Witherspoon v. Corey et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TERRANCE WITHERSPOON,
Plaintiff,
v. 	9:24-CV-296
(MAD/DJS)
JOSEPH COREY, et al.,
Defendants.
APPEARANCES: 	OF COUNSEL:
TERRANCE WITHERSPOON
Plaintiff, Pro Se
25-B-2399
Attica Correctional Facility
Box 149
Attica, New York 14011
HON. LETITIA JAMES 	RACHAEL OUIMET, ESQ.
New York State Attorney General 	Assistant Attorney General
Attorney for Defendants Jones,
Shellhammer, and Vasile
The Capitol
Albany, New York 12224
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER1
On March 1, 2024, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983
alleging that his federal constitutional rights were violated while he was incarcerated in
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
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the custody of the New York State Department of Corrections and Community
Supervision (“DOCCS”) and held at Auburn Correctional Facility (the “Facility”). Dkt.
No. 1, Compl. 	Defendants Charles Jones, Joseph Vasile, and David Shellhammer2
(“Defendants”) have now, prior to answering, filed a Motion to Dismiss and for
Summary Judgment (the “Motion”). 	Dkt. Nos. 27 & 33. 	Pro se Plaintiff Terrance
Witherspoon (“Plaintiff”) opposes the Motion. Dkt. No. 31.3 Plaintiff has also filed a
Motion to Appoint Counsel. 	Dkt. No. 30. 	For the reasons set forth below, the Court
recommends that Defendants’ Motion to Dismiss and for Summary Judgment (Dkt. No.
27) be GRANTED in part and DENIED in part, and orders that Plaintiff’s Motion to
Appoint Counsel (Dkt. No. 30) is DENIED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Complaint alleges that, on August 18, 2021, Plaintiff encountered Defendant
Jones in his cell block area at the Facility and asked him if inmates “were going to be
allowed recreation in order to use the phone” in light of the fact that the Facility “had
been under a ‘High Security Lockdown Alert[]’ status.” Compl. at p. 4. According to
the Complaint, Defendant Jones responded by calling Plaintiff a racial slur and walking
away. 	Id. 	The Complaint further alleges that, shortly thereafter, Plaintiff stopped the
Corrections Sergeant and conveyed to her the exchange that Plaintiff had with
2 Defendants note that, while the Complaint refers to a Defendant “Sneilhammer,” the correct spelling of that
Defendant’s last name is “Shellhammer.” Dkt. No. 27-1 at p. 3 n.1. For purposes of clarity, the Court will refer
to said Defendant as “Shellhammer” herein. The clerk is directed to correct the docket accordingly.
3 Citations to Plaintiff’s Opposition are to page numbers provided by the Court’s CM/ECF system.
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Defendant Jones. Id. at p. 5. The Corrections Sergeant allegedly confirmed that Plaintiff
was “going to chow,” and informed him that she was “running chow” and that he would
“be safe when [she is] there.” Id.
A few hours later, Plaintiff exited his assigned cell, “lined up in front of the cell
as directed, and waited until [he] was instructed to exit the company for chow.” 	Id.
Defendant Jones thereafter appeared, “ordered [Plaintiff] to put [his] hands on the wall,”
and placed Plaintiff in handcuffs. 	Id. 	When the last inmate exited the area, the
Corrections Sergeant allegedly told Defendant Jones “to handle [his] business” and
“[g]ave the green light signal,” after which eight corrections officers, including the
Defendants, “proceeded to punch[] [Plaintiff] in the face multiple times” while his
“hands [were] cuffed behind [his] back.” Id. According to the Complaint, Plaintiff fell
to the ground and the officers kicked various parts of his body. Id.
The officials “then tried to walk [Plaintiff] down some stairs heading in the
direction of [the] Special Housing Unit” (“SHU”). Id. at p. 6. “While going down the
stairs, [one of the unnamed defendants] punched [Plaintiff] in the side of [his] face and
back of the head.” Id. 	Plaintiff was then pushed from behind, which caused his body
to tumble down the stairs and fall “face first into the walls and floor.” Id. Plaintiff tried
to walk, but could not because of the pain, which resulted in the officers “dragging
[Plaintiff] down the hallway to the elevators as if [he] was a dead carcass.” Id. When
Plaintiff arrived at the SHU, the Corrections Sergeant “cut [Plaintiff’s] clothes off,” and
officers “held [Plaintiff] up in a standing position” and “t[ook] several photographs of
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[his] body.” Id. Later, the Corrections Sergeant “reappeared and approached [Plaintiff]
with orders to takeoff all [his] clothes again.” Id. at p. 7.
On July 3, 2025, the District Court reviewed the Complaint for sufficiency. Dkt.
No. 10. 	The District Court determined that, “[a]t th[at] stage of the proceeding, and
mindful of the Second Circuit’s direction that a pro se plaintiff’s pleadings must be
liberally construed . . . [P]laintiff’s Eighth Amendment excessive force and failure to
intervene claims” against Defendants and other unnamed individuals and “[P]laintiff’s
Fourteenth Amendment equal protection claim against [D]efendant Jones” “survive[d]
sua sponte review.” 	Id. at pp. 10-13. 	However, the District Court dismissed without
prejudice Plaintiff’s Section 1983 claims against certain individuals who were named in
the Complaint, but against whom Plaintiff did not assert allegations of wrongdoing
sufficient to state a claim. 	Id. at pp. 9-10. 	The District Court also dismissed without
prejudice state law claims asserted by Plaintiff sounding in assault, battery, and
intentional infliction of emotional distress as untimely and barred by the governing
statute of limitations. Id. at pp. 13-14. The District Court likewise dismissed Plaintiff’s
claim for negligence as jurisdictionally barred under Correction Law and, in the
alternative, declined to exercise supplemental jurisdiction over that claim. Id. at pp. 15-
18. The present Motion followed.
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II. STANDARD
A. Federal Rule of Civil Procedure 56
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.” F ED . R. CIV . P. 56(a). The moving
party bears the burden to demonstrate through “pleadings, depositions, answers to
interrogatories, and admissions on file, together with [ ] affidavits, if any,” that there is
no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific
facts showing that there is a genuine issue for trial and cannot rest merely on allegations
or denials of the facts submitted by the movant. F ED . R. CIV . P. 56(c); see also Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are
ordinarily not sufficient to defeat a motion for summary judgment when the moving
party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 525-26 (2d Cir. 1994). 	To that end, sworn statements are “more than mere
conclusory allegations subject to disregard . . . they are specific and detailed allegations
of fact, made under penalty of perjury, and should be treated as evidence in deciding a
summary judgment motion” and the credibility of such statements is better left to a trier
of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13
(2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
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When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-movant. 	Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). 	In
considering a summary judgment motion, the court’s role “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). “Its duty, in short, is confined at this point to issue-finding; it does not
extend to issue-resolution.” 	Id. 	Furthermore, where a party is proceeding pro se, the
court must “read [his or her] supporting papers liberally, and . . . interpret them to raise
the strongest arguments that they suggest.” 	Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994). 	Nonetheless, summary judgment is appropriate “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Federal Rule of Civil Procedure 12
On a motion to dismiss, the allegations of the complaint must be accepted as true.
See Cruz v. Beto, 405 U.S. 319, 322 (1972). 	The trial court’s function “is merely to
assess the legal feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d
Cir. 1980). “The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” 	Scheuer v. Rhodes, 416
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U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183
(1984).
A court is bound to give the plaintiff the benefit of every reasonable inference to
be drawn from the “well-pleaded” allegations of the complaint. See Retail Clerks Int’l
Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963). Nevertheless,
“the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” 	Id. (citation omitted). 	A motion to dismiss
pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff’s complaint
includes “enough facts to state a claim to relief that is plausible on its face.” 	Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697.
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard “is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. In this respect, to survive dismissal, a plaintiff
“must provide the grounds upon which his claim rests through factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly,
440 U.S. at 555). Thus, in spite of the deference the court is bound to give to a plaintiff’s
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allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts
[which he or she] has not alleged or that the defendants have violated the . . . laws in
ways that have not been alleged.” 	Assoc. Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether
a plaintiff has “nudged [his] claims . . . across the line from conceivable to plausible”
entails a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. at 679-80.
Where, as here, the complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint must state
a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
III. DISCUSSION
A. Plaintiff’s Fourteenth Amendment Equal Protection
Claim Against Defendant Jones Should Be Dismissed
Because Plaintiff Failed to Exhaust His Administrative Remedies
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
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other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Exhaustion
in prisoner cases covered by § 1997e(a) is mandatory. Id. at 524; see also Ross v. Blake,
578 U.S. 632, 638 (2016) (stating that the mandatory language of § 1997e(a) forecloses
judicial discretion to craft exceptions to the requirement). 	Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of the administrative process
and complying with “deadlines and other critical procedural rules.” Woodford v. Ngo,
548 U.S. 81, 93 (2006). 	The defendant bears the burden of proving that the
administrative remedies available to the plaintiff were not exhausted prior to the
initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec.
28, 1999).4
Defendants argue that Plaintiff’s Fourteenth Amendment equal protection claim
against Defendant Jones should be dismissed because, among other things, Plaintiff has
failed to exhaust his administrative remedies. 	Dkt. No. 27-1 at pp. 5-9. 	Specifically,
Defendants claim that, while “Plaintiff filed a grievance on or about August 19, 2021
(Grievance No. AUB-0671-21), this grievance did not put the [F]acility on notice of
Plaintiff’s claim that Defendant Jones used racial slurs against him” because the
“grievance . . . claimed that [Plaintiff] was threatened by an unidentified officer, and
later assaulted by eight[] unidentified officers,” but “did not mention Plaintiff’s claim
that Defendant Jones, or any officer, used racial slurs against him.” Id.
4 Copies of unreported cases from Westlaw are attached to this opinion for Plaintiff’s reference.
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In Nova v. Smith, as here, the defendants, in support of their motion for partial
summary judgment, argued that the “[p]laintiff failed to exhaust his administrative
remedies with respect to his Fourteenth Amendment equal protection and Section 1981
claims.” 	2022 WL 4389158, at *1, 12-13 (N.D.N.Y. Sept. 1, 2022), report and
recommendation adopted, 2022 WL 4379642 (N.D.N.Y. Sept. 22, 2022). 	The issue
turned on whether the plaintiff’s grievance, which “contain[ed] no mention of racial
language, racial discrimination, [or] equal protection violations,” was sufficient to “put
investigating authorities on notice of such a claim.” Id. at *13-14. The court concluded
that, while “the information set forth in [the] grievance . . . was sufficient to place
DOCCS officials on notice of the alleged excessive force [p]laintiff was subjected to
during the . . . incident,” it did not “sufficiently alert[] corrections officials to the nature
of the alleged race-based conduct . . . and provide enough information about the conduct
at issue to allow prison officials to take appropriate responsive measures.” 	Id.
(quotation, internal quotation marks, and alterations omitted). In explaining its decision,
the court noted, among other things, that: “a plain reading of the . . . grievance[]
support[ed] [d]efendants’ argument that [p]laintiff failed to mention any alleged ‘racial
language’ was used against him”; and, when the plaintiff was interviewed during the
investigation of the grievance, he “did not make any additional statements regarding
racial animus in connection with his grievances.” 	Id. at *14. 	The court further
explained:
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Although it is true that a claim may be exhausted when it is closely related
to, but not explicitly mentioned in an exhausted grievance, it is equally
true that the mere fact that a plaintiff filed and fully appealed some
grievance does not automatically mean that [the inmate] can now sue
anyone who was in any way connected with the events giving rise to that
grievance.
Id. (quotations and internal quotation marks omitted) (alteration in original).
Here, like in Nova v. Smith, a plain reading of the grievance, a copy of which was
filed by Defendants in support of their Motion, reveals that Plaintiff did not mention any
racial language that was allegedly used against him by Defendant Jones or otherwise.
See Dkt. No. 27-4 at p. 48. In his grievance, which is dated August 19, 2021, Plaintiff
discusses an incident that occurred on August 18, 2021. 	Id. 	Specifically, Plaintiff
recounts that he “informed the black female sergeant that 1 of her officers threat[ened
him]” when he asked a question about phone usage. 	Id.; see also id. at p. 49 (naming
Sergeant Hopkins as “the person [Plaintiff] talked to about the CO threatening [him] on
8.18.2021”). Plaintiff also stated, similar to the allegations contained in the Complaint,
that the sergeant “gave [Plaintiff] her word that nothing was going to happen to [him]
and [he] should put down for chow.” 	Id. at p. 48; see also Compl. at pp. 4-5. 	The
grievance then goes on to state that “the same C.O. [Plaintiff] had words with about why
[he] can’t call [his] family told [him] to get on the wall” and that, despite his compliance,
eight corrections officers “jumped on” Plaintiff and “broke [his] foot, fractured [his] ribs
and right wrist,” and gave him a concussion. 	Dkt. No. 27-4 at p. 48. 	The grievance
makes no mention of racial language, racial discrimination, or equal protection
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violations. See generally id. Further, in his opposition to the Motion, Plaintiff himself
appears to acknowledge that he did not mention any racial slur in his grievance. 	See
Dkt. No. 31-2 at p. 7 (“I admit to not using racial slurs in my grievance appeal . . . .”).
Instead, in his opposition, Plaintiff asserts that he “told the grievance committee
in writing the conversation the sergeant and [him] had that lead [sic] up to [Defendant]
Jones[’] attack about the racial slurs he said to [Plaintiff].” Dkt. No. 31 at p. 18; see also
Dkt. No. 31 at pp. 5, 7, & 10 (stating that Plaintiff told Sergeant Hopkins that Defendant
Jones made a racial slur to him). 	Initially, the Court notes that Plaintiff’s alleged
conversation with Sergeant Hopkins about Defendant Jones’ alleged use of a racial slur,
standing alone, is insufficient to exhaust administrative remedies, as “[i]nformal efforts
to put prison officials on notice of inmate concerns,” including “an inmate’s verbal
complaints to DOC[CS] staff,” “do not satisfy the exhaustion requirement” because
“DOC[CS’] grievance procedure . . . sets forth several steps to exhaust a claim through
written grievances when verbal complaints do not resolve the issue.” Wilson v. Quiros,
2025 WL 871646, at *8 (D. Conn. Mar. 20, 2025) (citing, inter alia, Macias v. Zenk,
495 F.3d 37, 43 (2d Cir. 2007)).
Turning to Plaintiff’s alleged writing to the grievance committee about the
conversation he had with Sergeant Hopkins regarding Defendant Jones’ use of a racial
slur, Dkt. No. 31 at p. 18, no documentation is filed by Plaintiff in support of this
assertion. The Court has not been provided with any documentary proof evidencing that
Plaintiff informed the grievance committee about Defendant Jones’ alleged use of a
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racial slur toward Plaintiff, and the documentation relating to the grievance process that
was filed by Defendants in support of their Motion contains no mention of any alleged
use of a racial slur or other racial animus toward Plaintiff. The Court, therefore, finds
Plaintiff’s one-sentence argument that he told the grievance committee in writing about
a conversation he had with Sergeant Hopkins regarding Defendant Jones’ alleged use of
a racial slur, Dkt. No. 31 at p. 18, without more, to be conclusory, not supported by the
documentation relating to the grievance process that was filed by Defendants, and
insufficient to defeat Defendants’ Motion.
Plaintiff further appears to assert that, if he included how Defendant Jones used
“racial slurs inside [his] grievance,” he “would be a target” and his safety would be
threatened. Id. at p. 19; see also id. at p. 5 (explaining that Plaintiff “didn’t mention the
Defendant [Jones’] name because [he] was scared of a retaliation of [his] safety”). To
the extent that “Plaintiff asserts he feared retaliation in an attempt to excuse his failure
to grieve the alleged equal protection claim against Defendant Jones,” Dkt. No. 33 at p.
3 (citing Dkt. No. 31 at ¶ 18), that argument fails too. 	First, as with Plaintiff’s prior
conclusory argument, Plaintiff “does not provide any specific details to support his
allegations” that he would be a target and that his safety would be threatened if he
discussed Defendant Jones’ alleged use of a racial slur in his grievance, and “it is well
settled that ‘mere conclusory allegations or denials . . . cannot by themselves create a
genuine issue of material fact where none would otherwise exist.’” 	Richardson v.
Eberth, 2016 WL 1271078, at *3 (W.D.N.Y. Mar. 29, 2016) (quoting Hicks v. Baines,
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593 F.3d 159, 166 (2d Cir. 2010)) (omission in original). Additionally, as Defendants
correctly noted:
Here, Plaintiff’s own conduct undermines his claimed fear of retaliation.
See generally Pl. Opp. On August 19, 2021, Plaintiff filed a grievance
concerning the alleged August 18, 2021 excessive force incident involving
Defendant Jones, as well as Defendants Vasile and Shellhammer. See Pl.
Opp. ¶ 4; Parmiter Decl. ¶ 24, Exh. D. This alleged excessive force
incident 	that 	Plaintiff 	appropriately 	grieved 	that 	allegedly 	involved
Defendant Jones occurred four hours after Plaintiff claims that the very
same individual, Defendant Jones, used racial slurs against him, violating
Plaintiff’s right to equal protection. See Compl. 4. Plaintiff’s active pursuit
of a grievance arising from the same day and involving the same officer
as the alleged equal protection violation demonstrates that the grievance
process was available to him and that he was not deterred by any fear of
retaliation. See Riles v. Buchanan, 656 F. App’x 577, 581 (2d Cir. 2016)
(rejecting 	a 	fear-of-retaliation 	argument 	where 	plaintiff
contemporaneously filed grievances against the same staff.).
Dkt. No. 33 at p. 3.
“Plaintiff has therefore not demonstrated the existence of any genuine issue of
fact concerning whether he had an objectively reasonable fear of retaliation that would
excuse his” failure to exhaust his Fourteenth Amendment equal protection claim against
Defendant Jones. 	Baines v. McGinnis, 766 F. Supp. 2d 502, 504 (W.D.N.Y. 2011)
(citation omitted). 	“Were the rule otherwise, an inmate could easily circumvent the
PLRA’s 	exhaustion 	requirement 	simply 	by 	making 	the 	conclusory, 	unsupported
assertion that he was deterred from filing a grievance, or a timely grievance, out of fear
of retaliation.” Id.
Accordingly, the Court recommends that Defendants’ Motion (Dkt. No. 27) be
granted to the extent that it seeks dismissal of Plaintiff’s Fourteenth Amendment equal
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protection claim against Defendant Jones based on Plaintiff’s failure to exhaust his
administrative remedies as to that claim.5
B. Plaintiff’s Eighth Amendment Excessive Force and Failure to Intervene
Claims Against Defendants Vasile and Shellhammer Should Not Be Dismissed
Because Plaintiff Sufficiently Alleges Their Personal Involvement
“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.” 	Ward v. Coley, 2019 WL
977887, at *3 (S.D.N.Y. Feb. 28, 2019) (quoting Grullon v. City of New Haven, 720
F.3d 133, 138 (2d Cir. 2013)) (internal quotation marks omitted).
Defendants argue that Plaintiff’s Eighth Amendment excessive force and failure
to intervene claims against Defendants Vasile and Shellhammer6 should be dismissed
for 	lack 	of 	personal 	involvement 	because 	the 	Complaint 	improperly 	lumps 	all
Defendants together through group pleading without providing a factual basis to
distinguish their conduct. 	Dkt. No. 27-1 at pp. 10-13. 	Specifically, Defendants note
5 Defendants alternatively seek dismissal of Plaintiff’s Fourteenth Amendment equal protection claim against
Defendant Jones for failure to state a claim. Dkt. No. 27-1 at pp. 9-10. Were the Court to disagree that dismissal
on exhaustion grounds is appropriate, the Court recommends denial of this portion of the Motion. Defendants
argue that vile and abusive language cannot form the basis of a Section 1983 claim and assert that such language
must be coupled with simultaneous physical abuse. Id. (citations omitted). Defendants thereby maintain that
Plaintiff’s allegation that Defendant Jones directed a racial slur at Plaintiff, walked away, and hours later used
excessive force against Plaintiff is insufficient to sustain a Fourteenth Amendment equal protection claim. Id.
However, in the Complaint, Plaintiff pleads that Defendant Jones violated Plaintiff’s Fourteenth Amendment rights
both by using a racial slur and by using physical force to injure Plaintiff. Compl. at p. 8. In any event, the Court
finds that, at this time, Plaintiff has alleged a sufficient temporal proximity between the racial slur allegedly used
by Defendant Jones and the physical force allegedly employed by Defendant Jones to withstand dismissal of
Plaintiff’s Fourteenth Amendment equal protection claim for failure to state a claim.
6 In the Motion, Defendants note that “Plaintiff’s Eighth Amendment excessive force claim against Defendant
Jones is not subject to this motion.” Dkt. No. 27-1 at p. 1 n.2.
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that, “while the caption of the Complaint names Defendant Vasile and Shellhammer, the
body of the Complaint is devoid of any mention of their names or what they allegedly
did.” 	Id. at p. 12 (citations omitted). 	Defendants further claim that the Complaint
alleges that Plaintiff “was subjected to ‘vicious blows,’ kicked in the ribs and head,
pushed downstairs, and punched several times in the head,” but “fails to specify whether
Defendants Va[s]ile and Shellhammer engaged in such behavior.” Id. (citing, inter alia,
Compl. at pp. 4-5).
The Complaint names several corrections officers as Defendants to this action,
including Defendants Vasile and Shellhammer. Compl. at pp. 1 & 3. In describing the
physical force allegedly used against Plaintiff, the Complaint asserts that “[a]ll eight (8)
CO’s participated in beating [Plaintiff],” id. at pp. 5-6, and further alleges that “[a]ll
defendants . . . violated Plaintiff’s rights to be free of cruel and unusual punishments
under the Eighth Amendment” “by using excessive and completely unnecessary force
on Plaintiff . . . or by condoning or covering up such activity” and “doing nothing to
intervene, assist Plaintiff[,] or even command the beating stop.” 	Id. at p. 8. 	Plaintiff
acknowledges that he “cannot say for sure who did what” because he “lost consciousness
at some point [during] the beating.” 	Id. at pp. 5-6; see also Dkt. No. 31 at p. 5
(explaining that eight officers “jumped on” Plaintiff and that he is “still figuring out
names and faces”).
In opposition to the Motion, Plaintiff provides further details regarding the
personal involvement of Defendants Vasile and Shellhammer in the violation of
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Plaintiff’s Eighth Amendment rights. Specifically, Plaintiff states that Defendant Vasile
applied mechanical restraints by using handcuffs, and that Defendant Shellhammer used
a body hold and assaulted Plaintiff by punching and kicking him in the head, back, and
ribs. Dkt. No. 31 at pp. 7-8, 21, & 23-24. Plaintiff also alleges that Defendants Vasile
and Shellhammer did not intervene when Plaintiff was handcuffed, when the officers
attacked him, or after the beating, but instead let the officers continue to assault Plaintiff
until he passed out. Dkt. No. 31 at pp. 8 & 21-24.
In Reply, Defendants do not address the additional facts raised in Plaintiff’s
opposition to the Motion regarding the personal involvement of Defendants Vasile and
Shellhammer, see generally Dkt. No. 33, other than to say that Plaintiff argues that the
Motion “should be denied because . . . his excessive force claims against Defendants
Vasile and Shellhammer are supported by specific instances of misconduct.” Id. at p. 1.
In deciding the Motion, Plaintiff’s Complaint must be liberally construed. 	See
Camacho v. Keane, 1995 WL 456378, at *1 (S.D.N.Y. Aug. 2, 1995) (quoting Frazier
v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988)) (“A pro se complaint, ‘must be construed
liberally,’ when deciding a 12(b)(6) motion.”). Initially, the Court notes that, “prisoners
need not always identify with precision which specific corrections officer committed
which specific act against him when multiple officers were present during an alleged
assault.” King-Knight v. New York, 2026 WL 523067, at *6 (N.D.N.Y. Feb. 25, 2026)
(citation omitted). 	Consequently, where, as here, factual allegations can be liberally
construed as plausibly alleging that all of the individual officer defendants subjected the
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plaintiff to excessive force and failed to intervene when they witnessed their fellow
officers engaging in excessive force, personal involvement of the individual officer
defendants is sufficiently alleged. 	See id.; see also Palazzo v. Cnty. of Niagara, 2025
WL 	2109246, 	at 	*3-4 	(W.D.N.Y. 	July 	1, 	2025) 	(citing 	cases), 	report 	and
recommendation adopted, 2025 WL 2108193 (W.D.N.Y. July 28, 2025).
In any event, to the extent that Plaintiff’s Complaint was not clear in setting forth
the personal involvement of Defendants Vasile and Shellhammer, the Court is permitted
to consider the additional factual allegations provided in Plaintiff’s opposition to the
Motion. 	See Camacho v. Keane, 1995 WL 456378, at *1 (“To the extent plaintiff’s
Complaint may have been inadequate and merely conclusory in setting forth defendant
Keane’s personal involvement, plaintiff’s papers in opposition to the motion to dismiss
have now sufficiently set forth facts to state a claim.”). In doing so, the Court finds that
the supplementary facts provided by Plaintiff in his opposition papers are sufficient, at
least at this early stage, to show that Defendants Vasile and Shellhammer directly
participated in and were personally involved in the alleged Eighth Amendment
violations raised by Plaintiff.
Accordingly, the Court recommends that Defendants’ Motion (Dkt. No. 27) be
denied to the extent that it seeks dismissal of Plaintiff’s Eighth Amendment excessive
force and failure to intervene claims against Defendants Vasile and Shellhammer for
lack of personal involvement.
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C. Plaintiff’s Motion to Appoint Counsel
Plaintiff has filed a letter that the Court construes as a Motion to Appoint
Counsel. Dkt. No. 30 at p. 2. Plaintiff notes that he “need[s] a lawyer to get . . . paper
work from the[] . . . prisons.” Id.
“A party has no constitutionally guaranteed right to the assistance of counsel in
a civil case.” Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68
(2d Cir. 2011) (citations omitted). Courts cannot utilize a bright-line test in determining
whether counsel should be appointed on behalf of an indigent party. 	Hendricks v.
Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). 	Instead, a number of factors must be
carefully considered by the court in ruling upon such a motion. As a threshold matter,
the court should ascertain whether the indigent’s claims seem likely to be of substance.
A motion for appointment of counsel may be properly denied if the court concludes that
the plaintiff’s “chances of success are highly dubious.” Leftridge v. Connecticut State
Trooper Officer No. 1283, 640 F.3d at 69. 	If the court finds that the claims have
substance, the court should then consider:
[T]he indigent’s ability to investigate the crucial facts, whether conflicting
evidence implicating the need for cross-examination will be the major
proof presented to the fact finder, the indigent’s ability to present the case,
the complexity of the legal issues and any special reason in th[e] case why
appointment 	of 	counsel 	would 	be 	more 	likely 	to 	lead 	to 	a 	just
determination.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting
Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not to say that all,
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or indeed any, of these factors are controlling in a particular case. 	Rather, each case
must be decided on its own facts. 	Velasquez v. O’Keefe, 899 F. Supp. 972, 974
(N.D.N.Y. 1995) (citing Hodge v. Police Officers, 802 F.2d at 61).
In the present matter, the case is at a very early stage. Indeed, only allegations
have been made at this point; no evidence has yet been submitted relating to Plaintiff’s
claims. As such, at this early stage, Plaintiff has not met the threshold requirement of
demonstrating that his claims seem likely to be of substance. See Brown v. Utica Police
Dep’t, 2017 WL 5514518, at *5 (N.D.N.Y. Nov. 16, 2017) (“Where there are merely
unsupported allegations, the moving party does not meet the first requirement imposed
by the Second Circuit for appointment of pro bono counsel.”) (citation omitted)).
Furthermore, even if the Court were to assume both that the District Court will
adopt the aforementioned recommendations and that the case may be of substance, the
dispute would be limited to Plaintiff’s Eighth Amendment claims, which does not appear
to present any overly complex issues. 	In addition, there is no basis for the Court to
conclude, based on the current record, that Plaintiff does not have an ability to
investigate pertinent facts and present his case. 	Should the District Court adopt the
Court’s recommendations, the Defendants will have to file a responsive answer to the
Complaint and a Scheduling Order will be issued by the Court requiring that Plaintiff
be provided with certain discovery, which should help him to frame the issues in the
case and investigate the “crucial facts” without the need for counsel.
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While it is possible, should this case proceed to a trial, that there will be
conflicting evidence implicating the need for cross-examination, as is the case in many
actions brought under Section 1983 by pro se litigants, “this factor alone is not
determinative of a motion for appointment of counsel.” 	Velasquez v. O’Keefe, 899
F.Supp. 972, 974 (N.D.N.Y. 1995). 	Further, if this case proceeds to trial, it is highly
probable that the Court will appoint trial counsel at the final pretrial conference. This
Court is not aware of any special reason why appointment of counsel at this time would
be more likely to lead to a just determination of this litigation.
For all of these reasons, the Court finds that appointment of counsel for the
Plaintiff is unwarranted. Accordingly, Plaintiff’s Motion to Appoint Counsel (Dkt. No.
30) is denied, with leave to renew at a later stage of the case. Plaintiff may file another
motion for appointment of counsel in the event that he can demonstrate that, in light of
specific changed circumstances, consideration of the above factors warrants granting the
application. 	Plaintiff is further advised that any renewed motion for appointment of
counsel must be accompanied by documentation that substantiates his efforts to obtain
counsel from the public and private sector.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants’ Motion to Dismiss and for Summary
Judgment (Dkt. No. 27) be GRANTED in part and DENIED in part as set forth
above; and it is
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ORDERED, that Plaintiff’s Motion to Appoint Counsel (Dkt. No. 30) be
DENIED 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 to this action; and it is further
ORDERED, that the Clerk of the Court update the “Defendant” section of the
Civil Docket to reflect the corrected spelling of “Sneilhammer” to “Shellhammer.”
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days7 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).
Dated: April 13, 2026
Albany, New York
7 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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