Deans v. Green

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KANARES DEANS,
Plaintiff,
v. 	9:24-cv-00374
(BKS/TWD)
C.O. GREEN,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
KANARES DEANS
Plaintiff, pro se
21-A-0879
Adirondack Correctional Facility
Box 110
Ray Brook, NY 12977
NEW YORK STATE ATTORNEY GENERAL 	ELIZABETH LOMBARDI, ESQ.
Attorney for Defendant 	Assistant Attorney General
Syracuse Regional Office
300 South State Street - Suite 300
Syracuse, NY 13202
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
This matter was referred for a report and recommendation by the Hon. Brenda K. Sannes,
Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Plaintiff Kanares Deans (“Plaintiff”), an individual in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”), brings this action under 42
U.S.C. § 1983 alleging Defendant C.O. Green (“Defendant”) violated his constitutional rights
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during a use-of-force incident at Franklin Correctional Facility (“Franklin”) on June 3, 2023.
Dkt. No. 1. Currently before the Court is Defendant’s motion for summary judgment. Dkt. No.
28. The motion is fully briefed. Dkt. Nos. 39, 42. For the reasons set forth below, the
undersigned recommends Defendant’s motion be granted.
II. 	BACKGROUND
A. 	Facts 1
On June 3, 2023, the Correctional Emergency Response Team (“CERT”) was activated to
Franklin to conduct a facility frisk. Dkt. No. 28-2, ¶¶ 3-7.2 At approximately, 1:00 pm,
Defendant, a CERT member, entered the G2 dorm and stated he was going to frisk Plaintiff’s
cube, G-2-48. Id. ¶¶ 3, 8, 9. The parties dispute what happened next.
Plaintiff claims Defendant told him to the face the rear of his cube, which he did. Id. ¶ 4.
Plaintiff further alleges that all of the sudden, he was put in a choke hold, slammed to the floor,
and then punched and kicked in the head and body for no reason. Id. ¶ 5. His hands and legs
1 The facts are drawn from Defendant’s statement of material facts, Dkt. No. 28-2, and Plaintiff’s
response, Dkt. No. 39, to the extent the facts are supported by “particular parts of materials in the
record,” including, among other things, depositions, affidavits or declarations, or other
documents. Fed. R. Civ. P. 56(c). The Court has also considered Plaintiff’s complaint, which is
verified and his sworn testimony. Dkt. No. 1; see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
1995) (explaining that a “verified complaint is to be treated as an affidavit . . . and [may] be
considered in determining whether material issues of fact exist[.]”) (citations omitted). The facts
are construed in the light most favorable to Plaintiff as the non-moving party. Gilles v. Repicky,
511 F.3d 239, 243 (2d Cir. 2007). Citations to Court documents utilize the pagination generated
by CM/ECF. Paragraph numbers are used where documents identified by the CM/ECF docket
number contain consecutively numbered paragraphs. Unless otherwise indicated, excerpts from
the record are reproduced exactly as they appear in the original and errors in spelling,
punctuation, and grammar have not been corrected.
2 Citations to Court documents utilize the pagination generated by CM/ECF. Paragraph numbers
are used where documents identified by the CM/ECF docket number contain consecutively
numbered paragraphs. Unless otherwise indicated, excerpts from the record are reproduced
exactly as they appear in the original and errors in spelling, punctuation, and grammar have not
been corrected.
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were restrained. Dkt. No. 28-4 at 33. Plaintiff was then dragged by his arms to the laundry room
where he was subjected to a cavity search and then examined by a nurse. Id. at 37-40.
According to Defendant, Plaintiff was given several direct orders to turn around and face
the wall. Id. ¶ 10. Plaintiff refused to follow the direct orders given to him. Id. ¶ 11. Defendant
then used “body holds” to move Plaintiff to the rear wall of the cube, and then used “body holds
to put [Plaintiff] face first on the bed.” Id. ¶ 12. Once Plaintiff was on the bed, Defendant
utilized a “figure four leg lock” to maintain control of Plaintiff’s legs. Id. ¶ 13. While
Defendant maintained control of Plaintiff’s legs, another corrections officer restrained Plaintiff’s
arms behind his back and applied wrist restraints. Id. ¶ 14. Plaintiff then became compliant and
all force ceased. Id. ¶ 16. Defendant maintains the minimal amount of force used on Plaintiff
was reasonable, appropriate, and within departmental guidelines. Id. ¶ 24.
Plaintiff was charged with violating rules concerning refusing a direct order, interference,
search/frisk procedures, violent conduct, and creating a disturbance. Id. ¶ 33. The June 3, 2023,
misbehavior report described the incident as follows:
During a CERT frisk of G-2 dorm Officer Green was conducting the
frisk of G-2-48 cube housing Deans, K 21B0879. 	Deans refused
several direct orders to face the rear of his cube. 	Force became
necessary to gain compliance with staff direction and to quell the
disturbance. Once staff had Deans on the ground, Deans violently
struggled with staff disturbing the order of the dorm during the frisk.
Dkt. No. 28-5 at 1.
After the incident, a strip frisk was authorized. Dkt. No. 28-2, ¶ 17. No contraband was
found. Id. ¶ 18. At approximately 1:15 pm, Plaintiff underwent a medical examination by Nurse
Charband and use-of-force-photos were taken by Officer Frank. Dkt. No. 28-2, ¶¶ 19, 21.
Plaintiff’s medical records reflect Nurse Charband observed no injuries on Plaintiff and no
medical treatment was necessary. Id. ¶ 20. Plaintiff generally testified in his deposition that he
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had only “only bruises” and confirmed he had no lasting “physical injuries” from the June 3,
2023, incident. Id. ¶ 23. Plaintiff did, however, sustain “psychological injuries” from the
incident but he “can’t even describe” those injuries. Id. ¶ 24. He later explained “knowing that
you didn’t do anything to be treated the way you was -- has a big, big impact on your thinking
and everything, you understand? You’re traumatized.” Id. Plaintiff also stated that he takes
medication for his anxiety and depression, and that he began taking those medications in 2016.
Id. ¶ 28.
At approximately 2:26 pm, Plaintiff was admitted to the Special Housing Unit (“SHU”)
at Upstate Correctional Facility (“Upstate”). Id. ¶ 34. Plaintiff remained in the SHU for thirty-
four days, from June 3, 2023, until July 7, 2023, without a disciplinary hearing. Id. ¶ 35; Dkt.
No. 1 at 7.
Based upon a review of the records maintained by the Incarcerated Grievance Program
(“IGP”) at Franklin and Upstate, Plaintiff never filed a grievance with respect to the alleged June
3, 2023, excessive force incident. Id. ¶¶ 37, 42-45, 47.
Plaintiff did, however, file one grievance at Upstate. Id. ¶ 43. The grievance, UST-1257-
23, dated June 24, 2023, stated:
I have a right to a hearing within 14 days of the issuance of the
disciplinary ticket and within 7 days of placement in keeplock or
S.H.U. unless extension is granted with a right to be present, call
witnesses and present evidence. It’s been 21 days since disciplinary
ticket was served.
Dkt. No. 28-23 at 1-2. He requested to be released from the SHU immediately. Id.
On July 11, 2023, a hearing was held in absentia because Plaintiff had been transferred to
the Adirondack Correctional Facility (“Adirondack”). Dkt. No. 28-2, ¶ 48. The Incarcerated
Grievance Resolution Committee (“IGRC”) dismissed and closed grievance UST-1257-23. Id. ¶
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49. The IGRC’s response was sent to Plaintiff on July 12, 2023. Id. ¶ 50. Records maintained
by DOCCS indicate Plaintiff did not appeal the dismissal with Upstate. Id. ¶ 51. Plaintiff
testified, however, he appealed the dismissal to the superintendent but “[t]here was no response.
I was transferred.” Dkt. No. 28-4 at 54.
As part of discovery, Plaintiff disclosed a document entitled “Appeal My Disciplinary
Ticket” dated June 7, 2023. Dkt. No. 28-2, ¶ 52. The document was notarized on July 30, 2023.
Id. ¶ 53. As set forth therein, Plaintiff stated he wanted to appeal the disciplinary ticket received
on June 5, 2023, because he never received a hearing. Id. ¶ 55. He also asked that the ticket be
dismissed. Id. At the bottom of the document, Plaintiff indicated, “C.C. on file” and “C.C. sent
to d.o.c.c.s.” Id. ¶ 54. The misbehavior report for the June 3, 2023, incident does not appear on
Plaintiff’s DOCCS disciplinary report. Id. ¶ 36.
Based upon a review of the grievance appeal records maintained by the Central Office
Review Committee (“CORC”), as of May 29, 2025, “no appeal has ever been received by CORC
for any grievances” filed by Plaintiff. Id. ¶¶ 56, 57. Plaintiff testified he was aware that the last
administrative appeal is to CORC. Id. ¶ 58.
B. 	Procedural History
Plaintiff commenced this action by filing his pro se complaint on March 18, 2024, along
with an application to proceed in forma pauperis (“IFP”). Dkt. Nos. 1, 5. On April 26, 2024, the
Court granted Plaintiff’s application to proceed IFP and found Plaintiff’s Eighth Amendment
excessive force claim against Defendant survived sua sponte review and required a response.
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Dkt. No. 7.3 On July 23, 2024, Defendant filed an answer, Dkt. No. 21, and discovery ensued.
See Dkt. No. 22.
On June 10, 2025, Defendant filed the instant motion for summary judgment seeking
dismissal of Plaintiff’s Eighth Amendment excessive force claim with prejudice. Dkt. No. 28.
Defendant submitted a memorandum of law, Dkt. No. 28-1, supporting declarations with
exhibits, Dkt. No. 28-3 through 28-25, and a statement of material facts, Dkt. No. 28-2.
Defendant argues summary judgment is warranted because (1) Plaintiff’s failed to exhaust his
administrative remedies, Dkt. No. 28-1 at 11-20; (2) Plaintiff has failed to show a physical
injury, id. at 20-23; (3) Plaintiff’s excessive force claim fails on the merits, id. at 23-27; and (4)
Defendant is entitled to qualified immunity, id. at 27-29. On August 7, 2025, Plaintiff filed a
memorandum of law in opposition to Defendant’s motion, Dkt. No. 39 at 1-12, and a response to
Defendant’s statement of material facts, id. at 13-18. Defendant filed a reply on August 21,
2025. Dkt. No. 42.
III. 	DISCUSSION
A. 	Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, 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.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
3 The following claims were dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted: (1)
Fourteenth Amendment due process claim; and (2) constitutional claim related to a false
misbehavior report. Dkt. No. 7.
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(1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). 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.”
Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).
If the moving party satisfies its burden, the nonmoving party must move forward with
specific facts showing there is a genuine issue for trial. Salahuddin, 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). “Conclusory 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). Accordingly, statements “that are devoid of any specifics, but replete with conclusions,
are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v.
Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences against the moving party. Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The court should not
weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep’t of Corr., 84
F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)
(“Assessments of credibility and choices between conflicting versions of the events are matters
for the jury, not for the court on summary judgment.”).
Where a party seeks judgment against a pro se litigant, or a pro se litigant moves for
summary judgment, the court must afford the pro se litigant special solicitude. See Treistman v.
Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). The court is obligated to “read [a pro
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se party’s] 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). However, that status
“does not relieve [a pro se] 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 and citation omitted).
B. 	Local Rule 56.1
Local Rule 56.1(a) requires a party moving for summary judgment to file and serve a
statement of material facts. L.R. 56.1(a). In turn, Local Rule 56.1(b) requires the party opposing
a motion for summary judgment to file a response. L.R. 56(1)(b). “The opposing party’s
response shall mirror the movant’s Statement of Material Facts by admitting and/or denying each
of the movant’s assertions in a short and concise statement, in matching numbered paragraphs.”
L.R. 56.1(b). “Each denial shall set forth a specific citation to the record where the factual issue
arises.” Id.; see Lee v. City of Troy, 520 F. Supp. 3d 191, 198 (N.D.N.Y. 2021) (“Because a
naked denial of a fact the movant claims to be undisputed would do little to help the Court, the
opposing party must support every denial with a citation to record evidence supporting a genuine
dispute of material fact.”). “The Court may deem admitted any properly supported facts set forth
in the Statement of Material Facts that the opposing party does not specifically controvert.” L.R.
56.1(b) (emphasis omitted).
In accordance with the Local Rules, Defendant filed and served a fifty-eight paragraph
statement of material facts.4 Dkt. No. 28-2. In his response, Dkt. No. 39-at 13-18, Plaintiff
“agrees” with twenty-eight statements, id. ¶¶ 1-6, 18-19, 23, 26-32, 34-41, 43, 56-58, “disagrees”
4 A notice of the consequences of failing to respond to a summary judgment motion was sent to
Plaintiff. Dkt. No. 30.
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with eighteen statements, id. ¶¶ 7-14, 16-17, 20-22, 24-25, 33, 42, 55, and failed to respond to
twelve statements, id. ¶¶ 15, 44-54. Moreover, for each denial, id. ¶¶ 7-14, 16-17, 20-22, 24-25,
33, 42, 55, Plaintiff failed to “set forth a specific citation to the record where the factual issue
arises.” L.R. 56.1(b).
As Defendant points out, see Dkt. No. 42 at 4-5, Plaintiff’s failure to provide a response
in accordance with Local Rule 56.1(b) permits the Court to deem admitted Defendant’s properly
supported facts that Plaintiff does not specifically controvert. See L.R. 56.1(b). Nevertheless,
pro se plaintiffs are also afforded special solicitude in this District and Circuit. See Champion v.
Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Thus, 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 v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citation omitted).
Accordingly, in deference to Plaintiff’s pro se status, the Court will exercise its discretion
and independently review the record when evaluating Defendant’s motion for summary
judgment. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3
(N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff’s verified complaint sufficient to
controvert facts in statement of material facts on motion for summary judgment).
C. 	Exhaustion of 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). “[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
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wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Exhaustion in prisoner
cases covered by Section 1997e(a) is mandatory. Id. at 524; see also Ross v. Blake, 578 U.S.
632, 638 (2016). Furthermore, Section 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).
Generally, the DOCCS IGP involves the following procedure for the
filing of grievances. First, an inmate must file a complaint with the
facility’s IGP clerk within twenty-one calendar days of the alleged
occurrence. [7 N.Y.C.R.R.] § 701.5(a). A representative of the
facility’s . . . IGRC . . . has sixteen calendar days from receipt of the
grievance to informally resolve the issue. Id. § 701.5(b)(1). If there
is no such informal resolution, the full IGRC conducts a hearing
within sixteen calendar days of receipt of the grievance and issues a
written decision within two working days of the conclusion of the
hearing. Id. §§ 701.5(b)(2), (3). Second, a grievant may appeal the
IGRC decision to the facility’s superintendent within seven calendar
days of receipt of the IGRC’s written decision. Id. § 701.5(c)(1). If
the grievance involves an institutional issue (as opposed to a
DOCCS-wide policy issue), the superintendent must issue a written
decision within twenty calendar days of receipt of the grievant’s
appeal. 	Id. § 701.5(c)(3)(ii). 	Grievances regarding DOCCS-wide
policy issues are forwarded directly to . . . CORC . . . for a decision
under the process applicable to the third step. Id. § 701.5(c)(3)(i).
Third, a grievant may appeal to CORC within seven working days
of 	receipt 	of 	the 	superintendent’s 	written 	decision. 	Id. 	§
701.5(d)(1)(i). 	CORC is to render a written decision within thirty
calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Hudson v. Kirkey, No. 9:20-CV-00581 (LEK/DJS), 2023 WL 2324988, at *3 (N.D.N.Y. Mar. 2,
2023) (additional citation omitted); see also Jackson v. Jackson, No. 16-CV-8516, 2021 WL
981849, at *4 (S.D.N.Y. Mar. 16, 2021) (explaining “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”) (citing 7
N.Y.C.R.R. § 701.8)).
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“If all three of these levels of review are exhausted, then the prisoner may seek relief in
federal court pursuant to section 1983.” Johnson v. Mason, No. 9:22-cv-590 (MAD/CFH), 2024
WL 396679, at *3 (N.D.N.Y. Feb. 2, 2024) (citation omitted). “When a prisoner does not
properly exhaust his administrative remedies before filing suit, the action must be dismissed.”
Barrett v. Ballard, No. 9:23-cv-113 (DNH/DJS), 2024 WL 4627511, *3 (N.D.N.Y. Oct. 4, 2024)
(citation omitted). “[W]here a plaintiff’s grievance has not been appealed to and decided by the
highest body in the administrative process, the plaintiff cannot be said to have exhausted his
administrative remedies and his claims are thus properly dismissed by a court.” Id. (citation
omitted).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its
own, textual exception to mandatory exhaustion.” Ross, 578 U.S. at 642. Specifically, the
exhaustion requirement contained in Section 1997e(a) “hinges on the ‘availability’ of
administrative remedies: An inmate, that is, must exhaust available remedies, but need not
exhaust unavailable ones.” Id. (citing 42 U.S.C. § 1997e(a)). In Ross, the Supreme Court
identified three circumstances in which a court may find administrative remedies are not
“available” for PLRA purposes, holding:
[A]n 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 . . . . Next, an administrative
scheme might be so opaque that it becomes, practically speaking,
incapable of use . . . . And finally, . . . when prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.
Id. at 643-44. In these situations, exhaustion is not required. Additionally, the Second Circuit
has observed “the three circumstances discussed in Ross do not appear to be exhaustive . . . .”
Williams v. Correction Officer Priatno, 829 F.3d 118, 124 n.2 (2d Cir. 2016).
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The failure to exhaust administrative remedies is an affirmative defense. Hubbs v.
Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (explaining that defendants bear the
burden of proof, but plaintiffs can overcome a showing of non-exhaustion by putting on their
own evidence). Thus, a defendant must first show that a grievance process governs the dispute at
issue and that a plaintiff has failed to exhaust it. Id. In response, a plaintiff can show either
exhaustion or unavailability as outlined in Ross and its progeny. See Booker v. Flint, No. 9:22-
CV-600 (AJB/DJS), 2025 WL 1663999, at *3 (N.D.N.Y. June 12, 2025). Whether remedies are
available is “an objective [test]: that is, would a similarly situated individual of ordinary firmness
have deemed them available.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311-12 (2d Cir. 2020)
(citation omitted).
D. 	Analysis
Here, as discussed above, the undisputed facts clearly demonstrate that Plaintiff failed to
exhaust his administrative process.5 Specifically, the record before the Court indicates Franklin
and Upstate had a grievance program during the relevant time period and Plaintiff failed to file
any grievances while housed at Franklin or Upstate related to the June 3, 2023, excessive force
incident. See Dkt. No. 28-2, ¶¶ 37, 42-45, 47; see, e.g., Bennett v. Onua, No. 09 Civ. 7227, 2010
WL 2159199, at *3 (S.D.N.Y. May 26, 2010) (finding the defendants “adequately supported the
affirmative defense of failure to exhaust” where “a search of the grievance log records . . . did
5 In Perttu v. Richards, 605 U.S. 460 (2025), the Supreme Court held that “parties are entitled to
a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim
protected by the Seventh Amendment.” Perttu, 605 U.S. at 479. Here, because Plaintiff’s
complaint alleges excessive force stemming from the incident on November 13, 2023, the merits
of Plaintiff’s claim are not intertwined with the issue of PLRA exhaustion. See, e.g., Hill v.
Tisch, No. 2:02-cv-3901, 2025 WL 1871142, at *7-8 (E.D.N.Y. July 7, 2025) (holding that
exhaustion and the merits were not intertwined where the plaintiff raised excessive force, failure
to protect, and deliberate indifference to medical care claims). Therefore, the issue of exhaustion
need not be submitted to a jury under Perttu.
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not reveal any record of a grievance” filed by the plaintiff related to the claim). Moreover,
Plaintiff testified he was aware that the last administrative appeal is to CORC and the record
before the Court reveals Plaintiff has never appealed a grievance to CORC. Dkt. No. 28-3, ¶¶
56-58.
Plaintiff claims in his opposition to the motion:
I was served the ticket no hearing was even given I grieved the ticket
did not receive a hearing until I was transferred to Adirondack Cor
Fac then received grievance reply that I transferred out so the
grievance was dismissed Plaintiff continues to deny the allegations
of not listening to a direct order.
Dkt. No. 39 at 6. He further claims:
Where there is a recommendation for loss of good time, the filing of
the 	administrative 	appeal 	is 	the 	only 	step 	that 	incarcerated
individuals must take to exhaust their administrative remedies, here
as said before Plaintiff never received a hearing. 	So therefore
nothing could be appealed. I successfully with due diligence tried
to appeal the ticket but was told I could not appeal a disciplinary
ticket that was never given a disposition, all avenues were shut
down.
Id. at 8.
Here, construed liberally, Plaintiff appears to argue he exhausted his available
administrative remedies by filing grievance UST-1257-23. However, grievance UST-1257-23
makes clear Plaintiff was complaining about the lack of a disciplinary hearing based on the June
3, 2023, misbehavior report, i.e., the “ticket”, and not the alleged use-of-force incident at issue.
See Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (holding the PLRA’s exhaustion
requirement is designed to ‘afford[ ] corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.’” (quoting Porter, 534 U.S.
at 524-25)).
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Grievance UST-1257-23 did not alert prison officials at Upstate that Plaintiff was
attempting to seek redress for the alleged use of excessive force at Franklin on June 3, 2023.
Indeed, both the contents of the grievance, “I have a right to a hearing within 14 days of the
issuance of a disciplinary ticket and within 7 days of placement in keeplock or S.H.U.”, Dkt. No.
28-25 at 1, and the relief he was seeking, “to be released from S.H.U. immediately,” id., made
clear Plaintiff was complaining about his untimely disciplinary hearing. Thus, grievance UST-
1257-23 failed to substantively exhaust administrative remedies as to the excessive force claim
against Defendant.
Having carefully reviewed the record, and based on the foregoing, the Court finds
Plaintiff failed to exhaust his available administrative remedies as to the alleged June 3, 2023,
excessive force incident and has failed to raise an issue of material fact as to whether his failure
to exhaust may be excused under Ross and its progeny. Therefore, Defendant is entitled to
summary judgment. See, e.g., Polhamus v. Brinkeroff, No. 9:23-CV-1570 (LEK/ML), 2025 WL
824874, at *6 (N.D.N.Y. Feb. 20, 2025), report and recommendation adopted, 2025 WL 822400
(N.D.N.Y. Mar. 14, 2025). Accordingly, the Court recommends Defendant’s motion be granted.
Moreover, “[b]ecause Plaintiff’s failure to exhaust is at this point incurable, the Court
recommends that summary judgment for failure to exhaust administrative remedies be with
prejudice.” Richard v. LeClaire, No. 9:15-CV-0006 (BKS/TWD), 2019 WL 5197041, at *9
(N.D.N.Y. May 6, 2019), report and recommendation adopted, 2019 WL 4233184 (N.D.N.Y.
Sept. 6, 2019); see also Robinson v. Harder, No. 9:21-CV-1322 (DNH/CFH), 2024 WL
1469076, at *9 (N.D.N.Y. Feb. 20, 2024) (explaining, “if an inmate has failed to exhaust
available administrative remedies and the time in which to exhaust has expired, it is proper for
the court to dismiss the complaint with prejudice because any attempt to exhaust would be
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futile.”) (citing Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004)), report and recommendation
adopted, 2024 WL 1218983 (N.D.N.Y. Mar. 21, 2024), appeal dismissed, No. 24-1156, 2024
WL 4677424 (2d Cir. Aug. 28, 2024).
The Court need not address Defendant’s other arguments because summary judgment is
being recommended based upon Plaintiff’s failure to exhaust administrative remedies. See, e.g.,
Donald v. Leonard, No. 9:22-CV-793 (BKS/PJE), 2025 WL 2933340, at *12 (N.D.N.Y. Feb. 25,
2025) (same), report and recommendation adopted, 2025 WL 2582802 (N.D.N.Y. Sept. 8,
2025).
IV. 	CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED that Defendant’s motion for summary judgment, Dkt. No. 28, be
GRANTED; and it is further
RECOMMENDED that Plaintiff’s complaint, Dkt. No. 1, be DISMISSED WITH
PREJUDICE; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation
and Order, along with copies of the unpublished decisions cited herein in accordance with the
Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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.6 Such objections shall be filed with the Clerk of
6 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 and 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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the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)
(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: December 8, 2025
Syracuse, New York
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