Celado v. Sorrell et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________________________
Jeurin Celado,
Plaintiff,
v. 9:24-CV-734
(AMN/MJK)
J. Poirier.
Defendant.
__________________________________________________________________
Jeurin Celado, Plaintiff, pro se
Forrest T. Young, Esq., Asst. U. S. Attorney, for Defendants
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Anne M. Nardacci, U.S. District Court Judge:
ORDER & REPORT-RECOMMENDATION
United States District Court Judge Anne M. Nardacci referred
Poirier’s Fed. R. Civ. P. 12(b)(6) motion to the Court for report and
recommendation.1 At Poirier ’s request, the Court converted the 12(b)(6)
motion, under Fed. R. Civ. P. 12(d), to a Rule 56 motion for summary
judgment. (Dkt. 30). In this pro se civil rights action, Celado alleges that
Poirier violated his Eighth Amendment rights when Poirier placed
Celado in a cell with another incarcerated person and urged the
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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incarcerated individual to sexually assault Celado. For the following
reasons, this Court recommends granting Poirier summary judgment.
I. BACKGROUND
A. Facts
FCI Ray Brook staff transferred Celado to a Special Housing Unit
after Celado told another staff member that he intended to report her
for locking him in a cell for two hours without food or water.
(Complaint, Dkt. 1, at pg. 5). While Celado was caged in a Special
Housing Unit, Poirier told Celado that he “was gonna make sure” he
lives “in hell here.” (Id. at pg. 6). Sometime later, Poirer told Celado
that he knew what Celado needed: Poirier then said he would place
another incarcerated individual, “Great,” in Celado’s cell. (Id.). Because
Celado was suffering from jaundice, nausea, vomiting, and abdominal
pain, Poirer knew that Celado could not defend himself. (Id.). Poirier
instructed Great to rape Celado. (Celado Response, Dkt. 26, pg. 2-3, at ¶
4). Great raped Celado multiple times as Poirier watched and laughed.
(Celado Response, Dkt. 26, pg. 3, at ¶4).
B. Procedural History
On June 4, 2024, Celado began this lawsuit by filing a Complaint
and moving for leave to proceed in forma pauperis. (Complaint, Dkt. 1).
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Judge Nardacci granted Celado’s request to proceed in forma pauperis,
reviewed the Complaint under 28 U.S.C. §1915, and dismissed all of
Celado’s claims except his Eighth Amendment claim against Poirier.
(June 16, 2024, Decision and Order, Dkt. 8). Unsure how to construe the
claim, Judge Nardacci left room for this Court to construe Poirier’s
Eighth Amendment claim as either an excessive-force or a failure-to-
protect claim. (Id. at pgs. 13-14). Now, Poirier moves to dismiss Celado’s
claim arguing: (1) Celado failed to exhaust the administrative remedies
available to him, and (2) the District Court should not create a new
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)
remedy for Celado.
At Poirier’s request, this Court converted the motion to dismiss to
a motion for summary judgment. (Dkt. 30). The Court then gave Celado
an opportunity to provide the Court with any document that he has to
support his claim. (Dkts. 30, 35, 37). Celado has not provided this Court
with any additional documentation.
II. STANDARD OF REVIEW
Summary Judgment
“Summary judgment is appropriate only if the movant shows that
there is no genuine issue as to any material fact.” Tolan v. Cotton, 572
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U.S. 650, 656-57 (2014) (cleaned up). When deciding if there is a
genuine issue of material fact, courts “must view the evidence in the
light most favorable to the” non-moving party. Id. at 656 (cleaned up).
Likewise, courts must “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing
summary judgment.” Kessler v. Westchester County Dep’t of Social
Services, 461 F.3d 199, 206 (2d Cir. 2006). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.” CILP Assocs., L.P. v.
Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) “When
the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec., 475 U.S. at 586. “The
nonmoving party may not rely on mere conclusory allegations nor
speculation but instead must offer some hard evidence showing that its
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version of the events is not wholly fanciful.” D’Amico v. City of New
York, 132 F.3d 145,149 (2d Cir. 1998) (cleaned up).
“If the defendant in a run-of-the-mill civil case moves for summary
judgment,” judges “must ask” themselves “not whether” they “think the
evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). “A court cannot credit a plaintiff’s
merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012).
III. DISCUSSION
The Court recommends granting Poirier summary judgment. The
Court recommends the District Court find that FCI Ray Brook
maintained a grievance system at the time of the underlying incident,
Celado knew of the grievance process, Celado knew how to use the
grievance system, and Celado failed to grieve the issue he now raises.
With that, this Court recommends the District Court grant summary
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judgment on the exhaustion issue. But if the District Court disagrees
and reaches the second issue, it should still grant summary judgment.
This Court recommends the District Court find that Celado’s case
presents a new Bivens context and special factors prevent the District
Court from inferring a new Bivens cause of action. As a result, this
Court recommends the District Court grant Porier summary judgment
as to Celado’s Bivens claim.
A. The District Court should dismiss Celado’s case because he
failed to exhaust the FCI Ray Brook’s remedies available to
him.
The District Court should dismiss Celado’s case. Incarcerated
individuals must exhaust the administrative remedies available to
them before filing a lawsuit about prison life in federal court. Celado
failed to do so. As a result, this Court recommends the District Court
dismiss Celado’s case.
The Prison Litigation Reform Act (PLRA) governs federal civil
rights litigation by inmates. Under the PLRA, “no 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
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available are exhausted.” 42 U.S.C. § 1997e(a) (cleaned up). “The
PLRA’s exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes.”
Porter v. Nussle, 534 U.S. 516, 532 (2002) (cleaned up). “Exhaustion is
mandatory—unexhausted claims may not be pursued in federal court.”
Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (citations omitted).
To exhaust administrative remedies, an incarcerated individual must
complete all administrative review procedures according to the rules
applicable to the institution in which they are confined. Jones v. Bock,
549 U.S. 199, 218 (2007). “Untimely or otherwise procedurally defective
attempts to secure administrative remedies do not satisfy the PLRA’s
exhaustion requirement.” Ruggiero v. County of Orange, 467 F.3d 170,
176 (2d Cir. 2006) (cleaned up).
The PLRA’s exhaustion requirement does not apply if the remedy
is not functionally available to the incarcerated individual. See Ross v.
Blake, 578 U.S. 632, 642 (2016). There are three “circumstances in
which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. at 643.
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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. (citation omitted).
Second, “an administrative scheme” is unavailable, when it is “so
opaque that it becomes, practically speaking, incapable of use.” Id. at
643-644. “When an administrative process is susceptible of multiple
reasonable interpretations” the incarcerated individual “should err on
the side of exhaustion.” Id. at 644. “But when a remedy is . . .
essentially ‘unknowable’—so that no ordinary prisoner can make sense
of what it demands—then it is also unavailable.” Id. (citation omitted).
Third, an administrative procedure is unavailable when “prison
administrators thwart” incarcerated persons “from taking advantage of
a grievance process through machination, misrepresentation, or
intimidation.” Id.
FCI Ray Brook has a four-step grievance process. See Gonzalez v.
Hasty, 651 F.3d 318, 323 (2d Cir. 2011). At step one, incarcerated
persons must “present an issue of concern informally to staff.” 28 C.F.R.
§542.13(a). If FCI Ray Brook’s staff fail to fix the issue, the incarcerated
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person must then move to step two. At step two, incarcerated persons
must submit “a formal written Administrative Remedy Request,” to the
Warden “on the appropriate form (BP-9)” 20 days after the underlying
event occurred. 28 C.F.R. §542.14(a). If the incarcerated person is not
satisfied with the Warden’s response to their formal request, they must
move to step three. At step three, incarcerated persons must “submit an
appeal on the appropriate form (BP-10) to the appropriate Regional
Director within 20 calendar days of the date the Warden signed the
response.” 28 C.F.R. 542.15(a). If the incarcerated individual is
unsatisfied with the Regional Director’s response, they must move to
the final step. At step four, incarcerated persons must “submit an
appeal on the appropriate form (BP-11) to the General Counsel within
30 days of the date the Regional Director signed the response.” Id. Once
the incarcerated person has followed all these steps, courts can find that
the incarcerated person has exhausted the administrative remedies
available to them. See Cohen v. United States, No. 23-CV-08099, 2025
WL 2611680, at *8 (S.D.N.Y. Sept. 9, 2025) (noting that incarcerated
persons “may file an action in federal court only after these four steps
have been completed”).
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Celado did not exhaust the administrative remedies available to
him. To start, FCI Ray Brook maintained a grievance system that
Celado used in January 2024. See (Magnusson Decl. Exh. A, Dkt. 19-2,
at pg. 2). Assuming Celado submitted several informal complaints to
FCI Ray Brook staff, as he alleges, there is no evidence he submitted a
formal written Administrative Remedy Request. See id. Celado knew
how to submit a grievance but failed to do. See id. In other words,
Celado failed to access step two of FCI Ray Brook’s grievance procedure.
See 28 C.F.R. §542.14(a). In consequence, Celado did not exhaust the
administrative procedures available to him.
Celado’s counter argument on this score is unpersuasive. Celado
argues that he submitted “several grievance forms within the
appropriate time frames” but FCI Ray Brook staff “failed to do their job
and file the submitted forms.” (Celado Response, Dkt. 26, pg. 2, at ¶¶2-
3) (cleaned up). That argument fails for two reasons. First, Celado’s
unsupported allegations that the grievances were misplaced are
insufficient to deny summary judgment. See, e.g., Sankara v.
Montgomery, No. 16-CV-885 (FJS/TWD), 2018 WL 4610686, at *8
(N.D.N.Y. June 25, 2018) (cleaned up) (“Plaintiff’s conclusory
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accusations that the DOCCS IGP was unavailable to him because his
grievances were not sent to the grievance office by the officers who
picked them up and because he did not receive a response from CORC,
unsupported by evidence, are insufficient to withstand summary
judgment.”). Second, Celado still needed to complete the grievance
process even if he did not receive any response. See, e.g., Midalgo v.
Bass, 03-CV-1128 (NAM/RFT), 2006 WL 2795332, at *7 (N.D.N.Y. 2006)
(holding that the plaintiff was required to seek an appeal to the
superintendent, even though he never received a response to his
grievance). Thus, the District Court should reject Celado’s counter
arguments.2
The Court should grant Poirer summary judgment. Celado failed
to exhaust the administrative remedies available to him, and his
argument that the grievance program was unavailable to him is
unpersuasive. Finally, Celado does not allege that his failure to exhaust
is so interwoven with the facts of the case that a fact finder must
2 The document Celado attaches to his Complaint is a Federal Torts Claim Act
request for damages. That does not satisfy the PLRA’s exhaustion requirement.
McDowall v. Metro. Corr. Ctr., No. 8-CV-8329, 2010 WL 649744, at *4 n.2 (S.D.N.Y.
Feb. 22, 2010) (stating that “[t]he exhaustion requirements under the PLRA and the
FTCA differ”).
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answer the exhaustion question. Celado’s failure to exhaust or persuade
the Court that his failure to exhaust falls into an exception is fatal to
his claim. In consequence, the District Court should grant Poirer
summary judgment and dismiss Celado’s Complaint.
B. The District Court should reject Celado’s request to extend
Bivens to excessive force/failure to protect claims.
If the District Court reaches this issue, it should deny Celado’s
Bivens claim. Celado’s claim presents a new Bivens context and special
factors prevent the Judiciary from extending Bivens. As a result, this
Court recommends the District Court grant Poirier summary judgment
as to Celado’s Bivens claim.
“Bivens provides a cause of action for damages against federal
officials for a limited set of constitutional torts.” Ballard v. Dutton, No.
23-6416-PR, 2024 WL 4039606, at *1 (2d Cir. 2024) (summary order).
To decide whether they should undertake the disfavored judicial
activity of creating a new Bivens cause of action, courts apply a two-step
test. Egbert v. Boule, 596 U.S. 482, 492 (2022). First, courts “ask
whether the case presents a new Bivens context.” Id. (cleaned up).
Second, courts ask whether “there are special factors indicating that the
Judiciary is at least arguably less equipped than Congress to weigh the
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costs and benefits of allowing a damages action to proceed.” Id. (cleaned
up) “If there is even a single reason to pause before applying Bivens in a
new context, a court may not recognize a Bivens remedy.” Id. (cleaned
up).
1. Celado’s claim presents a new Bivens context.
As to the first step, a case presents a new Bivens context if it is
“meaningfully different from the three cases in which” the Supreme
Court “has implied a damages action.” Id. “A case might differ in a
meaningful way because of the rank of the officers involved; the
constitutional right at issue; the generality or specificity of the official
action; the extent of judicial guidance as to how an officer should
respond to the problem or emergency to be confronted; the statutory or
other legal mandate under which the officer was operating; the risk of
disruptive intrusion by the Judiciary into the functioning of other
branches; or the presence of potential special factors that previous
Bivens cases did not consider.” Ziglar v. Abbasi, 582 U.S. 120, 139–40,
(2017).
There are “only three contexts in which a Bivens remedy is
available: unreasonable search and seizure by federal officials in
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violation of the Fourth Amendment, Bivens, 403 U.S. 388; gender-based
employment discrimination by a United States Congressman in
violation of the Fifth Amendment, Davis v. Passman, 442 U.S. 228
(1979); and federal prison officials’ deliberate indifference to an
inmate’s serious medical needs in violation of the Eighth Amendment,
Carlson v. Green, 446 U.S. 14 (1980).” Ballard, 2024 WL 4039606, at *1.
Celado’s case presents a new Bivens context. Again—“a case might
differ in a meaningful way because of . . . the constitutional right at
issue.” Abassi, 582 U.S. 139-40 (cleaned up). And the only Eighth
Amendment claim that the Supreme Court has expressly determined
provides a Bivens remedy is a deliberate indifference to medical needs
claim. Ballard, 2024 WL 4039606 at *1. So construing Celado’s
Complaint as alleging an excessive force claim, Celado’s claim presents
a new Bivens context. See Goldey v. Fields, 606 U.S. 942, 944 (2025) (per
curiam) (holding that the incarcerated plaintiff’s Eight Amendment
excessive-force claim presents a new Bivens context). Construing
Celado’s claim as an Eighth Amendment failure-to-protect claim leads
to the same result. “Eighth Amendment failure-to-protect claim[s are]
meaningfully different from the Eighth Amendment [deliberate
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indifference to an inmate’s serious medical needs] claim in Carlson.”
Ballard, 2024 WL 4039606, at *2. At bottom, Celado’s case presents a
new Bivens context.
Even if the Court were to dive into Carlson’s facts and analogize
them to Celado’s case, it would find the two cases distinguishable.
In Carlson, the estate of a deceased incarcerated person sued
federal prison officials alleging that the incarcerated individual died
because of injuries caused by the prison officials. 446 U.S. at 14.
Specifically, the decedent, who was plagued with chronic asthma,
suffered an asthma attack, prison staff admitted him to the prison
hospital, but no doctor saw him because no doctor was on duty. See
Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978). The non-licensed-
nurse defendant deserted the decedent to dispense medication
elsewhere in the hospital. Id. When the non-licensed-nurse returned,
they attempted to use a respirator, which they knew was broken, on the
decedent. Id. The decedent told the non-licensed-nurse that the
respirator made his breathing worse. Id. The non-licensed-nurse then
twice injected the decedent with a drug, and the second shot caused the
decedent to suffer respiratory arrest. Id. The non-licensed-nurse
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defendant and other staff members tried administering electric jolts to
the decedent, but neither staff member knew how to use the machine.
Id. The decedent died soon after. Id.
Celado’s case is unlike Carlson. Celado argues that Poirier
ordered Great to rape Celado and Great did so. Id. In Carlson, the non-
licensed-nurse defendant engaged in the conduct that caused the
decedent’s death. See Green, 581 F.2d at 671. But here, Celado alleges
that Poirier only instigated the harmful conduct. (Complaint, Dkt. 1, at
pg. 6); (Celado Response, Dkt. 26, pg. 2-3, at ¶4). That is a meaningful
difference. See Abassi, 582 U.S. at 139-40 (“A case might differ in a
meaningful way because of . . . the generality or specificity of the official
action”). Beyond that, the claim in Carlson (deliberate indifference to
serious medical needs) is different from Celado’s claims (excessive
force/failure to protect), and the staff involved in the underlying
incident is Carlson (non-licensed nurse) is different from the staff
involved in the underlying incident here (correctional officer). See id.;
see also Green, 581 F. 2d at 671; (Complaint, Dkt, 1 at pg. 6). In short,
Carlson is distinguishable from this case. And because that’s so,
Celado’s case presents a new Bivens context.
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2. The District Court cannot create a new Bivens remedy for
Celado because there is an alternative remedial structure.
As to the second step, “if there is an alternative remedial structure
present in a certain case, that alone may limit the power of the
Judiciary to infer a new Bivens cause of action.” Abassi, 582 U.S. at 137.
It does not matter which political branch has created the remedy. If
“Congress already has provided, or has authorized the Executive to
provide, an alternative remedial structure” that alone “is reason enough
to limit the power of the Judiciary to infer a new Bivens” remedy.
Egbert, 596 U.S. at 493.
There is an alternative remedial structure in Celado’s case. The
“grievance process, which did not exist at the time Carlson was decided,
is the type of alternative remedial structure that prevents [courts] from
fashioning a Bivens cause of action.” Ballard, 2024 WL 4039606, at *2.
As established earlier, FCI Ray Brook has a functioning grievance
process and Celado knew how to access it. See 28 C.F.R. 542.10; see also
(Magnusson Decl. Exh. A, Dkt. 19-2, at pg. 2). Thus, there is an
alternative remedial structure in Celado’s case. And that alternative
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remedial structure—the grievance process—prevents the District Court
from creating a new Bivens cause of action. Egbert, 596 U.S. at 493.3
Celado’s reliance on Farmer v. Brennan, 511 U.S. 825 (1994) is
misplaced. Construing Celado’s Complaint and response papers as
raising its strongest possible argument, Celado argues that his case
does not present a new Bivens context because Farmer recognized a
Bivens cause of action for Eighth Amendment failure-to-protect claims.
See (Complaint, Dkt. 1, at pg. 1).4 That argument may convince a court
at step one. But it fails at step two. The fact that there is grievance
process is sufficient to deny extending Bivens to Celado’s case. See
Ballard, 2024 WL 4039606 at *2 (As noted, the existence of the PLRA’s
grievance process, an alternative remedial structure established after
3 The Prison Rape Elimination Act (PREA) also provides another alternative
remedy to Celado. See Morgan v. Shivers, No. 1:14-CV-7921-GHW, 2018 WL
618451, at *7 (S.D.N.Y. Jan. 29, 2018) (finding that PREA demonstrates
“[c]ongressional action in this area” which “suggests that the Judiciary should
hesitate before creating a remedy in this case).
4 See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)
(“On occasions too numerous to count, we have reminded district courts” that a pro
se plaintiff's pleadings must be construed liberally); Phillips v. Girdich, 408 F.3d
124, 130 (2d Cir. 2005) (“We leave it for the district court to determine what other
claims, if any, [plaintiff] has raised. In so doing, the court's imagination should be
limited only by [plaintiff's] factual allegations, not by the legal claims set out in his
pleadings.”); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (“[W]e read [a pro se
litigant's] supporting papers liberally, and will interpret them to raise the strongest
arguments that they suggest.”).
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Farmer was decided, is a “special factor[ ] that previous Bivens cases” —
including, arguendo, Farmer — “did not consider” and constitutes the
type of meaningful difference that, in any event, counsels against
extending Bivens to the [failure-to-protect] case at hand”). Thus, Farmer
does not compel extending Bivens.
* * *
To end, Celado’s excessive force or failure to protect claim presents
a new Bivens context, failing step one. FCI Ray Brooks’s grievance
procedure is a special factor that prevents the District Court from
creating a new Bivens remedy, failing step two. In consequence, this
Court recommends that the District Court, should it reach this issue,
grant Poirier summary judgment.
C. The Court does not address Poirier’s Qualified Immunity
argument.
Poirier argues that if the Court finds his actions unconstitutional,
qualified immunity shields him from liability. Because the Court is
recommending that the Court grant Poirier summary judgment on
other grounds, it need not reach the qualified immunity argument. See
Cisse v. Bishop, No. 22-CV-156 (TJM/MJK), 2025 WL 935237, at *21
(N.D.N.Y. Feb. 26, 2025) (cleaned up).
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IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court GRANT Poirier
summary judgment (Dkt. 19) because Celado failed to exhaust the
administrative remedies; alternatively it is
RECOMMENDED, that the District Court GRANT Poirier
summary judgment (Dkt. 19) because Celado cannot establish that
Bivens should be extended to his case; and it is
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1), 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
(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
Dated: February 17, 2026
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Ballard v. Dutton, Not Reported in Fed. Rptr. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4039606
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Antonio T. BALLARD, Plaintiff-Appellee,
v.
L. DUTTON, Lieutenant, Defendant-Appellant.
No. 23-6416-pr
|
September 4, 2024
Appeal from an order of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District
Court is REVERSED and the case is REMANDED with instructions to dismiss the complaint.
Attorneys and Law Firms
FOR DEFENDANT-APPELLANT: Casen B. Ross, Civil Division, Appellate Staff, United States Department of Justice,
Washington, DC (Brian M. Boynton, Barbara L. Herwig, Laura E. Myron, Department of Justice; Carla B. Freedman, United
States Attorney for the Northern District of New York, on the brief)
FOR PLAINTIFF-APPELLEE: Gregory Cui (Devi M. Rao, on the brief), Roderick & Solange MacArthur Justice Center,
Washington, DC
PRESENT: ROBERT D. SACK, RAYMOND J. LOHIER, JR., MARIA ARAÚJO KAHN, Circuit Judges.
SUMMARY ORDER
*1 Defendant Lucas Dutton appeals from an order of the United States District Court for the Northern District of New York
(Kahn, J.) denying his motion to dismiss Antonio Ballard's Eighth Amendment failure-to-protect claim brought pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). On interlocutory appeal, Dutton
argues that the District Court erred in holding that Bivens provides a cause of action for Ballard's claim and in denying Dutton
qualified immunity. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which
we refer only as necessary to explain our decision to reverse.
Proceeding pro se, Ballard sued Dutton, a lieutenant at the Federal Correctional Institution, Ray Brook (“FCI Ray Brook”),
for failing to protect him from an assault by another inmate. Shortly after Ballard arrived at FCI Ray Brook, and after alerting
authorities that he had been assaulted at previous correctional facilities, several inmates threatened to assault him because he
was a convicted sex offender. A few weeks later, on August 29, 2021, Ballard met with Dutton to request protective custody
because of these threats. Dutton denied his request. Later that day, after returning to the general population housing unit, Ballard
was assaulted by one of the inmates who had threatened him.
The District Court concluded that Ballard could seek a Bivens remedy for his failure-to-protect claim and that Dutton was not
entitled to qualified immunity at this stage of litigation. On de novo review, see Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir.
2008), we conclude that Ballard has no Bivens remedy under the circumstances of this case and that the District Court therefore
erred in denying Dutton's motion to dismiss. 1
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Bivens provides a cause of action for damages against federal officials for a limited set of constitutional torts. See Egbert
v. Boule, 596 U.S. 482, 490–91 (2022). The Supreme Court has expressly recognized only three contexts in which a Bivens
remedy is available: unreasonable search and seizure by federal officials in violation of the Fourth Amendment, Bivens, 403 U.S.
388; gender-based employment discrimination by a United States Congressman in violation of the Fifth Amendment, Davis
v. Passman, 442 U.S. 228 (1979); and federal prison officials’ deliberate indifference to an inmate's serious medical needs in
violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980). See Ziglar v. Abbasi, 582 U.S. 120, 130–31 (2017).
Since Carlson, however, the Supreme Court has repeatedly declined to extend Bivens, warning that “recognizing a cause of
action under Bivens is ‘a disfavored judicial activity.’ ” Egbert, 596 U.S. at 491 (quoting Abbasi, 582 U.S. at 135).
*2 Before recognizing a Bivens cause of action here, we first ask whether Ballard's claim “is different in a meaningful way from
previous Bivens cases” and therefore “presents a new Bivens context.” Abbasi, 582 U.S. at 139. A case may be meaningfully
different if it involves, among other things, “the presence of potential special factors that previous Bivens cases did not consider.”
Id. at 139–40. If the case presents a new Bivens context, we then determine “whether there are any special factors that counsel
hesitation about granting the extension.” Hernández v. Mesa, 589 U.S. 93, 102 (2020) (cleaned up). This includes whether
Congress has provided an “alternative remedial structure” for the alleged wrong. Abbasi, 582 U.S. at 137. Ultimately, this
analysis “resolve[s] to a single question: whether there is any reason to think that Congress might be better equipped to create
a damages remedy.” Egbert, 596 U.S. at 492.
While we are sympathetic to Ballard's claim, we conclude that Congress is better equipped to create a damages remedy here.
Ballard's Eighth Amendment failure-to-protect claim is meaningfully different from the Eighth Amendment claim in Carlson
and therefore “presents a new Bivens context.” Abbasi, 582 U.S. at 139; see also Hernández, 589 U.S. at 103 (“A claim
may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages
remedy was previously recognized.”). Special factors not present in prior Bivens cases distinguish Ballard's claim and “counsel
hesitation about” extending Bivens to it. Hernández, 589 U.S. at 102 (cleaned up). Most importantly, the Executive branch,
through the Bureau of Prisons, provides an administrative grievance process for inmates to lodge complaints about their
confinement. See Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996); see also 28 C.F.R.
§ 542.10. This grievance process, which did not exist at the time Carlson was decided, is the type of “alternative remedial
structure[ ]” that prevents us from fashioning a Bivens cause of action here. See Egbert, 596 U.S. at 493 (“If there are alternative
remedial structures in place, that alone ... is reason enough to limit the power of the Judiciary to infer a new Bivens cause of
action.” (quotation marks omitted)). We are therefore compelled to conclude that Ballard has no Bivens cause of action.
Urging a contrary conclusion, Ballard insists that the Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994), recognized a
Bivens cause of action for Eighth Amendment failure-to-protect claims, and accordingly, that his claim does not present a new
context. In Farmer, the Supreme Court noted that the plaintiff had brought a Bivens claim. Id. at 830. Without discussing whether
Bivens supplied a cause of action, however, the Court proceeded to analyze the merits of the claim. See id. at 832. The Supreme
Court could reach the merits of the claim, Ballard argues, only if it concluded that the plaintiff had a Bivens cause of action.
On its face, this argument contradicts the Supreme Court's repeated observation that the only three cases in which it has
recognized a Bivens remedy are Bivens itself, Davis, and Carlson. See, e.g., Abbasi, 582 U.S. at 131; Hernández, 589 U.S. at
99; Egbert, 596 U.S. at 490–91. Ballard suggests, however, that there is no real contradiction. In Ballard's view, Farmer may
have been excluded from that list because the Supreme Court did not view it as distinct from the claim in Carlson. But we
need not, and therefore do not, decide whether Farmer assumed, recognized, or otherwise presented a variation of an already
recognized Bivens claim. As noted, the existence of the PLRA's grievance process, an alternative remedial structure established
after Farmer was decided, is a “special factor[ ] that previous Bivens cases” — including, arguendo, Farmer — “did not
consider” and constitutes the type of meaningful difference that, in any event, counsels against extending Bivens to the case
at hand. Abbasi, 582 U.S. at 140.
*3 For the foregoing reasons, the order of the District Court is REVERSED and the case is REMANDED with instructions
to dismiss the complaint.
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All Citations
Not Reported in Fed. Rptr., 2024 WL 4039606
Footnotes
1 We have appellate jurisdiction to review Dutton's Bivens argument on interlocutory appeal under Wilkie v. Robbins, 551
U.S. 537, 549 n.4 (2007). Because we resolve this case on Bivens grounds, we need not address Dutton's argument that
he is entitled to qualified immunity.
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2025 WL 935237
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ali CISSÉ, Plaintiff,
v.
Reginald BISHOP, et al., Defendants.
9:22-CV-156 (TJM/MJK)
|
Signed February 26, 2025
Attorneys and Law Firms
ALI CISSÉ, Pro SE.
NICHOLAS W. DORAND, ESQ., Asst. Attorney General for Defendants.
RACHEL S. OUIMET, ESQ. Asst. Attorney General for Defendants.
ORDER and REPORT-RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge
*1 TO THE HONORABLE THOMAS J. McAVOY, Senior United States District Judge:
In this pro se civil rights action, plaintiff alleges violations of his First, Fourteenth, and Ninth Amendment rights arising
from his incarceration at the Clinton Correctional Facility (“Clinton C.F.”) and Great Meadow Correctional Facility (“Great
Meadow C.F.”). Presently before this court is: (a) Defendant Collins's motion for summary judgment arising from Plaintiff's
First Amendment retaliation claim; (b) Defendants Bishop, Fraser, Caringi, Miller, Lovett, Gross, Collins, Dill-Lewis's motion
for summary judgment arising from Plaintiff's Fourteenth Amendment procedural due process claim stemming from his
placement in the Special Housing Unit (“SHU”) at Great Meadow CF; (c) Defendants Henley, Murphy, and Barbosa's motion for
summary judgment arising from Plaintiff's Fourteenth Amendment procedural due process claim stemming from three separate
disciplinary hearings; and (d) Defendants Deans and Bishop's motion for summary judgment arising from Plaintiff's Ninth
Amendment “Right to Privacy” claim against them. (Dkt. No. 68).
This matter has been referred to me for Report and Recommendation by Senior United States District Judge McAvoy, pursuant
to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule (“Local Rule”) 72.3(c). For the following reasons, this court recommends that
the motion for summary judgment be granted and that the complaint be dismissed in its entirety with prejudice.
DISCUSSION
I. PROCEDURAL HISTORY
Plaintiff commenced this action on February 17, 2022 by filing a complaint (Dkt. No. 1).
By Decision and Order dated April 21, 2022, Senior United States District Judge McAvoy accepted Plaintiff's complaint for
filing only to the extent that it asserted the following claims: (a) retaliation against Defendant Collins; (b) excessive force
against Defendant Doe 1; (c) due process against Defendants Bishop, Frazer, Caringi, Miller, Lovett, Gross, Collins, Dill-Lewis,
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Henry, Murphy, and Barbosa; and (d) violation of privacy rights against Defendants Deans and Bishop. (Dkt. No. 4, pg. 28). All
other claims, including those asserted against the Defendants in their official capacities were dismissed without prejudice. (Id.).
Finally, Judge McAvoy ordered Plaintiff to take reasonable steps through discovery to ascertain the identity of Doe 1 against
whom Plaintiff's excessive force claim was asserted arising from his transport from Clinton C.F. to Great Meadow C.F. on April
16, 2021. (Id., pg. 30). Plaintiff was warned that his failure to timely serve Doe 1 would result in dismissal of the excessive
force claim and termination of Doe 1 from the action. 1
By letter motion dated April 27, 2022, Plaintiff requested a thirty-day extension of Judge McAvoy's April 21, 2022 directive
that he submit: (a) twelve complete copies of the complaint (or pay $222.00, which comprises the court's $0.50/page copying
fee of Plaintiff's thirty-seven-page complaint); (b) twelve completed USM-285 forms; and (c) a certified check or money order,
payable to the Clerk of the Northern District of New York, in the amount of $96.00, which constitutes the $8.00/Defendant
service fee. Plaintiff also requested that counsel be appointed for him. (Dkt. No. 5). Both of Plaintiff's requests were denied by
Judge McAvoy's May 2, 2022, Decision and Order. (Dkt. No. 6).
*2 By letter dated May 4, 2022 (Dkt. No. 7), Plaintiff asked Judge McAvoy to reconsider his May 2, 2022, Decision and Order
(Dkt. No. 6). On May 10, 2022, Judge McAvoy denied Plaintiff's request. (Dkt. No. 8).
By letter motion dated July 26, 2022, counsel for Defendants requested an extension of time to answer the complaint. (Dkt. No.
23). The court granted Defendants’ request. (Dkt. No. 24).
On February 17, 2023, Defendants submitted a letter motion requesting an extension of the discovery deadline. (Dkt. No. 33).
Defendants’ request was granted on February 17, 2023. (Dkt. No. 34).
On June 13, 2023, Plaintiff filed a motion to amend his complaint (Dkt. No. 42), and on June 13, 2023, Defendants filed a letter
motion requesting that the dispositive motion deadline be held in abeyance pending Plaintiff's motion to amend. (Dkt. No. 43).
The Court granted Defendants’ June 13, 2023, letter motion. (Dkt. No. 44).
Plaintiff filed a letter motion on June 15, 2023 requesting a “default” (Dkt. No. 45) which the court interpreted as a “motion
for discovery sanctions” (Dkt. 47). On June 30, 2023, Defendants filed their response to Plaintiff's motion for a “default” and
motion to amend. (Dkt. No. 46). On August 3, 2023, Defendants made an additional filing in response to Plaintiff's discovery
motion. (Dkt. No. 49). Plaintiff filed a reply to his motion to amend on August 16, 2023. (Dkt. No. 52).
On July 31, 2023, Plaintiff filed a letter motion for injunctive relief. (Dkt. No. 48). Defendants filed their response to Plaintiff's
motion for injunctive relief on August 3, 2023 (Dkt. No. 50) and on August 25, 2023, Plaintiff filed a response to his motion
for injunctive relief (Dkt. No. 54).
On August 31, 2023, Judge McAvoy issued a Decision and Order: (a) denying Plaintiff's motion to amend (Dkt. No. 42), (b)
denying Plaintiff's motion for “default” (Dkt. No. 45), and (c) denying Plaintiff's motion for injunctive relief (Dkt. No. 48).
(Dkt. No. 55).
Discovery is closed and Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. Nos. 68 through
68-18). Plaintiff filed a response (“Response”) in opposition to Defendants’ motion (Dkt. No. 80) and Defendants filed a reply
(Dkt. No. 86).
II. FACTS
On April 12, 2021, at approximately 8:20 P.M., in the phone area of the North Yard at Clinton C.F. Correction Officer (“C.O.”)
Mesunas was struck multiple times in the head, causing serious and life-threatening injuries that rendered C.O. Mesunas
unconscious. (Defendants’ Statement of Material Facts (“SOMF”), ¶ 1, Dkt. No. 68-2; Henley Declaration (“Henley Decl.”),
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Exh. “A,” p. 29, Dkt. No. 68-14). On or about April 16, 2021, and after an investigation by officers from Clinton C.F. and the
New York State Police Bureau of Criminal Investigations (“BCI”), Plaintiff was identified as C.O. Mesunas's attacker. (SOMF,
¶ 2, Dkt No. 68-2; Bishop Declaration (“Bishop Decl”), ¶ 8, Dkt. No. 68-9).
On April 16, 2021, Plaintiff was issued a misbehavior report (“April 16, 2021 Misbehavior Report”) charging him with Violent
Conduct (104.11), Assault on Staff (100.11), Interference with an Employee (107.10), Creating a Disturbance (104.13) and
Disorderly Conduct (100.15). (SOMF, ¶ 3, Dkt. No. 68-2; Bishop Decl., ¶ 8, Dkt. No. 68-9; Henley Decl., Exh. “A,” p. 29, Dkt.
No. 68-14). As a result, Deputy Superintendent of Security for Clinton C.F., Defendant Bishop, approved Plaintiff's confinement
in Clinton C.F.’s SHU pending a disciplinary hearing. (SOMF, ¶ 4, Dkt. No. 68-2; Bishop Decl., ¶ 8, Dkt. No. 68-9). Defendant
Bishop approved Plaintiff's confinement in SHU because Plaintiff's alleged actions posed a substantial risk to the safety and
security of the facility, and the staff determined that Plaintiff was at potential risk of reprisal. (SOMF, ¶ 5, Dkt. No. 68-2; Bishop
Decl., ¶¶ 8-9, Dkt. No. 68-9).
*3 On April 16, 2021, the same day that he was confined in Clinton C.F.’s SHU, Plaintiff was transferred to Great Meadow C.F.
for safety and security reasons. (SOMF, ¶ 6, Dkt. No. 68-2; Bishop Decl., ¶ 11, Dkt. No. 68-9). Upon his arrival, Plaintiff was
screened by Great Meadow C.F.’s mental health staff. (SOMF, ¶ 7, Dkt. No. 68-2; Caringi Declaration (“Caringi Decl.”), ¶ 10,
Dkt. No. 68-10). Defendant Caringi elected not to divert Plaintiff to the Behavioral Health Unit (“BHU”) because of the recency
of the attack, and Defendant Caringi's belief that Plaintiff was still considered a substantial risk to facility staff and himself. (Id.,
SOMF, ¶ 8, Dkt. No. 68-2; Caringi Decl. at ¶ 10, Dkt. No. 68-10). Instead, Plaintiff was transferred to Great Meadow C.F.’s
SHU. (SOMF, ¶ 9, Dkt. No. 68-2; Caringi Decl., ¶¶ 9, 11, Dkt. No. 68-10). Due to his mental health level, Plaintiff received a
higher level of care than other incarcerated individuals housed in SHU. (Id.). Plaintiff was visited by mental health professionals
and given appropriate medication and care during his in SHU. (SOMF, ¶ 10, Dkt. No. 68-2; Caringi Decl., ¶ 11, Dkt. No. 68-10).
While there, Plaintiff received showers three days every week and had a working sink and toilet facilities in his cell. (SOMF,
¶ 11, Dorando Declaration (“Dorando Decl.”), Exh. “A,” pgs. 61, 67), Dkt. No. 68-17). Plaintiff was also permitted two hours
and thirty minutes of outdoor recreation on every day that he desired. (SOMF, ¶ 12, Dkt. No. 68-2; Dorando Decl., Exh. “A”,
pg. 63, Dkt. No. 68-17). Plaintiff did not encounter any issues with his regular meals and was given food in accordance with
his practices for Ramadan. (SOMF, ¶ 13, Dkt. No. 68-2; Dorando Decl., Exh. “A,” pgs. 66, 67, Dkt. No. 68-17). Great Meadow
C.F. staff, in conjunction with mental health staff, re-evaluated Plaintiff on a constant basis to ascertain his risk to facility staff.
(SOMF, ¶ 14, Dkt. No. 68-2; Caringi Decl., ¶ 13, Dkt. No. 68-10). On July 7, 2021, Plaintiff was transferred from the SHU to
the BHU. (Id.). Plaintiff was in the SHU for 87 days before being transferred to the BHU. (SOMF, ¶ 14, Dkt. No. 68-2; Collins
Declaration (“Collins Decl.”), ¶ 9, Dkt. No. 68-5).
On April 21, 2021, while Plaintiff was housed in the Great Meadow C.F. SHU, Defendant Henley commenced a Tier III
disciplinary hearing in connection with the April 16, 2021 Misbehavior Report (“Hearing No. 1”). (SOMF, ¶ 17, Dkt. No. 68-2;
Henley Decl., ¶ 14, Dkt. No. 68-14). The Tier Assistant of Plaintiff's choosing was appointed to assist him for Hearing No. 1
before Defendant Henley. (Id.). Hearing No. 1 was adjourned and was re-convened on several occasions due to the extensive
proof and the logistical difficulties presented by securing requested testimony from staff and other incarcerated individuals that
were housed at a different correctional facility. (SOMF, ¶ 18, Dkt. No. 68-2; Henley Decl., ¶ 15, Dkt. No. 68-14).
Plaintiff was present at each stage of Hearing No. 1, except when confidential testimony regarding Plaintiff's mental health
and confidential security procedures were being discussed. (SOMF, ¶ 19, Dkt. No. 68-2; Henley Decl., ¶ 15, Dkt. No. 68-14).
Defendant Henley listened to all witnesses she believed to be relevant and material, including witnesses requested by Plaintiff,
but she did not allow testimony from witnesses who were going to offer redundant or immaterial testimony. (SOMF, ¶ 20, Dkt.
No. 68-2; Henley Decl., ¶ 28, Dkt. No. 68-14). Plaintiff was permitted to raise objections throughout Hearing No. 1 which were
orally addressed by Defendant Henley during the hearing or in the written statement of disposition. (SOMF, ¶ 21, Dkt. No.
68-2; Henley Decl. at ¶¶ 29-36, Exh. “A,” pg. 21, Dkt. No. 68-14).
On July 1, 2021, following the conclusion of proof, Defendant Henley placed her findings on the record: Plaintiff was found
guilty of Violent Conduct (104.11), Assault on Staff (100.11), Creating a Disturbance (104.13), and Interference with an
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Employee (107.10). (SOMF, ¶22, Dkt. No. 68-2; Henley Decl., ¶ 37, Exh. “A,” pg. 18, Dkt. No. 68-14). Defendant Henley found
Plaintiff was not guilty of Disorderly Conduct (100.15). (SOMF, ¶ 23, Dkt. No. 68-2; Henley Decl., ¶ 37, Exh. “A,” pg. 18,
Dkt. No. 68-14). Defendant Henley sentenced Plaintiff to 654 days in the SHU, 76 days served under pre-hearing confinement
as well as 654 days’ loss of package and commissary, 30 days’ loss of tablet, privileges, and a recommended loss of good time.
(SOMF, ¶ 24, Dkt. No. 68-2; Henley Decl., ¶ 37, Exh. “A,” pg. 18, Dkt. No. 68-14). In addition to advising Plaintiff on the
record, Defendant Henley prepared a written form memorializing the disposition, the evidence relied upon, and the reasons for
the sanctions imposed. (SOMF, ¶ 26, Dkt. No. 68-2; Henley Decl., ¶ 41, Exh. “A”, pgs. 18-28, Dkt. No. 68-14). Defendant
Henley's written disposition was delivered to Plaintiff following the hearing. (SOMF, ¶ 27, Dkt. No. 68-2; Henley Decl., ¶ 41,
Exh. “A,” pgs. 18-28, Dkt. No. 68-14).
*4 On July 30, 2021, Hearing No. 1 was overturned on an administrative appeal for failure to collect testimony from potentially
relevant witnesses. (SOMF, ¶ 40, Dkt. No. 68-2; Henley Decl., ¶ 46, Dkt. No. 68-14; Murphy Decl., Exh. “A,” pg. 14, Dkt. No.
68-15). Accordingly, on August 6, 2021, a re-hearing (“Hearing No. 2”) was commenced with respect to the April 16, 2021
Misbehavior Report, which was held by Defendant Murphy. (SOMF, ¶ 41, Dkt. No. 68-2). On August 3, 2021, Plaintiff was
re-served with a copy of the April 16, 2021 Misbehavior Report. (SOMF, ¶ 42, Dkt. No. 68-2; Murphy Decl., ¶ 13, Exh. “B,”
pg. 22, Dkt. No. 68-15). Plaintiff was provided with the same Tier Assistant that was assigned to him in Hearing No. 1 who
submitted requests for documents, evidence, and witnesses on Plaintiff's behalf. (SOMF, ¶ 43, Dkt. No. 68-2; Murphy Decl.,
¶ 15, Exh. “B,” pgs. 36, 56, Dkt. No. 68-15).
Hearing No. 2 was adjourned and re-convened by Defendant Murphy on several occasions due to the extensive proof. (SOMF,
¶ 44, Dkt. No. 68-2; Murphy Decl., ¶ 16, Dkt. No. 68-15). Plaintiff was present at each stage of the hearing, except when
confidential mental health testimony and testimony from incarcerated individuals was being offered. (Id.). Defendant Murphy
listened to all relevant, material witnesses, including witnesses requested by Plaintiff, but did not allow testimony from redundant
or immaterial witnesses. (SOMF, ¶ 45, Dkt. No. 68-2; Murphy Decl., ¶ 21, Dkt. No. 68-15). Plaintiff was permitted to
raise objections throughout the hearing which Defendant Murphy addressed during the hearing or in the written statement of
disposition. (SOMF, ¶ 46, Dkt. No. 68-2; Murphy Decl., ¶ 22, Dkt. No. 68-15).
On August 18, 2021, following the conclusion of proof, Defendant Murphy placed his findings on the record: Plaintiff was found
guilty of Violent Conduct (104.11), Assault on Staff (100.11), Disorderly Conduct (100.15), Creating a Disturbance (104.13),
and Interference with an Employee (107 .10). (SOMF, ¶ 47, Dkt. No. 68-2; Murphy Decl., ¶ 23, Exh. “B,” pg. 22, Dkt. No.
68-15). Defendant Murphy sentenced Plaintiff to 606 days’ confinement in SHU, with credit for the 124 days’ confinement in
SHU pre-hearing, 40 days loss of packages and commissary, and a recommendation that he lose good time. (SOMF, ¶ 48, Dkt.
No. 68-2; Murphy Decl., ¶ 23, Exh. “B,” pg. 22, Dkt. No. 68-15). Defendant Murphy prepared a written form memorializing
the disposition, the evidence he relied upon, and the reasons for the sanctions he imposed, which was delivered to Plaintiff
following the end of the hearing. (SOMF, ¶ 50, Dkt. No. 68-2; Murphy Decl., ¶ 26, Exh. “B,” pgs. 22-32, Dkt. No. 68-15).
On October 15, 2021, Hearing No. 2 was overturned on an administrative appeal because the hearing officer did not adequately
address the denial of Plaintiff's potentially relevant request for BCI Investigators. (SOMF, ¶ 55, Dkt. No. 68-2; Murphy Decl.,
¶ 30; Murphy Decl., Exh. “B,” pg. 2, Dkt. No. 68-15). Defendant Murphy denied Plaintiff's request to call BCI Investigators
as a witness because their testimony would be duplicative of testimony already in the record since they only collected witness
statements and reviewed documents that had been used in the hearing. (SOMF, ¶ 56, Dkt. No. 68-2; Murphy Decl., ¶ 17, Dkt.
No. 68-15). Defendant Murphy did not have the authority to compel the NYSP Investigators to testify. (SOMF, ¶ 57, Dkt. No.
68-2; Murphy Decl., ¶ 17, Dkt. No. 68-17).
On October 20, 2021, a second re-hearing (“Hearing No. 3”) was commenced with respect to the April 16, 2021 Misbehavior
Report before Defendant Barbosa. (SOMF, ¶ 58, Dkt. No. 68-2, Barbosa Decl., ¶ 5, Dkt. No. 68-16). On October 19, 2023,
Plaintiff was served for a third time with a copy of the April 16, 2021 Misbehavior Report. (SOMF, ¶ 59, Dkt. 68-2; Barbosa
Decl., ¶ 12, Exh. “A,” pg. 2, Dkt. No. 68-16). Plaintiff was provided his top choice of tier assistant, who submitted requests
for documents, evidence, and witnesses on Plaintiff's behalf. (SOMF, ¶ 60, Dkt. No. 68-2; Barbosa Decl., ¶¶ 12-15, Exh. “B,”
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pgs. 84, 87, Dkt. No. 68-16). Due to the extensive proof, Hearing No. 3 was adjourned and re-convened on several occasions
during which Plaintiff was present, except for when confidential mental health testimony was offered. (SOMF, ¶61, Dkt. No.
68-2; Barbosa Decl., ¶ 16, Dkt. No. 68-16). Defendant Barbosa listened to all witnesses he believed to be relevant and material,
including witnesses requested by Plaintiff, but did not allow testimony from redundant or immaterial witnesses. (SOMF, ¶ 62,
Dkt. No. 68-2; Barbosa Decl., ¶¶ 17-22, Dkt. No. 68-16). Plaintiff was permitted to raise objections throughout the hearing
which Defendant Barbosa orally addressed during the hearing or in the written statement of disposition. (SOMF, ¶63, Dkt. No.
68-2; Barbosa Decl., ¶¶ 23-28, Exh. “A,” pg. 7, Dkt. No. 68-16).
*5 On January 14, 2022, following the conclusion of proof, Defendant Barbosa placed his findings on the record: Plaintiff was
guilty of Violent Conduct (104.11), Assault on Staff (100.11), and Interference with an Employee (107.10); Defendant Barbosa
found that Plaintiff was not guilty of Creating a Disturbance (104.13) (SOMF, ¶ 64, Dkt. No. 68-2; Barbosa Decl., ¶ 29, Exh.
“A,” pgs. 1-2, Dkt. No. 68-16). Defendant Barbosa sentenced plaintiff to 630 days in the SHU, with credit for 91 days served
under pre-hearing confinement and the one hundred 182 days served on a previous hearing, pre-reversal. (SOMF, ¶ 65, Dkt.
No. 68-2; Barbosa Decl., ¶ 29 Exh. “A,” pgs. 1-2, Dkt. No. 68-16). In addition to advising Plaintiff on the record, Defendant
Barbosa prepared a written disposition, which included the evidence relied upon, and the reasons for the sanction imposed.
(SOMF, ¶ 67, Dkt. No. 68-2; Barbosa Decl., ¶ 32, Exh. “A,” pgs. 2-11, Dkt. No. 68-16). A copy of Defendant Barbosa's written
disposition was delivered to Plaintiff on the record which Plaintiff signed. (Id.).
III. SUMMARY JUDGMENT
A. Legal Standard
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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (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 (1986); see also 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 also Jeffreys v.
City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing that the nonmoving party
has “fail[ed] to make a showing sufficient 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.” Celotex Corp., 477 U.S. at 322.
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); see also Jeffreys, 426 F.3d at 554 (“The mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. At the summary
judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.”).
“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). 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).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
Where a party is proceeding pro se, the court is obligated to “read [the pro 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, “a pro
se party's ‘bald assertion,’ unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
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B. Local Rule 56.1
*6 Local Rule 56.1 requires a party moving for summary judgment to file and serve a Statement of Material Facts. L.R. 56.1(a).
“The Statement of Material Facts shall set forth, in numbered paragraphs, a short and concise statement of 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.”
L.R. 56.1(b). “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 in original) (emphasis changed from underline to italics).
Pursuant to Local Rule 56.1(a), Defendants filed and served a SOMF. (Dkt. No. 68-2). Plaintiff failed to respond to Defendants’
SOMF. (Dkt. No. 80). Where, as in this case, a party has failed to respond to the movant's SOMF in the manner required under
Local Rule 56.1(b), the facts in the movant's statement to which the Plaintiff has not properly responded will be accepted as
true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro
se, has been specifically advised of the possible consequences of failing to respond to the motion. 2 See Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996).
“While ‘[p]ro se litigants are ... not excused from meeting the requirements of Local Rule 56.1,’ the Court retains discretion
‘to consider the substance of the plaintiff's arguments’ even where there is incomplete compliance with the rule.” W. v. Lagree,
No. 9:22-CV-00231 (MAD/CFH), 2024 WL 3649891, at *6 (N.D.N.Y. June 10, 2024) (alterations in original) (quoting Wali v.
One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (internal citations omitted)), report and recommendation adopted,
2024 WL 3548785 (N.D.N.Y. Jul. 26, 2024); see also 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.”) (internal
quotation marks omitted).
Here, in deference to Plaintiff's pro se status, the court will review the entire summary judgment record to ascertain the
undisputed material facts, citing to the facts as set forth in Defendants’ SOMF when properly supported by the record, and
also referring to Plaintiff's submission when practicable. See GlobalRock Networks, Inc. v. MCI Commc'ns Servs., Inc., 943 F.
Supp. 2d 320, 329 (N.D.N.Y. May 6. 2013) (“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.”) (citing Giannullo v. City
of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003)).
IV. Exhaustion of Remedies
A. Legal Standard
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), (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)), abrogated on other grounds
by Ross v. Blake, 578 U.S. 632 (2016). 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.
*7 To properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in
accordance with the applicable state rules. See 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.
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The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Incarcerated
Grievance Resolution Committee (“IGRC”). 3 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 Incarcerated Grievance Program (“IGP”) 4 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.
Prior to Ross v. Blake, supra, 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.
In Ross, the Supreme Court made it clear that courts may not excuse a prisoner's failure to exhaust because of “special
circumstances.” Ross v. Blake, 578 U.S. 632, 640 (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,
578 U.S. at 639). 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, 578 U.S. at 642. Courts
evaluating whether an inmate has exhausted his or her administrative remedies must also consider whether those remedies
were “available” to the inmate. Id.; see also Riles, 2016 WL 4572321 at *2. As failure to exhaust administrative remedies is
an affirmative defense, defendants bear the burden of showing that a prisoner has failed to satisfy the exhaustion requirement.
See Shakur v. Thomas, No. 9:14-CV-427 (MAD/TWD), 2018 WL 4635722, at *2. (N.D.N.Y. May 5, 2018), report and
recommendation adopted 2018 WL 3217170 (N.D.N.Y. Jul. 2, 2018). Once that burden is satisfied, a plaintiff must establish
that the grievance procedure was unavailable to him. Id. (citing Jones v. Bock, 529 U.S. 199, 216 (2007)).
B. Analysis
*8 Plaintiff alleges that Defendant Collins promised him “a full time cut and a recommendation to the Central Office to
transfer [him] close to home if he behaved and participated in program.” (Plaintiff's Response, pg. 2, Dkt. No. 80). According
to Plaintiff, Defendant Collins reneged on this promise when he failed to “sign off” on an unrelated grievance. (Id.). As a result,
Plaintiff claims that he filed a grievance in September 2021 (“September 2021 Grievance”) which “was returned to him without
a grievance number.” (Plaintiff's Response, pg. 4, Dkt. No. 80). A copy of the purported September 2021 Grievance is attached
as Exhibit “A” to Plaintiff's Response.
Defendant Collins maintains that summary judgment is warranted because no genuine issue of material fact exists concerning
Plaintiff's failure to exhaust his administrative remedies with respect to his retaliation claim.
In support of her motion for summary judgment, Defendant Collins relies on her declaration (“Collins Decl.,” Dkt. No. 68-5),
the declaration of Alexandria Cutler (“Cutler Decl.,” Dkt. No. 68-4), the declaration of Rachael Seguin (“Seguin Decl.,” Dkt.
No. 68-3), and the various DOCCS records attached as exhibits to each declaration. The Cutler Declaration provides significant
detail about the IGP at Great Meadow C.F. and the fact that each incarcerated individual who arrives at Great Meadow C.F.
goes “through an incarcerated individual orientation program that does includes a presentation by a representative from the
Incarcerated Grievance Resolution Committee (“IGRC”) about the grievance process, including how to file a grievance and
appeal a grievance.” (Cutler Decl., ¶ 5, Dkt. No. 68-4).
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The Cutler Declaration also indicates that the IGP at Great Meadow C.F. was fully operational while Plaintiff was housed there
between August 2021 through October 2021, and that a search of its records indicated that “[Plaintiff] filed only one grievance
at Great Meadow, relative to his being housed in SHU, which was given log number GM-0690-21.” (Cutler Del., ¶ 16, Dkt. No.
68-4). A copy of Plaintiff's grievance log is attached as Exhibit “B” to the Cutler Declaration.
Like the Cutler Declaration, the Seguin Declaration provides details about the DOCCS IGP. (Seguin Decl., ¶¶ 4-8). As the IGP
Director for DOCCS, Ms. Seguin is the custodian of records maintained by the Central Office Review Committee (“CORC”),
“which renders final administrative decisions for DOCCS's IGP pursuant to 7 N.Y.C.R.R. §§ 701.1-701.11.” (Seguin Decl., ¶ 3).
According to Director Seguin, Plaintiff has appealed 56 facility-level grievance determination to CORC. (Seguin Decl., ¶ 13).
However, between August through October 21, 2021, Plaintiff appealed only one grievance to CORC - relative to his placement
in the SHU at Great Meadow C.F. - Grievance No. GM-0690-21. Grievance No. GM-0690-21, a copy of which is attached to the
Seguin Declaration, indicates that it does not address Plaintiff's grievance against Defendant Collins. (Dkt. No. 68-3, pg. 14).
In moving for summary judgment, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Cyan Contracting Corp. v. New York State Dormitory Auth., No. 09-CV-603, 2011 WL 13266726, at *2
(S.D.N.Y. Sept. 27, 2011) (quoting Fed. R. Civ. P. 56(c)(4)) (rejecting declaration prepared by Defendant's attorney which could
not have been made on personal knowledge but, rather, was at most the product of hearsay based on what the client told the
attorney or the attorney's opinion). “Where an affidavit or declaration on a summary judgment motion is submitted by a person
who otherwise is in a position in which it reasonably may be expected that the individual actually has personal knowledge of that
of which the person speaks, a simple affirmation of such personal knowledge typically will be sufficient to satisfy Rule 56(c)
(4).” Id. Records such as those provided by Rachel Seguin and Alexandria Cutler, both of whom who have personal knowledge
of the inmate grievance and appeal processes at correctional facilities, have been found sufficient to support summary judgment
based on an inmate's failure to exhaust administrative remedies. See Houston v. Coveny, No. 14-CV-6609, 2020 WL 2494439,
at *3 (W.D.N.Y. May 14, 2020) (finding CORC appeal log report accompanied by certification of DOCCS official certifying
the log report was made in the regular course of business and employees engaged in creating the report had a duty to truthfully
record the events maintained therein).
*9 Since Defendant Collins met her burden of establishing the existence of a process by which Plaintiff was to exhaust his
administrative remedies, the burden shifts to Plaintiff to prove that the grievance process at Great Meadows C.F. was unavailable
to him. Opposing Defendants’ argument that he failed to exhaust his administrative remedies with respect to the September
2021 Grievance, Plaintiff claims that “without a grievance number an incarcerated individual[’s] grievance complaint is not on
record and therefore cannot be appealed to the superintendent or C.O.R.C. because an incarcerated individual cannot just take
it up on himself to appeal his grievance to the superintendent or C.O.R.C. He still has to send the grievance to the grievance
office, who th[e]n, will send it to the superintendent or CORC on the incarcerated individual[’s] behalf that is how the grievance
process works in practice.” (Plaintiff's Response, pg. 4, Dkt. 80).
Plaintiff's argument is unavailing and is negated by the case law and his complaint. “Courts have consistently held ... that an
inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” Masas v. Conte,
No. 9:13-CV-617 (GLAS/ATB), 2015 WL 1800482, *5 (N.D.N.Y. Mar. 25, 2015) (quoting Rosado v. Fessetto, No. 9:09-CV-67
(DNH/ATB), 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010)) report recommendation adopted, 2010 WL 3809991 (N.D.N.Y.
Sept. 21, 2010). “In any event, the failure by the IGRC or the Superintendent to timely respond to a grievance or first level
appeal must be appealed to the next level, including the CORC, in order to properly complete the grievance process., Masas,
2015 WL 1800482,*5 (citing Pacheco v. Drown, 9:06-CV-20 (GTS/GHL), 2010 WL 144400, at *19 & n. 21 (N.D.N.Y. Jan. 11,
2010); see also Smith v. Kelly, 985 F. Supp. 2d 275, 281-82 & n.8 (N.D.N.Y. Oct. 30, 2013) (the weight of authority (and better-
reasoned authority) has held the IGRC's non-response must be appealed to the superintendent where the plaintiff's grievance
was never assigned a grievance number) (collecting cases).
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Further, plaintiff cannot argue that Great Meadows C.F. lacked a functioning grievance process or that he was unfamiliar with the
same. The complaint alleges that while incarcerated at Great Meadows C.F., plaintiff filed 12 complaints, of which only three (3)
were processed. (Compl., pg. 22). With respect to the nine complaints that were not processed, the complaint alleges that plaintiff
“appealed them to the superintendent Christopher Miller and later Joseph Corey, they did not respond nor addressed [the]
complaints and the CORC followed suit by not addressing my complaints.” (Compl., pg. 22). Interestingly, Plaintiff's Response
does not allege that Plaintiff appealed his grievance against Defendant Collins despite the lack of a grievance number and his
utilization of the appeal process for nine of his 12 grievances that were allegedly not processed. Plaintiff's self-acknowledged
use of the grievance process is consistent with Director Seguin's declaration. Plaintiff's familiarity with, and reliance on the
grievance process at Great Meadow C.F., demonstrates that he “did not view the filing of grievances as a dead end.” Walker v.
Ball, No. 9:16-CV-437 (DNH/DJS), 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018), report and recommendation adopted,
2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018). Similarly, given Plaintiff's prior successful navigation of the grievance process
(Seguin Decl., Exhibit “A,” Dkt. No. 68-3), Plaintiff cannot complain that the grievance process was “so opaque” as to make
it unavailable to him. See Ross, 578 U.S. at 643.
Notably, the complaint does not allege that plaintiff filed a grievance against Defendant Collins that was returned to him without
a grievance number. On page 20 of the complaint, Plaintiff provides detail about his interaction with Defendant Collins relative
to the “time cut” but does not allege that he filed a grievance against her for allegedly reneging on her promise. Also, pages 27
and 28 of the complaint list 11 distinct grievances that Plaintiff filed while incarcerated at Great Meadow C.F., none of which
refer to Defendant Collins or her alleged failure to honor her “time cut” promise.
*10 Based on this record, the Court recommends that summary judgment be granted as to Plaintiff's retaliation claim against
Defendant Collins for failure to exhaust his administrative remedies prior to commencing this action.
V. First Amendment (Retaliation Claim against Defendant Collins)
A. Legal Standard
To state a claim of retaliation under the First Amendment, a plaintiff must allege facts plausibly suggesting the following: (1)
the speech or conduct at issue was “protected;” (2) the Defendants took “adverse action” against the plaintiff - namely, action
that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3)
there was a causal connection between the protected speech and the adverse action - in other words, that the protected conduct
was a “substantial or motivating factor” in the Defendant's decision to take action against the plaintiff. Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). The Second
Circuit has stated that courts must approach prisoner retaliation claims “with skepticism and particular care,” since “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.” 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) (citing Flaherty v. Coughlin, 713 F.2d
10, 13 (2d Cir. 1983)).
Indeed, “a plaintiff asserting such a claim bears a heightened burden of proof and must plead the claim with particularity.”
Rucano v. Annucci, 9:18-CV-218 (GTS/CFH), 2021 WL 3293504 (N.D.N.Y. May 19, 2021) (citing Green v. Phillips, No.
04-CV-10202, 2006 WL 846272, at *3 (S.D.N.Y. Mar. 31, 2006)). “Consequently, a plaintiff must set forth non-conclusory
allegations to sustain a retaliation claim.” Id. (citing Green, 2006 WL 846272, at *3); see also 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 claim appears insubstantial.”) (internal
quotation marks and citation omitted).
“Allegations, although specific, ‘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
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of disbelief necessary to credit the allegations made in the complaint.’ ” Smith v. Woods, No. 9:03-CV-480 (DNH/GHL), 2006
WL 1133247, at *3 (N.D.N.Y. Apr. 24, 2006) (internal quotation marks and citations omitted).
It is undisputed that filing a grievance constitutes a protected activity. See Zimmerman v. Racette, No. 9:17-CV-375 (TJM/CFH),
2020 WL 3038275, at *16 (N.D.N.Y. Jan. 24, 2020), report and recommendation adopted, 2020 WL 1329138 (N.D.N.Y. Mar.
23, 2020). With respect to the second element of a First Amendment retaliation claim, an action is adverse if it “would deter a
similarly situated individual of ordinary firmness from exercising ... constitutional rights.” Lewis v. Hanson, No. 9:18-CV-12
(LEK/DJS) 2022 WL 991729, at *11 (citing Tafari v. McCarthy, 714 F.Supp.2d 317, 348 (N.D.N.Y. May 24, 2010)).
B. Analysis
*11 Even if Plaintiff had exhausted his administrative remedies with respect to his claim against Defendant Collins, which
he did not, the court nevertheless recommends that summary judgment be granted and that Plaintiff's claim for retaliation be
dismissed with prejudice.
For purposes of Defendant Collins’ summary judgment only, she concedes the first and third prongs of a retaliation claim
enunciated in Doyle (Defendants’ Memorandum of Law, pg. 11, n. 1), leaving only the second prong for the court's consideration.
To establish the second prong of a retaliation claim, i.e., an adverse action, a plaintiff must show that a defendant's retaliatory
conduct would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. Doyle,
429 U.S. at 287. Despite Plaintiff's allegations, the documentary evidence, together with Plaintiff's deposition testimony,
establish that he did in fact receive a “time cut,” thereby negating any alleged adverse action.
Plaintiff testified at his deposition that that he received “a six-month time cut that was later revoked.” (Dorando Decl., Exhibit
“A,” pg. 84, Dkt. Not. 68-17). However, faced with Defendants’ motion for summary judgment and to presumably create an
issue of fact, Defendant refutes his own sworn deposition testimony and “denies that he admitted that he received a time cut from
Defendant Collins.” (Plaintiff's Response, pg. 7, Dkt. No. 80). An affidavit given in opposition to a summary judgment motion
which conflicts with other sworn statements of the opposing party cannot alone suffice to raise a genuine issue of material
fact. See Reisner v. Gen. Motors, 671 F.2d 91, 93 (2d Cir. 1982) (disregarding factual claims made in opposition to summary
judgment motion which contradicted earlier affidavits, deposition testimony, and interrogatory responses), cert. denied, 459
U.S. 858, (1982); see also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572-73 (2d Cir. 1991)
(“The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material
issue of fact by submitting an affidavit disputing his own prior sworn testimony.”).
Summary judgment is also warranted based on the documentary evidence attached to the Collins Declaration. (Dkt. No. 68-5).
Specifically, the paperwork prepared by the Behavioral Health Unit Time Cut Committee on September 13, 2021, (attached as
Exhibit “B” to the Collins Declaration establishes that the committee) of which Defendant Collins was a member, recommended
to the Superintendent of Great Meadow C.F. that Plaintiff receive a 180-day-time cut. (Collins Decl., Exhibit “B”, pg. 1, Dkt.
No. 68-5). The committee's recommendation was accepted by the Superintendent on September 14, 2021. (Collins Decl., ¶ 16;
Collins Decl., Exhibit “B,” pg. 1, Dkt. No. 68-5). Plaintiff also received 14 incentives for good/modified behavior between July
2021 and September 2021. (Collins Decl., ¶ 16, Collins Decl., Exhibit “B,” pgs. 5-6, Dkt. Not. 68-5).
Plaintiff's Response neither disputes Defendant Collins’ statements nor refutes the exhibits attached to it. The Court therefore
recommends that summary judgment be granted, and that Plaintiff's retaliation claim against Defendant Collins be dismissed
with prejudice.
VI. Fourteenth Amendment Due Process Claim
A. Legal Standard
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*12 The Fourteenth Amendment to the United States Constitution reads, in relevant part, that “[n]o State shall ... deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “A liberty interest may arise from
the Constitution itself, ... or it may arise from an expectation or interest created by state laws or polices.” Wilkinson v. Austin,
545 U.S. 209, 221 (2005) (citation omitted). “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 ... special confinement that imposes an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.
2004) (citations omitted). To establish a procedural due process claim under Section 1983, a plaintiff must show that he (1)
possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Ortiz
v. McBride, 380 F.3d 649, 654 (2d Cir. 2004); see also Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace,
143 F.3d 653, 658 (2d Cir. 1998).
An incarcerated individual has “no due process claim under the Fourteenth Amendment” if they cannot establish “that [they]
had a protected liberty interest in being free from the punishment that was imposed upon [they] as a result of [a disciplinary]
hearing.” Scott v. Albury, 156 F.3d 283, 286 (2d Cir. 1998) (per curiam). “A prisoner's liberty interest is implicated by prison
discipline, such as SHU confinement, only if the discipline imposes an atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (internal quotation marks and
brackets omitted). “Factors relevant to determining whether the plaintiff endured an atypical and significant hardship include
the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions and the duration of
the disciplinary segregation imposed compared to discretionary confinement.” Id. (internal quotation marks omitted). “Disputes
about conditions may not be resolved on summary judgment, but where the conditions are undisputed,” the issue “should be
resolved by the court as a matter of law.” Id. (internal citation omitted); see also Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.
1999) (“The ... standard of ‘atypical and significant hardship’ is an issue of law.”).
Although the Second Circuit has avoided “a bright line rule that a certain period of SHU confinement automatically fails to
implicate due process rights,” (Palmer, 364 F.3d at 65), confinement for 101 days or fewer “generally do[es] not constitute
‘atypical’ conditions of confinement.” Bunting v. Nagy, 452 F. Supp. 2d 447, 456 (S.D.N.Y. 2006) (quoting Sealey, 197 F.3d
at 589). By contrast, 305 days or more of segregated confinement has been deemed an atypical and significant hardship. See
Colon v. Howard, 215 F.3d 227, 231-32 (2d Cir. 2000). “A period of confinement between 101 and 305 days is considered to
be an ‘intermediate duration’ and could implicate a liberty interest should a detailed record of the conditions of confinement
indicate that it was an atypical and significant hardship.” Bunting, 452 F. Supp. 2d at 456 (citing Sealy, 197 F.3d at 589).
For purposes of this motion only, and in the interest of judicial economy, Defendants “are assuming that Plaintiff's SHU sentences
implicated his protected liberty interest.” (Defendants’ Memorandum of Law, pg. 18). Accordingly, the Court will proceed to
analyze whether Plaintiff was afforded his Fourteenth Amendment Due Process rights.
The Fourteenth Amendment due process protections afforded to incarcerated individuals do not equate to “the full panoply of
rights due to a defendant in a criminal prosecution.” Sira, 380 F.3d at 69 (citation and internal quotation marks omitted). The
constitutionally mandated due process requirements include: (1) written notice of the charges to the inmate; (2) the opportunity
to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense,
subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining
his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a
defense. Wolff v. McDonald, 418 U.S. 539, 564-70 (1974); see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004).
*13 “Since Wolff, the Supreme Court has clarified that judicial review of the written findings required by due process is limited
to determining whether the disposition is supported by ‘some evidence.’ ” Sira, 380 F.3d at 69 (quoting Superintendent v. Hill,
472 U.S. 445, 455, (1985)). “This standard is extremely tolerant and is satisfied if ‘there is any evidence in the record that
supports’ the disciplinary ruling.” Id. (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). Nevertheless, as
the Second Circuit has explained, “the ‘some evidence’ standard requires some ‘reliable evidence.’ ” Id. (quotation and other
citation omitted).
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Additionally, “[t]o establish a procedural due process claim in connection with a prison disciplinary hearing, an inmate must
show he was prejudiced by the alleged procedural deficiencies, in the sense that the errors affected the outcome of the hearing.”
Clark v. Dannheim, 590 F. Supp. 2d 426, 429 (W.D.N.Y. Dec. 2, 2008) (citing, inter alia, Powell v. Coughlin, 953 F.2d 744, 750
(2d Cir. 1991) (“[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary hearing because of a procedural
error without making the normal appellate assessment as to whether the error was harmless or prejudicial.”)).
B. Analysis
i. Defendants Henley and Murphy
Plaintiff asserts a litany of reasons why Defendants Henley and Murphy violated his Fourteenth Amendment due process rights
in connection with Hearing No. 1 and Hearing No. 2. (Plaintiff's Response, pgs. 14-19, Dkt. No. 80).
However, Hearing No. 1 became moot because of Hearing No. 2, and Hearing No. 2 became moot because of Hearing No.
3. See Vidal v. Annucci, No. 9:19-CV-0429 (GLS/DJS), 2022 WL 7278575, at *6 (N.D.N.Y. Jan. 7, 2022) (quoting Ramos v.
Chappius, No. 15-CV-6600-FPG, 2018 WL 488950, at *2 (W.D.N.Y. Jan. 19, 2018)), report and recommendation adopted,
2022 WL 4462640 (N.D.N.Y. Sept. 26, 2022); see also Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998) (“We need not discuss
[the plaintiff]’s contention that his rights were violated at the first hearing, because it became a nullity. All findings and penalties
imposed at the first hearing were vacated, and all the penalties [the plaintiff] suffered were imposed at the second hearing.”).
Indeed, “courts in this circuit routinely find claims related exclusively to an initial disciplinary hearing moot when, as here,
that finding was reversed and a new hearing was held.” Vidal, 2022 WL 7278575, at *6 (collecting cases); see also Vance v.
Dep't of Corr. & Cmty. Supervision, No. 9:18-CV-748 (BKS/ATB), 2021 WL 5095309, at *9 (N.D.N.Y. Aug. 12, 2021), report
and recommendation adopted sub nom. Vance v. Venettozzi, 2021 WL 4145705 (N.D.N.Y. Sept. 13, 2021); Fowler v. New York
State Dep't of Corr. & Cmty. Supervision, No. 13-CV-6546, 2020 WL 1905233, at *3 (W.D.N.Y. Apr. 17, 2020); Williams v.
Korines, No. 9:16-CV-1157 (FJS/TWD), 2018 WL 5729353, at *11-12 (N.D.N.Y. Aug. 31, 2018), report and recommendation
adopted, 2018 WL 4521204 (N.D.N.Y. Sept. 21, 2018).
Because Plaintiff's prior SHU confinement was credited to the penalty imposed at Hearing No. 3, his confinement “was entirely
attributable to the ruling following [ ] [Hearing No. 3].” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001). Thus, “the
Court need not discuss Plaintiff's contention that his rights were violated at [ ] [Hearing No. 1 and Hearing No. 2] because
[they] became a ‘nullity’ after [ ] [Hearing No. 2 and Hearing No. 3] w[ere] held, crediting the penalty from [Hearing No. 1
and Hearing No. 2] [ ].” Ragsdale v. Confer, No. 21-CV-6188, 2024 WL 1051883, at *3 (W.D.N.Y. Mar. 11, 2024); see also,
Cole v. New York State Dep't of Corr. & Cmty. Supervision, No. 9:14-CV-0539 (BKS/DEP), 2016 WL 5394752, at *20-21
(N.D.N.Y. Aug. 25, 2016) (finding it unnecessary to determine whether the plaintiff was afforded due process in connection
with the first hearing, where the record established that plaintiff was confined in the SHU as a result of a penalty imposed
which was ultimately reversed and where the plaintiff was again found guilty at the second disciplinary hearing), report and
recommendation adopted, 2016 WL 5374125, at *1 (N.D.N.Y. Sept. 25, 2016).
*14 The Court therefore recommends that summary judgment be granted dismissing Plaintiff's Fourteenth Amendment due
process claims with prejudice against Defendants Henley and Murphy arising from Hearing No. 1 and Hearing No. 2.
ii. Defendant Barbosa
According to the complaint, Plaintiff's appeal in connection with Hearing No. 3 is pending. (Compl., pg. 25). The papers
submitted by the parties in support of and in opposition to the summary judgment motion provide no clarification regarding
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the status of Plaintiff's alleged appeal. Regardless, it is the Court's opinion that Defendant Barbosa did not violate Plaintiff's
Fourteenth Amendment due process rights.
The complaint and Plaintiff's Response assert a myriad of ways in which Defendant Barbosa allegedly violated plaintiff's
Fourteenth Amendment due process rights during Hearing No. 3. Specifically, Plaintiff contends that: (a) his Tier Assistant was
“ineffective and insufficient in fulfilling [his] needs.” (Plaintiff's Response, pg. 19, Dkt. No. 80); (b) the misbehavior report
is not supported by the video surveillance (Id.); (c) Plaintiff was not granted the opportunity to present grand jury minutes
and prior hearing tapes to impeach Sgt. King's testimony (Id.); (d) Defendant Barbosa “wrongfully denied [his] potential and
relevant witnesses” (Plaintiff's Response, pg. 20, Dkt. No. 80); (e) Defendant Barbosa was not a fair and impartial decision
maker (Id.); (f) Defendant Barbosa “was bias and prejudice” and “came into the hearing with his mind made up” (Id.); (g)
Defendant Barbosa denied the “testimonies of the officers that were present in the yard but relied upon statements they wrote in
their memorandum to their superior and he withheld those memorandum from Plaintiff stating they were expunged” (Plaintiff's
Response, pg. 21, Dkt. No. 80); (h) Defendant Barbosa attained confidential OMH testimony outside of his presence; and (i)
Defendant Barbosa imposed a harsh and atypical punishment outside of the general guidelines for a Tier III conviction (Id.).
Although due process includes a right to call witnesses, “this right is not unfettered.” Alicea v. Howell, 387 F. Supp. 2d 227,
234 (W.D.N.Y. 2005) (citing Ponte v. Real, 471 U.S. 491, 495, (1985)). This right may be limited for security reasons, to keep
a hearing within reasonable limits, or based on irrelevance or lack of necessity. Id. (citing, inter alia, Kingsley v. Bureau of
Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (a hearing officer does not violate due process by excluding irrelevant or unnecessary
testimony or evidence)). Further, incarcerated individuals do not have a constitutional right of confrontation or the right to cross-
examine witnesses at disciplinary proceedings against them. See Kalwasinski v. Morse, 201 F.3d 103, 108-109 (2d Cir. 1999);
see also Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). Because incarcerated individuals have no right to confrontation, it is
permissible for the disciplinary officers to offer a witness statement at a disciplinary hearing that was taken outside the presence
of the incarcerated individual. See Kalwasinski, 201 F.3d at 109.
The documentary evidence attached to the Barbosa Declaration sets forth with specificity why Defendant Barbosa denied
Plaintiff's request to call the following witnesses to testify at Hearing No. 3: C.O Mesunas, C.O Patterson, Sgt. Marion, Sgt.
Jarvis, Lt. Guynup, Capt. Shope, Capt. Matott, RN Taylor, the physician who examined C.O. Mesunas, and New York State
Troopers BCI Investigator. (Barbosa Decl., pgs. 95-96, Dkt. No. 68-16). The documentary evidence also establishes why
Plaintiff was excluded from the hearing room when certain confidential OMH testimony was offered (Barbosa Decl., pg. 96,
Dkt. No. 68-16), and why incarcerated individuals Maynard and Jackson did not testify at Hearing No. 3 (Barbosa Decl., pgs. 17,
125, 128, Dkt. No. 68-16). Accordingly, the Court finds no triable issues of fact exist as to whether Plaintiff had an opportunity
to call witnesses. See Richardson v. Williams, No. 15-CV-4117, 2017 WL 4286650, at *7 (S.D.N.Y. Sept. 26, 2017) (“a hearing
officer does not violate due process by excluding irrelevant or unnecessary testimony.”); see also Scott v. Kelly, 962 F.2d 145,
146 (2d Cir. 1992) (“It is well settled that an official may refuse to call witnesses as long as the refusal is justifiable.”).
*15 Plaintiff's allegations that Defendant Barbosa was not a fair and impartial decision maker and that he was biased are
similarly without merit and fail to raise any issues of fact. As previously noted, a hearing officer may satisfy the standard of
impartiality if there is “some evidence” to support the hearing officer's findings. Sira, 380 F.3d at 69. Here, there is “some
evidence” to support Defendant Barbosa's determination. Among other things, Defendant Barbosa found that the MBR authored
by Sgt. King, various memoranda, the testimony of Sgt. King during Hearing No. 3, the testimony of Lt. Snow during Hearing
No. 3, the videos of the incident and the confidential OMH testimony regarding Plaintiff's mental health, to be “credible” and
“substantial evidence” of Plaintiff's guilt to the charges of Violent Conduct (104.11), Assault on Staff (100.11), and Interference
with an Employee (107.10). (Barbosa Decl.,¶¶ 34-36, Exhibit “A,” pg. 14, Dkt. No. 68-16). See Chavez v. Gutwein, No. 20-
CV-0342, 2021 WL 4248917, at *12 (S.D.N.Y. Sept. 17, 2021) (“[I]t is well-established that a correction officer's misbehavior
report may constitute reliable evidence of guilt.” Moreover, as the hearing officer, Defendant Barbosa “was authorized to make
credibility determinations.”) Lopez v. Whitmore, No. 9:13-CV-952 (BKS/ATB), 2015 WL 4394604, at *11 (N.D.N.Y. July 16,
2015) (citation omitted); see also Alsaifullah v. Smith, No. 9:14-CV-01309 (JKS), 2016 WL 1595391, at *7 (N.D.N.Y. Apr. 20,
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2016) (concluding, despite the plaintiff's allegation that a correction officer's “testimony and report were fabricated,” that “it
was within the hearing officer's province to assess the credibility of the witnesses”).
Plaintiff's claims that his “assistant was ineffective and insufficient in fulfilling [his] needs” fail to raise any issues of fact.
Plaintiff's Response fails to allege what specific “TO-FROMs” and “relevant memos” Plaintiff's hearing assistant allegedly did
not marshal. (Plaintiff's Response, pg. 19, Dkt. No. 80), However, the documentary evidence attached to the Barbosa Declaration
does articulate what documents he requested his assistant to compile. Specifically, the Barbosa Declaration includes a memo
from Plaintiff to his Tier III assistant detailing what information he wanted assembled as well as a copy of the “Assistant Form”
completed by Plaintiff's Tier III assistant, S. Sibrava. (Barbosa Decl., pgs. 94, 109-110, Dkt. No. 68-16). Also included in Exhibit
“A” to the Barbosa Declaration are a myriad of memoranda and other documents, some of which appear to be those requested
by Plaintiff. Plaintiff's Response does not include any recognition or discussion of whether the Barbosa Declaration does in fact
include some of the documents he requested from his Tier III assistant.
Plaintiff also fails to specify which incarcerated individuals his Tier III assistant failed to interview. (Plaintiff's Response, pg. 19,
Dkt. No. 80). Despite his allegations, Plaintiff conveniently ignores that incarcerated individuals Maynard and Jackson refused
to testify at Hearing No. 3 (Barbosa Decl., pgs. 17, 125, 128, Dkt. No. 68-16). Notwithstanding his allegedly “ineffective” and
“insufficient” Tier III assistant, Plaintiff does not indicate how, if at all, he was prejudiced and how the alleged errors affected
the outcome of Hearing No. 3. See Clark, 590 F. Supp. 2d at 429.
Despite Plaintiff's protestations and his discontent with the results of Hearing No. 3, the record establishes that Plaintiff's
Fourteenth Amendment due process rights were not traversed at Hearing No. 3. Plaintiff: (1) was provided with a written notice
of the charges against him which he acknowledges (Plaintiff's Response, pg. 19, Dkt. No. 80); (2) appeared at Hearing No. 3 and
was given a reasonable opportunity to present witnesses and evidence in support of his defense, subject to Great Meadow C.F.’s
legitimate safety and penological concerns; (3) was given a written statement by the hearing officer explaining his decision and
the reasons for the action being taken (Barbosa Decl., Exhibit “A”, pg. 21, Dkt. No. 68-16); and (4) appointed a Tier III hearing
assistant of his choosing. See Wolff, 418 U.S. at 564-70 (1974); see also Luna, 356 F.3d at 487.
The Court therefore recommends that summary judgment be granted with respect to Plaintiff's Fourteenth Amendment due
process claim against Defendant Barbosa and that the complaint be dismissed with prejudice against him.
iii. Defendants Fraser, Miller, Lovett, Gross, Collins, and Dill-Lewis
*16 The Court recommends that summary judgment be granted with respect to Plaintiff's Fourteenth Amendment Procedural
Due Process claim against Defendants Fraser, Miller, Lovett, Gross, Collins, and Dill-Lewis arising from the eighty-seven (87)
days he spent in SHU rather than in the BHU prior to his disciplinary hearing.
“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)). To prevail on a section 1983 claim 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 [supervisory] 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,
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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).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), 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 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 Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009)).
In addition to “direct participation by the supervisor in the challenged conduct,” personal involvement by a supervisor can
“also be established by evidence of an official's: (1) failure to take corrective action after learning of a subordinate's unlawful
conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates
who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the
unlawful conduct of subordinates.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003).
*17 Plaintiff has not—and cannot—make the requisite showing that Defendants Fraser, Miller, Lovett, Gross, Collins, and
Dill-Lewis had any personal involvement with Plaintiff's placement in Great Meadow C.F.’s SHU or that they can satisfy any
of the elements enumerated in Hayut.
Defendant Fraser's declaration (“Fraser Declaration” or “Fraser Decl.”) states that: (a) in April 2021, he was a Captain assigned
to Great Meadow C.F. and was then transferred to DOCCS’ Training Academy to oversee its operations the following month.
(Fraser Decl., ¶¶ 4, 8); (b) in his “position as a Captain at Great Meadow, it was not within [his] duties or capabilities to transfer
Plaintiff to another unit. Nor was [he] aware of Plaintiff's mental health needs and/or if Plaintiff was placed improperly” (Fraser
Decl., ¶ 11); and (c) he “was not involved in determining where Plaintiff was house-i.e., the SHU, BHU, or anywhere
else.” (Fraser Decl., ¶ 12). Notably, Plaintiff's Response does not refute the allegations in the Fraser Declaration. Further,
plaintiff's deposition testimony confirms that Defendant Fraser had no personal involvement in his SHU placement. After
initially not remembering who Defendant Fraser was, Plaintiff testified that Defendant Fraser was the officer who “signed off
on a full restraint order” (Dorando Decl., pg. 73, Dkt. No. 68-17), a claim that was dismissed by Judge McAvoy (Dkt No., pgs.
23-24). Plaintiff did not offer any other testimony to establish Defendant Fraser's personal involvement in his SHU placement.
Defendant Miller's Declaration (“Miller Declaration” or “Miller Decl.”) states that in April 2021 through July 2021, he was
employed as the Superintendent at Great Meadow C.F. (Miller Decl., ¶ 3). In that capacity, Defendant Miller “was not involved
in whether an incarcerated individual was placed in SHU or in a Behavioral Health Unit.” (Miller Decl., ¶ 5). According to
Defendant Miller, those determinations “were ultimately made by the Deputy Superintendent of Security.” (Id.). Like Defendant
Fraser, Plaintiff does not refute Defendant Miller's allegations. Also, Plaintiff testified that Defendant Miller was “a member of
the executive team.” (Dorando Decl., pg. 77, Dkt. No. 68-17). Defendant Miller's supervisory role, without more, is insufficient
as a matter of law to impose liability on him for Plaintiff's SHU placement at Great Meadow C.F. See Colon, 58 F.3d at 874.
As to Defendant Lovett, she was the Supervising Offender Rehabilitation Coordinator and the Acting Deputy Superintendent of
Programs at Great Meadow C.F. between April 2021 and July 2021. (“Lovett Declaration” or “Lovett Decl.”) (Lovett Decl., ¶
4). In her role during the relevant period, Defendant Lovett states that she “did not have oversight, authority, or involvement in
deciding whether an incarcerated individual is placed in the SHU, or other housing unit, such as the Behavioral Unit.” (Lovett
Decl., ¶ 6). According to Defendant Lovett, “[s]uch determination were ultimately made by the Deputy Superintendent of
Security.” (Id.). Plaintiff's Response does not refute the Lovett Declaration. At his deposition, Plaintiff identified Defendant
Lovett as a “member of the executive team” and someone he “could have spoken to [ ] a few times.” (Dorando Decl., pg. 74, Dkt.
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No. 68-17) (emphasis added). Plaintiff was unable to offer any testimony to establish Defendant Lovett's personal involvement
in his SHU placement upon arrival at Great Meadow C.F.
*18 Defendant Gross's declaration (“Gross Declaration” or “Gross Decl.”) establishes that since April 9, 2021, he has held
the title of Deputy Superintendent for Administrative Services III at Great Meadow C.F., a purely administrative role in which
he provides supervision “to the business office, state shop, commissary, food service, maintenance, and personnel. (Gross
Decl., ¶¶ 3, 4). Defendant Gross was not, according to his declaration, involved in “disciplinary proceedings, cell placement
of incarcerated individuals, or provision of health services of any sort.” (Gross Decl., ¶ 4). Plaintiff's Response does not refute
the allegations in the Gross Declaration. Further, Plaintiff testified that Defendant Miller was “a member of the executive
team.” (Dorando Decl., Exh. “A,” pg. 77, Dkt. No. 68-17). Without more, Plaintiff's allegations are insufficient as a matter of
law to impose liability on him for Plaintiff's SHU placement at Great Meadow C.F. See Colon, 58 F.3d at 874.
Like Defendants Fraser, Miller, Lovett, and Gross, Plaintiff cannot establish that Defendant Collins had any personal
involvement in his placement in Great Meadow C.F.’s SHU. Defendant Collins's declaration (“Collins Declaration” or “Collins
Decl.”) establishes that in 2021, she became the Assistant Deputy Superintendent for Correctional Mental Health at Great
Meadow C.F. (Collins Decl., ¶ 4). The Collins Declaration further establishes that Defendant Collins “never made any
determination relative to Plaintiff's initial placement in SHU or his continued stay in SHU; nor was [she] [ ] personally involved
in any decision-making process relative to Plaintiff's cell placement. Those decisions were ultimately made by the Deputy
Superintendent of Security (“DSS”) at Clinton Correctional Facility, where [Plaintiff] was initially placed in SHU and at Great
Meadow.” (Collins Decl., ¶ 6 Dkt. No. 68-5). Plaintiff's Response does not dispute the allegations in the Collins Declaration.
Further, plaintiff testified at his deposition that Defendant Collins should have moved him from the SHU to the BHU and that
she was “responsible for the incarcerated individuals that are under her.” (Dorando Decl., Exh. “A,” pg. 71, Dkt. No. 68-17).
He offered no testimony establishing Defendant Collins's personal involvement or any of the elements enumerated in Hayut.
Finally, plaintiff cannot establish that Defendant Dill-Lewis had any personal involvement with his placement in Great Meadow
C.F.’s SHU. According to Defendant Dill-Lewis, she has been the Executive Director of Central New York Psychiatric Center
(“CNYPC”) with the New York State Office of Mental Health services since 2021, a purely administrative role. (“Dell-Lewis
Declaration” or “Dell-Lewis Decl.”) (Dell-Lewis Decl., ¶¶ 3, 4). Notably, Defendant Dell-Lewis is not a member of any
treatment team. (Dell-Lewis Decl., ¶ 4). As an administrator at CNYPC, Defendant Dell-Lewis did not have, in April 2021
through July 2021, “oversight, authority, or involvement in deciding which cell an incarcerated individual is placed in.” (Dell-
Lewis Decl., ¶ 6). Defendant Dell-Lewis further states that she did not have “oversight, authority, or involvement in determining
whether an incarcerated individual was housed in the SHU or the BHU.” (Id.). According to Defendant Dell-Lewis, “such
determinations were made by the individual DOCCS facility staff in accordance with their capabilities and security needs” and
not the Office of Mental Health. (Id.). Again, Plaintiff's Response does not refute Defendant Dell-Lewis's statements and his
deposition testimony does not establish her personal involvement in his placement in Great Meadow C.F.’s SHU. (Dorando
Decl., Exh. “A,” pg. 72, Dkt. No. 68-17).
To create an issue of fact, Plaintiff's Response alleges “even accepting that [Defendants Fraser, Miller, Lovett, Gross, Collins
and Dill-Lewis] were not directly involved in the placement of Plaintiff in SHU themselves but after learning of the violations
through reports and complaints they failed to remedy the wrongs thereby allowing to continue unconstitutional practices that
were occurring ...” (Plaintiff's Response, pg. 8, Dkt. No. 80). 5 Plaintiff's efforts are without merit, as his statements are
conclusory and without support in the record. See Scotto v. Almenas, 143 F.3d 105, 114 (The party opposing a motion for
summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.”). Plaintiff provides no support
for what complaints, reports and/or violations he is referring to and in what way(s) Defendants Fraser, Miller, Lovett, Gross,
Collins and Dill-Lewis failed to address the same. Having failed to create any issue of fact, the Court recommends that summary
judgment be granted and that Plaintiff's Fourteenth Amendment due process claims against Defendants Fraser, Miller, Lovett,
Gross, Collins and Dill-Lewis be dismissed with prejudice.
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iv. Defendants Caringi and Bishop
*19 In his Response, Plaintiff alleges that being in SHU “imposed an atypical and significant hardship” on him. (Plaintiff's
Response, pg. 10, Dkt. No. 80). Specifically, his claims against Defendants Bishop and Caringi are that: they violated his
procedural due process rights by confining him in SHU. (Id.). In total, Defendants Bishop and Caringi are personally involved
in 87 days of SHU confinement. Plaintiff's claims against Defendants Bishop and Caringi can be best understood as:
Defendant Time in confinement
Bishop Less than one day in the SHU at Clinton C.F.
Caringi 87 Days in a SHU at Great Meadow C.F.
Taking both claims individually, neither period of confinement is long enough to trigger due process protections. See Sealy,
197 F.3d at 578. To the extent that Plaintiff alleges his conditions were severe enough to trigger due process protections, they
were not. While in SHU, Plaintiff received three showers a week, more than what is required by the applicable regulations.
See 7 N.Y.C.R.R. § 304.5 (noting that incarcerated persons must receive a minimum of two showers per week for a minimum
of five minutes per shower); see also (SOMF ¶ 5, Dorando Decl., Exhibit “A,” pgs. 61, 67, Dkt. No. 68-17). Plaintiff also
received two hours and thirty minutes of outdoor exercise each day, more than what is required by law). See 7 N.Y.C.R.R. §
304.3 (“Incarcerated individuals confined in the SHU must be one hour of outdoor exercise daily, exclusive of the time it takes
to go to and return from the exercise area”); see also (SOMF ¶ 5, Dorano Decl., Exhibit. “A,” pgs. 61, 67, Dkt. No. 68-17).
Finally, Plaintiff testified that he did not have any issues with his regular meals and was given food in accordance with his
practice of Ramadan. See (SOMF ¶ 5, Dorando Decl., Exhibit “A,” pgs. 61, 67, Dkt. No. 68-17). Altogether, the length and
conditions of Plaintiff's confinement were not an “atypical and significant hardship ... in relation to the ordinary incidents of
prison life.” Sandin, 515 U.S. at 484 (1995).
Plaintiff also contends “he was harmed by being in BHU versus SHU” because he was “sad, depressed, distressed, and angry
because he was in SHU” and “he couldn't participate in programming.” (Plaintiff's Response, pg. 12, Dkt. No. 80). This argument
is meritless. See Anthony v. Green, No. 9:22-CV-113 (GLS/ATB), 2022 WL 4939991 *8 (N.D.N.Y. Oct. 4, 2022) (“the law is
well-settled that inmates do not have a constitutional liberty interest in participating in prison programs”) (citations omitted);
see also Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009) (“Restrictive confinements of less than 101 days ... require proof
of conditions more onerous than usual”).
Further, Plaintiff contends that his confinement in the SHU at Clinton C.F. and Great Meadow C.F. violated N.Y. Correction
Law § 137 which, in turn violated the due process clause. (Plaintiff's Response, pg. 11, Dkt. No. 80). 6 Plaintiff's claim is
wrong. N.Y. Correction Law § 137 is a state procedural statute. See N.Y. Cor. L. § 137 (noting that “[t]he commissioner shall
establish programs and classifications procedures designed to assure the ... condition of each incarcerated individual in the care
or custody of the department”). So even if Defendants Bishop and Caringi's decisions violated § 137, those decisions would
not give rise to a due process violation. See Bolden v. Alston, 810 F.2d 353, 358 (2d Cir. 1987) (“State procedural requirements
do not establish federal constitutional rights.”). “At most, any violation of state procedural requirements would create liability
under state law.” Id. Therefore, a violation of a state procedural statute does not amount to a denial of due process under the
Constitution. See Hendrix v. Annuci, 9:20-CV-0743, 2024 WL 1285394 (N.D.N.Y. Mar. 26, 2024).
*20 The Court therefore recommends that summary judgment be granted dismissing plaintiff's Fourteenth Amendment
procedural due process claims with prejudice against Defendants Bishop and Caringi.
VII. Ninth Amendment
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A. Legal Standard
The Ninth Amendment provides in relevant part that “[t]he enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.” U.S. Const. Amend. IX. The U.S. Supreme Court has said that
this provision of the Ninth Amendment, along with the First, Third, Fourth, and Fifth Amendments creates a right of privacy.
See Griswold v. Connecticut, 381 U.S. 479, 484-485 (1965).
The Second Circuit, in an unpublished and non-precedential summary order, extended the penumbral privacy protections of the
Ninth Amendment to “private/personal mental health issues.” See Hunnicutt v. Armstrong, 152 F. App'x 34, 36 (2d Cir. 2005)
(holding that there is a Ninth Amendment violation when prison employees discuss private/personal mental health issues in
front of other prison employees and other prisoners in violation of psychiatrist/psychologist-patient privilege). But Hunnicutt
is not limitless. Courts have determined that prison officials can infringe on an incarcerated person's right to privacy if their
actions are “reasonably related to legitimate penological interest.” Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999).
B. Analysis
Defendants Bishop and Deans did not violate Plaintiff's right to privacy. To start, Defendant Deans is not personally involved
in the alleged violation of Plaintiff's Ninth Amendment rights. The disclosure of Plaintiff's mental health designation was in
the letter written by Defendant Bishop which was written after Defendant Deans assembled the criminal referral packet which
logically means that Defendant Deans did not know of the disclosure. (Bishop Decl., ¶ 13, Exh. “A,” pg. 6, Dkt. No. 68-9).
As a result, Defendant Deans did not have “intentional participation in the conduct constituting a violation of” Plaintiff's right.
Provost, 262 F.3d at 155. In short, Defendant Deans was not personally involved.
But even if Defendant Deans conduct constituted personal involvement, both Defendants Deans and Bishop's conduct did not
violate Plaintiff's right to privacy. The only information that was disclosed to the Clinton County District Attorney's office in
Defendant Bishop's letter was Plaintiff's OMH 1S designation which does not create a constitutional violation. See Ruple v.
Bausch, No. 09-CV-1108 (NAM/DRH), 2010 WL 3171783, at *4 (N.D.N.Y. Jul. 21, 2010) (disclosure of inmate's depression
not type of medical information expected to “invoke discrimination, intolerance, or violence”), adopted by 2010 WL 3171813
(N.D.N.Y. Aug. 11, 2010); see also Williams v. Perlman, No. 06-CV-936 (GLS/DEP), 2009 WL 1652193, at *11 (N.D.N.Y.
Feb. 5, 2009) (dismissing right to privacy claim regarding psychiatric condition where inmate failed to alleged “existence of
any condition of such a magnitude or nature as to place it on par with HIV positive status or transsexualism which was disclosed
indiscriminately to non-medical personnel”), adopted in relevant part by 2009 WL 1652188 (N.D.N.Y. June 10, 2009).
*21 The disclosure of Plaintiff's OMH 1S designation was related to a legitimate penological purpose. Defendant Bishop
disclosed Plaintiff's OMH designation to the Clinton County District Attorney's office to pursue criminal charges against
Plaintiff. Disclosing mental health information related to an assault—an assault which forms the basis of criminal charges—
is related to a legitimate penological purpose. 7
The Court therefore recommends that summary judgment be granted dismissing with prejudice Plaintiff's Ninth Amendment
claim for disclosure of private information against Defendants Bishop and Deans.
VIII. Qualified Immunity
Since the Court is recommending that summary judgment be granted dismissing all of plaintiff's claims, it need not address
Defendants’ alternative qualified immunity argument. See Warren v. Corcoran, No. 9:09-CV-1146 (DNH/ATB), 2011 WL
5599587, at *8 (N.D.N.Y. Oct. 20, 2011) (“This court need not address qualified immunity with respect to [the] plaintiff's
various causes of action because ... he has not established any alleged violations of his constitutional rights.”), report and
recommendation adopted, 2011 WL 5599620 (N.D.N.Y. Nov. 17, 2011).
WHEREFORE, based on the findings above, it is
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RECOMMENDED, that Defendants’ motion for summary judgment (Dkt. No. 68) be GRANTED IN ITS ENTIRETY, and
it is further
RECOMMENDED, that Plaintiff's claim for excessive force against Doe 1 be DISMISSED WITH PREJUDICE as Plaintiff
has neither ascertained the identify of Doe 1 nor pursued his claim against this Defendant; and it is further
RECOMMENDED, that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE
against all Defendants; and it is
ORDERED that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), 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 (2d Cir. 1993) (citing
Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
All Citations
Slip Copy, 2025 WL 935237
Footnotes
1 The Court notes that Plaintiff has neither ascertained the identify of Doe 1 nor pursued his claim against this defendant.
Therefore, the Court recommends that Plaintiff's claim for excessive force against Doe 1 be dismissed with prejudice
and that Doe 1 be terminated as a defendant in this action.
2 Plaintiff was provided with the requisite notice. (Dkt. Nos. 68, 69).
3 This committee was formerly known as the “Inmate Grievance Resolution Committee,” but has recently been renamed.
4 The program was formerly known as the “Inmate Grievance Program,” but has recently been renamed.
5 The balance of this statement is illegible, as it appears to be covered by the CM/ECF banner.
6 Plaintiff also claims that defendants Bishop and Caringi's decisions violates the Mental Hygiene law, which gives rise
to a due process violation. This claim is meritless because no Mental Hygiene law statute is implicated.
7 In fact, under New York's discovery laws, specifically C.P.L. 245.20(K)(ii), (vii), Plaintiff's mental health status would
be information the prosecution would have to turn over to him so that he could put on a proper defense to the charges.
See C.P.L. 245.20(K).
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2025 WL 2611680
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jeffrey COHEN, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
23-cv-080599-NSR-VR
|
Signed September 9, 2025
Attorneys and Law Firms
Jeffrey Cohen, Danbury, CT, Pro Se.
Rebecca Lynn Salk, DOJ-United States Attorney's Office, New York, NY, for Defendant United States of America.
Alexander Kristofcak, Selendy Gay PLLC, New York, NY, Kamika Shaw, Rebecca Lynn Salk, DOJ-United States Attorney's
Office, New York, NY, for Defendant Warden J. L. Jamison.
Christopher Anthony Albanese, Milber Makris Plousadis & Seiden, LLP, Purchase, NY, for Defendant Seven Corners, Inc.
OPINION & ORDER
VICTORIA REZNIK, United States Magistrate Judge:
*1 Currently before the Court is a motion by Plaintiff Jeffrey Cohen under Rule 15(d) to supplement his second amended
complaint (ECF No. 49). For the reasons below, the motion is DENIED without prejudice.
BACKGROUND
Plaintiff commenced this action in September 2023 while incarcerated at FCI Otisville in Otisville, New York. (ECF No. 1 at
1). 1 His claims centered around his time incarcerated at FCI Otisville in New York and FCI Gilmer in West Virginia. (Id.).
He named several prison officials and the United States as defendants, alleging that his mail was improperly handled and that
he was denied medical care for sleep apnea and an injury to his back, among other things. (Id. at 2–10). In November 2023,
Plaintiff was granted leave to amend his complaint (ECF No. 7), which he did shortly thereafter in January 2024. (ECF No. 8).
The amended complaint asserted three claims of “ordinary negligence” against the United States, and alleged that the
Government denied and delayed him medical care for his sleep apnea, back injuries, and weight loss prescriptions while he
was incarcerated at FCI Otisville. (ECF No. 8 at 4–6). 2 Approximately six months later, Plaintiff sought leave to amend his
complaint for a second time (ECF No. 44), which was granted. (ECF No. 48). In his second amended complaint, Plaintiff
reasserted the three negligence claims against the Government contained in the amended complaint and asserted four additional
claims: (1) ordinary negligence against Defendant Seven Corners, Inc. for delaying medical care for his sleep apnea and back
injury, (2) ordinary negligence against the Government for failing to monitor Seven Corners’ provision of medical services,
(3) civil conspiracy against the Government and Seven Corners for conspiring to diminish the care provided to him, and
(4) “unlawful agency action” against the Government for violating regulations and protocols regarding placing prisoners in
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handcuffs that injured his hands and wrists. (ECF No. 49 at 2–4). 3 All four of the new claims occurred while Plaintiff was
incarcerated at FCI Otisville. (Id.).
After the Government moved to dismiss the second amended complaint as against it (ECF No. 69), Plaintiff agreed to voluntarily
withdraw several of his claims and Judge Román granted the Government's motion to that extent. (ECF No. 91 at 1). The
remaining claims were claim numbers one, two, and five against the Government, and claim numbers four and six against
Seven Corners. (Id.).
Plaintiff now seeks to supplement his second amended complaint to add three new defendants and six new claims, all of which
allegedly arose after he filed his second amended complaint—the operative complaint. (ECF No. 103). 4 The three defendants
are John Doe, an employee at FCI Otisville; Darek Puzio, an assistant warden at FCI Danbury; and “C. Flowers,” the warden
at FCI Danbury. (ECF No. 104 at 1). 5 The new claims are identified as Claim Nos. 8, 9, 10, 11, 12, and 13, to supplement the
seven claims contained in the operative pleading. (Id. at 10–12).
*2 Claim Nos. 8, 9, 10, and 12 assert claims of “ordinary negligence,” trespass/conversion, “recklessness,” and prima facie
tort against Doe and Puzio, alleging that Doe failed to properly transport Plaintiff's legal materials and that both individuals
intentionally disposed of those materials. (Id. at 10–12). Claim Nos. 11, 12, and 13 assert claims of “ordinary negligence” and
prima facie tort against the Government, alleging that it denied and delayed his medical care by transferring him from FCI
Otisville to FCI Danbury in retaliation for filing this action and that it disposed of his legal materials, which prejudiced his
ability to prosecute this action and other federal actions.
The Government opposes the motion (ECF No. 112), and Plaintiff replied (ECF No. 123). In his reply papers, Plaintiff withdrew
Claim Nos. 11 and 12 as against the United States, but stated he was not withdrawing Claim No. 12 as against Doe and Puzio.
(ECF No. 123 at 5). Thus, the Court will only address Claim Nos. 8, 9, 10, and 12 against Doe and Puzio, and Claim No. 13
against the Government.
DISCUSSION
I. Whether Plaintiff's Supplemental Claims are Sufficiently Connected to His Operative Claims
Plaintiff contends that he should be granted leave to supplement his operative pleading under Rule 15(d) because his
supplemental claims are sufficiently related to his operative ones. (ECF No. 103 at 2). Plaintiff alleges that since filing the
operative complaint, he was transferred to another facility in retaliation for filing this case. (ECF No. 104 at 2). And in the
process of that transfer, his legal materials were intentionally lost or destroyed. (Id. at 2–3). Plaintiff also asserts that the alleged
destruction of his legal materials has obstructed his ability to pursue his initial claims here, and in other cases. (Id.). He also
contends that supplementing his pleadings was done soon after the legal materials were destroyed, was not done in bad faith,
and does not unduly delay any proceedings. (Id.).
The Government argues in opposition that his supplemental claims are not sufficiently related to his operative ones. (ECF
No. 112 at 11–12). It argues that too much time has elapsed between the filing of the initial complaint and this supplemental
pleading, and that the supplemental claims add new individuals and correctional facilities unrelated to his initial claims. (Id.). The
Government also argues that Plaintiff's allegations that the conduct occurred in retaliation for filing this action are conclusory
and thus do not relate back to his initial claims. (Id.).
In reply, Plaintiff maintains that his supplemental claims are related to his operative ones because the loss of his legal materials
“has foreclosed the opportunity” for him to successfully pursue his operative claims. (ECF No. 123 at 1–2). He also maintains
that allowing him leave to supplement is a more efficient option than forcing him to commence a separate action. (Id. at 4).
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A district court has “broad discretion” in determining whether to grant leave to supplement pleadings under Rule 15(d). Perry v.
Monaco, 24-cv-8736 (LJL), 2025 WL 2256888, at *2 (S.D.N.Y. Aug. 7, 2025) (internal quotation marks and citation omitted).
In making that determination, the threshold consideration is “whether the supplemental facts connect the supplemental pleading
to the original pleading.” Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 88 (2d Cir. 2001) (internal quotation marks, brackets,
and citation omitted).
A sufficient connection occurs when the supplemental allegations “are closely related” to those asserted in the litigation already
and “involve the same subject matter.” Witkowich v. Gonzales, 541 F. Supp. 2d 572, 590 (S.D.N.Y. 2008); see also Girard v.
Collao, No. 18-CV-2026 (NSR), 2022 WL 409098, at *3 (S.D.N.Y. Feb. 9, 2022) (stating Rule 15(d) motion should be denied
“[w]hen there is no nexus between the events alleged in the original complaint and those alleged in the proposed supplemental
complaint, or if the new events did not arise out of the same conduct or occurrence as those in the original pleading” (internal
quotation marks, brackets, and citation omitted)); Perry, 2025 WL 2256888, at *2 (stating denial required when “the claim or
defense asserted in the supplemental pleading bears little or no relationship to the original pleading” (internal quotation marks,
brackets, and citation omitted)).
*3 Here, there is a sufficient connection between the supplemental claims and the operative ones. As noted above, Plaintiff's
operative claims relate to his allegations that the Government and Seven Corners denied or delayed his necessary medical care
at FCI Otisville. (ECF No. 8 at 1–5; 49 at 1–2). His supplemental claims allege that the Government transferred him from FCI
Otisville to FCI Danbury in retaliation for filing this action. (ECF No. 104 at 2–3). And in the process of that transfer, Plaintiff
alleges that the Government, along with Doe and Puzio, improperly disposed of his legal materials, which prejudiced his ability
to prosecute this action and others. (Id. at 2–8). Plaintiff's supplemental claims are closely related to his operative ones because
they center on the conditions of his incarceration and his pending litigation regarding those conditions. Being able to maintain
possession of his personal property—here, his legal materials—is closely related to whether he can satisfy his burden of proof
regarding his alleged denial of medical care.
A central purpose underlying Rule 15(d) is that supplementation serves to “add information about events that have occurred
subsequent to the date of the original complaint,” which Plaintiff's supplemental claims achieve. Bemben v. Fuji Photo Film
U.S.A., Inc., No. 01Civ.8616(KMW)(DF), 2003 WL 21146709, at *1 (S.D.N.Y. May 19, 2003). And it would serve no purpose
to deny Plaintiff leave to supplement, force him to commence a separate federal action asserting these supplemental claims,
and move to consolidate that action with the instant one. See Corum v. Beth Isr. Med. Ctr., 359 F. Supp. 909, 914 (S.D.N.Y.
1973). Allowing Plaintiff to supplement his pleading permits the entire controversy to be litigated on the merits as one singular
unit. (Id.). Thus, Plaintiff has satisfied the first requirement for obtaining leave to supplement pleadings. See Witkowich, 541 F.
Supp. 2d at 590 (granting leave to supplement because of close relationship and shared subject matter between new allegations
and operative allegations raised in complaint).
II. Whether Plaintiff's Supplemental Claims are Futile
Despite the sufficient connection between Plaintiff's supplemental claims and his operative ones and the principle that leave
should be freely granted, denial of leave is appropriate if there is evidence of “undue delay, bad faith, dilatory tactics, undue
prejudice to the party to be served with the proposed pleading, or futility.” Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.
1995). 6 Supplemental claims are futile when they would fail to survive a motion to dismiss under Rule 12(b)(6) for failure to
state a claim. See Nat'l Credit Union Admin. Bd. v. HSBC Bank US, Nat'l Ass'n, 331 F.R.D. 63, 70, 73 (S.D.N.Y. 2019) (granting
leave to supplement because new claims sufficiently stated causes of action regarding real party in interest).
The Government does not argue that Plaintiff operated in bad faith, engaged in dilatory tactics, created undue prejudice, or
caused undue delay by seeking to supplement his pleading, nor is there any indication that Plaintiff has done so. It only contends
that Plaintiff should be denied leave because his supplemental claims are futile. (ECF No. 112 at 12). More specifically, it
contends that his claims are Bivens and FTCA claims that would not survive a motion to dismiss because (1) he failed to first
exhaust his administrative remedies, and (2) he fails to state a cognizable claim. (Id. at 12–20).
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Plaintiff maintains in reply that his claims are not futile because he is alleging that these individuals committed common-law
torts in their individual capacities, so the requirements for Bivens and FTCA claims do not apply. (ECF No. 123 at 4–5).
*4 The Court first addresses Plaintiff's supplemental claims against Doe and Puzio (in Claim Nos. 8, 9, 10, and 12), both as
common-law tort claims and as possible Bivens claims. The Court then addresses Plaintiff's supplemental FTCA claim against
the Government (in Claim No. 13).
A. Plaintiff's common-law tort claims against Doe and Puzio (in Claim Nos. 8, 9, 10 and 12)
Plaintiff insists that Claim Nos. 8, 9, 10, and 12 are common-law tort claims against Doe and Puzio in their individual capacities.
(ECF No. 123 at 4–5). And, as a result, Plaintiff asserts that his supplemental claims are not governed by the Federal Tort
Claims Act (FTCA), as would be his tort claims against the Government. (ECF No. 123 at 1–2, 4). But the FTCA provides
government employees with absolute immunity against common-law tort claims when the employee is acting within the scope
of their employment. See Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991) (affirming dismissal of common-law tort
claims against individual defendants on ground that FTCA gave federal law enforcement agents absolute immunity from suit
for damages when acting within scope of their employment); Lipkin v. SEC, 468 F. Supp. 2d 614, 616–17 (S.D.N.Y. 2006)
(finding FTCA barred common-law tort claims against federal employees in their individual capacity when acting within scope
of their employment); 28 U.S.C. § 2679(b)(1) (providing that suit against the United States is exclusive remedy for damages
for injury or loss of property “resulting from the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment”).
To try to avoid this outcome, Plaintiff alleges in the supplemental pleading and his motion papers that Doe and Puzio were acting
outside the scope of their employment. (ECF No. 123 at 4–5). Although the Court is required to accept all factual allegations
in the supplemental pleading as true and construe any inferences in the light most favorable to Plaintiff, no effect is given
to “assertions of law or to legal conclusions couched as factual allegations.” Anderson News, L.L.C. v. Am. Media, Inc., 680
F.3d 162, 185 (2d Cir. 2012) (internal quotation marks and citations omitted), cert. denied 568 U.S. 1087 (2013). Plaintiff's
allegation that Doe and Puzio acted outside the scope of their employment is just such “a legal conclusion masquerading as
a factual conclusion, which the Court need not accept as true” at this stage. Dawson v. Beebe, 24 Civ. 1548 (KPF), 2025 WL
2402289, at *10 (S.D.N.Y. Aug. 19, 2025) (internal quotation marks, brackets, and citation omitted) (concluding as a matter of
law that defendant state correctional officers were not acting within scope of employment when they engaged in misconduct);
see Ziccarelli v. NYU Hosps. Ctr., 247 F. Supp. 3d 438, 452 n.6 (S.D.N.Y. 2017) (finding plaintiff's assertion that coworker
was acting within scope of employment amounted to legal conclusion). Thus, the Court cannot and does not construe Plaintiff's
allegation that Doe and Puzio were acting outside the scope of their employment to mean that they were, in fact, doing so. See
Dawson, 2025 WL 2402289, at *10.
Instead, whether conduct falls within the scope of employment under the FTCA is a legal question governed by “the respondeat
superior law of the jurisdiction where the tort occurred.” Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016). Here, Doe's
conduct occurred at FCI Otisville in New York and Puzio's conduct occurred at FCI Danbury in Connecticut. (ECF No. 104
at 3–7).
*5 Under New York law, an employee's act falls within the scope of their employment when it was “done while the servant
was doing his master's work, no matter how irregularly, or with what disregard of instructions.” Riviello v. Waldron, 391 N.E.2d
1278, 1281 (N.Y. 1979) (internal quotation marks and citations omitted); accord Swarna v. Al-Awadi, 622 F.3d 123, 144 (2d Cir.
2010) (quoting Riviello, 391 N.E.2d at 1281). 7 Connecticut has a similar test: An employee is within the scope of employment
“while engaged in the service of the master,” and an act is outside the scope when an employee “engaged in a disobedient or
unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business.” A–G Foods, Inc. v.
Pepperidge Farm, Inc., 579 A.2d 69, 74 (Conn. 1990) (internal quotation marks and citations omitted); see Aldridge v. Hartford
Hosp., 969 F. Supp. 816, 819 (D. Conn. 1996) (citing A–G Foods, Inc., 579 A.2d at 71).
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Applying the relevant state law test to Doe's and Puzio's alleged conduct yields the same result—their alleged conduct falls
within the scope of their employment. Handling a prisoner's personal possessions is plainly within the normal and expected
duties of BOP officials, as shown by the host of federal regulations governing that conduct. See, e.g., 28 CFR §§ 553.10–.15
(regulations governing “Inmate Personal Property”). Plaintiff even points to as much in his motion papers, highlighting various
federal regulations and internal BOP policies related to handling inmate property to support his supplemental claims. (ECF No.
104 at 2–3; 123 at 6–8). Whether Doe and Puzio acted wrongfully in how they handled Plaintiff's personal property does not
remove their conduct from within the scope of their employment. See Rivera, 928 F.2d at 608–09 (holding law enforcement
officers were within scope of employment when executing warrants, despite allegations that they acted wrongfully in doing so).
As the Second Circuit explained in Rivera, “the question of whether the act was wrongful is a different one from whether the
act occurred while the employee was acting within the scope of his employment.” Id. at 608.
Even reading the factual allegations of the supplemental pleading in the light most favorable to Plaintiff, Doe and Puzio
were acting within the scope of their employment. As Plaintiff alleges in his supplemental pleading, “staff at FCI Otisville
were required [by BOP policy] to pack and ship” all his personal property to FCI Danbury when he was transferred, and he
communicated with staff at FCI Danbury about where they would store his legal materials. (ECF No. 104 at 2–4). Handling
Plaintiff's personal property was thus part of Doe's and Puzio's job responsibilities as staff at FCI Otisville and FCI Danbury.
That Doe and Puzio allegedly mishandled Plaintiff's legal materials does not make their actions outside the scope of their
employment. See Rivera, 928 F.2d at 608–09 (finding that execution of search warrants, even if allegedly done wrongfully,
was still within scope of employment); cf. Ierardi v. Sisco, 119 F.3d 183, 188 (2d Cir. 1997) (finding prison official allegedly
engaging in sexual harassment “during the course of his employment” was outside the scope because it “was not undertaken
in the discharge of his duties”).
*6 Because Doe and Puzio were acting within the scope of their employment, they are immune from suit by the FTCA. See
Rivera, 928 F.2d at 608. Thus, it would be futile for Plaintiff to supplement his operative complaint to include the common-law
tort claims in Claim Nos. 8, 9, 10, and 12 against Doe and Puzio in their individual capacities, because they would not survive
a motion to dismiss. See Scott v. Harbeck, 22-CV-241 (JPO), 2023 WL 1382050, at *3 (S.D.N.Y. Jan. 31, 2023) (denying leave
to supplement because supplementation would be futile). 8
B. Plaintiff's Bivens claims against Doe and Puzio (in Claim Nos. 8, 9, 10, and 12)
Because Plaintiff is a pro se litigant, the Court must construe the claims in Plaintiff's supplemental pleading “liberally to raise
the strongest arguments it suggests.” Darby v. Greenman, 14 F. 4th 124, 127–28 (2d Cir. 2021) (internal quotation marks and
citation omitted). Although the FTCA renders federal employees immune from causes of action for common-law torts, a cause
of action for certain constitutional torts is allowed under the line of precedent established by the Supreme Court's decision in
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Egbert v. Boule, 596 U.S. 482, 490–
91 (2022) (discussing three types of constitutional torts recognized by Supreme Court precedent after initial decision in Bivens).
The Second Circuit has recognized that “intentional deprivations of property without due process of law” are an additional
constitutional tort that can support a cause of action under Bivens. See Polanco v. DEA, 158 F.3d 647, 650 (2d Cir. 1998). But
that Bivens remedy has been limited to “only” intentional deprivations of property; negligent deprivations are not sufficient.
Id.; see also Roseboro v. Gillespie, 791 F. Supp. 2d 353, 380 (S.D.N.Y. 2011) (granting summary dismissal of plaintiff's Bivens
claim against BOP employee after concluding that negligent deprivations of property cannot support remedy under Bivens and
there was insufficient evidence “that his property was intentionally destroyed rather than simply lost”). 9
*7 In Claim Nos. 9 and 12, Plaintiff alleges that Doe and Puzio “intentionally dispossessed” him and intentionally harmed him
by disposing of his legal materials. (ECF No. 104 at 11–12). Reading those claims in the light most favorable to Plaintiff, they
could be read to assert Bivens claims. Claim Nos. 8 and 10 also allege that Doe and Puzio deprived Plaintiff of his property, but
Plaintiff alleges they did so negligently and recklessly. (ECF No. 104 at 10–11). 10 Thus, even reading these two claims in the
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light most favorable to Plaintiff, allowing him to supplement his operative pleading with Claim Nos. 8 and 10 would be futile
because those claims would not survive a motion to dismiss. See Roseboro, 791 F. Supp.2d at 380.
In arguing the futility of Plaintiff's Bivens claims, the Government first argues that Plaintiff failed to exhaust them because
he failed to comply with the Bureau of Prisons’ (BOP) four-step process for exhausting administrative remedies. (ECF No.
112 at 12–14). The Government further argues that the supplemental pleading is “devoid of any allegations establishing
exhaustion.” (Id. at 14). In reply, Plaintiff maintains that his claims are not Bivens claims and need not be exhausted. (ECF
No. 123 at 1, 4–5).
The Prison Litigation Reform Act provides that a prisoner cannot commence an action in federal court regarding their prison
conditions until all administrative remedies have been exhausted. See 42 U.S.C. § 1997e(a). That exhaustion requirement
“applies to ‘all inmate suits about prison life,’ ” including actions, like this one, where a plaintiff seeks monetary damages.
See Wood v. Byrd, No. 16-CV-8142 (KMK), 2020 WL 550787, at *4 (S.D.N.Y. Feb. 4, 2020) (quoting Porter v. Nussle, 534
U.S. 516, 520, 532 (2002)). A litigant is not required to plead exhaustion to survive dismissal, but the failure to exhaust is an
affirmative defense that can be considered in a pre-answer dismissal context. See Wood, 2020 WL 550787, at *4 (citing Jones
v. Bock, 549 U.S. 199 (2007)).
Dismissal for failure to exhaust is appropriate where the failure “is clear on the face of the complaint,” meaning it can be
determined from the contents of the pleading alone that the plaintiff “file[d] his action before the timeline for administrative
remedies ha[d] elapsed.” McCray v. Carter, 21 Civ. 9051 (PAE) (GWG), 2022 WL 6854524, at *3 (S.D.N.Y. Oct. 12, 2022)
(internal quotation marks and citations omitted). And, contrary to the Government's contention, a pleading “may lack specifics
as to how the plaintiff grieved his claim, but that is not a valid basis for dismissal.” Johnson v. Westchester Cnty. Dep't of
Corr. Med. Dep't, No. 10 Civ. 6309(JGK), 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011). If a defendant satisfies its initial
burden to demonstrate a failure to exhaust, the burden shifts to the plaintiff to demonstrate that an exception to the exhaustion
requirement applies. Wood, 2020 WL 550787, at *6.
Despite the strict emphasis on exhaustion, the PLRA contains a “ ‘textual exception to mandatory exhaustion.’ ” Id. at *5
(quoting Ross v. Blake, 578 U.S. 632, 642 (2016)). That exception is grounded in the availability of administrative remedies
—an inmate “must exhaust available remedies, but need not exhaust unavailable ones.” Ross, 578 U.S. at 642. A remedy is
available when it can obtain some sort of relief for the injury the inmate complained about. See id. (holding available meant
“grievance procedures that are capable of use to obtain some relief for the action complained of” (internal quotation marks and
citation omitted)). And the form of relief is irrelevant to whether a remedy is available. See Booth v. Churner, 532 U.S. 731,
741 & n.6 (2001) (holding inmates must exhaust available administrative remedies “regardless of the relief offered through
administrative procedures”).
*8 There are three recognized circumstances where a remedy is considered unavailable for purposes of the PLRA: “(1)
the grievance process operates as a simple dead end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates; (2) the process 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.” Rucker v. Giffen, 997 F.3d 88, 93 (2d Cir. 2021) (internal quotation marks and citation omitted). 11
Plaintiff's supplemental pleading does not identify the relevant administrative grievance procedures, but the Government points
to the “Administrative Remedy Program” promulgated in 28 C.F.R. § 542 et seq. The Program “applies to all inmates in
institutions operated by the [BOP]” and allows them “to seek formal review of an issue relating to any aspect of [their] own
confinement.” BOP Administrative Remedy Rules, 28 C.F.R. § 542.10(a)–(b). This agency regulation is something the Court
can consider through judicial notice. See Williams v. NYC Health and Hosps. Corp., 24-cv-5467 (LJL), 2025 WL 1334667,
at *2 n.2 (S.D.N.Y. May 7, 2025) (“Courts may take judicial notice of agency rules and regulations.”). The Court thus takes
judicial notice of the applicable grievance procedures contained in 28 C.F.R. Chapter V, Subchapter C, Part 542.
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The Administrative Remedy Program (ARP) has four steps an inmate must follow to resolve their grievance. The first step is
an informal request to staff to resolve the issue, which must follow whatever procedure is established by the Warden of the
facility where Plaintiff is incarcerated. 28 C.F.R. § 542.13. Second, if the informal request does not resolve the issue, the inmate
must make a formal written request to the Warden within 20 days of the date the issue began. 28 C.F.R. § 542.14(a). 12 Third,
if the formal request is denied, the inmate may appeal the Warden's decision to the Regional Director within 20 days of the
Warden's response, who is required to respond to the appeal within 30 days. 28 C.F.R. §§ 542.15, 542.18. And finally, an inmate
may appeal the Regional Director's decision to the General Counsel within 30 days of the Regional Director's response, who is
required to respond to the appeal within 40 days. 28 C.F.R. §§ 542.15, 542.18. An appeal to the General Counsel “is the final
administrative appeal” available to the prisoner, 28 C.F.R. § 542.15, and an inmate “may file an action in federal court only
after these four steps have been completed.” Indelicato v. Suarez, 207 F. Supp. 2d 216, 219 (S.D.N.Y. 2002).
The allegations in Plaintiff's supplemental pleading occurred between April 23, 2025 (the date he was transferred to FCI
Danbury), and May 20, 2025 (when Puzio allegedly disposed of Plaintiff's legal materials). Plaintiff moved for leave to
supplement his operative pleading on June 16, 2025, just 54 days after his earliest incident. His supplemental pleading mentions
speaking to his counselor, an AUSA, a BOP “legal representative,” and Puzio himself about his legal materials but is otherwise
silent about filing any formal grievances. (ECF No. 104 at 4–5). But given the lengthy timelines of the ARP and its multi-
level grievance process, it would have been virtually “impossible” for Plaintiff to exhaust all steps of the procedure between
the alleged incident and the filing of his supplemental pleading. See Price v. City of New York, No. 11 Civ. 6170 (TPG), 2012
WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012). Thus, it is clear from the face of his supplemental pleading that Plaintiff failed to
exhaust the administrative remedies available to him. See id. (finding plaintiff failed to exhaust claims because it was impossible
for him to complete state prison grievance procedure in 21-day period between date of incident and filing complaint); McCray,
2022 WL 6854524, at *3 (finding plaintiff failed to exhaust claims because it was “virtually impossible” to complete multi-
level grievance process in five-day period between incident and filing complaint); Caraballo v. Dep't of Corr. City of N.Y., 22-
cv-00971 (JLR), 2022 WL 16555313, at *3 (S.D.N.Y. Oct. 31, 2022) (similar).
*9 Nor is there any indication that any administrative remedies were not available to Plaintiff. Nothing suggests that the
ARP constitutes a dead end, is too confusing for Plaintiff to navigate, or that any administrators thwarted Plaintiff's attempt
to pursue that avenue. Thus, Plaintiff's Bivens claims would not survive a motion to dismiss because of his failure to exhaust
his administrative remedies, which warrants denial of his motion to add these claims through supplementation. See Scott, 2023
WL 1382050, at *3.
Because the Court finds that Plaintiff's Bivens claims are futile due to a failure to exhaust, the Court declines to address the
merits of whether Plaintiff's Bivens claims otherwise fail to state a claim.
C. Plaintiff's FTCA Claim against the Government (Claim No. 13)
Plaintiff also seeks to add Claim No. 13 against the Government for “ordinary negligence” based on the improper disposal of
his legal materials. (ECF No. 104 at 12). Because Plaintiff's claim is a common-law tort claim against the United States, it is
governed by the FTCA. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (explaining
FTCA's statutory background and waiver of sovereign immunity for specific tort claims against the Government).
The Government argues that Plaintiff failed to exhaust his FTCA claims because he failed to submit “an SF-95 or other written
notification of the incident and the claim amount within two years from the date the claim accrue[d].” (ECF No. 112 at 18–19).
It also argues that the supplemental pleading lacks any information establishing that he exhausted these claims. (Id.).
In reply, Plaintiff maintains that he “submitted the required claim to the BOP,” which allegedly acknowledged receipt and has
several months left to resolve his administrative claim. (ECF No. 123 at 5). 13
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“The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court.
This requirement is jurisdictional and cannot be waived.” Celestine, 403 F.3d at 82. To exhaust those administrative remedies,
a plaintiff must file a claim for damages with the appropriate federal agency and receive a final written determination. See
28 U.S.C. § 2675(a); Roberts v. Amtrack R.R. Co., 23-CV-8093 (LTS), 2023 WL 6882226, at *3 (S.D.N.Y. Oct. 16, 2023).
That administrative claim “must be in writing, specify the amount of damages sought, and be filed within two years of the
claim's accrual.” Roberts, 2023 WL 6882226, at *3. Once the federal agency provides a final denial of the administrative claim,
or no final determination is made within six months of the claim's initial submission, a plaintiff can commence an action in
federal court. Id. A plaintiff alleging FTCA claims bears the burden “to both plead and prove compliance with the [FTCA's]
requirements.” In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987), cert. denied 484 U.S. 1004 (1988). And
“[t]his procedural hurdle applies equally to litigants with counsel and to those proceeding pro se.” Adeleke v. United States,
355 F.3d 144, 153 (2d Cir. 2004).
*10 Even giving Plaintiff's supplemental pleading the most liberal construction, he “wholly fails to plead the filing of an
administrative claim” with any agency. 14 Bright-Asante v. Wagner, 15-CV-9110 (ALC), 2017 WL 6948359, at *9 (S.D.N.Y.
Dec. 1, 2017) (dismissing plaintiff's FTCA claims for failure to exhaust after pleading failed to allege filing of administrative
claim with Secret Service). His supplemental pleading “alleges no facts to show that a sufficient administrative claim was filed
with an appropriate federal agency as required under the FTCA.” Cannenier v. Skipper-Scott, 18 Civ. 2383 (LGS), 2019 WL
764795, at *4 (S.D.N.Y. Feb. 20, 2019) (dismissing FTCA claims for lack of exhaustion); Page v. Oath Inc., 17 Civ. 6990 (LGS),
2018 WL 1406622, at *4 (similar where pleading was “devoid of any facts suggesting that Plaintiff filed an administrative
claim with an appropriate federal agency”), aff'd 797 F. App'x 550 (2d Cir. 2019). Plaintiff would fail to survive a motion to
dismiss because this Court would lack subject matter jurisdiction over Claim No. 13. See Roberts, 2023 WL 6882226, at *4. 15
Thus, this failure to exhaust renders Claim No. 13 futile, which warrants denial of Plaintiff's motion to add this claim through
supplementation. See Scott, 2023 WL 1382050, at *3.
The Court declines to address the merits of Claim No. 13 because it would lack subject matter jurisdiction over that claim due
to Plaintiff's failure to exhaust. See Ojo v. United States, 20-CV-4882 (MKB), 2022 WL 4091011, at *5 n.7 (E.D.N.Y. Sept. 6,
2022); Gabrielli v. Insider, Inc., 24-cv-01566 (ER), 2025 WL 522515, at *9 (S.D.N.Y. Feb. 18, 2025).
CONCLUSION
For the reasons above, Plaintiff's motion for leave to supplement his operative pleading (ECF No. 103) is DENIED without
prejudice. The Clerk of Court is directed to close the gavel associated with ECF No. 103.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 2611680
Footnotes
1 All page numbers for documents filed on ECF refer to ECF pagination.
2 These are labeled Claim Nos. 1, 2, and 3, respectively. (ECF No. 8 at 4–6).
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3 These are labeled Claim Nos. 4, 5, 6, and 7, respectively. (ECF No. 49 at 1–3).
4 Plaintiff's motion is properly characterized as a motion to supplement under Rule 15(d) because the events described
in the supplemental pleading occurred after the filing of his original complaint. See Fed. R. Civ. P. 15(d) (“[T]he court
may ... permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.”); see also Kleeberg v. Eber, 331 F.R.D. 302, 315 (S.D.N.Y. 2019)
(“Rule 15(d) allows a party to supplement its complaint in order to present facts and claims that arose after the operative
complaint was filed.”).
5 Flowers is not mentioned explicitly in the supplemental pleading outside the caption. (ECF No. 104 at 1). The
supplemental pleading contains no factual allegations that Flowers was involved in any way with Plaintiff's medical care
or the disposal of his legal materials. Even construing the supplemental pleading in the light most favorable to Plaintiff,
there is no way to read it to assert a cause of action against Flowers. Further, even if Flowers is a named defendant, any
claims against him would be analyzed the same way as Plaintiff's supplemental claims against Doe and Puzio. Thus, the
only individual defendants who will be addressed by the Court are Doe and Puzio.
6 This standard is identical to the standard applied to motions for leave to amend under Rule 15(a). See Holmes v. Grubman,
568 F.3d 329, 334 (2d Cir. 2009) (explaining discretionary standard for granting leave under Rule 15(a)); CFPB v.
MoneyGram Int'l, Inc., 22 Civ. 3256 (KPF), 2025 WL 297389, at *5 (S.D.N.Y. Jan. 24, 2025) (reiterating same standard
applies to Rule 15(a) and 15(d) motions).
7 New York law also provides five factors that are relevant to this determination: “the connection between the time,
place[,] and occasion for the act; the history of the relationship between employer and employee as spelled out in actual
practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of
performance; and whether the specific act was one that the employer could reasonably have anticipated.” Riviello, 391
N.E.2d at 1281; see Fountain, 838 F.3d at 138 (quoting Riviello, 391 N.E.2d. at 1281).
8 But Plaintiff is not left without a remedy for these alleged injuries. He could substitute the United States as the proper
defendant instead of Doe and Puzio. But such FTCA claims would be subject to exhaustion requirements, which Plaintiff
has failed to meet at this time. See infra Section II.C.
9 As the Second Circuit reiterated in Adekoya v. BOP, 381 F. App'x 35 (2d Cir. 2010) (summary order), “a negligent
deprivation [of property without due process of law] is insufficient and not actionable” as a Bivens claim. Id. at 37
(dismissing plaintiff's Bivens claims against BOP employees because his alleged property deprivation “arose out of
negligence” (internal quotation marks and citation omitted)). Summary orders issued by the Second Circuit are not
binding authority and do not provide Circuit precedent. See 2d Cir. R. 32.1.1 (precedential effect of summary orders)
(“Rulings by summary order do not have precedential effect.”); Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d
696, 702 n.4 (2d Cir. 2009) (stating summary orders “do not provide binding authority”). But they do provide persuasive
authority that this Court may rely on in deciding the instant motion. See Delo v. Fordham Univ., 24-CV-6025 (JGLC)
(VF), 2025 WL 2166087, at *10 (S.D.N.Y. June 2, 2025) (“While summary orders are not binding, they are nonetheless
persuasive authority in this Circuit.” (citation omitted)); Liana Carter Ltd. v. Pure Biofuels Corp., 14-cv-3406 (VM),
2015 WL 10793422, at *4 (S.D.N.Y. Aug. 14, 2015) (explaining that summary orders “can be instructive to district
courts in resolving particular disputes, and also may be seen as highly persuasive”).
10 Plaintiff reiterates in his reply papers that his claims against Doe and Puzio are not Bivens claims. (ECF No. 123 at 1,
4–5). But the Court nevertheless analyzes these claims as Bivens claims, given the Court's duty to construe Plaintiff's
claims to raise the strongest arguments that they suggest.
11 The Second Circuit has stated that these three circumstances are not exhaustive, but it is unclear whether any other
circumstances beyond these three have been identified by courts in this Circuit. See Rucker, 997 F.3d 88, 93 (2d Cir.
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2021) (“[In Williams v. Corr. Officer Priatno, 829 F.3d 118 (2d Cir. 2016),] we declined to identify other circumstances
that might render a technically available administrative remedy effectively unavailable.”).
12 The Warden is required to respond within 20 days of receiving the written request. 28 C.F.R. § 542.18.
13 Plaintiff appears to concede that his FTCA claim is unexhausted, because he acknowledges in his reply papers that
the Government still has “an additional three months to determine whether to settle or deny” an administrative claim
he submitted previously regarding this purported property loss. (ECF No. 123 at 5). But this apparent concession is
irrelevant to the analysis of whether he satisfied the exhaustion requirements because the analysis focuses on the four
corners of the supplemental pleading to see if he sufficiently plead exhaustion. See In re Agent Orange Prod. Liab.
Litig., 818 F.2d 210, 214 (2d Cir. 1987) (finding lack of subject matter jurisdiction because complaint failed to allege
procedural exhaustion of FTCA claim).
14 As mentioned above, despite Plaintiff's mention of a pending administrative claim about the loss of his personal property,
the four corners of his supplemental pleading contain no mention of it. Even if this Court were to consider Plaintiff's
statements outside his supplemental pleading, it would only serve to highlight his failure to exhaust because he concedes
that the Government has time to render a determination on that claim.
15 But any dismissal would be without prejudice, and Plaintiff would have the opportunity to replead his FTCA claims
once he properly exhausted them. See Bettis v. United States, 346 F.R.D. 34, 41 (S.D.N.Y. 2024) (dismissing FTCA
claims without prejudice for lack of subject matter jurisdiction based on failure to exhaust); Manchanda v. Lewis, 20
Civ. 1773 (GBD) (RWL), 2021 WL 1192083, at *4 (S.D.N.Y. Mar. 30, 2021) (similar).
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Morgan v. Shivers, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Bueno Diaz v. Mercurio, S.D.N.Y., March 5, 2020
2018 WL 618451
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Johnny MORGAN, Plaintiff,
v.
Kimberly SHIVERS (Operations Lieutenant), Rashee Graham (Senior Officer), Christopher Merrick (Senior
Officer), Keith Hardy (Activities Lieutenant), Jabraddrick Durrant (Corrections Officer), Gregory Adams
(Corrections Officer), Mr. William Feliciano (Shu Officer), and the United States of America, Defendants.
1:14-cv-7921-GHW
|
Signed 01/29/2018
Attorneys and Law Firms
Johnny Morgan, White Deer, PA, pro se.
Natasha Waglow Teleanu, United States Attorney's Office, New York, NY, for Defendants.
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, United States District Judge
I. INTRODUCTION
*1 In February 2014, pro se Plaintiff Johnny Morgan was a pre-trial detainee at the Federal Metropolitan Correctional Center
(“MCC”) in New York. Following social contact visits in the prison, inmates were required to submit to a visual search. During
one such search, prison officials located contraband in one of Mr. Morgan’s body cavities. According to Mr. Morgan, the prison
officials conducted an unreasonable search and forcibly removed the contraband from his body, causing him pain. Mr. Morgan
brings a number of constitutional claims pursuant to Bivens v. Six Unknown Named Agents, as well as claims under the Federal
Tort Claims Act (“FTCA”). Mr. Morgan’s FTCA claims related to the search at issue here will be decided at trial; Defendants
move for summary judgment only as to Mr. Morgan’s Bivens claims, as well as his FTCA claim to the extent it is premised on
a violation of Bureau of Prisons (“BOP”) policy. Because it is not appropriate to imply a damages remedy for the constitutional
claims raised by Mr. Morgan, Defendants' motion for partial summary judgment is GRANTED.
II. FACTUAL BACKGROUND 1
Plaintiff Johnny Morgan was incarcerated at the BOP’s MCC in New York, New York from March 5, 2012 until April 15,
2013, and again from October 1, 2013 until March 26, 2015. Dkt. No. 212, Defendants' Statement of Material Undisputed Facts
Pursuant to Local Rule 56.1 (“Defs.' 56.1”) ¶ 1. While at the MCC, Mr. Morgan had visits with friends and family. Id. ¶ 2.
Pursuant to BOP policy, upon the conclusion of social contact visits, inmates are required to submit to a visual search by a
correctional officer. Id. ¶¶ 3-4. Such searches generally involved the inmate removing his clothes, and complying with various
verbal orders that would facilitate the correctional officer’s search for contraband. Id. ¶¶ 5-6.
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On February 10, 2014, Mr. Morgan participated in a social visit. Id. ¶ 7. During the visit, he was given a “big,” “fat” piece of
contraband that consisted of tobacco and K2, wrapped in plastic, which he attempted to secret in his anal cavity. Id. ¶¶ 8-9;
Declaration of Natasha Teleanu (“Teleanu Decl.”), Ex. A (“Morgan Dep. Tr.”) at 52:4-15, 53:17-54:16, 64:20-21. Mr. Morgan
admits that the contraband was only pushed half-way into his anal cavity. Defs.' 56.1 ¶ 9. Following this social visit, at around
6:30 p.m., MCC correctional officer Rashee Graham started to conduct the required visual search of Mr. Morgan. Id. ¶ 11;
Morgan Dep. Tr. at 72:4-74:10, 78:10-78:21. During the search, following two orders to squat and cough and an order directing
Mr. Morgan to spread his butt cheeks, Officer Graham saw the contraband. Defs.' 56.1 ¶¶ 12-14. Officer Graham ordered Mr.
Morgan to turn the contraband over, but Mr. Morgan refused to do so. Id. ¶ 15. Officer Graham then radioed for assistance from
other prison officers, and while he did so, Mr. Morgan attempted to push the contraband further inside him. Id. ¶ 17; Morgan
Dep. Tr. at 94:2-16. Id. Eventually Lieutenant Keith Hardy responded to Officer Graham’s request for assistance and came to
the search room. Id. ¶ 18. What happened next is in dispute. Mr. Morgan contends that that the contraband was forcibly removed
from his anal cavity by Officer Graham, causing Mr. Morgan pain. Id. ¶ 19; Morgan Dep. Tr. at 135:6-7 (“Once he pulled [the
contraband] from out of me I observed it from his hand.”). According to a BOP report concerning the incident, the officers
involved aver that no force was used in removing the bag from Mr. Morgan’s rectum. Dkt. No. 221, Declaration of Anthony
Pedone, Ex. A (Special Investigative Agent Investigative Report at 2-3).
*2 Pursuant to BOP procedure, when officers suspect an inmate is secreting contraband, that inmate is escorted to a “dry cell”
in order for officers to observe the inmate’s bowel movements to ensure that the inmate is not hiding additional contraband.
Defs.' 56.1 ¶ 21. After the contraband was retrieved, Mr. Morgan was therefore handcuffed and escorted to a dry cell in the
special housing unit. Id. ¶ 20. On his way to the dry cell, and again after some time in the dry cell, Mr. Morgan asked Lieutenant
Hardy and one other officer to be taken to the medical department because he was in pain, and had observed blood on the
contraband and on his underwear. Defs.' 56.1 ¶¶ 43-44. Mr. Morgan asked “nobody else” besides these two officers about
receiving medical treatment. Morgan Dep. Tr. at 148:1-5. While in the dry cell, Mr. Morgan used tissues to wipe around his
anal cavity, saw blood on the tissues after doing so, and showed officers the tissues. Id. at 150:6-17. Mr. Morgan testified that
he eventually fell asleep in the dry cell, and that when he woke up, “by then the bleeding I think kind of slowed down, so I just
left it like that. And then they took me [to get medical treatment] the next day.” Id. at 151:4-10.
Less than twenty-four hours after the search, at around 1:00 p.m. on February 11, 2014, the MCC Chief Psychologist, Dr.
Elissa Miller evaluated Mr. Morgan’s condition. See Dkt. No. 217, Declaration of Elissa R. Miller, Psy.D (“Miller Decl.”), Ex.
A (February 11, 2014 Sexual Abuse Intervention Contact Note) (“The Chief Psychologist was contacted by the [Prison Rape
Elimination Act (“PREA”) ] Coordinator.... According to the [PREA Coordinator], Inmate Morgan reported he was ‘violated’
during a visual search.... Inmate Morgan was immediately interviewed at 1:00 p.m.”). The psychologist reported that Mr. Morgan
told her that the search caused him pain, and that he continued to wipe blood from his anus as a result of the search. Defs.' 56.1
¶ 49. Dr. Miller responded to Mr. Morgan’s complaints by directing a “complete medical evaluation” by the Health Services
Department, and further referring him to the special investigation unit for further investigation of the incident. Miller Decl.,
Ex. A at 1.
Later that day, at around 3:45 p.m., Mr. Morgan received the directed medical evaluation when BOP mid-level medical
practitioner Erwin Ramos performed an injury assessment. Defs.' 56.1 ¶¶ 51, 53. Mr. Ramos noted “no rectal/anal tears” and “no
bleeding[,] redness, or swelling” during this exam. Id. ¶¶ 54-55, see also Dkt. No. 218, Declaration of Erwin Ramos (“Ramos
Decl.”), Ex. A (February 11, 2014 Health Services Clinic Encounter Report). In the two months following the February 10,
2014 incident, including twice within one week of the search, Mr. Morgan was seen by other BOP and independent medical
practitioners on a number of occasions. Defs.' 56.1 ¶ 56. Specifically, Mr. Morgan was seen by Dr. Miller on February 12,
February 20, and March 13; by a BOP mid-level practitioner on February 15; by an outside clinic on February 28, by a BOP
psychiatrist on March 24; and by a BOP physician on March 25. See Miller Decl. ¶¶ 5-7, 9 & Exs. B, C, and D; Dkt. No. 219,
Declaration of Robert Beaudoin, M.D. (“Beaudouin Decl.”) ¶¶ 9-14 & Exs. B, C, D, and E.
Although Mr. Morgan testified that he is not aware of any internal damage to his anal cavity, Morgan Dep. Tr. at 164:3-5,
in opposing summary judgment, he maintains that he “continues to bleed from his rectum” and “continues to believe that he
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sustained damage at the time of the incident,” Dkt. No. 242, Plaintiff’s Corrected Response In Opposition To Defendants[']
Statement of Material Undisputed Facts, ¶¶ 54-55.
III. PROCEDURAL HISTORY
Mr. Morgan filed his initial complaint on September 29, 2014, and amended his complaint multiple times. Defendants filed
their motion for partial summary judgment on May 17, 2017, arguing that Plaintiff failed to timely exhaust his administrative
remedies under the Prison Litigation Reform Act (“PLRA”), that certain Individual Defendants had no personal involvement
with the alleged constitutional violations at issue, that any delay in medical treatment was not sufficiently serious to support
liability, and that a violation of BOP policy is not actionable under the FTCA. Dkt. No. 222 (“Defs.' Mot.”). Plaintiff opposed
Defendants' motion on July 6, 2017. Dkt. No. 230 (“Pl.'s Oppn”).
*3 Following the filing of Plaintiff’s opposition, Defendants requested leave to file an extended reply in support of their
motion for summary judgment in order to address the applicability of the recent Supreme Court decision in Ziglar v. Abbasi,
137 S.Ct. 1843 (2017). The Court granted Defendants' request, and Defendants filed their reply brief on July 21, 2017. Dkt.
No. 234 (“Defs.' Reply”). Mr. Morgan filed a sur-reply on August 10, 2017 to address the Defendants' additional arguments.
Dkt. No. 244 (“Pls.' Sur-Reply”).
IV. LEGAL STANDARD
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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (“[S]ummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’ ” (quoting former Fed. R. Civ. P. 56(c))).
The party moving for summary judgment must first demonstrate the absence of any genuine dispute of material fact. Nick’s
Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017) (citing Celotex, 477 U.S. at 323). If the burden of
proof at trial would fall on the movant, that party’s “own submissions in support of the motion must entitle it to judgment as a
matter of law.” Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir. 1998). If, on the other hand, “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.” Simsbury-Avon Preservation Soc'y v. Metacon Gun
Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp., 477 U.S. at 322-23).
If the moving party meets its burden, the nonmoving party “must come forward with ‘specific facts showing that there is a
genuine issue for trial’ ” in order to avoid summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting former Fed. R. Civ. P. 56(e)). “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 [nonmovant].” 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, 475 U.S. at 586, and he “may not rely on conclusory allegations or unsubstantiated speculation,”
Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks and citation omitted).
A genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,”
while a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. In determining whether
there exists a genuine dispute as to a material fact, the Court is “required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d
Cir. 2012) (internal quotation marks and citation omitted). The Court’s job is not to “weigh the evidence or resolve issues of
fact.” Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 2002). “Assessments of credibility and choices between
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conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Jeffreys v. City of New York,
426 F.3d 549, 553-54 (2d Cir. 2005) (citation omitted).
*4 When the plaintiff is proceeding pro se, as Mr. Morgan is here, the Court is obliged to construe the plaintiff’s submissions
with “special solicitude” and interpret them “to raise the strongest arguments that they suggest.” Roman v. Donelli, 347
Fed.Appx. 662, 663 (2d Cir. 2009) (summary order) (emphasis in original) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474-75 (2d Cir. 2006)).
V. DISCUSSION
A. The Legal Framework for Bivens Claims
In 1971, in Bivens v. Six Unknown Named Agents, 403 U.S. 388, the Supreme Court held that a plaintiff had an implied private
right of action for damages against federal officers who violated the plaintiff’s Fourth Amendment rights against unreasonable
search and seizure when they handcuffed him inside his home without a warrant. In the more than forty years since that decision,
the Supreme Court has created a new implied right of action in only two other cases: (1) under the Fifth Amendment’s due
process clause for gender discrimination arising out of a Congressman’s firing of his female secretary, Davis v. Passman, 442
U.S. 228 (1979), and (2) under the Eighth Amendment’s cruel and unusual punishment clause arising out of prison officials'
failure to treat an prisoner’s asthma, which resulted in the prisoner’s death, Carlson v. Green, 446 U.S. 14 (1980).
In a recent decision, the Supreme Court underscored that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”
Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). That is because “[w]hen
an issue involves a host of considerations that must be weighed and appraised, it should be committed to those who write the
laws rather than those who interpret them.” Id. at 1857 (citing Bush v. Lucas, 462 U.S. 367, 380 (1983)) (internal quotation
marks omitted). In Ziglar, the Court re-emphasized that the creation of a new private right of action under Bivens must be
carefully scrutinized.
As the Supreme Court has instructed, this careful scrutiny requires courts to engage in a process to determine whether it is
appropriate for the Judiciary to extend a Bivens remedy to the claims of a particular case. A court must first determine whether
the claim “presents a new Bivens context.” Id. at 1859. A new Bivens context will exist “[i]f the case is different in a meaningful
way from previous Bivens cases decided by this Court.” Id. The Court presented a non-exhaustive list of considerations to
examine if a case is meaningfully different, including:
“[T]he rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the
extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or
other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning
of other branches; or the presence of potential special factors that previous Bivens cases did not consider.”
Id. at 1860.
If the court determines that the claim at issue differs meaningfully from previous Bivens cases, the court must then determine if it
is appropriate to imply a new private right of action to that claim. In Ziglar, the Supreme Court affirmed the long-held precedent
that a Bivens remedy “will not be available if there are ‘special factors counselling hesitation in the absence of affirmative
action by Congress.’ ” Id. at 1857 (citing Carlson, 446 U.S. at 18). The Court explained that the “special factors” inquiry “must
concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs
and benefits of allowing a damages action to proceed. Thus, to be a ‘special factor counselling hesitation,’ a factor must cause
a court to hesitate before answering that question in the affirmative.” Id. at 1857-58. That is, a court begins with the premise
that the Judiciary should not readily extend a Bivens remedy to new claims, and before a court does so, it should consider a
number of factors to determine whether “Congress would want the Judiciary to entertain a damages suit in a given case.” Id.
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Among those factors is whether alternative remedies exist for addressing the constitutional violations raised by the claims of a
particular case. The Supreme Court held that “if there is an alternative remedial structure present in a certain case, that alone
may limit the power of the Judiciary to infer a new Bivens cause of action.” Id.
*5 Defendants have moved to dismiss several of the Bivens claims that Mr. Morgan’s submissions can be construed to raise,
contending that these claims differ meaningfully from previous Bivens cases, and that there are special factors counselling
hesitation in extending a Bivens remedy to those claims. In particular, Defendants move to dismiss Plaintiff’s (1) Fourth
Amendment search and seizure claim; (2) Fifth Amendment excessive force claim; and (3) Fifth Amendment sexual assault
claim. 2 , 3
B. Mr. Morgan’s Claims Are Meaningfully Different from Prior Bivens Cases,
and Special Factors Counsel Hesitation In Extending A Bivens Remedy Here
Each of Mr. Morgan’s claims present new Bivens contexts. Mr. Morgan’s Fourth Amendment claim differs meaningfully from
the Fourth Amendment claim in Bivens because his claim arises out of allegations concerning a routine search for contraband,
not a warrantless seizure of a person. In addition, the body cavity search was conducted by correctional officers, not narcotics
agents. Importantly, the search took place in a prison. This difference is meaningful because the Supreme Court has long
distinguished its analysis of the Fourth Amendment when raised in the context of a prison facility. In doing so, it has emphasized
that “[a] detention facility is a unique place fraught with serious security dangers,” and therefore that an inmate’s privacy
interests must be balanced against the “significant and legitimate security interests of the institution.” Bell v. Wolfish, 441 U.S.
520, 559-60 (1979). Mr. Morgan’s Fourth Amendment search and seizure claim is therefore meaningfully different from the
Fourth Amendment claim in Bivens, and thus presents a new Bivens context. Ziglar, 137 S.Ct. at 1860.
Similarly, although Davis concerned the Fifth Amendment, Mr. Morgan’s Fifth Amendment excessive force and sexual assault
claims are meaningfully different from gender discrimination claim raised in Davis. That claim concerned an employment
action, not a physical search in the prison context. Mr. Morgan’s Fifth Amendment claims also present a different context than
the claims in Carlson, as that case concerned the cruel and unusual punishment clause of the Eighth Amendment as it related
to a failure to provide medical treatment, while Mr. Morgan’s claims relate to a search for contraband and arise under the Fifth
Amendment. See Ziglar, 137 S.Ct. at 1864 (“The constitutional right is different here, since Carlson was predicated on the
Eight Amendment and this claim is predicated on the Fifth.”). Furthermore, the allegation that BOP officials forcibly removed
contraband from Mr. Morgan’s anal cavity is significantly different from the claims in Carlson concerning prison officials'
indifference to a prisoner’s medical need. Plaintiff’s Fifth Amendment claims for excessive force and sexual assault therefore
implicate a new context for the application of a Bivens remedy.
As the Supreme Court reiterated in Ziglar, once a court determines that a plaintiff’s claim presents a new Bivens context, the
court must then analyze whether “special factors counsel[ ] hesitation” in expanding Bivens “in the absence of affirmative action
by Congress.” Id. at 1857 (citing Carlson, 446 U.S. at 18). Here, the Court concludes that there are a number of special factors
that caution against extending a Bivens remedy to Mr. Morgan’s Fourth and Fifth Amendment claims relating to his body cavity
search. First, “when alternative methods of relief are available, a Bivens remedy usually is not.” Id. at 1863. Contrary to Mr.
Morgan’s assertion, this is not a case in which the only remedy would be the court-created implied right of action—that is, it is
not “damages or nothing.” Bivens, 403 U.S. at 410. Importantly, Plaintiff had an alternative remedy for his claim that the body
cavity search violated his constitutional rights—the FTCA. The FTCA provides for money damages for claims “arising ... out
of assault, battery,” and other torts with regard to acts or omissions of officers of the U.S. Government. 28 U.S.C. § 2680(h).
Mr. Morgan is pursuing this remedy; his FTCA claim is not challenged in Defendants' motion for summary judgment, and will
proceed to trial.
*6 Although the Supreme Court considered the existence of the FTCA remedy in Carlson, and nevertheless created an implied
private right of action in that case, the Supreme Court’s recent decision in Ziglar indicates that hesitation is nevertheless
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appropriate today. In emphasizing that “expanding the Bivens remedy is now considered a ‘disfavored’ judicial activity,” the
Supreme Court observed that its conclusion in Carlson “might have been different if [it] were decided today.” Ziglar, 137 S. Ct.
at 1856-57 (noting that “the Court has refused to [extend Bivens to any new context] for the past 30 years”). Therefore, despite
the fact that previously, the FTCA and Bivens were considered “parallel, complementary causes of action,” Carlson, 446 U.S.
at 20, the Court believes that, in light of the Supreme Court’s recent decision in Ziglar, the existence of the alternative remedial
structure is nevertheless a factor counselling hesitation in extending an implied damages remedy to Mr. Morgan’s claims.
While the existence of an alternative remedial structure alone may be sufficient to counsel against the creation of a judicial
remedy in this case, the fact that Mr. Morgan’s claims arise in the prison context also counsels hesitation. The Supreme Court has
opined on factual circumstances very similar to those raised in Mr. Morgan’s lawsuit, and has instructed courts to give deference
to prison officials in preventing the smuggling of contraband into prison facilities. In Bell v. Wolfish, the Court recognized that
the “[s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence” in detention facilities,
“[a]nd inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record,
and in other cases.” 441 U.S. at 559. In holding that visual body cavity searches were not per se Fourth Amendment violations,
the Court explained that “the problems that arise in the day-to-day operation of a corrections facility are not susceptible of
easy solutions. Prison administrators therefore 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.” Id. at 547.
This is particularly true for the policies and practices concerning prison officials' searches for contraband; the Supreme Court has
“recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable
exceptions.” Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 327-28 (2012). The creation of
a damages remedy here could have the negative consequence of deterring prison officials from engaging in such searches.
Fundamentally, Mr. Morgan’s claims present a plethora of policy-related considerations that would require the Court to balance
the challenges prison administrators and officers face in maintaining prison security against the expansion of private right of
action for damages. This task is more appropriately suited for Congress, not the Judiciary. See Bell, 441 U.S. at 548 (“But
judicial deference is accorded not merely because the [prison] administrator ordinarily will, as a matter of fact in a particular
case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is
peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.”). The Supreme Court’s
acknowledgment that searches for contraband in prisons present issues that warrant judicial deference to prison officials is
another factor counseling hesitation in extending Bivens to Mr. Morgan’s claims concerning the body cavity search.
Furthermore, Congress has legislated in the arena of prisoner rights, suggesting that the courts should not extend a damages
remedy in this sphere. As the Supreme Court explained in Ziglar, “legislative action suggesting that Congress does not want a
damages remedy is itself a factor counseling hesitation.” 137 S.Ct. at 1865. One such example of legislative action relevant to
the claims raised in this case is the Prison Litigation Reform Act (“PLRA”). As the Court in Ziglar explained,
*7 Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of
1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal
court. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and
to consider the proper way to remedy those wrongs ... [T]he Act itself does not provide for a standalone
damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend
the Carlson damages remedy to cases involving other types of prisoner mistreatment.
Id. at 1865. The PLRA covers Plaintiff’s claims here: “[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
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other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). This statutory scheme further causes the Court to hesitate in extending
an implied damages remedy here.
In addition to the PLRA, in 2003, Congress enacted the Prison Rape Elimination Act (“PREA”). 34 U.S.C.A § 30301. The PREA
was enacted to, among other things, “protect the Eighth Amendment rights of Federal, State, and local prisoners,” 34 U.S.C. §
30302(7), in light of the Congressional finding that “[t]he high incidence of sexual assault within prisons involves actual and
potential violations of the United States Constitution,” 34 U.S.C. § 30301(13). This statutory scheme has not, however, been
interpreted to establish a private cause of action for allegations of prison rape. See Amaker v. Fischer, No. 10-CV-0977A, 2014
WL 4772202, at *14 (W.D.N.Y. Sept. 24, 2014) (collecting cases), order superseded, No. 10-CV-0977, 2015 WL 1822541
(W.D.N.Y. Apr. 22, 2015). This further suggests that, when Congress had the “specific occasion to consider the matter” of
prison sexual assault, “and to consider the proper way to remedy those wrongs,” it did not find the creation of a remedy for
individuals appropriate. Ziglar, 137 S.Ct. at 1865. Congressional action in this area suggests that the Judiciary should hesitate
before creating a remedy in this case.
Because there are numerous special factors counseling hesitation in extending Bivens to the factual circumstances of this case,
the Court declines to do so. Defendants are therefore entitled to summary judgment on Mr. Morgan’s Fourth Amendment search
and seizure claim and his Fifth Amendment claims for excessive force and sexual assault.
C. Mr. Morgan’s Deliberate Indifference Claim Fails
Defendants do not move to dismiss Mr. Morgan’s Fifth Amendment deliberate indifference claim based upon the analysis
reiterated by the Supreme Court’s decision in Ziglar. 4 Instead, Defendants contend that Mr. Morgan has not established the
elements of a claim for deliberate indifference to medical needs. The Court agrees. Specifically, the record does not support a
finding of a sufficiently serious delay or harm.
A claim of deliberate indifference to serious medical needs has typically been analyzed under a two-pronged standard. “The
first requirement is objective: ‘the alleged deprivation of adequate medical care must be ‘sufficiently serious.’ ” Spavone v. New
York State Dep't of Correctional Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting Salahuddin v. Goord, 467 F.3d 263, 279 (2d
Cir. 2006)). The second requirement is that the charged officials must be “reckless in their denial of medical care.” Id. As the
Second Circuit has explained this two-prong standard as it applies to pre-trial detainees like Plaintiff, the second requirement
—the “mens rea prong” of deliberate indifference to serious medical needs claims—must be analyzed objectively: courts must
determine whether the official “knew, or should have known” that his or her conduct “posed an excessive risk to health or
safety.” Darnell v. Pineiro, 849 F.3d 17, 32, 35 (2d Cir. 2017). Here, the Court need not reach the second prong of this standard,
because there are no facts in the record to support a finding that the alleged deprivation was sufficiently serious.
*8 To meet the first prong of the deliberate indifference standard, “the alleged deprivation must be sufficiently serious, in the
sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir. 1996). As the Second Circuit explained,
[d]etermining whether a deprivation is an objectively serious deprivation entails two inquiries. The first
inquiry is whether the prisoner was actually deprived of adequate medical care. As the Supreme Court
has noted, the prison official’s duty is only to provide reasonable care. Thus, prison officials who act
reasonably in response to an inmate-health risk cannot be found liable under the Cruel and Unusual
Punishments Clause, and, conversely, failing to take reasonable measures in response to a medical
condition can lead to liability. Second, the objective test asks whether the inadequacy in medical care is
sufficiently serious. This inquiry 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. For example, if the
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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. 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.
Salahuddin v. Goord, 467 F.3d at 279-80 (internal citations and quotation marks omitted).
In cases such as this one, where some treatment was given but the plaintiff alleges that that treatment was inadequate, “the
seriousness inquiry focus[es] on the challenged delay or interruption in treatment rather than the prisoner’s underlying medical
condition alone.” Id. at 280 (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (internal quotation marks omitted)).
“Where temporary delays or interruptions in the provision of medical treatment have been found to satisfy the objective
seriousness requirement in this Circuit, they have involved either a needlessly prolonged period of delay, or a delay which caused
extreme pain or exacerbated a serious illness.” Ferguson v. Cai, No. 11-cv-6181, 2012 WL 2865474, at *4 (S.D.N.Y. July 12,
2012); see also Feliciano v. Anderson, No. 15-cv-4106, 2017 WL 1189747, at *11 (S.D.N.Y. Mar. 30, 2017) (“Although a delay
in providing necessary medical care may in some cases constitute deliberate indifference, [the Second Circuit] has reserved
such a classification for cases in which, for example, 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.”) (citing Demata
v. N.Y. State Corr. Dep't of Health Servs., 198 F.3d 233 (2d Cir. 1999) (unpublished)).
Here, there are several reasons why Mr. Morgan’s claim for deliberate indifference to serious medical needs fails. First, there is
no dispute that Mr. Morgan received medical treatment less than twenty-four hours after he requested to be seen by the medical
department. See Morgan Dep. Tr. at 151:10. The record indicates that Mr. Morgan asked for medical attention twice in the
evening of February 10, 2014—when being escorted to the dry cell, and again after some time had passed while in the dry cell.
Morgan Dep. Tr. at 144:5-15, 147:21-149:2. Mr. Morgan asserted that, while in the dry cell, he showed officers tissues he wiped
around his anal cavity that had blood on them. There is no evidence that he otherwise informed officers of any urgent medical
need. By the afternoon of the next day, on February 11, 2014, Mr. Morgan was seen by BOP psychologist and a BOP mid-level
practitioner. Defs.' 56.1 ¶¶ 46, 51, 53. No reasonable jury could find that this temporary delay in treatment was “needlessly
prolonged,” or that this short waiting time amounted to a constitutional deprivation of care in light of the symptoms described
by Mr. Morgan.
*9 Moreover, there is no evidence in the record that the delay caused “extreme pain” or exacerbated Mr. Morgan’s existing
pain. The pain was not so severe that it kept him awake in the dry cell; he testified that he fell asleep and when he woke up his
condition had improved. See Morgan Dep. Tr. at 151:4-10 (“[B]y the [time I woke up] the bleeding I think kind of slowed down,
so I just left it like that.”). Mr. Morgan also testified that prior to seeing the mid-level practitioner the afternoon following the
search, he was in pain, but that the pain was “a little better” than the day prior, “[m]eaning it wasn't hurting as bad as it was when
the incident first happened.” Morgan Dep. Tr. at 155:22-156:9. That is, even before receiving medical attention, his condition
improved on its own. There is no evidence that Mr. Morgan’s conditioned worsened as a result of the time he waited before
being seen by the BOP psychologist and BOP mid-level practitioner, and the record therefore does not support a finding that
BOP officials were deliberately indifferent to a serious medical need. See Rodriguez v. City of New York, 802 F. Supp. 2d 477,
482 (S.D.N.Y. 2011) (granting defendants summary judgment on a claim for deliberate indifference where plaintiff “present[ed]
no evidence that his condition worsened as a result of the three-day delay between his request and receipt of medical attention”);
see also Pabon v. Goord, 99-cv-5869, 2003 WL 1787268, at *11 (S.D.N.Y. Mar. 28, 2003) (“More importantly, there is no
evidence that these lapses had any significant impact on the actual care that Plaintiff received, or on his course of treatment.”).
Additionally, the medical records of the BOP medical staff who met with Mr. Morgan after the incident do not support a finding
that the medical care Plaintiff received was so deficient that it amounted to a constitutional harm. The Sexual Abuse Intervention
notes from BOP Chief Psychologist Dr. Miller indicate that he was sent to the Health Services Department “for a complete
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medical evaluation,” and that he would be seen again by a psychologist “in light of this reported incident.” Miller Decl., Ex. A
(February 11, 2014 Sexual Abuse Intervention Contact Note). After meeting with Dr. Miller, Mr. Morgan was indeed examined
by MLP Erwin Ramos. Ramos performed an external examination on Mr. Morgan, and noted that there were “no rectal/anal
tears; no bleeding noted on visual exam; no redness or swelling.” Ramos Decl., Ex. A (February 11, 2014 Health Services Clinic
Encounter Report). Neither medical practitioner commented that Mr. Morgan required further medical treatment. See Toliver
v. City of New York, No. 10 CIV. 5806 SHS JCF, 2013 WL 6476791, at *5 (S.D.N.Y. Dec. 10, 2013) (“The minimal treatment
that he ultimately received—treatment he does not complain about—leads to the conclusion that his injuries were not serious.”)
report and recommendation adopted, No. 10 CIV. 5806 SHS, 2014 WL 549402 (S.D.N.Y. Feb. 11, 2014).
Furthermore, in addition to being seen by Dr. Miller and MLP Ramos on February 11, 2014, Mr. Morgan was seen by medical
staff on numerous occasions following the February 10, 2014 incident: three times by Dr. Miller (February 12, February 20, and
March 13); once by a BOP mid-level practitioner on February 15; by an outside clinic on February 28, by a BOP psychiatrist
on March 24; and by a BOP physician on March 25. See Miller Decl. ¶¶ 5-7, 9 & Exs. B, C, and D; Dkt. No. 219, Beaudouin
Decl. ¶¶ 9-14 & Exs. B, C, D, and E. Simply put, there is no evidence in the record to support a claim that there were delays or
interruptions in his medical care—indeed, Mr. Morgan was seen by medical professionals multiple times within one week of
the search. See Pabon, 2003 WL 1787268, at *10 (“The [medical] history recited [ ] makes it apparent that Plaintiff’s condition
was not ignored.”). Mr. Morgan did not complain of pain or bleeding during any of these visits; there is no evidence to support
a finding that Mr. Morgan suffered the type of “life-threatening and fast-degenerating” condition that courts in this Circuit have
held to be an adequate basis for a deliberate indifference claim.
Mr. Morgan asserts that the treatment provided by MLP Ramos was inadequate because Ramos “should have [done] an external
examination.” Morgan Dep. Tr. at 163:6-11. That contention is not sufficient for a reasonable jury to find that the treatment
provided amounted to a constitutional harm. “It is well-established that mere disagreement over the proper treatment does not
create a constitutional claim. 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.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). In addition, MLP
Ramos' sworn declaration states “[i]nternal examinations were performed only when it was suspected that an inmate possessed
contraband; however, the normal practice of the Health Services Department was to not perform internal examinations.” Ramos
Decl. ¶ 15. 5 This further supports the conclusion that the treatment provided to Mr. Morgan did not rise to the level of a
constitutional deprivation. Defendants' motion for summary judgment as to this claim is therefore granted.
D. Mr. Morgan’s FTCA Claim Predicated on Violation of BOP Policy Fails
*10 Finally, Defendants move for summary judgment with respect to Mr. Morgan’s FTCA claim to the extent it is predicated on
an alleged violation of BOP policy. In opposing Defendants' motion for summary judgment, Mr. Morgan rejects the contention
that his FTCA claim is based on a violation of BOP policy: “The Plaintiff is not forming the basis of his FTCA claim on
the regulations propagated by the BOP. The basis of the Plaintiff’s claim is the state law assault perpetrated upon him by
defendants ...” Pl’s. Opp'n at 21. Nevertheless, in the interest of completeness, the Court addresses Defendants' argument here.
The FTCA waives sovereign immunity of the United States against claims for property damage or person injury “caused by
the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674. As such,
a plaintiff’s cause of action under the FTCA must be comparable to a cause of action that is recognized in the jurisdiction
where the tort took place. “This ‘private analogue’ requirement asks ‘whether a private person would be responsible for similar
negligence under the laws of the State where the acts occurred.’ ” McGowan v. United States, 825 F.3d 118, 125 (2d Cir. 2016)
(quoting Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996)).
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Defendants read Mr. Morgan’s SF-95 Form to state that his claim is based on Officer Graham “illegally and in defiance of
B.O.P. policy, ... repeatedly forc[ing] his fingers into [Plaintiff’s] rectum, while other officers restrained [Plaintiff], in an effort
to retrieve the suspected contraband.” See Defs.' 56.1 ¶¶ 74-75. To the extent the violation of BOP policy, standing alone, is the
“private analogue” for Mr. Morgan FTCA claim, that claim fails. The Second Circuit has evaluated FTCA claims that purport to
be based on a government official’s failure to abide by federal regulations, and has held that a “ ‘violation of the government’s
duties under federal procurement regulations is action of the type that private persons could not engage in and hence could not
be liable for under local law.’ ” McGowan, 825 F.3d at 127 (quoting Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988))
(internal quotation marks omitted). In McGowan, the Second Circuit further held that there is no “freestanding duty to abide
by private regulations” under New York law. Id. Lacking a private analogue under New York law, Mr. Morgan cannot bring his
FTCA claim on the basis of the officers' violation of BOP regulations. To the extent he does so, his claim fails as a matter of
law, and Defendants' are therefore entitled to summary judgment on that claim.
VI. CONCLUSION
Because Mr. Morgan has alternative remedies available to him, and because there are special factors counseling hesitation in
extending Bivens to the context raised in this case, Defendants are entitled to summary judgment on Mr. Morgan’s Fourth and
Fifth Amendment claims. In addition, because the record does not show that Mr. Morgan suffered a “sufficiently serious” delay
or harm, Defendants are entitled to summary judgment on his Fifth Amendment deliberate indifference claim. Finally, to the
extent Mr. Morgan’s FTCA claim is predicated on a violation of BOP policy, that claim fails as a matter of law because there
is no private analogue for a violation of BOP policy under New York law. Defendants' motion for partial summary judgment
is therefore granted.
*11 The Clerk of Court is directed to terminate the motion pending at Dkt. No. 211.
Chambers will mail Plaintiff a copy of this order WRJHWKHU with copies of any unpublished cases cited in this opinion.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 618451
Footnotes
1 The following facts are drawn from the Defendants' Local Civil Rule 56.1 Statement and Plaintiff’s response in
opposition. The Court cites to Defendants' 56.1 statement, but only does so to the extent the fact is undisputed. The
citation to the Defendants' statement therefore incorporates Mr. Morgan’s response. See Dkt. Nos. 229 & 242.
2 As Defendants correctly note, and as Plaintiff concedes, because Plaintiff was a pre-trial detainee at the time of the
search at issue in this case, his claims arise under the Fifth Amendment, not the Eighth. See Defs.' Reply at 14 n.4; Pl.'s
Sur-Reply at 8-9; see also Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d. Cir. 2000).
3 Defendants do not move to dismiss Plaintiff’s Fifth Amendment deliberate indifference claim using the special factors
analysis reiterated by the Supreme Court in Ziglar. That claim is addressed separately below.
4 The Court notes that, even in light of the proscription against creating new Bivens remedies, it would be counterintuitive
if a convicted prisoner could remedy a federal officer’s failure to provide medical care amounting to punishment, but a
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pre-trial detainee—who, “unlike convicted prisoners[,] cannot be punished at all,” could not. Kingsley v. Hendrickson,
135 S.Ct. 2466, 2475 (2015).
5 The Court notes the irony in Mr. Morgan’s contention that an internal examination would have been appropriate in these
circumstances, given that such an examination “would have required [MLP Ramos] to insert a finger or instrument into
Mr. Morgan’s anal cavity.” Ramos Decl. ¶ 15.
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2018 WL 4610686
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ahmadou SANKARA, Plaintiff,
v.
MONTGOMERY, Burgess, Lopez, Defendants.
9:16-CV-00885 (FJS/TWD)
|
Signed 06/25/2018
Attorneys and Law Firms
AHMADOU SANKARA, 16-R-0122, Plaintiff pro se, Upstate Correctional Facility, P.O. Box 2001, Malone, New York.
HON. BARBARA D. UNDERWOOD, Attorney General for the State of New York, OF COUNSEL: MATTHEW P. REED,
ESQ., The Capitol, Albany, New York 12224, Counsel for Defendants.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
*1 The sole remaining claim in pro se Plaintiff Ahmadou Sankara’s amended complaint (Dkt. No. 19) in this civil rights
action brought under 42 U.S.C. § 1983 is his Eighth Amendment conditions of confinement claim involving the alleged denial
of meals against Defendants Keith Montgomery (“Montgomery”), a Department of Corrections and Community Supervision
(“DOCCS”) Sergeant at Fishkill Correctional Facility (“Fishkill”); Erik Burgess (“Burgess”), a Corrections Officer (“C.O.”) at
Fishkill; and Jessica Lopez (“Lopez”), a former C.O. at Fishkill. (Dkt. No. 22 at 22. 1 ) Montgomery, Burgess, and Lopez now
move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that Plaintiff has failed
to exhaust his administrative remedies and has failed to assert a constitutional violation. (Dkt. Nos. 81 and 81-1.) Plaintiff has
filed papers in opposition to Defendants' motion. 2 (Dkt. No. 84.)
For reasons that follow, the Court recommends that Defendants' motion for summary judgment be granted.
II. FACTUAL BACKGROUND
Plaintiff, an inmate in the custody of DOCCS, was transferred to Fishkill on August 3, 2016. (Dkt. No. 19 at 11.) In his amended
complaint, Plaintiff alleges that his Eighth Amendment conditions of confinement claim is based upon having been deprived
of meals by Defendant Burgess on August 3, 2016, and August 4, 2016; by Defendants Lopez and Montgomery on October
10, 2016, and September 24, 2016; and by Montgomery on October 23, 2016, and October 24, 2016. Id. At his deposition,
Plaintiff testified he was deprived of five meals by the Defendants, which included dinner on August 3 and 4, 2016, and lunch
on September 10, 2016, September 23, 2016, and September 24, 2016. (Dkt. No. 81-3 at 19, 21, 26-27.)
A. Service of Meals in the Fishkill SHU
Meals are served three times a day in the Special Housing Unit (“SHU”) at Fishkill. (Dkt. No. 81-4 at ¶ 7. 3 ) Before a meal
is served, an announcement is made on the public address system once on each of the two floors notifying inmates of the
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forthcoming meal, and reminding them to be awake, with their lights on, fully clothed, and with any clothing lines in their cell
taken down. Id. at ¶¶ 8-9. It is made before meal delivery so that inmates have time to prepare. Id. at ¶ 9. The rules for meals are
contained in the SHU rulebook given to inmates when they are admitted to the unit. Id. at ¶ 10. The rules have a dual purpose: to
ensure that food is not contaminated and to meet heightened security concerns in SHU. Id. at ¶¶ 11-13. Plaintiff denies having
received the rulebook. (Dkt. No. 84 at ¶ 17.)
*2 Anywhere from five to seven officers assist in delivering meals, with Defendant Montgomery either leading or following
behind the officers to address any problems when he is on duty. Id. at ¶¶ 15-17. Inmates who do not comply with the established
procedures do not receive a meal. Id. at ¶ 18. Failure to comply with the meal distribution procedures is noted as a refusal of
chow and recorded in the SHU logbook. Id. at ¶ 14.
B. August 3 and 4, 2016
Plaintiff claims that on August 3, 2016, the day he arrived at Fishkill, he was deprived of dinner by Defendant Burgess. (Dkt.
No. 81-3 at 19, 27.) Plaintiff testified at his deposition that he received something like a box lunch with bread while en route to
Fishkill and should have been given dinner at Fishkill but was not. Id. at 20. According to Plaintiff, dinner is served at 3:00 or
4:00pm. Id. at 22. Plaintiff claims that he and his bunk mate in SHU were denied dinner by Burgess on August 3, 2016, because
his bunk mate was not properly dressed. Id. at 20-23, 27. Plaintiff was properly dressed and did not say anything, but his bunk
mate began arguing with Burgess, which he was not supposed to do, so Burgess also deprived them of dinner the following
day, August 4, 2016. Id. at 21, 27.
Plaintiff was very hungry and emotionally frustrated the night of August 3, 2016, because he had not made himself breakfast
that morning, the lunch he was given was too small, and he did not receive dinner. Id. at 26. Plaintiff did receive both breakfast
and lunch on August 4, 2016, missing only dinner. Id. at 21-22.
While Burgess recalls Plaintiff and his behavior in SHU, he does not recall the specific dates on which Plaintiff claims Burgess
deprived him of a meal. (Dkt. No. 81-5 at ¶ 5.) There is an entry for August 3, 2016, in the SHU logbook in indicating that
Plaintiff was not admitted to SHU until 6:48 pm, after dinner would have been served. (Dkt. No. 81-3 at 124.) The logbook
appears to note two refusals for dinner on August 4, 2016, but does not list the inmates by name. Id. at 131.
C. September 10, 2016
Plaintiff testified at his deposition that on September 10, 2016, he was denied a haircut by a corrections officer because Plaintiff
had allegedly called him a Chinese officer, which Plaintiff denies. (Dkt. No. 81-3 at 32-33.) The officer wrote a misbehavior
report on Plaintiff, and when the officer and Montgomery came around serving lunch, Plaintiff, who was standing in front of
his door, was told he was not properly dressed and did not receive lunch. Id. at 34. Plaintiff did receive dinner on September 10,
2016. Id. at 36. Although Montgomery recalls Plaintiff, he does not recall his interactions with Plaintiff on the dates Plaintiff
claims not to have received his meals. (Dkt. No. 81-4 at ¶ 20.)
D. September 23, 2016
On September 23, 2016, recreation (“rec”) and lunch were called at the same time. (Dkt. No. 81-3 at 39.) According to Plaintiff,
a SHU inmate cannot have rec and chow at the same time. Id. Plaintiff was at rec with another inmate. Id. 39-40. When they
came in, Plaintiff told the sergeant he had been at rec and needed his lunch. Id. at 39. At that time lunch had not yet passed by
Plaintiff’s door. Id. at 39-40. Plaintiff could see the officers and talked to them when the food was next to him, but Plaintiff was
not given any. Id. at 40. Plaintiff has identified Montgomery as the one who did not give him lunch. Id. at 42.
*3 Plaintiff was very hungry so he started to kick the door for them to bring his food. Id. They did not want to bring his food
so he left it alone. Id. Plaintiff did receive dinner on September 23, 2016. Id. at 41.
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E. September 24, 2016
Plaintiff testified at his deposition that on September 24, 2016, he stopped the Superintendent at Fishkill and started to speak
with him about the food issue going on. (Dkt. No. 81-3 at 42.) Montgomery told Plaintiff to talk fast and Plaintiff said he knew
Montgomery’s name even though he hid it, and that Montgomery was the one who had denied him food September 10 and 23,
2016. Id. After the Superintendent left, Montgomery denied Plaintiff lunch again because he had talked to the Superintendent.
Id. at 42-43. Defendant Lopez came to speak with Plaintiff when he began kicking his door. Plaintiff was told they had already
passed and were not coming back, and they walked away. Id. at 43. When Plaintiff started kicking the door because he was
really hungry, Lopez wrote a misbehavior report on which she stated he had been sleeping. Id. Plaintiff testified that of the
Defendants only Montgomery was involved in depriving Plaintiff of lunch on September 23, 2016, and that both Montgomery
and Lopez were involved on September 24, 2016. Id. at 44.
III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together “show that there is no genuine issue
of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears
the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists.
Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is “genuine” if “the [record] evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine
issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than “rest upon the mere
allegations ... of the [plaintiff’s] pleading” or “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, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010) (“It is well established that in determining the appropriateness of a grant of summary judgment, [the court] ...
may rely only on admissible evidence.”) (citation and internal quotation marks omitted). A plaintiff’s verified complaint is to
be treated as an affidavit. 4 Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (“A verified complaint is to be treated as an
affidavit ... and therefore will be considered in determining whether material issues of fact exist....”) (citations omitted).
*4 In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment
motions “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must
be evidence on which the jury could reasonably find for the plaintiff.” “At the summary judgment stage, a nonmoving party
must offer some hard evidence showing that its version of the events is not wholly fanciful.” Id. (citation and internal quotation
marks omitted). “To defeat summary judgment, ... nonmoving parties may not rely on conclusory allegations or unsubstantiated
speculation.” Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). “[T]o satisfy Rule 56(e), affidavits must
be based upon ‘concrete particulars,’ not conclusory allegations.” Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997)
(citation omitted). “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).
In determining whether a genuine issue of material fact exists, 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).
Where a party is proceeding pro se, the court is obliged to “read [the pro 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, “a pro
se party’s ‘bald assertion,’ unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Cole v.
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Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) 5 (citing Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir. 1991) ).
IV. PLAINTIFF'S FAILURE TO COMPLY FULLY WITH N.D.N.Y. L.R. 7.1(a)(3)
While courts are required to give due deference to a plaintiff’s pro se status, 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). In opposing Defendants' summary judgment motion, Plaintiff failed to respond to the statement of
material facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3) by neglecting to set forth a specific
citation to the record in a number of instances where he appears to dispute a statement included in the statement of undisputed
facts. 6 (See Dkt. Nos. 81-2 and 84.)
Where a party has failed to respond to the movant’s statement of material facts in the manner required under N.D.N.Y. L.R.
7.1(a)(3), the facts in the movant’s statement to which Plaintiff has not properly responded will be accepted as true (1) to the
extent they are supported by evidence in the record, 7 and (2) the nonmovant, if proceeding pro se, has been specifically advised
of the possible consequences of failing to respond to the motion. 8 See Champion, v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
However, the Second Circuit, acknowledging a court’s broad discretion to determine whether to overlook a failure to comply
with local rules, has held that “while a court is not required to consider what the parties fail to point out in their [local rule
statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one
of the parties has failed to file such a statement.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and
internal quotation marks omitted). In deference to Plaintiff’s pro se status and the significant degree of effort he has shown in
his response to Defendants' material statement of facts (Dkt. No. 84), the Court has opted to review the entire record.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. Legal Standard
*5 Montgomery, Burgess, and Lopez seek summary judgment on Plaintiff’s Eighth Amendment conditions of confinement
claim against them on the ground that Plaintiff failed to exhaust his administrative remedies under the DOCCS Inmate Grievance
Procedure (“IGP”) with regard to the claim. Under the Prison Litigation Reform Act of 1995 (“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, –––
U.S. ––––, 136 S.Ct. 1850, 1854-55, 195 L.Ed.2d 117 (2016). “[T]he PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 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) (exhaustion necessitates “using all steps that the [government] agency holds out, and doing so properly”) (internal
quotations omitted). In New York State prisons, DOCCS has a well-established three-step IGP. See N.Y. Comp. Codes R. &
Regs. (“N.Y.C.R.R.”) tit. 7, § 701.5.
First, an inmate must file a complaint with the facility IGP clerk within twenty-one days of the alleged occurrence. Id. § 701.5(a)
(1). 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
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of receipt of the grievance, id. § 701.5(b)(2), and issues a written decision within two working days of the conclusion of the
hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC’s decision to the facility 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 the Central Office Review
Committee (“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).
Special procedures are used when the grievance involves a claim of staff misconduct. Id. § 701.8. A grievance alleging staff
misconduct, once it is given a number and recorded, 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).
As set forth above, at each step of the IGP, a decision must be rendered within a specified time period. “Where the IGRC and/or
superintendent do not timely respond, an inmate must appeal ‘to the next step,’ ” assuming there is another step in the IGP. Eleby
v. Smith, No. 9:15-CV-0281 (TJM/DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017) (quoting 7 N.Y.C.R.R. § 701.6(g)
(2) ); see also Smith v. Kelly, 985 F.Supp.2d 275, 281 (N.D.N.Y. 2013) (“[A]ny failure by the IGRC or the superintendent to
timely respond to a grievance ... can and must be appealed to the next level ... to complete the grievance process.”). Exhaustion
under the DOCCS IGP is not complete until the grievance has been appealed to CORC and CORC has issued a decision. See
Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983,
152 L.Ed.2d 12 (2002); Singh v. Goord, 520 F.Supp.2d 487, 495 (S.D.N.Y. 2007) (complete exhaustion to CORC, the highest
level, is required).
*6 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 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[.]” (quotations 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 (quotations and internal
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. See Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
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Because non-exhaustion is an affirmative defense, defendants bear 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; Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004),
overruled on other grounds, Woodford, 548 U.S. at 94-95, 126 S.Ct. 2378. Plaintiff must then establish that the DOCCS IGP
was unavailable to him. See Jones, 549 U.S. at 216, 127 S.Ct. 910.
B. Analysis
1. Plaintiff’s Failure to Exhaust His Administrative Remedies
Fishkill had a fully functioning inmate grievance procedure during the time Plaintiff was housed at the facility. (Dkt. No. 81-7
at ¶ 12.) Fishkill IGP supervisor, Sally Reams (“Reams”), has submitted a declaration describing the DOCCS IGP procedures
followed at Fishkill. (See generally Dkt. No. 81-9.) According to Reams, she reviewed the records in the Fishkill grievance office
where all documents or copies thereof related to a particular grievance dating back to January 1, 2013, are maintained. Id. at ¶¶
9, 12. Her review revealed that Plaintiff was housed at Fishkill from August 3, 2016, to October 31, 2016, and during that time
did not file any grievance related to a denial of six meals at Fishkill between August 3, 2016, and October 24, 2016. 9 Id. at ¶ 13.
Joseph Cieslak (“Cieslak”), IGP supervisor at Mohawk Correctional Facility (“Mohawk”), to which Plaintiff was moved on
October 31, 2016, has described the manner in which the DOCCS IGP is followed at Mohawk. (See generally Dkt. No. 81-8.)
Cieslak reviewed the grievance records in the grievance office at Mohawk and determined that Plaintiff had not filed any formal
grievances while at Mohawk. Id. at ¶¶ 9-12.
*7 Rachael Seguin, Assistant Director of the DOCCS IGP, has also submitted a declaration in support of Defendants' motion.
(Dkt. No. 81-7.) Seguin is the custodian of records maintained by CORC. Id. at ¶ 2. The CORC database contains files on inmate
appeals to CORC for the current year and the previous four calendar years. Id. at ¶ 7. Seguin reviewed the CORC database
for appeals related to Plaintiff’s claim in this action and determined that he has never appealed a grievance to CORC. Id. at
¶¶ 10-11 and pp. 7-8.
The Court finds that the Reams declaration is deficient in showing that Plaintiff failed to file grievances with regard to any of the
missed meals since it indicates only that her review of the grievance office records showed that Plaintiff did not file a grievance
related to “a denial of meals on six occasions between August 3, 2016 and October 3, 2016.” (Dkt. Nos. 81-3 at 38-39; 81-9
at ¶ 13.) However, inasmuch as the Seguin declaration and attached printouts from the CORC database establish that Plaintiff
has never filed any appeals with CORC, the Court finds that Defendants have met their burden of establishing that Plaintiff
failed to exhaust his administrative remedies with regard to his Eighth Amendment conditions of confinement claim that he was
deprived of five meals by Defendants. See Jones, 549 U.S. at 218, 127 S.Ct. 910 (proper exhaustion under the PLRA means
using all steps required by the applicable administrative review process).
2. Plaintiff’s Failure to Sustain His Burden on Availability
The Court also finds that Plaintiff has failed to submit nonconlusory evidence of unavailability under Ross sufficient to raise
a material issue of fact on the question of availability of the DOCCS IGP. In his amended complaint, Plaintiff alleges “... also
at Fishkill my SHU appel mail was not go out and my grievance was not go out I was denied food at Fishkill five times in the
SHU....” (Dkt. No. 19 at 9.) Plaintiff further alleges “[o]n August 3, 2016 I was transfer from Green facility to Fishkill facility I
don't know if Green facility write note to Fishkill facility because same day on June 3, 2016 [August 3, 3016?] I was denied chow
the next day I was denie on June 4, 2016 [August 4. 2016?] I write grievance I never receive my grievance respond....” Id. at 11.
At his deposition, Plaintiff testified he filed grievances for “any matter that’s not procedure” and “for [his] right” and never
received a response. (Dkt. No. 81-3 at 60.) According to Plaintiff, he filed grievances regarding missed meals at Fishkill. Id. at
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73. Plaintiff described the procedure followed in the Fishkill SHU whereby inmates give grievances to the corrections officer
who comes around and drops the grievances in a basket and claims that the officers only send out the mail they want to send
out. Id. at 74. Plaintiff claims to have filed grievances all the time and believes that they probably did not go out because he
never received a response. Id.
Plaintiff testified he wrote to the superintendent about the food situation because he had not heard back from the I.G.R.C. Id.
at 75. The superintendent wrote back and told him to appeal his decision. Id. at 78. According to Plaintiff, the superintendent
told him to appeal to CORC regarding how many times he was denied food in SHU, so he wrote to CORC and retained a copy
as was his practice and never received a response. Id. at 77-78.
In his declaration in reply to the Reams declaration, Plaintiff states that the Fishkill grievance office failed to respond to his
grievance of the Eighth Amendment violation. (Dkt. No. 84-1 at 2.) In his declaration in response to the Cieslak declaration,
Plaintiff states that Cieslak never filed or responded to any of Plaintiff’s grievances at Mohawk. Id. at 4. In his declaration in
response to the Seguin declaration, the only grievance referenced is a grievance dated June 21, 2017. Id. at 6. Although not
admissible evidence, Plaintiff repeats in his response to Defendants' material statement of facts that his grievances regarding
being denied meals were taken but not sent to the grievance office. (Dkt. No. 84 at ¶ 54.)
*8 Plaintiff has done nothing more than allege in conclusory fashion that he attempted to file one or more grievances concerning
the denial of meals. He has provided no evidence that he actually did write grievances; when they were written; the content
of the grievances, including the specific denial of meals involved in the grievance; the officers named in the grievance(s) as
involved in the denials; the specific steps taken by Plaintiff to provide them to an officer to send to the grievance office; and any
specific follow up with the grievance office at Fishkill regarding the grievances. Plaintiff has submitted no documentary evidence
whatsoever that supports his conclusory assertion that he submitted grievances regarding the denial of meals or demonstrates
any follow up on his part when he allegedly received no response.
The Court concludes that Plaintiff’s conclusory accusations that the DOCCS IGP was unavailable to him because his grievances
were not sent to the grievance office by the officers who picked them up and because he did not receive a response from CORC,
unsupported by evidence, are insufficient to withstand summary judgment. See Rodriguez v. Cross, No. 15-CV-1079 (GTS/
CFH), 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“Courts in this Circuit have consistently held that mere contentions or
speculations of grievances being misplaced by officers do not create a genuine issue of material fact [on the availability of the
DOCCS IGP] when there is no evidence to support the allegations”); Khudan v. Lee, No. 12-cv-8147 (RJS), 2016 WL 4735364,
at *6 (S.D.N.Y. Sept. 8, 2016) (“Plaintiff’s accusations [regarding grievances], 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. April 20, 2015) ).
Based upon the foregoing, the Court recommends that all three Defendants be granted summary judgment on the ground that
Plaintiff failed to exhaust his administrative remedies with regard to his Eighth Amendment claim.
VI. Eighth Amendment Claim Regarding Missed Meals
The Court is recommending that Defendants be granted summary judgment on exhaustion grounds. However, if the Court were
to consider Defendants claim for entitlement to judgment as a matter of law, it would recommend summary judgment as a matter
of law on Plaintiff’s Eighth Amendment conditions of confinement claim as well.
A. Legal Standard for Eighth Amendment Conditions of Confinement Claims for Depriving an Inmate of Meals
The Eighth Amendment “imposes the constitutional limitation upon punishments: they cannot be ‘cruel and unusual.’ ” Rhodes
v. Chapman, 452 U.S. 337, 345, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The Eighth Amendment prohibits punishments which
“involve the unnecessary and wanton infliction of pain.” Id. at 346, 101 S.Ct. 2392 (quoting Gregg v. Georgia, 428 U.S. 153,
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173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ). “Among ‘unnecessary and wanton’ inflictions of pain are those that are ‘totally
without penological justification.’ ” Id. (quoting Gregg, 428 U.S. at 183, 96 S.Ct. 2909).
The Second Circuit has held that the Constitution requires that prisoners be fed nutritionally adequate food and “under certain
circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension.” Robles v.
Coughlin, 725 F.2d 12, 15 (2d Cir. 1983); see also Jackson v. Marks, 722 F. App'x 106, 107 (2d Cir. 2018) (Mem) (“[A]
substantial deprivation of food can cause serious physical harm sufficient to find cruel and unusual punishment in violation of
the Eighth Amendment.”) (citation and internal quotation marks omitted).
In order to establish a claim that the denial of food constitutes an Eighth Amendment violation, a prisoner must establish that
a “sufficiently serious condition” resulted from not receiving food. Evans v. Albany County Correctional Facility, No. 9:05-
CV-1400 (GTS), 2009 WL 1401645, at *9 (N.D.N.Y. May 14, 2009) (citation and internal quotation marks omitted). To prove a
conditions of confinement claim, a prisoner must also establish that defendant acted with deliberate indifference that defendant
“knows of and disregards an excessive risk to inmate health or safety.” Phelps v. Kapnolas, 308 F.3d 180, 185-86 (2d Cir.
2002) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). “[T]he [defendant] must both
be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw that
inference.” Id. at 186 (quoting Farmer, id.). The “deliberate indifference” element is equivalent to standard of “recklessness”
as used in criminal law. Id.
B. Analysis
*9 Plaintiff claims to have missed a total of five meals over a period of fifty-three days as a result of the actions of the
Defendants and never to have missed more than one meal on a given day. (Dkt. No. 81-3 at 19, 21, 26-27, 80.) Plaintiff contends
Defendant Burgess denied him dinner on August 3 and August 4, 2016; Montgomery denied him lunch on September 10, 23,
and 24, 2016; and Lopez with Montgomery denied him lunch on September 24, 2016. (Dkt. No. 81-3 at 19, 21, 27, 32-33, 42,
44, 55-56.) Neither Burgess nor Montgomery has any recollection of interactions with Plaintiff on the days he was allegedly
denied meals. (Dkt. Nos. 81-4 at ¶ 20; 81-5 at ¶ 5.)
According to Lopez, she only withheld a meal from Lopez on one occasion because he was lying on his bed under a sheet either
asleep or pretending to be asleep. (Dkt. No. 81-6 at ¶¶ 11, 16.) Lopez did not deliver his meal because he was not standing at
his door fully dressed as required. Id. at ¶ 12. A review of the logbook by Lopez revealed that the denial occurred on September
24, 2016. Id. at ¶¶ 14-15. Lopez stated in her declaration that it was not uncommon for Plaintiff to pretend to be asleep during
meals so that he could then allege he had been denied the meal and use the allegations to be disrespectful to officers and rile
up the inmates. Id. at ¶ 13.
The Court finds that denying Plaintiff a single meal, as alleged against Lopez, does not rise to the level of a violation of
Plaintiff’s rights under the Eighth Amendment. See Cabassa v. Oshier, No. 9:11-CV-01237 (MAD/CFH), 2015 WL 5094802,
at *5 (N.D.N.Y. Aug. 28, 2015) (denial of a single meal fails to plausibly state an Eighth Amendment claim); Pagan v. Quiros,
No. 3:11-cv-1134 (DJS), 2014 WL 1057016, at *6 (D. Conn. Mar. 18, 2014) (holding that allegation of denial food and drink
at one meal “does not constitute a substantial or sufficiently serious deprivation of a basic human need”); Hankerson v. Nassau
County Correctional Facility, No. 12-CV-5282 (SJF) (WDW), 2012 WL 6055019, at *4 (E.D.N.Y. Dec. 4, 2012) (holding that
denial of a single meal “falls far short of a ‘substantial deprivation of food’ and does not give rise to the level of a constitutional
deprivation.”).
The Court likewise concludes that Burgess’s alleged denial of Plaintiff’s dinner on August 3 and 4, 2016, and Montgomery’s
alleged denial of Plaintiff’s lunch on September 10, 23, and 24, 2016, did not rise to the level of a violation of Plaintiff’s rights
under the Eighth Amendment. One missed meal a day has been found insufficient to establish an Eighth Amendment claim.
See Benitez v, Locastro, No. 04-CV-423, 2008 WL 4767439, at *7 (N.D.N.Y. Oct. 29, 2008) (claim of one missed meal a day
insufficient to establish an Eighth Amendment claim); Johnson v. Merriman, No. 1:13-cv-00087-MP-GRJ, 2015 WL 1409529,
at *4 (N.D. Fl., Gainesville Div. March 26, 2015) (where the most each of three defendants could have personally deprived
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plaintiff of meals was one meal a day for a period of three days, the denial of the meals was not sufficiently severe to rise to
the level of a constitutional violation).
Moreover, Plaintiff has failed to submit evidence showing that a “sufficiently serious condition” resulted from not receiving
food. See Evans, 2009 WL 1401645, at *9. Plaintiff testified at his deposition that he was hungry and emotionally frustrated
as a result of not having dinner on August 3, 2016, after having failed to make himself breakfast and traveled all day with
only a small lunch en route. (Dkt. No. 81-3 at 26.) Plaintiff was hungry and emotionally frustrated after not receiving lunch
on September 10, 2016, as well. Id. at 37.
*10 In sum, the evidence supports a finding by the Court that the claimed denial of meals by each of the three Defendants
falls short of that required to support an Eighth Amendment violation, and the evidence does not support a finding that Plaintiff
suffered a sufficiently serious condition from any of the three Defendants' denial of a meal or meals.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 81) be GRANTED; and it hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, 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 days within which to file written objections
to the foregoing report. 10 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 (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. 72.
All Citations
Not Reported in Fed. Supp., 2018 WL 4610686
Footnotes
1 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.
2 Plaintiff has filed a cross-notice of motion for summary judgment seeking denial of Defendants' summary judgment
motion. (Dkt. No. 84-2). Because Plaintiff is not cross-moving for summary judgment in his favor, the Court is treating
his notice of motion as opposition to Defendants' motion.
3 Paragraph numbers are used where documents identified by CM/ECF docket number contain consecutively numbered
paragraphs.
4 The Court finds that Plaintiff’s amended complaint is properly verified under 28 U.S.C. § 1746. (Dkt. No. 19 at 16.)
5 Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
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6 L.R. 7.1(a)(3) requires the opposing party to file a response to the movant’s Statement of Material Facts. Under the rule,
the 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.”
7 L.R. 7.1(a)(3) provides that “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.” However, see Vermont Teddy Bear Co., Inc. v.
1 800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) (“[I]n determining whether the moving party has met his burden
of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed
facts in the moving party’s [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record
supports the assertion.”) (citations omitted).
8 Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his
failure to respond to their summary judgment motion. (Dkt. No. 81 at 2.)
9 The Court notes that Reams does not indicate in her declaration whether Plaintiff filed any grievances regarding one
or more individual missed meal, or a grievance regarding a number other than six missed meals. (See Dkt. No. 81-9
at ¶ 13.) Moreover, Reams has used the dates in Plaintiff’s amended complaint rather than the corrected dates in his
deposition testimony for the time span during which the missed meals occurred used by her in her review. Id.
10 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days
will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-
Recommendation 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. 6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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