct. at 1858 (“An inmate ... must exhaust available remedies,
but need not exhaust unavailable ones”); Mena v. City
of New York, No. 13-cv-2430(RJS), 2016 WL 3948100,
at *4 (S.D.N.Y. July 19, 2016) (citing Ross, 136 S. Ct.
at 1862) (“[T]he lone surviving exception to the PLRA's
exhaustion requirement is that embedded in its text: that an
inmate need only exhaust those administrative remedies that
are ‘available’ to him.”). Plaintiff sets forth three factual
arguments as to why administrative remedies were not
available to him. First, plaintiff alleges that the grievance
procedures were unavailable to him because he was denied
access to paper and writing instruments. See Compl. at 3.
Next, plaintiff alleges that he was physically beaten when he
attempted to take steps to utilize the grievance process. Id.
Lastly, plaintiff suggests that he never received a response to
his grievance, his mail was tampered with, and his letters were
not delivered. See Hummel Aff. Exh. A at 91-92, 94.
a. Lack of Paper and Pen to
Complete Grievance Procedures
The third prong of Ross is triggered by plaintiff's argument
that he was denied access to pen and paper, as it shows
an alleged attempt to stop him from taking part in the
grievance process. When a plaintiff-inmate asserts that
a defendant-facility withheld pens, courts have granted
summary judgment against a plaintiff when “the record does
not show that “[p]laintiff indicated to prison officials that
he needed a pen so he could file a grievance or that prison
officials refused to provide him a pen for this purpose.” Mena
v. City of N.Y., No. 12 CIV. 6838(GBD), 2013 WL 3580057,
at *2 (S.D.N.Y. July 10, 2013). When an inmate argues that
a correction officer denies him access to pen or paper, even
assuming the allegations are true, courts examine whether the
inmate was drafting other documents during the same time
period, or whether they were able to access materials from
other sources. See Williams v. Ramos, No. 13 CV 826(VLB),
2015 WL 864888, at *3 (S.D.N.Y. Feb. 9, 2015) (“It is
unclear how plaintiff was able to submit [other] grievances
if defendants took his pens and paper and threatened him ...
Moreover, when defendants allegedly stole his pens and
papers, plaintiff testified he was able to file grievances on
his commissary sheet.”); Lahoz v. Orange Cty. Jail, No. 08
CIV. 4364(RWS), 2010 WL 1789907, at *3 (S.D.N.Y. Apr.
29, 2010) (stating that an inmate was not deprived of writing
materials when he drafted a handwritten letter during the same
time period as the grievance process).
Here, the Court notes contradictory statements within
the complaint pertaining to plaintiff's access to writing
instruments or paper. When prompted as to why facts relating
to the complaint were not presented in the grievance program,
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plaintiff asserts that he was denied a paper or pen. Compl. at
3. However, plaintiff also states that he wrote a grievance, the
grievance was destroyed by a Sergeant, and he was beaten in
retaliation for writing the grievance. See id. at 2. The only
time plaintiff asserts that he was denied a paper and pen was
when he was taken to the Special Housing Unit (“SHU”) 6 on
July 14, 2014 after the alleged incident. See id. at 3; Hummel
Aff. Exh. A at 68. In fact, records indicate that plaintiff filed
grievances on July 19, July 29, August 4, and November 19 of
that same year. 7 Gregory Decl. Exh. A at 6. Plaintiff does not
allege any difficulties obtaining a pen and paper after the July
2014 SHU stay, but rather, admits having “a piece of paper
that an inmate had and a pen” on at least one occasion. See
id. at 94.
*6 Lastly, in his response to defendants' motion for summary
judgment, plaintiff alleges that there is an “unwritten posture”
at Clinton where inmates are not given grievance forms unless
they provide a clear description of their complaint, or if their
complaint does not involve staff misconduct. Dkt. No. 34
at 8. Such general allegations without any factual support
are insufficient to show that procedures were unavailable,
coupled with the fact that, grievances can and have been
submitted by plaintiff on plain paper. N.Y. COMP. CODES
R. & REGS. tit. 7, § 701.5(a)(1) (“If this form is not readily
available, a complaint may be submitted on plain paper.”);
see Veloz v. N.Y., 339 F. Supp. 2d 505, 516 (S.D.N.Y.
2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (granting
summary judgment where plaintiff does not allege that any
specific officer thwarted his efforts to timely file a grievance);
Hummel Aff. Exh. A at 94.
Even if the Court assumes that plaintiff was denied access to
pen and paper while in the SHU, the grievances filed in July
2014 were filed within the twenty-one calendar days required,
and his subsequent failure to exhaust administrative remedies
regarding those grievances is unaffected by any denial of pen
and paper that occurred in the past. Thus, the Court rejects
plaintiff's argument as there is no genuine dispute of fact
that administrative remedies were unavailable due a lack of
writing instruments or paper.
b. Allegation that Grievance Was
Not Received and Mail Tampering
Courts have long held that where an inmate does not receive
a response to a written grievance, the inmate must appeal
to the next level of review. See Khudan v. Lee, No. 12-
cv-8147(RJS), 2015 WL 5544316, at *5 (S.D.N.Y. Sept. 17,
2015) (dismissing a plaintiff's complaint where plaintiff failed
to appeal to the next level of review after not receiving
a response to his filed grievance); see also Veloz v. New
York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178
Fed.Appx. 39 (2d Cir. 2006) (“[P]laintiff's allegation that
these particular grievances were misplaced or destroyed by
correctional officers ultimately does not relieve him of the
requirement to appeal these claims to the next level once it
became clear to him that a response to his initial filing was
not forthcoming.”).
However, recent decisions by courts in the Second Circuit
have addressed the availability of administrative remedies
when an inmate's grievance is unfiled and unanswered. These
cases have focused on the second prong of the Ross test,
where a grievance process becomes unusable for an inmate.
Ross, 136 S. Ct. at 1859. In Williams v. Priatno, the Second
Circuit held that when an inmate's grievance is not filed,
“the regulations plainly do not describe a mechanism for
appealing a grievance.” See 829 F.3d at 126. Thus, “the
process to appeal an unfiled and unanswered grievance is
prohibitively opaque, such that no inmate could actually
make use of it.” Id. The Williams ruling relied upon a
scenario where an inmate is housed in a SHU and personally
gives a grievance to a correction officer, as required by
grievance procedures. Id. at 120-21. Additionally, adding
to the “opaque” nature of the procedures, the plaintiff in
Williams followed up when he did not receive a response
after a week, but was subsequently transferred one week later
without any resolution or knowledge of his grievance being
filed. Williams, 829 F.3d at 120-21. Ultimately, the Williams
Court held that “in giving his grievance to the correction
officer, [the plaintiff] exhausted all administrative remedies
that were available to him.” Id. at 126.
Here, in his September 19, 2016 deposition, plaintiff sets
forth facts suggesting prison staff filtered his mail and “when
they [saw] grievances” they were thrown to the side, not
delivered, “and were never [ ] seen.” See Hummel Aff. Exh.
A at 91-92. The grievance that plaintiff allegedly filed on
July 19, 2014 was sent to the Clinton grievance office by
his mother. Id. at 94. Plaintiff never received a response on
the grievance or followed up on the status of the grievance.
Id. Without concrete facts, plaintiff states that his grievance
was not resolved because “no civilian ... picks up your
grievances. It's officers.” Id. at 91. Plaintiff's allegations of
mail tampering are conclusory and weakened by the fact that
other correspondence, including complaints, were sent and
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received during the general time period material to the issues
before the Court. Johnson v. Fraizer, No. 16-CV-6096(CJS),
2016 WL 7012961, at *4 (W.D.N.Y. Dec. 1, 2016) (“Plaintiff
makes only a conclusory statement that his mailing was not
allowed to leave the facility[,] ... his contention ... is belied by
his admission that he was able to send other complaints about
the matter to various New York State officials at around the
same time.”); see Hummel Aff. Exh. A at 89, 94 (providing
an example where plaintiff successfully sent legal mail to his
mother).
*7 In plaintiff's response in opposition to defendants'
motion for summary judgment, he raises general complaints
about defendants having total control over facility mail
and defendants strategically removing grievances from the
mailbox to cover up their excessive use of force against
plaintiff and other inmates. See Dkt. No. 34 at 2. Plaintiff's
bare assertions do not excuse exhaustion requirements.
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. Khudan,
2016 WL 4735364, at *6 (citations omitted) (holding that
under Ross, mere stand alone contentions of mail tampering
without support and particularity cannot deem administrative
remedies unavailable); Veloz, 339 F. Supp. 2d at 516 (holding
that summary judgment is proper where the plaintiff contends
that officers misplaced his grievances, but offers no evidence
to support his claim). In Khudan, the court did not consider
or rely upon conclusory allegations when plaintiff attested he
“was informed by other [unnamed] inmates that grievances
routinely go ‘missing.’ ” Khudan, 2016 WL 4735364, at *6.
This is similar to plaintiff's conclusory theory of injustice
and displeasure with mail procedures, and other “recurrent
pattern[s]” in New York correctional facilities. Dkt. No. 34
at 2, 4; see Khudan, 2016 WL 4735364, at *6 (“Plaintiff's
accusations, which ‘stand alone’ and are ‘unsupported,’
are insufficient to withstand summary judgment.”) (quoting
Bolton v. City of N.Y., No. 13-CV-5749(RJS), 2015 WL
1822008, at *2 (S.D.N.Y. Apr. 20, 2015)).
Courts have denied a defendant's motion for summary
judgment when faced with an unanswered and unfiled
grievance drafted in SHU. See, e.g., Juarbe v. Carnegie,
No. 9:15-CV-01485(MAD/DEP), 2016 WL 6901277, at
*1, 4 (N.D.N.Y. Nov. 23, 2016). This is distinguishable
from plaintiff's alleged July 19, 2014 grievance drafted in
keeplock. 8 Such a difference in inmate housing supports
the notion that, “the Second Circuit's decision hinged on
the ‘extraordinary circumstances’ specific to the case before
it.” Mena v. City of N.Y., No. 13-CV-2430(RJS), 2016 WL
3948100, at *5 (S.D.N.Y. July 19, 2016) (quoting Williams,
829 F.3d at 119); see N.Y. COMP. CODES R. & REGS. tit.
7, § 701.7 (explaining that there are different grievance filing
procedures for an inmate housed in the SHU). Inmates not
housed in the SHU are in a different position to SHU inmates
when determining if grievance procedures are “essentially
unknowable” or unavailable. Id. at *5 (quoting Ross v. Blake,
136 S. Ct. at 1859).
Plaintiff never followed up on the July 19, 2014 grievance.
Hummel Aff. Exh. A at 94-95. However, on July 29, 2014,
he filed a grievance in the facility that included medical
complaints, but also a reference to the alleged assault
on July 14, 2014. See Gregory Decl. Exh. B at 8. The
Clinton grievance department received and responded to
this grievance. Id. This grievance was not appealed. Id.
¶ 15. Even assuming, as the Court must on this motion,
that plaintiff's allegations of mail tampering are true, he
did not exhaust his administrative remedies when he failed
to appeal the July 29, 2014 grievance to the next level of
review. The fact that this grievance was subsequently filed
and not appealed within close proximity to the July 19,
2014 grievance, coupled with three unrelated grievances filed
within the next year, demonstrates that plaintiff's situation
does not rise to the level where the grievance process
is “opaque,” unavailable, or unascertainable. See Hill v.
Tisch, No. 02CV3901(DRH/AYS), 2016 WL 6991171, at *7
(E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to
demonstrate that the grievance “procedures were essentially
unknowable”); Gregory Decl. Exh. A at 6.
c. Allegation that Plaintiff Suffered
Retaliation and Physical Beatings
Plaintiff's pleadings also suggest an inquiry under the third
prong of Ross, whether “machination, misrepresentation,
or intimidation” occurred. See Ross, 136 S. Ct. at 1860.
Specifically, plaintiff alleges that he did not comply with the
grievance procedures because he was subjected to physical
beatings, retaliation, and intimidation after complaining about
conditions at Clinton. See Compl. at 3, 4, 7. For these reasons,
he believed the grievance procedures were unavailable. See
id. at 2-3.
*8 Specific threats of retaliation or intimidation by prison
employees can render administrative remedies unavailable.
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Ross, 136 S. Ct. at 1860 & n.3. However, a generalized
fear of retaliation is insufficient to overcome a failure to
exhaust administrative remedies. Salmon, 2016 WL 4411338,
at *5. Estoppel is found where “verbal and physical threats
of retaliation, physical assault, denial of grievance forms
or writing implements, and transfers” occur showing that
defendants acted affirmatively to prevent an inmate from
availing him or herself of the grievance procedures. Id. at
*5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d
Cir. 2011)). In Riles, the Second Circuit affirmed a district
court's ruling that prison officials' alleged threats did not
interfere with exhaustion efforts when plaintiff stated he was
threatened “if he pushed the issue,” but then subsequently
filed a grievance in spite of the alleged threats. See Riles v.
Buchanan, 656 Fed.Appx. 577, 581 (2d Cir. 2016) (summary
order).
Relying on Ross, courts have carved out factual limitations to
the third prong of unavailability concerning fear of retaliation.
See, e.g., Aviles v. Tucker, No. 14-CV-08636(NSR), 2016
WL 4619120, at *3-4 (S.D.N.Y. Sept. 1, 2016) (citing Ross,
136 S. Ct. at 1860). In Aviles, the court noted a longstanding
rule that general beliefs of retaliation or fears do not excuse
the exhaustion requirement. Aviles, 2016 WL 4619120, at *4
(citations omitted). Circumstances that have met the threshold
of unavailability by means of intimidation have included
widespread beatings with assertions of fear for one's life,
in conjunction with the plaintiff withholding all complaints
until he was transferred to a different facility. See, e.g., id.
(quoting Thomas v. Cassleberry, No. 03-cv-6394L, 2007 WL
1231485, at *2 (W.D.N.Y. Apr. 24, 2007)). Allegations of
threats are conclusory where a plaintiff's allegation “does
not indicate who threatened him, when he was threatened,
or how he was threatened.” See Johnson v. Fraizer, No. 16-
CV-6096(CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1,
2016). In contrast, this Court has denied a summary judgment
motion when a plaintiff alleged he was threatened by a
specific correction that the officer would “break [plaintiff's]
bones,” and another specific correction officer threatened to
beat plaintiff “a [sic] inch from life” if he filed a grievance.
Galberth v. Durkin, No. 914CV115(BKS/ATB), 2016 WL
3910270, at *3 (N.D.N.Y. July 14, 2016).
Here, plaintiff offers conclusory allegations in his complaint
that “[he] was beaten” while attempting to access Clinton's
grievance program. Compl. at 2, 3. Plaintiff offers no
information of when or how he was threatened or beaten
after the July 14, 2014 incident. Some instances of threats
alleged by plaintiff refer to a time period before he filed a
grievance and he does not state how any specific threat or
subsequent act of violence impacted his ability to exhaust
administrative remedies related to the events that occurred
on July 14, 2014. See Aviles, 2016 WL 4619120, at *4
(finding grievance procedures available where plaintiff offers
conclusory allegations of fear and does not substantiate what
specific fears or past acts preclude him from advancing
in grievance procedures); Harrison v. Stallone, No. 9:06-
CV-902(LEK/GJD), 2007 WL 2789473, at *5 (N.D.N.Y.
Sept. 24, 2007) (“It has been held that a ‘general fear’
of retaliation is not sufficient to excuse the exhaustion
requirement.... If an inmate could simply state that he feared
retaliation, there would no point in having a grievance
procedure.”) (citations omitted); see, e.g., Hummel Aff. Ex.
A at 58. Much of plaintiff's fear is generalized. For instance,
he notes that corrections officers become agitated when they
see legal mail and “that's when harassment comes.” Hummel
Aff. Ex. A at 92. By his own admission, plaintiff denies any
actual physical force being used against him that prohibited
him from taking part in the grievance program. Hummel Aff.
Ex. A at 99; see Salmon, 2016 WL 4411338, at *5 (stating
there must be affirmative actions or specific instances of
physical assault or threats of retaliation for plaintiff to show
unavailability of the grievance process).
*9 The Court notes that plaintiff directly contradicted
allegations in his complaint by statements made in his
deposition. While the complaint alleges conclusory instances
of being “beaten by staff,” plaintiff admits that other than
being cut on his face by an inmate in the yard on October
5, 2015, there has not been any other physical force used
against him by inmates or correction officers since July 14,
2014. Hummel Aff. Ex. A at 99; Compl. at 3. This statement
contradicts plaintiff's allegations of being beaten by staff. See
Williams v. Doe, No. 12-CV-1147(HKS), 2016 WL 4804057,
at *5 (W.D.N.Y. Sept. 14, 2016) (granting a motion for
summary judgment after noting that any triable issue of fact
on exhaustion of administrative remedies can be eliminated
when plaintiff's prior representations to the court are “flatly
contradict[ed]”).
Further, this Court finds that plaintiff's failure to follow
the grievance procedures cannot be excused by fears or
intimidation, when he simultaneously made his complaints
known through other means. After the alleged incident,
plaintiff was seen by a nurse in a room with “about ten”
officers, where he admits “having no choice,” but to tell the
nurse that they had beaten him. Hummel Aff. Exh. A at 57-58.
Plaintiff also aired his complaints and concerns in writing
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outside of the grievance procedures, clearly identifying his
complaints in full substance, including the identification of
those who committed acts against him. See, e.g., Hummel
Aff. Exh. A at 93; Gregory Decl. Exh. A at 8. Similarly in
Johnson v. Fraizer, the Court rejected plaintiff's argument that
administrative remedies were unavailable where the plaintiff
alleged he was threatened by correction officers but continued
to make and send formal complaints to prison officials and
other New York State officials. Johnson v. Fraizer, No. 16-
CV-6096 (CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec.
1, 2016). By plaintiff's own admission, it is clear that he
sought to file the initial grievance and tell others about his
complaints, which disprove any claim of intimidation or
fear of retaliation. Quick v. Omittee, No. 14-CV-1503(TJM/
CFH), 2016 WL 5219732, at *4 (N.D.N.Y. Aug. 11, 2016),
report and recommendation adopted, No. 914CV1503 (TJM/
CFH), 2016 WL 5107125 (N.D.N.Y. Sept. 20, 2016) (holding
that fear of physical retaliation or assaults does not deem
grievance procedures unavailable when plaintiff continuously
sought to file complaints with officials). Like in Quick, where
the plaintiff filed formal internal grievances and the grievance
procedures were deemed available, here the plaintiff alleges
drafting two internal grievances outlining the alleged July 14,
2014 incident. See id. at * 4; Hummel Aff. Exh. A at 93;
Gregory Decl. Exh. B at 8. Thus, plaintiff has not shown that
administrative remedies were unavailable due to intimidation
and threats.
In conclusion, the Court finds that defendants have met their
burden in showing that there is no genuine issue of material
fact as to plaintiff's failure to exhaust administrative remedies.
Accordingly, the Court recommends that defendants' motion
be granted.
III. Conclusion
For the reasons stated above, it is hereby
RECOMMENDED that defendants' motion for summary
judgment (Dkt. No. 26) on plaintiff Edy Rodriguez's
complaint (Dkt. No. 1) be GRANTED; and it is further
RECOMMENDED that plaintiff Edy Rodriguez's
complaint (Dkt. No. 1) be DISMISSED in its entirety,
without prejudice; and it is further
ORDERED, that the Clerk of the Court serve a copy of
this Report-Recommendation and Order upon the parties in
this action, pursuant to local rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may
lodge written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F. 2d 85, 89 (2d Cir. 1993);
Small v. Sec'y of HHS, 892 F. 2d 15 (2d Cir. 1989); 28 U.S.C.
§ 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).
All Citations
Not Reported in Fed. Supp., 2017 WL 2791063
Footnotes
1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)
and N.D.N.Y.L.R. 72.3(c).
2 On March 27, 2017, this Court granted plaintiff an extension until May 1, 2017 to file a motion to amend his
complaint. Dkt. No. 38. The deadline has expired and plaintiff has not filed a motion to amend his complaint.
3 Exhibit A to the Affirmation of Christopher J. Hummel is a transcript of plaintiff's deposition, held on September
19, 2016 at Great Meadow Correctional Facility. See Dkt. No. 26-1.
4 When citing documents within the record, the Court uses the page numbers generated by CM/ECF.
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5 All unpublished opinions cited to by the Court in this Report-Recommendation and Order are, unless
otherwise noted, attached to this Report-Recommendation and Order.
6 SHUs exist in all maximum and certain medium security facilities. The units “consist of single-occupancy cells
grouped so as to provide separation from the general population....” N.Y. COMP. CODES R. & REGS. tit.
7, § 300.2(b). Inmates are confined in a SHU as discipline, pending resolution of misconduct charges, for
administrative or security reasons, or in other circumstances as required. Id. at pt. 301.
7 Both the August and November grievances are unrelated to the cause of action before the Court. Gregory
Decl. Exh. A at 6.
8 “Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him
of participation in normal prison activities.” Green v. Bauvi, 46 F.3s 189, 192 (2d Cir. 1995); N.Y. COMP.
CODES R. & REGS. tit. 7, § 301.6.
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2017 WL 2790530
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edy RODRIGUEZ, Plaintiff,
v.
J. CROSS, Sergeant, Clinton Corr. Fac.; R.
Furnia, Sergeant, Clinton Corr. Fac.; G. Falcon,
Corr. Officer, Clinton Corr. Fac.; and J. Roberts,
Corr. Officer, Clinton Corr. Fac., Defendants.
9:15-CV-1079 (GTS/CFH)
|
Filed 06/27/2017
Attorneys and Law Firms
EDY RODRIGUEZ, No. 8951602009, Anna M. Kross
Center, 18-18 Hazen Street, East Elmhurst, New York 11370,
Pro Se.
HON. ERIC T. SCHNEIDERMAN, OF COUNSEL:
CHRISTOPHER J. HUMMEL, ESQ. Assistant Attorney
General, The Capitol Albany, New York 12224, Attorney
General for the State of New York, Counsel for Defendants.
DECISION and ORDER
HON. GLENN T. SUDDABY, Chief United States District
Judge
*1 Currently before the Court, in this pro se prisoner
civil rights action filed by Edy Rodriguez (“Plaintiff”)
against the four above-captioned employees of the New
York State Department of Corrections and Community
Supervision at Clinton Correctional Facility in Dannemora,
New York (“Defendants”), are Defendants' motion for
summary judgment seeking dismissal of Plaintiff’s Complaint
for failure to exhaust his administrative remedies, and United
States Magistrate Judge Christian F. Hummel’s Report-
Recommendation recommending that Defendants' motion be
granted and that Plaintiff’s Complaint be dismissed in its
entirety without prejudice. 1 (Dkt. Nos. 26, 40.) Plaintiff has
not filed an Objection to the Report-Recommendation despite
having received an extension of the filing deadline, which has
expired. (Dkt. No. 42.)
After carefully reviewing the relevant papers herein,
including Magistrate Judge Hummel’s thorough Report-
Recommendation, the Court can find no clear-error in
the Report-Recommendation. 2 Magistrate Judge Hummel
employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. (Dkt. No.
40.) As a result, the Report-Recommendation is accepted
and adopted in its entirety for the reasons set forth therein;
Defendants' motion for summary judgment is granted; and
Plaintiff’s Complaint is dismissed in its entirety without
prejudice.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-
Recommendation (Dkt. No. 40) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 26) is GRANTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is
DISMISSED in its entirety without prejudice; and it is further
ORDERED that the Clerk of the Court shall enter Judgment
for Defendants and close this action.
All Citations
Not Reported in Fed. Supp., 2017 WL 2790530
Footnotes
1 The Court notes that Assistant Attorney General Christopher J. Hummel is of no relation to U.S. Magistrate
Judge Christian F. Hummel.
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2 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to
only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing
such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at
*1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s]
report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Ruiz v. Link, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 3020254
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Michael RUIZ, Plaintiff,
v.
P. LINK, J. Reyes, Patrick Squire, Michael Blot,
Deborah Macdonald, and John Does #1-3, Defendants.
No. 20-CV-235 (CS)
|
Signed July 29, 2022
Attorneys and Law Firms
Michael Ruiz, Comstock, New York, Pro Se Plaintiff.
Kathryn Martin, Assistant Attorney General, Office of the
Attorney General of the State of New York, White Plains,
New York, Counsel for Defendants.
OPINION & ORDER
Seibel, District Judge
*1 Before the Court is Defendants' motion for summary
judgment. (ECF No. 66.) For the reasons set forth below,
Defendants' motion is GRANTED.
I. BACKGROUND
The following facts are based on Defendants' Local Civil
Rule 56.1 Statement, (ECF No. 68 (“D's 56.1 Stmt.”)), and
supporting materials, and are undisputed unless otherwise
noted. 1
A. Facts
Plaintiff Michael Ruiz is incarcerated in the custody of the
New York State Department of Corrections and Community
Supervision (“DOCCS”). (D's 56.1 Stmt. ¶ 1.) Plaintiff's
claims arose while he was held at Green Haven Correctional
Facility. (Id. ¶ 2.) Plaintiff brings this lawsuit in connection
with an altercation in the prison yard on April 6, 2019 and
the medical treatment he received thereafter. (Id. ¶¶ 3-4.)
He alleges excessive force claims against Defendants Link,
Reyes, Squire and Blot, and a claim of deliberate indifference
to medical needs against Defendant MacDonald. 2
*2 The altercation and medical treatment at issue occurred
on April 6, 2019. (Ds' 56.1 Stmt. ¶¶ 3-4.) That same day,
Plaintiff was transferred from Green Haven to Sing Sing
Correctional Facility. (Id. ¶ 22.) While at Sing Sing, Plaintiff
filed a grievance, dated April 9, 2019, 3 alleging that on
April 6, 2019, correction officers used excessive force against
him, and medical staff failed to properly treat him. (D's 56.1
Stmt. ¶ 24; see ECF No. 71-6.) The grievance was denied
by the Sing Sing Superintendent on July 26, 2019. (D's 56.1
Stmt. ¶ 25; ECF No. 71-7.) Plaintiff testified at his deposition
that he did not receive a copy of the Superintendent's denial
until October 9, 2019, when he received a memo from Sing
Sing's Inmate Grievance Program (“IGP”) Supervisor, dated
August 30, 2019. (P's Depo. at 79:22-80:13; see ECF No.
65-6.) The letter informed Plaintiff that his grievance had
been answered on July 26, 2019 and forwarded to Plaintiff at
that time; the Supervisor included with the memo a copy of
the Superintendent's July 26 denial. (Id.) The bottom portion
of the Superintendent's denial letter is a form the inmate
can fill out if he wishes to appeal; it states, “[R]eturn this
copy to your Inmate Grievance Clerk.” (ECF No. 71-7.) 4
By the time Plaintiff received the letter and the copy of
the Superintendent's denial on October 9, Plaintiff had been
transferred out of Sing Sing and was being held in the Special
Housing Unit (“SHU”) at Elmira Correctional Facility. (Ds'
56.1 Stmt. ¶ 26; P's Depo. at 78:8-19, 78:25-79:21.) 5
DOCCS records reflect that the Central Office Review
Committee (“CORC”) never received any appeal of the
Superintendent's denial of Plaintiff's grievance. (D's 56.1
Stmt. ¶ 28.) Further, DOCCS records reflect that CORC did
not receive any correspondence from Plaintiff at all during
2019 or 2020. (Id. ¶ 29; see ECF No. 70 (“Seguin Decl.”)
¶ 13.) Plaintiff asserted in his deposition that he filled out
the appeal form on October 10, 2019 and “forwarded it to
CORC ... [b]y mail.” (P's Depo. at 80:24-81:4; see id. at
82:20-83:7.) Plaintiff did not specify the address to which he
mailed the appeal, but stated that he requested and received
the address from the law library. (Id. at 82:3-19.) Plaintiff did
not receive an acknowledgement of receipt or answer from
CORC. (Id. at 81:5-7.) After several months, he filed this
lawsuit. (Id. at 81:8-13.)
B. Procedural History
Plaintiff filed his original complaint on January 8, 2020,
bringing claims under 42 U.S.C. § 1983 against eight Green
Haven employees in their individual capacities for violations
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of the Eighth Amendment. (ECF No. 2.) The case was
reassigned to me on February 14, 2020. At a pre-motion
conference on August 28, 2020 in anticipation of a potential
motion to dismiss, I granted Plaintiff leave to amend his
Complaint. (See Minute Entry dated Aug. 28, 2020.) The
Amended Complaint was filed on September 25, 2020. (ECF
No. 30.) Defendants answered on April 8, 2021. (ECF No.
44.)
On May 11, 2021, I held a status conference and set a
discovery schedule, (ECF No. 51), which was extended twice,
(ECF Nos. 57, 60). At the close of discovery, Defendants
filed a pre-motion letter in anticipation of their motion for
summary judgment. (ECF No. 64.) 6 I held a pre-motion
conference on November 16, 2021 and set a briefing schedule
for Defendants' motion. (See Minute Entry dated Nov. 16,
2021.) On December 29, 2021, Defendants filed their motion
papers. (ECF Nos. 66-71.) Plaintiff's opposition was initially
due on January 27, 2022. Approximately one to two weeks
before the due date Plaintiff left two phone messages with my
chambers, requesting an extension of the briefing schedule
and permission to file a motion to obtain counsel. (See ECF
No. 74.) On January 19, 2022, I entered an Order extending
Plaintiff's time to respond to the motion to February 28, 2022,
and advising him of his right to file a motion asking the Court
to seek volunteer counsel. (Id.) On March 18, 2022, I received
a letter from Plaintiff (dated March 14, 2022), indicating that
his opposition was ready, and he just wanted permission to file
it late; I granted an extension to April 6, 2022, and noted there
would be no further extensions. (ECF No. 76.) On April 28,
2022, after no opposition was received, I deemed the motion
fully submitted. (ECF No. 78.)
II. LEGAL STANDARD
*3 Summary judgment is appropriate when “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). “[T]he 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). A fact is
“material” if it “might affect the outcome of the suit under
the governing law .... Factual disputes that are irrelevant
or unnecessary will not be counted.” Id. On a motion for
summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in
his favor.” Id. at 255.
The movant bears the initial burden of demonstrating “the
absence of a genuine issue of material fact,” and, if satisfied,
the burden then shifts to the non-movant to “present evidence
sufficient to satisfy every element of the claim.” Holcomb
v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). “The
mere existence of a scintilla of evidence in support of the
[non-movant's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the
[non-movant].” Anderson, 477 U.S. at 252. Moreover, the
non-movant “must do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), and “may not rely on conclusory allegations or
unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 428 (2d Cir. 2001) (cleaned up).
“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by ... citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits
or declarations, stipulations ... admissions, interrogatory
answers, or other materials ....” Fed. R. Civ. P. 56(c)(1).
Where a declaration is used to support or oppose the motion,
it “must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the ...
declarant is competent to testify on the matters stated.” Id.
56(c)(4); see Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that “a
party fails ... to properly address another party's assertion of
fact as required by Rule 56(c), the court may ... consider
the fact undisputed for purposes of the motion” or “grant
summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e).
Pro se litigants must be afforded “special solicitude,” Tracy
v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly
where motions for summary judgment are concerned,”
Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014).
Where, as here, the non-moving party fails to respond to
the movant's summary judgment motion, “the district court
may not grant the motion without first examining the moving
party's submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial.”
Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,
244 (2d Cir. 2004) (cleaned up). “If the evidence submitted
in support of the summary judgment motion does not meet
the movant's burden of production, then summary judgment
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must be denied even if no opposing evidentiary matter is
presented.” Id. (cleaned up) (emphasis omitted).
III. DISCUSSION
A. Exhaustion Under the PLRA
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is required
for “all inmate suits about prison life, whether they involve
general circumstances or particular episodes.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The PLRA mandates that
a plaintiff use “all steps that the agency holds out, and do[ ]
so properly” – that is, in accordance with the applicable
agency rules. Amador v. Andrews, 655 F.3d 89, 96 (2d Cir.
2011) (cleaned up). Exhaustion of available administrative
remedies “must be complete prior to commencement of suit”
and “[t]he fact that a grievance is filed, or the process is
completed, subsequent to commencement of suit will not
salvage an otherwise premature filing.” Chalif v. Spitzer, No.
05-CV-1355, 2008 WL 1848650, at *13 (N.D.N.Y. Apr. 23,
2008) (cleaned up).
*4 For inmates in New York State prison, administrative
exhaustion requires compliance with DOCCS' three-tiered
IGP, in which (1) the inmate must file a grievance with the
Inmate Grievance Resolution Committee (“IGRC”) within
twenty-one days of the alleged occurrence, (2) the inmate
must then appeal an adverse decision by the IGRC to the
superintendent of the facility within seven days after receipt
of the IGRC's response, and (3) the inmate must then appeal
an adverse decision by the superintendent to the CORC within
seven days after receipt of the superintendent's response. See
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2022); McGee
v. McGready, No. 16-CV-4187, 2018 WL 2045094, at *2
(S.D.N.Y. Apr. 30, 2018).
“[W]hen a grievance concerns staff harassment, DOCCS
procedures provide for an expedited review that allows for
the complaint to bypass IGRC review and proceed before
the Superintendent in the first instance.” Jackson v. Jackson,
No. 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16,
2021); see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8. Under
the expedited procedure, the Superintendent has twenty-five
days to respond to the grievance. N.Y. Comp. Codes R. &
Regs. tit. 7, § 701.8(f). If the Superintendent fails to respond
within twenty-five days, the inmate may appeal directly to
CORC. Id. § 701.8(g). If the Superintendent does respond,
the inmate has seven days from receipt of the response to
appeal to CORC. Id. § 701.8(h). The IGP Supervisor has
discretion to grant exceptions to the time limits for filing or
appealing grievances. See id. § 701.6(g). Whether or not the
Superintendent timely responds, the procedure to appeal a
determination of the Superintendent to CORC is to file “a
notice of decision to appeal (form #2133) with the inmate
grievance clerk.” Id. § 701.8(g)-(h). 7 Inmates who have been
transferred to a different facility can get their appeal to the
appropriate grievance clerk by “mail[ing] the signed appeal
form back to the IGP supervisor at the facility where the
grievance was originally filed.” Id. § 701.6(h)(2).
CORC is required to provide, through IGP staff, written
confirmation that an appeal has been received, and if the
inmate does not receive such confirmation within forty-five
days, he “should contact the IGP supervisor in writing to
confirm that the appeal was filed and transmitted to CORC.”
Id. § 701.5(d)(3)(i). The IGP requires CORC to respond to an
appeal within thirty days of receipt. Id. § 701.5(d)(3)(ii). If
CORC has received an appeal and fails to rule within those
thirty days, the inmate is considered to have exhausted his
administrative remedies and may file suit. Hayes v. Dahlke,
976 F.3d 259, 270 (2d Cir. 2020).
B. Plaintiff's Failure to Exhaust
Defendants have met their burden to demonstrate that
Plaintiff failed to follow IGP procedures with regard to
his CORC appeal and that CORC never received Plaintiff's
appeal. Accordingly, Plaintiff failed to “properly” exhaust
administrative remedies prior to filing suit. See Amador, 655
F.3d at 96.
Plaintiff testified that once he received the Superintendent's
adverse decision on October 9, 2021, he filled out the appeal
statement and “forwarded it to CORC ... [b]y mail.” (P's Depo.
at 80:24-81:4.) He never received confirmation that his appeal
was received or any response from CORC, and after a few
months he filed this lawsuit. (Id. at 81:8-13.)
The IGP required Plaintiff to forward the appeal to the Inmate
Grievance Clerk. N.Y. Comp. Codes R. & Regs. tit. 7, §
701.8(g)-(h). The form at the bottom of the Superintendent's
letter also notified Plaintiff that the appeal to CORC had to
be transmitted via the Inmate Grievance Clerk. (See ECF No.
71-7.) The IGP specifically provides that Plaintiff, having
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been transferred to a different facility from that in which
he originally filed his grievance, should get his appeal to
the proper Inmate Grievance Clerk by “mail[ing] the signed
appeal form back to the IGP supervisor at the facility where
the grievance was originally filed.” Id. § 701.6(h)(2). Nothing
in the record indicates that Plaintiff followed this procedure;
rather, it appears he tried to mail his appeal directly to CORC,
and CORC never received the document. (See Seguin Decl. ¶¶
12-13 (CORC never received appeal of Plaintiff's grievance,
nor did it receive any other correspondence from Plaintiff
during 2019 or 2020); ECF No. 71-8 (CORC records showing
no receipt of appeal)).
*5 Accordingly, Plaintiff failed to properly follow
the grievance procedure and has failed to exhaust his
administrative remedies. See Valverde v. Folks, No. 19-
CV-8080, 2022 WL 836310, at *6 (S.D.N.Y. Mar. 21,
2022) (“Plaintiff did not properly comply with [the] prison
grievance procedural rules. Plaintiff ... mailed his appeal
statement directly to CORC. However, to appeal a decision
denying a grievance, an inmate must submit the appeal,
not directly to CORC, but to the grievance supervisor of
the facility where the grievance was originally filed for
forwarding to that facility's grievance clerk.”); Wilkinson v.
Banks, No. 2-CV-361, 2007 WL 2693636, at *6 (W.D.N.Y.
Sep. 10, 2007) (“[N]o dispute exists that [the pro se plaintiff]
did not follow correct procedure in attempting to appeal that
grievance to CORC. He did not file his appeal with the Inmate
Grievance Clerk as required by the regulations, but rather
mailed it directly to CORC.”) (cleaned up).
C. Availability of Administrative Remedies
Although the Supreme Court has deemed exhaustion
mandatory, there are circumstances under which
administrative remedies may be deemed “unavailable” to
an inmate, such that an inmate is not required to exhaust.
Ross v. Blake, 578 U.S. 632, 642 (2016). The Supreme
Court identified three circumstances where administrative
remedies may be unavailable. See id. at 643-44. 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. at
643. Second, “an administrative scheme might be so opaque
that it becomes, practically speaking, incapable of use.” Id.
Third, administrative remedies are unavailable where “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 644. “If the defendant has met its burden
of establishing the existence and applicability of the grievance
policy, the plaintiff bears the burden of establishing de facto
unavailability.” Saeli v. Chautauqua County, 36 F.4th 445,
453 (2d Cir. 2022) (emphasis in original).
Plaintiff has submitted no opposition to the instant motion
and has not argued that administrative procedures were
unavailable to him. See Dowling v. Barkman, No. 17-
CV-647, 2019 WL 7971868, at *5 (N.D.N.Y. Dec. 20,
2019) (“Given Plaintiff's failure to oppose the Motion, no
basis appears on the record for concluding that DOCCS'
grievance procedure was unavailable to him.”), report and
recommendation adopted sub nom. Dowling v. Schleicher,
2020 WL 103480 (N.D.N.Y. Jan. 8, 2020). Even if that were
not the case, the record does not reflect that any of the above-
listed circumstances apply.
First, nothing in the record suggests that Plaintiff did not
receive a response from CORC because the grievance process
was operating as a “dead end” – rather, it appears that CORC
never received Plaintiff's appeal because of Plaintiff's failure
to send the appeal to the appropriate official. (See P's Depo. at
80:24-81:4; Seguin Decl. ¶¶ 12-13; ECF No. 71-8.) Similarly,
the record is bereft of evidence that the IGP is unavailable to
inmates generally. See White v. Veile, 709 F. App'x 35, 38 (2d
Cir. 2017) (summary order) (affirming summary judgment
for failure to exhaust administrative remedies where plaintiff
did not “present[ ] any evidence about the outcomes in the
grievance system in general” or “show[ ] that prison officials
are consistently unwilling to grant relief”).
Second, as set out above, the relevant procedures are not
opaque. The IGP clearly sets out the process for appealing
a grievance to CORC through the Inmate Grievance Clerk –
including the instructions under § 701.6(h)(2) for an inmate
who has been transferred from one facility to another to send
an appeal to the appropriate facility's IGP Supervisor. Plaintiff
testified that he is familiar with the grievance process, (see
P's Depo. at 18:3-19:6), and the Superintendent's denial stated
that the appeal to CORC had to go through the Inmate
Grievance Clerk, (see ECF No. 71-7).
*6 Third, while there is some evidence in the record that
Plaintiff sought information from the “law library officer”
while he was in the SHU at Elmira and appears to have
been given a mailing address for CORC, 8 this fact alone
is insufficient to establish that a prison official thwarted his
ability to successfully appeal to CORC. Plaintiff has not
suggested that he asked how to appeal and was told to mail his
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appeal to CORC, or that he asked the law library officer for
anything other than the address of CORC. There is simply no
evidence of machination, intimidation or misrepresentation.
That the breakdown of the grievance procedure here was
due to Plaintiff's failure to follow it, rather than to its
unavailability, is highlighted by the fact that when Plaintiff
did not receive confirmation that CORC was in possession
of his appeal within the forty-five days envisioned by the
regulations, instead of following the IGP and writing to Sing
Sing's IGP Supervisor – an official with whom he had recently
communicated, (see P's Depo. at 79:22-80:13, 81:14-21) –
to confirm that the appeal was filed, see N.Y. Comp. Codes
R. & Regs. tit. 7, § 701.5(d)(3)(i), he simply waited a few
months and then filed this lawsuit. (P's Depo. at 79:25-80:8,
81:5-13). 9
In short, “[g]iven the lack of evidence that Plaintiff's appeal
to CORC was ever filed, or ever followed up on, it is
not that the full scope of administrative remedies was not
available to Plaintiff – rather, Plaintiff failed to fully exhaust
the administrative remedies available to him.” Houston
v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3
(W.D.N.Y. May 14, 2020); see Litchmore v. Williams, No. 11-
CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013)
(no “sufficient basis in the record to find that administrative
remedies were unavailable” where, among other things, there
was “no evidence here that the plaintiff's appeal was actually
mailed, intercepted, or ignored” and “DOCCS has no record
of any appeal filed with CORC”). 10
IV. CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is GRANTED. The Clerk of Court is respectfully
directed to terminate the pending motion, (ECF No. 83), enter
judgment for Defendants, and close the case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 3020254
Footnotes
1 Plaintiff did not file a responsive Rule 56.1 Statement or any papers in opposition to this motion. Local
Civil Rule 56.1 requires that the party opposing a motion for summary judgment submit a counterstatement
responding to the moving party's statement of material facts, indicating which facts are admitted and which
the opposing party contends are in dispute and require a trial. L.R. 56.1(b). Under the Local Rule, “[i]f the
opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact
will be deemed admitted.” Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (citing L.R. 56.1(c)).
Pro se litigants are not excused from this requirement. SEC v. Tecumseh Holdings Corp., 765 F. Supp. 2d
340, 344 n.4 (S.D.N.Y. 2011). As Defendants served Plaintiff with the requisite notice pursuant to Local Civil
Rule 56.2, (see ECF No. 72), I have discretion to consider any properly supported facts in Defendants' Local
Civil Rule 56.1 Statement admitted. (The Court will send Plaintiff copies of any unpublished decisions cited
in this Opinion and Order.) But granting Plaintiff solicitude, I have considered his deposition testimony, (ECF
No. 71-2 (“P's Depo.”)), statements in his complaint and amended complaint, both of which are sworn under
penalty of perjury pursuant to 28 U.S.C. § 1746, (ECF Nos. 2, 30), and his letter in response to Defendants'
pre-motion letter, (ECF No. 65). See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a
court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may
in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed
to file such a statement.”) (cleaned up).
2 Defendants move for summary judgment on all of Plaintiff's claims on the ground that he failed to exhaust his
administrative remedies, and in the alternative for summary judgment only on Plaintiff's deliberate medical
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indifference claim. (See ECF No. 67 at 1.) Because I resolve the motion on the basis of failure to exhaust
administrative remedies, I do not describe the specific allegations further.
3 Defendants state in their Rule 56.1 statement that Plaintiff's grievance is dated April 22, 2019, but that is the
date on which the grievance was stamped as received by the facility. (See ECF No. 71-6.)
4 The form is captioned “Appeal Statement,” and below the caption it reads: “If you wish to refer the above
decision of the Superintendent please sign below and return this copy to your Inmate Grievance Clerk. You
have seven (7) calendar days from your receipt of this notice to file your appeal.* Please state why you are
appealing this decision to C.O.R.C.” The asterisk leads to a statement about how to request an exception
to the time limit. Below the language quoted above are several lines for the inmate to explain why he is
appealing, and then signature lines for the inmate and the Grievance Clerk.
5 Plaintiff notes that it is possible he had not previously received the Superintendent's denial because much of
the time he was at Sing Sing he was housed in the Office of Mental Health (“OMH”) unit after several suicide
attempts between June and September of 2019. (P's Depo. at 78:5-19.)
6 Plaintiff responded by letter dated November 8, 2021, but that letter was not received and docketed until
November 24, 2021. (See ECF No. 65.)
7 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. See N.Y. Comp.
Codes R. & Regs. tit. 7, § 701.5(d)(1)(i).
8 Plaintiff testified as his deposition as follows:
[Q.] So how do you know where to send the grievance appeal? ...
A. You can actually get the address from the law library that they provide in the facility. They have all the
information of addresses, names, stuff like that.
Q. And is that what you did? You went to the law library?
A. Yes, ma'am. I was in the special housing unit at the time, so the law library officer will actually come to
you and take your request and then return the request by the next day.
(P's Depo. at 82:6-19.)
9 Plaintiff's response to the question whether he ever followed up with CORC – that he “tried checking [the
appeal], but it had already been months they hadn't responded, so I proceeded with my civil Complaint,” (P's
Depo. at 81:8-13) – not only contains no information about what he did to check, but suggests at most that
he asked about the status of his appeal at or about the same time that he filed this lawsuit.
10 Having so found, I need not and do not address the merits of Plaintiff's medical indifference claim.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-01105-AMN-ML Document 98 Filed 12/23/25 Page 502 of 527

Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 3672105
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Walter RUSYNIAK; and Anthony Rusyniak, Plaintiffs,
v.
Ena Paola GENSINI; Gunilla De Montaigu;
and Concha Futura, S.A., Defendants.
No. 5:07–CV–0279 (GTS/GHL).
|
Oct. 30, 2009.
Attorneys and Law Firms
Costello, Cooney & Fearon, PLLC, Robert M. Smith, Esq.,
Kristen L. Pickard, Esq., of Counsel, Syracuse, NY, for
Plaintiffs.
Hiscock & Barclay, LLP, Robert A. Barrer, Esq., of Counsel,
Syracuse, NY, for Defendants Gunilla De Montaigu and
Concha Futura, S.A.
Greene, Hershdorfer & Sharpe, Victor J. Hershdorfer, Esq., of
Counsel, Syracuse, NY, for Defendant Ena Paola Gensini.
MEMORANDUM DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently pending before the Court in the above-
captioned action is a motion by Defendants containing two
alternative requests for relief: (1) a request for reconsideration
of Part III.D.5 of the Court's Decision and Order of May
5, 2009, denying Defendants' request for dismissal of all of
Plaintiffs' claims due to the doctrine of forum non conveniens;
and (2) a request for dismissal of the First Cause of Action
of Plaintiffs' Third Amended Complaint (asserting a claim of
violation of Panama law) as barred by the three-year statute of
limitations set forth in the certified translation of Article 1652
of the Panamanian Code. (Dkt. No. 61.) For the reasons set
forth below, Defendants' motion is granted in part, and denied
in part.
I. REQUEST FOR RECONSIDERATION
To the extent that Defendants' motion requests
reconsideration of the Court's decision to denying their
request for dismissal of all of Plaintiffs' claims due to the
doctrine of forum non conveniens, that motion is untimely.
Defendants' motion was filed on June 8, 2009. (Dkt. No.
61.) The Order of which reconsideration was sought was
entered on May 5, 2009. (Dkt. No. 56.) See N.D.N.Y.
L.R. 7.1(g) (setting ten-day deadline for motions for
reconsideration). Defendants' attempt to characterize the
Order of which reconsideration is sought as being the Court's
Text Order of May 29, 2009, is unconvincing. That Text
Order merely indicates the extent to which Plaintiffs' signed
Third Amended Complaint fails to comport with the Court's
Decision and Order of May 5, 2009 (and was issued in
response to Plaintiffs' request for guidance). Even liberally
construed, Defendants' motion for reconsideration expressly
and repeatedly challenges the substance of the Court's Order
of May 5, 2009 (specifically, Part III.D.5. thereof), and only
that Order. (See, e.g., Dkt. No. 61, Part 2, ¶ 4; Dkt. No. 61,
Part 4, Points II and III.)
In any event, even if the Court were to consider the
merits of Defendants' motion for reconsideration, the Court
would deny that motion as without cause: there has been
no intervening change of controlling law, no previously
unavailable evidence, and there exists no clear error of law or
manifest injustice with regard to the relevant portion of the
prior decision in question.
For these reasons, Defendants' request for reconsideration is
denied.
II. REQUEST FOR DISMISSAL OF FIRST CAUSE OF
ACTION
To the extent that Defendants' motion alternatively requests
the dismissal of the First Cause of Action of Plaintiffs'
Third Amended Complaint (asserting a claim of violation of
Panama law) as barred by the three-year statute of limitations
set forth in the certified translation of Article 1652 of the
Panamanian Code, that motion is granted.
Defendants are correct that Plaintiffs failed, in their response
papers, to oppose this request. (See Dkt. No. 63.) The closest
that Plaintiffs come to opposing this request is when, in a
supplemental letter request, they (correctly) point out that
Defendants have improperly broadened the target of their
Panamanian-statute-of-limitations argument from Plaintiffs'
First Cause of Action to all of Plaintiffs' causes of action.
(Dkt. No. 66; see also Dkt. No. 61, Part 4, at 7–8.) As a
result of Plaintiffs' failure to address Defendants' argument
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Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
regarding Plaintiffs' First Cause of Action, Defendants'
burden on this motion is somewhat lightened with regard to
that cause of action. 1
*2 After carefully reviewing the parties' motion papers, and
Plaintiffs' Third Amended Complaint, the Court finds that
Defendants have met their lightened burden on their motion
to dismiss Plaintiff's First Cause of Action. The Court reaches
this conclusion based on substance of the certified translation
provided by Defendants (i.e., the certified translation of
Article 1652 of the Commercial Code of the Republic of
Panama). (Dkt. No. 61, Part 3.) The Court reaches this
conclusion also based on the reasons stated in Part III.D.7.a.
of the Court's Order of May 5, 2009. (See Dkt. No. 56, at 44–
47.) See also Rusyniak v. Gensini, 629 F.Supp.2d 203, 231–
33 (N.D.N.Y.2009) (Suddaby, J.).
For these reasons, Defendants' request to dismiss Plaintiff's
First Cause of Action is granted.
ACCORDINGLY, it is
ORDERED that Defendants' motion (Dkt. No. 61) is
GRANTED in part, and DENIED in part, in accordance
with the above Decision and Order; and it is further
ORDERED that Defendants' motion for reconsideration of
the May 5, 2009 Decision and Order is DENIED, however,
the First Cause of Action of Plaintiffs' Third Amended
Complaint (Dkt. No. 58) is DISMISSED as barred by the
three-year statute of limitations set forth in the certified
translation of Article 1652 of the Panamanian Code; and it is
further
ORDERED that counsel for all parties are directed to attend
an in-person pretrial conference on NOVEMBER 19, 2009
at 2:00 p.m. in Judge Suddaby's chambers in Syracuse, New
York, at which counsel are directed to appear with settlement
authority.
All Citations
Not Reported in F.Supp.2d, 2009 WL 3672105
Footnotes
1 See Cossey v. David, 04–CV–1501, 2007 WL 3171819, at *7 (N.D.N.Y. Oct. 29, 2007) (Lowe, M.J. adopted
by Scullin, J.) (noting that, where plaintiffs do not respond to defendants' argument made in their summary
judgment motion, plaintiffs are deemed to have consented to defendants' argument, and thus defendants
must only satisfy “their modest burden of demonstrating entitlement to the relief requested through that
argument”); Saunders v. Ricks, 03–CV–598, 2006 WL 3051792, at *9 (N.D.N.Y. Oct. 18, 2006) (Lowe, M.J.
adopted by Hurd, J.) (“By failing to respond to Defendants' first argument ... Plaintiff may be deemed to
have consented to that argument under Local Rule of Practice 7.1(b)(3). Thus, Plaintiff's claim against those
Defendants may be dismissed on that ground alone [provided that] ... Defendants have met their modest
threshold burden to demonstrate entitlement to the relief requested in their motion for summary judgment.”);
Beers v. GMC, 97–CV–0482, 1999 U.S. Dist. LEXIS 12285, at *27–31 (N.D.N.Y. March 17, 1999) (McCurn,
J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their
motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants
with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3] ).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Toliver v. Stefinik, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 3349316
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michel TOLIVER, Plaintiff,
v.
J. STEFINIK, Correction Officer, Shawangunk
Correctional Facility; J. Gardner, Lieutenant Hearing
Officer, Shawangunk Correctional Facility; Stone,
Corrections Officer, Shawangunk Correctional
Facility; Aube, Sgt. in House Unit, Shawangunk
Correctional Facility; Gaye (John Doe), Corrections
Officer, Shawangunk Correctional Facility; Keys,
Corrections Officer, Shawangunk Correctional
Facility; L. Pingott, Captain (Security), Shawangunk
Correctional Facility; D. Degraff, Corrections Officer,
Shawangunk Correctional Facility; Sergeant Preston,
Sergeant Corrections, Shawangunk Correctional
Facility; R. Cutler, Corrections Officer, Shawangunk
Correctional Facility; Budziszewski, Corrections
Officer, Shawangunk Correctional Facility; R. Kane,
Corrections Officer, Shawangunk Correctional
Facility; C.O. North; J. Peterson, Defendants.
9:12-CV-00077
|
Signed 06/15/2016
Attorneys and Law Firms
MICHEL TOLIVER, 464 Hudson Street, #222, New York,
New York 10014, Plaintiff Pro Se.
OFFICE OF THE NEW YORK, STATE ATTORNEY
GENERAL, The Capitol, OF COUNSEL: CATHY Y.
SHEEHAN, AAG, Albany, New York 12224, Attorneys for
Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge
*1 On January 17, 2012, Plaintiff commenced this civil
rights action, pursuant to 42 U.S.C. § 1983, alleging that
twenty employees of the New York State Department
of Corrections and Community Supervision (“DOCCS”)
violated his constitutional rights during his confinement at the
Shawangunk Correctional Facility (“Shawangunk”). See Dkt.
No. 1. By Decision and Order dated May 3, 2012, this Court
dismissed, sua sponte, Defendants Schneiderman, Bellamy,
and Prack from the action because the complaint did not state
facts suggesting their personal involvement in the alleged
violations of Plaintiff's constitutional rights. See Dkt. No. 9
at 8-10.
On June 28, 2012, Plaintiff filed an amended complaint (Dkt.
No. 27), which, by Decision and Order dated December
6, 2012 (Dkt. No. 85), this Court accepted for filing
against seventeen of the original Defendants, as well as
Correction Officer (“C.O.”) North, who was not named in
the original complaint. Liberally construed, the surviving
claims in Plaintiff's amended complaint include (1) a First
Amendment claim, based on Defendants' alleged filing of
false misbehavior reports against Plaintiff, in retaliation for
his pursuit of complaints, grievances, appeals, and Article
78 actions; (2) an equal protection claim based on alleged
discrimination against Plaintiff because of his race, disability,
and/or sexual orientation; (3) a conspiracy claim related to
the retaliation and discrimination claims; (4) a Fourteenth
Amendment claim alleging denial of procedural due process
in connection with various disciplinary proceedings; and (5)
an Eighth Amendment claim for failure to provide adequate
medical care. Dkt. No. 27 at 8-9; Dkt. No. 35. Plaintiff seeks
both monetary and injunctive relief. Dkt. No. 27 at 14.
Defendants filed a motion, pursuant to Fed. R. Civ. P.
12(b)(6), seeking dismissal of Plaintiff's amended complaint
in its entirety, on behalf of all but one of the remaining
Defendants. 1 See Dkt. No. 134. Plaintiff responded to the
motion to dismiss, and defense counsel chose not to file a
reply. Dkt. No. 150. On November 17, 2014, Magistrate Judge
Baxter issued a Report-Recommendation recommending that
the Court grant-in-part and deny-in-part Defendants' motion
to dismiss. Dkt. No. 155. This Court adopted Magistrate
Judge Baxter's November 17, 2014 Report-Recommendation,
dismissing Plaintiff's conspiracy claim and all claims against
Defendants Fischer, Maly, and LeClaire.
This Court has previously found that, in litigating this case,
Plaintiff has made numerous
abusive and frivolous filings, which
have included more than twenty
motions, for preliminary injunctive
relief, eight motions to amend
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the amended complaint, several
requests for sanctions, repeated
motions to compel discover seeking
evidence which is clearly irrelevant
to the matter at hand, numerous
motions for reconsideration of
the Court's denials of Plaintiff's
frivolous motions, and countless
appeals to this Court of Magistrate
Judge Baxter's denials of his
frivolous requests.
*2 See Dkt. No. 233. Since Defendants filed their summary
judgment motion, Plaintiff has filed several additional
motions to amend or supplement his amended complaint,
which this Court denied as frivolous, vexatious, and in clear
contravention of repeated notices to Plaintiff “that the Court
will not permit [him] to amend the amended complaint in this
now four-year old case.” See Dkt. Nos. 244, 246. Plaintiff
filed two Interlocutory Appeals both of which were dismissed
by the Second Circuit. See Dkt. Nos. 252, 256.
On March 22, 2016, Magistrate Judge Andrew T.
Baxter issued a Report-Recommendation recommending
that Defendants' summary judgment motion be granted in
full. 2 See Dkt. No. 249. Specifically, Magistrate Judge
Baxter found that Plaintiff's retaliation, equal protection,
and Eight Amendment medical indifference claims should
be dismissed without prejudice for failure to exhaust all
available administrative remedies. See id. Further, Magistrate
Judge Baxter recommended dismissing Plaintiff's procedural
due process claims with prejudice because Plaintiff's factual
allegations failed to implicate a liberty interest that would
warrant due process protection.
Currently before this Court is Magistrate Judge Baxter's
Report-Recommendation, to which neither party has
objected.
I. DISCUSSION
A. Standard
When a party files specific objections to a magistrate judge's
report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). However, when a party
files “[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge,” the court reviews those recommendations
for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322,
2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations
and footnote omitted). After the appropriate review, “the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
A litigant's failure to file objections to a magistrate judge's
report-recommendation, even when that litigant is proceeding
pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that,
“[a]s a rule, a party's failure to object to any purported error or
omission in a magistrate judge's report waives further judicial
review of the point”) (citation omitted). A pro se litigant must
be given notice of this rule; notice is sufficient if it informs
the litigant that the failure to timely object will result in the
waiver of further judicial review and cites pertinent statutory
and civil rules authority. See Frank v. Johnson, 968 F.2d 298,
299 (2d Cir. 1992); Small v. Sec'y of Health and Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se
party's failure to object to a report-recommendation does not
waive his right to appellate review unless the report explicitly
states that failure to object will preclude appellate review and
specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a),
and former 6(e) of the Federal Rules of Civil Procedure).
*3 In the present matter, Magistrate Judge Baxter provided
Plaintiff adequate notice that he was required to file any
objections to the Report-Recommendation, and specifically
informed him that failure to object to any portion of
the report would preclude his right to appellate review.
See Dkt. No. 249 at 26. Specifically, Magistrate Judge
Baxter informed Plaintiff that “FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.” Dkt. No.
249 at 26.
Magistrate Judge Baxter clearly provided Plaintiff with
sufficient notice of the consequences of failing to object to the
Report-Recommendation. Although Plaintiff requested and
was granted two extensions of time to file objections, no
objections have been filed.
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A court may grant a motion for summary judgment only if
it determines that there is no genuine issue of material fact
to be tried and, based on the undisputed facts, judgment for
the movant is warranted as a matter of law. See Chambers v.
TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations
omitted). When analyzing a summary judgment motion, the
court “cannot try issues of fact; it can only determine whether
there are issues to be tried.” Id. at 36-37 (quotation and other
citation omitted). Moreover, it is well-settled that a party
opposing a motion for summary judgment may not simply
rely on the assertions in its pleadings. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P.
56(c) (e)).
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. See Chambers, 43 F.3d at 36 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986))
(other citations omitted). Where the non-movant either does
not respond to the motion or fails to dispute the movant's
statement of material facts, the court may not rely solely on
the moving party's Rule 56.1 statement; rather the court must
be satisfied that the citations to evidence in the record support
the movant's assertions. See Giannullo v. City of N.Y., 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment
“would derogate the truth-finding functions of the judicial
process by substituting convenience for facts”).
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has opined that the court is obligated to
“make reasonable allowances to protect pro se litigants” from
inadvertently forfeiting legal rights merely because they lack
a legal education. Id. at 295 (quoting Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983)). “However, this does not mean
that a pro se litigant is excused from following the procedural
requirements of summary judgment.” Kotler v. Fischer, No.
9:09-CV-01443, 2012 WL 929823, *12 (N.D.N.Y. Mar. 19,
2012) (citations omitted). Specifically, “a pro se party's
‘bald assertion,’ completely unsupported by evidence is not
sufficient to overcome a motion for summary judgment.” Lee
v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing
Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B. Exhaustion
*4 The Prison Litigation Reform Act (“PLRA”) states
that “[n]o action shall be brought with respect to prison
conditions under section 1979 of the Revised Statutes of
the United States (42 U.S.C. 1983), or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1983; 42 U.S.C. §
1997e(a). This exhaustion requirement applies to all suits
brought by inmates regarding aspects of prison life. See
Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must
exhaust all available administrative remedies even if they are
seeking only money damages that are not available in prison
administrative proceedings. Giano v. Goord, 380 F.3d 670,
675 (2d Cir. 2004). The failure to exhaust is an affirmative
defense that must be raised by the defendants and, as such, it
is the defendants' burden to establish that the plaintiff failed
to meet the exhaustion requirements. Jones v. Bock, 549 U.S.
199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d
Cir. 2004); see, e.g., Key v. Toussaint, 660 F. Supp. 2d 518,
523 (S.D.N.Y. 2009) (citations omitted).
The Supreme Court has held that in order to properly
exhaust an inmate's administrative remedies, the inmate must
complete the administrative review process in accordance
with the applicable state rules. Jones, 549 U.S. at 218-19
(citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford,
the Court held that “proper” exhaustion means that the
inmate must complete the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a prerequisite to bringing suit in federal court.
Woodford, 548 U.S. at 90-103.
New York State has a three-step administrative review
process. First, a grievance is submitted to the Inmate
Grievance Resolution Committee (“IGRC”) which reviews
and investigates the formal complaint before issuing a written
determination. See 7 N.Y.C.R.R. § 701.5(b). Second, an
adverse decision by the IGRC may be appealed to the
Superintendent of the Facility. See id. at § 701.5(c). Third, an
adverse decision by the Superintendent may be appealed to
Central Office Review Committee (“CORC”), which makes
the final determination within the administrative review
process. See id. at § 701.5(d). If all three of these levels
of review are exhausted, then the prisoner may seek relief
in federal court pursuant to § 1983. See Bridgeforth v. DSP
Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing
Porter, 534 U.S. at 524); Singh v. Goord, 520 F. Supp.
2d 487, 495-96 (S.D.N.Y. 2007) (quoting Hemphill v. New
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Toliver v. Stefinik, Not Reported in Fed. Supp. (2016)
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York, 380 F.3d 680, 686 (2d Cir. 2004)). When a plaintiff
presents a claim arising “directly out of a disciplinary or
administrative segregation hearing ... (e.g., a claim of denial
of procedural due process), he exhausts his administrative
remedies by presenting his objections in the administrative
appeals process, not by filing a separate grievance instead of
or in addition to his ordinary appeal.” Sweet v. Wende Corr.
Facility, 514 F. Supp. 2d 411, 413 (W.D.N.Y. 2007) (internal
quotation and citations omitted); see also Davis v. Barrett, 576
F.3d 129, 131-32 (2d Cir. 2009).
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 CORC, must be
completed before an action asserting that claim may be
initially filed. See, e.g., Casey v. Brockley, No. 9:13-CV-1271,
2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) (“Receiving
a decision from CORC after commencing litigation does not
satisfy PLRA's requirement that administrative remedies be
exhausted before filing suit, and any claim not exhausted
prior to commencement of the suit must be dismissed
without prejudice”) (citing Neal v. Goord, 267 F.3d 116,
122-23 (2d Cir. 2001), overruled on other grounds, Porter
v. Nussle, 534 U.S. 516 (2002)); Rodriguez v. Rosner, No.
12-CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012).
“[A] post-exhaustion amendment of the complaint cannot
cure an exhaustion defect existing at the time the action was
commenced.” Guillory v. Haywood, No. 9:13-CV-1564, 2015
WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing Neal, 267
F.3d at 122) (other citation omitted).
*5 When the Second Circuit decided Giano, it also decided
four other related cases, further clarifying the law in the
Second Circuit regarding the PLRA's exhaustion requirement,
and carved out particular instances in which the requirement
could be waived or excused. See Hemphill, 380 F.3d at 686;
Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Johnson v.
Testman, 380 F.3d 691 (2d Cir. 2004); Ortiz v. McBride, 380
F. 3d 649 (2d Cir. 2004). Based on these cases, the Second
Circuit developed a “three part inquiry” to determine whether
an inmate has fulfilled the PLRA exhaustion requirement:
(1) whether the administrative remedies were available to
the inmate; (2) whether the defendants' own actions inhibited
exhaustion, estopping them from raising the defense of
exhaustion; (3) whether “special circumstances” justify the
inmate's failure to comply with the exhaustion requirement.
See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006)
(citing Hemphill, 380 F.3d at 686). Although the Second
Circuit has “questioned,” without deciding, whether Hemphill
remains good law after Woodford, it has applied the three-part
inquiry to recent cases. See, e.g., Heyliger v. Gebler, 624 Fed.
Appx. 780, 782-83 (2d Cir. 2015); Davis v. State of New York,
311 Fed. Appx. 397, 399 (2d Cir. 2009); Snyder v. Whittier,
428 Fed. Appx. 89, 91 (2d Cir. 2011).
In their answer to the amended complaint, Defendants
properly asserted the affirmative defense that Plaintiff failed
to exhaust his administrative remedies prior to bringing this
federal civil rights action. See Dkt. No. 171 at 4. Plaintiff's
argument that Defendants waived their right to assert an
exhaustion defense by not raising it in their pre-answer
motion to dismiss is without merit. See Dkt. No. 242-1 at
12; Villante v. VanDyke, 93 Fed. Appx. 307, 309 (2d Cir.
2004) (explaining that “[f]ederal Rule of Civil Procedure 8(c)
requires only that an affirmative defense be included in a
responsive pleading, such as an answer, not that it be the
subject of a pretrial motion” and finding that the defendants,
“having raised the exhaustion defense in their answer, did not
waive the defense by failing to include it in their first motion
for summary judgment”); see also Belgrave v. Pena, 254 F.3d
384, 387 (2d Cir. 2001) (permitting a defendant to amend
its answer to state an exhaustion defense). As Magistrate
Judge Baxter correctly found, Defendants did not waive the
exhaustion defense by not asserting it in their initial motion
to dismiss. See Dkt. Nos. 104, 171.
Defendants have submitted an affidavit from Michael
Cunningham, the supervisor of the Inmate Grievance
Program (“IGP”) at Shawangunk listing all of the grievances
filed by Plaintiff between February 2011 (the date of
Plaintiff's transfer to Shawangunk) and July 2012. See Dkt.
No. 236-3 at 2. Additionally, Defendants submitted a certified
copy of a CORC report showing Plaintiff's appeals to CORC
of grievances filed between 2011 and 2015. 3 See Dkt.
No. 236-8 at 3-5. This data indicates that Plaintiff filed
five grievances at Shawangunk before he filed his initial
complaint on January 17, 2012, and that although he fully
exhausted two of those claims, they were not exhausted until
February and March of 2011, after Plaintiff filed his initial
complaint. See Dkt. No. 236-10 at 21.
In his response in opposition to Defendants' motion for
summary judgment, Plaintiff claims, in conclusory terms,
that he submitted many more grievances than Defendants
acknowledged in their motion, which the IGRC refused to
file, and that he filed additional appeals to CORC, which
CORC refused to accept. See Dkt. No. 242-1 at 2-3. Plaintiff's
amended complaint, although often vague and confusing,
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appears to allege that he “circulated” or filed “complaints”
or grievances on the following dates: March 9, 22, 25, and
30. See Dkt. No. 27 at 11-12. Plaintiff attached a letter to his
amended complaint sent by DOCCS Deputy Commissioner
LeClaire dated April 26, 2011, in response to a complaint
from Plaintiff, which reminds Plaintiff that “[a]llegations of
misconduct by facility staff should be directed to facility
officials through the established grievance mechanism or by
writing to the Superintendent.” See Dkt. No. 27 at 63. Thus,
it appears as though Plaintiff may be referring to informal
complaints that he failed to properly direct to the established
grievance mechanism.
*6 Plaintiff has submitted a copy of one formal grievance,
dated March 9, 2011, that does not appear to be reflected on
Defendants' spreadsheet. In the amended complaint, however,
Plaintiff merely alleges that he “circulated” this grievance to
“the above named defendants,” so it is unclear whether he
properly submitted this grievance to IGRC. See Dkt. No. 27
at 11, 63; Dkt. No. 236 at 21; Dkt. No. 243-4 at 31. Further,
Plaintiff has not submitted any documentation to suggest that
he appealed a denial of the March 9, 2011 grievance. See Dkt.
No. 27 at 11. Finally, whether Plaintiff properly submitted
the March 9, 2011, grievance is unimportant as the substance
of that grievance was covered, in much greater detail, in
Plaintiff's March 10, 2011 grievance, which was properly
submitted to IGRC and appealed. See Dkt. No. 236 at 21.
As Magistrate Judge Baxter correctly found, Plaintiff's vague
and conclusory allegations that he filed other grievances that
were not accepted by the IGRC at Shawangunk do not, in light
of the documentation that Defendants have provided about
Plaintiff's grievance history, create a factual dispute material
to the issue of whether Plaintiff exhausted his administrative
remedies before he filed his initial complaint. See Jeffreys v.
City of new York, 426 F.3d 549, 554 (2d Cir. 2005) (explaining
that where a plaintiff, in response to a motion for summary
judgment, provides only their “own testimony, much of which
is contradictory and incomplete, it will be impossible for a
district court to determine whether the jury could reasonably
find for the plaintiff, and thus whether there are any genuine
issues of material fact, without making some assessment
of the plaintiff's account”) (quotation and internal citation
omitted); Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
(“mere conclusory allegations or denials are insufficient to
withstand a motion for summary judgment once the moving
party has set forth a documentary case”) (citations omitted).
Similarly, as Magistrate Judge Baxter correctly found,
Plaintiff's claim that CORC sometimes refused to accept his
appeals does not create a material issue of fact with respect
to the exhaustion issue. Plaintiff has submitted two letters,
received by him from CORC, dated July 20, 2011, 4 and June
12, 2012, returning papers to him and advising Plaintiff that
appeals of grievances must be submitted through the IGRC
at his facility, and not sent directly to CORC for review. See
Dkt. No. 4-2 at 8-9; Dkt. No. 27 at 70. Only the July 20,
2011 letter is relevant to the exhaustion issue in this case
because it pre-dates the filing of Plaintiff's initial complaint,
whereas the June 12, 2012, letter was sent and received after
the commencement of this action. See Dkt. No. 4-2 at 9. It
is clear that the July 20, 2011 letter refers to Grievance No.
26770-11, which Plaintiff did ultimately appeal to exhaustion.
See Dkt. No. 236-10 at 21. While CORC's return of Plaintiff's
initial inquiry relating to Grievance No. 26770-11 may have
delayed CORC's decision, it was Plaintiff's own mistake that
would have caused that delay and would not estop Defendants
from using the affirmative defense of exhaustion, nor is it a
“special circumstance” under the Hemphill factors.
Plaintiff's primary argument as to why his failure to exhaust
administrative remedies before filing this action should be
excused, is that CORC far exceeded the time limits set by
DOCCS regulations in denying his final appeal of Grievance
No. 26770-11. See Dkt. No. 242-1 at 4-8. However, it is
well-established law in the Second Circuit that a plaintiff
must wait for a final decision from CORC before filing an
action, even if CORC's decision is untimely under DOCCS
internal rules and regulations. See Casey, 2015 WL 8008728,
at *6 (“CORC's failure to act within the time frame set out
in the regulations does not constitute a special circumstance
justifying the failure to exhaust”) (collecting cases); Guillory,
2015 WL 268933, at *12 (“although regulations require
CORC to respond within thirty days, its failure to do
so is not a ‘special circumstance’ which might defeat
an exhaustion defense” (citation omitted)). The numerous
grievances pursued by Plaintiff in 2011 and 2012, as well as
the two appealed grievance decisions, clearly indicate that
Plaintiff had access to, and took advantage of, the grievance
process and was thus not inhibited from fully utilizing the
grievance process. See Dkt. No. 236-10 at 21. Therefore,
Plaintiff has failed to establish a material issue of fact with
respect to the availability of the administrative grievance
remedies that might justify Plaintiff's failure to exhaust the
administrative grievance process before filing this action.
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*7 As Magistrate Judge Baxter correctly found, Plaintiff's
retaliation, equal protection, and Eighth Amendment medical
claims must be dismissed without prejudice for failure to
exhaust the administrative grievance process prior to filing
this action. While requiring Plaintiff to initiate a new lawsuit
now that at least two of his claims have been fully exhausted
may seem judicially inefficient, if the resulting decision
is favorable to the plaintiff “the federal court will have
wasted its resources adjudicating claims that could have been
resolved within the prison grievance system at the outset.”
Neal, 267 F.3d at 123. Moreover, “allowing prisoner suits
to proceed, so long as the inmate eventually fulfills the
exhaustion requirement, undermines Congress' directive to
pursue administrative remedies prior to filing a complaint in
federal court.” Id.
C. Due process claims
Defendant's have not argued that Plaintiff failed to fully
appeal the disciplinary hearings challenged in the Amended
Complaint. See Dkt. Nos. 27, 236. Accordingly, as Magistrate
Judge Baxter correctly found, the due process claims cannot
be dismissed based on failure to exhaust, and must be
addressed on the merits. See Dkt. No. 249.
The Fourteenth Amendment to the Constitution provides
that “[n]o State shall ... deprive any person of life, liberty,
or property, without due process of law.” U.S. CONST.
AMEND. XIV, § 1. “Although prison inmates necessarily
have their liberty severely curtailed while incarcerated, they
are nevertheless entitled to certain procedural protections
when disciplinary actions subject them to further liberty
deprivations such as loss of good-time credit or special
confinement that imposes an atypical hardship.” Sira v.
Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted).
These procedural protections include advance written notice
of the charges, a fair and impartial hearing officer, a hearing
that affords the inmate the opportunity to call witnesses and
present documentary evidence, and a written statement of the
evidence upon which the hearing officer relied in making his
determination. Id. (citing Wolff v. McDonnell, 418 U.S. 539,
556 (1974)) (other citation omitted). Additionally, the hearing
officer's findings must be supported by “some” “reliable
evidence.” Id. (citing Superintendent v. Hill, 472 U.S. 445,
455 (1985)) (other citation omitted).
To successfully state a claim under section 1983 for denial
of due process, a plaintiff must establish both the existence
of a protected liberty or property interest, and that he or she
was deprived of that interest without being afforded sufficient
process. See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir.
2004) (citing Kentucky Dep't of Corrs. v. Thompson, 490 U.S.
454, 460 (1989)); Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.
2001). “Prison discipline implicates a liberty interest when
it ‘imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.’ ” Ortiz,
380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472,
484 (1995)). In Sandin, the Supreme Court held that although
states may create liberty interests protected by due process,
“these interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such
an unexpected manner as to give rise to protection by the
Due Process Clause of its own force, ... nonetheless imposes
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Sandin, 515 U.S. 483-84
(internal citations omitted).
The Second Circuit has refused to set a bright line rule on
when confinement becomes atypical. “In order to determine
whether a liberty interest has been affected, district courts
are required to examine the circumstances of a confinement
... and to identify with specificity the facts upon which
[their] conclusions [are] based.” Wright v. Coughlin, 132
F.3d 133, 137 (2d Cir. 1998) (citations omitted). While
under certain circumstances confinement of less than 101
days could be shown to meet the atypicality standard under
Sandin, the Second Circuit generally takes the position that
confinement in a Special Housing Unit (“SHU”), without
unusual conditions, for a period of up to 101 days will
not constitute an atypical hardship, while confinement for a
period of more than 305 days has been held to be atypical
even if under “normal conditions.” Ortiz, 380 F.3d at 654; see
Colon v. Howard, 215 F.3d 227, 231, 232 n.5 (2d Cir. 2000).
The “atypicality” inquiry under Sandin is normally a question
of law. Colon, 215 F.3d at 230-31; Sealey v. Giltner, 197 F.3d
578, 585 (2d Cir. 1999).
*8 “Overlapping disciplinary penalties may, under some
circumstances, have to be aggregated for purposes of
determining whether a liberty interest was violated.” Reynoso
v. Selsky, 292 Fed. Appx. 120, 122 (2d Cir. 2008)
(citation omitted). “Generally, it appears from Second Circuit
decisions that separate SHU sentences constitute a ‘sustained’
period of confinement [that may be aggregated] when (1)
they are contiguous and (2) they either (a) were imposed by
the same disciplinary hearing officer or (b) were based on
the same administrative rationale and are executed under the
same conditions.” Taylor v. Artus, No. 9:05-CV-271, 2007
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WL 4555932, *8 (N.D.N.Y. Dec. 19, 2007) (collecting cases)
(emphasis in original).
Although all relevant disciplinary proceedings involved Tier
II hearings, for which the maximum possible confinement
was 30 days of segregated housing or keeplock and would
not, therefore, trigger due process protection individually,
it is appropriate to aggregate two discrete periods in 2011
for due process analysis purposes. During these two discrete
periods, Plaintiff served consecutive terms of confinement
exceeding 30 days, and all of Plaintiff's disciplinary hearings
at Shawangunk were conducted by the same individual,
Defendant Gardner. 5 See Dkt. No. 236-10 at 17 (citing
N.Y. Comp. Codes R. & Regs. Tit. 7 § 253.7(a)(1)(iii)). 6
When aggregated, these two distinct periods constitute a 59
day consecutive period of keeplock served between March
14 and May 11, 2011, and a 64 day consecutive period
of keeplock served between October 14 and December 16,
2011. See Dkt. No. 236-9 at 7-8. However, as Magistrate
Judge Baxter correctly found, Plaintiff's liberty interests were
not implicated by the disciplinary proceedings challenged
in the amended complain, even after aggregating the two
consecutive periods of keeplock, given the absence of any
allegations from Plaintiff about unusually harsh conditions of
his keeplock.
Plaintiff's inmate history does not list two misbehavior reports
filed by Defendant Budziszewski, which Defendants included
with their motion. See Dkt. No. 236-6 at 69, 82-84. Plaintiff
contends in his amended complaint that there were additional
misbehavior reports filed against him in 2011 which are not
reflected on the disciplinary history submitted by Defendants.
See Dkt. No. 27 at 11, 24, 34-35, 48. Plaintiff, however, does
not provide any specific allegations to suggest that he served
punishment on disciplinary charges brought against him prior
to the filing of his amended complaint on June 26, 2012
beyond that reflected in his disciplinary history or in the other
disciplinary records submitted by Defendants.
Plaintiff has not submitted any evidence establishing, or even
made any allegations, that the conditions he experienced
while serving keeplock sentences at Shawangunk were
more harsh than typical keeplock conditions. Therefore, as
Magistrate Judge Baxter correctly found, none of the periods
of keeplock confinement he served would implicate a liberty
interest warranting due process protection. See, e.g., Holland
v. Goord, No. 05-CV-6295, 2006 WL 1983382, *7 (W.D.N.Y.
July 13, 2006) (finding 77 days in keeplock during which
the plaintiff was deprived of TV, phone, packages, and
commissary, and was unable to attend Muslim services and
classes, did not constitute a liberty interest); Pilgrim v. Bruce,
No. 9:05-CV-198, 2008 WL 2003792, *15 (N.D.N.Y. May 7,
2008) (finding that a plaintiff's conclusory allegations, which
notably failed to include claims that he was denied food,
clothing, bedding, heat, running water, toiletries, or medicine
during his 60 days in keeplock, fail to establish that he was
subject to more severe conditions than in normal restrictive
confinement); Holmes v. Grant, No. 03-CIV-3426, 2005 WL
2839123, *5 (S.D.N.Y. Oct. 25, 2005) (finding that sixty days
in the SHU at Shawangunk is “insufficient to constitute a
deprivation of a liberty interest”).
*9 Based on the foregoing, the Court grants Defendants'
motion for summary judgment as to Plaintiff's due process
claims.
II. CONCLUSION
After carefully considering Magistrate Judge Baxter's Report-
Recommendation, the parties' submissions and the applicable
law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Baxter's March 22, 2016
Report-Recommendation is ADOPTED in its entirety for the
reasons stated therein; and the Court further
ORDERS that Defendants' summary judgment motion is
GRANTED in full; and the Court further
ORDERS that Plaintiff's retaliation, equal protection,
and Eighth Amendment medical indifference claims are
DISMISSED without prejudice; and the Court further
ORDERS that Plaintiff's procedural due process claims are
DISMISSED with prejudice; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants' favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
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All Citations
Not Reported in Fed. Supp., 2016 WL 3349316
Footnotes
1 C.O. North, who, by then, was no longer an active DOCCS employee, had not been served with the amended
complaint and was not then represented in this action. See Dkt. No. 91. C.O. North has since accepted
service, and is currently represented by the Attorney General's Office, as are the other remaining thirteen
Defendants.
2 Although Magistrate Judge Baxter's March 22, 2016, Report-Recommendation indicates that the Defendants'
summary judgment motion should be granted in part, it is clear upon review that all remaining claims in
Plaintiff's amended complaint must be dismissed on the grounds stated. Magistrate Judge Baxter found it
unnecessary, as does this Court, to address multiple grounds on which to dismiss the same claims. Therefore,
the Report-Recommendation actually recommends granting Defendants' summary judgment motion in full,
terminating the instant action in its entirety.
3 The information from these two sources was collated in a spreadsheet summarizing Plaintiff's grievance filings
and appeals, attached as Appendix A to Defendants' Memorandum of Law. See Dkt. No. 236-10 at 20-21.
4 Magistrate Judge Baxter's March 22, 2016, Report-Recommendation refers to this as the July 11, 2011 letter,
which was the date on which Plaintiff received an adverse decision to his SHG-26770-11 Grievance; however,
the actual letter from Karen Bellamy, Director of IGP, is dated July 20, 2011.
5 Plaintiff began serving more severe disciplinary sentences following disciplinary proceedings in July 2012,
but that, and subsequent disciplinary hearings occurred after Plaintiff filed his amended complaint, and are
not part of this action. See Dkt. No. 236-9 at 6-7.
6 The federal district courts in New York, applying Sandin, have consistently held that terms of special housing
or “keeplock” of approximately 30 days, and the related loss of privileges, do not implicate a liberty interest
protected by the due process clause, even in the absence of detailed factual development regarding the
conditions of confinement. See, e.g., Brown v. Secore, No. 9:08-CV-085, 2010 WL 980233, *5 (N.D.N.Y.
Mar. 15, 2010) (collecting cases).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Vega v. Lareau, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 2682307
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
N.D. New York.
Alex VEGA, Plaintiff,
v.
Mr. LAREAU, Corrections Sergeant; G.
Labonte, Corrections Officer; and Mr.
Garbera, Corrections Counselor, Defendants.
No. 9:04–CV–0750 (GTS/ATB).
|
March 16, 2010.
Attorneys and Law Firms
Alex Vega, pro se.
Charles J. Quakenbush, AAG, for Defendant.
REPORT–RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
*1 This matter was referred to Magistrate Judge Gustave J.
Di Bianco for Report and Recommendation by the Honorable
Glenn T. Suddaby, United States District Judge pursuant to
28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). Due
to Judge Di Bianco's retirement on January 4, 2010, the case
was reassigned to me. (Dkt. No. 70).
In his amended civil rights complaint, plaintiff alleges that
he was harassed and discriminated against by defendants
because of what defendants perceived to be plaintiff's sexual
orientation. (Amended Complaint (AC)) (Dkt. No. 30).
Plaintiff also alleges that, after he filed grievances regarding
the harassment and discrimination, defendants retaliated
against him by filing false misbehavior reports, not allowing
him to attend his assigned program, and threatening to transfer
plaintiff out of protective custody and into general population
at another correctional facility. (Id.) Plaintiff seeks substantial
monetary relief.
Presently before the court is a motion for summary
judgment pursuant to FED. R. CIV. P. 56 submitted by
defendants Lareau, LaBonte, and Garbera. 1 (Dkt. No.
66). Defendants assert that plaintiff cannot substantiate
his claims of retaliation or equal protection and, even if
he could substantiate his claims, that qualified immunity
precludes liability for damages. (Id.) Plaintiff has responded
in opposition to the motion. (Dkt. No. 68). Defendants have
filed a reply. (Dkt. No. 69). For the following reasons, this
Court will recommend that defendants' motion for summary
judgment be granted.
DISCUSSION
I. Facts
Plaintiff Alex Vega commenced this action under 42 U.S.C.
§ 1983, alleging deprivation of his civil rights. The facts and
procedural history of this case are set forth more fully in the
Decision and Order of United States District Judge Suddaby
filed on March 26, 2009, familiarity with which is assumed.
(See Dkt. No. 65). In that Decision and Order, all defendants
were dismissed except defendants Lareau, LaBonte, and
Garbera, and all claims were dismissed except those alleging
(1) retaliation by defendants LaBonte, Garbera, and Lareau
and (2) violation of plaintiff's right to equal protection by
defendant LaBonte. (Id. at 31–32). The facts pertinent to
defendants' present motion for summary judgment are related
herein in the light most favorable to plaintiff as the non-
moving party.
A. Uncontested Facts 2
During the times relevant to this action, plaintiff was housed
in the Assessment and Program Preparation Unit (“APPU”)
at Clinton Correctional Facility (“Clinton”). (See generally
AC; Defs.' Rule 7.1 Statement ¶ 2; Dkt. No. 66–4 (“Garbera
Declaration”) ¶ 10). The Clinton APPU is a transitional unit
at which inmates receive counseling and services in order
to prepare them for longer-term residence at other prison
facilities. 3 (Defs.' Rule 7.1 Statement ¶ 3; Gabrera Decl. ¶
10). While housed at Clinton APPU, plaintiff was assigned to
the church cleaning work detail which was usually supervised
by defendant LaBonte. (Defs.' Rule 7.1 Statement ¶¶ 4, 9; Dkt.
No. 66–6 (“LaBonte Decl.”) ¶¶ 4–6, 21; AC ¶¶ 3(f), 8–9).
*2 Inmate Brooks was also incarcerated at Clinton during
the time period relevant to plaintiff's claims. (Defs.' Rule 7.1
Statement ¶ 6; AC ¶¶ 8, 12, 21–22; LaBonte Decl. ¶¶ 9–11).
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As discussed below, defendant LaBonte and others suspected
that plaintiff and Brooks were homosexual partners, which
plaintiff disputes. Under Department of Correctional Services
(“DOCS”) Standards of Inmate Behavior, inmates are
forbidden to engage in, encourage, solicit or attempt to force
others to engage in sexual acts. (Defs.' Rule 7.1 Statement ¶
7; 7 N.Y.C.R.R. § 270.2 (Disciplinary Rule 101.10)).
In January 2004, plaintiff was a low-ranking inmate on the
Clinton church cleaning crew, in terms of seniority. (Defs.'
Rule 7 .1 Statement ¶ 10; LaBonte Decl. ¶¶ 6, 16). On January
28, 2004, plaintiff appeared before the APPU program
committee and was advised that he and inmate Brooks would
not be allowed to work together in a work assignment. (AC
¶¶ 14–25). On January 29, 2004, 4 plaintiff filed a grievance
describing a conversation that he had with defendant LaBonte
on or about January 15, 2004 and complaining of statements
made by members of the APPU committee members during
the January 28, 2004 meeting. (Defs.' Rule 7.1 Statement ¶
15; AC ¶¶ 20–23). The January 29, 2004 grievance did not
mention defendant Lareau. (Defs.' Rule 7.1 Statement ¶ 17;
Dkt. No. 66–9 (“Quakenbush Decl.”), Ex. A).
During the winter and spring of 2004, there were occasions
when plaintiff was not brought to his job with the Clinton
church cleaning crew. (Defs.' Rule 7.1 Statement ¶ 19; AC
¶ 85; LaBonte Decl. ¶¶ 14, 16–22). Even on the days when
he was not allowed to attend his church work program,
plaintiff received full pay for those days. (Defs.' Rule 7.1
Statement ¶ 22; LaBonte Decl. ¶ 23). On April 16, 2004,
defendant Lareau issued a misbehavior report, charging
plaintiff with giving items of personal property to inmate
Brooks without first obtaining the required authorization.
(Defs.' Rule 7.1 Statement ¶ 26; Dkt. No. 66–8 (“Lareau
Decl.”) ¶ 6; Quakenbush Decl., Ex. B).
On April 16, 2004, correctional officer Charland searched
plaintiff's cell and found a pair of scissors, which Charland
believed to be contraband, and therefore he issued plaintiff
a misbehavior report. (Defs.' Rule 7.1 Statement ¶ 27;
Quakenbush Decl., Ex. B). On April 22, 2004, at a Tier II
hearing conducted by Lt. Lacy, the charges against plaintiff
regarding the scissors were dismissed, and plaintiff entered a
plea of guilty to the unauthorized exchange of property charge
filed by defendant Lareau. (Defs.' Rule 7.1 Statement ¶ 28;
Quakenbush Decl., Ex. B). Plaintiff was sentenced to 15 days
keeplock and 15 days loss of privileges. (Id.)
In the spring of 2005, plaintiff was transferred from Clinton
to the Upstate Correctional Facility CADRE program. (Defs.'
Rule 7.1 Statement ¶ 23; Garbera Decl. ¶¶ 10–14). The
transfer came about via DOCS administrative processes over
which none of three remaining defendants had any control.
(Defs.' Rule 7.1 Statement ¶ 24; Garbera Decl. ¶¶ 13–16). At
Upstate, plaintiff was placed in a selective and advantageous
work program, for which plaintiff had to voluntarily sign
a participation agreement. (Defs.' Rule 7.1 Statement ¶ 25l
Garbera Decl. ¶¶ 14–15). 5
B. Plaintiff's Additional Facts 6
*3 On January 15, 2004, defendant LaBonte told inmate
Peter Grieco, plaintiff's co-worker, that (1) LaBonte believed
plaintiff was a homosexual because plaintiff associated
with inmate Mark Brooks, and (2) plaintiff and Brooks
would not be allowed to work in the same program at the
same time. (AC ¶ 8). After inmate Grieco told plaintiff
about Grieco's conversation with defendant LaBonte, plaintiff
confronted LaBonte about the conversation, whereupon
LaBonte repeated the statements to plaintiff, adding that “as
long as plaintiff is assigned at the Church, inmate Brooks
will ‘NEVER’ be assigned, for fear of ‘homosexual acts'
being committed between plaintiff and inmate Brooks.” (Id.
¶¶ 9–11). In response, plaintiff told LaBonte that he was not
homosexual; he had no record of homosexual acts in his file;
and was only friends with Brooks. (Id. ¶ 12).
When plaintiff appeared before the APPU program committee
on January 28, 2004, defendant Garbera told plaintiff that
they all knew about plaintiff and inmate Brooks “being
an[ ] item,” and that plaintiff could not change his work
program to be closer to Brooks. (AC ¶¶ 15, 16). Plaintiff
told the committee that inmate Brooks was on the waiting
list for the church and plaintiff was trying to leave his
church job. (Id. ¶ 18). Moreover, while plaintiff made it clear
to the committee members that he was not and never had
been a homosexual, defendants Facteau, Ward and Garbera
told plaintiff that he was “guilty by association of being a
homosexual, because plaintiff associates and is friends with a
‘known’ homosexual (inmate Brooks), so get use[d] to being
treated like a homosexual is treated in prison.” (Id. ¶¶ 21,
22). On January 29, 2004, plaintiff filed a grievance against
defendants LaBonte, Facteau, Ward, and Garbera concerning
LaBonte's statements of January 15, 2004 and the statements
and actions of Facteau, Ward, and Garbera on January 28,
2004. (Id. ¶ 23). Plaintiff alleges that after these incidents
and the filing of the January 29, 2004 grievance, he was
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subjected to several retaliatory acts, including the loss of his
work assignment and four false misbehavior reports, before
he was transferred to Upstate in March 2005.
On February 9, 2004, plaintiff wrote to Berg, Assistant
Superintendent of Clinton, complaining that plaintiff was not
being taken to his church job as a form of retaliation by
defendant LaBonte. (AC ¶ 36). On the morning of February
18, 2004, plaintiff was not taken to his job at the church
because he “was on call out, as an ‘ADD ON’ for the
A.P.P.U. Law Library.” (Id. ¶ 38). While at the library,
plaintiff and inmate Brooks submitted a request for Brooks
to assist plaintiff with his legal work. (Id. ¶ 38). While they
were still in the library, they were informed by law library
officer McLain that their request was denied pursuant to
instructions from defendant Garbera that plaintiff and Brooks
could not be on library call-out at the same time. (Id. ¶ 39).
After the conversation between McLain, plaintiff, and Brooks
was complete, Garbera stood at the law library window
taunting plaintiff and Brooks. (Id.) Later that morning, while
plaintiff was in line leaving the law library, defendant Garbera
approached him and said “GOT YA.” (Id. ¶ 42).
*4 On the afternoon of February 18, 2004, defendant
LaBonte did not take plaintiff to his assigned church job. (Id.
¶ 43). Plaintiff found out later that day that he had been placed
on keeplock as a result of his being “out of place” in the law
library. (Id. ¶¶ 44–45). Plaintiff claims that proper procedures
for placing him in keeplock were not followed. (Id. ¶ 45).
On February 18, 2004, plaintiff wrote a letter of complaint to
Artus, the Superintendent of Clinton, and Berg outlining “the
facts of incidents that occurred earlier in the day,” claiming
that the actions taken were harassment and retaliation for his
January 29, 2004 grievance. (Id. ¶ 46). In response to that
letter, Berg told plaintiff, among other things, that Berg could
not control defendant Garbera's actions, and that law library
officer McLain had given plaintiff false information about
what Garbera had said about plaintiff and inmate Brooks. (Id.
¶ 49).
On February 19, 2004, plaintiff was served with a
misbehavior report written by correctional officer Mayo
charging plaintiff with, among other things, being out of place
and violating rules related to inmate movement. (AC ¶ 47).
At the subsequent Tier II hearing, defendant LaBonte testified
that he did not take plaintiff to his assigned program that
day because plaintiff was listed as an “ADD ON” for the
law library for the day in question and was called out of
the law library for a meeting with his counselor. (Id. ¶ 51).
As a result of LaBonte's testimony, plaintiff was found not
guilty of the charges contained in the misbehavior report. (Id.)
Plaintiff wrote to Berg on March 1, 2004 requesting the status
of his January 29, 2004 unlawful discrimination grievance
against LaBonte, Facteau, Ward, and Garbera which had been
pending for 31 days. (Id. ¶ 53).
On March 27, 2004, plaintiff was not taken to his church job,
although three other members of the church crew were. (AC
¶ 63). On March 29, 2007, when plaintiff asked defendant
LaBonte why plaintiff was sometimes not taken to his church
job, LaBonte said “because you are not allowed to work
inside the Church and will only be used for outdoor work.
Faggots, Queers, Homosexuals and Transsexuals are not
allowed inside a house of God, and you surly [sic ] are one of
those, since you are a friend with inmate Brooks.” (Id. ¶ 64).
On April 7, 2004, while plaintiff was working at the church,
defendant LaBonte told plaintiff that he didn't want plaintiff
working at the church and stated “ ‘I won't fire you, I won't
refer you to the program Committee. You will resign before
I do any of that.’ “ (Id. ¶ 68).
On April 16, 2004, plaintiff was placed on keeplock status
for two misbehavior reports. (AC ¶ 71). Plaintiff was then
called to defendant Lareau's office, and accused of purchasing
items for inmate Brooks. (Id. ¶¶ 72, 73). Plaintiff claims
that defendant Lareau intimidated plaintiff into admitting that
he made purchases for inmate Brooks. (Id. ¶ 74). When
plaintiff returned to his cell, it was being searched. (Id. ¶ 75).
Defendant Lareau informed plaintiff that inmate Brooks was
told that plaintiff “snitched” on him, and Lareau threatened
plaintiff with a transfer to Southport Correctional Facility
Special Housing Unit. (Id. ¶ 76). Both plaintiff and inmate
Brooks were keeplocked pending an investigation of the
matter. (Id. ¶ 77). On April 17, 2004, plaintiff received two
misbehavior reports. (Id. ¶ 78). On April 22, 2004, plaintiff
was found guilty of purchasing items for inmate Brooks. (Id.
¶ 79). The hearing officer told plaintiff that he would not lose
his church job as a result of the disciplinary hearing. (Id.)
*5 On April 23, 2004, defendant LaBonte came to plaintiff's
cell to retrieve the inclement weather clothing that plaintiff
was issued for his church job; LaBonte demanded that
plaintiff give him the winter gloves; plaintiff told defendant
LaBonte that the gloves were at the church. (AC ¶ 81).
LaBonte told plaintiff that he would have to pay for the
gloves. (Id. ¶ 82). When plaintiff asked LaBonte if he was
fired from his church job, LaBonte said “yes.” (Id. ¶ 83).
Plaintiff asked LaBonte if he was being terminated from his
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job because of his recent disciplinary proceeding or because
LaBonte didn't want him working there. (Id.) LaBonte replied
“I don't want you there, no faggots, queers or transsexuals
work at [his] church area or in a house of God, and the ticket
just gives me a reason to get rid of you.” (Id.) LaBonte also
threatened that he could have plaintiff transferred at any time.
(Id. ¶ 84).
Beginning on January 29, 2004, defendant LaBonte did not
allow plaintiff to attend his church job for 23 out of 36
working days. (AC ¶ 85). On May 4, 2004, plaintiff appeared
before the APPU program committee and was told that he
would not be assigned to any program except tailor shop, and
therefore he should not ask to be re-assigned to the church.
(Id. ¶ 89). Plaintiff claims that the church was understaffed,
but there was a waiting list of six months to a year for the
tailor shop. (Id. ¶¶ 90–91).
On October 28, 2004, plaintiff again appeared before the
APPU program committee and was told that he would begin
a new work program in the tailor shop on November 1, 2004.
(AC ¶ 125). Plaintiff was warned that they would not tolerate
any trouble from him at the tailor shop “like Plaintiff caused
trouble at the Church Job,” and plaintiff would be removed
from the tailor shop if he caused trouble “and [would be]
sent to SHU/Box for longer than he thought possible.” (Id.)
Prior to being assigned to work in the tailor shop, plaintiff
was without programming for eight months. (Id. ¶ 126). On
January 5, 2005, plaintiff appeared before the Clinton APPU
Assessment Committee and was asked if he wished to be
transferred out of Clinton APPU. (Id. ¶ 128). Because he had
a list of more than twenty enemies, plaintiff stated that he did
not want to be transferred out of APPU. (Id.) On January 5,
2005, defendant Garbera told plaintiff “ ‘You don't file law
suits in my jail and expect not to have your ass thrown out of
here by us Counselors.’ “ (Id. ¶ 133). On January 12, 2005, 7
Garbera told plaintiff “ ‘[y]ou can't stop my method of getting
you out of here, I Win.’ “ (Id. ¶ 135). Plaintiff was transferred
to Upstate on March 16, 2005. (See Dkt. No. 37).
II. Summary Judgment
Summary judgment may be granted when the moving party
carries its burden of showing the absence of a genuine issue
of material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896
F.2d 716, 720 (2d Cir.1990) (citations omitted). “Ambiguities
or inferences to be drawn from the facts must be viewed in
the light most favorable to the party opposing the summary
judgment motion.” Id. However, when the moving party has
met its burden, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585–86 (1986); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
*6 In meeting its burden, the party moving for summary
judgment bears the initial responsibility of informing the
court of the basis for the motion and identifying the portions
of “ ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Where the non-movant bears the burden of proof
at trial, the moving party may show that he is entitled to
summary judgment by either (1) pointing to evidence that
negates the non-movant's claims or (2) identifying those
portions of the non-movant's evidence that demonstrate
the absence of a genuine issue of material fact.Salahuddin
v. Goord, 467 F.3d 263, 272–73 (2d Cir.2006) (citing
Celotex Corp., 477 U.S. at 23). The second method requires
identifying evidentiary insufficiency, not merely denying the
opponent's pleadings. Id.
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing that there is a
genuine issue for trial. Id. A dispute about a genuine issue of
material fact exists if the evidence is such that “a reasonable
[factfinder] could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. In determining whether there
is a genuine issue of material fact, a court must resolve all
ambiguities, and draw all inferences, against the movant. See
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Additionally, while a court “ ‘is not required to consider what
the parties fail to point out,’ “ the court may in its discretion
opt to conduct “an assiduous review of the record” even where
a party fails to respond to the moving party's statement of
material facts. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir.2001) (citations omitted).
III. Retaliation
Any action taken by a defendant in retaliation for the exercise
of a constitutional right, even if not unconstitutional in and of
itself, states a viable constitutional claim. Franco v. Kelly, 854
F.2d 584, 590 (2d Cir.1988). In order for plaintiff's retaliation
claim to survive summary judgment, plaintiff must establish
that
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(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 [or conduct] and the
adverse action.
Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled
on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506
(2002).
The Second Circuit has defined “adverse action” in the prison
context, as “retaliatory conduct ‘that would deter a similarly
situated individual of ordinary firmness from exercising ...
constitutional rights.’ “ Gill v. Pidlypchak, 389 F.3d 379, 381
(2d Cir.2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d
Cir.2003), superseded by2003 U.S.App. LEXIS 13030, 2003
WL 360053 (2d Cir. Feb. 10, 2003)) (omission in original).
This objective test applies even if the plaintiff was not himself
subjectively deterred from exercising his rights. Id.
*7 The court must keep in mind, however, that claims of
retaliation are “ ‘easily fabricated’ “ and “ ‘pose a substantial
risk of unwarranted judicial intrusion into matters of general
prison administration’ “ and thus, plaintiff must set forth
non-conclusory allegations. Bennett v. Goord, 343 F.3d 133,
137 (2d Cir.2003) (quoting Dawes, 239 F.3d at 491). Finally,
even if plaintiff makes the appropriate showing, defendants
may avoid liability if they demonstrate that they would have
taken the adverse action even in the absence of the protected
conduct. Bennett, 343 F.3d at 137.
A. Defendants Lareau and Garbera
In his opposition to Defendants' motion for summary
judgment, plaintiff states that he is withdrawing all claims
against Lareau and Garbera. (Dkt. No. 68 ¶ 2). Therefore,
with respect to all of the claims against Garbera and Lareau,
defendants' motion for summary judgment should be granted.
See e.g. Rosen v. City of New York, No. 07 Civ. 6018, 2009 WL
3489986, at *2 (S.D.N.Y. Oct. 28, 2009) (granting summary
judgment with respect to claims withdrawn by plaintiff).
B. Defendant LaBonte
Plaintiff states that he filed a grievance on January 29,
2004 against defendant LaBonte complaining of comments
made by defendant LaBonte on January 15, 2004 regarding
plaintiff's sexual orientation, comments which plaintiff
believed to be discriminatory. (AC ¶¶ 8–12, 22; see also
Dkt. No. 66–10 at 12–14) (“January 29, 2004 grievance”)). 8
Defendants have submitted a copy of the January 29, 2004
grievance. (Dkt. No. 66–10 at 12–14). Plaintiff captioned the
grievance “UNLAWFUL DISCRIMINATION GRIEVANCE
AGAINST: SGT. FACTO, COUNSELOR GARBERRA & MR.
WARD.” (Id. at 12). At first glance, the grievance does
not appear to be filed against defendant LaBonte. (Id.)
However, the body of the grievance does recount statements
by defendant LaBonte as well as a conversation that plaintiff
had with defendant LaBonte, clearly suggesting that plaintiff
believed that defendant LaBonte was discriminating against
plaintiff on the basis of what LaBonte perceived to be
plaintiff's sexual orientation. (Id.) Moreover, Defendants'
Rule 7.1 Statement concedes that plaintiff filed the January
29, 2004 grievance against LaBonte. (See Defs .' Rule 7.1
Statement ¶ 15). Therefore, despite its caption, the Court
will consider the January 29, 2004 grievance to have been
filed against defendant LaBonte. On February 9, 2004,
plaintiff also submitted a letter to Berg complaining that
defendant LaBonte was not taking plaintiff to his church job
in “retaliation.” (AC ¶ 36).
There is no dispute that plaintiff's complaint and grievance
constitute protected activity. See Davis, 320 F.3d at 352–
53 (filing a prison grievance is a constitutionally protected
activity). See also Chavis v. Struebel, 317 F.Supp.2d 232,
237–38 (N.D.N.Y.2004) (finding that letter of complaint
could be basis for retaliatory conduct). Therefore, plaintiff
meets the first prong of the test for retaliation. Plaintiff must
further show that he suffered adverse action, and that there
was a causal connection between that adverse action and the
protected activity. If plaintiff can make these two showings,
the court must determine whether defendants have established
that they would have taken the same action even in the
absence of the protected conduct.
*8 Plaintiff claims that, in retaliation for plaintiff's grievance
and complaint against defendant LaBonte, LaBonte reduced
the number of hours plaintiff was allowed to work at his
church job. 9 (AC ¶ 85). Construing plaintiff's amended
complaint with great liberality, plaintiff may also allege
that defendant LaBonte had plaintiff terminated from his
church job in retaliation for plaintiff's grievance against
LaBonte. (AC ¶ 83). Neither party has addressed this claim
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in their papers in support of or in opposition to the present
motion. Plaintiff has, however, provided the Court with a
copy of DOCS Directive # 4803, Inmate Program Placement.
(Dkt. No. 68 at 11–13). That directive provides that the
Program Chairperson of the Inmate Program Assignment
Committee “shall be responsible for all program assignments
and removals.” (Id. at 12). Since defendant LaBonte is
not alleged to be the Program Chairperson of the Inmate
Program Assignment Committee, no reasonable factfinder
could conclude that defendant LaBonte had the authority to
remove plaintiff from his church job.
Plaintiff alleges that, beginning on January 29, 2004,
defendant LaBonte refused to let plaintiff attend his church
job for a total of 23 out of 36 working days. (AC ¶ 85). As
discussed below, on some of those occasions, plaintiff did not
attend due to reasons beyond defendant LaBonte's control.
Further, defendant LaBonte points out that plaintiff received
full pay even on the days that he was held back from his job.
(LaBonte Decl. ¶ 22).
A job reassignment or termination can under certain
circumstances constitute adverse action necessary to support
a claim of retaliation. Gill v. Mooney, 824 F.2d 192, 194
(2d Cir.1987) (“[A] claim for relief may be stated under
section 1983 if otherwise routine administrative decisions
are made in retaliation for the exercise of constitutionally
protected rights.”); Baker v.. Zlochowon, 741 F.Supp. 436,
439 (S.D.N.Y.1990) (“a claim for relief can be stated under
section 1983 for job for reassignments or terminations which
were in retaliation for an inmate's efforts to seek vindication
of his [or her] legal rights ...”); Gill v. Calescibetta, No.
9:00–CV–1553, Report and Recommendation, 2009 WL
890661, at *11–12 (N.D.N.Y. Mar. 11, 2009) (Peebles, M.J.),
adopted 2009 WL 890661, at *1–4 (N.D.N.Y. Mar. 31,
2009) (Suddaby, J.) (the termination of a job assignment
can constitute adverse action for purposes of a retaliation
analysis). As noted, defendant LaBonte was not in a position
to terminate or change plaintiff's job assignment. This court
doubts that plaintiff could establish that periodically keeping
him from attending a job, with no monetary or other apparent
penalty, constitutes the type of “adverse action” that would
deter a similarly situated individual of ordinary firmness from
exercising constitutional rights. We need not resolve whether
plaintiff has demonstrated the existence of a genuine issue of
material fact as to whether defendant LaBonte took adverse
action against plaintiff because, as discussed below, summary
judgment can be predicated more securely on other grounds.
*9 To show retaliation in violation of the First Amendment,
a plaintiff must demonstrate that constitutionally protected
conduct was a substantial or motivating factor for a prison
official's adverse action. Bennett, 343 F.3d at 137. Plaintiff
claims that because LaBonte's adverse actions began after
plaintiff filed a grievance against him, the actions were in
retaliation for the grievance.
However, more than conclusory
allegations [of a causal connection]
are required to survive a summary
judgment motion. Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir.1995);
Bartley v.. Collins, No. 95 Civ. 10161,
2006 WL 1289256 (S.D.N.Y. May
10, 2006). Types of circumstantial
evidence that can show a causal
connection between the protected
conduct and the alleged retaliation
include temporal proximity, prior good
discipline, finding of not guilty at the
disciplinary hearing, and statements by
defendants as to their motives. Colon,
58 F.3d at 872–73;Bartley, 2006 WL
1289256, at *8.
Barclay v. New York, 477 F.Supp.2d 546, 558 (N.D.N.Y.2007)
(Hurd, J.). Plaintiff asserts that because defendant LaBonte
began excluding him from his assigned church job
immediately after plaintiff filed a grievance against him, “it is
clear that the only reason why plaintiff was excluded from the
work crew was because of the grievance that he filed against
Officer LaBonte.” (Dkt. No. 68 at 7).
In this case, plaintiff filed a grievance against defendant
LaBonte on January 29, 2004. (AC ¶ 23). Beginning on that
date, plaintiff claims that defendant LaBonte did not take
plaintiff to his church job for 23 out of the next 36 working
days. (Id. ¶ 85). The close proximity in time between the filing
of grievance and LaBonte's action in not taking plaintiff to
his assigned job is evidence which could lead a reasonable
factfinder to conclude that LaBonte's actions were causally
related to plaintiff's grievance against him. See Espinal v.
Goord, 558 F.3d 119, 129 (2d Cir.2009) (“A plaintiff can
establish a causal connection that suggests retaliation by
showing that protected activity was close in time to the
adverse action.”). See also Colon v. Coughlin, 58 F.3d 865,
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872 (2d Cir.1995) (temporal proximity between an inmate's
lawsuit and disciplinary action may serve as circumstantial
evidence of retaliation).
Plaintiff argues further that defendant LaBonte's conduct
was retaliatory because “just prior to the grievance being
filed” plaintiff had received “positive evaluations” from
defendant LaBonte with respect to plaintiff's work at the
church. (Dkt. No. 68 at 7). While evidence of plaintiff's
“prior good discipline” might suggest that LaBonte's actions
subsequent to the grievance were be retaliatory, in this
case, one of the evaluations submitted by plaintiff was
actually dated February 12, 2004—after plaintiff filed a
grievance against LaBonte. (Id. at 9). Defendant LaBonte's
February 12, 2004 evaluation actually praises plaintiff's
work performance and in fact recommends that plaintiff
receive a pay increase. (Id.) This evidence suggests that
defendant LaBonte was not taking retaliatory action against
plaintiff. If defendant LaBonte was truly intent on retaliating
against plaintiff and keeping him from his church job for
improper motives, LaBonte could have issued plaintiff an
unsatisfactory evaluation and would not have recommended
a pay increase.
*10 Plaintiff's own statements provide further evidence to
undercut his argument that LaBonte was retaliating against
plaintiff on account of his January 29, 2004 grievance.
When appealing another grievance, plaintiff stated that his
misbehavior report for being “out of place” in the law library
“was dismissed ONLY after Corrections Officer G. LaBonte,
appeared at [plaintiff's] hearing and stated that [plaintiff]
DID IN FACT” have library call out on the day in question.
(Dkt. No. 66–10 at 10). LaBonte's conduct in this instance-in
February 2004–is totally opposite to an act of retaliation.
This court doubts that, despite the evidence of temporal
proximity, plaintiff could persuade a reasonable factfinder
that his grievance against LaBonte was a substantial or
motivating factor in LaBonte's decision to exclude plaintiff
from the church work program. Again, however, we need not
resolve this issue and will recommend summary judgment on
other grounds.
Even though plaintiff has arguably presented some evidence
to establish a link between the protected activity and the
alleged retaliation,
[a] defendant is entitled to summary judgment on a
retaliation claim “if the undisputed facts demonstrate that
the challenged action clearly would have been taken on
a valid basis alone.” Davidson v. Chestnut, 193 F.3d 144,
149 (2d Cir.1999). “A finding of sufficient permissible
reasons to justify state action is readily drawn in the
context of prison administration,” for two reasons. Graham
[v. Henderson], 89 F.3d [75,] 79 [2d Cir.1996]. First,
“[r]etalitation claims by prisoners are prone to abuse since
prisoners can claim retaliation for every decision they
dislike.” Id. Second, “we have been cautioned to recognize
that prison officials have broad administrative authority.”
Id.
Miller v. Loughren, 258 F.Supp.2d 61, 62 (N.D.N.Y.2003)
(Munson, S.J.). See also Bennett, 343 F.3d at 139 (Once
plaintiff produces evidence sufficient to raise a material
question of fact as to retaliation, the burden shifts to the
defendant to demonstrate through admissible evidence that
the challenged actions would have occurred in any event.).
The record contains the affidavit of defendant LaBonte
wherein he asserts that plaintiff was not taken to his assigned
job on numerous occasions for legitimate administrative
reasons. See generally LaBonte Decl. Defendant LaBonte
was the officer primarily charged with supervising the church
work crew. (LaBonte Decl. ¶ 4; Defs.' Rule 7.1 Statement
¶ 4). Defendant LaBonte states, and plaintiff concedes, that
plaintiff was a low-ranking inmate on the church cleaning
crew. (Defs.' Rule 7.1 Statement ¶ 10; Pl.'s Response to
Defs.' Rule 7.1 Statement ¶ 3). In fact, LaBonte states that
plaintiff was “one of the least senior members of the church
crew, if not the lowest ranking.” (LaBonte Decl. ¶ 6). As
the supervising officer for the church work crew, it was
LaBonte's responsibility to determine on a day to day basis
how many inmates were needed to complete jobs at the church
on any given day. (LaBonte Decl. ¶ 17). This determination
was made based upon the amount of work to be done on
a particular day. (Id.) If there were insufficient jobs to be
completed on any given day, plaintiff, “[a]s the junior member
of the church detail ... would be the first to be cut.” (Id.)
*11 Defendant LaBonte further states that during the period
in question, plaintiff did not attend his work program at
the church for various reasons beyond LaBonte's control.
(LaBonte Decl. ¶¶ 21–22). For example, plaintiff missed
some days because he had signed up to attend library call out.
(Id. ¶ 21). In February 2004, plaintiff was keeplocked as a
result of a disciplinary report issued by correctional officer
Mayo. (Id.) On April 2, 2004, plaintiff had a medical call out;
on April 8–9, 2004, the church crew did not work because
the church was used for religious observances; and on April
16, 2004 plaintiff was keeplocked. (Id.) On other days, when
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defendant LaBonte was not scheduled to work, LaBonte's
relief officer decided whether or not plaintiff attended his
church job. (Id. ¶ 22). Defendant LaBonte points out that
plaintiff received full pay for the days he was not included in
the church work crew. (Id. ¶ 23).
LaBonte further states that “[t]ensions had developed
between [plaintiff] and other church crew inmates because of
the situation with inmate Brooks.” (LaBonte Decl. ¶ 18; see
also Dkt. No. 68 at 9 (Inmate Progress Report dated February
12, 2004 wherein LaBonte noted that “Inmate Vega has had
minor disagreements with coworkers, but has been able to
work through them.”)). LaBonte states that members of the
church crew reside in the same cell block, and other members
of the crew were aware of Brooks' attempt to join the crew,
and “resented that an inmate ‘couple’ might become part of
their work crew.” (LaBonte Decl. ¶ 12). Because plaintiff was
attempting to get his friend Brooks assigned to the church
crew, LaBonte believed that the other members of the church
work crew felt that plaintiff “was pushing to get a benefit
which other prisoners knew better than to seek.” (Id. ¶ 13).
Tensions among inmates present security concerns because
they can give “rise to an increased potential for violence
during work at the church” and present “a danger to inmates
as well as to the single security officer attending the work
detail.” (Id. ¶ 18). Because of this tension, LaBonte states that
“if the church job could be done with one less inmate [he]
would choose to leave [plaintiff] behind.” (Id.)
LaBonte states that, based upon his observations of the
behavior of plaintiff and Brooks, as well as upon reports from
security staff and other inmates, he believed that plaintiff and
Brooks might be involved in a homosexual relationship. 10
(LaBonte Decl. ¶ 7). The existence of such a relationship is
not relevant; rather, LaBonte's and Garbera's statements are
evidence of LaBonte's state of mind or perception. The fact
that LaBonte perceived that such a relationship may have
existed between plaintiff and Brooks demonstrates only the
reasonableness of LaBonte's actions and his concern that the
security of the facility could be implicated by such a perceived
relationship. 11
*12 Defendant LaBonte has thus provided permissible
reasons for keeping plaintiff from his job assignment-
namely staffing and security concerns. 12 See, e.g., Hudson
v. McMillan, 503 U.S. 1, 6 (1992) (noting that “[p]rison
administrators ... should be accorded wide-ranging deference
in the adoption and execution of policies and practices that
in their judgment are needed to preserve internal order and
discipline and to maintain institutional security .” (internal
quotation marks and citation omitted). Plaintiff has not
submitted sufficient evidence to raise a question of fact as
to the reasonableness of defendant LaBonte's actions, but
relies only upon his own conclusory statement that “[b]ecause
of the positive Work Performance Evaluations that plaintiff
received during his period assigned to the Cleaning Crew,
there is no other plausible excuse for LaBonte to hold back”
plaintiff from the church cleaning crew except in retaliation
for plaintiff's grievance against LaBonte. (Dkt. No. 68 at
5). Plaintiff's statement that there is no “other plausible
excuse” for defendant LaBonte's actions is contradicted by
the actual facts in this case, and plaintiff's retaliation claim
fails because LaBonte has produced sufficient evidence that
he would have taken the same action for valid reasons.
See Graham v. Henderson, 89 F.3d 75, 81 (2d Cir.1996)
(finding that even assuming that a retaliatory motive existed,
defendant would still be entitled to summary judgment
because there are “proper, non-retaliatory reasons” for the
actions taken). See also Lowrance v. Achtyl, 20 F.3d 529,
535 (2d Cir.1994) (A finding of sufficient permissible reasons
to justify state action is “readily drawn in the context of
prison administration where we have been cautioned to
recognize that prison officials have broad administrative and
discretionary authority.”) (quotation marks omitted).
Accordingly, I find that no reasonable factfinder could
conclude in plaintiff's favor with respect to the retaliation
claim against defendant LaBonte. Thus, plaintiff's claim that
defendant LaBonte retaliated against plaintiff for filing a
grievance or complaint should be dismissed.
IV. Equal Protection
Plaintiff claims that defendant LaBonte denied him equal
protection by not allowing plaintiff to attend his prison job
because the defendant LaBonte believed plaintiff to be a
homosexual.
The Equal Protection Clause requires that the government
treat all similarly situated people alike. City of Cleburne, Tex.
v. Cleburne Living Ctr. 473 U.S. 432, 439 (1985). Specifically,
the Equal Protection Clause “bars the government from
selective adverse treatment of individuals compared with
other similarly situated individuals if ‘such selective
treatment was based on impermissible considerations such
as race, religion, intent to inhibit or punish the exercise
of constitutional rights, or malicious or bad faith intent
to injure a person.’ “ Bizzarro v. Miranda, 394 F.3d 82,
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86 (2d Cir.2005) (emphasis in original) (quoting LeClair v.
Saunders, 627 F.2d 606, 609–10 (2d Cir.1980)).
*13 “Sexual orientation has been held to be a basis for an
equal protection claim under Section 1983.” Emblen v. Port
Authority of New York/New Jersey, No. 00 Civ. 8877, 2002
WL 498634, at *7 (S .D.N.Y. Mar. 29, 2002) (citing Quinn
v. Nassau County Police Dep't, 53 F.Supp.2d 347, 356–57
(E.D.N.Y.1999) (noting that the Supreme Court has found
that government discrimination against homosexuals, in and
of itself, violates the Equal Protection Clause) (citing Romer
v. Evans, 517 U.S. 620 (1996)). See also Holmes v. Artuz,
95 CIV. 2309, 1995 WL 634995, at *1 (S.D.N.Y. Oct. 27,
1995) (removal from a prison job because of declared sexual
orientation may state a claim under Section 1983) (citing
Kelley v.. Vaughn, 760 F.Supp. 161, 163 (W.D.Mo.1991)
(denying motion to dismiss on ground that inmate who
claims his bakery prison job was terminated solely because of
sexual orientation may have a valid equal protection claim));
Howard v. Cherish, 575 F.Supp. 34, 36 (S.D.N.Y.1983)
(recognizing in dicta that complaint might state claim under
§ 1983 if it alleged that individual was discriminated against
solely because of sexual orientation).
Defendant LaBonte correctly contends that plaintiff has no
right to his prison job. See Gill v. Mooney, 824 F.2d at 194.
However, that is not the question presented on this equal
protection claim. Instead, the question is whether plaintiff
was protected from discrimination based upon his perceived
sexual orientation. In this respect, District Judge Suddaby
has already concluded that plaintiff stated an equal protection
claim sufficient to survive a motion to dismiss or for judgment
on the pleadings. 13 (Dkt. No. 65 at 24–25). See also Bussey
v. Phillips, 419 F.Supp.2d 569, 588 (S.D.N.Y.2006) (“A
‘[p]laintiff has no right to any particular prison job, but
prison officials cannot discriminate against him on the basis
of [an impermissible consideration] in work assignments.’
”) 14 (quoting LaBounty v. Adler, No. 89 Civ. 4242, 1999
WL 961776, at *2 (S.D.N.Y. Oct. 21, 1999) (other citation
omitted).
Plaintiff has alleged that defendant LaBonte did not allow
plaintiff to attend his church job on multiple occasions, even
though other inmates were taken to their church job on those
days, because LaBonte perceived plaintiff to be homosexual.
(AC ¶¶ 36, 52, 53, 63, 64, 83, 85). The fact that plaintiff
asserts that he is not homosexual is irrelevant to his equal
protection claim. See Emblem, 2002 WL 498634 at *7 (when
plaintiff alleges denial of equal protection on the basis of
homosexuality, the fact that plaintiff is not a homosexual is
“irrelevant”).
In Romer v. Evans, the Supreme Court, without specifically
examining whether homosexuals are a suspect class, used
the rational basis test to invalidate an amendment to the
Colorado constitution prohibiting all governmental action
designed to protect homosexuals from discrimination. Romer,
517 U.S. at 631–35.See also Anderson v. Branen, 799 F.Supp.
1490, 1492 (S.D.N.Y.1992) (“An equal protection analysis of
discriminatory acts against homosexuals must be conducted
pursuant to a rational basis test.”). Thus, in order to establish
an equal protection violation, plaintiff must show that “the
disparity in treatment cannot survive the appropriate level
of scrutiny which, in the prison setting, means that he
must demonstrate that his treatment was not reasonably
related to [any] legitimate penological interests.” Phillips v.
Girdich, 408 F.3d 124, 129 (2d Cir.2005) (citation and internal
quotations omitted)
*14 As stated above, defendant LaBonte has set forth
numerous legitimate penological reasons supporting his
decision to exclude plaintiff from the church work crew on
multiple occasions, the most important being the need to
maintain prison security and order. See Hudson, 503 U.S. at
6 (noting that “[p]rison administrators ... should be accorded
wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain
institutional security.” (internal quotation marks and citation
omitted)).
[M]aintaining institutional security and preserving internal
order and discipline are essential goals that may require
limitation or retraction of the retained constitutional
rights of ... convicted prisoners .... ‘[C]entral to all
other corrections goals is the institutional consideration
of internal security within the corrections facilities
themselves.’
...
Prison officials must be free to take appropriate action to
ensure the safety of inmates and corrections personnel ....
Accordingly, we have held that even when an institutional
restriction infringes a specific constitutional guarantee ...
the practice must be evaluated in the light of the
central objective of prison administration, safeguarding
institutional security.
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Bell v. Wolfish, 441 U.S. 520, 546–47 (1979) (internal
citations and footnote omitted). See also Griffin v. Donelli,
No. 05–CV–1072, Report–Recommendation and Order, 2010
WL 681394, at *11 (N.D.N.Y. November 24, 2009) (Homer,
M.J.), adopted on de novo review, 2010 WL 681394, at *
1 (N.D.N.Y. Feb. 24, 2010) (McAvoy, S.J.) (finding that
“[o]rder [and] security ... are valid and substantial penological
interests that staff in a prison environment are entitled to, and
are in fact required to act upon.”).
Based upon his observations of interactions between plaintiff
and inmate Brooks as well as reports from security staff
and other inmates, defendant LaBonte was concerned that
conflicts might arise between plaintiff and other members
of the church crew. (LaBonte Decl. ¶ 12–13). Defendant
LaBonte's concerns were validated by LaBonte's receipt
of a letter from inmate Brooks indicating that a member
of the church work crew (not plaintiff) had made sexual
advances to Brooks which were refused. (Id. Ex. A). A
reasonable factfinder could conclude that this letter, coupled
with LaBonte's suspicion that plaintiff and inmate Brooks
might be involved in a relationship, provided a reasonable
basis for LaBonte to believe that plaintiff's presence in the
church work crew could present safety concerns.
Apart from defendant LaBonte's reasons for excluding
plaintiff from his assigned job, plaintiff's own statements
are fatal to his claim that defendant LaBonte discriminated
against him on the basis of plaintiff's perceived sexual
preference. In his January 29, 2004 grievance, plaintiff stated
that “I was soon to learn that it WAS NOT Officer LaBonte
who was DISCRIMINATING against me and Inmate Brooks,
but a Superior Officer, who gives the orders. (Dkt. No. 66–10
at 13) (emphasis in original).
*15 Based upon the evidence, a reasonable factfinder could
conclude that defendant LaBonte's concern for institutional
safety, his attempt to maintain staffing on the church work
crew at reasonable levels, and his policy of cutting the hours
of more junior members of the work crew first, all suffice to
satisfy the rational basis test and constitute legitimate reasons
to exclude plaintiff from the church work crew on various
days. Moreover, no reasonable factfinder could conclude
that defendant LaBonte had the authority to remove plaintiff
from his church job. Accordingly, I find that no reasonable
factfinder could conclude in plaintiff's favor with respect to
the equal protection claim against LaBonte. Thus, plaintiff's
claim that defendant LaBonte violated plaintiff's right to equal
protection should be dismissed.
V. Qualified Immunity
In the alternative, defendants argue that they are entitled to
qualified immunity with respect to plaintiff's claims that he
was retaliated against for engaging in a protected activity in
violation of the First Amendment and denied equal protection
in violation of the Fourteenth Amendment. In determining
whether qualified immunity applies, the court may first
consider whether “the facts alleged show the [defendant's]
conduct violated a constitutional right.” Saucier v. Katz, 533
U.S. 194, 201(2001), modified by Pearson v. Callahan, –––
U.S. ––––, 129 S.Ct. 808, 811 (2009) (holding that, “while
the sequence set forth [in Saucier ] is often appropriate, it
should no longer be regarded as mandatory in all cases”).
The Court may also examine “whether the right was clearly
established ... in light of the specific context of the case,
not as a broad general proposition.” Saucier, 533 U.S. at
201. However, “[i]f no constitutional right would have been
violated were the allegations established, there is no necessity
for further inquiries concerning qualified immunity.” Saucier,
533 U.S. at 201. Since the Court has concluded in this case
that no First or Fourteenth Amendment violations occurred,
the Court need not address qualified immunity.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the motion for summary judgment
filed on behalf of defendants Lareau, LaBonte, and Garbera
(Dkt. No. 66) be GRANTED and the amended complaint
be DISMISSED WITH PREJUDICE AS TO ALL
REMAINING DEFENDANTS AND CLAIMS.
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 DAYS WILL
PRECLUDE APPELLATE REVIEW.Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72.
All Citations
Not Reported in F.Supp.2d, 2010 WL 2682307
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Footnotes
1 The defendants' names are spelled as set forth in defendants' Declarations. (See Dkt. Nos. 66–4, 66–6, and
66–8). The Clerk of the Court has corrected the docket report accordingly. As discussed below, plaintiff has
withdrawn his claims against defendants Garbera and Lareau.
2 These facts were set forth in defendants' Statement of Material Facts provided in accordance with Local Rule
7.1(a)(3) of the Northern District of New York. The facts set forth as uncontested were included in defendants'
Rule 7.1 Statement, supported by record citations, and admitted by plaintiff in his response to defendants'
Rule 7.1 Statement. (See Dkt. No. 66–3 (“Defendants' Rule 7.1 Statement”); Dkt. No. 68 at 1–2 (“Plaintiff's
Response to Defendants' Rule 7.1 Statement”)).
3 APPU is also “a unit for those inmates who are considered ‘victim prone’ for various reasons.” Lewis v. Brooks,
9:00–CV–1433, 2005 WL 928617, at *3 (N.D.N.Y. Mar. 10, 2005).
4 While it appears that the grievance dated January 29, 2004 was not actually “filed” until February 2, 2004, in
keeping with plaintiff's allegations as set forth in his amended complaint, the Court will refer to this grievance
as the January 29, 2004 grievance. (See, e.g., AC ¶¶ 23, 53).
5 In addition to the facts outlined herein, Defs.' Rule 7.1 Statement includes the following recitation: “There is no
competent, relevant, admissible evidence in the record that C.O. LaBonte, Counselor Garbera, or Lt. Lareau
were motivated by a grievance to inflict any adverse retaliatory action against the plaintiff.” Rule 7.1 Statement
¶ 18. While plaintiff admits the information set forth, (see Dkt. No. 68, ¶ 3), the Court will not consider this
statement to be an uncontested fact, especially since retaliation is at the center of plaintiff's claims.
6 This version does not include the uncontested facts set forth above.
7 While plaintiff's amended complaint states that Garbera's statement was made on January 12, 2004, given
the sequence of events set forth in plaintiff's amended complaint, it appears that this statement was made
on January 12, 2005.
8 The grievance is actually dated January 28, 2004, however, for sake of consistency the Court will still refer
to it as the January 29, 2004 grievance. (See Dkt. No. 66–10 at 12).
9 In his amended complaint, plaintiff also alleged that defendant LaBonte retaliated against plaintiff by issuing
plaintiff a false misbehavior report on April 24, 2004. (AC ¶ 86). LaBonte's misbehavior report claimed that
plaintiff lost state issued gloves. (Id.) Plaintiff admitted that he lost the gloves and entered a plea of guilty to
the charge. (Id. ¶ 95). In his March 26, 2009 Decision and Order, District Judge Suddaby noted that “[w]hen
it is undisputed that an inmate has in fact committed prohibited conduct, no retaliatory discipline claim can
be sustained.” (Dkt. No. 65 at 25) (citing Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994)). Since Plaintiff
admitted that he lost the state issued gloves, Defendant LaBonte would have taken the adverse action even
in the absence of the protected conduct, and that portion of plaintiff's retaliation claim against LaBonte was
dismissed by Judge Suddaby. (Dkt. No. 65 at 25).
10 Defendant Garbera, a Corrections Counselor at Clinton, has stated that during the time relevant to plaintiff's
allegations, he “recall [ed] noting that [plaintiff's] attentive behavior toward inmate Brooks—who was making
overt efforts to present himself as female—suggested [plaintiff's] interest in a homosexual relationship. Not
only would this violate DOCS regulations, it carried a potential for physical danger. We were aware of the facts
of the plaintiff's Broome County conviction, an extremely violent rape and homicide. We had to be concerned
about the possibility of similar behavior.” (Garbera Decl. ¶ 19).
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11 A fact is “material” only if it has some effect on the outcome of the suit. Anderson, 477 U.S. at 248.See also
Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.1998). A dispute regarding a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248
12 Defendant LaBonte's decision to have only enough inmates present at the church on a given day to complete
the required jobs is reasonable. It is also reasonable to assume that idle inmates would present more of a
security concern than inmates who are kept busy performing required tasks.
13 Despite the fact that plaintiff's equal protection allegations survived the pleading stage, the standard of proof
at summary judgment is more demanding; plaintiff's allegations “must be supported by specific facts raising
a genuine issue for trial.” Bussey, 419 F.Supp.2d at 582.
14 In Bussey, the impermissible consideration was race. Id .
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© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 2682289
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
N.D. New York.
Alex VEGA, Plaintiff,
v.
Mr. LAREAU, Corrections Sergeant; G.
Labonte, Corrections Officer; and Mr.
Garbera, Corrections Officer, Defendants.
No. 9:04–CV–0750 (GTS/ATB).
|
July 2, 2010.
Attorneys and Law Firms
Alex Vega, Alden, NY, pro se.
Hon. Andrew M. Cuomo, Attorney General for the State of
New York, Charles J. Quackenbush, Esq., Assistant Attorney
General, of Counsel, Albany, NY, for Defendants.
DECISION and ORDER
Hon. GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se prisoner civil
rights action filed by Alex Vega (“Plaintiff”) against three
employees of the New York State Department of Correctional
Services (“Defendants”) pursuant to 42 U.S.C. § 1983, are
(1) Defendants' motion for summary judgment (Dkt. No. 66),
and (2) United States Magistrate Judge Andrew T. Baxter's
Report–Recommendation recommending that Defendants'
motion be granted and that Plaintiff's Amended Complaint
be dismissed with prejudice (Dkt. No. 71). Plaintiff has not
filed an Objection to the Report–Recommendation and the
time in which to do so has expired. For the following reasons,
the Report–Recommendation is accepted and adopted in
its entirety; Defendants' motion for summary judgment is
granted in its entirety; and Plaintiff's Amended Complaint is
dismissed with prejudice in its entirety.
I. RELEVANT BACKGROUND
A. Plaintiff's Amended Complaint
On February 25, 2005, Plaintiff filed his Amended Complaint
in this action. (Dkt. No. 30.) On March 26, 2009, the
Court issued a Decision and Order dismissing all Defendants
in this action except Defendants Lareau, LaBonte, and
Garbera, and all claims in this action except the following:
(1) Plaintiff's First Amendment retaliation claim against
Defendants LaBonte, Garbera, and Lareau; and (2) Plaintiff's
Fourteenth Amendment equal protection claim against
Defendant LaBonte. (Dkt. No. 65.) Familiarity with the
factual allegations of Plaintiff's Amended Complaint that are
asserted in support of these two claims is assumed in this
Decision and Order, which is intended primarily for review
by the parties. (See generally Dkt. No. 30.)
B. Defendants' Motion for Summary Judgment
On April 22, 2009, Defendants filed a motion for
summary judgment seeking dismissal of Plaintiff's Amended
Complaint in its entirety. (Dkt. No. 66.) In support of their
motion, Defendants argued as follows: (1) Plaintiff has not
adduced admissible record evidence establishing either his
claim of retaliation or his claim of equal protection; and
(2) based on the current record, Defendants are protected
from liability as a matter of law by the doctrine of qualified
immunity. (Dkt. No. 66, Attach.2.)
On June 1, 2009, after he received an extension of time
in which to do so, Plaintiff submitted his response in
opposition to Defendants' motion. (Dkt. No. 68.) In that
response, Plaintiff consented to the dismissal of all claims
against Defendants Lareau and Garbera. (Dkt. No. 68 at 1.)
However, Plaintiff argued that his claims against Defendant
LaBonte should not be dismissed because Defendant LaBonte
discriminated and retaliated against him based on what
Defendant LaBonte perceived to be his sexual orientation.
(Dkt. No. 68.)
On June 2, 2009, Defendants submitted their reply. (Dkt. No.
69.) In their reply, Defendants argued that Plaintiff's claims
against Defendant LaBonte should be dismissed because
(1) Plaintiff has not adduced admissible record evidence
establishing either his claim of retaliation or his claim of equal
protection against Defendant LaBonte, and (2) Defendant
LaBonte is protected from liability as a matter of law by the
doctrine of qualified immunity. (Id. at 1–2.)
*2 On January 4, 2010, the Court issued an Order
reassigning the case from Chief United States Magistrate
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Judge Gustatve J. DiBianco (who had recently retired) to
Magistrate Judge Baxter. (Dkt. No. 70 .) On March 16, 2010,
Magistrate Judge Baxter issued a Report–Recommendation
recommending that Defendants' motion be granted and
Plaintiff's Amended Complaint be dismissed in its entirety.
(Dkt. No. 71.) Familiarity with the findings of fact and
conclusions of law issued by Magistrate Judge Baxter in that
Report–Recommendation is assumed in this Decision and
Order, which (again) is intended primarily for review by the
parties.
II. APPLICABLE LEGAL STANDARDS
A. Legal Standard Governing Review of a Report–
Recommendation
When specific objections are made to a magistrate
judge's report-recommendation, the Court makes a “de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” See 28 U.S.C. § 636(b)(1)(C). 1
When only general objections are made to a magistrate
judge's report-recommendation, the Court reviews the report-
recommendation for clear error or manifest injustice. See
Brown v. Peters, 95–CV–1641, 1997 WL 599355, at *2–
3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases],
aff'd without opinion, 175 F.3d 1007 (2d Cir.1999). 2
Similarly, when a party makes no objection to a portion
of a report-recommendation, the Court reviews that portion
for clear error or manifest injustice. See Batista v. Walker,
94–CV–2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P.
72(b), Advisory Committee Notes: 1983 Addition [citations
omitted]. After conducing the appropriate review, the Court
may “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b) (1)(C).
B. Legal Standard Governing a Motion for Summary
Judgment
Magistrate Judge Baxter correctly recited the legal standard
governing a motion for summary judgment. (Dkt. No. 71 at
11–13.) As a result, this standard is incorporated by reference
in this Decision and Order.
III. ANALYSIS
After carefully reviewing all of the papers in this
action, including Magistrate Judge Baxter's Report–
Recommendation, the Court concludes that the Report–
Recommendation is not clearly erroneous. Magistrate Judge
Baxter employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts.
As a result, the Court accepts and adopts the Report–
Recommendation in its entirety for the reasons stated
therein. 3 The Court would add only one point.
In his response to Defendants' motion, Plaintiff expressed an
intention to “hereby withdraw” his claims against Defendants
Garbera and Lareau. (Dkt. No. 68, Plf.'s Decl., ¶ 2.) Of
course, Plaintiff could not unilaterally withdraw his claims
(i.e., without a Court Order), because an Answer (as well
as a motion for summary judgment) had already been
filed. Fed.R.Civ.P. 41(a)(1)(A)(i). Even if the Court were to
liberally construe Plaintiff's “withdraw[al]” of his claims as
a request for a Court Order dismissing those claims without
prejudice “on terms that the court considers proper” pursuant
to Fed.R.Civ.P. 41(a)(2), the Court would deny that request
based on a finding that a dismissal with prejudice would be,
and is, more appropriate. This is because (1) Defendants have
expended the time and effort to file a motion for summary
judgment requesting the dismissal of those claims, (2) the
Court has found that this request is facially meritorious for
the reasons stated in Defendants' motion papers (as well
as the reasons stated in Magistrate Judge Baxter's Report–
Recommendation), and (3) Plaintiff has failed to oppose this
request. 4 For all these reasons, Plaintiff's entire Amended
Complaint is dismissed with prejudice.
*3 ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter's Report–
Recommendation (Dkt. No. 71) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 66) is GRANTED in its entirety; and it is further
ORDERED that Plaintiff's Amended Complaint (Dkt. No.
30) is DISMISSED with prejudice in its entirety.
All Citations
Not Reported in F.Supp.2d, 2010 WL 2682289
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Footnotes
1 On de novo review, “[t]he judge may ... receive further evidence ....“ 28 U.S.C. § 636(b)(1)(C). However, a
district court will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have
been, but was not, presented to the Magistrate Judge in the first instance. See, e.g., Paddington Partners v.
Bouchard, 34 F.3d 1132, 1137–38 (2d Cir.1994) (“In objecting to a magistrate's report before the district court,
a party has no right to present further testimony when it offers no justification for not offering the testimony at
the hearing before the magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways,
Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n. 3 (2d Cir.1990) (district court did not abuse its discretion
in denying plaintiff's request to present additional testimony where plaintiff “offered no justification for not
offering the testimony at the hearing before the magistrate”).
2 See also Vargas v. Keane, 93–CV–7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec. 12, 1994) (Mukasey, J.)
(“[Petitioner's] general objection [that a] Report ... [did not] redress the constitutional violations [experienced
by petitioner] ... is a general plea that the Report not be adopted ... [and] cannot be treated as an objection
within the meaning of 28 U.S.C. § 636.”), aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895 (1996).
3 The Court notes that the Report–Recommendation would survive even a de novo review.
4 In this District, a movant's burden with regard to an unopposed motion is lightened such that, in order
to succeed, the movant need only show its entitlement to the relief requested in its motion, which has
appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed
motion is unopposed and the Court determines that the moving party has met its burden to demonstrate
entitlement to the relief requested therein ....”); Rusyniak v. Gensini, 07–CV–0279, 2009 WL 3672105, at
*1 n. 1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases). The Court notes that, here, Plaintiff was
specifically notified of the consequences of failing to oppose Defendants' motion for summary judgment. (Dkt.
No. 66, Attach.1.)
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