9:24-cv-01581•Barry v. McIntosh et al
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ MAMADOU BARRY, Plaintiff, v. 9:24-CV-1581 (DNH/ML) MS. MCINTOSH, Superintendent, Clinton Corr. Facility; MR. FRENYA, Deputy of Security, Clinton Corr. Facility; MR. HARRIGAN, D.S.H., Clinton Corr. Facility; and MR. GADWAY, Sergeant, Clinton Corr. Facility, Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: MAMADOU BARRY Pro Se Plaintiff Five Points Correctional Facility Caller Box 119 Romulus, New York 14541 LETITIA A. JAMES ALEXANDRA L. GALUS, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendants The Capitol Albany, New York 12224 MIROSLAV LOVRIC, United States Magistrate Judge REPORT and RECOMMENDATION Currently before the Court, in this civil rights action filed by Mamadou Barry (“Plaintiff”) against defendants Ms. McIntosh, Mr. Frenya, Mr. Harrigan, and Mr. Gadway (collectively “Defendants”), is Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56 and partial motion to dismiss pursuant to Fed. R. Civ. P 12(b)(6). (Dkt. No. 30.) For Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 1 of 290
2 the reasons set forth below, I recommend that Defendants’ motion for summary judgment be granted and Plaintiff’s Complaint be dismissed. To the extent that Plaintiff’s medical indifference claim against Defendant Gadway survives Defendants’ motion for summary judgment, I recommend that Defendants’ partial motion to dismiss be denied. I. RELEVANT BACKGROUND A. Plaintiff’s Claims At this procedural posture, Plaintiff asserts the following claims: (1) First Amendment freedom of religion claims against Defendants McIntosh, Frenya, and Harrigan; (2) Eighth Amendment excessive force claims against Defendant Gadway; (3) Eighth Amendment deliberate medical indifference claims against Defendants Gadway, McIntosh, Frenya, and Harrigan; and (4) Eighth Amendment conditions-of-confinement claims related to “42 Cell” against Defendants McIntosh, Frenya, and Harrigan. (See generally Dkt. Nos. 1, 5.) B. Defendants’ Statement of Undisputed Material Facts Unless otherwise noted, the following facts were asserted and supported by Defendants in their Statement of Material Facts and not denied by Plaintiff in his response. (Compare Dkt. No. 30, Attach. 4, with Dkt. No. 37 [although Plaintiff responded to Defendants’ motion he did not file a response to their Statement of Material Facts].) 1. Plaintiff is an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). 2. Plaintiff was housed at Clinton Correctional Facility (“Clinton C.F.”) during the alleged incidents giving rise to his claims. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 2 of 290
3 3. At all relevant times, incarcerated individuals at Clinton C.F. were provided with full access to the Inmate Grievance Program (IGP).1 4. The IGP is governed by state regulation (7 N.Y.C.R.R. §§ 701.1-701.11) and administered through an agency-level directive (DOCCS Directive 4040).2 5. The IGP provides three levels of administrative review: (1) complaints to the Incarcerated Grievance Review Committee (“IGRC”) at the facility-level; (2) appeals to the facility superintendent; and (3) appeals to the Central Office Review Committee (“CORC”).3 6. For grievances alleging harassment (which includes harm sustained from facility employee misconduct), the IGP follows a separate, expedited procedure.4 7. For grievances alleging staff harassment and misconduct, upon receipt, the IGP directly forwards the grievance to the Superintendent, who has 25 calendar days to render a response.5 8. If an incarcerated individual disagrees with the Superintendent’s response, they must still appeal the decision to CORC to exhaust their administrative remedies.6 9. If an incarcerated individual fails to receive a response to an expedited grievance from the Superintendent within 25 calendar days, the failure to respond may be construed as a 1 (Dkt. No. 30, Attach. 3 at ¶ 20; Dkt. No. 30, Attach. 2 at ¶ 11.) 2 (Dkt. No. 30, Attach. 3 at ¶ 5; see Dkt. No. 30, Attach. 2 at ¶ 4.) 3 (Dkt. No. 30, Attach. 3 at ¶ 9; Dkt. No. 30, Attach. 2 at ¶ 5); see 7 N.Y.C.R.R. § 701.5. 4 (Dkt. No. 30, Attach. 3 at ¶ 12; Dkt. No. 30, Attach. 2 at ¶ 6); see 7 N.Y.C.R.R. § 701.8. 5 (Dkt. No. 30, Attach 3 at ¶ 12; Dkt. No. 30, Attach. 2 at ¶ 6); see 7 N.Y.C.R.R. § 701.8. 6 (Dkt. No. 30, Attach. 3 at ¶ 14; Dkt. No. 30, Attach. 2 at ¶ 6); see 7 N.Y.C.R.R. § 701.8(h). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 3 of 290
4 denial, and the incarcerated individual can appeal to CORC to exhaust their administrative remedies.7 10. All grievances, whether they concern allegations of harassment or not, must be filed within 21 days of the alleged incident.8 11. Extensions of time to file a grievance may be granted, but only upon request in writing within 45 days of the alleged incident.9 12. CORC is the final appellate level of the IGP.10 13. In his Complaint, Plaintiff alleges: (1) First Amendment free exercise claims against Defendants McIntosh, Frenya, and Harrigan; (2) Eighth Amendment excessive force claims against Defendant Gadway; (3) Eighth Amendment deliberate medical indifference claims against Defendants Gadway, McIntosh, Frenya, and Harrigan; and (4) Eighth Amendment conditions-of confinement claims against Defendants McIntosh, Frenya, and Harrigan. 14. Plaintiff’s claims are the proper subject for a grievance through DOCCS’ IGP.11 15. Plaintiff filed a grievance on August 4, 2022, entitled “sick call for eye,” which the IGRC labeled grievance number CL-0547-22 (“Grievance No. CL-20547-22”).12 7 (Dkt. No. 30, Attach. 3 at ¶¶ 14, 15; Dkt. No. 30, Attach. 2 at ¶ 6); see 7 N.Y.C.R.R. § 701.8(h). 8 (Dkt. No. 30, Attach. 3 at ¶ 9; Dkt. No. 30, Attach. 2 at ¶ 5); see 7 N.Y.C.R.R. §§ 701.5(a)(1), 701.8(a). 9 (Dkt. No. 30, Attach. 3 at ¶ 9); see N.Y.C.R.R. § 701.6(g)(1)(i). 10 (Dkt. No. 30, Attach. 3 at ¶ 16; Dkt. No. 30, Attach. 2 at ¶ 7.) 11 (Dkt. No. 30, Attach. 3 at ¶¶ 18-19; Dkt. No. 30, Attach. 2 at ¶¶ 9-10.) 12 (Dkt. No. 30, Attach. 3 at ¶ 23.) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 4 of 290
5 16. In Grievance No. CL-20547-22, Plaintiff grieved certain actions of the medical department at Clinton C.F.13 17. Grievance No. CL-20547-22 did not contain any allegations against Defendants Gadway, Frenya, McIntosh, or Harrigan, nor did it contain allegations against non-medical staff.14 18. Grievance No. CL-20547-22 was the only grievance properly filed by Plaintiff at the facility level that tangentially related to the claims set forth in paragraph 13.15 19. The IGRC issued a decision denying Grievance No. CL-20547-22 on September 14, 2022.16 20. On September 19, 2022, Plaintiff appealed the IGRC’s decision to the Superintendent.17 21. Plaintiff did not mention any of the claims that he asserts in this action in his appeal to the Superintendent.18 22. On October 3, 2022, the Superintendent issued a decision denying Plaintiff’s appeal.19 13 (Dkt. No. 30, Attach. 3 at ¶ 24.) 14 (Dkt. No. 30, Attach. 3 at ¶ 25.) 15 (Dkt. No. 30, Attach. 3 at ¶ 26.) 16 (Dkt. No. 30, Attach. 3 at ¶ 27; Dkt. No. 30, Attach. 3 at 24.) 17 (Dkt. No. 30, Attach. 3 at ¶ 28; Dkt. No. 30, Attach. 3 at 26.) 18 (Dkt. No. 30, Attach. 3 at ¶ 28; Dkt. No. 30, Attach. 3 at 26.) 19 (Dkt. No. 30, Attach. 3 at ¶ 29; Dkt. No. 30, Attach. 3 at 28.) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 5 of 290
6 23. On October 14, 2022, Plaintiff appealed the Superintendent’s decision to CORC.20 24. In his appeal to CORC, Plaintiff alleged that Defendant Gadway sprayed his face with chemicals and refused to allow Plaintiff to wash his face—Plaintiff then asked for assistance from Defendants McIntosh and Harrigan, but nothing was done.21 25. The new claims that were raised on appeal were not investigated by CORC, because incarcerated individuals may not raise new issues on a grievance appeal to CORC.22 26. Plaintiff did not properly submit any other grievances pertaining to the claims in this matter.23 C. Parties’ Briefing on Defendants’ Motion 1. Defendants’ Motion for Summary Judgment and Partial Motion to Dismiss Generally, in support of their motion for summary judgment and partial motion to dismiss, Defendants argue that (1) Plaintiff failed to properly exhaust his administrative remedies before commencing this action; and (2) Plaintiff failed to state a claim upon which relief may be granted with respect to his Eighth Amendment medical indifference claim against Defendant Gadway because Plaintiff failed to allege facts plausibly suggesting the subjective component of the claim. (See generally Dkt. No. 30, Attach. 5.) 20 (Dkt. No. 30, Attach. 3 at ¶ 30; Dkt. No. 30, Attach. 3 at 30-33.) 21 (Dkt. No. 30, Attach. 3 at ¶ 31; Dkt. No. 30, Attach. 3 at 30-33; Dkt. No. 30, Attach. 2 at ¶ 15.) 22 (Dkt. No. 30, Attach. 2 at ¶ 17.) 23 (Dkt. No. 30, Attach. 3 at ¶ 26; Dkt. No. 30, Attach. 2 at ¶ 18.) Defendants cited to Ms. Seguin’s Declaration at paragraph 19 in support of this fact asserted. However, support for the fact asserted is located in Ms. Seguin’s declaration at paragraph 18. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 6 of 290
7 More specifically, with respect to their first argument, Defendants assert that Plaintiff failed to file a grievance regarding his conditions-of-confinement claims and free exercise claims against Defendants McIntosh, Frenya, and Harrigan. (Dkt. No. 30, Attach. 5 at 10-11.) Further, Defendants assert that Plaintiff’s excessive force claim against Defendant Gadway and deliberate medical indifference claims against Defendants Gadway, McIntosh, Frenya, and Harrigan were not properly grieved and therefore must be dismissed. (Id. at 11-13.) Defendants argue that Plaintiff’s first reference to his claims that Defendants McIntosh, Gadway, Harrigan, and Frenya denied him medical care or that Defendant Gadway used excessive force are in his appeal to CORC, which is improper because it did not allow Clinton C.F. the ability to investigate his claims and take appropriate measures to resolve the complaints. (Id.) With respect to their second argument, Defendants assert that the Complaint alleges that Defendant Gadway denied Plaintiff medical treatment after an alleged use of force incident on July 25, 2022, then contradicts itself and alleges that Defendant Gadway took Plaintiff to the infirmary after the alleged use of force incident. (Dkt. No. 30, Attach. 5 at 13-16.) Defendants argue that hence, Plaintiff’s contradictory statements cannot establish an Eighth Amendment deliberate medical indifference claim. (Id.) 2. Plaintiff’s Response in Opposition Generally, in opposition to Defendants’ motion Plaintiff asserts the following two arguments: (1) Plaintiff exhausted his administrative remedies, and (2) he alleged facts plausibly suggesting a claim for medical indifference against Defendant Gadway. (See generally Dkt. No. 37 at 2-18.) More specifically, Plaintiff argues that he exhausted all administrative remedies that were available to him. (Dkt. No. 37 at 9.) Plaintiff alleges that: (1) on July 29, 2022, he wrote to Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 7 of 290
8 Defendant McIntosh and informed her of the constitutional violations taking place, (2) on July 29, 2022, he wrote to Defendant Fenrya and informed him of the constitutional violations taking place, (3) on July 29, 2022, he wrote to Defendant Harrigan and “reminded him” about the way that officers were “acting reckless towards Plaintiff[’s] Constitutional rights,” (4) on July 30, 2022, he wrote a grievance regarding being assaulted by Defendant Gadway and two of his officers, (5) on August 4, 2022, Plaintiff received a response from Defendant McIntosh, (6) on August 6, 2022, Plaintiff wrote to Defendant McIntosh and complained about more constitutional violations, (7) on August 6, 2022, Plaintiff wrote a letter to Defendant Frenya and asked “that he put [a] cease to the unconstitutional practices that w[ere] taking place under his authority,” (8) on August 6, 2022, Plaintiff wrote to Defendant Harrigan and asked that he direct his officers to refrain from engaging in unconstitutional practices, (9) on August 11, 2022, Plaintiff received a response from Defendant McIntosh, (10) on August 14, 2022, he “composed two letters to” Defendant McIntosh, (a) the first letter informed her that Plaintiff had submitted two grievances that he had not received acknowledgments for and requesed that she forward a copy to the IGRC supervisor for the issuance of a number and investigation, and (b) the second letter was “Plaintiff’s ‘Constructive Denial’, by I.G.R.C. to the Superintendent,” (11) on August 19, 2022, Plaintiff wrote to Defendant McIntosh in the form of a grievance that he submitted to the IGRC Supervisor, (12) on August 23, 2022, Plaintiff wrote to Defendant McIntosh and informed her of the unconstitutional acts taking place under her authority, (12) on August 23, 2022, Plaintiff received a response from Defendant McIntosh, (13) at some time Plaintiff received a copy of the grievance dated August 19, 2022, that he submitted to Clinton C.F. IGRC but Clinton C.F. IGRC refused to issue a grievance number because Plaintiff was no longer housed at Clinton C.F., (14) on August 25, 2022, Plaintiff wrote to Defendant Frenya about his Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 8 of 290
9 constitutional rights being violated, (15) on September 12, 2022, Plaintiff received a response from the Upstate C.F. grievance supervisor addressing one of Plaintiff’s grievances, and (16) on October 14, 2022, Plaintiff “perfected his ‘Constructive Denial’, to C.O.R.C.” (Dkt. No. 37 at 9- 11.) In addition, Plaintiff asserts that Ms. Wilcox can only testify regarding grievances that were issued a grievance number and thus her knowledge is limited. (Dkt. No. 37 at 11.) Plaintiff argues that he exhausted all administrative remedies that were available to him and Defendants failed to meet their burden. (Id. at 11-12.) With respect to his second argument, Plaintiff asserts that he adequately alleged a medical indifference claim against Defendant Gadway. (Dkt. NO. 37 at 13-18.) Plaintiff asserts that after Defendant Gadway “spread Plaintiff in the face and head area with unknowing [chemicals]” at some time, he was escorted to the infirmary. (Id. at 13.) Plaintiff asserts that while in the infirmary, Defendant Gadway “and two of his Officer[s] began to assault Plaintiff” and refused to allow Plaintiff access to medical attention. (Id. at 13-14.) 3. Defendants’ Reply Generally, in further support of their motion, Defendants assert the following four arguments: (1) letters to facility officials are not grievances; (2) Plaintiff failed to properly utilize the DOCCS grievance procedure; (3) the grievance procedure was available to Plaintiff, and (4) Plaintiff cannot raise new facts in his response to overcome their motion to dismiss. (Dkt. No. 41.) More specifically, with respect to their first argument, Defendants argue that the letters Plaintiff attached to his opposition addressed to Defendants McIntosh, Frenya, and Harrigan are not grievances and do not satisfy the grievance requirement. (Dkt. No. 41 at 3-4.) Defendants argue that in addition, Plaintiff’s exhibits reflect responses that he received from Defendant Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 9 of 290
10 McIntosh, which informed Plaintiff that his attempt to grieve a constitutional violation was improper and must be sent to the grievance office. (Id.) With respect to their second argument, Defendants assert that on August 19, 2022—while he was housed at Upstate C.F.—Plaintiff sent a grievance to Clinton C.F.’s grievance office and on September 26, 2022, Clinton C.F. responded by advising Plaintiff that the grievance must be filed at the facility where Plaintiff resided. (Dkt. No. 41 at 4-6.) Defendants argue that before Plaintiff received Clinton C.F.’s response, he filed a grievance with Upstate C.F.’s grievance office regarding his Eighth Amendment conditions of confinement claims. (Dkt. No. 41 at 5.) Defendants assert that Plaintiff received a letter that the grievance was outside of the 21-day window within which grievances must be filed in and did not request an extension of time (despite having 8 days to seek the extension). (Id.) With respect to their third argument, Defendants assert that Plaintiff submitted a grievance at Clinton C.F. on August 4, 2022, during the exact time that Plaintiff claims the Clinton C.F. grievance office was not processing grievances. (Dkt. No. 41 at 6-7.) Moreover, Defendants argue that Plaintiff’s claim that he tried to file two grievances at Clinton C.F. is unsupported because Plaintiff had a practice of retaining copies of the documents that he sent and received—which is reflected by the exhibits he attached to his opposition—and yet Plaintiff failed to provide copies of the purported grievances that he allegedly attempted to file at Clinton C.F. (Id.) With respect to their fourth argument, Defendants assert that in the Complaint, Plaintiff alleged that that Defendant Gadway denied him medical treatment but also stated that Defendant Gadway took Plaintiff to the facility infirmary after an alleged excessive force incident. (Dkt. No. 41 at 7-8.) Defendants argue that there were no other assertions in the Complaint regarding Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 10 of 290
11 Defendant Gadway’s alleged denial of medical care. (Id.) Defendants argue that Plaintiff’s new assertion in his opposition papers that Defendant Gadway instructed medical staff not to treat Plaintiff while he was in the infirmary cannot be used to establish his Eighth Amendment medical indifference claim. (Id.) As a result, Defendants argue that Plaintiff’s medical indifference claim against Defendant Gadway should be dismissed. (Id.) II. RELEVANT LEGAL STANDARDS A. Standard Governing A Motion For Summary Judgment Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).24 As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must 24 As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 11 of 290
12 come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a), (c), (e). Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute–even if that non- movant is proceeding pro se.25 (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)26 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court’s procedural rules.27 Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant’s failure to respond to the motion does is lighten the movant’s burden. 25 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases). 26 Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases). 27 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 12 of 290
13 For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant’s statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement28–even when the non-movant was proceeding pro se.29 Similarly, in this District, where a non-movant has willfully failed to respond to a movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3).30 Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 28 Among other things, Local Rule 56.1 (previously contained in Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant’s Statement of Material Facts, which admits or denies each of the movant’s factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1. 29 Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”). 30 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 13 of 290
14 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). B. Standard Governing Exhaustion of Administrative Remedies Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016) (“The [PLRA] mandates that an inmate exhaust ‘such administrative remedies as are available’ before bringing suit to challenge prison conditions.”). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “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 (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 (citing Woodford v. Ngo, 548 U.S. 81, 88 (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’” (quoting Woodford, 548 U.S. at 90)). In New York State prisons, DOCCS has a well-established three-step IGP, in which, (1) the inmate must file a grievance with the IGRC within twenty-one days of the alleged occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the superintendent of the facility within seven days after receipt of the IGRC’s response, and (3) the inmate must then appeal an adverse decision by the superintendent to the CORC within seven Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 14 of 290
15 days after receipt of the superintendent’s response. 7 N.Y.C.R.R. § 701.5; McGee v. McGready, 16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018). “[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance.” Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021); see 7 N.Y.C.R.R. § 701.8. Under the expedited procedure, the Superintendent has twenty-five days to respond to the grievance. 7 N.Y.C.R.R. § 701.8. If the Superintendent fails to respond within twenty-five days, the inmate may appeal directly to CORC. Id. § 701.8(g). If the Superintendent does respond, the inmate has seven days from receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g). Whether or not the Superintendent timely responds, the procedure to appeal a determination of the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the inmate grievance clerk.” Id. § 701.8(g)-(h).31 Inmates who have been transferred to a different facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2). “CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the inmate does not receive such confirmation within forty-five days, he ‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.’” Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022) 31 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. 7 N.Y.C.R.R. § 701.5(d)(1)(i). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 15 of 290
16 (quoting 7 N.Y.C.R.R. § 701.5(d)(3)(i)). The IGP requires CORC to respond to an appeal within thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii). If CORC has received an appeal and fails to rule within those thirty days, the inmate is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020). While the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that “are available” must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 (“[T]he exhaustion requirement hinges on the availability of administrative remedies[.]”) (quotation marks and citations omitted). In the PLRA context, the Supreme Court has determined that “availability” means that “an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of.” Ross, 136 S. Ct. at 1859 (quotation marks and citations omitted). The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859. “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Finally, an administrative remedy is not “available” when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. In Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that “the three circumstances discussed in Ross do not appear to be exhaustive[.]” The Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 16 of 290
17 illustrations of unavailability in Ross nonetheless guide the Court’s inquiry. Mena v. City of New York, 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016). Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216. The plaintiff must then establish the IGP grievance procedure was unavailable to him under Ross. Id. C. Standard Governing Motions to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review). Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between permitting a “short and plain statement” and requiring that the statement “show[ ]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2). On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 17 of 290
18 held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212, n.17 (citing Supreme Court cases) (emphasis added).32 The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an 32 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 18 of 290
19 actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id. As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 19 of 290
20 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted). However, “in a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to “‘make reasonable allowances to protect pro se litigants’” from inadvertently forfeiting legal rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of Educ., 287 F.3d 139, 146 (2d Cir. 2002). III. ANALYSIS A. Motion for Summary Judgment After carefully considering the matter, I recommend that Defendants’ motion for summary judgment be granted for the reasons set forth in their memoranda of law (Dkt. No. 30, Attach. 5 at 8-13; Dkt. No. 41 at 3-7) because Plaintiff failed to exhaust his available administrative remedies. The following is intended supplement, not supplant, those reasons. 1. Exhaustion Defendants submitted proof in admissible form by way of an affidavit from Donna Wilcox, the custodian for all grievance-related records at Clinton C.F. (Dkt. No. 30, Attach. 3 at ¶ 4.) In her affidavit, Ms. Wilcox stated that she conducted a diligent search of DOCCS records for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 22.) Ms. Wilcox Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 20 of 290
21 affirmed that her search revealed that Plaintiff filed Grievance No. CL-20547-22, which alleged that the medical department at Clinton C.F. refused to see or treat Plaintiff after he filed several sick calls with the department. (Id. at ¶¶ 23-24.) Ms. Wilcox noted that Grievance No. CL- 20547-22 did not contain any allegations against Defendants (or any non-medical staff) and did not put the grievance office on notice that Defendants allegedly assaulted Plaintiff or violated his rights in any way. (Id. at ¶ 25.) Ms. Wilcox stated that the IGRC issued a decision denying Grievance No. CL-20547-22 on September 14, 2022. (Dkt. No. 30, Attach. 3 at ¶ 27.) Finally, Ms. Wilcox affirmed that on October 3, 2022, the Superintendent issued a decision denying Plaintiff’s appeal on Grievance No. CL-20547-22. (Id. at ¶ 29.) In addition, Defendants submitted proof in admissible form by way of an affidavit from Rachael Seguin, the custodian of records maintained by CORC. (Dkt. No. 30, Attach. 2 at ¶ 3.) In her affidavit, Ms. Seguin stated that she searched record appeals received by CORC filed by Plaintiff related to his claims in this action. (Id. at ¶ 12.) Ms. Seguin affirmed that Plaintiff appealed Grievance No. CL-20547-22 to CORC and that Plaintiff’s CORC appeal alleged—for the first time—that (1) Plaintiff was sprayed in the eye by Defendant Gadway after a fight broke out at Clinton C.F., (2) Defendant Gadway refused to allow Plaintiff to wash his face, and (3) Plaintiff asked for assistance from Defendants McIntosh and Harrigan but nothing was done. (Dkt. No. 30, Attach. 2 at ¶¶ 14-15; Dkt. No. 30, Attach. 3 at ¶ 31.) Ms. Seguin noted that because these allegations were raised for the first time in Plaintiff’s appeal to CORC, they were not investigated through the grievance process at the facility level. (Dkt. No. 30, Attach. 2 at ¶¶ 16-17; Dkt. No. 30, Attach. 3 at ¶ 31.) Ms. Seguin affirmed that Plaintiff did not submit any other CORC appeals pertaining to his claims in this action. (Dkt. No. 30, Attach. 2 at ¶ 18.) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 21 of 290
22 In opposition to Defendants’ motion, Plaintiff presented several documents to support his assertion that he exhausted his administrative remedies. The documents set forth by Plaintiff fall into the following four categories: (1) letters to DOCCS officials, (2) a grievance filed at the incorrect facility, (3) an untimely grievance, and (4) uncorroborated claims of grievances that prison officials did not file. (See generally Dkt. No. 37.) a. Letters to DOCCS Officials As Defendants set forth in their reply, letters to DOCCS officials do not satisfy the grievance requirements. It is axiomatic that “sending a grievance to the superintendent does not comply with DOCCS inmate grievance procedure.” Dean v. Sheehan, 22-CV-0746, 2025 WL 1811183, at *15 (N.D.N.Y. July 1, 2025) (Sannes, C.J.) (citing Beatty v. Goord, 210 F. Supp. 2d 250, 255-56 (S.D.N.Y. 2000) (“[W]riting letters to . . . the [s]uperintendent . . . [is] not sufficient to comply with the Inmate Grievance Program”)). The Second Circuit has held that, “‘[A]lert[ing] the prison officials as to the nature of the wrong for which redress is sought,’ does not constitute ‘proper exhaustion.’” Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (quoting Braham v. Clancy, 425 F.3d 177, 183 (2d Cir. 2005); Woodford v. Ngo, 548 U.S. 81, 94-95 (2006)); see Grant v. Annucci, 19-CV-1188, 2025 WL 1919475, at *4 (W.D.N.Y. July 11, 2025) (citing Hernandez v. Coffey, 99-CV-11615, 2003 WL 22241431, at *3 (S.D.N.Y. Sept. 29, 2003) (holding that the plaintiff’s “complaint letters are insufficient to exhaust his administrative remedies”)) (“complaint letters do not satisfy exhaustion requirements.”); Mitchell v. Chappius, 750 F. Supp. 3d 123, 141 (W.D.N.Y. Sept. 25, 2024) (holding that a letter to the superintendent regarding the injuries that the plaintiff sustained in an assault and requesting that the Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 22 of 290
23 superintendent dismiss the misbehavior report “is not enough to constitute administrative exhaustion.”). Hence, Plaintiff’s (1) letter to Defendant McIntosh dated July 29, 2022 (Dkt. No. 37 at 89-91 [Exhibit Z]), (2) letter to Defendant Frenya dated July 29, 2022 (id. at 83-85 [Exhibit X]), (3) letter to Defendant Harrigan dated July 29, 2022 (id. at 86-88 [Exhibit Y]), (4) letter to Defendant McIntosh dated August 6, 2022 (id. at 79-82 [Exhibit V]), (5) letter to Defendant Frenya dated August 6, 2022 (id. at 75-78 [Exhibit U]), (6) letter to Defendant Harrigan dated August 6, 2022 (id. at 47-49 [Exhibit J]), (7) letter to Defendant McIntosh dated August 7, 2022 (id. at 38-39 [Exhibit D]), (8) letter to Defendant McIntosh dated August 14, 2022 (id. at 45-46 [Exhibit I]; id. at 92-93 [Exhibit BB]), (9) letter to Defendant McIntosh dated August 23, 2022 (id. at 50-51 [Exhibit K]), and (10) letter to Defendant Frenya dated August 25, 2022 (id. at 59- 60 [Exhibit O]), did not satisfy the grievance requirement because the recipients were DOCCS officials and not the facility grievance office. (Dkt. No. 41 at 4.) Indeed, Plaintiff received a response from Defendant McIntosh informing him that (1) his letter was not a grievance, and (2) any grievance must be sent to the grievance office. (See Dkt. No. 37 at 40-43 [Exhibits E, F, G].) These letters do not constitute proper exhaustion. b. Grievance Filed at Clinton While Housed at Upstate Plaintiff submitted a grievance to Clinton C.F. grievance office that appears—in Plaintiff’s handwriting—to be dated August 19, 2022. (Dkt. No. 37 at 52-53 [Exhibit L].) The grievance has a stamp on it that states “Sept 12 2022 AM 7:51” and a stamp that states “RECEIVED Sept 26 2022 IGP SUPERVISOR CLINTON.” (Id.) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 23 of 290
24 On September 26, 2022, Clinton C.F.’s grievance office returned Plaintiff’s grievance and informed Plaintiff that any grievance must be submitted at the facility where Plaintiff is housed. (Id. at 54 [Exhibit M].) Pursuant to 7 N.Y.C.R.R. § 701.5(a)(1) a grievance “may only be filed at the facility where the inmate is housed even if it pertains to another facility.” Plaintiff was transferred from Clinton C.F. to Upstate C.F. on or about August 23, 2022. (Dkt. No. 30, Attach. 3 at 8.) Plaintiff appears to acknowledge that this grievance was received after he was transferred to Upstate C.F. (Dkt. No. 37 at 5 [“Plaintiff direct[s] the Court[’s] attention to the stamp on this grievance. [I]t read[s] “received September 26, 2022,[”] this is after Plaintiff was transfer[r]ed to Upstate C.F.”].) Hence, Plaintiff’s grievance filed at Clinton C.F. while he was housed at Upstate C.F. was improperly filed and does not constitute proper exhaustion.33 c. Untimely Grievance Plaintiff submitted a grievance to Upstate C.F. and was informed that his grievance was “beyond the 21-day time frame.” (Dkt. No. 37 at 5, 61 [Exhibit P].) Plaintiff did not seek an extension to file his grievance outside of the 21-day window. (Dkt. No. 30, Attach. 3 at ¶¶ 9, 26.) This untimely grievance was not properly filed and thus does not constitute administrative exhaustion. 33 In addition, as set forth below in Part III.A.1.d. of this Report and Recommendation, Plaintiff’s response was neither sworn before a notary public nor signed to under penalty of perjury pursuant to 28 U.S.C. § 1746. (See generally Dkt. No. 37.) Hence Plaintiff’s allegations regarding this grievance are inadmissible hearsay for purposes of this motion for summary judgment. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 24 of 290
25 d. Claims of Grievances That Prison Officials Did Not File An affidavit from a plaintiff recounting how his efforts to file a grievance were blocked by jail personnel may be sufficient to overcome summary judgment based on a failure to exhaust administrative remedies under the PLRA. Baltas v. Maiga, 119 F.4th 255, 267-68 (2d Cir. 2024); see also Reyes v. McGinnis, 00-CV-6352, 2003 WL 23101781, at *4-5 (W.D.N.Y. April 10, 2003) (relying on plaintiff's affidavit regarding attempts to file grievance; “prison officials cannot have it both ways—they cannot obstruct an inmate’s pursuit of administrative exhaustion on the one hand and then claim the inmate did not properly exhaust these remedies on the other”) (citation and internal quotation marks omitted). Plaintiff alleges that “[o]n July 30, 2022, he wrote a grievance regarding being assaulted by [Defendant] Gadway, and two of his Officers, at the mess-hall, and at the infirmary, and [Defendant] Gadway refused to allow Plaintiff to receive[ ] emergency medical” attention. (Dkt. No. 37 at 2; accord Dkt. No. 37 at 4.) Plaintiff also alleges that on August 7, 2022, he submitted a second grievance to the IGRC supervisor. (Dkt. No. 37 at 4.) However, neither Plaintiff’s Complaint (Dkt. No. 1) nor Plaintiff’s opposition (Dkt. No. 37) are sworn under penalty of perjury or sworn before a notary public. Hence, the allegations contained in the Complaint and Plaintiff’s opposition are not admissible for purposes of rebutting the admissible evidence set forth by Defendants. Niedzieko v. Del. & Hudson Ry. Co., 18-CV-0675, 2019 WL 1386047, at *38 (N.D.N.Y. Mar. 27, 2019) (Suddaby, C.J.) (“The Court notes that much of the evidence before it is inadmissible hearsay that cannot be considered on a motion for summary judgment. For example, both parties submitted ‘declarations’ or ‘affidavits’ that were not signed before a notary public or sworn to pursuant to 28 U.S.C. § 1746. In addition, Plaintiff’s Complaint was not verified.”); see Sage v. HSBC Bank USA Nat’l Association as Trustee for Ace Securities Corp., 18-CV-1494, 2021 WL 1062590, at *10 (N.D.N.Y. Mar. 19, 2021) (Suddaby, C.J.) (citing Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 25 of 290
26 Niedzieko, 2019 WL 1386047, at *38) (“Inadmissible hearsay cannot be considered on a motion for summary judgment.”); Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015) (Suddaby, J.) (citing Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to . . . oppose a motion [for summary judgment] 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 matters stated.”)) (“On a motion for summary judgment, denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or inadmissible evidence are insufficient to create a genuine dispute.”). Moreover, even if the Court were to consider these assertions by Plaintiff, they fail to provide the required corroboration to create a genuine issue of material fact sufficient to withstand Defendants’ motion for summary judgment. “‘[M]ere contention[] or speculation’ regarding mishandling of a grievance ‘do[es] not create a genuine issue of material fact when there is no evidence to support the allegations.’” Dean v. Sheehan, 2025 WL 1811183, at *13 (citing Jackson v. Moore, 21-CV-1001, 2023 WL 4710869, at *6 (N.D.N.Y. Apr. 14, 2023) (Baxter, M.J.)). “Rather, a plaintiff must provide some corroboration of a claim that a grievance was submitted, such as evidence demonstrating when the grievance was written, the content of the grievance, how the plaintiff attempted to file the grievance, or that the plaintiff followed up with prison officials on the disposition of the grievance.” Dean, 2025 WL 1811183, at *13 (citing See Simpson v. Price, 19-CV-1413, 2022 WL 336540, at *3 (N.D.N.Y. Feb. 4, 2022) (D’Agostino, J.); see also Stephanski v. Allen, 18- CV-0076, 2020 WL 806331, at *9 (N.D.N.Y. Jan. 22, 2020) (Hummel, M.J.) (“Although [the plaintiff] fails to proffer copies of the grievance(s) he attempted to file . . . , his claims are supported by evidence suggesting that he attempted to file a grievance . . . including: (1) [the Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 26 of 290
27 plaintiff]’s deposition testimony; (2) [the plaintiff]’s letter to the . . . Grievance Committee; (3) [the plaintiff]’s letter to [a grievance supervisor]; (4) [a subsequent grievance]; and (5) [the plaintiff]’s Appeal Statement referring the Superintendent’s decision to CORC for review.”), report and recommendation adopted, 2020 WL 777268 (N.D.N.Y. Feb. 18, 2020) (Sannes, J.)). Here, Plaintiff’s uncorroborated assertion that he filed at least two grievances at Clinton C.F. is insufficient to rebut the evidence presented by Defendants. Plaintiff curiously included in his opposition (1) copies of at least ten letters he sent to DOCCS officials (as set forth above in Part III.A.1.a. of this Report and Recommendation), and (2) the improperly filed grievances (as set forth above in Part III.A.1.b. and III.A.1.c. of this Report and Recommendation). As Defendants set forth, “Plaintiff clearly retains copies of the documents he sends and receives.” (Dkt. No. 41 at 6-7.) Notwithstanding Plaintiff’s practice of retaining copies of documents he sends and receives, Plaintiff failed to submit a copy of the grievances he purportedly filed. (See generally Dkt. No. 37.) Further, as set forth by Defendants, the same time period during which Plaintiff allegedly filed these grievances—on or about July 30, 2022, to August 7, 2022—is when Plaintiff filed Grievance No. CL-20547-22. (Dkt. No. 41 at 6.) Hence, any contention that the Clinton C.F. grievance office was not processing Plaintiff’s grievances is contradicted by the fact that Grievance No. CL-20547-22 was processed by Clinton C.F. grievance office, assigned a number, and investigated. (Dkt. No. 30, Attach. 3 at 20-24.) In addition, to the extent that Plaintiff’s opposition is construed as arguing that he believed he could file a grievance after he received an administrative reversal of the Superintendent hearing decision, it is unavailing. (Dkt. No. 37 at 4 [“On August 7th 2022, Plaintiff perfected his tier 3, appeal to the Commissioner of Special Housing, in Albany.”]; Dkt. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 27 of 290
28 No. 37 at 5-6 [“On October 4th 2022, Plaintiff[’s] tier 3, misbehavior report was reviewed and reversed by ‘A. Rodriguez’, Director , Special housing.”].) An “appeal of the Superintendent’s hearing decision cannot act as a substitute for filing a grievance and the appeal of the Superintendent’s hearing decision does not toll the statutory deadlines for filing an IGRC grievance.” Coleman v. Hamilton, 24-CV-0455, 2025 WL 2933461, at *8 (N.D.N.Y. Aug. 29, 2025) (Evangelista, M.J.) (citing 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a) (“The IGP supervisor may grant an exception to the time limit for filing a grievance based on mitigating circumstances” but an extension of time “may not be granted if the request was made more than 45 days after an alleged occurrence.”)) (collecting cases), report and recommendation adopted 2025 WL 2731047 (N.D.N.Y. Sept. 25, 2025) (Nardacci, J.). For each of these reasons I find that Plaintiff failed to properly exhaust his administrative remedies. 2. Availability of Administrative Remedies Plaintiff does not appear to argue that administrative remedies were unavailable to him. (See generally Dkt. No. 37.) However, out of special solicitude, the undersigned has searched the record for potential arguments that administrative remedies may have been unavailable to Plaintiff. See Jackson v. West, 23-CV-0306, 2025 WL 1033787, at *4 (N.D.N.Y. Feb. 20, 2025) (Evangelista, M.J.), report and recommendation adopted, 2025 WL 814966 (N.D.N.Y. Mar. 14, 2025) (Kahn, J.). The Supreme Court of the United States, in Ross, identified three circumstances in which a court may find administrative remedies are not “available” for purposes of exhaustion under the PLRA: [A]n administrative procedure is unavailable when it operates as a simple dead end—with officers unable or consistently unwilling to provide any Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 28 of 290
29 relief to aggrieved inmates. Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use—i.e., some mechanism exists to provide relief, but no ordinary prisoner can navigate it. And finally, a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Ross, 578 U.S. at 643-44. First, there nothing in the record to support that the “dead end” exception applies. Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016). Indeed, Plaintiff filed Grievance No. CL-20547-22 on August 4, 2022. (Dkt. No. 30, Attach. 3 at 20-24); Jackson, 2025 WL 1033787, at *12 (citing Matthews v. Sweeney, 17-CV-0503, 2025 WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025) (Suddaby, J.)) (“Courts have rejected arguments that the grievance procedure was a ‘dead end’ where the plaintiffs chose to participate in the grievance procedure in some way, even in unrelated matters, concluding that such participation demonstrates that the plaintiffs did not view the grievance procedure as a dead end.”). The fact that Plaintiff was able to grieve other matters during the same time period demonstrates that administrative remedies were not a dead end. See Jackson, 2025 WL 1033787, at *12. Next, the opaqueness exception also does not apply to cure Plaintiff’s non-exhaustion. Administrative relief is unavailable where “[t]he regulations simply do not contemplate the situation in which the prisoner found himself, making it practically impossible for him to ascertain whether and how he could pursue his grievance.” Williams, 829 F.3d at 124. In other words, administrative relief is opaque when the procedure for the incarcerated person to procure relief under the circumstances is “so confusing that . . . no reasonable prisoner can use it.” Id. (quoting Ross, 578 U.S. at 644). Ms. Wilcox declared that upon arrival to Clinton C.F., “every incarcerated individual receives an Orientation Handbook, which includes a section about the grievance policies and Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 29 of 290
30 procedures set forth in DOCCS Directive 4040. Among the many topics covered in the Handbook, incarcerated individuals are taught how to file and appeal grievance complaints.” (Dkt. No. 30, Attach. 3 at ¶ 7.) Ms. Wilcox also declared that from July 4, 2022, to July 17, 2022, Plaintiff attended and successfully completed the facility orientation at Clinton C.F. (Id. at ¶ 8; Dkt. No. 30, Attach. 3 at 11.) In addition, Ms. Wilcox declared that Title 7 of the Official Compilation of Codes, Rules, and Regulations of the State of New York and DOCCS Directive 4040 were available in Clinton C.F.’s law library. (Dkt. No. 30, Attach. 3 at ¶ 5.) Plaintiff does not claim that he was confused by the applicable exhaustion policy, and in any event, any such conclusory claim would be insufficient to apply the opaqueness exception. See, e.g., Jackson, 2025 WL 1033787, at *9 (holding that the grievance procedure was not opaque where plaintiff claimed that he did not understand how to appeal, but the plaintiff failed to seek assistance or pay attention at the facility’s IGP orientation and the plaintiff successfully initiated the first step on several grievances). Finally, Plaintiff was not thwarted from using the prison’s grievance process regarding his claims through “machination, misrepresentation, or intimidation by prison officials.” Ross, 578 U.S. at 644. As this Court has stated, “general and conclusory statements that [an incarcerated individual] was threatened are insufficient to raise a triable issue of fact as to the unavailability of the grievance procedure because of intimidation by prison administrators.” Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at *5 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.), report and recommendation adopted, 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (Suddaby, C.J.) (quoting Lewis v. Wasielewski, 15-CV-0168, 2018 WL 4732755, at *6 (W.D.N.Y. July 10, 2018), report and recommendation adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018)). “Allegations of threats are conclusory where a plaintiff’s allegation ‘does not Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 30 of 290
31 indicate who threatened him, when he was threatened, or how he was threatened.’” Rodriguez v. Cross, 15-CV-1079, 2017 WL 2791063, at *8 (N.D.N.Y. May 9, 2017) (Hummel, M.J.), report and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27, 2017) (Suddaby, C.J.) (citing Johnson v. Fraizer, 16-CV-6096, 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016)). As a result, I recommend that Defendants’ motion for summary judgment be granted and Plaintiff’s claims be dismissed because Plaintiff failed to exhaust his administrative remedies. B. Partial Motion to Dismiss After carefully considering the matter, if the assigned District Judge rejects the above recommendation and Plaintiff’s Eight Amendment medical indifference claim survives, I recommend that he deny Defendants’ partial motion to dismiss Plaintiff’s Eighth Amendment medical indifference claim against Defendant Gadway. In his opposition to Defendants’ partial motion to dismiss, Plaintiff alleges that Defendant Gadway and two of his officers assaulted Plaintiff while in infirmary and that Defendant Gadway stated “you not going to get any medical attention until you tell me the names of all the inmates that was involved in the fight, and the beating wont stop.” (Dkt. No. 37 at 14 [errors in original].) In addition, Plaintiff alleges that Defendant Gadway “refused to allow the nurses to attend to [Plaintiff’s] injuries” and “denied Plaintiff medical treatment after [he] assaulted [Plaintiff].” (Id. at 15; see id. at 16 [alleging that Defendant Gadway “refused to allow the nurses to treat Plaintiff[’s] injuries that he caused.”].) Contrary to Defendants’ assertion in their reply—that the allegations contained in Plaintiff’s response “cannot now be used to establish his Eighth Amendment medical indifference claim” (Dkt. No. 41 at 8)—the Court may consider allegations contained in Plaintiff’s opposition as amendments to the Complaint to the extent that they are consistent with the allegations contained in the Complaint. See Drake v. Delta Airlines, Inc., 147 F.3d 169, 170, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 31 of 290
32 n. 1 (2d Cir. 1998) (per curiam) (“[W]e deem Drake’s complaint to include the facts contained in his memorandum of law filed in response to Delta’s 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (“In his affidavit submitted in opposition to defendants’ motion to dismiss, Gill asserts that Mooney’s actions amounted to deliberate and willful indifference. Liberally construed under pro se pleading standards, Gill’s allegations against Mooney involve more than ordinary lack of due care for the prisoner’s interests or safety, . . . and therefore state a colorable claim under the Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Sharpe, M.J.) (“[I]n cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they “are consistent with the allegations in the complaint.”) (collecting district court cases), vacated on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004) (Hurd, J.). Considering the additional allegations contained in Plaintiff’s opposition, I find that at this juncture Plaintiff alleges facts plausibly suggesting a claim of deliberate medical indifference pursuant to the Eighth Amendment against Defendant Gadway. As a result, I recommend that, to the extent this claim survives Defendants’ motion for summary judgment, Defendants’ partial motion to dismiss be denied. ACCORDINGLY, it is respectfully RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 30) be GRANTED and Plaintiff’s claims be DISMISSED for failure to exhaust his administrative remedies; and it is further respectfully RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED in its entirety and the action closed; and it is further Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 32 of 290
33 RECOMMENDED that to the extent the assigned District Judge rejects the undersigned’s recommendation that Plaintiff’s Complaint be dismissed based on his failure to exhaust administrative remedies, that Defendants’ partial motion to dismiss (Dkt. No. 30) be DENIED to the extent that it seeks dismissal of Plaintiff’s Eighth Amendment deliberate medical indifference claim against Defendant Gadway pursuant to Fed. R. Civ. P. 12(b)(6); and it is further respectfully ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.34 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report.35 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. Dated: January __, 2026 Binghamton, New York 34 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 35 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C). 21 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 33 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 2933461 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Towuan COLEMAN, Plaintiff, v. J. HAMILTON and Barbosa, Defendants. No. 9:24-CV-455 (AMN/PJE) | Signed August 29, 2025 Attorneys and Law Firms Towuan Coleman, Edgecombe Residential Treatment Facility, 611 Edgecombe Avenue, New York, New York 10032, Plaintiff pro se. CHI-HSIN E. ENGELHART, ESQ., Assistant Attorney General, NYS Office of The Attorney General, State Capitol, Albany, New York 12224, Attorney for defendants. REPORT-RECOMMENDATION AND ORDER 1 PAUL J. EVANGELISTA, UNITED STATES MAGISTRATE JUDGE *1 Plaintiff pro se Towuan Coleman (“plaintiff”), an inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants J. Hamilton (“Hamilton”) and Barbosa violated his First and Fourteenth Amendment constitutional rights and defamed and slandered him under New York State law. See Dkt. No. 9 at 1-2. 2 Presently before the Court are (1) defendants motion for (a) summary judgment on plaintiff's First Amendment retaliation claim pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56, and (b) dismissal of plaintiff's state law claims for failure to state a cause of action pursuant to Rule 12(b)(1); and (2) plaintiff's cross-motion for an evidentiary hearing on his First Amendment retaliation claim. 3 See Dkt. No. 26; Dkt. No. 30-1 at 3. For the following reasons, it is recommended that defendants’ motion be granted in its entirety and plaintiff's cross-motion for an evidentiary hearing be denied. I. Facts 4 In support of their motion, defendants filed a Statement of Material Facts. See Dkt. No. 26-10. As will be discussed below, plaintiff failed to properly respond to defendants’ Statement of Material Facts. See Dkt. No. 30-2. A. N.D.N.Y. Local Rule 56.1 N.D.N.Y. Local Rule 56.1(b) requires that a party opposing summary judgment file a response to the movant's Statement of Material Facts, “admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs.” “The Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” Id. (emphasis omitted). Here, plaintiff filed a response to defendants’ motion for summary judgment. See generally Dkt. No. 30. However, plaintiff's submission is not properly responsive to defendants’ Statement of Material Facts because it does not admit or deny defendants’ “assertions in a short and concise statement, in matching numbered paragraphs.” N.D.N.Y. L.R. 56.1(b); see Dkt. No. 30-2. Instead, plaintiff's response reiterates the facts from the complaint, contests the factual attestations of the sworn declarations submitted in support of defendants’ motion, and raises factual and legal arguments in opposition to defendants’ motion. See Dkt. No. 30-2. Further, plaintiff does not cite to the record for the facts he sets forth, in violation of Local Rule 56.1(a). See id.; see also N.D.N.Y. L.R. 56.1(a) (“Each fact listed shall set forth a specific citation to the record where the fact is established.”). *2 The Court is not required to “perform an independent review of the record to find proof of a factual dispute.” Prestopnik v. Whelan, 253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (citing Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470-71 (2d Cir. 2002)). Although the Local Rules provide that the undersigned shall deem admitted any facts that the nonmoving party fails to “specifically controvert,” and pro se plaintiffs are expected to abide by the Local Rules, pro se plaintiffs are also afforded special solicitude in this District and Circuit. See N.D.N.Y. L.R. 56.1(b); see also Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 34 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Accordingly, in deference to plaintiff's pro se status, the Court will independently review the record when evaluating defendants’ motions for summary judgment and dismissal, and “treat [plaintiff's] opposition as a response to” defendants’ Statement of Material Facts. Robinson v. Mirza, No. 9:21- CV-1322 (DNH/CFH), 2024 WL 4464280, at *7 (N.D.N.Y. July 30, 2024), report and recommendation adopted sub nom. Robinson v. Mizra, No. 9:21-CV-1322, 2024 WL 4249222 (N.D.N.Y. Sept. 20, 2024) (citing Johnson v. Lew, No. 1:13-CV-1072 (GTS/CFH), 2017 WL 3822047, at *2 (N.D.N.Y. Aug. 30, 2017)) (“Out of special solicitude to [the p]laintiff as a pro se civil rights litigant ... the Court will treat his opposition as a response to [the d]efendant's [ ]Statement ....”); see also Perry v. Ogdensburg Corr. Fac., No. 9:10-CV-1033 (LEK/TWD), 2016 WL 3004658, at *1 (N.D.N.Y. May 24, 2016) 5 (“[A]lthough [p]laintiff failed to respond to the statement of material facts filed by [d]efendants as required under Local Rule[s], the Court would invoke its discretion to review the entire record when evaluating the parties’ respective [m]otions for summary judgment.”). B. Undisputed Facts Plaintiff was incarcerated at Mid-State Correctional Facility (“Mid-State CF”) on September 29, 2023. See Dkt. Nos. 26-10 at 1; 26-2 at 3; 30-1 at 3. Plaintiff was incarcerated at Gouverneur Correctional Facility (“Gouverneur CF”) on October 12, 2023. See Dkt. Nos. 26-10 at 1; 30-10 at 1; 26-5 at 3. At all relevant times, there was a fully functioning grievance procedure available to all residents at Mid-State CF and Gouverneur CF. See Dkt. Nos. 26-2 at 1; 26-5 at 3; 26-8 at 3. At all relevant times, Hamilton was a sergeant at Mid- State CF. See Dkt. No. 9 at 10-12; Dkt. No. 1-1 at 1. At all relevant times, Barbosa was a hearing officer at Mid-State CF. See Dkt. No. 9 at 11-12; Dkt. No. 1-1 at 2. C. Plaintiff's Facts Plaintiff alleges during the week of August 11, 2023, while housed at Mid-State CF he was taken to Hamilton's office and questioned about a number of “slips” Hamilton received from confidential informants stating that plaintiff was “trying to get” a fellow inmate named “J.J.” “cut.” Dkt. No. 9 at 4-5. Plaintiff denied knowing J.J. and stated that there was no reason for anyone to get cut. See id. at 5. During the week of September 11, 2023, plaintiff was again taken to Hamilton's office and asked about “slips” Hamilton received about plaintiff wanting to get another inmate, “DOT”, “cut.” Dkt. No. 9 at 5-6. Plaintiff denied knowing DOT and stated, “I have no need to cut anyone.” Id. at 6. Hamilton then showed plaintiff several photographs of different inmates and questioned plaintiff about the inmates in the photographs, whether he knew any of them, and if he was in a gang. See id. at 6-7. Plaintiff denied knowing any of the inmates in the photographs and denied being in a gang. See id. at 7. Later that week, Hamilton questioned plaintiff about the “kid [that got] cut on the walkway the other day” and various gangs within the prison. Id. at 7, see id. at 8. Plaintiff stated he did not “have a clue what [Hamilton] was talking about” and denied being in a gang. Id. at 8. *3 On September 29, 2023, Hamilton awoke plaintiff in his cell, escorted him to an empty room in the housing unit, and proceeded to question him about a fellow inmate named “Blick.” Dkt. No. 9 at 9. Hamilton claimed that Blick placed a “hit” on one of the sergeants at Mid-State CF. Id. Plaintiff denied knowing Blick or anything about the alleged hit. See id. at 9-10. Later that day, Hamilton filed a misbehavior report against plaintiff, charging him with violating prison rules on threats, gangs, assault on staff, and violent conduct. See Dkt. No. 1-1 at 1. The misbehavior report states that Hamilton, “investigated a serious threat made against a sergeant at [Mid-State CF]” and alleged that plaintiff and another inmate planned to have a group of inmates assault a sergeant at Mid- State CF on October 1, 2023. Id. The misbehavior report further alleged that plaintiff was a “high-ranking member[ ] of the [u]authorized group known as the ‘bloods’ ” and that he “created a plan for other lower ranking members” in the group to assault the sergeant in the mess hall. Id. Hamilton based the report on “interviews from multiple confidential informants who have provided confidential information that has been reliable in the past.” Id. That same day plaintiff was moved from Mid-State CF to the Marcy Correctional Facility (“Marcy CF”). See Dkt. No. 9 at 10. On October 4, 2023, a disciplinary hearing was held before Barbosa. Dkt. No. 1-1 at 2. Plaintiff was found guilty on charges of violent conduct, assault on staff, and gangs. See id; also Dkt. No. 9 at 10. In reaching this determination, Barbosa concluded that having independently assessed the reliability of the confidential information Sgt. Hamilton relied upon to author Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 35 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 this MBR [Misbehavior Report], I find that the confidential sources and confidential information are substantially reliable, and I find their allegations to be credible. In a nutshell, [inmate] Coleman was not able to establish that the information the confidential sources provided was erroneous. Id. at 3. Plaintiff asserts that on February 5, 2024, he filed a grievance with Mid-State CF by addressing the grievance to “I.G.R.C. at Midstate [CF]” and placing “an addressed envelope inside [the] U.S. postal mailbox located at” Auburn CF. Dkt. No. 30. at 2. Plaintiff did not receive a response or reference filing number to his February 5, 2024, grievance. See id. On February 12, 2024, he appealed the grievance to the Superintendent of Mid-State CF by submitting a letter requesting that the Superintendent “render a decision” on his grievance. See id. On February 21, 2024, after not receiving a response from the Superintendent, plaintiff wrote a letter “to the I.G.P.” of Mid-State CF requesting a decision on his grievance. See id. at 2-3. After plaintiff did not receive a response to his February 21, 2024, letter, he wrote to CORC. See id. at 3. Plaintiff commenced this action when he did not receive a response from CORC. See id. D. Defendants’ Facts Plaintiff's claims are the proper subject for a grievance. See Dkt. No. 26-10 at 3. Plaintiff never filed any grievance alleging a violation of his First Amendment rights stemming from the alleged events of September 29, 2023. See Dkt. No. 26-10 at 3. Plaintiff never filed any grievance against Hamilton at either Mid-State CF or Gouverneur CF related to the alleged events of September 29, 2023. See Dkt. Nos. 26-2 at 4; 26-5 at 4. Plaintiff did not file any grievances generally while housed at Mid-State CF. See Dkt. Nos. 26-2 at 4. Neither the Mid-State CF, nor the Gouverneur CF, grievance offices received any written correspondence from plaintiff regarding the alleged events of September 29, 2023. See Dkt. Nos. 26-2 at 4; 26-5 at 4. Plaintiff did not appeal any grievance alleging First Amendment retaliation against Hamilton to CORC. See Dkt. No. 26-8 at 4. II. Motion for Summary Judgment A. Legal Standard On review of defendants’ motion for summary judgment, the facts will be related in the light most favorable to plaintiff as the nonmoving party. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record ... to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”). *4 A motion for summary judgment may be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the burden of demonstrating the absence of disputed material facts by citing to “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c). A fact is material if it “might affect the outcome of the suit,” as determined by the governing substantive law; a “dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving party meets this burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (citation omitted); see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment motion, the district court ... must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003) (citation omitted). Still, the nonmoving party cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam)); see also Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (“[M]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.”) (citation omitted). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 36 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Where a party seeks judgment against a pro se litigant, or a pro se litigant moves for summary judgment, the Court must afford the pro se litigant special solicitude. See Treistman, 470 F.3d at 477. As the Second Circuit explained, [t]here are many cases in which we have said that a pro se litigant is entitled to “special solicitude,” that a pro se litigant's submissions must be construed “liberally,” and that such submissions must be read to raise the strongest arguments that they “suggest[.]” At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not “consistent” with the pro se litigant's allegations, or arguments that the submissions themselves do not “suggest,” that we should not “excuse frivolous or vexatious filings by pro se litigants,” and that pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law ....” Id. (citations omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obligated to construe his pleadings liberally.”) (citations and quotation marks omitted). B. Discussion 1. Arguments Defendants argue that they are entitled to summary judgment as matter of law on plaintiff's First Amendment retaliation claim against Hamilton because plaintiff failed to exhaust his administrative remedies. See Dkt. No. 26-11 at 9-10. Defendants acknowledge that plaintiff's allegations stem from a September 29, 2023, incident in which plaintiff claims that Hamilton allegedly issued him a false misbehavior report for refusing to provide Hamilton with information. See id. at 9. Defendants also acknowledge that plaintiff's claims are the proper subject for a grievance. See id. However, defendants argue that plaintiff had “until October 20, 2023, to file a grievance related to this incident, or until November 13, 2023, to request an extension of time” and plaintiff failed to do either. Id. Defendants further argue that plaintiff did not “appeal the denial or non-response of any grievance concerning his retaliation claim against [ ] Hamilton to CORC.” Id. Defendants’ note that plaintiff appealed the Superintendent's hearing determination, but such an appeal does not constitute a grievance and cannot be considered proper exhaustion. See id. at 10. *5 Alternatively, defendants argue that plaintiff admitted he filed an untimely grievance and “did not begin the grievance process until February 5, 2024, while housed at Auburn Correctional Facility ... more than three months past the 21- day deadline to file his grievance.” Dkt. No. 31 at 5. Finally, defendants state that plaintiff “subsequently utilized IGP on December 14, 2023, for an unrelated issue, demonstrating his knowledge and familiarity with IGP, as well as the exhaustion process through CORC.” Id. at 9-10. Concerning plaintiff's state law claims, defendants argue that plaintiff's state law claims should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). See Dkt. No. No. 26-11 at 11-12 (citing N.Y. Correct. Law § 24). In support of their motion, defendants submit copies of sworn declarations from Chris Tapia, IGP Supervisor at Mid-State CF; Laura Hutchins, IGP Supervisor at Gouverneur CF; and Rachael Seguin, IGP Director for DOCCS. See Dkt. Nos. 26-2; 26-5; 26-8. These declarations attest that plaintiff was housed at each facility in September 2023 and October 2023; that plaintiff failed to file any facility-level grievance against Hamilton or alleging retaliation by Hamilton; and that plaintiff did not appeal any grievance to CORC. See Dkt. Nos. 26-2 at 3-4; 26-5 at 3-4; 26-8 at 3-4. Plaintiff argues that he is “fully aware of the whole grievance process, as well as having participated in an unrelated evidentiary hearing concerning the exhaustion of administrative remedies” and “took every step to exhaust his administrative remedies before bring[ing] this action before this Court.” Dkt. No. 30 at 1-2. Plaintiff states that if he wanted to file a grievance with a facility at which he was previously housed, after having been transferred to another facility, he would have to mail a grievance to the first facility where the incident giving rise to the grievance took place. See Dkt. No. 30-2 at 2-3. Plaintiff states that this is the exact process that he followed in filing the grievance forming the basis of this action. See id. In support of this argument, plaintiff attaches a copy of a purported grievance, dated February 5, 2024, as well as copies of the letter correspondence alleging that he did not receive a decision on his grievance and attempting to appeal the grievance to each level of the grievance procedure. See Dkt. No. 30 at 4-16. On the other hand, plaintiff argues that the grievance procedure at Mid-State CF “was not made available Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 37 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 to him.” Dkt. No. 30-1 at 6. He also claims that he believed he would be permitted to “begin to exhaust his administrative remedies” after receiving an administrative reversal on the Superintendent hearing decision and in fact “began his grievance process after [he] received an administrative reversal.” Id. at 6-7, 9. Plaintiff further argues that Hamilton and the other employees at Mid-State CF “worked together to prevent [him] from following through with his litigation further preventing [him] the ability to exhaust his administrative remedies.” Id. at 9-10. 6 2. Exhaustion of Administrative Remedies a. Legal Standard *6 The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust any available administrative remedies before bringing an action for claims arising out of their incarceration. See 42 U.S.C. § 1997e(a). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required even where the prisoner seeks relief not available in the administrative grievance process, such as money damages. See id. at 524. “To exhaust administrative remedies, the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he is incarcerated.” Adams v. Annucci, 537 F. Supp. 3d 475, 477-78 (W.D.N.Y. 2021); see Jones v. Bock, 549 U.S. 199, 218 (2007) (explaining that “to properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules ... rules that are defined not by the PLRA, but by the prison grievance process itself.”) (internal citations and quotations omitted). “Failure to exhaust administrative remedies under the PLRA is an affirmative defense, and thus the defendants have the burden of proving that [the plaintiff's] claim has not been exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted). A defendant satisfies this burden by “establishing ... that a grievance process exists[,]” and that the plaintiff failed to use the grievance procedure. Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (first citing Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003), then citing Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)). “However, once a defendant has produced reliable evidence that such remedies were generally available, and the plaintiff nevertheless failed to exhaust those remedies, the plaintiff must then counter the defendant's proof by showing that, as to him or her, the remedy was unavailable.” Coleman v. Nolan, No. 9:15-CV-40 (ATB), 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018) (citing Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013)). Once it is determined that a plaintiff has failed to exhaust his or her administrative remedies, “the Court must assess whether administrative remedies were available to” the plaintiff. Stephanski v. Allen, No. 9:18-CV-76 (BKS/CFH), 2020 WL 806331, at *7 (N.D.N.Y. Jan. 22, 2020), report and recommendation adopted, 2020 WL 777268 (N.D.N.Y. Feb. 18, 2020). “[T]he ultimate burden of proof with respect to the exhaustion defense remains, at all times, with the defendants.” Nelson v. Plumley, No. 9:12-CV-422 (TJM), 2015 WL 4326762, at *8 (N.D.N.Y. July 14, 2015) (citations omitted). However, “ ‘the burden of production’ may shift to a plaintiff when a court considers whether the grievance process was unavailable[.]” Coleman, 2018 WL 4732778, at *4. Here, there is no genuine dispute that, at all relevant times, DOCCS had in place a three-step inmate grievance program. See 7 N.Y.C.R.R. § 701.5. First, the inmate must file a complaint with the Inmate Grievance Resolution Committee (“IGRC”) within twenty-one (21) calendar days of the alleged incident. See id. § 701.5(a). The IGRC then “has up to 16 calendar days after a grievance is filed to resolve [the grievance] informally.” Id. § 701.5(b)(1). If there is no informal resolution, the IGRC conducts a hearing “within 16 calendar days after receipt of the grievance” and issues a written recommendation “within two working days” after the conclusion of the hearing. Id. § 701.5(b)(2); (b)(3)(i). Grievances filed after twenty-one days of the alleged incident are generally deemed untimely, however, an inmate may request an extension of time to file a grievance within forty-five days of the alleged incident “based on mitigating circumstances.” Id. §§ 701.5(a); 701.6(g)(1)(i)(a). Second, if the inmate is dissatisfied with the IGRC's decision, the inmate may appeal the IGRC's decision to the facility's superintendent. See 7 N.Y.C.R.R. § 701.5(c)(1). To initiate such appeal, the inmate “must complete and sign the appeal section on the IGRC response form ... and submit it to the grievance clerk within seven calendar days after receipt of the IGRC's written response.” Id. For matters concerning institutional issues, “the superintendent shall Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 38 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 render a decision on the grievance and transmit said decision, with reasons stated, to the grievant, the grievance clerk, and direct party, if any, within 20 calendar days from the time the appeal was received.” Id. § 701.5(c)(3)(ii). “If a [IGRC] decision is not implemented within 45 days, the grievant may appeal to CORC citing lack of implementation as a mitigating circumstance.” Id. § 701.5(c)(4). Alternatively, “[i]f no appeal is filed upon denial by the IGRC, it will be presumed that the grievant or direct party accepts the committee's recommendation.” Id. § 701.5(c)(1). *7 Third, the inmate may appeal the superintendent's decision to the CORC. See 7 N.Y.C.R.R. § 701.5(d)(1)(i). To initiate an appeal to CORC, the inmate “must complete and sign [the necessary forms] and submit [them] to the grievance clerk within seven calendar days after receipt of the superintendent's written response to the grievance.” Id. The IGRC Supervisor “must forward appeals within seven calendar days to ... CORC.” Id. § 701.5(d)(1)(ii). Upon receipt of an appeal, CORC “shall review each appeal, render a decision on the grievance, and transmit its decision to the facility, with reasons stated, for the grievant, the grievance clerk, the superintendent, and any direct parties within 30 calendar days from the time the appeal was received.” Id. § 701.5(d)(3)(ii). It is only after CORC renders a final decision, and the inmate receives that final decision, that the administrative remedies available to the inmate/claimant are exhausted. See Torres v. Carry, 672 F.Supp. 2d 338, 344 (S.D.N.Y. 2009). b. Analysis Viewing the evidence in the light most favorable to the plaintiff as the non-moving party and affording him special solicitude, plaintiff failed to rebut or raise a “genuine dispute as to any material fact” regarding defendants’ assertion that he did not properly exhaust his administrative remedies concerning his claims that Hamilton retaliated against him by filing a misbehavior report on September 29, 2023. FED. R. CIV. P. 56(a); see Wright, 554 F.3d at 266; Hicks, 593 F.3d at 166. The parties agree that plaintiff attempted to file a grievance on February 5, 2024, alleging that Hamilton retaliated against him by filing a misbehavior report on September 29, 2023. See Dkt. No. 31 at 5; No. 30 at 4-16. As the alleged incident occurred on September 29, 2023, plaintiff had until October 20, 2023, to file a grievance, or until November 12, 2023, to request an extension of time to file a grievance. See 7 N.Y.C.R.R. §§ 701.5(a); 701.6(g)(1)(i)(a). However, plaintiff neither filed a grievance by October 20, 2023, nor requested an extension of time to file a grievance by November 13, 2023. Moreover, plaintiff has not alleged that he attempted to file a grievance by October 20, 2023, or request an extension of time to file a grievance by November 13, 2023, or allege any mitigating circumstances that prevented him from doing so. See generally Dkt. Nos. 30, 32. Accordingly, the undersigned concludes that plaintiff's February 5, 2024, grievance is untimely, and plaintiff failed to exhaust his administrative remedies prior to commencing this action. See 7 N.Y.C.R.R. §§ 701.5(a); 701.6(g)(1)(i) (a); Mont v. Wells, No. 9:22-CV-215 (DNH/ATB), 2023 WL 5018571, at *7, n.7 (N.D.N.Y. June 5, 2023), report and recommendation adopted, No. 9:22-CV-215, 2023 WL 4361232 (N.D.N.Y. July 6, 2023) (quoting Harris v. Buskey, No. 9:21-CV-470 (LEK/CFH), 2022 WL 2663421, at *1 (N.D.N.Y. July 11, 2022) (quoting Adams v. Ohara, No. 16-CV-527 (GTS/ATB), 2019 WL 652409, at *7 (N.D.N.Y. Feb. 15, 2019))) (“[F]iling an untimely grievance without subsequently obtaining a finding of mitigating circumstances is insufficient to exhaust one's available administrative remedies.”); Ferguson v. Mason, No. 9:19-CV-927 (GLS/ ATB), 2021 WL 862070, at *9 (N.D.N.Y. Jan. 7, 2021), report and recommendation adopted, No. 9:19-CV-927 (GLS/ATB), 2021 WL 531968 (N.D.N.Y. Feb. 12, 2021) (quoting Adams, 2019 WL 652409, at *7 (same); Elleby v. Martingano, No. 9:20-CV-693 (LEK/ML), 2022 WL 18604, at *2 (N.D.N.Y. Jan. 3, 2022)) (quoting Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir. 2006)) (“[U]ntimely or otherwise procedurally defective attempts to secure administrative remedies do not satisfy the PLRA's exhaustion requirement.”);; Feliz v. Johnson, No. 9:17- CV-1294 (DNH/ATB), 2019 WL 5197216, at *4 (N.D.N.Y. June 6, 2019), report and recommendation adopted, 2019 WL 3491232 (N.D.N.Y. Aug. 1, 2019) (citations omitted) (“[I]f a plaintiff fails to follow each of the required steps of the IGP, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA.”); *8 To the extent that plaintiff believed he could file a grievance after he received an administrative reversal of the Superintendent hearing decision and in fact “begun his grievance process after [he] received an administrative reversal” [,] this argument is equally unavailing. Dkt. No. 30-1 at 6-7, 9. Plaintiff's appeal of the Superintendent's hearing decision cannot act as a substitute for filing a Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 39 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 grievance and the appeal of the Superintendent's hearing decision does not toll the statutory deadlines for filing an IGRC grievance. See 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a) (“The IGP supervisor may grant an exception to the time limit for filing a grievance based on mitigating circumstances” but an extension of time “may not be granted if the request was made more than 45 days after an alleged occurrence.”); Thomas v. Delaney, No. 9:17-CV-1023 (GLS/CFH), 2019 WL 4247807, at *10 (N.D.N.Y. Aug. 13, 2019), report and recommendation adopted, No. 9:17-CV-1023 (GLS/CFH), 2019 WL 4242268 (N.D.N.Y. Sept. 6, 2019) (quoting Barker v. Smith, No. 16-CV-76 (NSR), 2017 WL 3701495, at *3 (S.D.N.Y. Aug. 25, 2017) (quoting Scott v. Gardner, 287 F. Supp. 2d 477, 489 (S.D.N.Y. 2003), on reconsideration in part, 344 F. Supp. 2d 421 (S.D.N.Y. 2004), and on reconsideration in part, 2005 WL 984117 (S.D.N.Y. Apr. 28, 2005))) (“Courts in this District have held that [t]hough a disciplinary appeal is sufficient to exhaust a claim that Plaintiff was deprived of due process at a disciplinary hearing, allegations of staff misconduct related to the incidents giving rise to the discipline must be grieved.”) (internal quotation marks omitted); Labounty v. Johnson, 253 F. Supp. 2d 496, 501 (W.D.N.Y. 2003) (citation omitted) (“An appeal from a disciplinary hearing does not satisfy the grievance exhaustion requirement for a [constitutional] claim, even if the hearing is based on the same set of facts underlying the grievance.”); Toliver v. Adner, No. 9:18-CV-1420 (DNH/ ATB), 2019 WL 3503059, at *3 (N.D.N.Y. June 3, 2019), report and recommendation adopted, No. 9:18-CV-1420 (DNH/ATB), 2019 WL 3497099 (N.D.N.Y. Aug. 1, 2019), aff'd, 836 F. App'x 68 (2d Cir. 2020) (quoting Kimbrough v. Fischer, No. 9:13-CV-100 (FJS/TWD), 2014 WL 12684106, at *6 (N.D.N.Y. Sept. 29, 2014)), report and recommendation adopted, No. 9:13-CV-100 (FJS/TWD), 2016 WL 660919 (N.D.N.Y. Feb. 18, 2016) (“The grievance process is separate from the process of appealing the outcome of a disciplinary hearing, and an inmate ‘cannot adequately exhaust his remedies for PLRA purposes through his administrative appeal of the hearing decision; he must separately grieve the [defendant's] alleged misconduct ....”). As discussed above, plaintiff stated that he is “fully aware of the whole grievance process, as well as having participated in an unrelated evidentiary hearing concerning the exhaustion of administrative remedies” and “took every step to exhaust his administrative remedies before bring[ing] this action before this Court.” Dkt. No. 30 at 1-2. However, plaintiff's statement that if he wanted to file a grievance with Mid-State CF after having been transferred to another facility, he would have to mail the grievance to Mid-State CF is legally incorrect. See Dkt. No. 30-2 at 2-3. Here, plaintiff states that while housed at Auburn CF, he attempted to file a grievance with Mid- State CF by mailing the grievance to Mid-State CF. Dkt. No. 30. at 2. The regulations provide that a grievance “may only be filed at the facility where the inmate is housed even if it pertains to another facility.” 7 N.Y.C.R.R. § 701.5(a)(1). “Therefore, these mistaken beliefs do not excuse Plaintiff's failure to exhaust.” 7 Porter v. Uhler, No. 9:17-CV-47 (MAD/ TWD), 2019 WL 1292226, at *5 (N.D.N.Y. Mar. 21, 2019), aff'd, 790 F. App;x 329 (2d Cir. 2020) (citing Ross, 578 U.S. at 641); Jackson v. West, No. 9:23-CV-306 (LEK/PJE), 2025 WL 1033787, at *10 (N.D.N.Y. Feb. 20, 2025), report and recommendation adopted, No. 9:23-CV-306 (LEK/PJE), 2025 WL 814966 (N.D.N.Y. Mar. 14, 2025) (“Plaintiff's failure to avail himself of the grievance procedure is based on his ignorance of the training and failure to seek out resources rather than the opacity of the procedure.”); Kendall v. Cuomo, No. 1:12-CV-3438 (ALC/RLE), 2017 WL 4162338, at *5 (S.D.N.Y. Sept. 19, 2017) (citation omitted) (“[I]gnorance regarding the proper grievance procedure ... does not change the fact that those remedies were, nevertheless, available.”); Smith v. City of New York, No. 12 CIV. 3303 (CM), 2013 WL 5434144, at *25 (S.D.N.Y. Sept. 26, 2013) (“[I]gnorance is not an excuse where he had access to materials to learn about the grievance procedure, he was not incorrectly instructed about the grievance procedure, and prison officials did not do anything that objectively prevented him from availing himself of that procedure.”). Notwithstanding the timeliness issue discussed above, based on his own statements and actions, plaintiff has not satisfied the first step the of the grievance procedure because he did not file a grievance at Auburn CF concerning the incident that occurred at Mid-State CF. See 7 N.Y.C.R.R. § 701.5(a)(1). As such, plaintiff failed to satisfy the first step of the grievance procedure and exhaust his administrative remedies. See Feliz, 2019 WL 5197216, at *4. *9 Accordingly, the undersigned concludes that plaintiff failed to exhaust his administrative remedies prior to commencing this lawsuit because he filed an untimely grievance and did not follow the proper procedure. See 7 N.Y.C.R.R. §§ 701.5(a); 701.6(g)(1)(i)(a); Mont, 2023 WL 5018571, at *7, n.7; Labounty, 253 F. Supp. 2d at 501; Toliver, 2019 WL 3503059, at *3; Porter, 2019 WL 1292226, at *5; Feliz, 2019 WL 5197216, at *4. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 40 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 3. Availability of Administrative Remedies As plaintiff alleges that the grievance procedure was unavailable to him, and Hamilton and others prevented him from utilizing the grievance system, the undersigned must next assess whether administrative remedies were available to plaintiff. a. Legal Standard To successfully allege unavailability, “[a]n inmate must point to some affirmative action by a prison official that prevented the inmate from availing himself of the grievance procedures.” Martinaj v. Uhler, No. 9:18-CV-257 (BKS/ DJS), 2021 WL 3793769, at *7 (N.D.N.Y. 9Aug. 26, 2021) (citing Grafton v. Hesse, 783 F. App'x 29, 31 (2d Cir. 2019) (citing Ruggiero, 467 F.3d at 178)) (“We have held that where there has been no affirmative action by prison staff actually preventing prisoners from pursuing administrative remedies, those remedies are not unavailable under the PLRA.”). Examples of prison officials’ affirmative acts include verbal and physical threats of retaliation, denial of “forms and writing materials, and a refus[al] to accept or forward [the] plaintiff's appeals.” Perez v. Furina, No. 9:10-CV-518 (TJM/ CFH), 2016 WL 1237863, at *3 (N.D.N.Y. Jan. 19, 2016), report and recommendation adopted, No. 9:10-CV-518, 2016 WL 1238243 (N.D.N.Y. Mar. 29, 2016) (citing Ruggiero, 467 F.3d at 175); see also Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011) (holding that “verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers constitute such affirmative action.”) (first citing Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004) overruled on other grounds by Hemphill v. New York, 595 U.S. 140 (2022), then citing Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir. 2004)); see also Cicio v. Alvarez, No. 19-CV-9883 (CS), 2022 WL 1003796, at *5 (S.D.N.Y. Apr. 4, 2022) (“Specific threats of retaliation or intimidation by prison employees can render administrative remedies unavailable.”) (quoting Lutz v. Francisco, No. 9:20- CV-240 (GTS/DJS), 2020 WL 9264825, *5 (N.D.N.Y. Dec. 10, 2020)). “[T]he PLRA requires ‘proper exhaustion,’ which ‘means using all steps that the agency holds out, and doing so properly ....’ ” Ruggiero, 467 F.3d at 176 (2d Cir. 2006) (quoting Woodford, 548 U.S. at 90) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (additional internal quotation marks omitted). The PLRA's “exhaustion requirement hinges on the ‘availability’ of administrative remedies.” Ross, 578 U.S. at 642 (brackets omitted) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). “An inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. Availability means “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’ ” Id. (quoting Booth, 532 U.S. at 738). *10 There are “three kinds of circumstances in which an administrative remedy ... is not capable of use to obtain relief.” Ross, 578 U.S. at 643. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing Booth, 532 U.S. at 736). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644. The Second Circuit has noted that “the three circumstances discussed in Ross do not appear to be exhaustive,” but “illustrations of unavailability in Ross nonetheless guide the Court's inquiry.” Thomas v. Waugh, No. 9:13-CV-321 (MAD/ TWD), 2018 WL 3121622, at *10 (N.D.N.Y. Feb. 28, 2018), report and recommendation adopted, No. 9:13-CV-00321, 2018 WL 1508563 (N.D.N.Y. Mar. 27, 2018) (first citing Williams, 829 F.3d at 123 n.2 (2d. Cir. 2016), then citing Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016)). b. Unavailability Generally Plaintiff raises two arguments regarding availability. First, plaintiff argues that the grievance procedure at Mid-State CF “was not made available to him” generally. Dkt. No. 30-1 at 6. As plaintiff fails to state whether the grievance procedure was unavailable immediately following the September 29, 2023, incident or when he attempted to file his grievance on February 5, 2024, the undersigned will assess both arguments. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 41 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 i. September 29, 2023 Plaintiff's argument that the grievance procedure was unavailable on September 29, 2023, or in the twenty-one days thereafter, amounts to a baseless conclusion. Plaintiff (1) fails to provide any further details or explanation of how the grievance procedure was unavailable to him at this time and (2) acknowledges that he did not attempt to file a grievance or request an extension of time to file a grievance at this time. See generally Dkt. Nos. 9, 30. Further, this argument is contradicted by plaintiff's argument discussed above, that he was waiting for his appeal of the Superintendent hearing decision to be resolved before filing a grievance and that he only filed a grievance after the hearing decision was reversed. See Dkt. No. 30 at 6-7, 9. Plaintiff cannot simultaneously claim that the grievance procedure was unavailable to him but claim to have held off on using the grievance procedure until his disciplinary appeal was determined. ii. February 5, 2024 Plaintiff's argument that the grievance procedure was unavailable when he attempted to file a grievance on February 5, 2024, is also without merit for several reasons. First, as will be discussed below, plaintiff has not alleged that he was thwarted from “taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 644. Rather, plaintiff states that prison officials at Mid-State CF ignored or refused to accept the grievance and appeals he mailed to the facility. See Dkt. No. 30 at 1-3. Second, assuming arguendo, that the Mid-State CF prison official's ignorance or refusal to consider his February 5, 2024, grievance could be viewed as “machination” or “misrepresentation,” this argument still does not excuse plaintiff's failure to follow the proper grievance procedure or file a timely grievance. See 7 N.Y.C.R.R. § 701.5(a); Feliz, 2019 WL 5197216, at *4. Finally, whether the grievance procedure was available to plaintiff in February 2024 is irrelevant because the time to file a grievance expired and plaintiff did not request an extension of time to file his grievance. See id. c. Purported Threats and Intimidation *11 Second, plaintiff argues that Hamilton and the other employees at Auburn CF or Mid-State CF “worked together to prevent [him] from following through with his litigation further preventing [him] the ability to exhaust his administrative remedies.” Dkt. No. 30-1 9-10. In making this argument, plaintiff references an inmate that was housed at the Mohawk Correctional Facility and transferred to the Marcy CF “where he later died.” Id. at 10. Plaintiff states that “we saw how ‘third party’ information travels from one correctional facility to the other facility within the facility hub.” Id. Affording plaintiff due solicitude, he could be arguing that he generally feared for his life and safety if he provided information to Hamilton. Yet, plaintiff does not state, and the record does not indicate, that this “threat” contained any reference to the grievance procedure, any grievance plaintiff filed, or that he decided against filing a grievance because he feared for his safety. See Scott v. Cambisi, No. 20-CV-6388 (MWP), 2024 WL 867102, at *11 (W.D.N.Y. Feb. 29, 2024) (“Although acts of intimidation need not be tied narrowly to a particular grievance, they cannot be wholly unrelated to the grievance process.”) (internal citations and quotations omitted). Further, plaintiff fails to specify any “affirmative action by a prison official that prevented [him] from availing himself of the grievance procedures.” Martinaj, 2021 WL 3793769, at *7. Plaintiff does not describe any type of verbal or physical threat, allege that he was denied forms or writing materials, or claim that Hamilton or other corrections staff refused to forward his grievance or threatened to transfer him to another facility. See Perez, 2016 WL 1237863, at *3; Amador, 655 F.3d at 103. Plaintiff does not allege threats of violence, retaliation, or any form of retribution against him if he chose to pursue a grievance, nor does plaintiff contend that he was in fear of retaliation or retribution or that such fear deterred him from filing a grievance. See Scott, 2024 WL 867102, at *11 (“The deficiency in [the plaintiff's] argument is that he has not adduced any admissible evidence that in fact a fear of retribution deterred him from filing a grievance, regardless of whether such a fear could be considered objectively reasonable.”) (citations omitted); Cf. Hunter v. Rouse, No. 9:20-CV-65 (LEK/DJS), 2020 WL 8474744, at *4 (N.D.N.Y. Sept. 17, 2020), report and recommendation adopted, 2021 WL 101083 (N.D.N.Y. Jan. 12, 2021) (holding that the plaintiff's allegation that a defendant “told him that if he told ‘anyone what happened, the next time [the plaintiff] won't walk away[,]’ ” was “more than a generalized fear of retaliation[,]” and, therefore, “sufficiently reasonable to render administrative remedies unavailable.”); Galberth v. Durkin, No. 9:14-CV-115 (BKS/ATB), 2014 WL 7409915, at *8 (N.D.N.Y. Dec. 31, 2014) (holding that the defendants’ Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 42 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 threats that the plaintiff “would be beaten within an inch of his life” if he told anyone about the alleged assault was more than a generalized fear of retaliation and excused the plaintiff's failure to exhaust). Accordingly, as plaintiff has failed to demonstrate that defendants’ purported threats prevented him from “taking advantage of a grievance process through machination, misrepresentation, or intimidation,” the undersigned concludes that he has failed to show unavailability on this ground. Ross, 578 U.S. at 644. Conversely, assuming arguendo and affording plaintiff due solicitude, that plaintiff's claims could be interpreted has demonstrating that Hamilton or other corrections staff threatened plaintiff with violence, retaliation, or retribution and prevented him from filing a grievance immediately after the September 29, 2023, incident, plaintiff filed a grievance for an unrelated issue on December 14, 2023, and attempted to file a grievance in this matter on February 5, 2024. See Dkt. Nos. 26-5 at 4, 26-6 at 2, 26-7 at 2-8; Dkt. No. 30 at 4. “[T]he Second Circuit has concluded that when an inmate files a grievance, notwithstanding the threats of retaliation and intimidation of which that inmate complains, the failure to fully exhaust under the PLRA will not be excused on this ground.” Grant v. Kopp, No. 9:17-CV-1224 (GLS/DEP), 2019 WL 368378, at *6 (N.D.N.Y. Jan. 3, 2019), report and recommendation adopted, No. 9:17-CV-1224 (GLS/CFH), 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (citing McNab v. Doe, 686 F. App'x. 49, 51 (2d Cir. 2017), affirming 2016 WL 324994 (N.D.N.Y. Jan. 27, 2016) (Suddaby, C.J.)). In reaching this conclusion, the Second Circuit noted that: *12 [Plaintiff] asserted that defendants tried to intimidate him, and intimidation can excuse the failure to exhaust. However, none of the actions allegedly taken by the defendants actually prevented [plaintiff] from submitting his complaint letter. [Plaintiff] was able to take the first step in the grievance process, and nothing in the record suggests he was intimidated from taking the next step (appealing the rejection of his informal grievance). McNab, 686 F. App'x at 51 (internal citations omitted). The undersigned concludes that because plaintiff continued to avail himself of the grievance procedure immediately following these alleged threats, plaintiff was not prevented from “taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 644. Thus, he has failed to show unavailability on this ground. See id. d. First and Second Ross Exceptions In the interest of thoroughness, the undersigned will also address the first and second Ross exceptions. As stated above, the first Ross exception applies when the grievance procedure “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates[,]” while the second Ross exception applies when the “administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Ross, 578 U.S. at 643. Plaintiff has not alleged that the grievance procedures at either Mid-State CF, Gouverneur CF, or Marcy CF were “dead end[s]” or “so opaque” as to be rendered “incapable of use.” Ross, 578 U.S. at 643. Plaintiff stated that he is “fully aware of the whole grievance process, as well as having participated in an unrelated evidentiary hearing concerning the exhaustion of administrative remedies” and “took every step to exhaust his administrative remedies before bring[ing] this action before this Court.” Dkt. No. 30 at 1-2. Plaintiff also stated that “at all times [he] was fully aware that before he could bring a claim before this Court, he would have to exhaust all his administrative remedies.” Dkt. No. 30-1 at 6. After the September 29, 2023, incident, plaintiff filed a grievance related to a medical issue on December 14, 2023, and attempted to file a grievance relating to the September 29, 2023, incident, on February 5, 2024. See Dkt. Nos. 26-5 at 4, 26-6 at 2, 26-7 at 2-8, 30 at 4. “This shows that Plaintiff did not view the filing of grievances as a dead end. It also demonstrates that he clearly understood DOCCS’ inmate grievance policy and could navigate it when he wished to pursue a grievance.” Walker v. Ball, No. 9:16-CV-437 (DNH/DJS), 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018), report and recommendation adopted, No. 9:16-CV-437 (DNH/DJS), 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (citing Gonzalez v. Coburn, No. 6:16-CV-06174 (MAT), 2017 WL 6512859, at *6 (W.D.N.Y. Dec. 20, 2017) (additional citation omitted)) (“Plaintiff's decision to affirmatively participate at all three levels in the inmate grievance program demonstrates that the program was neither a dead-end nor so opaque that Plaintiff could not avail Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 43 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 himself of it.”). “As such, the first two exceptions identified under Ross are not applicable here.” Id. 4. Time to File a Grievance has Expired Here, the alleged incident took place on September 29, 2023. See Dkt. No. 9 at 8-10; No. 30 at 4-16. Plaintiff had until October 20, 2023, to file a grievance with IGRC. See 7 N.Y.C.R.R. § 701.5(a) (“An inmate must submit a complaint to the clerk within 21 calendar days of an alleged occurrence on an inmate grievance complaint form.”). Plaintiff also had until November 13, 2023, to request an extension of time to file a grievance. See 7 N.Y.C.R.R. § 701.6(g)(1) (An inmate may file a request for an extension of time to file a grievance within forty-five days of the alleged incident.). The record does not indicate, and plaintiff has not asserted, that he attempted to file a grievance by October 20, 2023, or that he requested an extension of time to file his grievance at any time. Although plaintiff attempted to file a grievance on dated February 5, 2024, as discussed above, this grievance was untimely. See Dkt. No. 30 at 4. *13 “Ordinarily, the proper remedy where a prisoner has failed to satisfy the exhaustion requirement is to dismiss the complaint without prejudice, to give the inmate a chance to exhaust his administrative remedies and then refile his complaint.” Robinson v. Harder, No. 9:21-CV-1322 (DNH/ CFH), 2024 WL 1469076, at *9 (N.D.N.Y. Feb. 20, 2024) (first quoting Brown v. Napoli, No. 08-CV-6477L (DGL), 687 F. Supp. 2d 295, 298 (W.D.N.Y. 2009), then citing Chisholm v. N.Y.C. Dep't of Corr., No. 08-CV-8795, 2009 WL 2033085, at *3 (S.D.N.Y. July 13, 2009)). “This is so even when the issue is decided on a motion for summary judgment.” Mateo v. Corebine, No. 9-CV-4811 (RJH/DCF), 2010 WL 3629515, at *7 (S.D.N.Y. Sept. 17, 2010) (collecting cases). However, if an inmate has failed to exhaust available administrative remedies and the time in which to exhaust has expired, it is proper for the court to dismiss the complaint with prejudice because any attempt to exhaust would be futile. See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004); see also Richard v. LeClaire, 9:15-CV-0006 (BKS/TWD), 2019 WL 5197041, at *9 (N.D.N.Y. May 6, 2019), report and recommendation adopted, 2019 WL 4233184 (N.D.N.Y. Sept. 6, 2019) (“Because [the p]laintiff's failure to exhaust is at this point incurable, the Court recommends that summary judgment for failure to exhaust administrative remedies be with prejudice.”). Plaintiff's failure to exhaust his available administrative remedies relating to the alleged incident on September 29, 2023, is no longer curable. The time for plaintiff to exhaust his administrative remedies has expired. Also, plaintiff has not demonstrated that the grievance procedure was unavailable to him. Accordingly, it is recommended that defendants’ motion for summary judgment be granted as to plaintiff's First Amendment retaliation claim and this claim be dismissed with prejudice. See Berry, 366 F.3d at 88. Subsequently, as there is “no genuine dispute as to any material fact” as to whether the grievance procedure was available to plaintiff and to whether plaintiff failed to exhaust, the undersigned recommends denying plaintiff's motion for an evidentiary hearing as a matter of law. FED. R. CIV. P. 56(a). IV. Motion to Dismiss A. Legal Standard Under Fed. R. Civ. P. 12(b)(6), a defendant may move to dismiss a complaint for a plaintiff's “failure to state a claim upon which relief can be granted.” 8 When considering such a motion, a court must “construe plaintiff[’s] complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff[’s] favor.” Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009) (quoting Holmes v. Grubman, 568 F.3d 326, 335 (2d Cir. 2009)) (internal quotation marks omitted). However, this “tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks and alterations omitted). Accordingly, to survive a motion to dismiss, a complaint must “ ‘state a claim for relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining that the plausibility test “does not impose a probability requirement ... it simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].”)); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that “[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible ....”) (internal citations omitted). Determining whether plausibility exists is “a context-specific task that requires the reviewing court to Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 44 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. B. Arguments *14 Defendants argue that plaintiff's claims should be dismissed because they are barred by Section 24 of the New York State Correction Law. Dkt. No. 26-11 at 10-12. Defendants assert that Section 24 affords immunity to all DOCCS employees from liability and damages “arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.” Id. at 11 (citing N.Y. Correct. Law § 24(1)); see id. at 12. Defendants state that Hamilton and Barbosa were acting within the scope of their employment as a corrections officer and a hearing officer, and therefore, any claims against them in their personal capacities are statutorily barred. See id. at 11-12. Plaintiff does not respond to defendants’ arguments. See generally Dkt. Nos. 30, 32. The undersigned notes that plaintiff alleges that he was defamed and slandered by false “statements made by defendant Hamilton in a misbehavior report, and during plaintiff's disciplinary hearing, and by defendant Barbosa in a disciplinary decision.” Dkt. No. 10 at 16; See Dkt. No. 1 at 4. C. Analysis Section 24 of the New York State Correction Law provides that No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department ... in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee. N.Y. Correct. Law § 24(1). “An employee's actions are deemed to be within the scope of their employment when ‘the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions.’ ” Henderson v. Popp, No. 9:22-CV-242 (AMN/MJK), 2025 WL 1033853, at *25 (N.D.N.Y. Mar. 4, 2025), report and recommendation adopted, No. 9:22- CV-242 (AMN/MJK), 2025 WL 942801 (N.D.N.Y. Mar. 28, 2025), aff'd as modified, No. 9:22-CV-242 (AMN/MJK), 2025 WL 1427876 (N.D.N.Y. May 19, 2025) (quoting Ierardi v. Sisco, 119 F.3d 183, 187 (2d Cir. 1997)). For purposes of New York Correction Law [Section] 24, the courts have looked to the following factors to determine whether actions fall within the actor's scope of employment: 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 any employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated. Balentine v. Shurgot, No. 9:22-CV-285 (MAD/ML), 2023 WL 6622034, at *7–8 (N.D.N.Y. Oct. 11, 2023) (quoting Francis v. Fiacco, No. 9:15-CV-901, 2016 WL 3448617, *4 (N.D.N.Y. June 20, 2016) (quoting Ierardi, 119 F.3d at 187)). “Employees are considered to be acting within the scope of their employment so long as they are carrying out their assigned duties, ‘no matter how irregularly, or with what disregard of instructions.’ ” Balentine v. Anzalone, No. 9:21- CV-1383 (LEK/CFH), 2023 WL 4905093, at *3 (N.D.N.Y. July 12, 2023), report and recommendation adopted, No. 9:21-CV-1383 (LEK/CFH), 2023 WL 4887454 (N.D.N.Y. Aug. 1, 2023) (quoting Bernardi v. New York State Dep't of Corr., No. 19-CV-11867 (KMK), 2021 WL 1999159, at *5 (S.D.N.Y. May 19, 2021)) (additional citation omitted). “Employees ... are not found to be acting within their employment scope when their conduct, while in the course of employment, is for purely personal reasons unrelated to the employer's interests and a substantial departure from the normal methods of performing [their] duties.” Balentine, 2023 WL 6622034, at *8 (quoting Balentine, 2023 WL 4905093, at *3) (additional citations and quotation marks omitted); Cf. Livingston v. Griffin, No. 9:04-CV-607 (JKS), 2007 WL 2437433, at *2 (N.D.N.Y. Aug. 22, 2007) (“New York courts have held that § 24(1) is inapplicable where the act is committed solely for personal reasons unrelated to the employer's interests.”). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 45 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 *15 Here, all of plaintiff's allegations arise from Hamilton's investigation into a threat against a corrections officer at Mid- State CF, and the statements made by Hamilton and Barbosa in the misbehavior report, during the disciplinary hearing, and in the disciplinary decision. See Dkt. Nos. 1 at 4; 10 at 16. Defendants argue that all of their actions relating to this matter were within the scope of their employment as a corrections officer and hearing officer, and therefore, they are immune to suit. See Dkt. No. 26-11 at 10-12. The undersigned agrees. Even viewing the evidence in the light most favorable to plaintiff as the non-moving party, plaintiff fails to allege that any of the actions taken, or statements made, by Hamilton or Barbosa fell outside the scope of their employment. It is reasonable to conclude that each action taken by Hamilton and Barbosa giving rise to plaintiff's claims, i.e. (1) investigating an inmate's threat against corrections officers; (2) drafting and filing a misbehavior report; (3) testifying at and conducting a disciplinary hearing; and (4) drafting and issuing a disciplinary decision, are common tasks that fall within the scope of Hamilton and Barbosa's duties a corrections officer and hearing officer. See Balentine, 2023 WL 6622034, at *7–8; Balentine, 2023 WL 4905093, at *3. More specifically, these actions satisfy the criteria set forth in Ierardi. See Ierardi, 119 F.3d at 187. All acts giving rise to plaintiff's state law claims occurred at Mid-State CF. See generally Dkt. No. 1. The misbehavior report was filed the same day the investigation was completed. See Dkt. No. 1-1 at 1. The disciplinary hearing was held five days after the misbehavior report was filed. See id. at 2. The disciplinary hearing decision was issued the same day the disciplinary hearing was completed. See id. at 2-7. To the extent that either Hamilton or Barbosa “depart[ed] from normal methods of performance,” plaintiff challenged the disciplinary hearing decision and the decision was reversed. See id. at 9. Additionally, it is reasonable for DOCCS to anticipate Hamilton and Barbosa would perform these functions in the course of their employment duties. See Ierardi, 119 F.3d at 187. Therefore, the undersigned concludes that all actions taken Hamilton and Barbosa were in the scope of employment as a corrections officer and a hearing officer. Thus, plaintiff's state law defamation and slander claims are barred by Section 24 of the New York State Correction Law. See N.Y. Correct. Law § 24(1); Balentine, 2023 WL 6622034, at *8 (quoting Balentine, 2023 WL 4905093, at *3); Foskey v. Northrup, No. 9:20-CV-504 (LEK/TWD), 2025 WL 1920379, at *4 (N.D.N.Y. May 6, 2025) (quoting Davis v. McCready, 283 F. Supp. 3d 108, 123 (S.D.N.Y. 2017)) (“Courts in the Second Circuit have long held that Section 24 precludes a plaintiff from raising state law claims in federal court against state employees in their personal capacities for actions arising within the scope of their employment.”); Henderson, 2025 WL 1033853, at *26 (“Plaintiff does not respond to this argument. As there are no allegations that Defendants were acting outside of the scope of their employment and in the discharge of their duties, the statutory bar imposed by Corrections Law § 24 is applicable.”); Arriaga v. Annucci, No. 23-CV-1941 (VB), 2024 WL 1743300, at *6–7 (S.D.N.Y. Apr. 23, 2024) (“Here, plaintiff does not allege any defendant acted outside the scope of their DOCCS employment ... Accordingly, plaintiff's state law claim[ ] for ... slander per se, and fraud must be dismissed.”). Accordingly, the undersigned recommends that defendants’ motion to dismiss be granted in its entirety and plaintiff's state law defamation and slander claims be dismissed with prejudice. V. Conclusion *16 WHEREFORE, for the reasons set forth herein, it is hereby: RECOMMENDED, that defendants’ motion for summary judgment (Dkt. No. 26) be GRANTED, and plaintiff's amended complaint (Dkt. No. 9) as alleging a First Amendment retaliation claim against defendant J. Hamilton be DISMISSED in its entirety with prejudice; it is further RECOMMENDED, that defendants’ motion to dismiss (Dkt. No. 26) be GRANTED, and plaintiff's amended complaint (Dkt. No. 9) as alleging New York State law defamation and slander claims against defendants J. Hamilton and Barbosa be DISMISSED in its entirety with prejudice; it is further RECOMMENDED, that plaintiff's cross-motion (Dkt. No. 30) requesting an evidentiary hearing be DENIED; it is ORDERED, that the Clerk serve a copy of this Report- Recommendation and Order on all parties in accordance with Local Rules. IT IS SO ORDERED. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 46 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 Pursuant to U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV P. 6(a), 6(e), 72. 9 All Citations Slip Copy, 2025 WL 2933461 Footnotes 1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). 2 Plaintiff initially brought claims against “Superintendent Doe” and alleging that his Eighth Amendment and Fourteenth Amendment equal protection rights were violation. See Dkt. No. 9 at 1-2. On initial review, the Court sua sponte dismissed the Eighth Amendment and Fourteenth Amendment equal protection claims and terminated “Superintendent Doe” from the action pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). See Dkt. No. 10. 3 The undersigned notes that plaintiff's Fourteenth Amendment due process claims survived initial review but are not the subject of defendants’ motion. 4 The undersigned's citations to filings connected with this motion refer to the pagination located at the header of each page, which the Court's electronic filing and case management program generated, rather than the individual pagination of each document. 5 The Court has provided plaintiff with copies of all unpublished cases cited within this Report-Recommendation and Order. 6 Plaintiff also argues that he objected to the misbehavior report and the disciplinary hearing process overall during the October 4, 2023, disciplinary hearing before Barbosa. See Dkt. No. 9 at 11. Plaintiff states that he was not afforded an opportunity to (1) submit questions to the hearing officer to be asked to the confidential informant or (2) refute any evidence proffered by the confidential informant or Hamilton. See id. at 11. The undersigned notes plaintiff's arguments but will not address them further in the context of defendants’ motions because these arguments are the subject of plaintiff's Fourteenth Amendment due process claim(s). 7 As will be discussed below, although plaintiff raises the issue of unavailability, he does not raise the issue of unavailability in the context of mailing his grievance to Mid-State CF. See Dkt. No. 30. However, to the extent plaintiff's argument could be interpreted as asserting that the grievance procedure was unavailable to him because it was too opaque, “the Supreme Court [has] found that an inmate's mistaken belief that he has exhausted his administrative remedies, even where that belief seems reasonable, does not make the administrative remedies unavailable.” Livingston v. Hoffnagle, No. 9:17-CV-1158 (MAD/DEP), 2019 WL 409366, at *4 (N.D.N.Y. Feb. 1, 2019) (citing Ross v. Blake, 578 U.S. 632, 641) 8 Although defendants move to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, Judge Nardacci permitted plaintiff's state law defamation and slander claims to proceed after initial review. See Dkt. No. 10 at 15-16. Thus, the Court already determined that it has subject matter and pendent jurisdiction over these claims. See id. However, in reaching this determination, Judge Nardacci stated that “the Court Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 47 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.” Id. at 16. Accordingly, the undersigned will analyze the merits of plaintiff's claim under Rule 12(b)(6) and determine whether there is a viable cause of action. 9 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. See FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(C). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 48 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 2731047 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Towaun COLEMAN, Plaintiff, v. J. HAMILTON et al., Defendants. 9:24-cv-00455 (AMN/PJE) | Signed September 25, 2025 Attorneys and Law Firms TOWAUN COLEMAN, Edgecombe Residential Treatment Facility, 611 Edgecombe Avenue, New York, New York 10032, Plaintiff, pro se. CHI-HSIN E. ENGELHART, ESQ., Assistant Attorney General, HON. LETITIA A. JAMES, New York State Attorney General, The Capitol, Albany, New York 12224, Attorneys for Defendants. MEMORANDUM-DECISION AND ORDER Anne M. Nardacci, United States District Judge: I. INTRODUCTION *1 On April 1, 2024, plaintiff pro se Towaun Coleman (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983 against J. Hamilton (“Defendant Hamilton”), Barbosa (“Defendant Barbosa,” and, together with Defendant Hamilton, “Defendants”), and others, in connection with a misbehavior report that Plaintiff received during his incarceration by the New York State Department of Corrections and Community Supervision (“DOCCS”). Dkt. No. 1 (“Complaint”). The Court conducted an initial review pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) and, on May 28, 2024, dismissed the Complaint with leave to amend. Dkt. No. 7. Plaintiff filed an amended complaint on June 25, 2024. Dkt. No. 9 (“Amended Complaint”). The Court subsequently assessed the sufficiency of the Amended Complaint and determined that the following claims remained and required a response: (i) Plaintiff's First Amendment retaliation claim against Defendant Hamilton; (ii) Plaintiff's Fourteenth Amendment Due Process claims against Defendants; and (iii) Plaintiff's state law defamation and slander claims against Defendants. Dkt. No. 10 at 17. 1 On January 27, 2025, Defendants moved for summary judgment on Plaintiff's First Amendment claim and to dismiss Plaintiff's state law claims. Dkt. No. 26 (“Motion”). Plaintiff opposed the Motion and filed a cross-motion for an evidentiary hearing. Dkt. No. 30 (“Cross-Motion”). This matter was referred to United States Magistrate Judge Paul J. Evangelista, who, on August 29, 2025, issued a report-recommendation and order recommending that the Motion be granted and that the Cross-Motion be denied. Dkt. No. 34 (“Report-Recommendation”). Magistrate Judge Evangelista advised that under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties had fourteen days within which to file written objections and that failure to object to the Report-Recommendation within fourteen days would preclude appellate review. Id. at 35-36. Neither party filed objections, and the time to do so has expired. For the reasons set forth below, the Court adopts the Report- Recommendation in its entirety. II. LEGAL STANDARD This Court reviews de novo those portions of a magistrate judge's report-recommendation that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections have been filed, this Court reviews a magistrate judge's report-recommendation for clear error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge, this Court reviews the relevant portions of the report- recommendation for clear error. See Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). “When performing such a ‘clear error’ review, ‘the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’ ” Dezarea W. v. Comm'r of Soc. Sec., No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm'r of Soc. Sec., No. 17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)). *2 “[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’ ” Govan v. Campbell, 289 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 49 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal ....” Machicote v. Ercole, No. 06- cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). III. DISCUSSION As no party has filed objections to the Report- Recommendation, this Court reviews the Report- Recommendation for clear error. Familiarity with the background and the legal framework set forth in the Report- Recommendation, both of which the Court adopts as they contain no clear error, is presumed. As to Plaintiff's First Amendment claim, he alleges that Defendant Hamilton retaliated against him in connection with the filing of an allegedly false misbehavior report on September 29, 2023. Dkt. No. 34 at 4-7. Magistrate Judge Evangelista concluded that Plaintiff had failed to administratively exhaust this claim. Id. at 15-20. Magistrate Judge Evangelista determined that, under the applicable DOCCS regulations, Plaintiff had until October 20, 2023 to file a grievance, or until November 12, 2023 to request an extension of time to file a grievance. Id. at 15. Neither the record nor Plaintiff's allegations establish that he did either. Id. at 15, 28. Instead, the parties agree that Plaintiff attempted to file a grievance on February 5, 2024. Id. at 15. Magistrate Judge Evangelista also determined that administrative remedies were available to Plaintiff at all relevant times. Id. at 20-28. Because Plaintiff's failure to exhaust his administratively remedies was no longer curable, Magistrate Judge Evangelista recommended granting the Motion and dismissing Plaintiff's First Amendment claim against Defendant Hamilton with prejudice. Id. at 29. The Court discerns no clear error in this analysis, to which it adds the following. First, the issue of exhaustion here is not “intertwined with the merits” of Plaintiff's retaliation claim, which relates to an earlier and independent misbehavior report. Perttu v. Richards, 605 U.S. 460, 468 (2025). Second, Plaintiff himself confirms that he failed to administratively exhaust this claim. The general DOCCS grievance process consists of three steps: First, the inmate must generally file a grievance with the Inmate Grievance Resolution Committee (“IGRC”) within 21 days of the incident. N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit. 7 § 701.5(a)(1), (b). The IGRC must render a decision within 18 days of receipt. Id. § 701.5(b)(2) (ii), (b)(3)(i). If the IGRC renders an adverse decision, the inmate has seven days from receipt to appeal to the superintendent of the facility, who then has 20 days to respond. Id. § 701.5(c). If the superintendent renders an adverse decision, the inmate has seven days to appeal to the [Central Office Review Committee (“CORC”)]. Id. § 701.5(d)(1)(i). The CORC, in turn, “shall review each appeal [and] render a decision on the grievance ... within 30 calendar days from the time the appeal was received.” Id. § 701.5(d)(3)(ii).... “Absent [ ] extension, matters not decided within the time limits may be appealed to the next step.” Id. [§ 701.6(g)(2)]. *3 Hayes v. Dahlke, 976 F.3d 259, 264 (2d Cir. 2020) (second and third alterations in original) (footnote omitted); see also Dkt. No. 34 at 13-15. As detailed in the Report-Recommendation, Plaintiff contends that he is “fully aware of the whole grievance process[.]” Dkt. No. 34 at 11 (citation omitted). Plaintiff further contends that he navigated the entire process, unilaterally and without receiving any response, by writing a series of letters between February 5, 2024 and March 22, 2024. Id. at 6-7; see Dkt. No. 30-1 at 7-9. Even if the grievance process could be exhausted at that time and in such a fashion, and all Plaintiff's letters were submitted properly and received immediately, Plaintiff only wrote to the CORC on March 22, 2024. Dkt. No. 30-1 at 9. Plaintiff then filed this lawsuit on April 1, 2024. Dkt. No. 1. At that time, the CORC still had weeks, at least, to render a decision and thus Plaintiff had not exhausted his administrative remedies at the time he filed suit. Dahlke, 976 F.3d at 270 (“We therefore hold that, because the DOCCS Inmate Grievance Procedure imposes a mandatory deadline for the CORC to respond, an inmate exhausts administrative remedies when he follows the procedure in its entirety but the CORC fails to respond within the 30 days it is allocated under the regulations.”). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 50 of 290
Coleman v. Hamilton, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 In sum, the Court agrees with Magistrate Judge Evangelista that there is no genuine dispute of material fact regarding Plaintiff's failure to exhaust his First Amendment claim, and that an evidentiary hearing on the issue is unnecessary. Dkt. No. 34 at 15, 35. Plaintiff's state law defamation and slander claims relate to actions taken by Defendants in connection with the allegedly false misbehavior report and a subsequent hearing. Id. at 31-35. Plaintiff did not respond to Defendants’ arguments for dismissing these claims. Id. at 31. After examining Plaintiff's allegations and the applicable law, Magistrate Judge Evangelista concluded that Defendants’ alleged actions were within the scope of their employment with DOCCS and were thus barred by New York State Corrections Law § 24. Id. at 34-35. The Court discerns no clear error in this analysis and agrees with Magistrate Judge Evangelista that this claim should be dismissed with prejudice as well. As a result, the Report-Recommendation is adopted in its entirety. III. CONCLUSION Accordingly, the Court hereby ORDERS that the Report-Recommendation, Dkt. No. 34, is ADOPTED in its entirety; and the Court further ORDERS that Defendants’ Motion, Dkt. No. 26, is GRANTED; and the Court further ORDERS that Plaintiff's First Amendment retaliation claim against Defendant Hamilton and defamation and slander claims against Defendant Hamilton and Defendant Barbosa, are DISMISSED with prejudice; and the Court further ORDERS that Plaintiff's Cross-Motion, Dkt. No. 30, is DENIED; and the Court further ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the Local Rules. 2 IT IS SO ORDERED. All Citations Slip Copy, 2025 WL 2731047 Footnotes 1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not the document's internal pagination. 2 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 51 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 1413362 United States District Court, N.D. New York. K. Felicia DAVIS, Plaintiff, v. CITY OF SYRACUSE; and Stephanie A. Miner, Defendants. No. 5:12–CV–0276 (GTS/DEP). | Signed March 27, 2015. Attorneys and Law Firms K. Felicia Davis, Syracuse, NY, pro se. Bond, Schoeneck & King, Plcc, Laura H. Harshbarger, Esq., Kristen E. Smith, Esq., of Counsel, Syracuse, NY, for Defendants. DECISION and ORDER GLENN T. SUDDABY, District Judge. *1 Currently before the Court, in his employment discrimination action filed by K. Felecia Davis (“Plaintiff”) against the City of Syracuse and Stephanie A. Miner (“Defendants”), is Defendants' motion for summary judgment. (Dkt. No. 63.) For the reasons set forth below, Defendants' motion is granted. I. RELEVANT BACKGROUND A. Summary of Plaintiff's Claims and Defendants' Counterclaims Generally, in her Amended Complaint, Plaintiff asserts the following ten claims arising from her alleged wrongful termination from the position of Board Administrator of the City of Syracuse's Citizen Review Board on February 4, 2011, after she took maternity leave in late October of 2010:(1) a claim against Defendant City for sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) a claim against Defendant City for retaliation under Title VII; (3) a claim against Defendant City for sex discrimination under the New York State Human Rights Law, New York Executive Law § 296 et seq. (“the Executive Law”); (4) a claim against Defendant City for retaliation under the Executive Law; (5) a claim against Defendant Miner for aiding and abetting sex discrimination under the Executive Law; (6) a claim against Defendant Miner for aiding and abetting retaliation under the Executive Law; (7) a claim against both Defendants for violation of the right to due process under the Fourteenth Amendment and 42 U.S.C. § 1983; (8) a claim against Defendant Miner for violation of the right to equal protection under 42 U.S.C. § 1983 and the Fourteenth Amendment; (9) a claim against Defendant City for violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”); and (10) a claim against Defendant Miner for retaliation under 42 U.S.C. § 1983 and the First Amendment. (Dkt. No. 6.) Familiarity with the factual allegations supporting these claims is assumed in this Decision and Order, which is intended primarily for the review of the parties. Generally, in their Answer, Defendants assert the following four counterclaims arising from Plaintiff's alleged practice of law using a City-paid secretary and City computer during the hours that she claimed to have worked for the City: (1) a counterclaim of fraud under New York State common law; (2) a counterclaim of negligent misrepresentation under New York State common law; (3) a counterclaim of unjust enrichment under New York State common law; and (4) a counterclaim of faithless servant under New York State common law. (Dkt. No. 8.) B. Undisputed Material Facts The following facts were asserted and properly supported by Defendants in their Statement of Material Facts and were either admitted or denied without proper support by Plaintiff in her Response thereto. (Compare Dkt. No. 63, Attach. 1 [Defs.' Rule 7.1 Statement] with Dkt. No. 67, Attach. 10 [Plf.'s Rule 7.1 Response].) *2 Before reciting these facts, the Court pauses to explain the reason for certain deficiencies in Plaintiff's response to Defendants' Statement of Facts. On a motion for summary judgment, denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or inadmissible evidence are insufficient to create a genuine dispute. Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to ... oppose a motion [for summary judgment] 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 matters stated.”); Rodriguez v. Bubnis, 11–CV–1436, 2014 WL 6078529, at *10, n. 25 (N.D.N.Y. Nov. 13, 2014) (Suddaby, J.) (collecting cases). Moreover, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 52 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 the assertion of additional material facts by a non-movant is permitted only if the additional material facts are both (1) in dispute and (2) contained in separately numbered paragraphs. N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response may also set forth any additional material facts that the non- movant contends are in dispute in separately numbered paragraphs.”) (emphasis added) . 1 Plaintiff's Employment by the City 1. Plaintiff was a full-time employee of the City of Syracuse, and served as the Administrator of the City's Citizen Review Board (“CRB”). 2 2. Plaintiff was not employed to act as a lawyer for the City or the CRB. 3 3. Plaintiff's employment was not covered by an individual employment contract or by any of the City's collective bargaining agreements; rather, she served at the discretion of the CRB and was able to be removed by the CRB for good cause. 4 4. The CRB is comprised of Board members who are volunteer citizens appointed by the Syracuse Common Council and the Mayor. 5 Mayor's Early Decisions Regarding the CRB 5. Even before becoming Mayor, as a Common Councilor, Mayor Stephanie Miner heard comments about the CRB that were overwhelmingly negative, and heard story after story about citizens who went to the CRB office and found it closed or who made complaints to the CRB but did not hear back from it. 6 6. When Mayor Miner took office, the CRB was one of the issues she wanted to address. 7 7. In her first month in office (January of 2010), Mayor Miner denied the CRB's request for authorization to hire a new employee (to fill a vacant investigator position), because she was unwilling to devote taxpayer money to a CRB that was not producing value to the taxpayers, deciding instead that the City's money would be better spent on commissioning a study of CRBs in other cities that were more effective. 8 8. As a result, Mayor Miner appointed Christine Fix to conduct the study. 9 9. After Ms. Fix completed her report of CRB models in June 2010, Mayor Miner distributed the report within her administration, with the directive that she wanted to explore a new model for the CRB that would be more effective and impactful. 10 Plaintiff's Non–Appearance at the Paulk Trial *3 10. The Paulk case was a federal lawsuit brought by a citizen, Martin Paulk, against two SPD officers (Paulk v. Lester, 06–CV–1343 [N.D.N.Y.] ). 11 11. On October 21, 2010, a process server attempted to personally serve a subpoena on Plaintiff at her home. 12 12. The subpoena called for CRB documents and for Plaintiff to testify at the Paulk trial on Monday, November 1, 2010. 13 13. Plaintiff was not home, but her husband reached her by telephone. 14 14. Plaintiff spoke by telephone to the gentleman attempting to deliver the papers, and instructed him to deliver the papers to the City Corporation Counsel's office. 15 15. The process server delivered the papers to the City's Corporation Counsel office on Friday, October 22, 2010. 16 16. The Paulk trial was scheduled to begin on November 1, 2010. 17 17. Before serving the subpoena, Richard Brickwedde (Paulk's attorney), had not indicated a desire to call Plaintiff as a witness . 18 18. On October 22, 2010, Joseph Doyle, a City attorney on the Paulk case, submitted a letter to the presiding judge, United States District Judge Charles Kornmann, requesting a conference to address the subpoena. 19 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 53 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 19. Doyle's co-counsel, James McGinty, anticipated that Judge Kornmann would agree with the City's position that Brickwedde should not be allowed to call Plaintiff as a witness in the Paulk trial . 20 20. Judge Kornmann did not address the issue of the subpoena until a pre-trial conference on October 28, 2010, during which he decided that Brickwedde would be allowed to call Plaintiff. 21 21. At the time of the pre-trial conference on October 28, 2010, McGinty and Doyle assumed, from the fact that Plaintiff had told the process server to bring the package to their office, that Plaintiff knew that the package contained a subpoena in the Paulk case. 22 22. At the time of the pre-trial conference on October 28, 2010, McGinty and Doyle were not aware that Plaintiff was pregnant or that she would be going on maternity leave. 23 23. On Friday, October 29, 2010, McGinty called the CRB office and asked to speak with Plaintiff. 24 24. The CRB secretary told McGinty that Plaintiff was on maternity leave. 25 25. Plaintiff's maternity leave began on October 29, 2010. 26 26. McGinty explained to Plaintiff's secretary that a subpoena had been issued to Plaintiff for her to testify in the Paulk trial on Monday at 9:00 a.m., and that whether she was on leave from work was immaterial. 27 27. McGinty told Plaintiff's secretary that she needed to get in touch with and tell her that she needed to appear as subpoenaed or, if she could not, she needed to call the attorney who issued the subpoena, Mr. Brickwedde, to make other arrangements for her testimony. 28 28. Plaintiff's secretary called her that day and informed her that a man from the Corporation Counsel's office had called and indicated that she should call an attorney by the name of Brickwedde . 29 *4 29. Plaintiff called Brickwedde and left a voicemail informing him that something had been received by the City for her and that she was going on maternity leave. 30 30. Brickwedde returned Plaintiff's call but missed her and also left a voicemail. 31 31. Brickwedde advised Plaintiff that he could not speak to her for ethical reasons and instructed her to speak to McGinty. 32 32. Plaintiff did not call McGinty or Doyle. 33 33. On the first day of the trial (November 1, 2010), Brickwedde called Plaintiff as a witness; however, she was not there. 34 34. When Plaintiff did not appear, McGinty called the CRB office. 35 35. The CRB secretary answered and told McGinty that Plaintiff had called her earlier that day to say that she was in labor and going to the hospital, which information McGinty relayed to Judge Kornmann. 36 36. Plaintiff was not in the hospital giving birth on November 1, 2010, but was at her doctor's office; she gave birth on November 9, 2010. 37. Meanwhile, at trial, another issue was occurring: McGinty and Doyle were informed that Brickwedde had independently obtained a CRB report stating that the CRB had found his client's complaint of police misconduct “substantiated.” 38. When questioned by Judge Kornmann as to why McGinty and Doyle had not produced the document during discovery, McGinty explained that the CRB had not provided it to them (after they had requested documents from the CRB during the course of the Paulk discovery process). 37 39. As a result of Plaintiff's failure to appear, Judge Kornmann imposed a sanction on the police officers in the form of allowing the CRB's “substantiated” finding to come into the record without allowing any testimony to explain or minimize the impact of the detrimental document on the police officers' case. 38 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 54 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 40. After a three-day trial, the jury returned a verdict in favor of the City's police officers. 39 New Information Emerges Concerning Plaintiff's Whereabouts 41. On November 8, 2010, Brickwedde filed a motion for a new trial and for additional sanctions in the Paulk case. 42. The motion was based, in large part, on Plaintiff's non- appearance at trial and the City's failure to produce all relevant CRB documents during discovery. 40 43. On November 16, 2010, Brickwedde supplemented his motion papers on the ground that he had found out that Plaintiff had voted in an election on November 2, 2010, while the three-day Paulk trial was still ongoing. 41 44. From the perspective of McGinty and City Corporation Counsel Juanita Perez–Williams, this fact called into question the information that Plaintiff's secretary had provided to McGinty on November 1, 2010, and that McGinty had, in turn, had provided to Judge Kornmann (i.e., that Plaintiff was in labor and going to the hospital on November 1, 2010). 42 45. On November 24, 2010, Judge Kornmann issued a memorandum ordering the production of extensive documents and information about Plaintiff's whereabouts at the time of trial, as well as “all records of the office [Plaintiff] heads which deal in any way with [the Paulk ] case.” *5 46. To explore these issues, Judge Kornmann scheduled a hearing for January 24, 2011. 43 47. In a letter to Perez–Williams dated December 3, 2010, Plaintiff stated, “I made a call to Mr. Brickwedde and left a voicemail informing him of my late stage of pregnancy and start of labor (I had begun to dilate), and informed [him] that I had not seen any subpoena.” 44 48. In response to Judge Kornmann's memorandum of November 24, 2010, Plaintiff provided Corporation Counsel's office with a number of CRB documents related to Paulk that had not been provided in response to earlier requests to her office for CRD documents related to Paulk. 45 The City's Investigation into Plaintiff and the Operation of the CRB 49. When Perez–Williams learned in late-November of the motion for a new trial and for sanctions, she informed Mayor Miner as to what was occurring; Miner first learned about the subpoena and Plaintiff's non-appearance only after Plaintiff had not appeared. 46 50. The Paulk situation was deeply concerning to Mayor Miner. 47 At the time Miner took office, she believed that something had to be done about the CRB. 48 The Paulk matter brought the perceived problem of the CRB into a state of immediacy for her. 49 As she saw the situation, instead of merely being a waste of resources, the CRB now was creating potential liability for the City. 50 51. Upon hearing about the Paulk subpoena incident, Mayor Miner asked Perez–Williams to “drill down” into what was going on with Plaintiff and the CRB and to report back to her. 51 52. The City's investigation indicated the following: a. As of the end of November 2010, the CRB's two employees (Plaintiff and her secretary, Carolyn Williams) had not entered time sheets into the City's timekeeping/payroll system since June; this meant that, even though Plaintiff was currently claiming to be on maternity leave, and had been (according to her) on such leave since late October, she was allowing the City to pay her as an active employee, without having to use any of accrued time-off benefits. 52 b. On December 2, 2010, Plaintiff signed and submitted six months' worth of time sheets on a single day. 53 c. On December 8, 2010, Plaintiff filled out an FMLA request form, which “requested” permission to take an FMLA leave that had begun six weeks earlier. 54 d. Several CRB Board positions were vacant, other Board members had been appointed but never properly sworn in, and still other Board members' terms had expired, such that they were serving terms to which they had not been appointed; this information led Perez–Williams Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 55 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 to conclude that the CRB could not legally take action, because it did not have a quorum of individuals properly appointed and installed in accordance with the City charter. 55 e. The CRB had not been forwarding citizen complaints to the Syracuse Police Department Internal Affairs Division (“IAD”) on a timely basis so that the complaints could be properly investigated. 56 *6 f. For example, on December 16, 2010, the CRB sent 12 citizen complaints to IAD. 57 g. The 12 citizen complaints Plaintiff's office forwarded on December 16, 2010, had been marked as received by the CRB as much as nine months earlier; before the mass mailing to IAD on December 16, 2010, the CRB office had sent only two citizen complaints to IAD for all of 2010. 58 h. The local law requires the CRB to forward citizen complaints to IAD upon receiving them because IAD has the first 45 days to conduct its investigation. 59 i. While the CRB may have kept statistical reports at its office, and given those reports to the Syracuse Common Council during each budget year, the CRB had not published monthly and quarterly statistical reports, as required by the CRB ordinance. 60 j. The last available meeting minutes were from June 2010. 61 k. In early October of 2010, Plaintiff refused to reveal, to a Common Councilor, the current CRB Board members' names (which were considered by the Common Councilor and Perez–Williams to be public information). 62 l. Several times Plaintiff was late in submitting her budget requests to the City's Finance Department. 63 53. Perez–Williams shared these and the remainder of her findings with Mayor Miner. 64 54. Based on these overall findings, including the negligent handling of the Paulk subpoena and the “numerous deficiencies in the operation of the CRB, caused in large part by [her] failure to exercise [her] statutory responsibilities,” Mayor Miner decided to terminate Plaintiff's employment. 65 The City Discovers Plaintiff's Private Practice Work in Her City Office on City Time 55. Mayor Miner reached out to the New York State Comptroller and requested an audit of the CRB office concerning the issues uncovered in the City's investigation. 66 56. Mayor Miner made this request for an audit within days of Plaintiff's termination. 67 57. The State Comptroller performed its audit largely in late 2011 and early 2012. 68 58. In connection with the audit process, the City was asked to provide the State Comptroller with access to the CRB office and its paper files and electronic records, including the City computer that had been issued to Plaintiff. 69 59. As a result of the City's review of the data and information requested in connection with the audit, it was brought to Mayor Miner's attention that Plaintiff had used the City's resources (i.e., the City's office space, the City-paid secretary, the City's fax machine, the City's computer, etc.) to engage in her private law practice, and that Plaintiff had submitted time sheets claiming to have worked for the City when she had been engaged in her private law practice, not City business. 70 60. By the late spring of 2012, Mayor Miner believed that the City was due potentially significant recompense; this determination grew out of the documentation the City reviewed in connection with and in response to the ongoing audit, which was occurring at the time the City answered the Complaint. 71 *7 61. The Comptroller's report was published in June 2012 and stated, among other things, that “[t]he analysis found that the Administrator spent a significant amount of time during normal business hours engaging in private legal work using a City-owned computer.” 72 The City Remakes the CRB Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 56 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 62. Immediately after Plaintiff's termination, the City changed the locks on the doors of the CRB office, and the CRB ceased to function (for the time being). 73 63. The City formed an ad hoc committee to propose reforms to the CRB and, as a result of this committee's work, the Common Council passed, and Mayor Miner signed into law, new legislation designed to ensure that the CRB would be accountable and effective going forward . 74 64. The City started fresh with new citizens Board members (five new appointments); and the new CRB Board selected a new Administrator. 75 C. Summary of Parties' Arguments on Defendants' Motion 1. Defendants' Memorandum of Law Generally, in their memorandum of law, Defendants assert seven arguments. (Dkt. No. 63, Attach. 13 [Defs.' Memo. of Law].) First, Defendants argue, Plaintiff's pregnancy-discrimination claims under Title VII and the Executive Law should be dismissed for two reasons: (a) even assuming Plaintiff can meet her modest prima facie burden on such a claim, the City need only articulate a legitimate, non-discriminatory reason for its action (which it has done, given Plaintiff's negligence with respect to the Paulk matter as well as her numerous deficiencies in the operation of the CRB); and (b) the burden then shifts to Plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the City were not its true reasons but were a pretext for discrimination, and that intentional discrimination was the real reason for the adverse action (which she has not done, and cannot do, given that her disagreement with the City's assessment of her performance does establish pretext, her conspiracy theory is sheer speculation, McGinty is not a “similarly situated” comparator, her claim of being “scapegoated” for the Paulk debacle undercuts her pregnancy-discrimination theory, and no reasonable factfinder could conclude that the City completely overhauled the CRB merely because Plaintiff had a baby). (Id.) Second, Defendants argue, in any event, Plaintiff's retaliation claims under Title VII and the Executive Law should be dismissed for three reasons: (a) after a plaintiff has established a prima facie case of retaliation (showing protected activity, an adverse employment action, and a causal relationship), the employer can then meet its burden of articulating a legitimate, non-retaliatory reason for filing counterclaims by establishing a reasonable good-faith belief that the claims were valid, after which any presumption of retaliation drops out and the plaintiff bears a “substantial burden,” pursuant to which she must show that, but-for the protected activity, the employer would not have taken the adverse action; (b) here, Plaintiff cannot even establish a prima facie case because a non-frivolous compulsory counterclaim is generally not, as a matter of law, an adverse employment action, and the counterclaims asserted by the City in this action are amply supported by the record; and (c) in any event, Plaintiff cannot establish pretext because the fact that the City's counterclaims were filed shortly after Plaintiff's Complaint was filed does not save Plaintiff's retaliation claims (in that such a proximity of time is necessary with counterclaims), and the City was investigating any actionable malfeasance long before Plaintiff filed her Complaint. (Id.) *8 Third, Defendants argue, Plaintiff's aider-and-abettor claims under the Executive Law should be dismissed because there is no primary violation of the Executive Law to aid or abet. (Id.) Fourth, Defendants argue, Plaintiff's “stigma plus” procedural due process claim under the Fourteenth Amendment should be dismissed for three reasons: (a) even if she could show a damage to her reputation (thus satisfying the “stigma” element), she was, as an at-will government employee, afforded all the process she was due, given the availability of an Article 78 proceeding to clear her name (which suffices to provide the requisite post-deprivation process to a terminated employee, even if that employee fails to avail herself of that process); (b) she cannot dispute that she was an at-will employee, because she was not subjected to any employment or collective bargaining agreement (and, indeed, her argument that she served at the pleasure of the CRB supports the conclusion that she was an at-will employee); and (c) to the extent Plaintiff argues that Mayor Miner lacked the authority to terminate her, that argument relates to a due process claim and thus Plaintiff was able to assert it in an Article 78 proceeding. (Id.) Fifth, Defendants argue, Plaintiff's equal protection claim under the Fourteenth Amendment should be dismissed for the same reasons that her Title VII pregnancy-discrimination claim should be dismissed. (Id.) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 57 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Sixth, Defendants argue, Plaintiff's FMLA claim should be dismissed for the same reasons that her Title VII pregnancy- discrimination claim should be dismissed. (Id.) Seventh, Defendants argue, Plaintiff's retaliation claim under the First Amendment should be dismissed for three reasons: (a) her testimony before Judge Kornmann during the sanctions hearing of January 24, 2011, was not “protected” (in that she was not speaking as a citizen but as an employee); (b) in any event, her termination on February 4, 2011, was not caused by that testimony but by her conduct in connection with the Paulk subpoena in November of 2010; and (c) at the very least, Defendant Miner is protected from liability as a matter of law by the doctrine of qualified immunity (given that the issue of whether Plaintiff was speaking as a citizen rather than as an employee was not “clearly established” during the time in question). (Id.) 2. Plaintiff's Opposition Memorandum of Law Generally, in her opposition memorandum of law, Plaintiff asserts seven arguments. (Dkt. No. 67, Attach. 9 [Plf.'s Opp'n Memo. of Law].) First, Plaintiff argues, she has established a sex- discrimination claim under Title VII (and presumably under the Executive Law) for two reasons: (a) Defendants do not dispute that she has established a prima facie case that she was discriminated against by the City due to her pregnancy; and (b) as a result, to avoid summary judgment, she need not show that the City's proffered reasons were false or not a factor but only that the prohibited factor (i.e., her pregnancy) was among the motivating factors (which she has done, due to Defendants' admission that her non-appearance at trial, which occurred while she was out on maternity leave, was a motivating reason for her termination). (Id.) *9 Second, Plaintiff argues, she has established a retaliation claim under Title VII (and presumably under the Executive Law) because the City's counterclaims are baseless in that (a) she was permitted by the CRB to engage in a private legal practice and (b) Defendant Miner knew, before the events in question, that Plaintiff was engaging in that private legal practice. (Id.) Third, Plaintiff argues, she has established an aiding-and- abetting claim against Defendant Miner under the Executive Law because Miner worked to develop what she knew were baseless reasons for Plaintiff's termination, which reasons were relied on by the City of Syracuse to engage in sex discrimination and retaliation under the Executive Law. (Id.) Fourth, Plaintiff argues, she has established a “stigma plus” procedural due process claim under the Fourteenth Amendment for four reasons: (a) she suffered injury to her reputation in that she was denied a job with Cornell Cooperative Extension (thus satisfying the “stigma” element); (b) she experienced defamation plus the loss of government employment (thus satisfying the “plus” element); (c) she was not afforded a pre-deprivation hearing although she had an implied employment contract with the CRB (due to the fact that CRB Board members had to determine whether to continue her employment each year) and her termination was not random and unauthorized (due to the fact that Defendant Miner was a high-ranking official with final authority over significant matters); and (d) indeed, even if she was an at- will employee, she was not afforded even a post-deprivation hearing (although she requested one). (Id.) Fifth, Plaintiff argues, she has established an equal protection claim under the Fourteenth Amendment for four reasons: (a) she is a member of a protected class (in that she is female); (b) she was qualified for her position (in that she served in her capacity as CRB Administrator for 17 years, held more educational credentials than required, and had never been disciplined or reprimanded); (c) she suffered an adverse employment action (in that she was terminated from her employment); and (d) the circumstances surrounding the employment action give rise to an inference of discrimination (in that a similarly-situated male was not disciplined for conduct that Plaintiff was accused of committing but did not actually commit). (Id.) Sixth, Plaintiff argues, she has established an FMLA claim for five reasons: (a) she was an eligible employee under the FMLA (in that she had worked the previous 12 months); (b) the City was a covered employer under the FMLA (in that it had the requisite number of employees); (c) she was entitled to the leave of absence (in that her maternity leave had been approved by the CRB prior to October of 2010); (d) she gave notice to the City of her intention to take leave (in that the City had such notice on or before October 6, 2010, and later when she emailed the City requesting an FMLA form); and (e) she was denied benefits to which she was otherwise entitled (in that the termination interrupted her light duty leave, and the reason for the termination was a pretext for discrimination). (Id .) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 58 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 *10 Seventh, Plaintiff argues, she has established a retaliation claim under the First Amendment for four reasons: (a) her testimony at the hearing of January 24, 2011, was protected speech; (b) the subject about which she was called to testify was of public concern in that police misconduct has been recognized as being of public interest; (c) the proximity of her termination to her testimony (i.e ., 10 days) demonstrates discriminatory animus; and (d) Defendant Miner is not protected by qualified immunity (in that Plaintiff's First Amendment rights were clearly established at the time of her termination due to the fact that Jackler v. Bryne, 658 F.3d 225 [2d Cir.2011] was decided in February of 2011). (Id.) 3. Defendants' Reply Memorandum of Law Generally, in their reply memorandum of law, Defendants assert seven arguments. (Dkt. No. 72 [Defs.' Reply Memo. of Law].) First, Defendants argue, Plaintiff has taken liberties with the record in two ways: (a) she cites to the record nowhere in her opposition memorandum of law; and (b) for the most part, her primary evidence (her own affidavit) is not based on her personal knowledge, contains inadmissible material such as hearsay, and/or sets forth legal conclusions. (Id.) Second, Defendants argue, Plaintiff's denials of Defendants' statements of material fact are ineffective for four reasons: (a) she denies many facts about which she could not possibly have any firsthand knowledge or evidence (e.g., conversations or telephone calls to which she was not a party, decisions made and impressions held by Mayor Miner, pre-trial events in the Paulk matter), as often is evident by her reliance on her “information and belief”; (b) she denies several facts about matters that are independently verifiable based on court records or documentary evidence, and about which she has no admissible evidence to dispute (e.g., the existence and contents of the Paulk subpoena, the date of the Paulk trial, the Paulk jury verdict, and the date and contents of the State Comptroller's report); (c) she denies material facts that she plainly admitted in her own prior sworn testimony (e.g., the fact that a process server attempted to serve her at her home, the fact that she did not call McGinty or Doyle after receiving a voice mail from Brickwedde, and the fact that she was aware of the Paulk case prior to the trial); and (d) in many instances, she muddles Defendants' fact statements by going off in another direction she likes better, which is insufficient to call Defendants' facts into dispute). (Id.) Third, Defendants argue, Plaintiff fails to save her pregnancy- discrimination claim for three reasons: (a) in her attempt to establish pretext, she relies on the incorrect legal standard (i.e., one applicable in a mixed-motive case, which this is not); (b) in any event, her conspiracy theory (i.e., that the subpoena incident was a strategic effort to adversely impact and compromise Plaintiff due to her pregnancy) is supported only by speculation and hearsay, and contradicts the testimony of McGinty, Perez–Williams and Mayor Miner; and (c) her excuses for her own ineffectiveness and the CRB's ineffectiveness do not establish pretext (and fail to show that the City's belief that she did, in fact, know that a subpoena existed, was not honestly held at the time it decided to terminate her employment). (Id.) *11 Fourth, Defendants argue, Plaintiff fails to save her retaliation claim under Title VII and the Executive Law for two reasons: (a) to avoid dismissal of this claim, she must provide sufficient, competent evidence that Defendants' counterclaims are the product of retaliatory animus; and (b) instead, Plaintiff offers only speculation (e.g., regarding Common Councilors' knowledge of her private legal practice) and misstatements of record evidence (e.g., regarding the scope and source of Mayor Miner's knowledge of Plaintiff's private legal practice, and the nature of the City's authorization of a CLE course that Plaintiff attended). (Id.) Fifth, Defendants argue, Plaintiff fails to save her due process claim under the Fourteenth Amendment for two reasons: (a) the single case that Plaintiff cites in support of her argument that she had an implied employment contract (Potts v. City of Utica, 86 F.2d 616 [2d Cir.1936] ) is, in addition to being old, factually distinguishable from the current case; and (b) the sole record evidence that Plaintiff adduces in support of her argument that she had an implied employment contract (i.e., the affidavit of former-CRB Board member Homer Davis) is speculative (in that the Davis ceased serving as a CRB Board member in 2008) and immaterial (in that it addresses a purported agreement to allow Plaintiff to practice law privately on City time), and in any event actually supports the fact that Plaintiff served at-will (albeit at the will of the CRB). (Id.) Sixth, Defendants argue, Plaintiff fails to save her FMLA claim for two reasons: (a) her argument that Defendants interfered with her leave by terminating her while on “light duty leave” implies that any termination while on FMLA leave is a violation of the FMLA, which is not the law; (b) as established by Defendants earlier, Plaintiff was terminated Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 59 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 for legitimate, non-discriminatory reasons, and she has not presented sufficient evidence to rebut these reasons. (Id.) Seventh, Defendants argue, Plaintiff fails to save her retaliation claim under the First Amendment for two reasons: (a) by focusing on whether her testimony at the Paulk hearing was protected speech, Plaintiff ignores Mayor Miner's position that there is no causal connection between that testimony and Plaintiff's termination; and (b) in any event, she has not overcome Mayor Miner's entitlement to qualified immunity because, although the case of Jackler v. Bryne, 658 F.3d 225 (2d Cir.2011), was decided in July of 2011, the contrary case of Bearss v. Hilton, 445 F. App'x 400 (2d Cir.2011), was decided in November of 2011, rendering the state of the law not “clearly established” when Mayor Miner acted. (Id.) II. GOVERNING LEGAL STANDARD Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, “[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323–24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a),(c),(e). *12 A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party.” Anderson, 477 U.S. at 248. As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation omitted]. As the Supreme Court has famously explained, “[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts” [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–86 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. [citation omitted]. Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party willfully fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute—even if that nonmoving party is proceeding pro se . 76 (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) 77 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules. 78 For this reason, this Court has often enforced Local Rule 7.1(a) (3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has willfully failed to properly respond to that statement 79 —even where the nonmoving party was proceeding pro se in a civil rights case. 80 Finally, generally, special solicitude is not extended to pro se litigants who are attorneys. See e.g., Harbulak v. Suffolk, 654 F.2d 194, 198 (2d Cir.1981) (“[Plaintiff] is a lawyer and, therefore, cannot claim the special consideration which the courts customarily grant to pro se parties.”); Davey v. Dolan, 453 F.Supp.2d 749, 754 (S.D.N.Y.2006) (“[P]laintiff here is also a member of the New York bar and his papers will be viewed accordingly .”) 81 III. ANALYSIS A. Plaintiff's Sex–Discrimination Claims Against the City Under Title VII and the Executive Law After carefully considering the matter, the Court dismisses these claims for the reasons stated in Defendants' memoranda of law. See, supra, Part I.C. of this Decision and Order. B. Plaintiff's Retaliation Claims Against the City Under Title VII and the Executive Law After carefully considering the matter, the Court dismisses these claims for the reasons stated in Defendants' memoranda of law. See, supra, Part I.C. of this Decision and Order. To those reasons, the Court would only add one point. Plaintiff's reliance on the motivating-factor standard (in her Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 60 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 opposition memorandum of law of October 21, 2014) ignores the Supreme Court's decision (of June 24, 2013) in Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013), in which the Court held that the level of causation that must be proved in a Title VII retaliation claim is one of but-for causation. C. Plaintiff's Aiding–and–Abetting Claims Against Mayor Miner Under the Executive Law *13 After carefully considering the matter, the Court dismisses these claims for the reasons stated in Defendants' memoranda of law. See, supra, Part I.C. of this Decision and Order. To those reasons, the Court would only add one point. In the alternative, the Court would dismiss this claim without prejudice to refiling in state court pursuant to 28 U.S.C. § 1367 due to the fact that no federal claims survive Defendants' motion. D. Plaintiff's Due Process Claim Against Defendants Under the Fourteenth Amendment After carefully considering the matter, the Court dismisses this claim for the reasons stated in Defendants' memoranda of law. See, supra, Part I.C. of this Decision and Order. To those reasons, the Court would only add two points. First, the Second Circuit's decision in Potts v. City of Utica, 86 F.2d 616 (2d Cir.1936), is distinguishable from the current case in that, in addition to not addressing a due process claim, it did not address the issue of whether an implied employment contract had been created by the fact that each year a different configuration of board members of a city agency exercised its discretion not to remove a city employee for good cause. Second, in any event, there is a lack of admissible record evidence from which a rational fact-finder could conclude that the CRB Board members in fact exercised their discretion not to remove Plaintiff for good cause each year (especially during the years 2009 and 2010). As an initial matter, it can hardly be said that there was a different configuration of the Board each year. See, supra, Paragraphs 52(d) and 52(k) of Part I.B.of this Decision and Order. Moreover, even if there had been a different configuration each year, Plaintiff points to no record evidence establishing that the issue of her continued employment was raised annually at CRB meetings. (See generally Dkt. No. 67, Attach. 9 [Plf.'s Opp'n Memo. of Law].) Finally, even if the issue had been so raised, Plaintiff has adduced evidence admitting that the CRB experienced problems gathering a quorum to take official action in resolving that issue. (Dkt. No. 67, Attach. 1, at Par. 16 [Homer Davis Affid.].) See also Paragraph 52(d) of Part I.B.of this Decision and Order. E. Plaintiff's Equal Protection Claim Against Mayor Miner Under the Fourteenth Amendment After carefully considering the matter, the Court dismisses this claim for the reasons stated in Defendants' memoranda of law. See, supra, Part I.C. of this Decision and Order. F. Plaintiff's FMLA Claim Against the City After carefully considering the matter, the Court dismisses this claim for the reasons stated in Defendants' memoranda of law. See, supra, Part I.C. of this Decision and Order. G. Plaintiff's Retaliation Claim Against Mayor Miner Under the First Amendment After carefully considering the matter, the Court dismisses this claim for the reasons stated in Defendants' memoranda of law. See, supra, Part I.C. of this Decision and Order. To those reasons, the Court would only add two points. *14 First, the fact that Mayor Miner was previously aware of Plaintiff's representation of her husband in a lawsuit while she was employed as the Administrator of the CRB does not mean that Miner knew that Plaintiff was regularly engaged in a private law practice in City office space, using a City- paid secretary and City computer during the hours that she claimed to have worked for the City. The sole admissible record evidence on this subject is that Miner did not have such knowledge. (Compare Dkt. No. 63, Attach. 8, at ¶¶ 33–34 [Miner Decl., admitting awareness that Plaintiff had represented husband in case in which he was the plaintiff, but denying knowledge of scope of Plaintiff's legal practice] and Dkt. No. 67, Attach. 5, at 3–5, 6–7 [attaching pages “11,” “12,” “13,” “47,” and “48” of Miner's Dep. Tr., stating that she worked on case in which Plf.'s husband was a plaintiff, and had occasion to believe Plaintiff represented him in that case] with Dkt. No. 67, Attach. 1, at ¶¶ 24–25 [Homer Davis Affid., asserting “[u]pon information and belief” that Miner knew Plaintiff “was a practicing attorney”] and Dkt. No. 67, at ¶¶ 40–41 [Plf.'s Decl., asserting Miner's notice of case in which Plaintiff was the lead attorney “sometime in 2001–2002,” and fact that “[m]any councilor's [sic] knew I was practicing”].) Second, in any event, Plaintiff is incorrect when she argues that her First Amendment rights were clearly established at the time of her termination because Jackler v. Bryne, 658 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 61 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 F.3d 225 (2d Cir.2011), was decided in February of 2011. In fact, Jackle r was not decided until July 22, 2011. It was merely argued in February of 2011. Moreover, that argument did not occur until February 24, 2011–20 days after Plaintiff's termination on February 4, 2011. Simply stated, the state of the law was not clearly established on February 4, 2011. ACCORDINGLY, it is ORDERED that Defendants' motion for summary judgment (Dkt. No. 63) is GRANTED; and it is further ORDERED that Plaintiff's Amended Complaint (Dkt. No. 6) is DISMISSED. The parties are advised that remaining in this action are Defendants' four counterclaims against Plaintiff. All Citations Not Reported in F.Supp.3d, 2015 WL 1413362, 2015 Wage & Hour Cas.2d (BNA) 179,902 Footnotes 1 The Court notes that, under Fed.R.Civ.P. 56 and N.D.N.Y. Local Rule 7.1, there is no procedure by which a non-movant may assert a “counter statement of [undisputed] material facts” in response to a motion for summary judgment: the vehicle for such undisputed material facts would be a cross-motion for summary judgment (i.e., one seeking a judgment due to a lack of a genuine dispute of material fact). See Fed.R.Civ.P. 56(a); N .D.N.Y. L.R. 7.1(a)(3). 2 (Compare Dkt. No. 63, Attach. 1, at ¶ 1 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 1 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 3 (Compare Dkt. No. 63, Attach. 1, at ¶ 2 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 2 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 4 (Dkt. No. 63, Attach. 8, at ¶ 7 [Miner Decl.].) See also City of Syracuse Local Law 11 of 1993 § 6(3)(a),(b). 5 (Dkt. No. 63, Attach. 3, at 7 [attaching page “38” of Davis Dep. Tr.].) See also City of Syracuse Local Law 11 of 1993 §§ 1, 4(2), 5(1). 6 (Compare Dkt. No. 63, Attach. 1, at ¶ 5 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 5 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted, and in any event that fails show personal knowledge sufficient to controvert fact asserted].) 7 (Compare Dkt. No. 63, Attach. 1, at ¶ 6 [Defs.' Rule 7.1 Statement, citing Paragraph 9 of Miner Declaration, which supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 6 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted, and in any event that fails show personal knowledge sufficient to controvert fact asserted].) 8 (Dkt. No. 63, Attach. 8, at ¶¶ 10–11 [Miner Decl.].) 9 (Dkt. No. 63, Attach. 8, at ¶ 10 [Miner Decl.].) 10 (Compare Dkt. No. 63, Attach. 1, at ¶ 9 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 9 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 62 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 11 (Compare Dkt. No. 63, Attach. 1, at ¶ 10 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 10 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 12 (Compare Dkt. No. 63, Attach. 1, at ¶ 11 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 11 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 16– 17, 70 (N.D.N.Y. filed Feb. 9, 2011). 13 (Compare Dkt. No. 63, Attach. 1, at ¶ 12 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 12 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 14 (Compare Dkt. No. 63, Attach. 1, at ¶ 13 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 13 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 15 (Compare Dkt. No. 63, Attach. 1, at ¶ 14 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 14 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 16– 17, 70 (N.D.N.Y. filed Feb. 9, 2011). 16 (Compare Dkt. No. 63, Attach. 1, at ¶ 15 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 15 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 17 (Compare Dkt. No. 63, Attach. 1, at ¶ 16 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 16 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 18 (Compare Dkt. No. 63, Attach. 1, at ¶ 17 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 17 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 19 (Compare Dkt. No. 63, Attach. 1, at ¶ 18 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 18 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 20 (Compare Dkt. No. 63, Attach. 1, at ¶ 19 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 19 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 21 (Compare Dkt. No. 63, Attach. 1, at ¶ 20 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 20 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 22 (Compare Dkt. No. 63, Attach. 1, at ¶ 21 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 21 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 31– 37 (N.D.N.Y. filed Feb. 9, 2011). 23 (Compare Dkt. No. 63, Attach. 1, at ¶ 22 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 22 [Plf.'s Rule 7.1 Response, citing record evidence that does not regard the awareness of McGinty and Doyle on October 28 but their awareness of October 29 when McGinty called Plaintiff's office and was told by her secretary that she was out on maternity leave].) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 63 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 24 (Compare Dkt. No. 63, Attach. 1, at ¶ 23 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 23 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 25 (Compare Dkt. No. 63, Attach. 1, at ¶ 24 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 24 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 26 (Compare Dkt. No. 63, Attach. 1, at ¶ 25 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 25 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 27 (Compare Dkt. No. 63, Attach. 1, at ¶ 26 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 26 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 28 (Compare Dkt. No. 63, Attach. 1, at ¶ 27 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 27 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 29 (Compare Dkt. No. 63, Attach. 1, at ¶ 28 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 28 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 30 (Dkt. No. 67, at ¶ 15 [Plf.'s Decl.]; Dkt. No. 67, Attach. 4, at 5 [attaching page “33” of transcript of January 2010 hearing in Paulk ]; cf. Dkt. No. 63, Attach. 11, at 9 [Ex. B to Perez–Williams Decl., attaching letter from Plaintiff to Perez–Williams dated Dec. 3, 2010 stating that Plaintiff had informed Brickwedde that she “had not seen any subpoena”].) 31 (Compare Dkt. No. 63, Attach. 1, at ¶ 30 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 30 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 32 (Compare Dkt. No. 63, Attach. 1, at ¶ 31 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 26 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 33 (Compare Dkt. No. 63, Attach. 1, at ¶ 32 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 32 [Plf.'s Rule 7.1 Response, citing to record evidence that fails to controvert fact asserted].) 34 (Compare Dkt. No. 63, Attach. 1, at ¶ 33 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 33 [Plf.'s Rule 7.1 Response, citing to record evidence that fails to controvert fact asserted].) 35 (Compare Dkt. No. 63, Attach. 1, at ¶ 34 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 34 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact asserted, and/or impugning judgment of McGinty, neither of which suffices to controvert fact asserted].) 36 (Compare Dkt. No. 63, Attach. 1, at ¶ 35 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 35 [Plf.'s Rule 7.1 Response, merely denying knowledge offact asserted, which fails to controvert that fact].) 37 (Dkt. No. 63, Attach. 7, at ¶¶ 14, 21 [McGinty Decl.]; cf. Dkt. No. 67 [Plf.'s Decl., merely denying personal knowledge of the CRB's receipt of such a request in 2008].) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 64 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 38 (Compare Dkt. No. 63, Attach. 1, at ¶ 39 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 39 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact asserted, which fails to controvert that fact].) 39 (Compare Dkt. No. 63, Attach. 1, at ¶ 40 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 40 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact asserted, which fails to controvert that fact].) 40 (Compare Dkt. No. 63, Attach. 1, at ¶ 42 [Defs.' Rule 7.1 Statement, citing to record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 42 [Plf.'s Rule 7 .1 Response, merely denying knowledge of fact asserted, which fails to controvert that fact].) See also Paulk v. Lester, 06–CV–1343, Plf.'s Memo. of Law (N.D.N.Y. filed Nov. 8, 2010). 41 (Compare Dkt. No. 63, Attach. 1, at ¶ 43 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 43 [Plf.'s Rule 7.1 Response, citing to record evidence that fails to controvert fact asserted].) See also Paulk v. Lester, 06–CV–1343, Plf.'s Supplemental Affirm. (N.D.N.Y. filed Nov. 16, 2010). 42 (Dkt. No. 63, Attach. 7, at ¶ 18 [McGinty Decl.]; Dkt. No. 63, Attach. 10, at ¶ 8 [Perez–Williams Decl.]; cf. Dkt. No. 67, Attach. 10 [Plf.'s Rule 7.1 Response, citing record evidence that does not controvert fact asserted].) 43 (Compare Dkt. No. 63, Attach. 1, at ¶ 46 [Defs.' Rule 7.1 Statement, citing to record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 46 [Plf.'s Rule 7 .1 Response, failing to either deny fact asserted or cite record evidence that controverts fact asserted].) 44 (Compare Dkt. No. 63, Attach. 1, at ¶ 47 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 47 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 45 (Compare Dkt. No. 63, Attach. 1, at ¶ 48 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 48 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 46 (Compare Dkt. No. 63, Attach. 1, at ¶ 49 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 49 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 47 (Compare Dkt. No. 63, Attach. 1, at ¶ 50 [Defs.' Rule 7.1 Statement, citing to record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 50 [Plf.'s Rule 7 .1 Response, citing record evidence that fails to controvert facts asserted].) 48 (Id.) 49 (Id.) 50 (Id.) 51 (Compare Dkt. No. 63, Attach. 1, at ¶ 51 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 65 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 52 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(a) [Defs.' Rule 7.1 Statement, citing record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(a) [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert facts asserted].) 53 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(b) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(b) [Plf.'s Rule 7.1 Response, failing to either deny fact asserted or cite record evidence that controverts fact asserted].) 54 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(c) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(c) [Plf.'s Rule 7.1 Response, failing to either deny fact asserted or cite record evidence that controverts fact asserted].) 55 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(d) [Defs.' Rule 7.1 Statement, citing record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(d) [Plf.'s Rule 7.1 Response, failing to either deny facts asserted or cite record evidence that controverts facts asserted].) 56 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(e) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(e) [Plf.'s Rule 7.1 Response, failing to either deny fact asserted or cite record evidence that controverts fact asserted].) 57 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(f) [Defs.' Rule 7.1 Statement, citing record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(f) [Plf.'s Rule 7.1 Response, failing to either deny facts asserted or cite record evidence that controverts facts asserted].) 58 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(g) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(g) [Plf.'s Rule 7.1 Response, failing to either deny fact asserted or cite record evidence that controverts fact asserted].) 59 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(h) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(h) [Plf.'s Rule 7.1 Response, failing to either deny fact asserted or cite record evidence that controverts fact asserted].) 60 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(i) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(i) [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 61 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(j) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(j) [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 62 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(k) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(k) [Plf.'s Rule 7.1 Response, failing to cite any record evidence].) 63 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(l) [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(l) [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) 64 (Compare Dkt. No. 63, Attach. 1, at ¶ 53 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 53 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts fact asserted].) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 66 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 65 (Compare Dkt. No. 63, Attach. 1, at ¶ 54 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 54 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert facts asserted].) 66 (Compare Dkt. No. 63, Attach. 1, at ¶ 55 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 55 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 67 (Compare Dkt. No. 63, Attach. 1, at ¶ 56 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 56 [Plf.'s Rule 7.1 Response, admitting fact asserted].) 68 (Compare Dkt. No. 63, Attach. 1, at ¶ 57 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 57 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 69 (Compare Dkt. No. 63, Attach. 1, at ¶ 58 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 58 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 70 (Compare Dkt. No. 63, Attach. 1, at ¶ 59 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 59 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 71 (Compare Dkt. No. 63, Attach. 1, at ¶ 60 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 60 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 72 (Compare Dkt. No. 63, Attach. 1, at ¶ 61 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 61 [Plf.'s Rule 7.1 Response, citing record evidence that fails to controvert fact asserted].) 73 (Compare Dkt. No. 63, Attach. 1, at ¶ 62 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 62[Plf.'s Rule 7.1 Response, failing to cite any record evidence that controvert facts asserted].) 74 (Compare Dkt. No. 63, Attach. 1, at ¶ 63 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 63 [Plf.'s Rule 7.1 Response, failing to cite any record evidence that controvert facts asserted].) 75 (Compare Dkt. No. 63, Attach. 1, at ¶ 64 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 64 [Plf.'s Rule 7.1 Response, either admitting or denying knowledge of facts asserted].) 76 Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n. 2 (N.D.N.Y.209) (Suddaby, J.) (citing cases). 77 Cusamano, 604 F.Supp.2d at 426 & n. 3 (citing cases). The Court notes that Plaintiff was served with such a notice in this case. (Dkt. No. 63, Attach.14.) 78 Cusamano, 604 F.Supp.2d at 426–27 & n. 4 (citing cases). 79 Among other things, Local Rule 7.1(a)(3) requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 67 of 290
Davis v. City of Syracuse, Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,902 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3). 80 Cusamano, 604 F.Supp.2d at 427 & n. 6 (citing cases). 81 This is because the rationale for conferring special solicitude to pro se litigants is that, as non-attorneys, they are inexperienced or unfamiliar with legal procedures or terminology. See John C. Rothermich, “Ethical and Procedural Implications of ‘Ghostwriting’ for Pro Se Litigants: Toward Increased Access to Civil Justice,” 67 Fordham L.Rev. 2687, 2697 (Apr.1999) (“[T]he special leniency afforded pro se pleadings in the courts ... is designed to compensate for pro se litigants' lack of legal assistance.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 68 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Blue-Striped Flag Appeal Filed by Dean v. Annucci, 2nd Cir., July 24, 2025 2025 WL 1811183 Only the Westlaw citation is currently available. United States District Court, N.D. New York. William M. DEAN, Plaintiff, v. Cathy Y. SHEEHAN, Deputy Commissioner and Counsel; David Debejian, Deputy Superintendent of Programs; Pat Collver, Acting Deputy Superintendent of Programs; C.F. Leone, Director of Correctional Library Services, NYS Doccs; Jeffrey McKoy, Deputy Commissioner of Programs, NYS Doccs, Defendants. 9:22-cv-00746 (BKS/ML) | Signed July 1, 2025 Attorneys and Law Firms Plaintiff pro se: William M. Dean, 11-B-0996, Marcy Correctional Facility, P.O. Box 3600, Marcy, NY 13403 For Defendants: Letitia James, Attorney General of the State of New York, Aimee Cowan, Assistant Attorney General, 300 South State Street, Suite 300, Syracuse, NY 13202 MEMORANDUM-DECISION AND ORDER Brenda K. Sannes, Chief U.S. District Judge I. INTRODUCTION *1 Plaintiff William M. Dean filed this action pro se under 42 U.S.C. § 1983 asserting claims of mail tampering and denial of access to courts in violation of the First Amendment against Defendants Cathy Sheehan, Deputy Commissioner and Counsel for the New York State Department of Corrections and Community Supervision (“DOCCS”), Corrine Leone, DOCCS Supervising Librarian and Law Library Coordinator, Jeffrey McKoy, DOCCS Deputy Commissioner for Program Services, David Debejian, Deputy Superintendent of Programs at Marcy Correctional Facility (“Marcy”), and Patrick Collver, the Acting Deputy Superintendent of Programs at Marcy. (See generally Dkt. No. 45). On June 21, 2024, Defendants filed a motion for summary judgment under Federal Rule of Civil Procedure 56 seeking dismissal of the Amended Complaint. (Dkt. No. 103). The briefing on this motion has taken a tortured path. The Court granted Plaintiff six extensions to file a response to Defendants’ motion, the last of which expired on January 31, 2025. (Dkt. Nos. 106, 109, 115, 119, 121, 130). On February 14, 2025, Plaintiff filed a 3,000-page response to Defendants’ motion for summary judgment. (See Dkt. Nos. 132, 133, 134, 135, 136, 137, 138, 140, 141, 142, 143, 144). As Plaintiff offered no reason for the untimely filing, the Court ordered Plaintiff to show “good cause” for failing to comply with the Court's deadline and set a briefing schedule. (Dkt. No. 139 (citing Fed. R. Civ. P. 16(b)(4))). On February 20, 2023, prior to the completion of briefing on the order to show cause, United States Magistrate Judge Miroslav Lovric, to whom Defendants’ motion for summary judgment had been referred, issued a Report and Recommendation that Defendants’ motion be granted and the Amended Complaint be dismissed on the ground that Plaintiff had failed to exhaust his administrative remedies. (Dkt. No. 145). On the understanding that the undersigned would determine the timeliness of Plaintiff's response, Magistrate Judge Lovric did not consider “the contents of Plaintiff's opposition for purposes of [the] Report and Recommendation.” (Id. at 2 n.1). On March 14, 2025, this Court issued an Order finding Plaintiff had established that there was good cause for accepting Plaintiff's response to Defendants’ motion for summary judgment as timely, allowing Defendants the opportunity to file a reply to Plaintiff's response, and advising the parties that it would consider Plaintiff's response in connection with the Report and Recommendation. (Dkt. No. 151). As Plaintiff has filed objections to the Report and Recommendation, (Dkt. No. 149), and Defendants have filed a reply, (Dkt. No. 160), this matter is, finally, fully briefed. The Court rejects the Report and Recommendation as moot in light of the additional briefing and, for the reasons that follow, grants Defendants’ motion for summary judgment. II. REPORT AND RECOMMENDATION Magistrate Judge Lovric recommended that Defendants’ motion for summary judgment be granted on the ground that Plaintiff failed to exhaust administrative remedies with respect to his remaining First Amendment mail tampering and access to the courts claims. (Dkt. No. 145). Finding the “relevant time period for this action is July 15, 2021, when Plaintiff was transferred from [Collins Correctional Facility] Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 69 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 to Marcy, through November 15, 2022,” Magistrate Judge Lovric determined that the only evidence that Plaintiff filed a grievance was his deposition testimony that “he filed a grievance on April 27, 2021,” while he was still at Collins, (id. at 5), and found no evidence that “Plaintiff file[d] any grievances at Marcy at all,” during the relevant time period, (id. at 6). Magistrate Judge Lovric therefore recommended that Defendants’ motion be granted “for the reasons set forth in their memorandum of law based on Plaintiff's failure to exhaust his administrative remedies.” (Dkt. No. 145, at 25 (citing Dkt. No. 103, Attach. 1 at 11–16)). 1 *2 When evaluating Defendant's motion for summary judgment, Magistrate Judge Lovric was bound by the record before him and unable to consider Plaintiff's response submissions. Having subsequently determined that Plaintiff's response submissions were not untimely and having invited a reply from Defendants, the motion for summary judgment is no longer unopposed and must be considered in light of the entire record. Accordingly, the Court rejects the Report and Recommendation as moot and considers Defendant's motion for summary judgment de novo. III. BACKGROUND 2 A. Collins Correctional Facility On April 4, 2021, Plaintiff was transferred from Attica Correctional Facility to Collins Correctional Facility. (Dkt. No. 45, ¶ 1; Dkt. No. 103-2, ¶ 5; Dkt. No. 132-3, ¶ 5). At that time, “Plaintiff had more than 18 legal actions pending in various courts.” (Dkt. No. 103-2, ¶ 4; Dkt. No. 132-2, ¶ 4). Plaintiff states that while at Attica, he had “no problems with using the advance system for obtaining legal copies and sending legal mail.” 3 (Dkt. No. 45, ¶¶ 172–73). Plaintiff asserts that in order “to prevent any problems with getting legal copies made and sending legal mail,” he sent a letter to A. Schneider, the Deputy Superintendent of Programs (“DSP Schneider”) shortly after his arrival asking what was “required” to obtain postage and photocopies, and that on April 7 and 13, 2021, he sent “advance requests” to DSP Schneider “for $10.50” and for “$6.80 for legal copies” but that he received no response to his inquiry or requests. (Id. ¶¶ 2–4)). DSP Schneider is not a defendant in this action. *3 On April 17, 2021, Plaintiff sent a letter to Defendant Sheehan, DOCCS Deputy Acting Commissioner and Counsel, about difficulties obtaining legal copies: I have been at Collins Correctional Facility for the past two weeks and have tried to get legal copies to notify several agencies, courts and government officials that I have moved, but have been denied access to copies. The story and procedure changes everytime I go to the law library, and when I do what was told and nothing happens. I sent several notices to Administration here at Collins about the issue on my first day here to establish a working relationship to meet both of our needs. To meet their procedures and what they wish to do to resolve any conflicts. I wrote the DSS DSP and Superintendent, with no responses. (Dkt. No. 133, at 3). Plaintiff states that on April 17, 2021, DSP Schneider returned Plaintiff's “advance requests with a notice ... denying requests for legal copies.” (Dkt. No. 45, ¶ 6). Plaintiff asserts that on April 27, 2021, he filed a grievance regarding “legal copies and legal mail” with the “IGRC Office at Collins by facility mail as required.” (Id. ¶ 7; Dkt. No. 132–3, ¶ 6; Dkt. No. 103-5, at 80). Plaintiff further asserts that he also sent a notice that day to DSP Schneider “about legal copies and legal mail,” “quoted the proper [DOCCS] directives such as 4421... [and] 2788” 4 and “attached a copy of the Inmate Grievance” to the notice. (Dkt. No. 45, ¶ 7). On or about May 4, 2021, Plaintiff received a memorandum from DSP Schneider: I am in receipt of your April 27, 2021 letter. The requested advance and the previously unpaid advances cannot exceed $20.00. Exceeding that amount can only be approved if you can show that the legal mail must be sent prior to your receipt of the following week's free postage allowance due to a court rule, statute of limitations or other legal deadline. You have failed to satisfy this requirement and your outstanding balance exceeds the $20.00 limit. Therefore, your request is denied. (Dkt. No. 133, at 6). DSP Schneider's memorandum did not reference any grievance. On or about May 6, 2021, Plaintiff received a letter from Defendant DOCCS Supervising Librarian Leone in response to Plaintiff's April 17, 2021 letter to Sheehan.” (Id. at 10). Leone advised Plaintiff to “refer” to DSP Schneider's Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 70 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 April 27, 2021 memo if he “require[d] advance funds” for photocopies of legal matters and noted that DOCCS “Directives 4483 & 4421, should clarify any other concerns.” (Id.). On or about July 15, 2021, 5 Plaintiff was transferred from Collins to Marcy. (Dkt. No. 45, ¶ 24). B. Marcy Correctional Facility *4 Plaintiff asserts that on July 22, 2021, he sent notice to the Marcy Superintendent and Deputy Superintendent of Programs, Defendant David Debejian (“DSP Debejian”) regarding “legal copies and legal mail as to what they needed from Dean and what procedures they wished for Dean to follow for getting legal copies and sending legal mail, because he was indigent.” (Dkt. No. 45, ¶ 25). Plaintiff states that on July 26, 2021, DSP Debejian responded, “telling him to do as always did and follow directives.” (Id. ¶ 26; see id. ¶ 27 (averring that during orientation, DSP Debejian told Plaintiff to “do as he has done in prior facilities” as “the rules apply no matter what facility he is in”)). Plaintiff asserts on September 24, 2021, the law library supervisor returned “11 disbursement forms and advance forms” to Plaintiff and explained that DSP Debejian was “not mailing them because Dean is indigent and over his limit and required additional proof from the courts.” (Id. ¶¶ 36–38). In a memo dated that same day, DSP Debejian explained that he was denying Plaintiff's requested advance for legal postage because Plaintiff's “balance of unpaid previous advances for legal mail postage exceed[ed] $20” and “the request must include proof of a legal deadline” or “justification for the advance.” (Dkt. No. 103-23, at 1). In his declaration DSP Debejian, states that at that time, “Plaintiff's advancements for postage totaled $975.10 and his advances for legal copies totaled $908.56,” and that Plaintiff had not provided proof of a legal deadline demonstrating that the mail must be sent prior to the next week's free postage allowance. (Dkt. No. 103-22, ¶ 11). In early October 2021, Plaintiff and DSP Debejian met and discussed Plaintiff's requests for legal mail and copies. (Dkt. No. 103-25, at 1; Dkt. No. 45, ¶ 53). According to a memorandum dated October 8, 2021, during the meeting, DSP Debejian told Plaintiff that in order to “satisfy” Directive 4421, Plaintiff would need a “court rule, court order, statute of limitations, or other legal deadline” showing “that the legal mail must be sent prior to receipt of the next week's free postage allowance.” (Dkt. No. 103-25, at 1). On or about October 8, 2021, and again on October 12, 2021, DSP Debejian denied Plaintiff's requests for legal copies and advance postage for legal mail and returned Plaintiff's legal mail. (Id. (DSP Debejian denying request but advising that he had “been in contact with counsel's office as per the directive” and that “[t]hey are aware of the situation”); Dkt. No. 45, ¶¶ 57–58). In the Amended Complaint, Plaintiff states that on October 22, 2021, he “sent notice” to Sheehan “about problems with legal copies and legal mail, and denied access to the courts,” (Dkt. No. 45, ¶ 60), and asserts that he continued to have difficulty obtaining postage and photocopies in connection with his ongoing cases in November and December 2021. (Id. ¶¶ 70–75). In December 2021, Plaintiff received the following letter from Sheehan: Acting Commissioner Annucci has asked me to respond to your letter dated October 22, 2021, to Library Services regarding your claims of photocopies and legal mail issues at Marcy Correctional Facility. Concerning advances for photocopies, please be advised that the facility considers approving each advance request in accordance with Directive No. 2788. In many instances a document required by the court can be replicated longhand. It is recommended that when requesting assistance of any type from the facility, pertaining to a legally imposed deadline, whether it is a court order or a statute of limitations issue, it is well-defined and understandable. (Dkt. No. 103-26, at 1; Dkt. No. 45, ¶ 76). Sheehan referred Plaintiff to DSP Debejian's October 8, 2021, memorandum concerning Plaintiff's “legal mail issues” and to Directive 4040, regarding available “channels of problem resolution.” (Dkt. No. 103-26, at 1). *5 Plaintiff asserts that on January 12 and 17, 2022, he sent requests to DSP Debejian for “132 total pages of advance legal copies or civil filing a divorce packet with the Oneida County Supreme Court.” (Dkt. No. 45, ¶¶ 83–84). According to Plaintiff, DSP Debejian and “Albany Counsel” denied his “divorce copies” on January 18, 2022. (Id. ¶ 85). Plaintiff avers in early March 2022, he received approval for copies Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 71 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 and for mailing of papers for his divorce action. (Id. ¶¶ 102– 05). Plaintiff states that on January 21, 2022, he “sent notice to DSP Debejian about needing advance legal copies and legal mailing” to comply with a February 4, 2022 deadline in an order to show cause issued by the Albany County Supreme Court. (Dkt. No. 45, ¶ 87; Dkt. No. 103-29, at 2 (request seeking 3,224 copies and “enough legal size envelopes to mail as said copies as required by the Court and advances for postage and such”)). DSP Debejian denied Plaintiff's request in a memorandum dated February 1, 2022, explaining that although Plaintiff had supplied “the order to show cause as requested to prove a deadline,” a determination could not be made “based on the order alone,” and that Plaintiff's request was therefore denied. (Dkt. No. 103-30, at 1). DSP Debejian advised Plaintiff, however, that if he had “documents that may shed light of [sic] any rule, court order, statute of limitation, or other legal deadline applicable to your circumstance,” he could submit them for review. (Id.). DSP Debejian retired in May 2022, at which point, Patrick Collver assumed the role of Acting DSP. (Dkt. No. 103-22, ¶ 1; Dkt. No. 103-13, ¶ 1). On May 4, 2022, Plaintiff “[a]dvised” DSP Collver that he “needed approval for copies 3182 pages and legal mail advances” for an Albany County Supreme Court amended order to show cause. (Dkt. No. 45, ¶ 113). On May 10, 2022, DSP Collver denied Plaintiff's request. (Id. ¶ 114). On May 10, 2022, Plaintiff sent DSP Collver a request for 262 copies in connection with a complaint alleging claims under federal civil rights statutes. (Id. ¶ 115). On May 11, 2022, Plaintiff sent a “letter/notice” to DSP Collver “about denial of copies and mail service.” (Id. ¶ 118). That same day, Plaintiff received the following memorandum (dated May 6) from DSP Collver: Upon consultation with Counsel's Office I am advising you of the following: 1. I will authorize an advance for enough copies for the Order to Show Cause to be served on the Superintendent and Acting Commissioner. I will need you to specify exactly how many pages you will need for each. 2. I will not authorize an advance for any exhibits. You will need to seek leave from the court for copies of exhibits as your account reflects $3,822.28 of uncollected advances for legal copies. (Dkt. No. 103-14, at 1). Between May 20 and 27, 2022, Plaintiff sent DSP Collver requests for copies in connection with his civil rights action, legal mail advances, and for copies of 3,640 “pages.” (Dkt. No. 45, ¶¶ 124–26; Dkt. No. 103-17, at 1). In a June 13, 2022, letter to Erin Pfendler, the Marcy Incarcerated Grievance Program Supervisor, Plaintiff asked Pfendler “if she could tell him as to what happen to his grievance filed in Collins on or/about April 27, 2021.” (Dkt. No. 45, ¶ 139). In response, Pfendler advised Plaintiff to write to Collins and to “write her back” if he did not receive a response. (Id. ¶ 140). On or about June 21, 2022, Plaintiff wrote to the Collins grievance supervisor and requested information “as to the status of a grievance [he] filed on/or about April 27, 2021 while being at Collins C.F. it was based being denied the right to advance legal copies and advanced legal mail.” (Dkt. No. 133, at 48). Plaintiff explained that the grievance had not “been resolved prior to [his] leaving” and he had “not heard from anyone as to what if anything was happening to said grievance.” (Id.). Plaintiff states that he received no response to his letter. (Dkt. No. 45, ¶ 144). On September 1, 2022, Plaintiff sent a letter to Pfendler asking her to look into the grievance he filed at Collins. (Id. ¶ 167). On October 27, 2022, Plaintiff received a letter from Defendant McKoy, DOCCS deputy commissioner of programs: *6 This is in response to your letter regarding your mail. As a result of you [sic] correspondence, Marcy Correctional Facility (CF) was contacted and Deputy Superintendent of Programs (DSP) Fredrickson, indicated that all outgoing and incoming mail is processed in accordance with Departmental Directive #4421, “Privileged Correspondence” and Department Directive #4422, “Incarcerated Individual Correspondence Program”. Legal Mail advances are processed the same day they are received. DSP Fredrickson also indicated that you were informed to stop writing extraneous information on your disbursement requests and you were also asked to put the correct dates on your requests for advance postage, so it doesn't appear that your request are not being processed in a timely fashion. And additional concerns regarding this matter should be addressed to DSP Fredrickson, who is in the best position to assist you. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 72 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 (Id. ¶ 171-g). IV. MOTION FOR SUMMARY JUDGMENT A. Standard of Review Under Rule 56(a), summary judgment may be granted only if all the submissions taken together “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. 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, 106 S.Ct. 2505; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). 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, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where the nonmoving party fails to “ ‘come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on’ an essential element of a claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))). If the moving party meets this burden, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non- moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)). *7 Where the plaintiff proceeds pro se, the Court must read his submissions liberally and interpret them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, a pro se party's “ ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268 (N.D.N.Y. 2011) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011). B. Analysis 1. Relevant Time Period Defendants assert that the relevant time period for this case is July 15, 2021, the date Plaintiff was transferred from Collins to Marcy, through November 15, 2022, the date Plaintiff filed the Amended Complaint, and thus solely concerns the denial of legal copies and postage advances for legal mail that Plaintiff allegedly experienced while at Marcy—but not at Collins. (Dkt. No. 103-2, ¶¶ 1, 3). Plaintiff disputes this and maintains the alleged violations began on or about April 4, 2021, while he was confined at Collins, continued at Marcy, then at Mid-State Correctional Facility, and continue to the present. (Dkt. No. 132-3, ¶¶ 1, 3). The principal “evidence” Defendants rely on in support of their contention that the Amended Complaint “alleges wrongdoing associated with the conditions of his confinement at Marcy, not Collins,” is this Court's March 2, 2023 Decision and Order (“March 2023 Order”) reviewing the Amended Complaint under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 44, at 6)). 6 On page 6 of the March 2023 Order, the Court provided an “Overview of the Amended Complaint,” and introduced it as follows: “As with the original complaint, plaintiff's amended and supplemental complaint alleges wrongdoing associated with the conditions of his confinement Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 73 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 at Marcy C.F., and reasserts Section 1983 claims against the same ... defendants.” (Dkt. No. 44, at 6). Although this sentence unfortunately omits Collins, read in context and with reference to the Amended Complaint, it is evident this omission was a simple oversight. Not only do the defendants it refers to include Sheehan and Leone, whose involvement, according to Plaintiff, began while he was at Collins, but the next sentence expressly notes that the Amended Complaint “includes each of the allegations set forth in the original complaint,” (id. at 6–7 (emphasis added)), which the Court previously described as containing “allegations of wrongdoing during [Plaintiff's] incarceration at Collins ... and Marcy,” (Dkt. No. 10, at 4). The Court therefore concludes that the omission of Collins from the March 2023 Order was, at most, a clerical omission and by no means a preclusive finding regarding the relevant time period for this case. More importantly, as even a cursory review reveals, the claims in the Amended Complaint are centered on Plaintiff's efforts to obtain legal copies and postage advances for legal mail at both Collins and Marcy. (See generally Dkt. No. 45). Closer inspection shows that it refers to Collins more than forty times and that its “Statement of Facts” begins with Plaintiff's transfer from Attica Correctional Facility to Collins on or about April 4, 2021. (Id. at 25). *8 Defendants’ reliance on Plaintiff's deposition does not support their position as to the relevant time period, either. In the section of the deposition that Defendants cite, defense counsel says: “I'm going to go through each of the defendants” and “I'm going to have you tell me what role they played in denying your access to the courts.” (Dkt. No. 103-5, at 29–30). When defense counsel asks Plaintiff whether he has any claims about Defendant Debejian, who is employed at Marcy, “with respect to your time at Collins,” Plaintiff responds: “No, he wasn't here, correct ... As a matter of fact, there's nobody in here claims against Collins listed as a defendant.” (Id. at 30). This is correct—the defendants in this case include three DOCCS officials (Sheehan, Leone, and McKoy) and two Marcy employees (Debejian and Collver), but no Collins employees. (Dkt. No. 45). However, defense counsel next asks Plaintiff about Defendant Sheehan and whether Plaintiff has “any claims with respect to access to courts for your time at Collins.” (Dkt. No. 103-5, at 31). Plaintiff responds, in relevant part: “Its going to be in the numbered section” of the Amended Complaint, “April 4, ‘21, I see April 9th also. Cathy Sheehan, yes, April 17th, 2021, I sent her notice.” (Id.). As Plaintiff's interaction with Sheehan, according to the Amended Complaint, began while he was at Collins, Defendants’ reliance on Plaintiff's deposition also proves unavailing. The Court therefore concludes that Plaintiff has shown that the relevant time period began on or about April 4, 2021, when he was transferred to Collins. (Dkt. No. 45, at 156); see, e.g., PH Int'l Trading Corp. v. Nordstrom, Inc., No. 07-cv-10680, 2011 WL 13557658, at *2, 2011 U.S. Dist. LEXIS 175934, at *4 (S.D.N.Y. Oct. 5, 2011) (looking to the allegations in the complaint regarding the date the parties’ relationship began and the time of the alleged breach in order to determine relevant time period for purposes of discovery); Schiavone v. Ne. Utils. Serv. Co., No. 08-cv-429, 2009 WL 801744, at *1, 2009 U.S. Dist. LEXIS 24517, at *3–4 (D. Conn. Mar. 25, 2009) (same). However, the Court agrees that the time period ends on November 15, 2022, the date the Amended Complaint was signed, (Dkt. No. 45, at 156), as there was no supplemental pleading filed in this case. 2. Personal Involvement – Collins Having concluded that the relevant time period in this case began when Plaintiff was transferred to Collins, the Court considers Defendants’ argument that there is no evidence that Sheehan or Leone, the only two named Defendants who had any interaction with Plaintiff while he was at Collins, were personally involved in interfering with Plaintiff's legal mail or in denying Plaintiff access to the Courts. (Dkt. No. 103-1, at 16–20, 28–29). Plaintiff opposes Defendants’ motion. (Dkt. No. 132-4, at 36–42). It is well-settled that, to establish a defendant's individual liability in a suit brought under Section 1983, a plaintiff must show “the defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted). A plaintiff must “allege a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There is “no special rule for supervisory liability,” and “a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The Second Circuit has explained that “[t]he factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary,” and “[t]he violation must be established against Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 74 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 the supervisory official directly.” Id. (second alteration in original) (internal quotations and citations omitted). a. Mail Tampering (Interference with Legal Mail) “[A] prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment” Bacon v. Phelps, 961 F.3d 533, 543 (2d Cir. 2020) (internal citations omitted). As the Second Circuit has explained, this right is violated if a prison “regularly and unjustifiably” interferes with an incarcerated individual's legal mail. Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012) (quoting Davis v. Goord, 320 F.3d 346, 351 (2003)). Unconstitutional interference with mail occurs when, for example, prison officials engage in “an ongoing practice of unjustified censorship” or delay the delivery of mail to a prisoner in a way that “cause[s] him to miss court deadlines or in any way prejudice[s] his legal actions.” Davis, 320 F.3d at 352. b. Denial of Access to Courts *9 The First Amendment right to petition the government, which applies to the states through the Fourteenth Amendment, “extends to all departments of the Government, including the Courts.” Friedman v. Bloomberg L.P., 884 F.3d 83, 90 (2d Cir. 2017) (citation omitted). “A plaintiff's constitutional right of access to the courts is violated where government officials obstruct legitimate efforts to seek judicial redress.” Id. (citation and internal quotation marks omitted). Circuit Courts of Appeals have “recognized two variants of right-of-access claims”: (1) “forward-looking suits,” in which plaintiffs allege that “ ‘systemic official action’ frustrated their ability to file a suit,” and (2) “backward-looking” claims “covering suits that ‘cannot now be tried (or tried with all material evidence), no matter what official action may be in the future.’ ” Sousa v. Marquez, 702 F.3d 124, 127–28 (2d Cir. 2012) (citation omitted). A plaintiff may have a backward-looking right-of-access claim, for example, where the official action “caused the loss or inadequate settlement of a meritorious case.” Id. at 128. Moreover, the Second Circuit has not recognized the viability of backward-looking right-of-access claims. See id. (noting that the “viability of backward-looking right-of-access claims is far from clear in this Circuit” and declining to decide the issue); Kern v. Contento, No. 21-cv-1672, 2022 WL 1112767, at *3, 2022 U.S. App. LEXIS 10073, at *7 (2d Cir. Apr. 14, 2022) (summary order) (noting that Sousa “declined to decide whether to follow other circuits in recognizing a backward- looking claim”). c. Sheehan and Leone As discussed above, the only named Defendants with any connection to Plaintiff's difficulties obtaining copies and advance legal postage while he was at Collins, are two DOCCS officials: Sheehan and Leone. 7 Viewed in the light most favorable to Plaintiff, the evidence of their involvement at this time is: (1) Plaintiff's April 17, 2021 letter to Sheehan reporting that he “not receiving photocopies of legal material and legal cases from the Law Library at Collins,” (Dkt. No. 133, at 3); and (2) Leone's May 6, 2021 response (on Sheehan's behalf), (id. at 10). To the extent Plaintiff asserts claims of mail tampering and denial of access to the courts against Sheehan arising from her referral of Plaintiff's April 17, 2021, letter to Leone for response, he has failed to present evidence from which a factfinder could find Sheehan personally involved. See Vega v. Artus, 610 F. Supp. 2d 185, 199 (N.D.N.Y. 2009) (stating that facility superintendent's act of “referring [the plaintiff's] letters to staff for investigation is not sufficient to establish [his] personal involvement”); Viera v. Sheahan, 531 F. Supp. 3d 666, 672 (W.D.N.Y. 2021) (finding that the defendant's “receipt” of the plaintiff's “letter and referral of the matter to a subordinate does not establish his personal involvement in the alleged failure to process Plaintiff's mail”). And, although an official's response to a letter may constitute evidence of personal involvement, see, e.g., Young v. Choinski, 15 F. Supp. 3d 172, 191 (D. Conn. 2014) (“[W]hen a supervisory prison official receives a particular grievance, personally reviews it, and responds and/or takes action in response, such conduct may constitute sufficient ‘personal involvement’ to establish individual liability for the alleged constitutional violation.”), the Court concludes that Leone's May 6, 2021 letter responding on Sheehan's behalf, (Dkt. No. 133, at 10), fails to raise an issue of fact as to any involvement by Leone in interfering with legal mail or denying Plaintiff access to the courts. *10 In his April 17, 2021, letter to Sheehan, Plaintiff explained that he needed to “notify 63” different “agencies, courts and government officials that [he has] moved” from Attica to Collins,, but that Collins has “denied access to copies,” that the “procedure changes” each time he goes to the library, and that the DSP and Superintendent had not responded to his inquiries. (Dkt. No. 133, at 3). Plaintiff also wrote that he was having a “problem with obtaining legal copies and cases as need to work on [his] several legal matters.” (Id.). In her response on Sheehan's behalf, Leone noted Plaintiff's claim of “not receiving photocopies Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 75 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 of legal materials and legal cases” from the Collins law library, referred Plaintiff to DSP Schneider's April 27, 2021 memo 8 should he require advance funds and to DOCCS “Directives 4483 & 4421” if he had “any other concerns,” advised Plaintiff that a letter to DOCCS “Central Office staff” did not replace a facility's “problem resolution channels,” and encouraged Plaintiff to use the grievance process. (Id. at 10). Although it is undisputed that Plaintiff was litigating 18 cases during the relevant time period, Plaintiff does not cite any specific case in connection with denial of legal copies (the subject of his letter to Sheehan and Leone's response) while at Collins. There is evidence that on May 25, 2021, DSP Schneider denied Plaintiff's May 17, 2021 request for an advance on postage for documents Plaintiff sought in connection with an “Order to Show Cause” issued by the Monroe County Supreme Court, in an Article 78 proceeding where Plaintiff was “seeking to compel” the Monroe County Sheriff to comply with a Freedom of Information Law request. (Dkt. No. 134-1, at 1, 73 (Dean v. Baxter, Monroe County Sheriff, filed in Monroe County Supreme Court, Index No. 2021-537); Dkt. No. 45, ¶¶ 12– 13). Although there is evidence that DSP Schneider also denied other requests regarding legal copies or mail, (see Dkt. No. 133, at 8 (May 4, 2021 memorandum regarding “Legal Copies” and denying “requested advance”); id. at 14 (May 24, 2021 memorandum regarding “Legal Copies” and denying request for “advances for legal mail”)), nothing in the record ties those requests to any of the cases Plaintiff was litigating at that time or to conduct by Leone. Thus, no reasonable factfinder could conclude that Leone, in responding to Plaintiff's letter regarding difficulties obtaining legal copies, was personally involved in interfering with Plaintiff's legal mail or obstructing Plaintiff's access to the courts in connection with his Monroe County Article 78 proceeding or any other case. 9 Accordingly, Defendants Sheehan and Leone are dismissed for lack of personal involvement. 3. Exhaustion of Administrative Remedies Defendants move for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies prior to filing this action, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Dkt. No. 103-1, at 11–16). In support of their motion, Defendants have filed declarations by Joshua Becker and Erin Pfendler, the Incarcerated Grievance Program Supervisors (“IGPS”) at Collins and Marcy, respectively. (Dkt. Nos. 103-11, 103-31). Both Becker and Pfendler state that during the relevant time period, Plaintiff filed no “grievances at all.” (Dkt. No. 103-11, ¶ 8; Dkt. No. 103-31, ¶ 8). Plaintiff responds that he “filed numerous grievances that never went anywhere” and argues that his reports to DOCCS and other state officials regarding his problems with legal copies and legal mail satisfy the PLRA's exhaustion requirement. (Dkt. No. 132-4, at 14– 16). Plaintiff also argues that there “is no working grievance system in Collins or Marcy.” (Id. at 14–15). *11 The PLRA prescribes limitations on an inmate's ability to bring civil actions with respect to prison conditions. Specifically, the PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)), abrogated on other grounds by Ross v. Blake, 578 U.S. 632, 639–42, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016). Proper exhaustion of administrative remedies is dependent on the rules and regulations of the prison in which the grievance is filed; that is, an inmate of a New York State DOCCS facility must satisfy the requirements, including procedural and substantive requirements, set forth by DOCCS regulations to properly exhaust administrative remedies. See Garcia v. Heath, 74 F.4th 44, 46 (2d Cir. 2023); see also Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (“[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” (alteration in original) (quoting Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007))). Failure to exhaust available administrative remedies is an affirmative defense that must be raised by the defendants. See Jones, 549 U.S. at 216, 127 S.Ct. 910. Therefore, the defendants “bear the initial burden of establishing the affirmative defense of non-exhaustion ‘by pointing to “legally sufficient sources” such as statutes, regulations, or grievance procedures’ which demonstrate that ‘a grievance process exists and applies to the underlying dispute.’ ” Williams v. Correction Officer Priatno, 829 F.3d 118, 126 n.6 (2d Cir. 2016) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 76 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 788 F.3d 54, 59 (2d Cir. 2015)). “If the defendants meet this initial burden, administrative remedies may nonetheless be deemed unavailable if the plaintiff can demonstrate that other factors ... rendered a nominally available procedure unavailable as a matter of fact.” Hubbs, 788 F.3d at 59 (citing Hemphill v. New York, 380 F.3d 680, 687–88 (2d Cir. 2004), abrogated on other grounds by Ross, 578 U.S. at 639–42, 136 S.Ct. 1850). Under DOCCS regulations, an inmate must generally submit a grievance within twenty-one days of an alleged occurrence, see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1), but may request an extension within forty-five days of the alleged occurrence, see id. § 701.6(g)(1)(i)(a). An inmate's grievance “should contain a concise, specific description of the problem and the action requested.” Id. § 701.5(a)(2). This requirement, the Second Circuit has held, is analogous to the requirements of notice pleading. See Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006); see also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (“The PLRA's exhaustion requirement is ... is not dissimilar to the rules of notice pleading.”). “As in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief[;] [a]ll the grievance need do is object intelligibly to some asserted shortcoming.” Johnson, 380 F.3d at 697 (citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). Subsequent procedural exhaustion of a filed grievance then involves three steps: (1) the grievance is reviewed and resolved by the Inmate Grievance Resolution Committee (“IGRC”), N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b); (2) the grievant appeals an adverse decision of the IGRC to the superintendent of the facility at which the grievance was filed, id. § 701.5(c); and (3) the grievant appeals an adverse decision of the superintendent to the Central Office Review Committee (“CORC”), id. § 701.5(d). 10 Upon the rendering of CORC's decision, or if CORC fails to respond to a grievance within thirty days of its appeal under the third step of the process, the grievant has exhausted administrative remedies. See Hayes, 976 F.3d at 269–70. *12 “Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross, 578 U.S. at 638, 136 S.Ct. 1850. The Supreme Court in Ross v. Blake identified, inexhaustively, see Williams, 829 F.3d at 123 n.2, “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Ross, 578 U.S. at 643, 136 S.Ct. 1850. “First, an administrative remedy may be unavailable when ‘it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.’ ” Williams, 829 F.3d at 123 (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). “Second, ‘an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.’ ” Id. (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). “Third, an administrative remedy may be unavailable ‘when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’ ” Id. at 124 (quoting Ross, 578 U.S. at 644, 136 S.Ct. 1850). Here, Defendants have established that the grievance procedures contemplated by DOCCS regulations applied to inmates at Collins and Marcy. 11 (Dkt. No. 103-2, ¶¶ 12–14; Dkt. No. 103-11, ¶ 5). The question before the Court, then, is whether Plaintiff has raised a material issue of fact as to (1) whether he exhausted these administrative remedies, and (2) if he did not, whether the remedies were available to Plaintiff within the meaning established by Ross and Williams. a. Alleged Grievances at Collins i. April 27, 2021 Grievance and Exhaustion Based on Continuing Violation Although there are no named defendants that could be held responsible for the alleged constitutional violations at Collins, the Court has considered Plaintiff's allegation of having filed an April 27, 2021 grievance at Collins in order to assess whether there was a grievance that could support exhaustion based on a continuing violation. Plaintiff asserts that he filed a grievance on April 27, 2021, at Collins “about being denied to make legal copies and send legal mail.” (Dkt. No. 133, at 46). At his deposition, Plaintiff stated that he had a “copy of the grievance,” (Dkt. No. 103-5, at 81–82), but there is no copy of the grievance in the record before the Court. According to the verified amended complaint, Plaintiff filed this “Inmate Grievance” on April 27, 2021, “with the IGRC Office at Collins by facility mail as required,” 12 (Dkt. No. 45, ¶ 7; see also Dkt. No. 103-5, at 80 (testifying that on April 27, 2021, he “filled the grievance out and put it in the mailbox address to IGRC”)), but never received any response, (Dkt. No. 45, ¶ 7). Also, according to the verified Amended Complaint, on April 27, 2021, Plaintiff “sent a follow up notice to DSP Schneider about legal copies and legal mail ... and attached a copy of the Inmate Grievance filed,” (Dkt. No. 45, ¶ 7; but see Dkt. No. 133, at 6 (DSP Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 77 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 Schneider's response acknowledging his receipt of Plaintiff's April 27 letter does not refer to the grievance that purportedly accompanied the letter)). Plaintiff has also adduced some evidence that he followed up on the grievance. Plaintiff testified that he subsequently wrote to the “superintendent at Collins, didn't get a response” and “filed an appeal with the superintendent at Collins, didn't get a response” and that he undertook these actions “in ’21.” 13 (Dkt. No. 103-5, at 80–81). In a letter dated June 13, 2022, more than a year after purportedly filing the grievance, Plaintiff sent a letter to Pfendler, the Marcy grievance supervisor, inquiring into “the status of a grievance [he] filed on or about April 27, 2021 at Collins Correctional Facility, about being denied to make legal copies and send legal mail.” (Dkt. No. 133, at 46). On Pfendler's recommendation, (id. at 47), Plaintiff sent a letter to the Collins Grievance Supervisor, “requesting information as to the status of a grievance [he] filed on/or about April 27, 2021 while” at Collins and described the grievance as “based [sic] being denied the right to advance legal copies and advanced legal mail,” (id. at 48 (letter dated June 21, 2022)). On September 1, 2022, Plaintiff notified Pfendler that he had not received a response from Collins and inquired how to proceed. (Dkt. No. 133, at 49). On June 15, 2023, Plaintiff testified that he “recently” sent a letter to the Central Office Review Committee regarding the April 27, 2021 grievance. (Dkt. No. 103-5, at 82). *13 Defendants dispute Plaintiff's assertion that he filed a grievance on April 27, 2021, or at any other time while he was at Collins. In a declaration, Becker, the Collins Grievance Program Supervisor states that Collins has no record of this grievance and that Plaintiff filed no grievances “while incarcerated at Collins from April 2021 through July 2021.” (Dkt. No. 103-11, ¶ 8). In addition, none of the memoranda issued by DSP Schneider following Plaintiff's purported filing of the grievance (and sending a copy to DSP Schneider) references a grievance. (Dkt. No. 133, at 6, 8, 14, 39). In Williams v. Correction Officer Priatno, the Second Circuit found that when a grievance is delivered by an inmate in a Special Housing Unit to a correction officer for filing and that grievance is never subsequently filed or answered, DOCCS “regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies.” 829 F.3d at 124. “On their face,” the Second Circuit held, “the regulations only contemplate appeals of grievances that were actually filed.” Id. And under the circumstances in that case, “the grievance procedures that were technically available to [the plaintiff] so opaque and confusing that they were, ‘practically speaking, incapable of use,’ ” and therefore, “in giving his grievance to the correction officer, [the plaintiff] exhausted all administrative remedies that were available to him.” Id. at 126 (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). However, “mere contentions or speculation” regarding mishandling of a grievance “do not create a genuine issue of material fact when there is no evidence to support the allegations.” Jackson v. Moore, No. 21-cv-1001, 2023 WL 4710869, at *6, 2023 U.S. Dist. LEXIS 65814, at *15 (N.D.N.Y. Apr. 14, 2023) (quoting Rodriguez v. Cross, No. 15-cv-1079, 2017 WL 2791063, at *7, 2017 U.S. Dist. LEXIS 71337, at *19 (N.D.N.Y. May 9, 2017)), report and recommendation adopted, 2023 WL 4711091, 2023 U.S. Dist. LEXIS 126588 (N.D.N.Y. July 24, 2023)). Rather, a plaintiff must provide some corroboration of a claim that a grievance was submitted, such as evidence demonstrating when the grievance was written, the content of the grievance, how the plaintiff attempted to file the grievance, or that the plaintiff followed up with prison officials on the disposition of the grievance. See Simpson v. Price, No. 19-cv-1413, 2022 WL 336540, at *3, 2022 U.S. Dist. LEXIS 20857, at *7–8 (N.D.N.Y. Feb. 4, 2022); see also Stephanski v. Allen, No. 18- cv-76, 2020 WL 806331, at *9, 2020 U.S. Dist. LEXIS 11028, at *22–25 (N.D.N.Y. Jan. 22, 2020) (“Although [the plaintiff] fails to proffer copies of the grievance(s) he attempted to file ..., his claims are supported by evidence suggesting that he attempted to file a grievance ... including: (1) [the plaintiff]’s deposition testimony; (2) [the plaintiff]’s letter to the ... Grievance Committee; (3) [the plaintiff]’s letter to [a grievance supervisor]; (4) [a subsequent grievance]; and (5) [the plaintiff]’s Appeal Statement referring the Superintendent's decision to CORC for review.”), report and recommendation adopted, 2020 WL 777268, 2020 U.S. Dist. LEXIS 26918 (N.D.N.Y. Feb. 18, 2020). As discussed, although Plaintiff does not name any Collins staff members as defendants in this case, he has sued the two DOCCS officials with whom he corresponded while at Collins: Sheehan, DOCCS Deputy Commissioner and Counsel; and Leone, DOCCS Supervising Librarian and Law Library Coordinator. Plaintiff could not recall who, if anyone, he named in the April 27 grievance, but “[t]he New York IGP regulations do not state that a prisoner's grievance must name the responsible party.” See Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009). “[T]he IGP regulations offer the Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 78 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 general guidance that a grievance should ‘contain a concise, specific description of the problem,’ and the complaint form does not instruct the inmate to name the officials allegedly responsible for misconduct.” Id. (citing N.Y. Comp. Codes R. & Regs., tit. 7, § 701.7(a)(1)(i)); see also White v. Williams, No. 9:12-cv-1775, 2016 WL 4006461, at *5, 2016 U.S. Dist. LEXIS 81972, at *13 (N.D.N.Y. June 22, 2016) (“[I]nsofar as Plaintiff's supervisory claims relate to underlying conduct that was the subject of a fully exhausted grievance process, a separate grievance detailing the supervisory liability, or specifically naming the supervisors, is not a prerequisite to suit.”), report and recommendation adopted, 2016 WL 4005849, 2016 U.S. Dist. LEXIS 96337 (N.D.N.Y. July 25, 2016); Jones, 549 U.S. at 217, 127 S.Ct. 910 (“[N]othing in the PLRA statute imposes a ‘name all the defendants’ requirement.”); Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“[W]e are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.”). *14 Here, even assuming that Plaintiff satisfied his burden with respect to an April 27 grievance about “being denied to make legal copies and send legal mail,” Plaintiff has not shown that this falls within the exception the Second Circuit identified in Johnson v. Killian, pursuant to which a prior grievance might serve to exhaust “administrative remedies with respect to [a] continuing violation” of constitutional rights. 680 F.3d 234, 239 (2d Cir. 2012). In Johnson, the plaintiff filed and exhausted a grievance “concerning limitations on congregational prayer” at a Federal Correctional Institution in Otisville, New York. 680 F.3d at 236. The plaintiff's religious beliefs required congregational prayer five times a day, but the Otisville policy provided the prison chapel only once a day. Id. After the plaintiff exhausted his grievance, Otisville “substantially ceased enforcing the relevant policy.” Id. at 236–37. Two years later, however, following the arrival of a new warden, the policy “restricting congregational prayer was reimplemented” and the plaintiff filed suit without filing a second grievance. Id. at 237. Concluding that the plaintiff's first grievance was sufficient to exhaust his administrative remedies regarding his congregational prayer policy claim, the Second Circuit vacated the district court's dismissal of this claim. Id. In reaching this conclusion, the Circuit recognized that “[t]he purpose of the PLRA is to reduce the quantity and improve the quality of prisoner suits[,] and to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case” and found the plaintiff's prior grievance “provided the prison administration with notice of, and an opportunity to resolve, the same problem that would continue intermittently” through the two years that followed. Id. at 238 (quoting Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011)). It explained that because the issue the plaintiff “would have raised” in a second grievance—“the inadequacy of the spaces and times allotted for congregational prayer—was identical to the issue he exhausted” in his prior grievance, the plaintiff's prior grievance “was sufficient to exhaust his administrative remedies with respect to the continuing limitations on congregational prayer at FCI Otisville.” Id. at 239. However, the Circuit expressly limited its holding “to cases in which a prior grievance identifies a specific and continuing complaint that ultimately becomes the basis for a lawsuit” and stressed “that generalized complaints regarding the conditions of an inmate's confinement will [not] suffice to shortcut the administrative remedy process.” Id. In this case, even viewed in the light most favorable to Plaintiff, the alleged April 27 grievance about “being denied to make legal copies and send legal mail,” (Dkt. No. 133, at 46), suggests, at best, a generalized complaint about legal copies and legal mail at Collins. Thus, although Plaintiff contends that he continued to have difficulties obtaining legal copies and advance postage for legal mail there is no basis on which to conclude that an April 27 grievance was sufficient to exhaust claims arising at Marcy. See Rose v. Annucci, No. 16-cv-787, 2018 WL 2729259, at *6, 2018 U.S. Dist. LEXIS 67017, at *15 (N.D.N.Y. Apr. 19, 2018) (finding that while “hypothetical enforcement concerns may have been part of plaintiff's motivation at the time that he filed” prior grievances, he failed to show “that the issues raised” in prior grievances asserting that religious meal form “was an unconstitutional procedural requirement for his attendance at the Eid-Ul-Adha festival,” challenging “the registration deadline for Ramadan,” and asserting the “belief that he was being penalized for refusing to sign the Religious Meal Form,” were “identical with” the plaintiff's later claim that he “signed the Religious Meal Form, but was penalized when he stopped attending group Ramadan meals and refused to take part in counseling”), report and recommendation adopted, 2018 WL 2727874, 2018 U.S. Dist. LEXIS 94735 (N.D.N.Y. June 6, 2018). Thus, even assuming Plaintiff exhausted administrative remedies regarding the April 27, 2021 grievance at Collins, it was not sufficient to place DOCCS officials at Marcy 14 on notice that Plaintiff was Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 79 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 being wrongfully denied legal copies and advance postage for legal mail. Accordingly, the Court concludes that Plaintiff's alleged April 27, 2021 grievance fails to raise a triable issue of fact with respect to exhaustion. ii. June 15, 2021 Grievance *15 During his deposition, Plaintiff testified that he did not file any grievances at Collins, other than the one he filed on April 27, 2021. (Dkt. No. 103-5, at 84–85). However, in the declaration Plaintiff filed in opposition to Defendants’ motion for summary judgment, Plaintiff states that he filed “a grievance[ ] with Collins on ... June 15, 2021” that was “related to issues with not being able to send 10 pieces of legal mail by advance on May 25, 2021, and was refused by Collins.” (Dkt. No. 132-3, at 4, 8–9). “The ‘sham issue of fact’ doctrine ‘prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party's previous sworn testimony.’ ” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014) (emphasis omitted) (quoting In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013)). Thus, Plaintiff's contradictory declaration in insufficient to create a triable issue of fact as to whether he filed a second grievance while at Collins. And, in any event, Plaintiff offers no evidence that would corroborate his filing of this grievance. Plaintiff cites his handwritten “Mail Log” as evidence that he filed this grievance, but it contains no supporting factual details and only states the following: “June 15, 2021, sent grievance and claim form superintendent.” (Dkt. No. 136, at 24). Nor has Plaintiff provided copies of a June 15 grievance or any evidence of follow up. Accordingly, the Court finds Plaintiff's belated assertion regarding the filing of a second grievance at Collins fails to create a material issue of fact as to exhaustion. b. Alleged Grievances at Marcy i. September 29, 2021 Grievance The Amended Complaint alleges that on or about September 29, 2021, Plaintiff sent a letter to Patrick Reardon, the Superintendent of Marcy, regarding Plaintiff's “problems with” being “denied access to the Courts” and stating that Plaintiff was enclosing a grievance for “review and filing.” (Dkt. No. 45, at 13, 34). In opposition to Defendants’ motion for summary judgment, Plaintiff filed a copy of a September 30, 2021 letter he sent to Superintendent Reardon outlining the difficulties he was having with Debejian with respect to legal mail and legal copies and stating he has “enclosed a grievance to be filed, please.” (Dkt. No. 142, at 40). There does not appear to be a copy of this grievance in the record and there is no evidence Plaintiff properly filed this grievance. In any event, sending a grievance to the superintendent does not comply with DOCCS's inmate grievance procedure. See Beatty v. Goord, 210 F. Supp. 2d 250, 255–56 (S.D.N.Y. 2000) (“[W]riting letters to ... the [s]uperintendent ... [is] not sufficient to comply with the Inmate Grievance Program”) (citation omitted). ii. June 9, 2022 Grievances During his June 15, 2023, deposition, Plaintiff was asked whether, after filing the April 27, 2021, grievance, he filed another grievance before April 19, 2023. (Dkt. No. 103-5, at 85). Plaintiff responded “no, I wouldn't have.” (Id. at 84). Plaintiff explained that “the grievance that I had out there was already running as far ... as I knew” and that after the April 27, 2021 grievance, he “went over and above the grievance process and ... started contacting everybody ... because obviously grievances weren't working.” (Id. at 85). 15 Following the deposition, Plaintiff sent a letter (dated the same day as the deposition) to defense counsel “to follow up on some of the questions [he was asked] during the deposition.” 16 (Dkt. No. 133-5, at 6). Plaintiff explained that he reviewed his “mail log books to see if there was any grievance I filed while at Marcy” and “came across some entries, and one is on June 9, 2022, that I sent a Grievance to IGRC, two of them actually. One was about Collver and Debejian, as to advance legal mail and legal copies.... The other one dealt with not receiving my monthly trust fund account statements.” 17 (Id. at 6–7). Plaintiff acknowledged, however, that he had only mentioned the grievance regarding monthly statements in the Amended Complaint. (Id. at 7 (citing Dkt. No. 45, ¶ 136 (“June 9, 2022, Dean sent grievance to IGRC in person about missing monthly statements.”)). Even crediting the statements in Plaintiff's letter (which appears to be verified, (id. at 14)), Plaintiff has not provided the Court with a copy of any information regarding how he filed this grievance or any documentation of any such grievance; there is no evidence that he made follow-up inquiries regarding a June 9, 2022 grievance, see, e.g., Gibbs v. Gadway, No. 19-cv-281, 2019 WL 5191506, at *5, 2019 U.S. Dist. LEXIS 177879, at *2 (N.D.N.Y. Oct. 15, 2019) (finding conclusory claim subject to dismissal where copies of grievance appeals allegedly filed were not submitted as evidence), report and recommendation adopted, 2020 WL 1227156 at *3, 2020 U.S. Dist. LEXIS 43719 at *7 (N.D.N.Y. Mar. 13, 2020). Accordingly, the Court finds Plaintiff has Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 80 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 failed to identify a material issue of fact with respect to his purported June 9, 2022 grievance. iii. Availability of Grievance System at Marcy 18 *16 Although Plaintiff has failed to raise a material issue of fact as to whether he filed any grievance at Marcy, the Court has, for the sake of completeness, considered his assertion that the administrative grievance process was “unavailable” to him at Marcy because prison officials took grievances and threw them away or retaliated when inmates filed grievances. (Dkt. No. 132-4, at 14–15; see also (Dkt. No. 103-5, at 83 (Plaintiff testifying that the grievances he filed at Marcy had “a habit of disappearing” and that he did not know “if it's the officers taking the grievances and throwing them away when they see who they're addressed to or what's going on”)). Defendants reply that Plaintiff's contention that there is no working grievance system at Marcy is “untrue and baseless.” (Dkt. No. 160, at 13). As noted above, Defendants have filed a declaration by Pfendler, the Marcy Grievance Supervisor, who states that “Marcy currently has a fully functioning grievance process and had a fully functioning grievance process from July 2021 through November 2022,” while Plaintiff was at Marcy. (Dkt. No. 103-31, ¶ 6). Pfendler further states that: Incarcerated Individuals housed in general population at Marcy are provided incarcerated grievance complaint forms and envelopes upon request. Incarcerated Individuals can file their grievance complaints by submitting their grievance complaints in a sealed envelope to ensure confidentiality. An Incarcerated Individual can deposit a grievance complaint, addressed to the Incarcerated Grievance Program office, in the intra-facility mailbox that is located on their housing unit. (Id. ¶ 7). In his declaration in opposition to summary judgment, Plaintiff states that “Marcy's grievance system” is nonexistent “as there is problems with staff interfering with grievances by intercepting the mail or stealing the grievance from the grievance office or retaliating for ones that had already been filed in the system.” (Dkt. No. 132-3, ¶ 12). In support of this statement, Plaintiff filed seven nearly identical declarations by individuals incarcerated at Marcy, including one by Plaintiff himself, stating: [A]ll I/Is in Marcy who spent anytime here during those time frames, and still ongoing to date, know that if you put a grievance in the mailbox it will never make it to the Grievance office. The COs will remove it from the mailbox and destroy it and then retaliate against the person trying send the grievance, unless it is minor and note related to Marcy. There is no function grievance process per the Constitution of otherwise at Marcy ... since at the very minimum July 2021. (Dkt. No. 133-3, at 3). One of the declarations by an incarcerated individual states that on August 15, 2022, the declarant observed Plaintiff “being told by a Sgt. that he would have to move out of B-2 due to an issue that alleged he had with them about a grievance.” (Dkt. No. 133-4, at 3). In his declaration in opposition to summary judgment, Plaintiff identifies the Marcy Sergeant who allegedly retaliated against him as Thomas Coomber, and states that Coomber moved him in retaliation for “a grievance Plaintiff tried to file on/ or about August 12, 2022, by putting into the mailbox in the B-2 Dorm.” 19 (Dkt. No. 132-3, at 8). Plaintiff states that he had forgotten about the incident until another incarcerated individual reminded him on October 14, 2024. (Id.). In the Second Circuit, “[t]he test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available.” Hemphill, 380 F.3d at 688 (quotation marks omitted). And as to retaliation, “[i]t is well settled that a plaintiff's ‘generalized fear’ of retaliation ‘is insufficient to excuse his failure’ to file a grievance.” Hall v. Annucci, No. 19-cv-5521, 2022 WL 3903255, at *9, 2022 U.S. Dist. LEXIS 156492, at *24–25 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 81 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 (S.D.N.Y. Aug. 30, 2022) (quoting Little v. Mun. Corp., City of New York, No. 12-cv-5851, 2017 WL 1184326, at *12, 2017 U.S. Dist. LEXIS 46944, at *32 (S.D.N.Y. Mar. 29, 2017)), aff'd, No. 22-2031, 2023 WL 7212156, 2023 U.S. App. LEXIS 29103 (2d Cir. Nov. 2, 2023). *17 In this case, the allegations in the declarations filed by Plaintiff and six individuals incarcerated at Marcy attesting to the destruction of non-minor grievances and retaliation “against the person trying to send the grievance” are devoid of factual detain and constitute generalized allegations of retaliation or interference. (Dkt. No. 133-3, at 3). There is no indication that the alleged retaliation for a grievance Plaintiff attempted to file in August 2022 has any connection to this action. Moreover, this cursory allegation is unaccompanied by facts suggesting threats or intimidation, and was insignificant insofar as Plaintiff admittedly did not recall it two years later. (Dkt. No. 132-3, ¶ 17). The “sworn statements” by Plaintiff and the six other inmates that officers removed and destroyed grievances are insufficient to create a question of fact as to the availability of the Marcy grievance system. Neither Plaintiff nor the inmates who filed declarations offer any factual details or specific examples. “Courts within the Second Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.” Blake v. Porlier, No. 18-cv-1008, 2019 WL 7484052, at *5, 2019 U.S. Dist. LEXIS 173760, at *12–13 (N.D.N.Y. Oct. 4, 2019) (quotation marks omitted), report and recommendation adopted, 2020 WL 58613, 2020 U.S. Dist. LEXIS 1207 (N.D.N.Y. Jan. 6, 2020); see also Khudan v. Lee, No. 12-cv-8147, 2016 WL 4735364, at *6, 2016 U.S. Dist. LEXIS 122217, at *20 (S.D.N.Y. Sept. 8, 2016) (holding that under Ross, mere stand alone contentions of mail tampering without support and particularity cannot deem administrative remedies unavailable). Moreover, although Plaintiff states in his declaration that there was a “problem” with staff at Marcy “retaliating for [grievances] that had already been filed,” (Dkt. No. 132-3, ¶ 12), he does not state in his declaration or verified Amended Complaint that he did not file grievances at Marcy because he was afraid of retaliation. Thus, the Court finds Plaintiff has failed to identify a material issue of fact as to the exhaustion, or availability, of administrative remedies. Accordingly, Defendants’ motion for summary judgment dismissing the Amended Complaint on the ground that Plaintiff failed to exhaust his administrative remedies is granted. V. MOTION TO SEAL Plaintiff moves to seal the sworn statements he submitted in opposition to Defendants’ motion for summary judgment. (Dkt. No. 132 (citing Dkt. Nos. 133-3, 133-4)). Plaintiff asserts that disclosure of the contents of the statements “will cause retaliation and/or serious physical and mental harm” to the incarcerated individuals who provided the statements. (Dkt. No. 132-1, ¶ 4). “[D]ocuments submitted to a court for its consideration in a summary judgment motion are –as a matter of law—judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006). That “strong presumption” must be balanced against, as relevant here, “the privacy interests of ‘innocent third parties.’ ” Wiav Sols. Inc. v. HTC Corp., No. 19-cv-4978, 2021 WL 871415, at *1, 2021 U.S. Dist. LEXIS 43997, at *3 (S.D.N.Y. Mar. 9, 2021) (quoting S.E.C. v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir. 2001)). “However, the fact that a third party's privacy interests are at stake does not obviate the need for the proposed redactions to be narrowly tailored to protect those interests.” Id. Here, Plaintiff seeks wholesale sealing of each sworn statement, but as the statements are nearly identical and contain no identifying information other than the individual's “NYS DIN” number and name, there appears to be little, if any, privacy interest implicated by the substantive contents of the statement. However, as third parties making statements in support of Plaintiff, the publication of the names and DIN numbers of these incarcerated individuals may implicate certain privacy interests, and thus redaction is warranted. The Court therefore finds that the redaction of names and DIN numbers from each statement is necessary to protect each individual's privacy interest, “is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (quotation omitted). However, Plaintiff offers no explanation for sealing his own sworn statement, (Dkt. No. 133-3, at 16–17), a letter dated August 17, 2022, (Dkt. No. 133-4, at 4–5), a handwritten note from a Marcy officer to Plaintiff, (Dkt. No. 133-4, at 6), or the list of names and DIN numbers of individuals housed at Collins and Marcy at the same time as Plaintiff, (Dkt. No. 133-3, at 22). Thus, as Plaintiff has failed to identify any interest Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 82 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 that outweighs the strong presumption of access to these documents, his motion to seal these documents is denied. *18 Accordingly, Plaintiff's motion to seal is granted in part and denied in part as follows: the Clerk is directed to redact the names and DIN numbers from Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and unseal the remainder of both documents. 20 VI. CONCLUSION For these reasons, it is hereby ORDERED that the Report and Recommendation (Dkt. No. 145) is REJECTED as moot; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 103) is GRANTED; and it is further ORDERED that as the time period for exhaustion of administrative remedies has expired, the Amended Complaint (Dkt. No. 45) is DISMISSED; and it is further ORDERED that Plaintiff's motion to seal (Dkt. No. 132) is GRANTED in part and DENIED in part as follows: the Clerk is directed to redact the names and DIN numbers from Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and unseal the remainder of both documents; and it is further ORDERED that the Clerk is directed to enter judgment accordingly, close this case, and serve a copy of this Order upon the parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Slip Copy, 2025 WL 1811183 Footnotes 1 Magistrate Judge Lovric accepted Defendants’ statement of undisputed facts without considering the verified Amended Complaint or the context in which Defendants’ record citations arose. For example, Magistrate Judge Lovric recommended that the Court find Defendants’ assertion that “[t]he relevant time period for this action is July 15, 2021 (when Plaintiff was transferred to Marcy), through November 15, 2022” to be “supported” based principally on a partial sentence in prior Order summarizing Amended Complaint. (Dkt. No. 145, at 4–5; see Dkt. No. 44, at 6). However, a basic review of the Order (or of the Amended Complaint) dispels any notion that this action solely concerns events at Marcy. (See supra Part IV.B.1). In any event, as the Report and Recommendation is moot in light of the additional briefing, the Court does not further consider it. 2 The facts are drawn from Defendants’ statement of material facts and Plaintiff's response to Defendants’ statement of material facts, (Dkt. Nos. 103-2, 132-3), to the extent the facts are supported by “particular parts of materials in the record,” including, among other things, depositions, affidavits or declarations, or other documents. Fed. R. Civ. P. 56(c). The Court has also considered Plaintiff's Amended Complaint, which is verified. (Dkt. No. 45); see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (explaining that a “verified complaint is to be treated as an affidavit ... and [may] be considered in determining whether material issues of fact exist[.]”) (citations omitted). The facts are construed in the light most favorable to Plaintiff as the non- moving party. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007). 3 Under DOCCS Directive 4421, 7 N.Y.C.R.R. § 721.3(a)(3)(ii), each incarcerated individual receives “a weekly free postage allowance equivalent to five domestic first class one ounce letters,” and “[t]o ensure that indigent incarcerated individuals maintain their right of access to the courts,” facilities “shall ... advance request[s]” for postage for legal mail “if the incarcerated individual has insufficient funds,” and “the balance of unpaid previous advances ... do not exceed $20.” 7 N.Y.C.R.R. § 721.3(a)(3)(iv). However, even if an incarcerated Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 83 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 individual does not qualify for an “advance” on postage because his unpaid balance exceeds $20, Directive 4421, facility staff must consult “with the department's office of counsel” before denying the request. Id. DOCCS Directive 4483 governs “photocopying services,” and provides that if an incarcerated individual “does not have sufficient funds for the purchase of copies ... he is entitled to obtain an advance from the facility when he establishes that the documents sought to be copied are required by the courts and cannot be replicated longhand.” (Dkt. No. 103-22, ¶ 7). “Advances may only be approved by the Law Library Supervisor, in consultation with the Law Library Administrator or the Office of Counsel.” (Id.) (quotation marks omitted). 4 DOCCS Directive 2788, cited by Plaintiff, governs collection and repayment of inmate advances and obligations and “how and when a DOCCS facility will deduct money from an account without the inmate's consent.” Liner v. Fischer, No. 11-cv-6711, 2013 WL 1832316, at *1, 2013 U.S. Dist. LEXIS 62885 (S.D.N.Y. May 2, 2013) (quotation marks omitted). 5 Plaintiff states in the Amended Complaint that on July 14, 2021, while at Collins, he was told “to packup everything” as “he was being transferred to another facility” and that he was “located at Marcy C.F. as of July 16, 2021.” (Dkt. No. 45, ¶¶ 23–24). The actual date of transfer is immaterial. 6 Defendants also cite the Amended Complaint and a page from Plaintiff's deposition in support of their argument. (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 45; Dkt. No. 103-5, at 30)). 7 McKoy is also a DOCCS official and is named as a Defendant. However, there is no evidence of his involvement while Plaintiff was at Collins. Indeed, other than being copied on a June 5, 2022, letter Plaintiff sent to Defendant Collver, (Dkt. No. 45, ¶ 132), the first evidence of any involvement by McKoy is a letter to Plaintiff dated October 22, 2022, (id. ¶ 117-g; Dkt. No. 133, at 53). Accordingly, the Court does not consider McKoy here. 8 This memo does not appear to be in the record. 9 Nor is there evidence of any harm to the Article 78 proceeding as Plaintiff subsequently obtained approval from DSP Schneider on or about July 6, 2021, for copies and mailings in connection with “a new Order to Show Cause from the Monroe County Supreme Court.” (Dkt. No. 45, ¶¶ 20–21, 23; see also Dkt. No. 133, at 39 (approving advances for legal mail and copies)). 10 Complaints of “harassment,” which is not applicable here are subject to a different, expedited procedure. See N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.5(a)(2), 701.8. 11 While Plaintiff denies this factual assertion, he does not meaningfully dispute that DOCCS grievance procedures applied at Collins or Marcy but instead asserts there are problems with staff interference and retaliation. (Dkt. No. 132-3, ¶¶ 11–12). 12 In his declaration, Becker the Collins Grievance Supervisor states an inmate can file a grievance “by submitting their grievance complaints in a sealed envelope to ensure confidentiality. An Incarcerated Individual can deposit a grievance complaint, addressed to the Incarcerated Grievance Program office, in the intra-facility mailbox that is located on their housing unit.” (Dkt. No. 103-11, ¶ 6). 13 Plaintiff also testified that he wrote “[t]he superintendent” and told her that he wanted “to know what happened to the letter that [he] wrote her in ’21, about the missing ... grievance that [he] never got a response from” and that the superintendent said “can't find any record of it” and told Plaintiff to write “a note basically what the grievance is about” and that she would “see if” she could locate it or come up with ... some type of response ... as to what happened” but that the superintendent has not responded further. (Dkt. No. 103-5, at 83–84). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 84 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 14 There appears to be little, if any, guidance in the Second Circuit concerning whether a prior grievance that identifies a specific and continuing complaint, could serve to exhaust administrative remedies as to claims arising at a different correctional facility. 15 Plaintiff further testified: Q. So after you got transferred to Marcy in July 2021, you didn't write any grievances there about what was going on there as far as the mail tampering and the access to courts? A. No. (Dkt. No. 103-5, at 86). 16 The letter is dated June 15, 2023, the same day as the deposition. (Dkt. No. 133-5, at 6). 17 There does not appear to be an entry in Plaintiff's mail logs, (Dkt. No. 136), concerning a grievance on June 9, 2022. 18 To the extent Plaintiff argues there was no working grievance system at Collins, the Court notes that in his declaration, Becker, the Grievance Supervisory at Collins, states that, in accordance with DOCCS Directive 4040, Collins “had a fully functioning grievance process from April 2021 through July 2021,” the time period when Plaintiff was at Collins. (Dkt. No. 103-11, ¶ 5). Plaintiff has presented no evidence disputing this statement. 19 Plaintiff does not suggest this grievance concerned legal copies or legal mail. Further, it does not appear to be mentioned in Plaintiff's mail log, (Dkt. No. 136), or anywhere else in the record. 20 In the reply memorandum, counsel for Defendants disclosed the initials of the third parties who signed the sworn statements and quoted from the documents, which are, at present, not publicly filed. (Dkt. No. 160, at 13–15). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 85 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Blue-Striped Flag Appeal Filed by Dean v. Annucci, 2nd Cir., July 24, 2025 2025 WL 1811183 Only the Westlaw citation is currently available. United States District Court, N.D. New York. William M. DEAN, Plaintiff, v. Cathy Y. SHEEHAN, Deputy Commissioner and Counsel; David Debejian, Deputy Superintendent of Programs; Pat Collver, Acting Deputy Superintendent of Programs; C.F. Leone, Director of Correctional Library Services, NYS Doccs; Jeffrey McKoy, Deputy Commissioner of Programs, NYS Doccs, Defendants. 9:22-cv-00746 (BKS/ML) | Signed July 1, 2025 Attorneys and Law Firms Plaintiff pro se: William M. Dean, 11-B-0996, Marcy Correctional Facility, P.O. Box 3600, Marcy, NY 13403 For Defendants: Letitia James, Attorney General of the State of New York, Aimee Cowan, Assistant Attorney General, 300 South State Street, Suite 300, Syracuse, NY 13202 MEMORANDUM-DECISION AND ORDER Brenda K. Sannes, Chief U.S. District Judge I. INTRODUCTION *1 Plaintiff William M. Dean filed this action pro se under 42 U.S.C. § 1983 asserting claims of mail tampering and denial of access to courts in violation of the First Amendment against Defendants Cathy Sheehan, Deputy Commissioner and Counsel for the New York State Department of Corrections and Community Supervision (“DOCCS”), Corrine Leone, DOCCS Supervising Librarian and Law Library Coordinator, Jeffrey McKoy, DOCCS Deputy Commissioner for Program Services, David Debejian, Deputy Superintendent of Programs at Marcy Correctional Facility (“Marcy”), and Patrick Collver, the Acting Deputy Superintendent of Programs at Marcy. (See generally Dkt. No. 45). On June 21, 2024, Defendants filed a motion for summary judgment under Federal Rule of Civil Procedure 56 seeking dismissal of the Amended Complaint. (Dkt. No. 103). The briefing on this motion has taken a tortured path. The Court granted Plaintiff six extensions to file a response to Defendants’ motion, the last of which expired on January 31, 2025. (Dkt. Nos. 106, 109, 115, 119, 121, 130). On February 14, 2025, Plaintiff filed a 3,000-page response to Defendants’ motion for summary judgment. (See Dkt. Nos. 132, 133, 134, 135, 136, 137, 138, 140, 141, 142, 143, 144). As Plaintiff offered no reason for the untimely filing, the Court ordered Plaintiff to show “good cause” for failing to comply with the Court's deadline and set a briefing schedule. (Dkt. No. 139 (citing Fed. R. Civ. P. 16(b)(4))). On February 20, 2023, prior to the completion of briefing on the order to show cause, United States Magistrate Judge Miroslav Lovric, to whom Defendants’ motion for summary judgment had been referred, issued a Report and Recommendation that Defendants’ motion be granted and the Amended Complaint be dismissed on the ground that Plaintiff had failed to exhaust his administrative remedies. (Dkt. No. 145). On the understanding that the undersigned would determine the timeliness of Plaintiff's response, Magistrate Judge Lovric did not consider “the contents of Plaintiff's opposition for purposes of [the] Report and Recommendation.” (Id. at 2 n.1). On March 14, 2025, this Court issued an Order finding Plaintiff had established that there was good cause for accepting Plaintiff's response to Defendants’ motion for summary judgment as timely, allowing Defendants the opportunity to file a reply to Plaintiff's response, and advising the parties that it would consider Plaintiff's response in connection with the Report and Recommendation. (Dkt. No. 151). As Plaintiff has filed objections to the Report and Recommendation, (Dkt. No. 149), and Defendants have filed a reply, (Dkt. No. 160), this matter is, finally, fully briefed. The Court rejects the Report and Recommendation as moot in light of the additional briefing and, for the reasons that follow, grants Defendants’ motion for summary judgment. II. REPORT AND RECOMMENDATION Magistrate Judge Lovric recommended that Defendants’ motion for summary judgment be granted on the ground that Plaintiff failed to exhaust administrative remedies with respect to his remaining First Amendment mail tampering and access to the courts claims. (Dkt. No. 145). Finding the “relevant time period for this action is July 15, 2021, when Plaintiff was transferred from [Collins Correctional Facility] Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 86 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 to Marcy, through November 15, 2022,” Magistrate Judge Lovric determined that the only evidence that Plaintiff filed a grievance was his deposition testimony that “he filed a grievance on April 27, 2021,” while he was still at Collins, (id. at 5), and found no evidence that “Plaintiff file[d] any grievances at Marcy at all,” during the relevant time period, (id. at 6). Magistrate Judge Lovric therefore recommended that Defendants’ motion be granted “for the reasons set forth in their memorandum of law based on Plaintiff's failure to exhaust his administrative remedies.” (Dkt. No. 145, at 25 (citing Dkt. No. 103, Attach. 1 at 11–16)). 1 *2 When evaluating Defendant's motion for summary judgment, Magistrate Judge Lovric was bound by the record before him and unable to consider Plaintiff's response submissions. Having subsequently determined that Plaintiff's response submissions were not untimely and having invited a reply from Defendants, the motion for summary judgment is no longer unopposed and must be considered in light of the entire record. Accordingly, the Court rejects the Report and Recommendation as moot and considers Defendant's motion for summary judgment de novo. III. BACKGROUND 2 A. Collins Correctional Facility On April 4, 2021, Plaintiff was transferred from Attica Correctional Facility to Collins Correctional Facility. (Dkt. No. 45, ¶ 1; Dkt. No. 103-2, ¶ 5; Dkt. No. 132-3, ¶ 5). At that time, “Plaintiff had more than 18 legal actions pending in various courts.” (Dkt. No. 103-2, ¶ 4; Dkt. No. 132-2, ¶ 4). Plaintiff states that while at Attica, he had “no problems with using the advance system for obtaining legal copies and sending legal mail.” 3 (Dkt. No. 45, ¶¶ 172–73). Plaintiff asserts that in order “to prevent any problems with getting legal copies made and sending legal mail,” he sent a letter to A. Schneider, the Deputy Superintendent of Programs (“DSP Schneider”) shortly after his arrival asking what was “required” to obtain postage and photocopies, and that on April 7 and 13, 2021, he sent “advance requests” to DSP Schneider “for $10.50” and for “$6.80 for legal copies” but that he received no response to his inquiry or requests. (Id. ¶¶ 2–4)). DSP Schneider is not a defendant in this action. *3 On April 17, 2021, Plaintiff sent a letter to Defendant Sheehan, DOCCS Deputy Acting Commissioner and Counsel, about difficulties obtaining legal copies: I have been at Collins Correctional Facility for the past two weeks and have tried to get legal copies to notify several agencies, courts and government officials that I have moved, but have been denied access to copies. The story and procedure changes everytime I go to the law library, and when I do what was told and nothing happens. I sent several notices to Administration here at Collins about the issue on my first day here to establish a working relationship to meet both of our needs. To meet their procedures and what they wish to do to resolve any conflicts. I wrote the DSS DSP and Superintendent, with no responses. (Dkt. No. 133, at 3). Plaintiff states that on April 17, 2021, DSP Schneider returned Plaintiff's “advance requests with a notice ... denying requests for legal copies.” (Dkt. No. 45, ¶ 6). Plaintiff asserts that on April 27, 2021, he filed a grievance regarding “legal copies and legal mail” with the “IGRC Office at Collins by facility mail as required.” (Id. ¶ 7; Dkt. No. 132–3, ¶ 6; Dkt. No. 103-5, at 80). Plaintiff further asserts that he also sent a notice that day to DSP Schneider “about legal copies and legal mail,” “quoted the proper [DOCCS] directives such as 4421... [and] 2788” 4 and “attached a copy of the Inmate Grievance” to the notice. (Dkt. No. 45, ¶ 7). On or about May 4, 2021, Plaintiff received a memorandum from DSP Schneider: I am in receipt of your April 27, 2021 letter. The requested advance and the previously unpaid advances cannot exceed $20.00. Exceeding that amount can only be approved if you can show that the legal mail must be sent prior to your receipt of the following week's free postage allowance due to a court rule, statute of limitations or other legal deadline. You have failed to satisfy this requirement and your outstanding balance exceeds the $20.00 limit. Therefore, your request is denied. (Dkt. No. 133, at 6). DSP Schneider's memorandum did not reference any grievance. On or about May 6, 2021, Plaintiff received a letter from Defendant DOCCS Supervising Librarian Leone in response to Plaintiff's April 17, 2021 letter to Sheehan.” (Id. at 10). Leone advised Plaintiff to “refer” to DSP Schneider's Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 87 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 April 27, 2021 memo if he “require[d] advance funds” for photocopies of legal matters and noted that DOCCS “Directives 4483 & 4421, should clarify any other concerns.” (Id.). On or about July 15, 2021, 5 Plaintiff was transferred from Collins to Marcy. (Dkt. No. 45, ¶ 24). B. Marcy Correctional Facility *4 Plaintiff asserts that on July 22, 2021, he sent notice to the Marcy Superintendent and Deputy Superintendent of Programs, Defendant David Debejian (“DSP Debejian”) regarding “legal copies and legal mail as to what they needed from Dean and what procedures they wished for Dean to follow for getting legal copies and sending legal mail, because he was indigent.” (Dkt. No. 45, ¶ 25). Plaintiff states that on July 26, 2021, DSP Debejian responded, “telling him to do as always did and follow directives.” (Id. ¶ 26; see id. ¶ 27 (averring that during orientation, DSP Debejian told Plaintiff to “do as he has done in prior facilities” as “the rules apply no matter what facility he is in”)). Plaintiff asserts on September 24, 2021, the law library supervisor returned “11 disbursement forms and advance forms” to Plaintiff and explained that DSP Debejian was “not mailing them because Dean is indigent and over his limit and required additional proof from the courts.” (Id. ¶¶ 36–38). In a memo dated that same day, DSP Debejian explained that he was denying Plaintiff's requested advance for legal postage because Plaintiff's “balance of unpaid previous advances for legal mail postage exceed[ed] $20” and “the request must include proof of a legal deadline” or “justification for the advance.” (Dkt. No. 103-23, at 1). In his declaration DSP Debejian, states that at that time, “Plaintiff's advancements for postage totaled $975.10 and his advances for legal copies totaled $908.56,” and that Plaintiff had not provided proof of a legal deadline demonstrating that the mail must be sent prior to the next week's free postage allowance. (Dkt. No. 103-22, ¶ 11). In early October 2021, Plaintiff and DSP Debejian met and discussed Plaintiff's requests for legal mail and copies. (Dkt. No. 103-25, at 1; Dkt. No. 45, ¶ 53). According to a memorandum dated October 8, 2021, during the meeting, DSP Debejian told Plaintiff that in order to “satisfy” Directive 4421, Plaintiff would need a “court rule, court order, statute of limitations, or other legal deadline” showing “that the legal mail must be sent prior to receipt of the next week's free postage allowance.” (Dkt. No. 103-25, at 1). On or about October 8, 2021, and again on October 12, 2021, DSP Debejian denied Plaintiff's requests for legal copies and advance postage for legal mail and returned Plaintiff's legal mail. (Id. (DSP Debejian denying request but advising that he had “been in contact with counsel's office as per the directive” and that “[t]hey are aware of the situation”); Dkt. No. 45, ¶¶ 57–58). In the Amended Complaint, Plaintiff states that on October 22, 2021, he “sent notice” to Sheehan “about problems with legal copies and legal mail, and denied access to the courts,” (Dkt. No. 45, ¶ 60), and asserts that he continued to have difficulty obtaining postage and photocopies in connection with his ongoing cases in November and December 2021. (Id. ¶¶ 70–75). In December 2021, Plaintiff received the following letter from Sheehan: Acting Commissioner Annucci has asked me to respond to your letter dated October 22, 2021, to Library Services regarding your claims of photocopies and legal mail issues at Marcy Correctional Facility. Concerning advances for photocopies, please be advised that the facility considers approving each advance request in accordance with Directive No. 2788. In many instances a document required by the court can be replicated longhand. It is recommended that when requesting assistance of any type from the facility, pertaining to a legally imposed deadline, whether it is a court order or a statute of limitations issue, it is well-defined and understandable. (Dkt. No. 103-26, at 1; Dkt. No. 45, ¶ 76). Sheehan referred Plaintiff to DSP Debejian's October 8, 2021, memorandum concerning Plaintiff's “legal mail issues” and to Directive 4040, regarding available “channels of problem resolution.” (Dkt. No. 103-26, at 1). *5 Plaintiff asserts that on January 12 and 17, 2022, he sent requests to DSP Debejian for “132 total pages of advance legal copies or civil filing a divorce packet with the Oneida County Supreme Court.” (Dkt. No. 45, ¶¶ 83–84). According to Plaintiff, DSP Debejian and “Albany Counsel” denied his “divorce copies” on January 18, 2022. (Id. ¶ 85). Plaintiff avers in early March 2022, he received approval for copies Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 88 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 and for mailing of papers for his divorce action. (Id. ¶¶ 102– 05). Plaintiff states that on January 21, 2022, he “sent notice to DSP Debejian about needing advance legal copies and legal mailing” to comply with a February 4, 2022 deadline in an order to show cause issued by the Albany County Supreme Court. (Dkt. No. 45, ¶ 87; Dkt. No. 103-29, at 2 (request seeking 3,224 copies and “enough legal size envelopes to mail as said copies as required by the Court and advances for postage and such”)). DSP Debejian denied Plaintiff's request in a memorandum dated February 1, 2022, explaining that although Plaintiff had supplied “the order to show cause as requested to prove a deadline,” a determination could not be made “based on the order alone,” and that Plaintiff's request was therefore denied. (Dkt. No. 103-30, at 1). DSP Debejian advised Plaintiff, however, that if he had “documents that may shed light of [sic] any rule, court order, statute of limitation, or other legal deadline applicable to your circumstance,” he could submit them for review. (Id.). DSP Debejian retired in May 2022, at which point, Patrick Collver assumed the role of Acting DSP. (Dkt. No. 103-22, ¶ 1; Dkt. No. 103-13, ¶ 1). On May 4, 2022, Plaintiff “[a]dvised” DSP Collver that he “needed approval for copies 3182 pages and legal mail advances” for an Albany County Supreme Court amended order to show cause. (Dkt. No. 45, ¶ 113). On May 10, 2022, DSP Collver denied Plaintiff's request. (Id. ¶ 114). On May 10, 2022, Plaintiff sent DSP Collver a request for 262 copies in connection with a complaint alleging claims under federal civil rights statutes. (Id. ¶ 115). On May 11, 2022, Plaintiff sent a “letter/notice” to DSP Collver “about denial of copies and mail service.” (Id. ¶ 118). That same day, Plaintiff received the following memorandum (dated May 6) from DSP Collver: Upon consultation with Counsel's Office I am advising you of the following: 1. I will authorize an advance for enough copies for the Order to Show Cause to be served on the Superintendent and Acting Commissioner. I will need you to specify exactly how many pages you will need for each. 2. I will not authorize an advance for any exhibits. You will need to seek leave from the court for copies of exhibits as your account reflects $3,822.28 of uncollected advances for legal copies. (Dkt. No. 103-14, at 1). Between May 20 and 27, 2022, Plaintiff sent DSP Collver requests for copies in connection with his civil rights action, legal mail advances, and for copies of 3,640 “pages.” (Dkt. No. 45, ¶¶ 124–26; Dkt. No. 103-17, at 1). In a June 13, 2022, letter to Erin Pfendler, the Marcy Incarcerated Grievance Program Supervisor, Plaintiff asked Pfendler “if she could tell him as to what happen to his grievance filed in Collins on or/about April 27, 2021.” (Dkt. No. 45, ¶ 139). In response, Pfendler advised Plaintiff to write to Collins and to “write her back” if he did not receive a response. (Id. ¶ 140). On or about June 21, 2022, Plaintiff wrote to the Collins grievance supervisor and requested information “as to the status of a grievance [he] filed on/or about April 27, 2021 while being at Collins C.F. it was based being denied the right to advance legal copies and advanced legal mail.” (Dkt. No. 133, at 48). Plaintiff explained that the grievance had not “been resolved prior to [his] leaving” and he had “not heard from anyone as to what if anything was happening to said grievance.” (Id.). Plaintiff states that he received no response to his letter. (Dkt. No. 45, ¶ 144). On September 1, 2022, Plaintiff sent a letter to Pfendler asking her to look into the grievance he filed at Collins. (Id. ¶ 167). On October 27, 2022, Plaintiff received a letter from Defendant McKoy, DOCCS deputy commissioner of programs: *6 This is in response to your letter regarding your mail. As a result of you [sic] correspondence, Marcy Correctional Facility (CF) was contacted and Deputy Superintendent of Programs (DSP) Fredrickson, indicated that all outgoing and incoming mail is processed in accordance with Departmental Directive #4421, “Privileged Correspondence” and Department Directive #4422, “Incarcerated Individual Correspondence Program”. Legal Mail advances are processed the same day they are received. DSP Fredrickson also indicated that you were informed to stop writing extraneous information on your disbursement requests and you were also asked to put the correct dates on your requests for advance postage, so it doesn't appear that your request are not being processed in a timely fashion. And additional concerns regarding this matter should be addressed to DSP Fredrickson, who is in the best position to assist you. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 89 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 (Id. ¶ 171-g). IV. MOTION FOR SUMMARY JUDGMENT A. Standard of Review Under Rule 56(a), summary judgment may be granted only if all the submissions taken together “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. 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, 106 S.Ct. 2505; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). 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, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where the nonmoving party fails to “ ‘come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on’ an essential element of a claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))). If the moving party meets this burden, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non- moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)). *7 Where the plaintiff proceeds pro se, the Court must read his submissions liberally and interpret them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, a pro se party's “ ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268 (N.D.N.Y. 2011) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011). B. Analysis 1. Relevant Time Period Defendants assert that the relevant time period for this case is July 15, 2021, the date Plaintiff was transferred from Collins to Marcy, through November 15, 2022, the date Plaintiff filed the Amended Complaint, and thus solely concerns the denial of legal copies and postage advances for legal mail that Plaintiff allegedly experienced while at Marcy—but not at Collins. (Dkt. No. 103-2, ¶¶ 1, 3). Plaintiff disputes this and maintains the alleged violations began on or about April 4, 2021, while he was confined at Collins, continued at Marcy, then at Mid-State Correctional Facility, and continue to the present. (Dkt. No. 132-3, ¶¶ 1, 3). The principal “evidence” Defendants rely on in support of their contention that the Amended Complaint “alleges wrongdoing associated with the conditions of his confinement at Marcy, not Collins,” is this Court's March 2, 2023 Decision and Order (“March 2023 Order”) reviewing the Amended Complaint under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 44, at 6)). 6 On page 6 of the March 2023 Order, the Court provided an “Overview of the Amended Complaint,” and introduced it as follows: “As with the original complaint, plaintiff's amended and supplemental complaint alleges wrongdoing associated with the conditions of his confinement Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 90 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 at Marcy C.F., and reasserts Section 1983 claims against the same ... defendants.” (Dkt. No. 44, at 6). Although this sentence unfortunately omits Collins, read in context and with reference to the Amended Complaint, it is evident this omission was a simple oversight. Not only do the defendants it refers to include Sheehan and Leone, whose involvement, according to Plaintiff, began while he was at Collins, but the next sentence expressly notes that the Amended Complaint “includes each of the allegations set forth in the original complaint,” (id. at 6–7 (emphasis added)), which the Court previously described as containing “allegations of wrongdoing during [Plaintiff's] incarceration at Collins ... and Marcy,” (Dkt. No. 10, at 4). The Court therefore concludes that the omission of Collins from the March 2023 Order was, at most, a clerical omission and by no means a preclusive finding regarding the relevant time period for this case. More importantly, as even a cursory review reveals, the claims in the Amended Complaint are centered on Plaintiff's efforts to obtain legal copies and postage advances for legal mail at both Collins and Marcy. (See generally Dkt. No. 45). Closer inspection shows that it refers to Collins more than forty times and that its “Statement of Facts” begins with Plaintiff's transfer from Attica Correctional Facility to Collins on or about April 4, 2021. (Id. at 25). *8 Defendants’ reliance on Plaintiff's deposition does not support their position as to the relevant time period, either. In the section of the deposition that Defendants cite, defense counsel says: “I'm going to go through each of the defendants” and “I'm going to have you tell me what role they played in denying your access to the courts.” (Dkt. No. 103-5, at 29–30). When defense counsel asks Plaintiff whether he has any claims about Defendant Debejian, who is employed at Marcy, “with respect to your time at Collins,” Plaintiff responds: “No, he wasn't here, correct ... As a matter of fact, there's nobody in here claims against Collins listed as a defendant.” (Id. at 30). This is correct—the defendants in this case include three DOCCS officials (Sheehan, Leone, and McKoy) and two Marcy employees (Debejian and Collver), but no Collins employees. (Dkt. No. 45). However, defense counsel next asks Plaintiff about Defendant Sheehan and whether Plaintiff has “any claims with respect to access to courts for your time at Collins.” (Dkt. No. 103-5, at 31). Plaintiff responds, in relevant part: “Its going to be in the numbered section” of the Amended Complaint, “April 4, ‘21, I see April 9th also. Cathy Sheehan, yes, April 17th, 2021, I sent her notice.” (Id.). As Plaintiff's interaction with Sheehan, according to the Amended Complaint, began while he was at Collins, Defendants’ reliance on Plaintiff's deposition also proves unavailing. The Court therefore concludes that Plaintiff has shown that the relevant time period began on or about April 4, 2021, when he was transferred to Collins. (Dkt. No. 45, at 156); see, e.g., PH Int'l Trading Corp. v. Nordstrom, Inc., No. 07-cv-10680, 2011 WL 13557658, at *2, 2011 U.S. Dist. LEXIS 175934, at *4 (S.D.N.Y. Oct. 5, 2011) (looking to the allegations in the complaint regarding the date the parties’ relationship began and the time of the alleged breach in order to determine relevant time period for purposes of discovery); Schiavone v. Ne. Utils. Serv. Co., No. 08-cv-429, 2009 WL 801744, at *1, 2009 U.S. Dist. LEXIS 24517, at *3–4 (D. Conn. Mar. 25, 2009) (same). However, the Court agrees that the time period ends on November 15, 2022, the date the Amended Complaint was signed, (Dkt. No. 45, at 156), as there was no supplemental pleading filed in this case. 2. Personal Involvement – Collins Having concluded that the relevant time period in this case began when Plaintiff was transferred to Collins, the Court considers Defendants’ argument that there is no evidence that Sheehan or Leone, the only two named Defendants who had any interaction with Plaintiff while he was at Collins, were personally involved in interfering with Plaintiff's legal mail or in denying Plaintiff access to the Courts. (Dkt. No. 103-1, at 16–20, 28–29). Plaintiff opposes Defendants’ motion. (Dkt. No. 132-4, at 36–42). It is well-settled that, to establish a defendant's individual liability in a suit brought under Section 1983, a plaintiff must show “the defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted). A plaintiff must “allege a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There is “no special rule for supervisory liability,” and “a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The Second Circuit has explained that “[t]he factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary,” and “[t]he violation must be established against Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 91 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 the supervisory official directly.” Id. (second alteration in original) (internal quotations and citations omitted). a. Mail Tampering (Interference with Legal Mail) “[A] prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment” Bacon v. Phelps, 961 F.3d 533, 543 (2d Cir. 2020) (internal citations omitted). As the Second Circuit has explained, this right is violated if a prison “regularly and unjustifiably” interferes with an incarcerated individual's legal mail. Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012) (quoting Davis v. Goord, 320 F.3d 346, 351 (2003)). Unconstitutional interference with mail occurs when, for example, prison officials engage in “an ongoing practice of unjustified censorship” or delay the delivery of mail to a prisoner in a way that “cause[s] him to miss court deadlines or in any way prejudice[s] his legal actions.” Davis, 320 F.3d at 352. b. Denial of Access to Courts *9 The First Amendment right to petition the government, which applies to the states through the Fourteenth Amendment, “extends to all departments of the Government, including the Courts.” Friedman v. Bloomberg L.P., 884 F.3d 83, 90 (2d Cir. 2017) (citation omitted). “A plaintiff's constitutional right of access to the courts is violated where government officials obstruct legitimate efforts to seek judicial redress.” Id. (citation and internal quotation marks omitted). Circuit Courts of Appeals have “recognized two variants of right-of-access claims”: (1) “forward-looking suits,” in which plaintiffs allege that “ ‘systemic official action’ frustrated their ability to file a suit,” and (2) “backward-looking” claims “covering suits that ‘cannot now be tried (or tried with all material evidence), no matter what official action may be in the future.’ ” Sousa v. Marquez, 702 F.3d 124, 127–28 (2d Cir. 2012) (citation omitted). A plaintiff may have a backward-looking right-of-access claim, for example, where the official action “caused the loss or inadequate settlement of a meritorious case.” Id. at 128. Moreover, the Second Circuit has not recognized the viability of backward-looking right-of-access claims. See id. (noting that the “viability of backward-looking right-of-access claims is far from clear in this Circuit” and declining to decide the issue); Kern v. Contento, No. 21-cv-1672, 2022 WL 1112767, at *3, 2022 U.S. App. LEXIS 10073, at *7 (2d Cir. Apr. 14, 2022) (summary order) (noting that Sousa “declined to decide whether to follow other circuits in recognizing a backward- looking claim”). c. Sheehan and Leone As discussed above, the only named Defendants with any connection to Plaintiff's difficulties obtaining copies and advance legal postage while he was at Collins, are two DOCCS officials: Sheehan and Leone. 7 Viewed in the light most favorable to Plaintiff, the evidence of their involvement at this time is: (1) Plaintiff's April 17, 2021 letter to Sheehan reporting that he “not receiving photocopies of legal material and legal cases from the Law Library at Collins,” (Dkt. No. 133, at 3); and (2) Leone's May 6, 2021 response (on Sheehan's behalf), (id. at 10). To the extent Plaintiff asserts claims of mail tampering and denial of access to the courts against Sheehan arising from her referral of Plaintiff's April 17, 2021, letter to Leone for response, he has failed to present evidence from which a factfinder could find Sheehan personally involved. See Vega v. Artus, 610 F. Supp. 2d 185, 199 (N.D.N.Y. 2009) (stating that facility superintendent's act of “referring [the plaintiff's] letters to staff for investigation is not sufficient to establish [his] personal involvement”); Viera v. Sheahan, 531 F. Supp. 3d 666, 672 (W.D.N.Y. 2021) (finding that the defendant's “receipt” of the plaintiff's “letter and referral of the matter to a subordinate does not establish his personal involvement in the alleged failure to process Plaintiff's mail”). And, although an official's response to a letter may constitute evidence of personal involvement, see, e.g., Young v. Choinski, 15 F. Supp. 3d 172, 191 (D. Conn. 2014) (“[W]hen a supervisory prison official receives a particular grievance, personally reviews it, and responds and/or takes action in response, such conduct may constitute sufficient ‘personal involvement’ to establish individual liability for the alleged constitutional violation.”), the Court concludes that Leone's May 6, 2021 letter responding on Sheehan's behalf, (Dkt. No. 133, at 10), fails to raise an issue of fact as to any involvement by Leone in interfering with legal mail or denying Plaintiff access to the courts. *10 In his April 17, 2021, letter to Sheehan, Plaintiff explained that he needed to “notify 63” different “agencies, courts and government officials that [he has] moved” from Attica to Collins,, but that Collins has “denied access to copies,” that the “procedure changes” each time he goes to the library, and that the DSP and Superintendent had not responded to his inquiries. (Dkt. No. 133, at 3). Plaintiff also wrote that he was having a “problem with obtaining legal copies and cases as need to work on [his] several legal matters.” (Id.). In her response on Sheehan's behalf, Leone noted Plaintiff's claim of “not receiving photocopies Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 92 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 of legal materials and legal cases” from the Collins law library, referred Plaintiff to DSP Schneider's April 27, 2021 memo 8 should he require advance funds and to DOCCS “Directives 4483 & 4421” if he had “any other concerns,” advised Plaintiff that a letter to DOCCS “Central Office staff” did not replace a facility's “problem resolution channels,” and encouraged Plaintiff to use the grievance process. (Id. at 10). Although it is undisputed that Plaintiff was litigating 18 cases during the relevant time period, Plaintiff does not cite any specific case in connection with denial of legal copies (the subject of his letter to Sheehan and Leone's response) while at Collins. There is evidence that on May 25, 2021, DSP Schneider denied Plaintiff's May 17, 2021 request for an advance on postage for documents Plaintiff sought in connection with an “Order to Show Cause” issued by the Monroe County Supreme Court, in an Article 78 proceeding where Plaintiff was “seeking to compel” the Monroe County Sheriff to comply with a Freedom of Information Law request. (Dkt. No. 134-1, at 1, 73 (Dean v. Baxter, Monroe County Sheriff, filed in Monroe County Supreme Court, Index No. 2021-537); Dkt. No. 45, ¶¶ 12– 13). Although there is evidence that DSP Schneider also denied other requests regarding legal copies or mail, (see Dkt. No. 133, at 8 (May 4, 2021 memorandum regarding “Legal Copies” and denying “requested advance”); id. at 14 (May 24, 2021 memorandum regarding “Legal Copies” and denying request for “advances for legal mail”)), nothing in the record ties those requests to any of the cases Plaintiff was litigating at that time or to conduct by Leone. Thus, no reasonable factfinder could conclude that Leone, in responding to Plaintiff's letter regarding difficulties obtaining legal copies, was personally involved in interfering with Plaintiff's legal mail or obstructing Plaintiff's access to the courts in connection with his Monroe County Article 78 proceeding or any other case. 9 Accordingly, Defendants Sheehan and Leone are dismissed for lack of personal involvement. 3. Exhaustion of Administrative Remedies Defendants move for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies prior to filing this action, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Dkt. No. 103-1, at 11–16). In support of their motion, Defendants have filed declarations by Joshua Becker and Erin Pfendler, the Incarcerated Grievance Program Supervisors (“IGPS”) at Collins and Marcy, respectively. (Dkt. Nos. 103-11, 103-31). Both Becker and Pfendler state that during the relevant time period, Plaintiff filed no “grievances at all.” (Dkt. No. 103-11, ¶ 8; Dkt. No. 103-31, ¶ 8). Plaintiff responds that he “filed numerous grievances that never went anywhere” and argues that his reports to DOCCS and other state officials regarding his problems with legal copies and legal mail satisfy the PLRA's exhaustion requirement. (Dkt. No. 132-4, at 14– 16). Plaintiff also argues that there “is no working grievance system in Collins or Marcy.” (Id. at 14–15). *11 The PLRA prescribes limitations on an inmate's ability to bring civil actions with respect to prison conditions. Specifically, the PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)), abrogated on other grounds by Ross v. Blake, 578 U.S. 632, 639–42, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016). Proper exhaustion of administrative remedies is dependent on the rules and regulations of the prison in which the grievance is filed; that is, an inmate of a New York State DOCCS facility must satisfy the requirements, including procedural and substantive requirements, set forth by DOCCS regulations to properly exhaust administrative remedies. See Garcia v. Heath, 74 F.4th 44, 46 (2d Cir. 2023); see also Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (“[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” (alteration in original) (quoting Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007))). Failure to exhaust available administrative remedies is an affirmative defense that must be raised by the defendants. See Jones, 549 U.S. at 216, 127 S.Ct. 910. Therefore, the defendants “bear the initial burden of establishing the affirmative defense of non-exhaustion ‘by pointing to “legally sufficient sources” such as statutes, regulations, or grievance procedures’ which demonstrate that ‘a grievance process exists and applies to the underlying dispute.’ ” Williams v. Correction Officer Priatno, 829 F.3d 118, 126 n.6 (2d Cir. 2016) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 93 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 788 F.3d 54, 59 (2d Cir. 2015)). “If the defendants meet this initial burden, administrative remedies may nonetheless be deemed unavailable if the plaintiff can demonstrate that other factors ... rendered a nominally available procedure unavailable as a matter of fact.” Hubbs, 788 F.3d at 59 (citing Hemphill v. New York, 380 F.3d 680, 687–88 (2d Cir. 2004), abrogated on other grounds by Ross, 578 U.S. at 639–42, 136 S.Ct. 1850). Under DOCCS regulations, an inmate must generally submit a grievance within twenty-one days of an alleged occurrence, see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1), but may request an extension within forty-five days of the alleged occurrence, see id. § 701.6(g)(1)(i)(a). An inmate's grievance “should contain a concise, specific description of the problem and the action requested.” Id. § 701.5(a)(2). This requirement, the Second Circuit has held, is analogous to the requirements of notice pleading. See Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006); see also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (“The PLRA's exhaustion requirement is ... is not dissimilar to the rules of notice pleading.”). “As in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief[;] [a]ll the grievance need do is object intelligibly to some asserted shortcoming.” Johnson, 380 F.3d at 697 (citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). Subsequent procedural exhaustion of a filed grievance then involves three steps: (1) the grievance is reviewed and resolved by the Inmate Grievance Resolution Committee (“IGRC”), N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b); (2) the grievant appeals an adverse decision of the IGRC to the superintendent of the facility at which the grievance was filed, id. § 701.5(c); and (3) the grievant appeals an adverse decision of the superintendent to the Central Office Review Committee (“CORC”), id. § 701.5(d). 10 Upon the rendering of CORC's decision, or if CORC fails to respond to a grievance within thirty days of its appeal under the third step of the process, the grievant has exhausted administrative remedies. See Hayes, 976 F.3d at 269–70. *12 “Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross, 578 U.S. at 638, 136 S.Ct. 1850. The Supreme Court in Ross v. Blake identified, inexhaustively, see Williams, 829 F.3d at 123 n.2, “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Ross, 578 U.S. at 643, 136 S.Ct. 1850. “First, an administrative remedy may be unavailable when ‘it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.’ ” Williams, 829 F.3d at 123 (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). “Second, ‘an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.’ ” Id. (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). “Third, an administrative remedy may be unavailable ‘when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’ ” Id. at 124 (quoting Ross, 578 U.S. at 644, 136 S.Ct. 1850). Here, Defendants have established that the grievance procedures contemplated by DOCCS regulations applied to inmates at Collins and Marcy. 11 (Dkt. No. 103-2, ¶¶ 12–14; Dkt. No. 103-11, ¶ 5). The question before the Court, then, is whether Plaintiff has raised a material issue of fact as to (1) whether he exhausted these administrative remedies, and (2) if he did not, whether the remedies were available to Plaintiff within the meaning established by Ross and Williams. a. Alleged Grievances at Collins i. April 27, 2021 Grievance and Exhaustion Based on Continuing Violation Although there are no named defendants that could be held responsible for the alleged constitutional violations at Collins, the Court has considered Plaintiff's allegation of having filed an April 27, 2021 grievance at Collins in order to assess whether there was a grievance that could support exhaustion based on a continuing violation. Plaintiff asserts that he filed a grievance on April 27, 2021, at Collins “about being denied to make legal copies and send legal mail.” (Dkt. No. 133, at 46). At his deposition, Plaintiff stated that he had a “copy of the grievance,” (Dkt. No. 103-5, at 81–82), but there is no copy of the grievance in the record before the Court. According to the verified amended complaint, Plaintiff filed this “Inmate Grievance” on April 27, 2021, “with the IGRC Office at Collins by facility mail as required,” 12 (Dkt. No. 45, ¶ 7; see also Dkt. No. 103-5, at 80 (testifying that on April 27, 2021, he “filled the grievance out and put it in the mailbox address to IGRC”)), but never received any response, (Dkt. No. 45, ¶ 7). Also, according to the verified Amended Complaint, on April 27, 2021, Plaintiff “sent a follow up notice to DSP Schneider about legal copies and legal mail ... and attached a copy of the Inmate Grievance filed,” (Dkt. No. 45, ¶ 7; but see Dkt. No. 133, at 6 (DSP Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 94 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 Schneider's response acknowledging his receipt of Plaintiff's April 27 letter does not refer to the grievance that purportedly accompanied the letter)). Plaintiff has also adduced some evidence that he followed up on the grievance. Plaintiff testified that he subsequently wrote to the “superintendent at Collins, didn't get a response” and “filed an appeal with the superintendent at Collins, didn't get a response” and that he undertook these actions “in ’21.” 13 (Dkt. No. 103-5, at 80–81). In a letter dated June 13, 2022, more than a year after purportedly filing the grievance, Plaintiff sent a letter to Pfendler, the Marcy grievance supervisor, inquiring into “the status of a grievance [he] filed on or about April 27, 2021 at Collins Correctional Facility, about being denied to make legal copies and send legal mail.” (Dkt. No. 133, at 46). On Pfendler's recommendation, (id. at 47), Plaintiff sent a letter to the Collins Grievance Supervisor, “requesting information as to the status of a grievance [he] filed on/or about April 27, 2021 while” at Collins and described the grievance as “based [sic] being denied the right to advance legal copies and advanced legal mail,” (id. at 48 (letter dated June 21, 2022)). On September 1, 2022, Plaintiff notified Pfendler that he had not received a response from Collins and inquired how to proceed. (Dkt. No. 133, at 49). On June 15, 2023, Plaintiff testified that he “recently” sent a letter to the Central Office Review Committee regarding the April 27, 2021 grievance. (Dkt. No. 103-5, at 82). *13 Defendants dispute Plaintiff's assertion that he filed a grievance on April 27, 2021, or at any other time while he was at Collins. In a declaration, Becker, the Collins Grievance Program Supervisor states that Collins has no record of this grievance and that Plaintiff filed no grievances “while incarcerated at Collins from April 2021 through July 2021.” (Dkt. No. 103-11, ¶ 8). In addition, none of the memoranda issued by DSP Schneider following Plaintiff's purported filing of the grievance (and sending a copy to DSP Schneider) references a grievance. (Dkt. No. 133, at 6, 8, 14, 39). In Williams v. Correction Officer Priatno, the Second Circuit found that when a grievance is delivered by an inmate in a Special Housing Unit to a correction officer for filing and that grievance is never subsequently filed or answered, DOCCS “regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies.” 829 F.3d at 124. “On their face,” the Second Circuit held, “the regulations only contemplate appeals of grievances that were actually filed.” Id. And under the circumstances in that case, “the grievance procedures that were technically available to [the plaintiff] so opaque and confusing that they were, ‘practically speaking, incapable of use,’ ” and therefore, “in giving his grievance to the correction officer, [the plaintiff] exhausted all administrative remedies that were available to him.” Id. at 126 (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). However, “mere contentions or speculation” regarding mishandling of a grievance “do not create a genuine issue of material fact when there is no evidence to support the allegations.” Jackson v. Moore, No. 21-cv-1001, 2023 WL 4710869, at *6, 2023 U.S. Dist. LEXIS 65814, at *15 (N.D.N.Y. Apr. 14, 2023) (quoting Rodriguez v. Cross, No. 15-cv-1079, 2017 WL 2791063, at *7, 2017 U.S. Dist. LEXIS 71337, at *19 (N.D.N.Y. May 9, 2017)), report and recommendation adopted, 2023 WL 4711091, 2023 U.S. Dist. LEXIS 126588 (N.D.N.Y. July 24, 2023)). Rather, a plaintiff must provide some corroboration of a claim that a grievance was submitted, such as evidence demonstrating when the grievance was written, the content of the grievance, how the plaintiff attempted to file the grievance, or that the plaintiff followed up with prison officials on the disposition of the grievance. See Simpson v. Price, No. 19-cv-1413, 2022 WL 336540, at *3, 2022 U.S. Dist. LEXIS 20857, at *7–8 (N.D.N.Y. Feb. 4, 2022); see also Stephanski v. Allen, No. 18- cv-76, 2020 WL 806331, at *9, 2020 U.S. Dist. LEXIS 11028, at *22–25 (N.D.N.Y. Jan. 22, 2020) (“Although [the plaintiff] fails to proffer copies of the grievance(s) he attempted to file ..., his claims are supported by evidence suggesting that he attempted to file a grievance ... including: (1) [the plaintiff]’s deposition testimony; (2) [the plaintiff]’s letter to the ... Grievance Committee; (3) [the plaintiff]’s letter to [a grievance supervisor]; (4) [a subsequent grievance]; and (5) [the plaintiff]’s Appeal Statement referring the Superintendent's decision to CORC for review.”), report and recommendation adopted, 2020 WL 777268, 2020 U.S. Dist. LEXIS 26918 (N.D.N.Y. Feb. 18, 2020). As discussed, although Plaintiff does not name any Collins staff members as defendants in this case, he has sued the two DOCCS officials with whom he corresponded while at Collins: Sheehan, DOCCS Deputy Commissioner and Counsel; and Leone, DOCCS Supervising Librarian and Law Library Coordinator. Plaintiff could not recall who, if anyone, he named in the April 27 grievance, but “[t]he New York IGP regulations do not state that a prisoner's grievance must name the responsible party.” See Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009). “[T]he IGP regulations offer the Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 95 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 general guidance that a grievance should ‘contain a concise, specific description of the problem,’ and the complaint form does not instruct the inmate to name the officials allegedly responsible for misconduct.” Id. (citing N.Y. Comp. Codes R. & Regs., tit. 7, § 701.7(a)(1)(i)); see also White v. Williams, No. 9:12-cv-1775, 2016 WL 4006461, at *5, 2016 U.S. Dist. LEXIS 81972, at *13 (N.D.N.Y. June 22, 2016) (“[I]nsofar as Plaintiff's supervisory claims relate to underlying conduct that was the subject of a fully exhausted grievance process, a separate grievance detailing the supervisory liability, or specifically naming the supervisors, is not a prerequisite to suit.”), report and recommendation adopted, 2016 WL 4005849, 2016 U.S. Dist. LEXIS 96337 (N.D.N.Y. July 25, 2016); Jones, 549 U.S. at 217, 127 S.Ct. 910 (“[N]othing in the PLRA statute imposes a ‘name all the defendants’ requirement.”); Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“[W]e are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.”). *14 Here, even assuming that Plaintiff satisfied his burden with respect to an April 27 grievance about “being denied to make legal copies and send legal mail,” Plaintiff has not shown that this falls within the exception the Second Circuit identified in Johnson v. Killian, pursuant to which a prior grievance might serve to exhaust “administrative remedies with respect to [a] continuing violation” of constitutional rights. 680 F.3d 234, 239 (2d Cir. 2012). In Johnson, the plaintiff filed and exhausted a grievance “concerning limitations on congregational prayer” at a Federal Correctional Institution in Otisville, New York. 680 F.3d at 236. The plaintiff's religious beliefs required congregational prayer five times a day, but the Otisville policy provided the prison chapel only once a day. Id. After the plaintiff exhausted his grievance, Otisville “substantially ceased enforcing the relevant policy.” Id. at 236–37. Two years later, however, following the arrival of a new warden, the policy “restricting congregational prayer was reimplemented” and the plaintiff filed suit without filing a second grievance. Id. at 237. Concluding that the plaintiff's first grievance was sufficient to exhaust his administrative remedies regarding his congregational prayer policy claim, the Second Circuit vacated the district court's dismissal of this claim. Id. In reaching this conclusion, the Circuit recognized that “[t]he purpose of the PLRA is to reduce the quantity and improve the quality of prisoner suits[,] and to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case” and found the plaintiff's prior grievance “provided the prison administration with notice of, and an opportunity to resolve, the same problem that would continue intermittently” through the two years that followed. Id. at 238 (quoting Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011)). It explained that because the issue the plaintiff “would have raised” in a second grievance—“the inadequacy of the spaces and times allotted for congregational prayer—was identical to the issue he exhausted” in his prior grievance, the plaintiff's prior grievance “was sufficient to exhaust his administrative remedies with respect to the continuing limitations on congregational prayer at FCI Otisville.” Id. at 239. However, the Circuit expressly limited its holding “to cases in which a prior grievance identifies a specific and continuing complaint that ultimately becomes the basis for a lawsuit” and stressed “that generalized complaints regarding the conditions of an inmate's confinement will [not] suffice to shortcut the administrative remedy process.” Id. In this case, even viewed in the light most favorable to Plaintiff, the alleged April 27 grievance about “being denied to make legal copies and send legal mail,” (Dkt. No. 133, at 46), suggests, at best, a generalized complaint about legal copies and legal mail at Collins. Thus, although Plaintiff contends that he continued to have difficulties obtaining legal copies and advance postage for legal mail there is no basis on which to conclude that an April 27 grievance was sufficient to exhaust claims arising at Marcy. See Rose v. Annucci, No. 16-cv-787, 2018 WL 2729259, at *6, 2018 U.S. Dist. LEXIS 67017, at *15 (N.D.N.Y. Apr. 19, 2018) (finding that while “hypothetical enforcement concerns may have been part of plaintiff's motivation at the time that he filed” prior grievances, he failed to show “that the issues raised” in prior grievances asserting that religious meal form “was an unconstitutional procedural requirement for his attendance at the Eid-Ul-Adha festival,” challenging “the registration deadline for Ramadan,” and asserting the “belief that he was being penalized for refusing to sign the Religious Meal Form,” were “identical with” the plaintiff's later claim that he “signed the Religious Meal Form, but was penalized when he stopped attending group Ramadan meals and refused to take part in counseling”), report and recommendation adopted, 2018 WL 2727874, 2018 U.S. Dist. LEXIS 94735 (N.D.N.Y. June 6, 2018). Thus, even assuming Plaintiff exhausted administrative remedies regarding the April 27, 2021 grievance at Collins, it was not sufficient to place DOCCS officials at Marcy 14 on notice that Plaintiff was Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 96 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 being wrongfully denied legal copies and advance postage for legal mail. Accordingly, the Court concludes that Plaintiff's alleged April 27, 2021 grievance fails to raise a triable issue of fact with respect to exhaustion. ii. June 15, 2021 Grievance *15 During his deposition, Plaintiff testified that he did not file any grievances at Collins, other than the one he filed on April 27, 2021. (Dkt. No. 103-5, at 84–85). However, in the declaration Plaintiff filed in opposition to Defendants’ motion for summary judgment, Plaintiff states that he filed “a grievance[ ] with Collins on ... June 15, 2021” that was “related to issues with not being able to send 10 pieces of legal mail by advance on May 25, 2021, and was refused by Collins.” (Dkt. No. 132-3, at 4, 8–9). “The ‘sham issue of fact’ doctrine ‘prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party's previous sworn testimony.’ ” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014) (emphasis omitted) (quoting In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013)). Thus, Plaintiff's contradictory declaration in insufficient to create a triable issue of fact as to whether he filed a second grievance while at Collins. And, in any event, Plaintiff offers no evidence that would corroborate his filing of this grievance. Plaintiff cites his handwritten “Mail Log” as evidence that he filed this grievance, but it contains no supporting factual details and only states the following: “June 15, 2021, sent grievance and claim form superintendent.” (Dkt. No. 136, at 24). Nor has Plaintiff provided copies of a June 15 grievance or any evidence of follow up. Accordingly, the Court finds Plaintiff's belated assertion regarding the filing of a second grievance at Collins fails to create a material issue of fact as to exhaustion. b. Alleged Grievances at Marcy i. September 29, 2021 Grievance The Amended Complaint alleges that on or about September 29, 2021, Plaintiff sent a letter to Patrick Reardon, the Superintendent of Marcy, regarding Plaintiff's “problems with” being “denied access to the Courts” and stating that Plaintiff was enclosing a grievance for “review and filing.” (Dkt. No. 45, at 13, 34). In opposition to Defendants’ motion for summary judgment, Plaintiff filed a copy of a September 30, 2021 letter he sent to Superintendent Reardon outlining the difficulties he was having with Debejian with respect to legal mail and legal copies and stating he has “enclosed a grievance to be filed, please.” (Dkt. No. 142, at 40). There does not appear to be a copy of this grievance in the record and there is no evidence Plaintiff properly filed this grievance. In any event, sending a grievance to the superintendent does not comply with DOCCS's inmate grievance procedure. See Beatty v. Goord, 210 F. Supp. 2d 250, 255–56 (S.D.N.Y. 2000) (“[W]riting letters to ... the [s]uperintendent ... [is] not sufficient to comply with the Inmate Grievance Program”) (citation omitted). ii. June 9, 2022 Grievances During his June 15, 2023, deposition, Plaintiff was asked whether, after filing the April 27, 2021, grievance, he filed another grievance before April 19, 2023. (Dkt. No. 103-5, at 85). Plaintiff responded “no, I wouldn't have.” (Id. at 84). Plaintiff explained that “the grievance that I had out there was already running as far ... as I knew” and that after the April 27, 2021 grievance, he “went over and above the grievance process and ... started contacting everybody ... because obviously grievances weren't working.” (Id. at 85). 15 Following the deposition, Plaintiff sent a letter (dated the same day as the deposition) to defense counsel “to follow up on some of the questions [he was asked] during the deposition.” 16 (Dkt. No. 133-5, at 6). Plaintiff explained that he reviewed his “mail log books to see if there was any grievance I filed while at Marcy” and “came across some entries, and one is on June 9, 2022, that I sent a Grievance to IGRC, two of them actually. One was about Collver and Debejian, as to advance legal mail and legal copies.... The other one dealt with not receiving my monthly trust fund account statements.” 17 (Id. at 6–7). Plaintiff acknowledged, however, that he had only mentioned the grievance regarding monthly statements in the Amended Complaint. (Id. at 7 (citing Dkt. No. 45, ¶ 136 (“June 9, 2022, Dean sent grievance to IGRC in person about missing monthly statements.”)). Even crediting the statements in Plaintiff's letter (which appears to be verified, (id. at 14)), Plaintiff has not provided the Court with a copy of any information regarding how he filed this grievance or any documentation of any such grievance; there is no evidence that he made follow-up inquiries regarding a June 9, 2022 grievance, see, e.g., Gibbs v. Gadway, No. 19-cv-281, 2019 WL 5191506, at *5, 2019 U.S. Dist. LEXIS 177879, at *2 (N.D.N.Y. Oct. 15, 2019) (finding conclusory claim subject to dismissal where copies of grievance appeals allegedly filed were not submitted as evidence), report and recommendation adopted, 2020 WL 1227156 at *3, 2020 U.S. Dist. LEXIS 43719 at *7 (N.D.N.Y. Mar. 13, 2020). Accordingly, the Court finds Plaintiff has Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 97 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 failed to identify a material issue of fact with respect to his purported June 9, 2022 grievance. iii. Availability of Grievance System at Marcy 18 *16 Although Plaintiff has failed to raise a material issue of fact as to whether he filed any grievance at Marcy, the Court has, for the sake of completeness, considered his assertion that the administrative grievance process was “unavailable” to him at Marcy because prison officials took grievances and threw them away or retaliated when inmates filed grievances. (Dkt. No. 132-4, at 14–15; see also (Dkt. No. 103-5, at 83 (Plaintiff testifying that the grievances he filed at Marcy had “a habit of disappearing” and that he did not know “if it's the officers taking the grievances and throwing them away when they see who they're addressed to or what's going on”)). Defendants reply that Plaintiff's contention that there is no working grievance system at Marcy is “untrue and baseless.” (Dkt. No. 160, at 13). As noted above, Defendants have filed a declaration by Pfendler, the Marcy Grievance Supervisor, who states that “Marcy currently has a fully functioning grievance process and had a fully functioning grievance process from July 2021 through November 2022,” while Plaintiff was at Marcy. (Dkt. No. 103-31, ¶ 6). Pfendler further states that: Incarcerated Individuals housed in general population at Marcy are provided incarcerated grievance complaint forms and envelopes upon request. Incarcerated Individuals can file their grievance complaints by submitting their grievance complaints in a sealed envelope to ensure confidentiality. An Incarcerated Individual can deposit a grievance complaint, addressed to the Incarcerated Grievance Program office, in the intra-facility mailbox that is located on their housing unit. (Id. ¶ 7). In his declaration in opposition to summary judgment, Plaintiff states that “Marcy's grievance system” is nonexistent “as there is problems with staff interfering with grievances by intercepting the mail or stealing the grievance from the grievance office or retaliating for ones that had already been filed in the system.” (Dkt. No. 132-3, ¶ 12). In support of this statement, Plaintiff filed seven nearly identical declarations by individuals incarcerated at Marcy, including one by Plaintiff himself, stating: [A]ll I/Is in Marcy who spent anytime here during those time frames, and still ongoing to date, know that if you put a grievance in the mailbox it will never make it to the Grievance office. The COs will remove it from the mailbox and destroy it and then retaliate against the person trying send the grievance, unless it is minor and note related to Marcy. There is no function grievance process per the Constitution of otherwise at Marcy ... since at the very minimum July 2021. (Dkt. No. 133-3, at 3). One of the declarations by an incarcerated individual states that on August 15, 2022, the declarant observed Plaintiff “being told by a Sgt. that he would have to move out of B-2 due to an issue that alleged he had with them about a grievance.” (Dkt. No. 133-4, at 3). In his declaration in opposition to summary judgment, Plaintiff identifies the Marcy Sergeant who allegedly retaliated against him as Thomas Coomber, and states that Coomber moved him in retaliation for “a grievance Plaintiff tried to file on/ or about August 12, 2022, by putting into the mailbox in the B-2 Dorm.” 19 (Dkt. No. 132-3, at 8). Plaintiff states that he had forgotten about the incident until another incarcerated individual reminded him on October 14, 2024. (Id.). In the Second Circuit, “[t]he test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available.” Hemphill, 380 F.3d at 688 (quotation marks omitted). And as to retaliation, “[i]t is well settled that a plaintiff's ‘generalized fear’ of retaliation ‘is insufficient to excuse his failure’ to file a grievance.” Hall v. Annucci, No. 19-cv-5521, 2022 WL 3903255, at *9, 2022 U.S. Dist. LEXIS 156492, at *24–25 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 98 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 (S.D.N.Y. Aug. 30, 2022) (quoting Little v. Mun. Corp., City of New York, No. 12-cv-5851, 2017 WL 1184326, at *12, 2017 U.S. Dist. LEXIS 46944, at *32 (S.D.N.Y. Mar. 29, 2017)), aff'd, No. 22-2031, 2023 WL 7212156, 2023 U.S. App. LEXIS 29103 (2d Cir. Nov. 2, 2023). *17 In this case, the allegations in the declarations filed by Plaintiff and six individuals incarcerated at Marcy attesting to the destruction of non-minor grievances and retaliation “against the person trying to send the grievance” are devoid of factual detain and constitute generalized allegations of retaliation or interference. (Dkt. No. 133-3, at 3). There is no indication that the alleged retaliation for a grievance Plaintiff attempted to file in August 2022 has any connection to this action. Moreover, this cursory allegation is unaccompanied by facts suggesting threats or intimidation, and was insignificant insofar as Plaintiff admittedly did not recall it two years later. (Dkt. No. 132-3, ¶ 17). The “sworn statements” by Plaintiff and the six other inmates that officers removed and destroyed grievances are insufficient to create a question of fact as to the availability of the Marcy grievance system. Neither Plaintiff nor the inmates who filed declarations offer any factual details or specific examples. “Courts within the Second Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.” Blake v. Porlier, No. 18-cv-1008, 2019 WL 7484052, at *5, 2019 U.S. Dist. LEXIS 173760, at *12–13 (N.D.N.Y. Oct. 4, 2019) (quotation marks omitted), report and recommendation adopted, 2020 WL 58613, 2020 U.S. Dist. LEXIS 1207 (N.D.N.Y. Jan. 6, 2020); see also Khudan v. Lee, No. 12-cv-8147, 2016 WL 4735364, at *6, 2016 U.S. Dist. LEXIS 122217, at *20 (S.D.N.Y. Sept. 8, 2016) (holding that under Ross, mere stand alone contentions of mail tampering without support and particularity cannot deem administrative remedies unavailable). Moreover, although Plaintiff states in his declaration that there was a “problem” with staff at Marcy “retaliating for [grievances] that had already been filed,” (Dkt. No. 132-3, ¶ 12), he does not state in his declaration or verified Amended Complaint that he did not file grievances at Marcy because he was afraid of retaliation. Thus, the Court finds Plaintiff has failed to identify a material issue of fact as to the exhaustion, or availability, of administrative remedies. Accordingly, Defendants’ motion for summary judgment dismissing the Amended Complaint on the ground that Plaintiff failed to exhaust his administrative remedies is granted. V. MOTION TO SEAL Plaintiff moves to seal the sworn statements he submitted in opposition to Defendants’ motion for summary judgment. (Dkt. No. 132 (citing Dkt. Nos. 133-3, 133-4)). Plaintiff asserts that disclosure of the contents of the statements “will cause retaliation and/or serious physical and mental harm” to the incarcerated individuals who provided the statements. (Dkt. No. 132-1, ¶ 4). “[D]ocuments submitted to a court for its consideration in a summary judgment motion are –as a matter of law—judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006). That “strong presumption” must be balanced against, as relevant here, “the privacy interests of ‘innocent third parties.’ ” Wiav Sols. Inc. v. HTC Corp., No. 19-cv-4978, 2021 WL 871415, at *1, 2021 U.S. Dist. LEXIS 43997, at *3 (S.D.N.Y. Mar. 9, 2021) (quoting S.E.C. v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir. 2001)). “However, the fact that a third party's privacy interests are at stake does not obviate the need for the proposed redactions to be narrowly tailored to protect those interests.” Id. Here, Plaintiff seeks wholesale sealing of each sworn statement, but as the statements are nearly identical and contain no identifying information other than the individual's “NYS DIN” number and name, there appears to be little, if any, privacy interest implicated by the substantive contents of the statement. However, as third parties making statements in support of Plaintiff, the publication of the names and DIN numbers of these incarcerated individuals may implicate certain privacy interests, and thus redaction is warranted. The Court therefore finds that the redaction of names and DIN numbers from each statement is necessary to protect each individual's privacy interest, “is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (quotation omitted). However, Plaintiff offers no explanation for sealing his own sworn statement, (Dkt. No. 133-3, at 16–17), a letter dated August 17, 2022, (Dkt. No. 133-4, at 4–5), a handwritten note from a Marcy officer to Plaintiff, (Dkt. No. 133-4, at 6), or the list of names and DIN numbers of individuals housed at Collins and Marcy at the same time as Plaintiff, (Dkt. No. 133-3, at 22). Thus, as Plaintiff has failed to identify any interest Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 99 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 that outweighs the strong presumption of access to these documents, his motion to seal these documents is denied. *18 Accordingly, Plaintiff's motion to seal is granted in part and denied in part as follows: the Clerk is directed to redact the names and DIN numbers from Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and unseal the remainder of both documents. 20 VI. CONCLUSION For these reasons, it is hereby ORDERED that the Report and Recommendation (Dkt. No. 145) is REJECTED as moot; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 103) is GRANTED; and it is further ORDERED that as the time period for exhaustion of administrative remedies has expired, the Amended Complaint (Dkt. No. 45) is DISMISSED; and it is further ORDERED that Plaintiff's motion to seal (Dkt. No. 132) is GRANTED in part and DENIED in part as follows: the Clerk is directed to redact the names and DIN numbers from Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and unseal the remainder of both documents; and it is further ORDERED that the Clerk is directed to enter judgment accordingly, close this case, and serve a copy of this Order upon the parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Slip Copy, 2025 WL 1811183 Footnotes 1 Magistrate Judge Lovric accepted Defendants’ statement of undisputed facts without considering the verified Amended Complaint or the context in which Defendants’ record citations arose. For example, Magistrate Judge Lovric recommended that the Court find Defendants’ assertion that “[t]he relevant time period for this action is July 15, 2021 (when Plaintiff was transferred to Marcy), through November 15, 2022” to be “supported” based principally on a partial sentence in prior Order summarizing Amended Complaint. (Dkt. No. 145, at 4–5; see Dkt. No. 44, at 6). However, a basic review of the Order (or of the Amended Complaint) dispels any notion that this action solely concerns events at Marcy. (See supra Part IV.B.1). In any event, as the Report and Recommendation is moot in light of the additional briefing, the Court does not further consider it. 2 The facts are drawn from Defendants’ statement of material facts and Plaintiff's response to Defendants’ statement of material facts, (Dkt. Nos. 103-2, 132-3), to the extent the facts are supported by “particular parts of materials in the record,” including, among other things, depositions, affidavits or declarations, or other documents. Fed. R. Civ. P. 56(c). The Court has also considered Plaintiff's Amended Complaint, which is verified. (Dkt. No. 45); see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (explaining that a “verified complaint is to be treated as an affidavit ... and [may] be considered in determining whether material issues of fact exist[.]”) (citations omitted). The facts are construed in the light most favorable to Plaintiff as the non- moving party. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007). 3 Under DOCCS Directive 4421, 7 N.Y.C.R.R. § 721.3(a)(3)(ii), each incarcerated individual receives “a weekly free postage allowance equivalent to five domestic first class one ounce letters,” and “[t]o ensure that indigent incarcerated individuals maintain their right of access to the courts,” facilities “shall ... advance request[s]” for postage for legal mail “if the incarcerated individual has insufficient funds,” and “the balance of unpaid previous advances ... do not exceed $20.” 7 N.Y.C.R.R. § 721.3(a)(3)(iv). However, even if an incarcerated Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 100 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 individual does not qualify for an “advance” on postage because his unpaid balance exceeds $20, Directive 4421, facility staff must consult “with the department's office of counsel” before denying the request. Id. DOCCS Directive 4483 governs “photocopying services,” and provides that if an incarcerated individual “does not have sufficient funds for the purchase of copies ... he is entitled to obtain an advance from the facility when he establishes that the documents sought to be copied are required by the courts and cannot be replicated longhand.” (Dkt. No. 103-22, ¶ 7). “Advances may only be approved by the Law Library Supervisor, in consultation with the Law Library Administrator or the Office of Counsel.” (Id.) (quotation marks omitted). 4 DOCCS Directive 2788, cited by Plaintiff, governs collection and repayment of inmate advances and obligations and “how and when a DOCCS facility will deduct money from an account without the inmate's consent.” Liner v. Fischer, No. 11-cv-6711, 2013 WL 1832316, at *1, 2013 U.S. Dist. LEXIS 62885 (S.D.N.Y. May 2, 2013) (quotation marks omitted). 5 Plaintiff states in the Amended Complaint that on July 14, 2021, while at Collins, he was told “to packup everything” as “he was being transferred to another facility” and that he was “located at Marcy C.F. as of July 16, 2021.” (Dkt. No. 45, ¶¶ 23–24). The actual date of transfer is immaterial. 6 Defendants also cite the Amended Complaint and a page from Plaintiff's deposition in support of their argument. (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 45; Dkt. No. 103-5, at 30)). 7 McKoy is also a DOCCS official and is named as a Defendant. However, there is no evidence of his involvement while Plaintiff was at Collins. Indeed, other than being copied on a June 5, 2022, letter Plaintiff sent to Defendant Collver, (Dkt. No. 45, ¶ 132), the first evidence of any involvement by McKoy is a letter to Plaintiff dated October 22, 2022, (id. ¶ 117-g; Dkt. No. 133, at 53). Accordingly, the Court does not consider McKoy here. 8 This memo does not appear to be in the record. 9 Nor is there evidence of any harm to the Article 78 proceeding as Plaintiff subsequently obtained approval from DSP Schneider on or about July 6, 2021, for copies and mailings in connection with “a new Order to Show Cause from the Monroe County Supreme Court.” (Dkt. No. 45, ¶¶ 20–21, 23; see also Dkt. No. 133, at 39 (approving advances for legal mail and copies)). 10 Complaints of “harassment,” which is not applicable here are subject to a different, expedited procedure. See N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.5(a)(2), 701.8. 11 While Plaintiff denies this factual assertion, he does not meaningfully dispute that DOCCS grievance procedures applied at Collins or Marcy but instead asserts there are problems with staff interference and retaliation. (Dkt. No. 132-3, ¶¶ 11–12). 12 In his declaration, Becker the Collins Grievance Supervisor states an inmate can file a grievance “by submitting their grievance complaints in a sealed envelope to ensure confidentiality. An Incarcerated Individual can deposit a grievance complaint, addressed to the Incarcerated Grievance Program office, in the intra-facility mailbox that is located on their housing unit.” (Dkt. No. 103-11, ¶ 6). 13 Plaintiff also testified that he wrote “[t]he superintendent” and told her that he wanted “to know what happened to the letter that [he] wrote her in ’21, about the missing ... grievance that [he] never got a response from” and that the superintendent said “can't find any record of it” and told Plaintiff to write “a note basically what the grievance is about” and that she would “see if” she could locate it or come up with ... some type of response ... as to what happened” but that the superintendent has not responded further. (Dkt. No. 103-5, at 83–84). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 101 of 290
Dean v. Sheehan, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 14 There appears to be little, if any, guidance in the Second Circuit concerning whether a prior grievance that identifies a specific and continuing complaint, could serve to exhaust administrative remedies as to claims arising at a different correctional facility. 15 Plaintiff further testified: Q. So after you got transferred to Marcy in July 2021, you didn't write any grievances there about what was going on there as far as the mail tampering and the access to courts? A. No. (Dkt. No. 103-5, at 86). 16 The letter is dated June 15, 2023, the same day as the deposition. (Dkt. No. 133-5, at 6). 17 There does not appear to be an entry in Plaintiff's mail logs, (Dkt. No. 136), concerning a grievance on June 9, 2022. 18 To the extent Plaintiff argues there was no working grievance system at Collins, the Court notes that in his declaration, Becker, the Grievance Supervisory at Collins, states that, in accordance with DOCCS Directive 4040, Collins “had a fully functioning grievance process from April 2021 through July 2021,” the time period when Plaintiff was at Collins. (Dkt. No. 103-11, ¶ 5). Plaintiff has presented no evidence disputing this statement. 19 Plaintiff does not suggest this grievance concerned legal copies or legal mail. Further, it does not appear to be mentioned in Plaintiff's mail log, (Dkt. No. 136), or anywhere else in the record. 20 In the reply memorandum, counsel for Defendants disclosed the initials of the third parties who signed the sworn statements and quoted from the documents, which are, at present, not publicly filed. (Dkt. No. 160, at 13–15). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 102 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Neural Magic, Inc. v. Meta Platforms, Inc., D.Mass., March 6, 2023 2004 WL 3691343 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Michael DEVITO, Plaintiff, v. SMITHKLINE BEECHAM CORPORATION d/b/a Glaxosmithkline, Defendant. No. Civ.A. 02–CV–0745NPM. | Nov. 29, 2004. Attorneys and Law Firms De Lorenzo Law Firm, LLP, Schenectady, New York, for Plaintiff, Scott Lieberman, of counsel. Phillips Lytle, LLP, Buffalo, New York, for Defendant, Paul B. Zuydhoek, of counsel. King & Spalding, LLP, Atlanta, Georgia, for Defendant, Chilton D. Varner, of counsel. MEMORANDUM–DECISION AND ORDER MCCURN, Senior J. I. Preclusion Motion........................................................................................................ 4 A. Standard for Admissibility of Expert Evidence........................................................... 6 1. Deborah L. Sweeney.................................................................................................. 9 a. Qualified?.................................................................................................................... 9 2. Kevin W. George, M.D............................................................................................... 10 3. James T. O'Donnell.................................................................................................... 13 a. General Causation...................................................................................................... 14 i. Qualified?..................................................................................................................... 14 ii. Reliability of Testimony?............................................................................................. 17 b. Specific Causation...................................................................................................... 19 c. Warnings..................................................................................................................... 19 i. Qualified?..................................................................................................................... 20 ii. Reliability of Testimony?............................................................................................. 22 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 103 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 II. Summary Judgment Motion........................................................................................ 24 Introduction *1 “Between 1987 and 1997, the percentage of Americans being treated for depression more than tripled nationwide[.]” Shankar Vedantam, Report Shows Big Rise in Treatment for Depression, WASH. POST, Jan. 9, 2002, at A01. In December 1996, plaintiff Michael DeVito became one of those Americans. At that time, his primary care physician prescribed Paxil, a selective serotonin reuptake inhibitor (“SSRI”). Mr. DeVito takes Paxil to this day, despite attempts through the years to discontinue. DeVito claims that he cannot discontinue taking Paxil because he has become “dependent” upon it. Affidavit of Robert E. Glanville (Oct. 20, 2003), exh. A thereto (Complaint) at 2, ¶ 9. More specifically, plaintiff alleges that he has been unable to stop taking Paxil due to what he characterizes as “withdrawal reactions” or “dependency/withdrawal syndrome,” which according to plaintiff “includ[es], but [is] not limited to, dizziness, nausea, shaking, electrical-like shocks and horrible dreams.” Id. at 2, ¶¶ 7 and 6. In this lawsuit plaintiff alleges five causes of action against the manufacturer of Paxil, defendant Smithkline Beecham Corporation d/b/a Glaxo Smithkline (“Glaxo”): (1) fraud; (2) negligence; (3) strict liability; (4) breach of express warranty; and (5) breach of implied warranty. There is a great deal of overlap among these five causes of action. The thrust of plaintiff's complaint is that Glaxo failed to adequately warn of “Paxil's addictive qualities and dependency/withdrawal characteristics[.]” Id. at 6, ¶ 19; see also id. at 3, ¶ 11b); at 7, ¶ 25; and at 8, ¶ 33. 1 Discovery is complete and Glaxo is now moving for summary judgment pursuant to Fed.R.Civ.P. 56. Pursuant to Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S .Ct. 2786 (1993), Glaxo is also moving to preclude the testimony of the three witnesses whom plaintiff is proffering as experts. The court will address Glaxo's motion to preclude first because if any or all of the proffered testimony is inadmissible, then that could significantly impact Glaxo's summary judgment motion in terms of the admissible proof before the court. See Toole v. Toshin Co. Ltd ., No. 00–CV–821S, 2004 WL 2202580, at *4 (W.D.N.Y. Sept. 29, 2004) (granting defense motion to preclude testimony of plaintiff's expert and declining to consider his report on summary judgment motion). I. Preclusion Motion Each of the five causes of action which plaintiff alleges requires him to prove causation. “Under settled New York law, whether the action is pleaded in strict products liability, breach of warranty or negligence, the plaintiff in a products liability case bears the burden of establishing that a defect in the product as a substantial factor in causing the injury.” Prohaska v. Sofamor, S.N.C., 138 F.Supp.2d 422, 434 (W.D.N.Y.2001) (internal quotation marks and citation omitted). Common law fraud likewise “requires a showing of proximate causation, such that the injury is the natural and probable consequence of the defrauder's misrepresentation or ... the defrauder ought reasonably to have foreseen that the injury was a probable consequence of his fraud.” Cyber Media Group, Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d 559, 580 (E.D.N.Y.2002) (internal quotation marks and citation omitted). To establish causation here, plaintiff DeVito “must offer admissible testimony regarding both general causation,” i.e. that Paxil can cause the type of symptoms of which plaintiff complains when attempting to discontinue that drug, “and specific causation,” i.e. that Paxil actually caused DeVito's alleged symptoms upon discontinuation of Paxil. See Amorgianos v. National Railroad Passenger Corporation, 303 F.3d 256, 268 (2d Cir.2002) (citation omitted) (emphasis added); see also Blanchard v. Eli Lilly & Co., 207 F.Supp.2d 308, 314 (D . Vt.2002) (citations omitted) (“Plaintiffs ... must prove both general and specific causation in order to prevail on their claim, that is, that Prozac is capable of causing and in fact did cause the deaths in this case.”). In the context of Paxil litigation, “the general causation question is limited to whether discontinuation from Paxil is capable of causing dizziness, agitation, anxiety, nausea, etc.” In re Paxil Litigation, 218 F.R.D. 242, 249 (C.D.Cal.2003). Specific causation, on the other hand, focuses on whether a plaintiff can “prove that [his] symptoms came from Paxil, as opposed to, for example, the relapse of the underlying illness or the consumption or discontinuation of other drugs.” Id. *2 To establish causation, plaintiff DeVito seeks to offer the testimony of three “expert” witnesses: (1) Mr. John T. O'Donnell, a pharmacist with a Master's Degree in nutrition; (2) Dr. Kevin W. George, a former psychiatrist of plaintiff's; and (3) Ms. Deborah Sweeney, plaintiff's treating nurse Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 104 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 practitioner. Glaxo is seeking to “preclude ... [these] experts from offering any opinion that: (I) Paxil causes substance dependence, or is either addictive or habit-forming; or (ii) that plaintiff is addicted to Paxil or has developed substance dependence as a result of taking it.” Memorandum of Law in Support of Glaxosmithkline's Motion to Preclude Plaintiff's Experts' Testimony Pursuant to Fed.R.Evid. 702 and Daubert (“Def. Preclude Memo.”) at 4. In preparation for trial, each of these witnesses has been deposed and Mr. O'Donnell has provided an “expert” report on plaintiff's behalf. Apart from these witnesses, plaintiff proffers no other causation evidence. To support his theory that Paxil is defective due to an inadequate warning, plaintiff is relying solely upon the deposition testimony and “expert” report of Mr. O'Donnell. Glaxo argues for the preclusion of “[h]is warnings ‘opinions” ’ because O'Donnell is not qualified to testify on that issue and even if he were, “his opinions are neither reliable nor scientific.” Def. Preclude Memo. at 24. A. Standard for Admissibility of Expert Evidence There is a two-part inquiry in deciding the admissibility of expert evidence. First, in accordance with Fed.R.Evid. 702, “[t]he court should admit specialized expert testimony if the witness is ‘qualified as an expert by knowledge, skill, experience, training or education’ and his testimony ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.” ’ Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 746 (2d Cir.1998) (quoting Fed.R.Evid. 702); see also Kass v. West Bend Company, No. 02–CV–3719, 2004 WL 2475606, at *4 (E.D.N.Y. Nov. 4, 2004) (citation omitted) (“As a threshold matter, the court must examine [the witness'] qualifications to testify about alternative ... designs.”) Second, “in the form of an opinion or otherwise,” the court must insure that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. In other words, whether an expert witness' “opinion is ultimately admissible depend on the reliability and relevance of the proffered testimony.” Kass, 2004 WL 2475606, at *5. In this regard, the Supreme Court has instructed the by now oft-cited rule that a district court must act as “a gatekeeper to exclude invalid and unreliable expert testimony.” Bonton v. City of New York, No. 03 Civ. 2833, 2004 WL 2453603, at *2 (S.D.N.Y. Nov. 3, 2004) (citation omitted). This gatekeeping obligation applies whether the proposed expert testimony is based upon scientific knowledge, “technical,” or some other “specialized” knowledge. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999) (citing Fed.R.Evid. 702). As with other types of evidence, the court must also bear in mind that under Rule 403, even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.” Fed.R.Evid. 403. In Daubert the Supreme Court soundly reasoned that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 ... exercises more control over experts than over lay witnesses.” Daubert, 509 U.S. at 595, 113 S.Ct. at 2798 (quotation marks and citation omitted) (emphasis added). Finally, it should be noted that “[t]he proponent of expert evidence must establish admissibility under Rule 104(a) of the Federal Rules of Evidence by a preponderance of the proof.” Bonton, 2004 WL 2453603, at *2 (citing Bourjaily v. United States, 483 U.S. 171, 175–76 (1987)). This burden is the same regardless of whether the issue is the “qualification[s] of a person to be a witness, ..., or the admissibility of the evidence” itself. Fed.R.Evid. 104(a). In the present case, this requires plaintiff Devito to prove by a preponderance of the evidence that each of the three witnesses whom he is proposing to call as an expert qualify as such; and that the proposed testimony of each is admissible. *3 “In assessing expert qualifications, ‘[l]iberality and flexibility in evaluating qualifications should be the rule; the proposed expert should not be required to satisfy an overly narrow test of his own qualifications.” ’ Kass, 2004 WL 2475606, at *4 (quoting Lappe v. American Honda Motor Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y.1994) aff'd 101 F.3d 682 (2d Cir.1996)). “So long as the expert stays within the ‘reasonable confines of his subject area,’ the expert can fairly be considered to possess the ‘specialized knowledge’ required by Rule 702.” Id. (quoting Lappe, 857 F.Supp. at 227) (other citation omitted). “In Daubert, the Supreme Court articulated four factors pertinent to determining the reliability of an expert's reasoning or methodology: (1) whether the theory or technique relied on has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community.” Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 105 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Id. (citing Daubert, 509 U.S. at 593–94, 113 S.Ct. at 2796– 97). “These factors do not, however, constitute a ‘definitive checklist or test.” ’ Id. (quoting Daubert, 509 U.S. at 593, 113 S.Ct. at 2796). “Rather, they are intended to be applied flexibly, depending on the particular circumstances of the particular case at issue.” Id. (citing Kumho Tire, 526 U.S. at 150, 119 S.Ct. at 1175). In Kumho, the Supreme Court recognized that “when evaluating the admissibility of non-scientific expert testimony, the standard under Rule 702 is a liberal and flexible one, and the factors outlined in Daubert are merely guidelines in aiding a court's reliability determination.” Houlihan v. Marriott International, Inc., No. 00 Civ. 7439, 2003 WL 22271206, at *3 (S.D.N.Y. Sept. 30, 2003) (citing Kuhmo, 526 U.S. at 151, 119 S.Ct. at 1175). “For example, in some cases, reliability concerns may focus on personal knowledge or experience rather than strict scientific methods.” Id. (citation omitted). Regardless of which criteria a court applies to assess the admissibility of expert testimony, “the Supreme Court has made clear that the district court has a ‘gatekeeping function’ under Rule 702—is charged with ‘the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” ’ Amorgianos, 303 F.3d at 265 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786) (other citation omitted). Finally, it should be noted that “ ‘the gatekeeping inquiry must be tied to the facts of a particular case[.]” ’ Id. at 266 (quoting Kumho Tire, 526 U.S. at 150, 119 S.Ct. at 1175). 1. Deborah L. Sweeney a. Qualified? Glaxo's motion to preclude the testimony of Ms. Sweeney 2 requires little if any analysis. Glaxo is moving to preclude her testimony because it does not believe she is qualified to testify as an expert. Additionally, Glaxo contends that “her proposed opinion lacks a reliable scientific foundation.” Def. Preclude Memo. at 26. Plaintiff did not bother to respond to this aspect of Glaxo's motion. This lack of response amounts to a concession by plaintiff that the court should exclude Ms. Sweeney's testimony. Cf. Green v. Doukas, No. 97 CIV.8288CMGAY, 2001 WL 767069, at *8 (S.D.N.Y. June 22, 2001) (granting motion to preclude expert testimony because “plaintiff's failure to oppose the motion suggests ... it has merit[ ]”). Accordingly, the court grants Glaxo's motion to the extent it is seeking preclusion of Ms. Sweeney's testimony. See Amaker v. Coombe, No. 96 Civ. 1622, 2003 WL 21222534, at *6 (S.D .N.Y. May 27, 2003) (granting motion to preclude where plaintiff defaulted); see also Martinez v. Sanders, No. 02 Civ.5624, 2004 WL 1234041, at *3 (S.D.N.Y. June 3, 2004) (because plaintiff did not respond to motion, court granted same on “default” theory) (and cases cited therein). 2. Kevin W. George, M.D. *4 Glaxo also seeks to preclude the testimony of Dr. Kevin George. Dr. George is a psychiatrist who saw Mr. DeVito in consultation twice—once on November 2, 2001 and again on December 13, 2001. Glanville Aff., exh. G thereto at 51 and 76. Glaxo is not challenging Dr. George's qualifications, but rather the nature of his testimony. Glaxo is seeking to exclude Dr. George's testimony because he “has expressly disavowed all of the opinions that plaintiff ascribed to him in plaintiff's expert disclosure.” Def. Preclude Memo. at 25. Further, even if Dr. George had not disavowed those opinions, Glaxo argues that his “proposed testimony [is] inadmissible because it lacks any reliable scientific foundation.” Id. Plaintiff's response focuses almost exclusively on Dr. George's qualifications, which are not in dispute. As to the opinions which plaintiff attributes to Dr. George, the sum total of plaintiff's response is that any alleged “shortcomings” in that testimony go to weight and credibility, and not to admissibility. Memorandum of Law in Opposition to Defendant's Motion to Preclude Plaintiff's Experts (“Pl. Opp'n Preclude”) at 5. The court disagrees. As will be seen, Dr. George's purported opinion testimony does not have simply a few “shortcomings.” It has glaring holes in terms of reliability, not the least of which is Dr. George's unequivocal deposition testimony disavowing that he made the opinions which plaintiff claims he did. In his expert disclosure plaintiff specifically identifies Dr. George as an “expert” whom he intends to call at the time of trial. Glanville Aff., exh. E thereto at 1. According to plaintiff's expert disclosure, Dr. George will testify as follows: that in his opinion, within a degree of reasonable medical certainty, ... [1] the plaintiff is experiencing withdrawal reactions from the drug Paxil and that each time the plaintiff attempts to ‘wean’ himself off of the drug or Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 106 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 to lower the dosage of the drug, the plaintiff experiences said withdrawal; 2) ... the plaintiff's withdrawal signs and symptoms are a result of the plaintiff ingesting Paxil; and 3) ... the plaintiff has sustained injury in that he has been unable to discontinue the use of Paxil and has been caused to suffer the signs and symptoms of the withdrawal syndrome associated with the use and attempted discontinuance of Paxil. Glanville Aff., exh E thereto. Dr. George is confining his opinions to how Paxil allegedly effected plaintiff DeVito—not whether Paxil is capable generally of causing the symptoms of which DeVito complains. Therefore, although the plaintiff did not specify the purpose for which he is offering Dr. George's testimony, presumably it is being offered on the issue of specific causation. As noted earlier, ordinarily once a court finds a witness qualified as an expert, the next issue is the admissibility of that witness' opinion testimony. Here, however, it appears that each of the opinions which plaintiff attributes to Dr. George have been expressly disavowed in his deposition. Dr. George was asked point blank whether he had formed any of the three opinions quoted above, and whether he was prepared to testify to same. Each time he answered no. See Glanville Aff., exh. G thereto at 88–91. Obviously, if Dr. George has not formed the opinions which plaintiff is ascribing to him, necessarily he has no foundation, scientific or otherwise, for same. Accordingly, the court excludes the opinion testimony outlined above which plaintiff is attributing to Dr. George. *5 Even if Dr. George had not expressly disavowed the opinions set forth above, the court still must exclude his testimony. The crux of each of these opinions is that plaintiff DeVito has “withdrawal reactions,” or “withdrawal signs and symptoms” caused when he attempts to discontinue or taper below a certain dosage of Paxil. Glanville Aff., exh. E thereto. Dr. George's deposition testimony did not so state such. To be sure, Dr. George did testify that he used “Paxil withdrawal” as a “label to capture what [DeVito] was describing that he had been experiencing.” Id., exh. G thereto at 59 (emphasis added). When later in his deposition Dr. George was pressed as to whether or not he diagnosed plaintiff “as suffering from Paxil withdrawal [,]” he reiterated that he “applied that label to describe the symptoms that [DeVito] reported in relation to tapering Paxil.” Id. at 102 (emphasis added). There is an obvious difference between labeling a symptom which a patient describes and actually diagnosing that person. Significantly, Dr. George did not diagnosis plaintiff with Paxil withdrawal. Perhaps that is because “Paxil withdrawal is not a formal diagnosis within DMS–IV[.]” Id. at 94. (“The DSM–IV is the Diagnostic and Statistical Manual, the fourth revision of it, that psychiatrists generally base their diagnoses on.” Id.) And, “[t]here is no criteria for diagnosing somebody with Paxil withdrawal.” Id. at 60. For example, there are no “objective tests or assessments,” aside from skin inspection for signs of sweating, “that could have been done to determine whether those reports [by DeVito] were genuine[.]” Id. at 62. So, Dr. George simply took plaintiff's description of his symptoms at “face value,” and made no attempt to determine whether [DeVito's] report of those symptoms was genuine [.]” Id. at 62 and 79. In light of the foregoing, even if Dr. George were inclined to testify that Paxil specifically caused the symptoms which plaintiff claims it did, there is no foundation for this testimony. What is particularly revealing in this regard is Dr. George's candor when asked: “Have you ever made any determination as to why Mr. DeVito's tapering off of Paxil may be taking longer than some of your other patients?” ' Id. at 100. Dr. George replied, “I had no scientific way, ..., of explaining why he was having such difficulty tapering off Paxil.” Id. (emphasis added). Further, plaintiff DeVito saw Dr. George in the latter's capacity as a treating psychiatrist. Thus, as is plain from Dr. George's deposition, he was concerned primarily with the symptoms of which plaintiff complained, not determining the underlying cause. See Munafo v. Metropolitan Transportation Authority, Nos. 98 CV–4572, 00–CV–0134, 2003 WL 21799913, at *19 (E.D.N.Y. Jan. 22, 2003). Had Dr. George been focusing on the underlying cause, undoubtedly he would have performed a differential diagnosis, which “typically includes a physical examination, clinical tests, and a thorough case history.” Zwillinger v. Garfield Slope Housing Corp ., No. CV 94–4009, 1998 WL 623589, at *19 (E.D.N.Y. Aug. 17, 1998) (citations omitted). But, Dr. George did not. Without a differential diagnosis, specific causation cannot be established. See id. (“To establish specific causation, other possible causes for the symptoms experienced by plaintiff should be excluded by performing a ‘differential diagnosis.” ’) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 107 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 3. James T. O'Donnell *6 Glaxo argues that the court must preclude O'Donnell's testimony for two reasons. First, he is not qualified as an expert as to the issues upon which he is being asked to opine— general and specific causation and the adequacy of the Paxil warnings. Second, even if he does qualify as an expert, Glaxo contends that the court should preclude his opinions because they lack the requisite scientific foundation and are otherwise unreliable. Plaintiff responds that O'Donnell's “experience and credentials are impressive [,]” whether the issue is his qualifications to testify as an expert on causation or as an expert on warnings. Pl. Preclude Memo. at 4. Plaintiff further responds that regardless of whether O'Donnell is opining on causation or warnings, any alleged “shortcomings” in that testimony go to “weight and credibility, and not [to] ... admissibility.” Id. at 5 (citation omitted). Plaintiff DeVito is offering O'Donnell's testimony on three separate issues, which require different areas of expertise. The court will examine O'Donnell's qualifications as to each. a. General Causation Glaxo offers a host of reasons as to why O'Donnell “is not an ‘expert’ on scientific issues concerning general or specific causation” with respect to SSRIs or Paxil. Def. Preclude Memo. at 7 (emphasis added). All of these reasons have merit. i. Qualified? This is not the first court to be confronted with the issue of whether Mr. O'Donnell is qualified to give an expert opinion here. In Newton v. Roche Laboratories, Inc., 243 F.Supp.2d 672 (W.D.Tex.2002), the court found that he was not qualified to render an opinion on general causation. Id. at 679. There, the parents of a 16 year old girl claimed that Accutane, a prescription acne medication manufactured by the defendant, caused or precipitated the onset of their daughter's schizophrenia. In much the same way plaintiff DeVito is offering O'Donnell's testimony here, the plaintiffs in Newton offered O'Donnell as an expert “to testify regarding general causation, i.e., that Accutane is pharmacologically capable of causing schizophrenia.” Id. at 677. After outlining a number of ways in which O'Donnell's qualifications were lacking, the court expressly found that he was not qualified to render such an opinion. To support that conclusion, the Newton court relied upon O'Donnell's deposition testimony, which is substantially similar to his deposition testimony in this case. For example, O'Donnell testified in Newton, as he did here, that “he has never earned an M.D., a Ph.D., or any degree in pharmacology.” Id. at 677; see also O'Donnell Dep'n at 24– 25 and 53. Yet, he “still holds himself out as a ‘doctor’ and a pharmacologist[.]” Id. As in Newton, “O'Donnell ... [continues to] grant[ ] himself the title of ‘doctor’ in reliance upon his Pharm.D degree, [which] he conceded in his deposition that in the majority of pharmacy schools, th[at] ... degree is ‘an entry-level degree’ that pharmacists must have to ... even practice pharmacy.” Id. at 677 n. 2 (citation omitted); see also O'Donnell Dep'n at 24–25. In contrast, to obtain a degree in pharmacology usually three or four years of graduate school is required. O'Donnell Dep'n at 25– 26. O'Donnell did get a graduate degree, but it was not in pharmacology. O'Donnell's formal education consists of a four year degree in pharmacy and a Master's Degree in clinical nutrition. Id. at 27. *7 In addition to questioning O'Donnell's background generally, the Newton court pointed out his “lack [of] appropriate pharmacological training relevant to the issues” therein, i.e. “Accutane, Vitamin A, schizophrenia, or psychosis[.]” Id. at 678. The same may be said here. There is no factual basis upon which this court can find that O'Donnell is an expert regarding SSRIs generally, not to mention Paxil or discontinuation of Paxil. Indeed, as his deposition testimony shows, O'Donnell's asserted expertise on these subjects is non-existent. See id. at 21, 24; 38–40; and 45. Given that SSRIs are a fairly recently developed class of drugs, understandably they were not the subject of O'Donnell's course work as an undergraduate, or when getting his Master's Degree in nutrition. Id. at 21 and 24. Since that time, O'Donnell has done nothing to advance his own knowledge as to SSRIs generally or Paxil in particular. When directly asked if he had “done any clinical research whatsoever relating to antidepressants,” O'Donnell replied that he had not. Id. at 38. He responded the same way when asked if he had “done any scientific research concerning Paxil or SSRI antidepressants[.]” Id. at 39. Moreover, O'Donnell conceded that the first time he “review[ed] ... scientific literature in connection with Paxil discontinuation symptoms[ ]” was for this case. Id. at 40–41. This is the sort of “litigation-drive expertise” which courts have eschewed. To illustrate, the court in Mancuso, 967 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 108 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 F.Supp. at 1443, reasoned that it could not “help but conclude that [plaintiff's expert] was not in fact an expert ... when he was hired by the plaintiffs, but that he subsequently attempted, with dubious success, to qualify himself as such be selective review of the relevant literature.” This appears to be an apt description of what Mr. O'Donnell attempted to do in the present case. The court stresses that it is no single factor which is dispositive of whether O'Donnell qualifies as an expert on the issue of general causation. Rather, it is the cumulative effect of the foregoing which convinces the court that O'Donnell lacks the lack of relevant “knowledge, skill, experience, training or education” to testify as an expert on the issue of general causation vis-a-vis the discontinuation of Paxil. As he admitted, O'Donnell is not a pharmacologist. Therefore, he cannot, as he does in his “expert report,” opine to a “reasonable pharmacological certainty,” that plaintiff is experiencing “withdrawal toxicity reactions from Paxil[.]” O'Donnell Rep. Clearly, allowing a pharmacist/nutritionist such as O'Donnell to testify in that way would run afoul of the rule that an expert must stay “within the reasonable confines of his subject area[.]” ' Kass, 2004 WL 2475606, at *2475606, at *4 (internal quotation marks and citations omitted). Simply put, the court agrees with the court's comment in Newton that “[p]laintiff's attempts to present O'Donnell as an expert pharmacologist [is] ... an extremely bold stretch.” Newton, 243 F.Supp.2d at 279. 3 ii. Reliability of Testimony? *8 O'Donnell's lack of education, training and background as to Paxil becomes even more apparent when viewed in terms of the opinions which he has rendered in this case. That is so because a “court's evaluation of qualifications is not always entirely distinct from the court's evaluation of reliability.” Pearson v. Young, No. CIV–99–1559–F, 2002 WL 32026157, at *3 (W.D.Okla. Jan. 17, 2002). O'Donnell's opinion as to causation is that “DeVito is experiencing withdrawal toxicity reactions from Paxil, and indeed, each time he attempts to wean or lower the dosage, he again experiences such infinity [sic].” Glanville Aff., exh. E thereto. O'Donnell states that when plaintiff's dosage of Paxil is lowered, he suffers from the following “withdrawal signs and symptoms [:] anxiety, jitery [sic], agitation, nausea, drowsiness, generalized discomfort and vertigo[.]” O'Donnell Report at 2. “For this opinion to be admissible, O'Donnell must have a reliable scientific basis to support not only (1) a casual relationship between” Paxil and the enumerated side-effects, “but also (2) his assertion that [Paxil] will produce these side-effects.” See Newton, 243 F.Supp.2d at 679 (emphasis added). O'Donnell's report and deposition testimony are void of a scientific basis to support either of those assertions. In terms of publications, O'Donnell testified that he was the editor of a non-peer reviewed book entitled “Drug Injury Liability, Analysis and Prevention.” Id. at 98–99. That book contained a mere six sentences on SSRIs, including the two sentences on Paxil. Id. at 99. Given that minimal reference to SSRIs, it is not surprising that that book contains nothing about discontinuation symptoms. See id. It further appears that he has performed absolutely no research regarding Paxil, much less its discontinuation. Id. at 38–39. What is more, O'Donnell has done no scientific or clinical research of any kind for almost two decades. The last time he did any such research was in he “early '80s as part of a pharmacology lab sabbatical,” where he was looking at vitamins and critical care drugs used in Intensive Care Units. Id. at 36. In light of the foregoing, to allow plaintiff to rely upon Mr. O'Donnell's opinions as to general causation clearly would violate Daubert' s “requirement that the expert testify to scientific knowledge—conclusions support by good grounds for each step in the analysis[.]” ' Amorgianos, 303 F.3d at 267 (citations and quotation marks omitted). b. Specific Causation It stands to reason that if Mr. O'Donnell lacks (which he does) the qualifications to testify as to general causation, he lacks the qualifications to testify as to specific causation. His opinion as to specific causation suffers from the same infirmities, detailed above, as to general causation. Accordingly, the court finds that Mr. O'Donnell does not have the requisite qualifications to testify as to specific causation; and even if he did, his opinions in that regard are unreliable. c. Warnings *9 Glaxo contends that because O'Donnell “lacks any pertinent qualifications[,]” Def. Memo. at 14, he should not be allowed to testify that in his opinion the “lack of ... a precaution and warning about withdrawal risk and the need to taper [when discontinuing Paxil] renders the product defective due to an inadequate warning. See O'Donnell Report at 3. Plaintiff did not directly respond to this argument. Included in the list of highlighted credentials in plaintiff's Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 109 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 memorandum of law is that Mr. O'Donnell “is currently involved in the teaching of New Drug Development and Regulations [.]” Pl. Opp'n Memo. at 2. However, plaintiff does not explain, or cite to any portion of O'Donnell's deposition explaining, how or why this position qualifies him to testify as an expert on warnings. As with the other issues upon which plaintiff intends to offer O'Donnell's testimony, plaintiff baldly retorts that O'Donnell's “extensive experience qualifies as specialized knowledge gained through experience, training, or education[.]” Pl. Memo. at 4 (internal quotation marks and citations omitted). And, once again, he relies upon the argument that Glaxo's reasons to preclude O'Donnell's testimony regarding warnings should be saved for trial, i.e. they should be used to attack O'Donnell's credibility and the weight which the jury might give to his opinions regarding Paxil warnings. i. Qualified? O'Donnell “claim[s] to be an expert in drug labeling[.]” O'Donnell Dep'n at 90. Presumably he is including drug warnings within the province of this supposed expertise. In any event, to qualify as an expert it is not enough for a witness to simply declare that he is one. Federal Rule of Evidence 702 requires more. As plaintiff acknowledged, a witness must satisfy the court that he has a certain amount of “knowledge, skill, experience, training or education [ ]” in the relevant field before he can be deemed an expert. See Nora Beverages, 164 F.3d at 746 (internal quotation marks and citation omitted). Close examination of O'Donnell's deposition testimony reveals that he is lacking in each of those areas when it comes to the subject of the adequacy of prescription drug warnings. O'Donnell's claimed expertise admittedly is “through experience,” not through formal education. O'Donnell Deposition at 90–92. His experience consists primarily of having attended continuing education (“CE”) programs, where drug labeling was a topic. Id. Those CE programs were to satisfy his pharmaceutical and nutritionist CE requirements, however; and he was unable to elaborate on the substance of same. See id. Furthermore, O'Donnell has not consulted with any pharmaceutical company “concerning the labeling for any antidepressant[.]” Id. at 96. O'Donnell agrees “that the FDA [Food and Drug Administration] is the highest authority on how drugs are labeled in this country[,]” but he has also never consulted with them “concerning the labeling for any antidepressant. Id. For that matter, O'Donnell has not worked for or consulted with the FDA in any capacity. See Glanville Aff. at 9, ¶ 39. Thus, O'Donnell's experience in this area is extremely limited. *10 Moreover, O'Donnell made two especially damaging concessions which seriously undermine the suggestion that he is an expert as to the adequacy of prescription drug warnings. O'Donnell readily agreed “that in assessing the adequacy of a label for a prescription drug, the expert rendering the opinion generally should be familiar with the clinical trials data on the drug as it relates to the side effect concerning which he is opining[.]” Id. at 192. Yet, O'Donnell frankly admitted that he had not reviewed any of the Paxil clinical trials data. See id. Similarly, O'Donnell conceded that “generally to reach a conclusion regarding the adequacy of a label for a prescription drug, the expert rendering the opinion should be familiar with at least a majority of the available medical literature on the drug as it relates to the side effect on which he is opining[.]” Id. at 193. Despite the foregoing, O'Donnell went on to testify that he has “not read the specific literature [ ]” relating to discontinuation symptoms of Paxil. Id. 193 and 45. In fact, he has only read “abstracts” of articles. Id. at 46–47. Finally, Mr. O'Donnell has not lectured on, or written anything (peer reviewed or not) about, “Paxil discontinuation symptoms apart from [his] export [sic] report in this case[.]” Id. at 45. As the foregoing clearly shows, Mr. O'Donnell does not “employ[ ] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field[,]” which here is the adequacy of prescription drug warnings and Paxil in particular. See Kumho Tire, 526 U .S. at 152, 119 S.Ct. at 1176. Mr. O'Donnell may qualify as an expert in the fields of pharmacy or nutrition, but that is not the purpose for which his testimony is being offered here. Instead, his testimony is being offered on the adequacy of Paxil warnings. O'Donnell has never been drafter or been asked to draft a warning for any antidepressant, let alone for Paxil. Likewise, he has not done any research or written any publications on prescription drug warnings. Thus, whether judged in terms of his education or experience, does not rise to the level of “expertise ... that the jury would expect from a bona fide warnings expert.” See Robertson v. Norton, 148 F.3d 905, 907 (8 th Cir.1998) (internal quotation marks omitted). In sum, O'Donnell is being called upon to testify regarding the adequacy of the Paxil warning, an issue which clearly is outside the “reasonable confine [s] of his subject area[s,]” which are pharmacy and nutrition. See Kass, 2004 WL 2475606, at *4 (internal quotation marks and citations Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 110 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 omitted). Therefore, because O'Donnell does not “possess the specialized knowledge required by Rule 702[,]” the court finds that he is not qualified as an expert on the issue of the adequacy of the Paxil warning. See id. ii. Reliability of Testimony? *11 Given the nature of the claims which plaintiff is alleging in this case, plainly there is a close relationship between excluding the causation opinion and excluding the warning opinions which are being offered by O'Donnell. Miller v. Pfizer, Inc., 196 F.Supp.2d 1062 (D.Kan.2002), aff'd on other grounds, 356 F.3d 1326 (10 th Cir.2004), cert. denied, 125 S.Ct. 40 (Oct. 4, 2004), provides a good example of how a decision to preclude causation “expert” testimony impacts upon a decision to also preclude warning testimony. The plaintiff parents in Miller were suing the manufacturer of Zoloft, another SSRI, alleging that it caused their son to commit suicide. Similar to the present case, the plaintiffs in Miller asserted state law claims for strict liability for marketing defects and misrepresentations, and negligence for failure to test and warn. The court held that an “eminent” psychiatrist and neuropsychopharmocologist's proposed testimony regarding general causation, i.e. that Zoloft causes suicide, did not satisfy the Daubert criteria for admissibility because, in short, “he lack[ed] sufficient expertise on the issue of suicide.” Id. at 1087 and 1088. The Miller court, as is this court, was then confronted with the issue of whether that same doctor could qualify as an expert who would opine “that Zoloft labels do not adequately warn against the danger of SSRI-induced suicide.” Id. at 1088. After finding that the doctor was not an expert on that issue, the court soundly reasoned, “[i]f the jury will hear no evidence that [Paxil] causes [withdrawal symptoms/ addictive], it cannot possibly conclude that [Paxil] labels do not adequately warn against the danger that [Paxil] causes [such condition.]” Id. at 1089. That reasoning applies with equal force here. Even if O'Donnell qualifies as a prescription drug warning expert, because neither O'Donnell nor Dr. George (plaintiff's only proof as to causation) qualify to testify about causation, the former's warning testimony “would essentially be irrelevant to any larger issues in the case.” See id. Accordingly, there is no need to analyze whether O'Donnell's opinions as to warnings pass muster under Daubert. In short, plaintiff DeVito has not sustained his burden of proving by a preponderance of the evidence that Mr. O'Donnell is qualified to render an opinion as to general causation, specific causation, or the adequacy of Paxil warnings. Even if O'Donnell could somehow be deemed to have the requisite “specialized knowledge” to testify as to any or all of those issues, “courts do not have to credit opinion evidence connected to data ‘only by the ipse dixit of the expert.” ’ Prohaska, 138 F.Supp.2d at 438 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. (1997)). That is all O'Donnell has to rely upon; simply because he offers an opinion which he claims to be valid, plaintiff assumes it is so. This court will not, however. *12 For the reasons set forth above, the court grants in its entirety Glaxo's motion to preclude the testimony of Mr. O'Donnell; Dr. George; and Ms. Sweeney. II. Summary Judgment Motion The court assumes familiarity with the Supreme Court's trilogy of cases clarifying the governing legal standards on summary judgment motions, and sees no need to repeat those standards herein. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); and Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) It is an understatement to say that the wholesale exclusion of the testimony of O'Donnell, George and Sweeney significantly impacts plaintiff DeVito's case. As discussed at the outset causation is a necessary element of each of the five causes of action which plaintiff is alleging herein. Because plaintiff's only causation evidence has been excluded, it necessarily follows that Glaxo is entitled to summary judgment in its favor. See Kass, 2004 WL 2475606 (after granting motion to exclude testimony of plaintiff's claimed expert regarding the feasibility of alternative designs, court granted defense summary judgment motion because plaintiff could not satisfy the critical element of a design defect cause of action); and Zwillinger, 1998 WL 623589 (where plaintiff claimed that her exposure to defendants' carpeting causes her to develop immunotoxicity syndrome, court granted summary judgment in defendants' favor after excluding the of doctor's testimony, which was plaintiff's only causation evidence). To conclude, the court hereby GRANTS the motion by Smithkline Beecham Corporation d/b/a Glaxo Smithkline, to preclude the testimony of James O'Donnell; Dr. Kevin George; and Ms. Deborah Sweeney. The court further GRANTS the motion by Smithkline Beecham Corporation d/b/a Glaxo Smithkline for summary judgment pursuant to Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 111 of 290
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 Fed.R.Civ.P. 56 dismissing all of plaintiff Michael DeVito's claims as against it. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2004 WL 3691343 Footnotes 1 The present action, which has been referred to as a “tag-along action,” is one of a number throughout the country wherein plaintiffs are alleging that Glaxo knew of the hazardous side effects of Paxil and either concealed, misrepresented or failed to warn of them. See In re Paxil Products Liability Litigation, 296 F.Supp.2d 1374 (Judicial Panel on Multidistrict Litigation 2003). In mid-February 2004, this court was advised that the Judicial Panel on Multidistrict Litigation (“the Panel) had conditionally transferred this action to the United States District Court fo the Central District of California for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.” Glaxo moved to vacate that conditional transfer as it pertained to the present case. When plaintiff did not respond, on June 15, 2004, the Panel vacated that conditional transfer as it relates to Mr. DeVito. 2 During her deposition Ms. Sweeney unequivocally testified, “I'm not a physician. I'm not a nurse practitioner.” Glanville Aff ., exh H thereto at 123. She holds an associates' degree in nursing, a bachelor of science degree in health and human services, and a nurse practitioner's degree.” Id. at 12, 17, 35–36. Thus, to refer to Ms. Sweeney as “Doctor Sweeney, as plaintiff does throughout his expert disclosure, is not only a misstatement but directly contradicts Sweeney's own testimony. Plaintiff's tendency to exaggerate or overstate certain things, as will be seen, is not limited to the qualifications of his experts. 3 O'Donnell's insistence on holding himself out as a pharmacologist, see O'Donnell Dep'n at 54, ignores at least one fundamental distinction between pharmacology and pharmacy—a distinction which is critical here. “Pharmacology can be fairly described as the study of the effect of drugs on living organisms. Pharmacy, on the other hand, is the profession of preparing and dispensing drugs.” Newton, 243 F.Supp.2d at 677, n. 1. It is self-evident that there is a vast difference in the education, experience and skill necessary to obtain degrees in these two different fields. Apparently O'Donnell recognizes this distinction because in Newton he “admitted ... that from approximately 1982 to 1985, he intentionally and falsely advertised that he possessed a doctorate in pharmacology in an attempt to attract more interest from lawyers for his consulting expert business.” Id. at 677, n .3 (citation omitted). He made that same admission in this deposition herein. O'Donnell Dep'n at 28–31. O'Donnell did change this advertisement because, in his words, it was “incorrect.” Id. at 29. This court cannot overlook what at best appears to be a serious lapse in judgment, however. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 112 of 290
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2009 WL 2473509 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Donna ESTE–GREEN, Plaintiff, v. Michael J. ASTRUE, Comm'r of Social Security, Defendant. No. 5:09–CV–0722 (GTS/GHL). | Aug. 7, 2009. West KeySummary 1 Social Security Exhaustion of other remedies Representative for a social security payee failed to exhaust her administrative remedies before filing her claim since there was no final decision after a hearing. The Social Security Administration (SSA) garnished the representative's wages after attempting to work out a repayment plan since the representative was overpaid on behalf of the payee. The representative contacted the SSA to complain about the garnishment and shortly thereafter, the representative filed the action with the Small Claims Court, without having a hearing or final order from the Commissioner of Social Security. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). 29 Cases that cite this headnote Attorneys and Law Firms Donna Este–Green, Hempstead, NY, pro se. Hon. Andrew T. Baxter, United States Attorney for the Northern District of New York, William H. Pease, Esq., Assistant U.S. Attorney, of Counsel, Syracuse, NY. DECISION and ORDER Hon. GLENN T. SUDDABY, District Judge. *1 Currently before the Court, in this pro se action filed by Donna Este–Green (“Plaintiff”) to recover funds allegedly owed to her by the Social Security Administration, is a motion by Michael J. Astrue, Commissioner of Social Security (“Defendant”) to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction due to Plaintiff's failure to exhaust her administrative remedies before filing suit. (Dkt. No. 3.) Plaintiff has not opposed the motion. For the reasons set forth below, Defendant's motion is granted, and Plaintiff's Complaint is dismissed. I. BACKGROUND A. Procedural History On or around May 27, 2009, Plaintiff brought this action in Small Claims Court, City of Ithaca, County of Tompkins (“Small Claims Court”), naming the Social Security Administration (“SSA”) as Defendant. (Dkt. No. 1, Part 3.) Liberally construed, Plaintiff's Complaint alleges that the SSA wrongfully garnished her wages in the amount of five hundred seventy-one dollars ($571.00). (Id.) On June 24, 2009, the United States Attorney's Office for the Northern District of New York removed this case from the Small Claims Court, pursuant to the exclusive original jurisdiction of the District Court under 42 U.S.C. §§ 405(g)-(h) and 1383(c)(3), “because Plaintiff's claim appeared to relate to the payment of Social Security benefits to her as representative payee for the account of Albertina King.” (Dkt. No. 3.) B. Relevant Facts In 1999, Plaintiff had been acting as representative payee for Albertina King, who had been receiving Social Security benefits under Title II of the Act. (Dkt. No. 3.) In October 1999, the SSA issued an overpayment to Plaintiff on Albertina King's account. (Id.) In March 2001, the SSA and Plaintiff arranged a repayment plan pursuant to which Plaintiff agreed to repay the amount due the SSA in fifty-dollar installments beginning on April 15, 2001. (Id.) In October 2007, the SSA sent a letter to Plaintiff, in which the SSA stated the following: (1) Plaintiff had been overpaid as representative payee; (2) Plaintiff had the right to question the decision about her overpayment and to ask that the SSA not recover Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 113 of 290
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 the overpayment; (3) the SSA's past attempts to recover this overpayment had not been successful; (4) there are actions that the SSA can take to recover the money, including wage garnishment; (5) Plaintiff could prevent the wage garnishment by taking certain steps within sixty days of the letter, including repaying the debt, agreeing to a definite repayment plan and repaying the debt according to that plan, asking the SSA to review the finding that she owed the amount stated and that the SSA had the right to collect it, asking the SSA to waive collection of the overpayment, or asking the SSA to review its plan to collect up to fifteen percent of her disposable pay. (Id.) In addition, the letter informed Plaintiff of how she could repay the SSA. (Id.) *2 Plaintiff returned this letter to the SSA, stating that the overpayment was not her fault. (Id.) Plaintiff indicated that she could not afford the amount owed, and that the money that she received was used for the payee's burial. (Id.) In March, 2008, Plaintiff spoke with a supervisor of the SSA by telephone and negotiated a repayment plan agreement for installments of twenty dollars ($20). (Id.) On April 29, 2008, the SSA sent Plaintiff a billing statement indicating her debt of five hundred seventy-one dollars ($571), and that a minimum payment of twenty dollars ($20) must reach the SSA by May 15, 2008. (Id.) On May 6, 2008, documentation issued in connection with the administrative garnishment of Plaintiff's wages was returned to the SSA from Plaintiff's employer, stating that Plaintiff was no longer employed there. (Id.) On April 17, 2009, the SSA issued an order to Plaintiff's employer to garnish her wages. (Id.) Plaintiff's employer completed this order and returned it to the SSA. (Id.) On May 21, 2009, Plaintiff contacted the SSA to complain about the garnishment. (Id.) Shortly thereafter, Plaintiff filed this action with the Small Claims Court, and the Complaint was mailed to the SSA on May 27, 2009. II. APPLICABLE LEGAL STANDARDS A. Standard Governing Motions to Dismiss for Lack of Subject Matter Jurisdiction “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citing Fed.R.Civ.P. 12[b][1] ). With regard to a challenge to a determination by the Social Security Administration, “[a]ny individual may seek judicial review under 42 U.S.C. § 405(g) ‘after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy.” Diagnostic Cardioline Monitoring of New York, Inc. v. Leavitt, 171 F. App'x. 374, 375 (2d Cir. March 17, 2006) (citing 42 U.S.C. § 405[g] ). “This final-decision-after-a-hearing requirement is critical to the federal court's grant of subject matter jurisdiction over these claims.” Leavitt, 171 F. App'x. at 375 (citing Weinberger v. Salfi, 422 U.S. 749, 763–64 [1975] ). “In the absence of a final decision after a hearing, the federal court lacks subject matter jurisdiction to entertain the claim, and it must be dismissed.” Id. (citation omitted). B. Standard Governing Unopposed Motions “Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3). Defendant's motion to dismiss was properly filed, and Plaintiff has failed to oppose them. Therefore, the Court must determine whether Defendant has met her burden to “demonstrate entitlement to the relief requested” under Local Rule 7.1(b)(3). 1 An inquiry into whether a movant has met its “burden to demonstrate entitlement” to dismissal under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion. Specifically, under such an analysis, the movant's burden has appropriately been characterized as “modest.” 2 This is because, as a practical matter, the burden requires only that the movant present an argument that is “facially meritorious.” 3 III. ANALYSIS *3 After carefully considering the file in this action, including Defendant's motion to dismiss and Plaintiff's Complaint, the Court finds that Defendant has met his lightened burden on his unopposed motion: he has demonstrated entitlement to the relief requested by presenting an argument that is facially meritorious. Even if the Court were to subject Defendant's motion to the more rigorous scrutiny appropriate for contested motions, the Court would find that Defendant has met his burden: Plaintiff failed to exhaust her administrative remedies prior to commencing this action. 4 As a result, the Court lacks subject matter jurisdiction over Plaintiff's claims, and her Complaint is dismissed. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 114 of 290
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 ACCORDINGLY, it is ORDERED that Plaintiff's Complaint is DISMISSED. The clerk is directed to enter judgment and close the case. All Citations Not Reported in F.Supp.2d, 2009 WL 2473509 Footnotes 1 See also Fed.R.Civ.P. 7(b)(1) (requiring motions to, inter alia, “state with particularity the grounds therefor”). 2 See, e.g., Ciaprazi v. Goord, 02–CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe, J.; Peebles, M.J.) (characterizing defendants' threshold burden on a motion for summary judgment as “modest”) [citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord, Saunders v. Ricks, 03–CV–0598, 2006 WL 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.), Smith v. Woods, 03–CV–0480, 2006 WL 1133247, at *17 & n. 109 (N.D.N.Y. Apr.24, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.); see also Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109–1110 (N.D.N.Y.2003) (Munson, J.) (reviewing merely whether record contradicted defendant's arguments, and whether record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96–CV–1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3], but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons set forth in defendants' motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N .D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95–CV–989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.). 3 See, e.g., Hernandez v. Nash, 00–CV–1564, 2003 U.S. Dist. LEXIS 16258, at *7–8, 2003 WL 22143709(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before a motion to dismiss may be granted under Local Rule 7.1[b] [3], “the court must review the motion to determine whether it is facially meritorious” ) [emphasis added; citations omitted]; accord, Topliff v. Wal–Mart Stores East LP, 04–CV–0297, 2007 U.S. Dist. LEXIS 20533, at *28 & n. 43, 2007 WL 911891 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 05– CV–0380, 2007 U.S. Dist. LEXIS 24356, at *5–6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v. Kooi, 04–CV–1311, 2007 U.S. Dist. LEXIS 26583, at *28–29 & n. 40, 2007 WL 951447 (N.D.N.Y. Feb. 12, 2007) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele v. Pelkey, 03–CV–0170, 2006 U.S. Dist. LEXIS 95065, at *5 & n. 2, 2006 WL 3940592 (N.D.N.Y. Dec. 19, 2006) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, J.). 4 As noted by Defendant in his motion to dismiss, because Plaintiff failed to follow the required SSA regulations before bringing this action, there is no final decision for the Court to review under 42 U.S.C. § 405(g). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 115 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 5191506 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Bryant GIBBS, Plaintiff, v. Christopher GADWAY, Defendant. 9:19-CV-281 (GTS/DJS) | Signed 10/15/2019 Attorneys and Law Firms BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points Correctional Facility, Caller Box 119, Romulus, New York 14541. HON. LETITIA JAMES, Attorney General of the State of New York, OF COUNSEL: NICHOLAS L. ZAPP, ESQ., Assistant Attorney General, Attorney for Defendant, The Capitol, Albany, New York 12224. REPORT-RECOMMENDATION and ORDER DANIEL J. STEWART, United States Magistrate Judge *1 Plaintiff, presently an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this pro se action pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights. Dkt. No. 1, Compl. Following initial review of the Complaint under 28 U.S.C. §§ 1915(e) and 1915A, all claims other than an Eighth Amendment excessive force claim against Defendant Gadway were dismissed. Dkt. No. 7. In lieu of answering the Complaint, Defendant has moved for summary judgment based on Plaintiff's alleged failure to exhaust his administrative remedies. Dkt. No. 14. Plaintiff opposes the Motion. Dkt. No. 17 (“Pl.'s Opp.”). Defendant has filed a Reply. Dkt. No. 18. For the reasons which follow, the Court recommends that the Motion for Summary Judgment be granted. I. BACKGROUND Plaintiff alleges that he was assaulted by Defendant Gadway in June 2016. Compl. at p. 2. That same month Plaintiff filed an administrative grievance making this same allegation. Dkt. No. 14-3, Declaration of Christine Gregory (“Gregory Decl.”) at Ex. B. Given that the grievance concerned alleged staff misconduct the grievance was forwarded directly to the facility Superintendent. Gregory Decl. at ¶ 12. On July 16, 2016, the Superintendent responded to the grievance. Id. at ¶ 12 & Ex. C. Plaintiff alleges that he then appealed the Superintendent's determination to DOCCS' Central Office Review Committee. Pl.'s Opp. at pp. 4-5. DOCCS has no record of any such appeal. Gregory Decl. at ¶ 15; Dkt. No. 14-4, Declaration of Rachael Seguin (“Seguin Decl.”), ¶ 9 & Ex. A. II. LEGAL STANDARD FOR SUMMARY JUDGMENT Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden to demonstrate through “pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any,” that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory allegations subject to disregard ... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion” and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)). *2 When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 116 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 1998). “[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must “read [his or her] supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). III. DISCUSSION Defendant seeks summary judgment on the ground that Plaintiff failed to exhaust his available administrative remedies by failing to appeal the facility-level denial of his grievance. Dkt. No. 14-1, Def.'s Mem. of Law at pp. 6-7. Plaintiff counters that he attempted to exhaust his administrative remedies and that, even if he did not, he should be excused from the exhaustion requirement. Pl.'s Opp. at pp. 4-5. A. Exhaustion Procedure The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that “the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (stating that the mandatory language of § 1997e(a) forecloses judicial discretion to craft exceptions to the requirement). Furthermore, § 1997e(a) requires “proper exhaustion,” which means using all steps of the administrative process and complying with “deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). The defendant bears the burden of proving that the administrative remedies available to the plaintiff were not exhausted prior to the initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999). In New York, the administrative remedies consist of a three- step Inmate Grievance Program (“IGP”). First, a grievance is submitted to the Inmate Grievance Resolution Committee (“IGRC”), a committee comprised of both inmates and facility employees. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(b). An inmate must submit a grievance “within 21 calendar days of the alleged occurrence.” Id. at § 701.5(a). An inmate may request an extension of the time limit within forty-five days of the date of the alleged occurrence. Id. at § 701.6(g). The IGRC reviews and investigates the formal complaint and then issues a written determination. Id. at § 701.5(b). Second, upon appeal of the IGRC decision, the superintendent of the facility reviews the IGRC's determination and issues a decision. Id. at § 701.5(c). Finally, upon appeal of the superintendent's decision, the Central Office Review Committee (“CORC”) makes the final administrative determination. Id. at § 701.5(d). Only upon exhaustion of all three levels of review may a prisoner seek relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v. Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516. *3 An expedited procedure exists for grievances regarding alleged harassment; this procedure also requires the grievant receive a response from CORC in order to exhaust. 7 N.Y.C.R.R. § 701.8. Pursuant to this expedited procedure, the inmate may first report the incident to the employee's immediate supervisor. Id. at § 701.8(a). The inmate's allegations are then given a grievance number and the superintendent (or his designee) must promptly decide whether the grievance, if true, would represent a bona fide case of harassment. Id. at §§ 701.8(b) & (c). B. Plaintiff's Failure to Exhaust Administrative Remedies 1. Whether Plaintiff Actually Filed a Grievance Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 117 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 The record before the Court establishes that while DOCCS has a record of Plaintiff's initial grievance, there is no record of any appeal of the decision on that grievance to CORC. Gregory Decl. at ¶ 15; Seguin Decl., ¶ 9 & Ex. A. “Included within the IGP's exhaustion requirement is the prerequisite that the inmate file an appeal with CORC and receive a response from CORC prior to filing a federal lawsuit.” White v. Drake, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011), report and recommendation adopted, 2011 WL 4478921 (N.D.N.Y. Sept. 26, 2011); see also Berkley v. Ware, 2018 WL 3736791, at *5 (N.D.N.Y. July 6, 2018), report and recommendation adopted, 2018 WL 3730173 (N.D.N.Y. Aug. 6, 2018) (citing cases). Plaintiff makes a purely conclusory allegation that he appealed the grievance denial to CORC. Pl.'s Opp. at p. 4 (“Plaintiff appealed to the CORC”). 1 Significantly, Plaintiff has not provided a copy of the grievance appeal or even asserted on what date he filed the appeal. Gough v. Morris, 2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018), report and recommendation adopted, 2019 WL 416150 (N.D.N.Y. Feb. 1, 2019) (“there is no evidence in Plaintiff's opposition, or any other submission, of ... Plaintiff's alleged appeal to CORC.”). In light of the documented proof that no such appeal was filed, such a conclusory statement is insufficient to create a material question of fact on this Motion. Toliver v. Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016); Richardson v. Eberth, 2016 WL 1271078, at *4 (W.D.N.Y. Mar. 29, 2016). Under these circumstances, the record before the Court establishes that Plaintiff did not fully appeal his grievance regarding the alleged assault by Gadway. He, therefore, did not exhaust his administrative remedies. 2. Whether Plaintiff's Failure to Exhaust Administrative Remedies May be Excused A prisoner's failure to exhaust administrative remedies may nonetheless be excused if remedies were unavailable to the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the Supreme Court stated in Ross, “[a]n inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. The Court provided three potential circumstances in which administrative remedies may be unavailable: (1) where the administrative procedure technically exists but operates as a “dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use”; and (3) where prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. *4 Plaintiff appears to make two arguments for finding that administrative remedies were unavailable to him: the lack of guidance in DOCCS' grievance procedure and alleged threats made against him. Pl.'s Opp. at p. 5. Neither is sufficient to defeat the pending Motion. Plaintiff first claims that when he became aware that the appeal he claims to have filed was never received by CORC he looked to DOCCS's grievance procedure “for guidance on what to do ... and found no guidance whatsoever on what the next step would be.” Pl.'s Opp. at p. 5. Relying on Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), he contends he should be excused from the exhaustion requirement. See Pl.'s Opp. at p. 3. At the outset, this case presents a readily distinguishable fact pattern from that which the Second Circuit was confronted with in Williams. In that case, the District Court had dismissed the complaint based on lack of exhaustion because Plaintiff had not administratively appealed his grievance, even though the grievance had never been officially filed by DOCCS personnel at the correctional facility. Williams v. Priatno, 829 F.3d at 121. The Second Circuit reversed, finding that DOCCS' grievance procedures “do not describe a mechanism for appealing a grievance that was never filed.” Id. at 126. On the contrary here, there is no dispute that Plaintiff filed a grievance at the facility and that he received a response. Gregory Decl., Exs. B & C. It is also clear that DOCCS regulations specifically address what should have been done in a situation such as this when an appeal has allegedly been filed, but not responded to. Specifically, the applicable regulation provides that “[i]f a grievant does not receive a copy of the written notice of receipt within 45 days of filing an appeal, the grievant should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). This provision provided specific guidance to Plaintiff on how to proceed - when he did not receive notice that his appeal had been received by CORC he should have contacted the facility inmate grievance staff to verify that his appeal had been received and processed. There is no evidence that Plaintiff did so here and his failure cannot provide the basis for excusing him from the exhaustion requirement. This is not a situation, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 118 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 as in Williams, where the procedure was “so opaque and confusing” that the Plaintiff could have not understood how to proceed. Williams v. Prianto, 829 F.3d at 126. Finding Plaintiff's claims unexhausted is consistent with the decision in Gizewski v. New York State Dep't of Corr. and Cmty. Supervision which found that an inmate's claim is not exhausted if he fails to avail himself of the procedure in section 701.5(d)(3)(i). 2016 WL 3661434, at *13 (N.D.N.Y. July 5, 2016). In Gizewski, the record established that the plaintiff had filed an administrative appeal, but DOCCS personnel had failed to timely forward it to CORC. Id. at *3. Plaintiff then filed his federal lawsuit before receiving a decision on the appeal from CORC. Id. at *13. The Court acknowledged DOCCS' failure to properly process the appeal, but nonetheless granted judgment to defendants in part because “Plaintiff [wa]s also at fault for not taking any further action” pursuant to section 701.5. Id. Plaintiff here has a less compelling case than in Gizewski since there is no admissible evidence that he ever, in fact, filed an appeal to CORC. *5 Plaintiff also claims that he was threatened and retaliated against by Defendant. Pl.'s Opp. at p. 5. Under Ross, threats or other intimidation by prison employees may render administrative remedies unavailable. Ross v. Blake, 136 S. Ct. at 1860, n.3. Plaintiff's allegations are entirely conclusory, however. Plaintiff's Complaint claimed he was threatened only after filing the grievance, Compl. at p. 1, and he makes no claim that this alleged threat impacted his ability to appeal the grievance. McGinnis v. Crissell, 2019 WL 4395410, at *6 (N.D.N.Y. Apr. 26, 2019), report and recommendation adopted, 2019 WL 3228867 (N.D.N.Y. July 18, 2019) (citing cases). There is no specific allegation made by Plaintiff at all that any retaliatory action was ever taken against him as a result of filing the grievance. Such “general and conclusory statements that he was threatened are insufficient to raise a triable issue of fact as to the unavailability of the grievance procedure because of intimidation by prison administrators.” Lewis v. Wasielewski, 2018 WL 4732755, at *6 (W.D.N.Y. July 10, 2018), report and recommendation adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018) (citing cases). Plaintiff's conclusory claims, therefore, are no basis for denying summary judgment. To the extent Plaintiff attempts to argue that his grievance appeal may have been tampered with, Pl.'s Opp. at p. 5 (“Once [inmate mail] is picked up plaintiff no longer has any control over what happens to that piece of mail.”), his conclusory allegation in this regard is not sufficient to defeat summary judgment. “Courts have consistently held [ ] that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” Rosado v. Fessetto, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010); see also Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“Courts in this Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.”); Artis v. Dishaw, 2016 WL 11266599, n.13 (N.D.N.Y. Sept. 12, 2016) (finding that plaintiff's failure to exhaust was not excusable, in part because, while the plaintiff “state[d] that some grievances were destroyed, but he has not submitted any copies of these grievances, nor does he specify when he attempted to file them.”). Accordingly, the Court finds that Plaintiff has not established an issue of material fact as to the availability of administrative remedies. The Court therefore recommends that Defendants' Motion be granted based upon Plaintiff's failure to exhaust. IV. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Defendant's Motion for Summary Judgment (Dkt. No. 14) be GRANTED; and it is further RECOMMENDED, that the Complaint be DISMISSED; and it is ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 119 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 All Citations Not Reported in Fed. Supp., 2019 WL 5191506 Footnotes 1 Plaintiff did not submit a sworn statement attesting to the fact that he filed an appeal. Nor did he file a response to Defendant's Statement of Material Facts. Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules, see Marino v. Watts, 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed. Appx. 73 (2d Cir. 2019). The Court therefore will deem the facts as set forth in Defendant's Statement of Material Facts admitted, to the extent they are properly supported by the record. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 120 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 1227156 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Bryant GIBBS, Plaintiff, v. Christopher L. GADWAY, Corr. Officer, Clinton Corr. Fac., Defendant. 9:19-CV-0281 (GTS/DJS) | Signed 03/13/2020 Attorneys and Law Firms BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points Correctional Facility, Caller Box 119, Romulus, New York 14541. HON. LETITIA A. JAMES, Attorney General for the State of New York, OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ., Assistant Attorney General, Counsel for Defendant, The Capitol, Albany, New York 12224. DECISION and ORDER GLENN T. SUDDABY, Chief United States District Judge *1 Currently before the Court, in this pro se prisoner civil rights action filed by Bryant Gibbs (“Plaintiff”) against Christopher L. Gadway, a corrections officer at Clinton Correctional Facility (“Defendant”), are (1) United States Magistrate Judge Daniel J. Stewart's Report- Recommendation recommending that Defendant's motion for summary judgment be granted, and (2) Plaintiff's Objection thereto. (Dkt. Nos. 19, 22.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Defendant's motion is granted. As a threshold matter, the Court finds that Plaintiff's Objection is untimely. Although the Objection is undated (Dkt. No. 22, at 20), its envelope is post-marked November 5, 2019 (Dkt. No. 22, Attach. 1, at 1). Even if the Court were to assume that Plaintiff handed the envelope to correctional officer for mailing before November 5, 2019, he could not have done so before November 2, 2019, which is the date on which he had an enclosed affidavit and affirmative of service notarized (Dkt. No. 22, at 24, 26). The deadline for Plaintiff's Objection to the Report-Recommendation (which was mailed to him on October 15, 2019), was November 1, 2019. 1 As a result, no timely Objection has been filed to the Report- Recommendation; and the Objection is thus entitled to merely a clear-error review, 2 which the Court finds it easily satisfies for the cogent reasons stated therein (see generally Dkt. No. 19). In any event, even if the Court were to accept Plaintiff's untimely Objection, the Court would still accept and adopt the Report-Recommendation. The thrust of Plaintiff's Objection is an attempt to adduce evidence (specifically, sworn testimony and a letter) showing that he had submitted to the Central Office Review Committee (or “CORC”) a timely appeal from the superintendent's denial of his grievance. (See, e.g., Dkt. No. 22, at 21-24 [containing Plf.’s Affidavit]; Dkt. No. 22, at 25 [containing a letter from Plaintiff to CORC]; Dkt. No. 22, at 1-20 [containing Plf.’s verified Objections].) However, none of this evidence was submitted to Magistrate Judge Stewart. (Compare id. with Dkt. No. 17 [Plf.’s Response to Def.’s Motion for Summary Judgment].) This failure is inexcusable given the specific notice that Plaintiff was twice given of the consequences of evidentiary deficiencies in his response to Defendant's motion. (Dkt. No. 14, at 3; Dkt. No. 15.) A district court may, and ordinarily does, refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance. 3 Although Plaintiff asserts that “[i]t wasn't until recently that [he] ... found a copy of the ... letter that he ... [had] written to the Central Office Review Committee” (Dkt. No. 22, at 14), he makes no showing that his failure to discover the letter sooner occurred despite his exercise of due diligence. Moreover, he does not even attempt to excuse his failure to submit his sworn testimony to Magistrate Judge Stewart. Under the circumstances, the Court finds that considering Plaintiff's late-blossoming evidence would frustrate the purpose of the Federal Magistrates Act of 1968. *2 Finally, even if the Court were to consider this late- blossoming evidence, the Court would be forced to reject it. Ordinarily, of course, a district court may not make credibility determinations on a motion for summary judgment. However, that general rule contains an exception: where, as here, the non-movant has adduced evidence that is so internally contradictory that no reasonable juror would undertake the suspension of disbelief necessary to credit the non-movant's allegations. See Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) (setting forth applicable standard for when to disregard testimony on motion for summary Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 121 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 judgment). In such a circumstance, the district court must make a credibility determination because the very act of considering the portion of evidence that would create a genuine dispute of material fact would constitute a rejection of the contradictory evidence as not credible. Here, the facts are analogous to the extreme facts present in Jeffreys. Plaintiff has adduced evidence that purports to show both (1) that immediately after the superintendent's denial of his grievance on July 16, 2016, Plaintiff filed an appeal with CORC (Dkt. No. 22, at 3, 22), and (2) “over two months” before July 16, 2016, Plaintiff filed his appeal with CORC, then (approximately a month later) sent a letter complaining about its non-response to his appeal, and then (on July 16, 2016) sent a second such letter (Dkt. No. 22, at 25). It is undisputed that Plaintiff filed his grievance on June 13, 2016. (Dkt. No. 14, Attach. 2, at ¶ 17.) It is also undisputed that the superintendent denied that grievance on July 16, 2016. (Id. at ¶ 19.) It is simply impossible that Plaintiff appealed that denial two months before July 16, 2016 (or on or about May 16, 2016). For each of these three alternative reasons, the Court rejects Plaintiff's Objection and accepts and adopts Magistrate Judge Stewart's Report-Recommendation. ACCORDINGLY, it is ORDERED that Magistrate Judge Stewart's Report- Recommendation (Dkt. No. 19) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendant's motion for summary judgment (Dkt. No. 14) is GRANTED; and it is further ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. All Citations Not Reported in Fed. Supp., 2020 WL 1227156 Footnotes 1 Under the applicable rules, the time period for the filing of an Objection is fourteen (14) calendar days from the date of filing of the Report-Recommendation (unless the fourteenth day is a Saturday, Sunday, or legal holiday, in which case the period continues to run until then end of the next day that is not a Saturday, Sunday, or legal holiday), plus three (3) calendar days if the Report-Recommendation was served on the objecting party by mail. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a) (1)(C); Fed. R. Civ. P. 6(d). 2 “When no timely objection [to a recommendation] is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, the court is permitted to adopt the sections reviewed “so long as those sections are not facially erroneous.” See Batista v. Walker, 94- CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”). 3 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 122 of 290
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary evidentiary hearing is required.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 123 of 290
Grant v. Annucci, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 1919475 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Jamal GRANT, Plaintiff, v. Anthony ANNUCCI, Commissioner, et al., Defendants. 1:19-CV-01188 EAW | Signed July 11, 2025 Attorneys and Law Firms Jamal Grant, Comstock, NY, Pro Se. Daniel Ryan Maguire, Joel J. Terragnoli, New York State Attorney General's Office, Buffalo, NY, for Defendant Shields. DECISION AND ORDER ELIZABETH A. WOLFORD, Chief Judge INTRODUCTION *1 Pro se plaintiff Jamal 1 Grant (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983 asserting claims that arose while he was incarcerated at Five Points Correctional Facility (“Five Points”), a facility within the New York State Department of Corrections and Community Supervision (“DOCCS”). (Dkt. 1; Dkt. 17; Dkt. 23). Presently before the Court is a motion for summary judgment (Dkt. 64) filed by defendant Robert Shields (“Defendant”), who was formerly employed as the Acting Deputy Superintendent of Security at Five Points (see Dkt. 64-9 at ¶¶ 1-2). 2 For the following reasons, Defendant's motion is granted. BACKGROUND Plaintiff filed his complaint on September 5, 2019, and amended complaint on June 1, 2021. (Dkt. 1; Dkt. 17). On October 4, 2021, Plaintiff filed a second amended complaint. (Dkt. 23). The Court screened Plaintiff's complaint, amended complaint, and second amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Based on that screening, Plaintiff's First Amendment retaliation claim and Eighth Amendment conditions of confinement claim against Defendant were permitted to proceed to service. (Dkt. 14 at 14; Dkt. 19 at 14; see Dkt. 31 at 6-11). The crux of Plaintiff's claims that survived screening were that upon his release from the Special Housing Unit, Defendant targeted Plaintiff by placing him on contraband watch between August 13 and August 21, 2019, during which time Plaintiff was allegedly stripped naked and forced to sleep on a steel bed with no mattress, sheets, or a blanket for nine days, written up with misbehavior reports, and denied medical care. (See Dkt. 31 at 6-7, 9, 10; see also Dkt. 64-2 at ¶¶ 7, 11, 39 (outlining placement on contraband watch on August 13, 2019, and release from contraband watch on August 21, 2019)). On October 17, 2024, Defendant filed his motion for summary judgment. (Dkt. 64; Dkt. 65). Plaintiff filed a response to the motion for summary judgment on January 21, 2025. (Dkt. 69). 3 Defendant replied on January 30, 2025. (Dkt. 70). DISCUSSION I. Summary Judgment Legal Standard *2 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, it finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “The moving party bears the burden of showing the absence of a genuine dispute as to any material fact....” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 124 of 290
Grant v. Annucci, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 and may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non- moving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). II. Plaintiff's Claims are Unexhausted Defendant argues that he is entitled to summary judgment on Plaintiff's claims because Plaintiff never filed a grievance related to his claims against Defendant or otherwise exhausted his administrative remedies. (Dkt. 64-1 at 10-12). Plaintiff's opposition admits that he has no documents to suggest otherwise (Dkt. 69 at 2), and a review of Plaintiff's other filings in this case reveal no evidence that he exhausted his administrative remedies with respect to the claims against Defendant. The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy the PLRA's exhaustion requirement, a plaintiff must demonstrate the “proper exhaustion of administrative remedies.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “Compliance with prison grievance procedures...is all that is required by the PLRA to ‘properly exhaust.’ ” Jones v. Bock, 549 U.S. 199, 218 (2007). As such, “[t]he exhaustion inquiry...requires that [the court] look at the state prison procedures and the prisoner's grievance to determine whether the prisoner has complied with those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). *3 “Exhaustion is mandatory—unexhausted claims may not be pursued in federal court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). However, “[f]ailure to exhaust administrative remedies is an affirmative defense...and when raised as a basis for summary judgment, the defendant ‘bears the initial burden of establishing, by pointing to legally sufficient sources such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute.’ ” Deleon v. Ayers, No. 16-CV-6848L, 2023 WL 171889, at *2 (W.D.N.Y. Jan. 12, 2023) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)). In New York, proper exhaustion entails going through a three-step appeal procedure set out in 7 N.Y.C.C.R. § 701.5. Garraway v. Smith, No. 12-CV-924S, 2020 WL 491328, at *4 (W.D.N.Y. Jan. 30, 2020). This section provides: (1) the inmate must submit a written complaint to the Grievance Clerk within 21 calendar days of the alleged occurrence; the Grievance Clerk then submits the complaint to the Inmate Grievance Resolution Committee (“IGRC”) for investigation and review; (2) if the IGRC denies the grievance, the inmate may appeal to the superintendent of the facility by filing an appeal with the [Grievance Clerk]; (3) after the superintendent issues a decision, the inmate may appeal to CORC, which makes the final administrative determination. Id. An inmate may only seek relief under § 1983 “[i]f all three levels of review are exhausted.” Id. “[I]nmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures.” Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004). DOCCS Directive 4040, which Defendant has submitted in support of his motion, pertains to the Inmate Grievance Program, and requires that the contents of the grievance “contain a concise, specific description of the problem and the action requested and indicate what actions the grievant has taken to resolve the complaint.” (Dkt. 64-5 at 12). “This requirement, the Second Circuit has held, is analogous to the requirements of notice pleading.” Solano v. Aubin, No. 9:20-CV-1378 (BKS/ML), Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 125 of 290
Grant v. Annucci, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 2023 WL 5200397, at *5 (N.D.N.Y. Aug. 14, 2023) (citing Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)). “As in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief[;] [a]ll the grievance need do is object intelligibly to some asserted shortcoming.” Johnson, 380 F.3d at 697 (quotation omitted). DOCCS Directive 4040 does not require that inmates name specific defendants. (See Dkt. 64-5 at 12); see also Solano, 2023 WL 5200397, at *5 (“a grievance need not identify parties by name”). Nor does the PLRA itself impose a “name all defendants” requirement. Jones v. Bock, 549 U.S. 199, 217 (2007). In support of his argument that Plaintiff failed to exhaust his administrative remedies, Defendant attaches a declaration with exhibits from Mandi Schultz, the Five Points Inmate Grievance Supervisor, who establishes that a search of the IGRC revealed no grievances filed by Plaintiff regarding his being placed on contraband watch between August 13-19, 2019. (Dkt. 64-6 at ¶¶ 8-10 & Ex. B). Defendant also attaches a declaration with exhibits from Rachael Seguin, the DOCCS Director of Incarcerated Grievance Program, (Dkt. 64-5), who establishes that Plaintiff did not appeal any facility- level determinations from Five Points during the relevant time regarding his placement on contraband watch (id. at ¶ 11). The printout from the CORC database submitted by Ms. Seguin shows 68 compiled grievances appealed to CORC by Plaintiff between April 10, 2006, and January 23, 2023. (See id.). But none relate to the issues in this litigation. Plaintiff filed a grievance on July 25, 2019 (i.e., before the relevant time period at issue in this litigation), stating that he had not been seen by medical. (Id. at 26). Plaintiff's next grievance was filed on November 5, 2019, complaining about “[k]eeplock” in SHU. (Id.). 4 *4 Thus, Defendant has established through admissible evidence that Plaintiff did not file any grievances regarding his retaliation claim and conditions of confinement claim. Plaintiff has submitted no evidence to contradict these undisputed facts. The Court has considered that Plaintiff attached a letter to his amended complaint, which is directed to the Clerk of Court and attempts to bring a criminal action against Defendant and other officers. (Dkt. 17 at 14). But complaint letters do not satisfy exhaustion requirements. Hernandez v. Coffey, No. 99 CIV. 11615 (WHP), 2003 WL 22241431, at *3 (S.D.N.Y. Sept. 29, 2003) (holding that the plaintiff's “complaint letters are insufficient to exhaust his administrative remedies”) (collecting cases). Accordingly, Defendant's request for summary judgment on this basis is granted. CONCLUSION For the foregoing reasons, Defendant's motion for summary judgment (Dkt. 64) is granted and the Clerk of Court is directed to enter judgment in favor of Defendant. SO ORDERED. All Citations Slip Copy, 2025 WL 1919475 Footnotes 1 Based on a review of the records (see, e.g., Dkt. 64-8 at 11 (Plaintiff's deposition transcript where he spells his name)), it is apparent that Plaintiff's first name is misspelled on the docket. The Clerk of Court is directed to change the caption as noted above and change Plaintiff's first name from “Jamah” to “Jamal.” 2 The only claims that were permitted to proceed to service were claims against defendant Shields. (See Dkt. 19 at 14). Thus, consistent with the Court's prior directions (see, e.g., Dkt. 19 at 14), the Clerk of Court is directed to terminate all other defendants. 3 Despite being granted an extension of time to file his response (Dkt. 68) and being afforded three months to respond to the summary judgment motion, Plaintiff's response fails to adequately address the merits of the motion (see Dkt. 69). Plaintiff claims that he is unable to properly respond to the motion because of his lack of Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 126 of 290
Grant v. Annucci, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 mental capacity and an inadequate law library. (Id.). But Plaintiff has been actively litigating this action pro se for six years, filing amended pleadings and successfully defending a motion to dismiss. (See, e.g., Dkt. 29). Plaintiff's claims that he is not able to defend the summary judgment motion are conclusory and contradicted by Plaintiff's track record of litigation activity in this matter. In other words, the record indicates that Plaintiff has pursued and can pursue this action. Indeed, this is not Plaintiff's first pro se lawsuit that he has pursued in this district. See Grant v. Myer et al., Case No. 6:07-cv-06256-CJS-MWP, Dkt. 24 (W.D.N.Y. Jan. 26, 2010) (case settled by payment to Plaintiff of $5,400). Notwithstanding the lack of any meaningful response from Plaintiff, the Court has carefully considered the record in resolving the pending summary judgment motion and will not just accept Defendant's contention that the material facts should be deemed undisputed by virtue of Plaintiff's failure to adequately respond. (Dkt. 70 at 2-3). 4 Even if the Court were to assume the November 5, 2019 grievance was written about Defendant, the grievance was filed well after the allowed 21 calendar days after the alleged occurrence. See Garraway, 2020 WL 491328, at *4. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 127 of 290
Hernandez v. Coffey, Not Reported in F.Supp.2d (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2003 WL 22241431 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Jose HERNANDEZ, Plaintiff, v. Kevin R. COFFEY, C.O., Lawrence J. Featherston, C.O. James Chamberlain, Sgt., M. Taylor, Nurse, Defendants. No. 99 Civ. 11615(WHP). | Sept. 29, 2003. Synopsis Inmate brought a pro se § 1983 action against corrections officers, alleging civil rights violations. On a defense motion for judgment on the pleadings, the District Court, Pauley, J., held that the inmate failed to satisfy the Prison Litigation Reform Act's (PLRA) exhaustion requirement. Motion granted. West Headnotes (3) [1] Courts In General; Retroactive or Prospective Operation Supreme court decision establishing that the Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust every claim he wishes to assert prior to filing a claim in district court applies retroactively to prisoners who filed their suits prior to the Supreme Court's pronouncement. Civil Rights of Institutionalized Persons Act, § 7(a), as amended, 42 U.S.C.A. § 1997e(a). 2 Cases that cite this headnote [2] Prisons Particular Cases Inmate's alleged complaint letters to the Commissioner of the New York Department of Corrections, a county district attorney, and the State Police did not satisfy the Prison Litigation Reform Act's (PLRA) exhaustion requirement. Civil Rights of Institutionalized Persons Act, § 7(a), as amended, 42 U.S.C.A. § 1997e(a); N.Y. Correction Law § 139; N.Y. Comp.Codes R. & Regs tit. 7, § 701.7(a)(1). 9 Cases that cite this headnote [3] Civil Rights Criminal Law Enforcement; Prisons Inmate claiming civil rights violations in connection with an alleged attack by corrections officers failed to satisfy the Prison Litigation Reform Act's (PLRA) exhaustion requirement, as required to file § 1983 suit, where he did not exhaust his administrative appeals or advance any excuse for his failure to exhaust. Civil Rights of Institutionalized Persons Act, § 7(a), as amended, 42 U.S.C.A. § 1997e(a); N.Y. Correction Law § 139; N.Y. Comp.Codes R. & Regs tit. 7, § 701.7(a)(1). 18 Cases that cite this headnote Attorneys and Law Firms Jose Hernandez, Sullivan Correctional Facility, Fallsburg, New York, Plaintiff, pro se. Susan H. Odessky, Assistant Attorney General, State of New York, Office of the Attorney General, New York, New York, for Defendants. MEMORANDUM AND ORDER PAULEY, J. *1 Pro se plaintiff, Jose Hernandez, brings this action against defendants Correction Officer Kevin R. Coffey, Corrections Officer Lawrence J. Featherston, Sergeant James Chamberlain, and M. (Michelle) Taylor, all employed at Downstate Correction Facility (“Downstate”), for civil rights violations pursuant to 42 U.S.C. § 1983 (2003). Defendants move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure based on Hernandez's failure to exhaust his available administrative remedies prior to the initiation of this action. For the following reasons, defendants' motion is granted. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 128 of 290
Hernandez v. Coffey, Not Reported in F.Supp.2d (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Background The Complaint alleges a horrific attack by the New York State Department of Correctional Services (“DOCS”) personnel on Hernandez while he was incarcerated at Downstate. Hernandez was transiting through Downstate to Clinton Correctional Facility (“Clinton”) following his appearance in New York State Family Court, King County. Following the attack, Hernandez was warned that if he told anyone about it he would be killed. The alleged attack and events in its wake occurred on November 5 and 6, 1998. Hernandez commenced this action on November 29, 1999, alleging that the defendants beat him, and denied him medical care, in violation of his constitutional rights to due process and to be free from cruel and unusual punishment. In his Complaint, and in an affidavit submitted to this Court on May 16, 2002, 1 Hernandez alleges that he exhausted the administrative remedies available to him by sending letters to Glenn S. Goord, the Commissioner of DOCS, the New York State Police, and William B. Grady, District Attorney of the “Poughkeepsie area.” 2 Hernandez further indicated that as a result of these letters, no action was taken and “no results” were achieved. Discussion The applicable legal standards for a Rule 12(c) motion for judgment on the pleadings are the same as a Rule 12(b) (6) motion to dismiss for failure to state a claim. King v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir.2002); Bunting v. Nagy, No. 01 Civ. 5716(SHS), 2003 WL 21305339, at *2 (S.D.N.Y. June 6, 2003). The Court must accept as true the allegations contained in the Complaint and draw all reasonable inferences in favor of the nonmoving party. King, 284 F.3d at 356; Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999). Dismissal of a complaint pursuant to Rule 12(c) is appropriate only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v.. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). Further, as with a 12(b)(6) motion, a pro se litigant such as Hernandez is allowed a special latitude in responding to a motion for judgment on the pleadings. See Bunting, 2003 WL 21305339, at *2. Defendants present this Court with a single challenge to the Complaint. Defendants argue that judgment on the pleadings should be granted because, accepting the allegations contained in the Complaint as true and drawing all reasonable inferences in favor of the non-moving party, Hernandez failed to exhaust his administrative remedies as required by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Hernandez contends that he filed both formal and informal grievances, but that no action was taken by DOCS, and thus his remedies should be deemed exhausted. 3 I. Failure to Exhaust Administrative Remedies *2 As Amended, the Prison Litigation Reform Act of 1996 (“PLRA”), 42 USC § 1997e(a) provides: No action shall be brought with respect to prison conditions under section 1983 of this title, or another Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted. This provision of the PLRA imposes a mandatory exhaustion requirement on incarcerated plaintiffs prior to filing an action with the Court. See Porter, 534 U.S. at 524; Brown v. Commissioner, No. 99 Civ. 976(WHP), 2003 WL 1571699, at *3 (S.D.N.Y. Mar.26, 2003); Baskerville v. Blot, 224 F.Supp.2d 723, 728-29 (S.D.N.Y.2003); Harris v. Totten, 244 F.Supp.2d 229, 232 (S.D.N.Y.2003). The effectiveness of the administrative remedy is no longer a prerequisite to the exhaustion requirement. Porter, 534 U.S. at 524. Prior to the Supreme Court's decision in Porter, the law in the Second Circuit was that the “ ‘prison conditions' phrase [in the PLRA] cover[ed] only conditions affecting prisoners generally, not single incidents that immediately affect only particular prisoners, such as corrections officers' use of excessive force.” Porter, 534 U.S. at 516. However, the Supreme Court, in Porter, held that “the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 129 of 290
Hernandez v. Coffey, Not Reported in F.Supp.2d (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. at 516. Thus, after Porter it is clear that the PLRA requires a prisoner to exhaust every claim he wishes to assert prior to filing a claim in district court. See Muhammad v. Pico, No. 02 Civ. 1052(AJP), 2003 WL 21792158, at *7-8 (S.D.N.Y. Aug.5, 2003); Brown, 2003 WL 1571699, at *2; Harris, 244 F.Supp.2d at 232. Subsequent to Porter, courts in the Second Circuit have routinely ruled that excessive force and deliberate indifference claims, such as plaintiff's, are subject to the PLRA's exhaustion requirements. See, e.g., Lawrence v. Goord, 304 F.3d 198, 199 (2nd Cir.2002); Harris, 244 F.Supp.2d at 232-33. Accordingly, all of Hernandez's claims are subject to the PLRA's exhaustion requirement. [1] Hernandez argues that he should not be subject to Porter because the law in the Second Circuit when he filed this action did not require administrative exhaustion for claims such as his. Assuming arguendo that plaintiff's analysis is correct, there is no question that the law as enunciated in Porter applies retroactively to prisoners such as Hernandez who filed their suits prior to the Supreme Court's pronouncement in Porter. See Brown, 2003 WL 1571699, at *3; Harris, 244 F.Supp.2d at 232 n. 2; Espinal v. Goord, No. 01 Civ. 6569(NRB), 2002 WL 1585549, at *2 n. 3; Hemphill v. New York, 198 F.Supp.2d 546, 549-50 (S.D.N.Y.2002). Moreover, application of the Porter rule to plaintiff is neither inequitable nor unconstitutional since the Second Circuit's decisions on which plaintiff relies “were not handed down until well after the time when [plaintiff] failed to file a timely grievance,” which in this case was late 1998. Hemphill, 198 F.Supp.2d at 550; see, e.g., Lawrence v. Goord, 238 F.3d 182 (2d Cir.2001), vacated by Goord v. Lawrence, 535 U.S. 901, 122 S.Ct. 1200, 152 L.Ed.2d 139 (2002); Nussle v. Willette, 224 F.3d 95 (2d Cir.2000), vacated by Porter, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12. A. DOCS' Grievance Procedures *3 [2] DOCS has a well-established three-step administrative inmate grievance program (“IGP”) to resolve inmate grievances. See N.Y. Correction Law § 139; N.Y. Comp.Codes R. & Regs. tit. 7, § 701 .7(a)(1). The IGP requires the inmate to: (1) file a complaint with the Inmate Grievance Review Committee (“IGRC”); (2) appeal to the facility superintendent; and (3) appeal to the DOCS Central Office Review Committee (“CORC”) in Albany. N.Y. Comp.Codes R. & Regs tit. 7, § 701.7(a)(1); see also Brown, 2003 WL 1571699, at *3 (explaining IGP process); Harris, 244 F.Supp.2d at 233 (same); Hemphill, 198 F.Supp.2d at 548 (same). A prisoner's remedies are not deemed exhausted until he goes though all three levels of the IGP. Thus, once an inmate files a grievance, he must exhaust all administrative appeals in order to satisfy the PLRA's exhaustion requirement. 4 Brown, 2003 WL 1571699, at *3; Rivera v. Goord, 253 F.Supp.2d 735, 746 (S.D.N.Y.2003); Harris, 244 F.Supp.2d at 232; Kearsey v. Williams, No. 99 Civ. 8646(DAB), 2002 WL 1268014, at *2 (S.D.N.Y. June 6, 2002); Waters v. Schneider, No. 01 Civ. 5217(SHS), 2002 WL 727025, at *1-2 (S.D.N.Y. Apr.23, 2002); Hemphill, 198 F.Supp.2d at 548-49; see also Sulton v. Wright, 265 F.Supp.2d 292, 296 (S.D.N.Y.2003) (“Inmates must therefore exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss.”); Sedney v. Hasse, No. 02 Civ. 2583(DC), 2003 WL 21939702, at *4 (S.D.N.Y. Aug.17, 2003) (“A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure.”). Prison officials are entitled to require strict compliance with the existing grievance procedures. Sedney, 2003 WL 21939702, at *4; Baskerville, 224 F.Supp.2d at 730; Hemphill, 198 F.Supp.2d at 549. To satisfy the PLRA exhaustion requirement, inmates must follow procedures established by New York State rather than “invent their own grievance procedures.” Hemphill, 198 F.Supp.2d at 549. Both in his Complaint and affidavit, Hernandez acknowledges that he never filed a formal IGP grievance for his claims in this action. Instead, he asserts that he sought to resolve his grievance by writing to Glenn S. Goord, the Commissioner of DOCS, the Dutchess County District Attorney and the State Police in Albany. However, it is well settled that complaint letters to DOCS or prison officials do not satisfy the PLRA's exhaustion requirements. See Sedney, 2003 WL 21939702, at *4 (noting that courts have “repeatedly held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.”); Muhammad, 2003 WL 21792158, at *8 (“District court decisions in this circuit have repeatedly held that complaint letters to DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.”); Harris, 244 F.Supp.2d at 233 (“However, letters to prison officials do not satisfy the exhaustion requirement of the PLRA where the inmate has failed to follow the established grievance procedures.”); Hemphill, 198 F.Supp.2d at 549 (“[A] letter to Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 130 of 290
Hernandez v. Coffey, Not Reported in F.Supp.2d (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 the Superintendent has been expressly held to be ‘insufficient’ to warrant considering a matter ‘effectively grieved.” ’); Beatty v. Goord, 210 F.Supp.2d 250, 255-56 (S.D.N.Y.2000) (holding that writing letters to the Superintendent is not sufficient to comply with the IGP). The same rationale for requiring strict compliance with the IGP applies with equal force to the State Police and the District Attorney. Thus, Hernandez's complaint letters are insufficient to exhaust his administrative remedies. *4 [3] Perhaps recognizing his deficiencies, Hernandez asserts in opposition to defendants' motion, that he filed a timely grievance. (Opp. at 5-6, 9-10.) Specifically, he now claims to have filed a grievance at Clinton on November 10, 1998, but asserts it was never answered, and that he did not receive a grievance number or hearing. (Opp. at 5 & Ex. F.) Hernandez also contends that he sent a request for a response to the chairperson of the inmate grievance office at Clinton on February 15, 2000. (Opp. at 6 & Ex. I.) These new allegations contradict Hernandez's earlier statements concerning his exhaustion efforts. However, this Court need not decide whether to accept Hernandez's new allegations because even if they are true, he still has not properly exhausted his administrative remedies. As noted above, a prisoner must proceed though all three levels of the IGP to satisfy the PLRA's exhaustion requirement. Brown, 2003 WL 1571699, at *3; Rivera, 253 F.Supp.2d at 746; Harris, 244 F.Supp.2d at 232; Waters v. Schneider, No. 01 Civ. 5217(SHS), 2002 WL 727025, at *1 (S.D.N.Y. Apr.23, 2002); Hemphill, 198 F.Supp.2d at 548-49. Thus, where a prisoner files a grievance, and the IGRC does not respond, the inmate must nevertheless exhaust his appeals to the facility superintendent and the CORC. Brown, 2003 WL 1571699, at *3; Harris, 244 F.Supp.2d at 232; Kearsey, 2002 WL 1268014, at *2; Waters, 2002 WL 727025, at *1; Hemphill, 198 F.Supp.2d at 548-49; see also Saunders v. Goord, No. 98 Civ. 8501(JGK), 2002 WL 1751341, at *3 (S.D.N.Y. July 29, 2002) (“Even if the plaintiff did not receive responses directed toward some grievances, the plaintiff was required, at a minimum, to make reasonable attempts to appeal those grievances before bringing an action in federal court....”). Hernandez's latest allegations do not establish that he pursued his available appeals within the IGP. Even assuming that plaintiff's request for a response was a level two appeal under the IGP, it is clear that plaintiff never appealed to the CORC in Albany, and thus his claims are unexhausted. Brown, 2003 WL 1571699, at *3; Benitez v. Straley, No. 01 Civ. 181(RCC), 2002 WL 31093608, at *3 (S.D.N.Y. Sept.18, 2002); Saunders, 2002 WL 1751341, at *3; Kearsey, 2002 WL 1268014, at *2; Waters, 2002 WL 727025, at *1; Hemphill, 198 F.Supp.2d at 548. Finally, Hernandez has not advanced any excuse for his failure to exhaust his administrative remedies under the IGP. The circumstances of this case do not warrant a determination that Hernandez exhausted his administrative remedies. 5 For example, he does not allege that anyone hindered his ability to file a grievance. Although Hernandez alleges that he was threatened with retaliation, he does not allege that those threats hindered him in any way. It is evident that he was not hindered from reporting the alleged incident because he wrote to DOCS officials and the District Attorney's office complaining about the attack at Downstate. Conclusion *5 Accordingly, Hernandez's failure to exhaust available administrative remedies compels judgment on the pleadings in defendant's favor and dismissal of the Complaint. Dismissal of an action for failure to comply with the PLRA's exhaustion requirement is without prejudice. Morales v. Mackalm, 278 F.3d 126, 128 (2d Cir.2002) (per curiam). Defendant's motion for judgment on the pleadings is granted and the Complaint is dismissed without prejudice. The Clerk fo the Court is directed to close this case. All Citations Not Reported in F.Supp.2d, 2003 WL 22241431 Footnotes 1 At a pre-trial conference on May 3, 2002, this Court directed Hernandez to submit a sworn affidavit explaining how he exhausted his administrative remedies concerning the instant claims, and attaching any copies Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 131 of 290
Hernandez v. Coffey, Not Reported in F.Supp.2d (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 of grievances or letters he alleges were part of that process. The Court received such an affidavit from Hernandez on May 16, 2002. (Affidavit of Jose Hernandez, dated May 10, 2002 (“Hernandez Aff.”).) 2 Plaintiff also notes that he sent a letter complaining about the incidents to then-Chief Judge Thomas P. Griesa of the Southern District of New York. Then-Chief Judge Griesa subsequently replied to plaintiff's letter by sending him instructions on how to file a civil lawsuit. (Hernandez Aff'. ¶ 6.) 3 Defendants attach several documents to their motion for judgment on the pleadings, and argue that the Court may consider them without converting the motion to one for summary judgment under Rule 56 because they are incorporated by reference into the Complaint. Without determining whether defendants are correct, this Court will not consider the documents defendants submitted since this Court finds that defendants' motion must be granted based on the four corners of the Complaint and plaintiff's affidavit. 4 The Second Circuit and some courts in this district have found that a prisoner can be deemed to have informally exhausted his remedies if a resolution of the issue in the prisoner's favor has been reached. See, e.g., Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.2001); Sedney v. Hasse, No. 02 Civ. 2583(DC), 2003 WL 21939702, at *4 (S.D.N.Y. Aug.17, 2003); Rivera, 253 F.Supp.2d at 746. Notably, Hernandez alleges precisely the opposite, namely that despite his many pleas and letters, a resolution on this matter was never reached. Thus, he cannot be deemed to have informally exhausted his remedies. 5 Moreover, although Hernandez does not make such an argument, to the extent that he could argue that his noncompliance with the IGP requirements was due to his transfer from Downstate back to Coxsackie the day after the incident, that argument is unavailing. First, “New York's Inmate Grievance Program contains provisions that allow prisoners to pursue grievances even after their transfer out of the facility where their claims arose.” Timmons v. Pereiro, No. 00 Civ. 1278(LAP), 2003 WL 179769, at *2 (S.D.N.Y. Jan.27, 2003); see also Delio v. Morgan, No. 00 Civ. 7167(LTS), 2003 WL 21373168, at *3 (S.D.N.Y. Jun.13, 2003) (rejecting transfer argument and relying on 7 N.Y.C.R.R. § 701.3(k)(2)). Finally, such an argument would indirectly raise a futility argument, and it is well-settled that futility of the administrative remedy is not an excuse for failure to exhaust. Santiago v. Meinsen, 89 F.Supp.2d 435, 440-41 (S.D.N.Y.2000); accord Paulino v. Amicucci, No. 02 Civ. 208(LAP), 2003 WL 174303, at *3 (S.D.N.Y. Jan.27, 2003). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 132 of 290
Hudson v. Artuz, Not Reported in F.Supp.2d (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1998 WL 832708 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Theodore HUDSON, Plaintiff, v. Christopher ARTUZ, Warden Philip Coombe, Commissioner Sergeant Ambrosino Doctor Manion Defendants. No. 95 CIV. 4768(JSR). | Nov. 30, 1998. Attorneys and Law Firms Mr. Theodore Hudson, Great Meadow Correctional Facility, Comstock. Alfred A. Delicata, Esq., Assistant Attorney General, New York. MEMORANDUM AND ORDER BUCHWALD, Magistrate J. *1 Plaintiff Theodore Hudson filed this pro se action pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's complaint alleges defendants violated his constitutional rights while he was an inmate at Green Haven Correctional Facility. 1 Plaintiff's complaint was dismissed sua sponte by Judge Thomas P. Griesa on June 26, 1995 pursuant to 28 U.S.C. § 1915(d). On September 26, 1995, the Second Circuit Court of Appeals vacated the judgment and remanded the case to the district court for further proceedings. The case was reassigned to Judge Barbara S. Jones on January 31, 1996. Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996. Thereafter, the case was reassigned to Judge Jed S. Rakoff on February 26, 1997. On February 26, 1998, Judge Rakoff granted defendants' motion to dismiss, but vacated the judgment on April 10, 1998 in response to plaintiff's motion for reconsideration in which plaintiff claimed that he never received defendants' motion to dismiss. By Judge Rakoff's Order dated April 14, 1998, this case was referred to me for general pretrial purposes and for a Report and Recommendation on any dispositive motion. Presently pending is defendants' renewed motion to dismiss. Plaintiff filed a reply on July 6, 1998. For the reasons discussed below, plaintiff's complaint is dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this order. FACTS Plaintiff alleges that he was assaulted by four inmates in the Green Haven Correctional Facility mess hall on March 14, 1995. (Complaint at 4.) He alleges that he was struck with a pipe and a fork while in the “pop room” between 6:00 p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends that the attack left him with 11 stitches in his head, chronic headaches, nightmares, and pain in his arm, shoulder, and back. (Id.) Plaintiff also states that Sergeant Ambrosino “failed to secure [the] area and separate” him from his attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz is that he “fail [sic] to qualify as warden.” (Complaint at 4.) Plaintiff names Commissioner Coombes as a defendant, alleging Coombes “fail [sic] to appoint a qualified warden over security.” (Amended Complaint at 5.) Plaintiff further alleges that Dr. Manion refused to give him pain medication. (Complaint at 5.) Plaintiff seeks to “prevent violent crimes” and demands $6,000,000 in damages. (Amended Complaint at 5.) Defendants moved to dismiss the complaint, arguing that: (1) the Eleventh Amendment bars suit against state defendants for money damages; (2) the plaintiff's allegations fail to state a claim for a constitutional violation; (3) the defendants are qualifiedly immune from damages; and (4) plaintiff must exhaust his administrative remedies before bringing this suit. DISCUSSION I find that plaintiff's complaint runs afoul of Rules 8 and 10 of the Federal Rules of Civil Procedure and dismiss the complaint without prejudice and with leave to amend. Federal Rule 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 133 of 290
Hudson v. Artuz, Not Reported in F.Supp.2d (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the “principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial”). *2 Rule 10 of the Federal Rules of Civil Procedure requires, inter alia, that the allegations in a plaintiff's complaint be made in numbered paragraphs, each of which should recite, as far as practicable, only a single set of circumstances. Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule 10 also requires that each claim upon which plaintiff seeks relief be founded upon a separate transaction or occurrence. Id. 2 The purpose of Rule 10 is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL 392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1323 at 735 (1990)). A complaint that fails to comply with these pleading rules “presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of” a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y.1996). It may therefore be dismissed by the court. Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When a complaint does not comply with the requirement that it be short and plain, the court has the power to, on its own initiative, ... dismiss the complaint”). Dismissal, however, is “usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id. In those cases in which the court dismisses a pro se complaint for failure to comply with Rule 8, it should give the plaintiff leave to amend when the complaint states a claim that is on its face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir.1995). In determining whether a nonfrivolous claim is stated, the complaint's allegations are taken as true, and the “complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to be liberally construed in his favor when determining whether he has stated a meritorious claim. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it is difficult to determine the actual substance of the plaintiff's complaint, outright dismissal without leave to amend the complaint is generally disfavored as an abuse of discretion. See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y. Mar.12, 1997). Here, plaintiff's pro se complaint fails to satisfy the requirements of Federal Rules 8 and 10. The complaint is often illegible and largely incomprehensible, scattering what appear to be allegations specific to plaintiff within a forest of headnotes copied from prior opinions. Defendants have answered with a boilerplate brief, which is perhaps all a defendant can do when faced with such a complaint. The Court is left with an insurmountable burden in attempting to make a reasoned ruling on such muddled pleadings. *3 Although plaintiff's complaint is substantially incomprehensible, it appears to plead at least some claims that cannot be termed frivolous on their face. For example, plaintiff clearly alleges that inmates assaulted him and that Dr. Manion refused to provide him medical attention. He also appears to assert that Sergeant Ambrosino failed to protect him from the attack or take steps to prevent future attacks. (Plaintiff's Reply at 5). It is well established that an inmate's constitutional rights are violated when prison officials act with deliberate indifference to his safety or with intent to cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d Cir.1991). It is similarly well established that an inmate's constitutional rights are violated when a prison doctor denies his request for medical care with deliberate indifference to the inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v. Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although plaintiff provides few facts to support his allegations, I disagree with defendants' assertion that outright dismissal is appropriate because it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Defendant's Memorandum at 5 (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Because plaintiff's complaint does not comply with Rules 8 and 10, it is hereby dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this Order. In drafting his second amended complaint, plaintiff is directed to number each paragraph and order the paragraphs chronologically, so that each incident in Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 134 of 290
Hudson v. Artuz, Not Reported in F.Supp.2d (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 which he alleges a constitutional violation is described in the order that it occurred. Plaintiff is also directed to specifically describe the actions of each defendant that caused plaintiff harm, and to do so in separate paragraphs for each defendant. Plaintiff's complaint shall contain the facts specific to the incidents plaintiff alleges occurred, and not any facts relating to any case that has been decided previously by a court of law. Plaintiff's complaint shall also contain a clear statement of the relief he seeks in addition to monetary damages. CONCLUSION For the reasons set forth above, plaintiff's complaint is dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this Order. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 1998 WL 832708 Footnotes 1 Plaintiff is presently incarcerated at Sullivan Correctional Facility. 2 Rule 10 states: (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 135 of 290
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 981849 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Robert JACKSON, Plaintiff, v. C.O. Angela JACKSON, et al., Defendants. 16-CV-08516 (PMH) | Signed 03/16/2021 Attorneys and Law Firms Robert Jackson, Beacon, NY, pro se. Amanda Yoon, NYS Office of the Attorney General, New York, NY, Rebecca Lynn Johannesen, Colorado Department of Law, Denver, CO, for Defendants. MEMORANDUM OPINION AND ORDER PHILIP M. HALPERN, United States District Judge: *1 Plaintiff Robert Jackson (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 against Correction Officers Angela Jackson, M. Walker, and J. James (collectively, “Defendants”). (Doc. 2, “Compl.”). Specifically, Plaintiff alleges that in June 2015 —while incarcerated at Sing Sing Correctional Facility in Ossining, New York (“Sing Sing”)—Defendants violated his constitutional rights by: (1) using excessive force against him, in violation of the Eighth Amendment; and (2) filing a false internal complaint against him, in violation of the Fourteenth Amendment. (See generally id.). On July 10, 2017, Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's due process claim along with all claims for monetary damages against them in their official capacities. (Doc. 16). By Opinion & Order dated April 20, 2018, Judge Román granted Defendants’ motion and granted Plaintiff leave “to file an Amended Complaint ... on or before June 19, 2018.” (Doc. 19 at 8). Despite securing an extension of the time within which to file his amended pleading, Plaintiff failed to do so. Consequently, the only claim remaining in this action is one for excessive force against Defendants in their individual capacities. Defendants filed an Answer on August 30, 2018 (Doc. 22) and, with leave of Court, filed an Amended Answer on October 2, 2019. (Doc. 29, “Am. Ans.”). Shortly thereafter, in an Order issued on October 22, 2019, Judge Román “waive[d] the Initial Pre-trial Conference and direct[ed] the parties to confer and complete a Case Management Plan and Scheduling Order....” (Doc. 30). Although Plaintiff filed a proposed discovery plan on November 19, 2019 (Doc. 32), Defendants filed a letter the following day to request both an extension of time within which to submit a proposed discovery schedule and a pre-motion conference to discuss an anticipated motion for summary judgment on the sole issue of administrative exhaustion (Doc. 31). There was no further activity on the docket in this case until it was reassigned to this Court in April 2020. 1 On April 13, 2020, the Court granted Defendants’ request, set a briefing schedule for the extant summary judgment motion, and directed Defendants to mail a copy of that Order to Plaintiff; Defendants filed an affidavit of service the same day. (Doc. 33; Doc. 34). Approximately one month later, on May 6, 2020, Defendants filed a letter requesting an extension of the briefing schedule. (Doc. 36). In that letter, Defendants noted also that upon “conferr[ing] with the New York State Division of Parole,” they had learned that Plaintiff had been released from custody and was believed to be residing at an address in New York, New York. (Id.). In an endorsement dated May 7, 2020, the Court granted Defendants’ request to extend the briefing schedule and directed Defendants to serve a copy of that Order on Plaintiff; Defendants filed an affidavit of service the next day indicating that the Order had been mailed to Plaintiff's address in New York City. (Doc. 37; Doc. 38). *2 Defendants filed their motion for summary judgment on June 15, 2020. (Doc. 39; Doc. 40, “Def. Br.”). On July 23, 2020, Defendants filed a letter noting that Plaintiff's time to oppose the pending motion had passed and requesting that the Court consider the motion unopposed. (Doc. 44). The Court endorsed the letter on July 24, 2020, extended Plaintiff's time to file an opposition to August 24, 2020 sua sponte, and advised that “[i]f plaintiff fails to file his opposition by August 24, 2020, the motion will be deemed fully submitted and unopposed.” (Doc. 45). The Court also instructed Defendants to serve a copy of that Order on Plaintiffs (id.); Defendants filed an affidavit of service that reflected mailings to both Fishkill and the address in New York City shortly thereafter. (Doc. 46). The Court has received no communications from Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 136 of 290
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Plaintiff since November 2019 and, as such, considers the motion fully submitted and unopposed. For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED. BACKGROUND The facts, as recited below, are taken from the Complaint, Defendants’ Local Civil Rule 56.1 Statement (Doc. 42, “56.1 Stmt.”), and the admissible evidence submitted by the parties. 2 I. The Underlying Incident Plaintiff's factual allegations, in toto, are as follows: After an arguement [sic] with C.O. Jackson in the messhall[,] I was taken to the bridge area where the defendants beat me into a seizure, then fabricated a misbehavior report to justify their actions. (Compl. at 4). Plaintiff maintains that this incident occurred on June 4, 2015. (Id.). II. Plaintiff's Grievance Plaintiff filed the Grievance on June 17, 2015. (Quick Aff. ¶ 9; Quick Ex. B). Therein, Plaintiff complained that as he “was walking out [of] the messhall” on June 4, 2015, “C.O. Ms. Jackson and ... other[s] ... beat me down....” (Quick Ex. B). On August 14, 2015, following an investigation into Plaintiff's complaint, the Sing Sing Superintendent issued a written decision denying the Grievance. (Quick Aff. ¶ 11; Quick Ex. C). In full, the Superintendent's written decision reads as follows: Grievant claims staff harassment. The grievant was interviewed by a supervisor. The grievant had nothing further to add to his original complaint and provided no witnesses. Staff involved were interviewed and provided a written report denying the allegations of wrongdoing or harassing the grievant. Based on the investigation conducted, insufficient evidence could be found to substantiate the grievant [sic] allegations. Grievance is denied. (Quick Ex. C). The Superintendent's decision advised that Plaintiff had seven days to appeal the determination to CORC, should he choose to do so (id.); however, there is no record that Plaintiff ever appealed to CORC (Quick Aff. ¶ 12; Seguin Aff. ¶¶ 6-7; Seguin Ex. B). STANDARD OF REVIEW *3 Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Liverpool v. Davis, 442 F. Supp. 3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “ ‘Factual disputes that are irrelevant or unnecessary’ are not material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The Court's duty, when determining whether summary judgment is appropriate, is “not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court's function is not to determine the truth or weigh the evidence; the task is material issue spotting, not material issue determining. Therefore, “where there is an absence of sufficient proof as to one essential element of a claim, any factual disputes with respect to other elements of the claim are immaterial....” Bellotto v. Cty. of Orange, 248 F. App'x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)). Claims simply cannot proceed in the absence of sufficient proof as to an essential element. “It is the movant's burden to show that no genuine factual dispute exists,” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)), and a court must Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 137 of 290
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 “resolve all ambiguities and draw all reasonable inferences in the non-movant's favor.” Id. (citing Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp. 3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The non-movant cannot defeat a summary judgment motion by relying on “mere speculation or conjecture as to the true nature of the facts....” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any evidence from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)). Should there be no genuine issue of material fact, the movant must also establish its “entitlement to judgment as a matter of law.” In re Davis New York Venture Fund Fee Litig., 805 F. App'x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found. Capital Partners LLC, 920 F.3d 134, 140 (2d Cir. 2019)). Stated simply, the movant must establish that the law favors the judgment sought. Gonzalez v. Rutherford Corp., 881 F. Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that summary judgment is appropriate only when ... law supports the moving party”); Linares v. City of White Plains, 773 F. Supp. 559, 560 (S.D.N.Y. 1991) (summary judgment is appropriate when “the law so favors the moving party that entry of judgment in favor of the movant ... is proper”). This standard applies equally to claims for relief and affirmative defenses. Giordano v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010) (“The same standard applies whether summary judgment is granted on the merits or on an affirmative defense....”). 3 *4 The Court is, of course, mindful that “[p]ro se litigants are afforded a special solicitude,” which includes reading their filings “to raise the strongest arguments they suggest.” Mortimer v. City of New York, No. 15-CV-7186, 2018 WL 1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal quotation marks omitted). “It is through this lens of leniency towards pro se litigants that this Court must consider a defendant's motion for summary judgment against a pro se plaintiff,” Adams v. George, No. 18-CV-2630, 2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8, 2020), but the mere fact that a litigant is pro se “does not relieve the plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment,” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks omitted). Where, as here, a pro se litigant fails to oppose a motion for summary judgment, the motion may be granted as unopposed only “if: (1) the plaintiff has received adequate notice that failure to file any opposition may result in dismissal of the case; and (2) the Court is satisfied that the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law.” McNair v. Ponte, No. 17-CV-2976, 2020 WL 3402815, at *3 (S.D.N.Y. June 18, 2020) (quoting Warren v. Chem. Bank, No. 96-CV-6075, 1999 WL 1256249, at *2 (S.D.N.Y. Dec. 22, 1999)). 4 ANALYSIS The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as available are exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes,” Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)), and it is “ ‘mandatory’: [a]n inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation omitted). “Moreover, the PLRA ‘requires proper exhaustion, which means using all steps that the prison grievance system holds out.’ ” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y. July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)). This “means that ‘prisoners must complete the administrative review process in accordance with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison grievance process itself.’ ” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6, 2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Accordingly, the Court looks to the process available to Plaintiff. See Dinkins v. New York, No. 19-CV-08447, 2020 WL 5659554, at *6 (S.D.N.Y. Sept. 23, 2020). There are three levels of review for inmate grievances at Sing Sing. See generally Amador v. Andrews, 655 F.3d 89, 96-97 (2d Cir. 2011) (outlining the three-step process). First, a grievance is reviewed by the Inmate Grievance Resolution Committee (“IGRC”), a facility-level body consisting of Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 138 of 290
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 inmates and facility staff members. (Quick Ex. A §§ 701.4, 701.5(a)-(b); Senguin Ex. A §§ 701.4, 701.5(a)- (b)). Second, should the inmate be dissatisfied with the IGRC's determination, he may appeal that decision to the Superintendent. (Quick Ex. A § 701.5(c); Senguin Ex. A § 701.5(c)). Finally, if the Superintendent's conclusions are unfavorable, the inmate may appeal that decision to CORC. (Quick Ex. A § 701.5(d); Senguin Ex. A § 701.5(d)). However, when a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance. (See Quick Ex. A § 701.8; Senguin Ex. A § 701.8). Both the Superintendent and CORC are required to “date stamp all” grievances or appeals forwarded to them for review (Quick Ex. A §§ 701.5(c)(3), 701.5(d)(3)(i); Senguin Ex. A §§ 701.5(c)(3), 701.5(d)(3)(i)) and require entities to maintain files “for the current calendar year plus the previous four calendar years” (Quick Ex. A § 701.6(k)(3); Senguin Ex. A § 701.6(k) (3)). *5 Quick represents, as custodian of records maintained by the IGP at Sing Sing, that grievances “are collected from the IGRC mailbox and processed” daily, in accordance with DOCCS procedures. (Quick Aff. ¶ 5). Quick's records reveal that Plaintiff filed the Grievance on June 17, 2015, that the Grievance was forwarded directly to the Superintendent as one concerning staff harassment, and that the Superintendent performed an investigation and issued a written decision denying the Grievance on August 14, 2015. (Id. ¶¶ 9-11; Quick Ex. B). However, both Quick and Seguin represent affirmatively that they have no record of Plaintiff taking the final step of appealing the Superintendent's decision to CORC. (Quick Aff. ¶12; Seguin Aff. ¶¶ 6-7). Even while granting Plaintiff—who filed nothing in opposition to this motion, and, in fact, has filed nothing in this case at all since November 2019 (see Doc. 32)—every conceivable benefit of the doubt to which a pro se litigant is entitled, there is no genuine issue of material fact on the instant motion. Consequently, summary judgment is proper here because: (1) Defendants established that Plaintiff failed to exhaust his administrative remedies and, as such, also their entitlement to summary judgment on the affirmative defense of Plaintiff's failure to exhaust his administrative remedies as required by the PLRA; and (2) Plaintiff was warned that failure to file an opposition would result in the Court concluding that the motion was unopposed. 5 CONCLUSION Based upon the foregoing, the motion for summary judgment is GRANTED. SO ORDERED. All Citations Not Reported in Fed. Supp., 2021 WL 981849 Footnotes 1 There are two docket entries reflecting reassignment of this matter from Judge Román to this Court on different dates. (See Apr. 3, 2020 Entry; Apr. 13, 2020 Entry). 2 In support of the instant motion, defense counsel filed a Declaration annexing two affidavits (with exhibits) for the Court's consideration. (Doc. 41). The first affidavit is from Quandera T. Quick (“Quick”), the Inmate Grievance Program (“IGP”) Supervisor at Sing Sing. (Doc. 41-1, “Quick Aff.” ¶ 1). This affidavit attaches as exhibits copies of: (1) New York State Department of Corrections and Community Supervision Directive (“DOCCS”) No. 4040 (id. 5-21, “Quick Ex. A”); (2) Plaintiff's June 4, 2015 Grievance (“Grievance”) (id. at 22-23, “Quick Ex. B”); and (3) the written decision issued by Michael Capra, Sing Sing's Superintendent, on August 14, 2015 (id. at 24-25, “Quick Ex. C”). The second affidavit is from Rachael Seguin (“Seguin”), the Assistant Director of the IGP for DOCCS and custodian of records for the Central Office Review Committee (“CORC”). (Doc. 41-2, “Seguin Aff.”). This affidavit attaches as exhibits copies of: (1) DOCCS Directive No. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 139 of 290
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 4040 (id. at 4-20, “Seguin Ex. A”); and (2) the results of a search for appeals filed with the CORC (id. at 21-23, “Seguin Ex. B”). 3 “[T]he failure to exhaust administrative remedies in compliance with the [Prison Litigation Reform Act] is an affirmative defense” and it “may be waived” by a defendant who fails to raise it. Banks v. Cty. of Westchester, 168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (internal quotation marks omitted). Here, Defendants’ Fourth Affirmative Defense was failure to comply with 42 U.S.C. § 1997e. (Am. Ans. ¶ 14). 4 Given the Court's conclusion that there is no genuine issue of material fact as to exhaustion, it does not need to reach Defendants’ request for an evidentiary hearing should the Court find otherwise. 5 Even if the Court did not grant Defendants’ motion for summary judgment, it would dismiss the action with prejudice under Federal Rule of Civil Procedure 41(b) as a result of Plaintiff's failure to prosecute this action. Indeed, Plaintiff has not filed anything in this case since he filed a proposed discovery schedule more than a year ago. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 140 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2023 WL 4710869 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Dumar JACKSON, Plaintiff, v. N. MOORE, Defendant. 9:21-CV-1001 (GTS/ATB) | Signed April 14, 2023 Attorneys and Law Firms DUMAR JACKSON, Plaintiff, pro se. RACHAEL S. OUIMET, Assistant Attorney General, for Defendant. REPORT-RECOMMENDATION ANDREW T. BAXTER, United States Magistrate Judge *1 In this pro se civil rights action, plaintiff alleges that the defendant violated his Eighth Amendment rights when he failed to protect plaintiff from another inmate. Presently before the court is defendant Correctional Officer (“C.O.”) Moore's motion for summary judgment. (Dkt. No. 16). This matter has been referred to me for Report and Recommendation by United States District Judge Glenn T. Suddaby, pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). For the reasons set forth below, this court will recommend granting defendant's motion and dismissing the complaint in its entirety. I. Background A. Procedural History In this civil rights action, plaintiff alleges a constitutional violation occurred while he was incarcerated at Clinton Correctional Facility (“Clinton C.F.”), in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). Plaintiff filed the original complaint on September 10, 2021. (Dkt. No. 1). On October 25, 2021, the court issued a Decision and Order granting plaintiff's application to proceed in the action in forma pauperis (“IFP”), and conditionally dismissing the original complaint because it failed to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. (Dkt. No. 4). The court granted plaintiff leave to amend his complaint to “correct[ ] the pleading defects” identified with his original complaint. (Id. at 10). Plaintiff availed himself of the opportunity to amend, and the court received plaintiff's amended pleading on or about November 18, 2021. (Dkt. No. 6, “Am. Compl.”). On February 9, 2022, I determined, pursuant to my initial review of the complaint, that plaintiff's amended complaint was accepted for filing and that the only active defendant was C.O. Moore. (Dkt. No. 7 at 3). C.O. Moore filed an answer to the amended complaint on April 14, 2022. (Dkt. No. 12). On December 15, 2022, defendant filed this instant motion for summary judgment (Dkt. No. 16), to which plaintiff responded on February 16, 2023 (Dkt. No. 20). B. Summary of Complaint The complaint alleges that on September 6, 2018, while plaintiff was confined in Clinton C.F., he was attacked by another inmate when they were released from their keep- lock cells at the same time. (Am. Comp. at 4). Although facility policies and procedures prohibited C.O. Moore from releasing the other inmate “until [plaintiff] was ... back in general population,” C.O. Moore nevertheless released both inmates simultaneously, knowing that plaintiff did not have an escort at the time. Id. C.O. Moore also “knew there was a race war going on in [Clinton C.F.] with the bloods and the Spanish gangs and let [plaintiff] out of [his] cell with a known gang member posed [sic] a substantial risk of serious harm to [him].” Id. Although C.O. Moore observed the inmate run into plaintiff's cell and attack him, C.O. Moore “did nothing to prevent it from happening.” Plaintiff was returned to keep- lock after the incident and remained there for an additional 70 days, until November 15, 2018. (Dkt. No. 16-3, Pl.’s Dep. at 18, 27, 79, 88, 95; Internal Movement History, Dkt. No. 20-1 at 31). II. Summary Judgment *2 Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Rule 56(b) provides that a party may file a motion for summary judgment “at any time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b). Thus, a party may move for summary judgment in lieu of an answer. See, e.g., Anderson v. Rochester-Genesee Reg'l Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 141 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Transp. Auth., 337 F.3d 201, 202 (2d Cir. 2003); Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010); Riehl v. Martin, No. 9:13-CV-439 (GLS/TWD), 2014 WL 1289601, at *1-2 (N.D.N.Y. Mar. 31, 2014). The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin, 467 F.3d at 272. “Only disputes over [‘material’] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve 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). Where a party has failed to respond to the movant's statement of material facts as required by Local Rule 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the non-movant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Although plaintiff received proper notice of his obligation to respond to defendant's summary judgment motion in accordance with Local Rules, the plaintiff did not file a Statement of Material Facts that addressed many of the factual allegations in defendant's Statement, as required by Local Rule 7.1(a)(3). 1 Consequently, the court may accept the properly supported facts contained in the defendants’ Rule 7.1 statement (Dkt. No. 16-2) as true for purposes of this motion. See Govan v. Campbell, 289 F. Supp. 2d 289, 295-96 (N.D.N.Y. 2003). III. Exhaustion of Administrative Remedies A. Legal Standards *3 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, 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. In order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the court held that “proper” exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. Woodford, 548 U.S. at 90-103. The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Incarcerated 2 Grievance Resolution Committee (“IGRC”). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee (“CORC”). Id. § 701.5(d). The court also notes that the regulations governing the Incarcerated 3 Grievance Program (“IGP”) 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 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 142 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 the facility, after which the inmate must appeal any negative determination to the CORC. Id. §§ 701.8(h) and (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. B. Analysis *4 Defendant C.O. Moore argues that plaintiff's failure-to- protect claim is subject to dismissal, for failure to exhaust administrative remedies, because plaintiff did not file an initial grievance prior to bringing suit, nor did he appeal the denial of any grievance concerning this claim to CORC. (Dkt. No. 16-1, Defendant's Memorandum of Law at 14). In support of his position, defendant has attached to his motion papers the sworn declarations of Rachael Seguin (“Seguin Decl.”) (Dkt. No. 16-7), the Director of the IGP for DOCCS, and Christine Gregory, the IGP Supervisor at Clinton C.F. (“Gregory Decl.”) (Dkt. No. 16-6). These declarations, and the evidence attached as exhibits thereto, indicate that plaintiff neither filed an initial grievance related to his claim that C.O. Moore failed to protect him from another inmate on September 6, 2018, nor did plaintiff submit an appeal to CORC. (See Gregory Decl. ¶¶ 16-20; Seguin Decl. ¶¶ 12-14, Ex. A). In opposition to defendant's motion, plaintiff alleges that, while confined in his keep-lock cell, he attempted to file a grievance relating to the incident with C.O. Moore by putting a sealed letter on the gate for mail pickup. (Dkt. No. 20 at 2-3; Pl.’s Dep. at 87-89). Plaintiff testified that he remembered the grievance being picked up by an unnamed officer, but does not remember the exact day he mailed the grievance. 4 (Dkt. No. 16-3, Pl.’s Dep. at 87-89, 93). Plaintiff speculates that an unnamed officer on duty threw his grievance away. (Dkt. No. 20 at 2-3; Pl.’s Dep. at 87-89) Plaintiff acknowledged that he never followed up with respect to his grievance for the 70 days after the incident when he was confined on keeplock; but he alleges that he asked sergeants, officers, and counselors about the status of his grievance and they told plaintiff “they'll get back to you.” (Pl.’s Dep. at 93-94). Plaintiff admitted that he did not retain any copies of the purported grievances relative to his complaints against C.O. Moore. (Id. at 88). 5 Plaintiff further testified that he not only understood the grievance process, but also that he participated in an orientation program at Clinton C.F. about how the grievance process works at the facility. (Id. at 85-86). He admitted that he filed “a couple” of grievances after the incident concerning other matters, while still residing at Clinton C.F. (Id. at 90). The record before this court clearly established that the defendant did not exhaust administrative remedies with respect to the failure-to-protect claim against C.O. Moore. Given that an initial grievance was never filed, nor was the claim ever appealed to CORC, the question becomes whether plaintiff's failure to exhaust should be excused. The defendant has satisfied his initial burden of “establishing ... that a grievance process exist[ed] and applie[d] to the underlying dispute.” Hubbs v. Suffolk County Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (citation omitted). 6 Thus, plaintiff assumes the burden of producing evidence that one of the exceptions to the administrative exhaustion requirement applies, excusing his failure to exhaust and permitting his claim to survive summary judgment. Id. (“If the defendants meet this initial burden, administrative remedies may nonetheless be deemed unavailable if the plaintiff can demonstrate that other factors Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 143 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 ... rendered a nominally available procedure unavailable as a matter of fact.”) 7 *5 Liberally construed, plaintiff appears to argue that administrative remedies were unavailable to him as a result of C.O. Moore trying “to cover his mistakes up”. (Dkt. No. 20 at 2-3). Plaintiff does not offer any support for his claim other than his statement “officers talk like inmates talk. So knowing the incident, knowing I put in a grievance, they wanted to be nosey [sic], and they opened it and never let it get to where it was supposed to go once it was read.” (Pl.’s Dep. at 89). During his deposition, plaintiff specifically stated that C.O. Moore was not the person who picked up the grievance. (Pl.’s Dep. at 88-89). Furthermore, plaintiff testified the alleged grievance was sealed, so the unnamed C.O. would have no way of knowing what conduct the grievance was referring to unless (s)he opened the envelope. (Pl.’s Dep. at 92). As noted above, plaintiff was on keep-lock status when he allegedly attempted to submit a grievance relating to the claim in this action by leaving a sealed envelope for C.O.s to deliver. “Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him of participation in normal prison activities.” Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995); N.Y. Comp. Codes R. & Regs. tit. 7, § 301.6. While “[k]eep-lock is similar to serving time in a Special Housing Unit ... [with the inmate] remain[ing] in their assigned cell” (Dkt. No. 16-5, Terry Allen Declaration ¶ 7), plaintiff acknowledged that keep-lock status is “not like if you were in the SHU” (Pl.’s Dep. at 35). In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir. 2016), the Second Circuit considered whether administrative remedies had been “actually available” to an inmate plaintiff under Ross, after the district court granted the defendants’ motion to dismiss for failure to exhaust. The plaintiff alleged that, while housed in a SHU, he drafted a grievance that he delivered to a correction officer to forward to the grievance office on his behalf. Id. at 120-121. Approximately two weeks later, the plaintiff was transferred to a different facility. Id. at 121. He never received a response to his grievance, and alleged that it was never filed by the officer to whom he had given it. It was undisputed that plaintiff never appealed the grievance. Id. The defendants in Williams argued that even if the grievance was never filed, the plaintiff was required to appeal it and complete the grievance process. Id. at 124. The defendants relied on a DOCCS regulation that provided that “an inmate may appeal a grievance ‘to the next step’ if he does not receive a timely response.” Id. (quoting N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(g)(2)). The Second Circuit rejected this argument and held that, for an inmate in the plaintiff's situation, the regulatory scheme was so “opaque” and “confusing” as to be practically unavailable. Id. The Second Circuit found that DOCCS regulations “only contemplate appeals of grievances that [have been] actually filed ... [and] give no guidance whatsoever to an inmate whose grievance was never filed.” Id. Thus, Williams holds that “the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it.” Id. at 126. 8 See also Medina v. Napoli, 725 F. App'x 51, 53-54 (2d Cir. 2018) (following Williams in the context of a summary judgment motion). Some district court cases in the Second Circuit suggest that Williams should be limited to its particular facts, e.g., by not applying its holding to plaintiffs who are not confined in a SHU. 9 See, e.g., Shaw v. Ortiz, No. 15-CV-8964, 2016 WL 7410722, at *6 (S.D.N.Y. Dec. 21, 2016) (“the factual scenario here is different from that in Williams where the Second Circuit found that part of the IGP's regulatory scheme was ‘so opaque and so confusing that ... no reasonable prisoner c[ould] use’ it.”) (citing Mena v. City of New York, No. 13-CV-2430, 2016 WL 3948100, at *5 (S.D.N.Y. July 19, 2016) (finding that the Second Circuit's decision in Williams “hinged on the ‘extraordinary circumstances’ specific to the case before it”)); Blake v. Porlier, No. 9:18- CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y. Oct. 4, 2019) (“Courts have taken an inmate's housing and level of segregation from the general population into account when determining the availability of grievance procedures.”) (citing Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (holding that a plaintiff in keeplock was not entitled to an exhaustion exception when he alleged that his grievance had not been filed due to mail tampering, and subsequently never inquired about it), report and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27, 2017)). *6 In any event, unsupported assertions that a plaintiff “filed a grievance but that it was somehow lost or destroyed” have generally been found “insufficient to establish a genuine issue of fact.” Blake v. Porlier, 2019 WL 7484052, at *5 (“Courts within the Second Circuit have continuously held that ‘mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.’ Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 144 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 ”) (quoting Rodriguez v. Cross, 2017 WL 2791063, at *5); Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL 11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding the plaintiff's failure to exhaust was not excusable, in part, because while the plaintiff “state[d] that some grievances were destroyed ... he ha[d] not submitted any copies of these grievances, nor d[id] he specify when he attempted to file them”), report and recommendation adopted, 2017 WL 1076343 (N.D.N.Y. Mar. 22, 2017); Engles v. Jones, No. 6:13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec. 28, 2018) (“Plaintiff's unsupported assertion that he filed a grievance but that it was somehow lost or destroyed is insufficient to establish a genuine issue of material fact.”) (citing Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555 (W.D.N.Y. 2018)). Moreover, courts in this Circuit have granted summary judgment for failure to exhaust administrative remedies, even for a prisoner confined to a SHU whose ability to directly file a grievance or make a copy may be limited, when the plaintiff provided no documentation or minimal corroborative details. See, e.g., Sankara v. Montgomery, No. 9:16-CV-00885 (FJS/ TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018) (“Plaintiff's conclusory allegations that the DOCCS IGP was unavailable to him [while confined to the SHU] were insufficient to withstand summary judgment,” where the plaintiff “provided no evidence that he actually did write grievances; when they were written; the content of the grievances ... the officers named in the grievance(s) ...; 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[.]”), report and recommendation adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018); Simpson v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (in the absence of any documentary evidence to corroborate plaintiff's alleged attempt to file a grievance from the SHU, the court concludes that plaintiff's completely unsupported, unclear, and vague implication that the grievance was not properly processed does not suffice to avoid summary judgment), report and recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb. 4, 2022); Ozzborn v. Cornell, No. 9:17-CV-1039 (MAD/ ATB), 2021 WL 2227829, at *5 (N.D.N.Y. June 2, 2021) (Plaintiff claimed that he filed a grievance from the SHU by leaving a plain envelope addressed to the grievance committee for the mail personnel to collect; but, because he never received a response, he presumed that the grievance was never submitted. Because plaintiff never followed up on his grievance and successfully filed numerous other grievances in the recent past, he has failed to demonstrate that his administrative remedies were unavailable to him). 10 Here, the court does not merely rely on plaintiff's lack of direct evidence, such as copies of the relevant grievances, in finding that he has failed to establish a genuine issue of material fact as to unavailability. Plaintiff in this case has done nothing more than allege in conclusory fashion that he attempted to file a grievance concerning a the September 6, 2018 incident. Plaintiff's testimony about when he attempted to submit the grievance was vague and he did not identify the officer who allegedly collected it. Likewise, he has not supported his claim that unnamed sergeants, officers, and counselors told him “not to worry” with any documentary evidence. See, e.g., Belile v. Griffin, No. 9:11-CV-0092 (TJM/DEP), 2013 WL 1776086, at *8 (N.D.N.Y. Feb. 12, 2013) (“Plaintiff's mere threadbare allegations that his grievances were intercepted and discarded, without evidence to support such allegation, including any evidence that identifies which defendant, in particular, is responsible for discarding the grievances, are insufficient to excuse his failure to comply with the IGP [process]”), report and recommendation adopted, 2013 WL 1291720 (N.D.N.Y. Mar. 27, 2013). *7 For the above reasons, the court concludes that plaintiff's completely unsupported and vague claim that a grievance he attempted to file against C.O. Moore relative to the September 6, 2018 incident was not properly processed does not suffice to avoid summary judgment. Accordingly, the court recommends that C.O. Moore be granted summary judgment and the second amended complaint be dismissed against him, on the ground that plaintiff failed to exhaust his administrative remedies. Dismissal with prejudice is appropriate where the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is unable to cure his failure to exhaust. Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004). Here, plaintiff's time to file the relevant grievance to CORC in accordance with the rules and regulations has already passed, 11 rendering his failure to exhaust his administrative remedies incurable at this time. As a result, I recommend that plaintiff's complaint be dismissed with prejudice as to these claims. See Livingston v. Hoffnagle, No. 17-CV-1158 (MAD/DEP), 2019 WL 409366, at *7 (N.D.N.Y. Feb. 1, 2019) (dismissing without leave to amend, where the exhaustion error would not be cured by permitting the plaintiff leave to amend). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 145 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 IV. Eighth Amendment Failure to Protect Claim Defendant also seeks summary judgment on the merits of plaintiff's failure to protect claim, arguing, among other things, that plaintiff has failed to establish C.O. Moore was acting with deliberate indifference to conditions that posed a substantial risk of serious harm to plaintiff. For the following reasons, the court agrees that summary judgment is warranted, in the alternative, on the merits of plaintiff's Eighth Amendment claim. A. Legal Standards In order to state an Eighth Amendment claim for failure to protect an inmate, the plaintiff must show that he was incarcerated under conditions posing a substantial risk of serious harm, and prison officials acted with deliberate indifference to that risk and the inmate's safety. Farmer v. Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970 (1994). The plaintiff must show that prison officials actually knew of and disregarded an excessive risk of harm to the inmate's health and safety. Id. at 837, 114 S. Ct. 1970. The defendant must be aware of the facts from which the inference can be drawn that a substantial risk of serious harm exists, and the defendant must also draw that inference. Id. The failure of corrections officers to employ reasonable measures to protect an inmate from violence by other inmates may rise to the level of an Eighth Amendment violation. See Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985) (citing United States v. Bailey, 444 U.S. 394, 423 (1980)). “Reckless disregard” of plaintiff's right to be free from attacks by other inmates may be shown by the existence of a “pervasive risk of harm to inmates from other prisoners and a failure by prison officials to reasonably respond to that risk.” Knowles v. New York City Dep't of Corr., 904 F. Supp. 217, 221-22 (S.D.N.Y. 1995) (citing Rucco v. Howard, No. 91 Civ. 6762, 1993 WL 299296, at *4 (S.D.N.Y. Aug. 4, 1993); Martin v. White, 742 F.2d 469, 474 (8th Cir. 1984)). *8 An isolated omission by corrections officers generally does not support a claim for deliberate indifference absent circumstances involving evil intent, recklessness, or deliberate indifference. Coronado v. Goord, No. 99 Civ. 1674, 2000 WL 1372834, at *4 (S.D.N.Y. Sept. 25, 2000) (citing Ayers v. Coughlin, 780 F.2d at 209). Plaintiff may allege a constitutional claim by alleging that the substantial risk of inmate attacks was longstanding, pervasive, well- documented, or expressly noted by prison officials in the past, and that the officials being sued were exposed to information concerning the risk and thus, must have known about it. Id. (citing Farmer, 511 U.S. at 842-43). B. Analysis With due regard for plaintiff's status as a pro se litigant, plaintiff has failed to establish that C.O. Moore knew of a particular risk to plaintiff's safety or that C.O. Moore was deliberately indifferent for failing to protect plaintiff. Plaintiff merely offers conclusory, general allegations that C.O. Moore knew about an alleged gang and/or race war happening at Clinton C.F. (Dkt. No. 20 at 2). However, C.O. Moore has, in his sworn declaration, denied having any knowledge about a race war at Clinton C.F. or having any access to information regarding an inmate's gang status. (Moore Decl. ¶¶ 21, 23). Even if C.O. Moore did have access to such records, plaintiff testified that he is not a member of a gang. (Jackson Dep. at 19). Thus, there is nothing in the record other than plaintiff's conclusory allegations establishing that C.O. Moore knew plaintiff was at a substantial risk of harm because of an alleged gang war. Plaintiff's claim is further undermined by his sworn testimony admitting that he had not had any prior interactions with the inmate who attacked him before the underlying incident. (Jackson Dep. at 19-20); Gillard v. Jarvis, No. 9:11-CV-1021 (LEK/ATB), 2012 WL 7037734, at *7 (N.D.N.Y. Nov. 6, 2012), report and recommendation adopted, 2013 WL 474384 (N.D.N.Y. Feb. 7, 2013) (“If plaintiff did not know the inmate who assaulted him, he cannot claim that defendants “knew” and disregarded the serious risk that plaintiff would be assaulted at Clinton by this unknown individual.”). Plaintiff has not alleged that he was threatened by the other inmate, or any member of the other inmate's race or gang, prior to this incident. Additionally, neither inmate was in protective custody when they were released form their cells. (Moore Decl. ¶ 14). Plaintiff also testified he never asked for protective custody before or after the incident. (Jackson Dep. at 73). “Courts routinely deny deliberate indifference claims based upon surprise attacks.” Zimmerman v. Macomber, No. 95 Civ. 0882, 2001 WL 946383, at *5 (S.D.N.Y. Aug. 21, 2001) (granting summary judgment in favor of the defendants where the plaintiff failed to carry his burden to establish that the defendant had knowledge of a substantial risk to plaintiff's health or safety from an inmate attacker). Here, plaintiff has failed to allege defendants knew of a prior altercation between the plaintiff and his attacker, or of any threats that had been made against the plaintiff. Fernandez v. N.Y.C. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 146 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Dep't of Corr., No. 08 Civ. 4294, 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010); Clark v. Gardner, 256 F. Supp.3d 154, 168 (N.D.N.Y. 2017). Because plaintiff has alleged no facts suggesting that C.O. Moore knew of a particular risk to the plaintiff's safety, he has failed to raise a material question of fact as to whether C.O. Moore was deliberately indifferent, and summary judgment is warranted. Parris v. New York State Dep't Corr. Servs., 947 F. Supp.2d 354, 363 (S.D.N.Y. 2013). *9 WHEREFORE, based on the findings above, it is RECOMMENDED, that Defendant's motion for summary judgment (Dkt. No. 16) be GRANTED, and the complaint be DISMISSED WITH PREJUDICE. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. All Citations Not Reported in Fed. Supp., 2023 WL 4710869 Footnotes 1 Defense counsel specifically advised plaintiff of the consequences of failing to respond to the summary judgment motion. (Dkt. No. 16). Counsel forwarded, to plaintiff, a copy of the court's form Notification of the Consequences of Failing to Respond to a Summary Judgment Motion, which provided in pertinent part: If you do not file a proper response to this motion, the Court may grant the motion and dismiss some or all of your claims. Under Local Rules 7.1(b) and 56.1(b), to file a proper response to this motion, you must submit the following papers: (1) A response to the defendants’ statement of material facts that admits and/or denies each of the defendants’ assertions in matching numbered paragraphs, 1 and that supports each denial with citations to record evidence. * * * WARNING: If you do not submit a proper response to the defendants’ statement of material facts, the Court may deem you to have admitted the defendants’ factual statements. (Dkt. No. 16 at 4). 2 This committee was formerly known as the “Inmate Grievance Resolution Committee,” but has recently been renamed. 3 The program was formerly known as the “Inmate Grievance Program,” but has recently been renamed. 4 Plaintiff testified that he filed the grievance “it was in like the same – I want to say around like the 22 nd or so.” (Pl.’s Dep. at 87-88). 5 Plaintiff alleges that he was told “it was a code 49 and that it had to go to the superintendent office.” (Dkt. No. 20 at 3). 6 IGP Supervisors Gregory and Seguin stated Clinton C.F. had a fully functioning IGP program at all times relevant to the complaint. (Gregory Decl. ¶ 16; Seguin Decl. ¶ 11). Plaintiff also testified that he filed a Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 147 of 290
Jackson v. Moore, Not Reported in Fed. Supp. (2023) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 grievance for an unrelated matter after the incident and received an unfavorable decision and appealed that decision. (Pl.’s Dep. 90-91). 7 I agree with Magistrate Judge Peebles’ cogent analysis that, while the burden of production may shift to a plaintiff with respect to certain aspects of the exhaustion issue, “the ultimate burden of proof with respect to the exhaustion defense remains, at all times, with the defendant.” See, e.g., Bailey v. Fortier, No. 9:09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *5-6 (N.D.N.Y. Oct. 4, 2012), report and recommendation adopted, 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013); Nelson v. Plumley, No. 9:12-CV-422 (TJM/DEP), 2015 WL 4326762, at *7-8 (N.D.N.Y. July 14, 2015), report and recommendation adopted, 2013 WL 1305338 (N.D.N.Y. Mar. 18, 2013). 8 My summary of Williams tracks that of Magistrate Judge Stewart in Berman v. Durkin, No. 9:13-CV-136 (LEK/ DJS), 2017 WL 1215814, at *8 (N.D.N.Y. Mar. 10, 2017), report and recommendation adopted, 2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017). 9 In Medina v. Napoli, 725 F. App'x at 53-54, the Second Circuit followed Williams in a case involving a SHU inmate, but absent the additional circumstance of a transfer to a different facility, which might have further complicated the inmate's ability to file a grievance. 10 District Judge D'Agostino distinguished Williams v. Priatno by noting the various ways in which the plaintiff in Williams specified how he followed up with respect to the grievance that he left for delivery from the SHU, which was never filed with the IGP. Id. at *4. 11 “Ordinarily, an inmate must first submit ‘a complaint,’ or grievance, to the facility's IGP clerk within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a). Relief from the twenty- one day time limit may be granted by the IGP supervisor based upon mitigating circumstances, provided, however, that ‘[a]n exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.’ ” Nelson v. Plumley, 2015 WL 4326762, at *2 (citing N.Y.C.R.R. § 701.6(g)(1) (i)(a)). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 148 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 1033787 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Craig A. JACKSON, Plaintiff, v. Sergeant WEST, et al., Defendants. No. 9:23-CV-0306 (LEK/PJE) | Signed February 20, 2025 Attorneys and Law Firms Craig A. Jackson, 22-B-0406, Cayuga Correctional Facility, P.O. Box 1186, Moravia, New York 13118, Plaintiff pro se. ALEXANDRA L. GALUS, ESQ., LAUREN R. ROSENBERG, ESQ., NYS Office of the Attorney General State Capitol, Albany, New York 12224, Attorneys for defendants. REPORT-RECOMMENDATION AND ORDER PAUL J. EVANGELISTA, UNITED STATES MAGISTRATE JUDGE *1 Plaintiff pro se Craig A. Jackson (“plaintiff”), an inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Sergeant West and D. Fenlong (“defendants”) violated his constitutional rights under the Eighth Amendment. See Dkt. No. 1 (“Compl.”). Presently before the Court is defendants’ motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). See Dkt. No. 26. Plaintiff did not oppose. For the following reasons, it is recommended that defendants’ motion be granted. I. Background 1 On a motion for summary judgment, the facts are related in the light most favorable to the nonmoving party. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record ... to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”). On June 13, 2024, the Court served upon plaintiff forms titled, “Notice of Due Date to Respond to Motion for Summary Judgment” and “Notification of the Consequences of Failing to Respond to a Summary Judgment Motion. Dkt. No. 27. These forms advise plaintiff of his deadline to respond to defendants’ motion and advise him that if he “do[es] not submit a proper response to the defendants’ statement of material facts, the Court may deem [plaintiff] to have admitted the defendants’ factual statements.” Dkt. No. 27 at 1-2; see also N.D.N.Y. L.R. 56.1(b). Plaintiff did not respond to defendants’ Statement of Material Facts. In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable factual inferences in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Where a non- movant does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's statement of material facts; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003). Therefore, the Court will, for purposes of this motion, deem as true all properly-supported facts stated in defendants’ Statement of Material Facts. See Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (accepting as true the material facts contained in unopposed statement of material facts); see also Demuth v. Cutting, No. 9:18-CV-789 (LEK/TWD), 2020 WL 957381, at *1 (N.D.N.Y. Feb. 3, 2020), report and recommendation adopted, No. 9:18-CV-0789 (LEK/TWD), 2020 WL 950229 (N.D.N.Y. Feb. 27, 2020) (“Plaintiff's failure to oppose Defendant's motion results in the admission of properly supported facts, however the Court must still ensure those facts show Defendant is entitled to judgment as a matter of law.”). A. Facts *2 Defendants provide that plaintiff was housed at Gouverneur from April 11, 2022, to June 13, 2022. See Dkt. No. 26-2 at 2. Gouverneur had a fully-functioning inmate grievance program during plaintiff's period of incarceration. See id. (citing Dkt. No. 26-4 at ¶11). Plaintiff's claims are Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 149 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 proper subjects for a grievance under 7 NYCRR § 701.1, et seq. See Dkt. No. 26-2 at 2. Plaintiff filed four grievances, from April 12, 2022, through April 17, 2022, alleging that defendants West and Fenlong assaulted him on April 11, 2022. See id. (citing Dkt. No. 26-4 at ¶14). The four grievances were consolidated into Grievance No. GOV-0087022. See id. Due to the nature of the grievance, it was forwarded to the Superintendent. See id. at 3. On May 5, 2022, the Superintendent issued a determination denying plaintiff's grievance. See id. at 3 (citing Dkt. No. 26-4 at ¶28). Defendants contend that plaintiff did not appeal the grievance denial to CORC. See id. (citing Dkt. No. 26-4 at ¶13). II. Legal Standards Fed. R. Civ. P. 56 instructs courts to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude summary judgment, summary judgment cannot be granted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.”). The party seeking summary judgment bears the burden of informing a court of the basis for its motion and identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has met its initial burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts” to defeat summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rely on “mere conclusory allegations, speculation, or conjecture,” Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020), and must present more than a mere “scintilla of evidence” to support its claims, Anderson, 477 U.S. at 252. At the same time, a court must resolve all ambiguities and draw all inferences in favor of the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 150 (2000). The Court “may not make any credibility determinations or weigh the evidence.” Id. Thus, a court's duty in reviewing a motion for summary judgment is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Where, as here, a plaintiff proceeds pro se, the court must grant him “special solicitude,” construe his submissions “liberally,” and read such submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks omitted) (citing Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)). This is because “a pro se litigant generally lacks both legal training and experience and, accordingly, is likely to forfeit important rights through inadvertence if [ ] not afforded some degree of protection.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475). *3 However, the Second Circuit has cautioned district courts that they “cannot read into pro se submissions claims that are not consistent with the pro se litigant's allegations or arguments that the submissions themselves do not suggest.” Triestman, 470 F.3d at 477 (citations omitted). Further, the “special solicitude” standard does not excuse “frivolous or vexatious filings by pro se litigants,” nor does it “exempt a party from compliance with relevant rules of procedural and substantive law.” Id. III. Discussion A. Argument Defendants argue that this case must be dismissed because plaintiff did not exhaust his administrative remedies prior to commencing this action because he did not appeal the Superintendent's denial of his grievance to CORC. See Dkt. No. 26-1 at 5. Although plaintiff does not oppose this motion, in his deposition, he contended that he appealed the Superintendent's denial to CORC but did not receive a response. See Dkt. No. 26-5 at 92-93. B. Analysis Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 150 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 1. Exhaustion Standards The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust any administrative remedies available to him or her before bringing an action for claims arising out of his or her incarceration. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). The exhaustion requirement applies “to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required even where the prisoner seeks relief not available in the administrative grievance process, such as money damages. See id. at 524. “To exhaust administrative remedies, the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he is incarcerated.” Adams v. Annucci, 537 F. Supp. 3d 475, 477-78 (W.D.N.Y. 2021); see Jones v. Bock, 549 U.S. 199, 218 (2007). “In accordance with the PLRA ... [DOCCS] has made available a well-established inmate grievance program ... [which] involves [ ] following [a] three-step procedure for the filing of grievances.” Smith v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y. 2013) (citing 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7). “Exhaustion is mandatory—unexhausted claims may not be pursued in federal court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). Nonetheless, “the defendants have the burden of proving that [the plaintiff's] claim has not been exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted). A defendant satisfies this burden by “establishing ... that a grievance process exists” and that the plaintiff failed to use the grievance procedure. Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (citing Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003), and Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)). “[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (quotation marks and citations omitted). “[O]nce a defendant has produced reliable evidence that such remedies were generally available, and the plaintiff nevertheless failed to exhaust those remedies, the plaintiff must then counter the defendant's proof by showing that, as to him or her, the remedy was unavailable.” Coleman v. Nolan, No. 9:15-CV-40 (ATB), 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018) (citing Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013)). Availability means “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’ ” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). “An inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. *4 There are “three kinds of circumstances in which an administrative remedy ... is not capable of use to obtain relief.” Ross, 578 U.S. at 643. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing Booth, 532 U.S. at 736). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644. 2. Declarations & Plaintiff's Deposition Testimony Defendants submit a declaration from Laura Hutchins, the Incarcerated Grievance Program Supervisor at Gouverneur Correctional Facility. See Dkt. No. 25-3. Ms. Hutchins declared that plaintiff successfully completed “shop facility orientation” on May 16, 2022, through May 22, 2022, during which time he was given a presentation on how to file and exhaust grievances. See Dkt. No. 26-3 at 2, 9. Ms. Hutchins located records of plaintiff having filed four grievances in April 2022, regarding a staff assault on April 11, 2022, and that these grievances were consolidated into Grievance No. GOV-0087-22. See id. at 6. Gouverneur's records further reveal that the Superintendent denied plaintiff's consolidated grievance on May 5, 2022. See Dkt. No. 26-3 at 6 (citing Dkt. No. 26-3 at 16). The denial form advised plaintiff that “[i]f you wish to appeal the above decision of the Superintendent, please sign below and return this copy to the IGRC at the facility where the grievance was filed. You have seven (7) calendar days from the receipt of this notice to file your appeal. Please provide a reason why Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 151 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 you are appealing this decision to CORC.” Id. Ms. Hutchins declared that Gouverneur's records further show that plaintiff never appealed the Superintendent's denial of his consolidated grievance. See Dkt. No. 26-3 at 9. Defendants further submit a declaration from Rachael Seguin, Director of the Incarcerated Grievance Program for DOCCS. See Dkt. No. 26-4 at 1. Ms. Seguin declares that DOCCS Directive 4040 provides that DOCCS must “maintain grievance files for the current calendar year and the previous four calendar years,” that DOCCS maintains such files, and that “she searched DOCCS records for any appeals received by CORC relating to plaintiff's instant allegation.” Dkt. No. 26-4 at 4. The records revealed that plaintiff “has not appealed any grievances to CORC pertaining to allegations of Eighth Amendment violations against Defendants Fenlong and West, while Plaintiff was housed at Gouverneur C.F. in DOCCS custody under DIN: 22-B-0405.” Id. Defendants note that plaintiff testified at his deposition that he “ ‘filed the appeal at Gouverneur in May, like two days after’ he received the determination.” Dkt. No. 26-1 at 9. Defendants contend that this assertion is incorrect because DOCCS and Gouverneur records show that plaintiff never appealed the Superintendent's denial. See id. Defendants anticipate a potential argument, based on statements plaintiff made in his deposition, of the existence of “some type of conspiracy on behalf of the facility to hide or destroy his paperwork,” but contend that “such allegations are conclusory and are not sufficient to defeat a motion for summary judgment.” Id. Thus, defendants argue that this matter must be dismissed for plaintiff's failure to exhaust his administrative remedies before commencing this action. As plaintiff has not responded to the motion for summary judgment, the Court does not have before it any of plaintiff's positions regarding exhaustion. Out of special solicitude to plaintiff and in an attempt to view the facts in the light most favorable to the nonmoving party, the undersigned has searched the record for potential arguments regarding exhaustion. In his deposition, when asked if he “understand[s] what the grievance process is at ... the DOCCS facility,” plaintiff acknowledged that he attended an orientation about grievances and stated that he “somewhat” understood the process. Dkt. No. 26-5 at 79. Plaintiff testified that his understanding of the grievance process is that he needs to “follow the necessary steps. I have to follow these specific steps.” Id. He states, “what I can do is I can bring it to the officer's attention.... If that don't work, maybe speak to a sergeant or something like that. If that don't get nowhere, I write a grievance.” Id. at 79. When plaintiff was asked how he knew to file a grievance, plaintiff stated, “This isn't my first time in jail. I just – you know, I – I—and these grievances that I've written, these are the first grievances I ever written in my whole life. I just – I just knew that, you know what I mean, I had to report it.” Id. at 80. When asked further how he knew how to file a grievance, plaintiff responded, “I mean, I had a bunkie in the box. I just wrote out – it wasn't no specific thing. I just – I just took a piece of paper and just wrote down what happened and sent it – and sent it to grievance.” Id. at 81. When the AAG asked how he knew where to send the grievance, plaintiff testified, *5 it's no specific place. I was in the box. It's no specific place you have to send a grievance. You just slide it underneath your door. They come and get the mail. It is not like, no, I could go and put this in a grievance box. No, we're locked in already. We're in a box. Id. The AAG inquired about the grievance orientation plaintiff attended, to which plaintiff stated, “I am not sure about that, man. I am not even going to even – I – I can't answer it.” Dkt. No. 26-5 at 81-82. Plaintiff testified that he filed “like five” grievances with respect to the issues underlying this action. Id. at 82. When asked if he heard back about his grievances, plaintiff testified, “I received a letter in the mail ... facility mail, stating me that -- it was stating that it would – they had shut it down. They – they – they shut down my grievance. It wasn't accepted.” Id. at 83. In response to the AAG's question whether he heard back from the grievance office about his grievances, plaintiff testified, “yes.” Id. at 83. Plaintiff acknowledged the Superintendent's denial and stated that he understood the denial to mean, “it wasn't going to be nothing that was done about the incident and that it was going to be swept under the rug.” Id. at 84. He further testified that he understood the Superintendent's denial to mean that “it wasn't found valid. It was – it was shut down. It wasn't going through.... Basically, ... it's denied.” Id. at 92. Plaintiff testified that he “filed the appeal at Gouverneur in May, like two days after I got – right after I got that paper in the mail, right, I filed – I filed my appeal for it.” Dkt. No. 26-5 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 152 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 at 92. He states he did not receive a response to his appeal of the Superintendent's decision. See id. at 92-93. When asked if it was his “understanding that the appeal you filed was going to go to CORC,” plaintiff testified that he “didn't know where it was going.” Id. He testified affirmatively that he filled out the bottom portion of the Superintendent's denial form and sent it in. See id. at 93. When plaintiff did not hear back on his appeal of the Superintendent's denial, he did not file another grievance or follow up with any kind of request to the grievance office. See id. at 94. When asked why he did not follow up, plaintiff stated, “I was still in that facility right there. And a lot of the paperwork, a lot of stuff, it was all against me over there. You get what I'm saying. I really didn't have a – like I said, I put in five grievances. You showed me four. I'm missing a grievance. You get what I'm saying?” Id. at 94-95. Plaintiff contended that he was “refused medical over there. I did not feel safe over there. Any type of paperwork that I do have and that I was able to escape with out of that facility, like I'm blessed to have it. Like I – I – I didn't have no control.” Id. When questioned about how he filed the appeal of his grievance denial, plaintiff testified that he “had another fellow peer help me out in here because I'm – I'm really not law library savvy like that. So I actually paid somebody to help me put this whole thing together ... [s]o I could get the help that I need because I – I – like I said, I've never been involved in this type of stuff before .... I don't know what I am doing .... I told my story to a couple guys ... and they helped me to get this far. And I -- I'm struggling here, man.” Dkt. No. 26-5 at 96. *6 Plaintiff testified that, to file his appeal of the Superintendent's denial, he went to the law library with another inmate who “basically did everything. I signed it and – and we sent it out.” Dkt. No. 26-5 at 97. Plaintiff testified that he sent his appeal to “Albany – it went to this same address that I get all this mail from. It went to office of the attorney – it went to you.” Id. When asked to clarify if plaintiff was stating that he sent his appeal of the Superintendent's decision to the Attorney General's Office, plaintiff stated, “It went to the – all that – that's all in the same building in Albany, right? The Attorney General's office and everything is in Albany, two twenty – I believe it's two twenty.” Id. at 97. When confronted with the fact that the Superintendent's denial of his grievance contained instructions stating that any appeal of the Superintendent's decision is to be sent to the Inmate Grievance Resolution Committee (“IGRC”) at the facility where the grievance is filed, but that he testified he sent it to the Attorney General's Office, plaintiff stated that he was “not even sure” where he sent it. Dkt. No. 26-5 at 97. He stated that he is “pretty sure I sent it to the grievance. I am not sure where it went, man. I know I sent it out. I did every little piece of paperwork I was supposed to do.” Id. at 98-99. When asked whether he was “fearful that your grievance somehow wouldn't be listened to at that facility, plaintiff replied “Grievance? I was – was more fearful for my life.” Id. at 99. Plaintiff testified that when he was transferred out of Gouverneur to Cayuga, he did not follow up with the grievance office at Cayuga or attempt to pursue his grievance further. See Dkt. No. 26-5 at 95. Plaintiff testified that he “didn't know I had to” as he already filed five grievances at Gouverneur and “they shut it down.” Id. at 95. “I put the appeal in. I didn't hear nothing about the appeal.” Id. He says when he was transferred to Cayuga, he also did not hear anything about his appeal. See id. Plaintiff then testified that he did not attempt to seek the status of his grievance once he was transferred to Cayuga because he “was happy to get out of that facility .... it's a whole different environment in the facility I am in now than Gouverneur. You could – you could feel the fear over there.” Id. at 100. Plaintiff testified that once he was transferred to Cayuga, “I could start fresh and then go about my business, do my time, and get home. I wasn't really like – I didn't want the whole state against me, man. I didn't want to leave one jail and then go to another jail and I got the police all over me there neither. So I wanted to like kind of fly under the radar.” Id. at 101. Plaintiff states that upon transfer to Cayuga, he did not complete another orientation about the grievance procedure. See Dkt. No. 26-5 at 102. As he had completed a full orientation at Gouverneur, “the grievance thing was not discussed” at Cayuga; he underwent a more streamlined orientation. Id. When asked whether the original orientation at Gouverneur covered grievances, plaintiff then testified, “I'm not sure about all that, man. I – that's not something that I am paying attention to, man. I came to jail to do my time, man. Not write grievances, man. You get what I'm saying? That's – that's – that's just what it boils down to.” Id. at 102. When asked to clarify whether he was testifying that he never attended an orientation that went over the grievance process, plaintiff again stated, “I'm not sure, man. I – maybe don't be paying attention to a lot of shit. If it – if it don't – if it don't affect me or something like that, I'm just not paying attention to everything. I have a short attention span on certain things.” Id. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 153 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Plaintiff testified that once he was transferred to Cayuga, he was in general population, but when asked whether plaintiff could have “stopped by the grievance office at any point in time,” he testified, “I mean, yeah. Yes, I guess. I'm not even sure if we even have a grievance building here at all.” Dkt. No. 26-5 at 105. Plaintiff further testified that while at Cayuga, he was not “intimidated all,” “assaulted at all,” or “in fear for [his] life at all,” by Cayuga staff. Id. 3. Exhaustion of Administrative Remedies Here, the record is clear that plaintiff did not exhaust his administrative remedies before commencing this action. Although plaintiff testified that he appealed the Superintendent's denial of his grievance with help from a fellow inmate, he testified that was unsure if he sent the appeal to the IGRC or to the Attorney General's Office or another agency in Albany. The Court has before it no proof of his alleged appeal. *7 Plaintiff's testimony on exhaustion is littered with contradictions and lacks support. Plaintiff testified that he never received a response to his appeal, but did not follow up while he was at Gouverneur or Cayuga. Plaintiff's testimony was conflicting as to why plaintiff did not follow up. He indicated that he did not fully understand the grievance procedure, stating that he was not fully sure whether he was given a presentation about the grievance process at Gouverneur's orientation because he stopped paying attention based on his belief that it was not applicable to him or due to his short attention span. See Dkt. No. 26-5 at 102. Elsewhere in his deposition plaintiff suggests he was in fear for his life while at Gouverneur, but when asked if he feared filing an appeal to CORC, he indicated he had a general fear for his life at Gouverneur rather than a specific fear of proceeding with the grievance procedure. See Dkt. No. 26-5 at 99. Yet, plaintiff conceded that he did file four to five grievances while at Gouverneur. Plaintiff testified that he did not follow up on the grievance or pursue anything further when transferred to Cayuga because he did not know he was supposed to. See id. at 101. However, he also testified that he did not follow up on his grievance once at Cayuga because he was trying to fly under the radar, complete his time in custody, and go home. See Dkt. No. 26-5 at 100-101. In support of their motion for summary judgment, defendants provide the declarations of Ms. Hutchins and Ms. Seguin, who both declared that they checked records at both Gouverneur and DOCCS and there is no record of his appeal. See Dkt. Nos. 26-3, 26-4. Plaintiff does not counter defendants’ proof with supported arguments or evidence; he does not provide to the Court a copy of his appeal or any clarity on where he alleges to have sent the appeal. See Dkt. No. 26-5 at 12; See Gibbs v. Gadway, No. 9:19-CV-281 (GTS/DJS), 2019 WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019), report and recommendation adopted, No. 9:19-CV-0281 (GTS/DJS), 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (“Plaintiff makes a purely conclusory allegation that he appealed the grievance denial to CORC. Significantly, plaintiff has not provided a copy of the grievance appeal or even asserted on what date he filed the appeal. In light of the documented proof that no such appeal was filed, such a conclusory statement is insufficient to create a material question of fact on this Motion.”); see also Blake v. Porlier, No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y. Oct. 4, 2019), report-recommendation adopted, No. 9:18-CV-1008 (DNH/CFH), 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020) (“Even considering that plaintiff swore under penalty of perjury that he mailed a grievance within the allotted time frame, he did not provide any evidence to substantiate his allegations. [ ] Therefore, plaintiff's unsupported allegations cannot give rise to an issue of material fact sufficient to defeat a motion for summary judgement.) (citations omitted)). “In short, ‘[g]iven the lack of evidence that Plaintiff's appeal to CORC was ever filed, or ever followed up on, it is not that the full scope of administrative remedies was not available to Plaintiff – rather, Plaintiff failed to fully exhaust the administrative remedies available to him.’ ” Shabazz v. Bailey, No. 9:20-CV-00057 (LEK/TWD), 2023 WL 5779533, at *7 (N.D.N.Y. June 28, 2023), report and recommendation adopted, No. 9:20-CV-57 (LEK/TWD), 2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023), aff'd, No. 23-7252, 2025 WL 272602 (2d Cir. Jan. 23, 2025) (quoting Houston v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3 (W.D.N.Y. May 14, 2020) and citing Litchmore v. Williams, No. 11-CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013) (“no ‘sufficient basis in the record to find that administrative remedies were unavailable’ where, among other things, there was ‘no evidence here that the plaintiff's appeal was actually mailed, intercepted, or ignored’ and ‘DOCCS has no record of any appeal filed with CORC’ ”)). “If a prisoner has failed to properly follow each of the applicable steps before commencing litigation, he has failed to exhaust his administrative remedies.” Scott v. Uhler, No. 9:16-CV-403 (TJM/CFH), 2019 WL 5197139, at *5 (N.D.N.Y. July 31, 2019), report and recommendation adopted, 2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019). Accordingly, the undersigned concludes that plaintiff has Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 154 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 failed to exhaust his administrative remedies in that he has not raised a material question of fact as to whether he appealed the Superintendent's denial of his grievance to CORC. Thus, the undersigned must next assess whether administrative remedies were available to plaintiff. 4. Availability of Administrative Remedies *8 New York law establishes a three-step grievance and appeal process for prisoners. See N.Y. Comp. Codes R. & Regs. tit. 7 (“7 N.Y.C.R.R.”), § 701.5. That process consists of the following: (1) “[a]n inmate must submit a complaint” with the Inmate Grievance Resolution Committee, id. § 701.5(a)-(b); (2) if the inmate disagrees with the response to the grievance, the inmate must “appeal to the superintendent,” id. § 701.5(c); and (3) if the inmate disagrees with the superintendent's findings, he must “appeal to the CORC ... within seven calendar days after receipt of the superintendent's written response to the grievance,” id. § 701.5(d). “A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure.” Toussaint, 660 F. Supp. 2d at 523 (cleaned up). The statute also states, “[i]f a grievant does not receive a copy of the written notice of receipt within 45 days of filing an appeal, the grievant should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.” 7 N.Y.C.R.R. § 701.5(d)(3). Foskey v. Paige, No. 9:20-CV-504 (LEK/TWD), 2024 WL 2109150, at *3 (N.D.N.Y. May 10, 2024). 2 Applying special solicitude, it is arguable that plaintiff is contending that administrative remedies were unavailable on several grounds, some of them conflicting. The Supreme Court of the United States has identified three circumstances in which a court may find administrative remedies are not “available” for PLRA purposes: First, ... an administrative procedure is unavailable when ... it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.... Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can navigate it .... And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Ross, 578 U.S. at 643-44. The Second Circuit has interpreted these three circumstances as nonexhaustive as Ross focused on the “three kinds of circumstances that were ‘relevant’ to the facts of that case.” Williams v. Correction Officer Priatno, 829 F.3d 118, 124 n.2 (2d Cir. 2016) (citing Ross, 578 U.S. at 643). 5. Was the Grievance Process Opaque? a. Did Not Know How to Grieve First, plaintiff's deposition testimony suggests that he did not fully exhaust because was not sure how to complete the grievance process. He testified that he had been incarcerated in state facilities before his incarceration at Gouverneur in 2022 but never had filed a grievance before the ones he submitted in this action. Plaintiff admits that he attended Gouverneur's “shop facility orientation,” but states that he was unaware if he was taught how to exhaust administrative remedies because he did not pay attention. See Dkt. No. 26-5 at 102 The undersigned observes that the underlying incidents are alleged to have occurred on April 11, 2022. Plaintiff filed his four or five grievances in April 2022, which were consolidated. The Superintendent denied plaintiff's consolidated grievance on May 5, 2022. Plaintiff attended “shop facility orientation” from May 16, 2022, to May 22, 2022. See Dkt. No. 26-3 at 9. Plaintiff alleges to have appealed 3 to CORC within two days of receiving his denial, meaning this all occurred before he competed his facility orientation training regarding how to file and exhaust grievances on May 16-22, 2022. See Dkt. No. 25-3 at 16; Dkt. No. 26-3 at 9. *9 The undersigned assesses whether plaintiff's statement that he did not know how to grieve is sufficient to raise Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 155 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 a valid argument as to opaqueness. The Second Circuit recently explained the “opaqueness” exception to the PLRA's exhaustion requirement applies where “[t]he regulations simply do not contemplate the situation in which [the prisoner] found himself, making it practically impossible for him to ascertain whether and how he could pursue his grievance.” Williams v. Priatno, 829 F.3d 118, 124 (2d Cir. 2016). Liberally read, plaintiff's deposition testimony suggests that he did not understand the grievance procedure at any stage. However, even accepting as true that plaintiff did not fully understand what steps needed to be taken to exhaust his administrative remedies, plaintiff does not demonstrate that his ignorance of the grievance process rendered administrative remedies “opaque” as that term is contemplated by precedent. To the extent plaintiff appears to have testified that he did not know how to proceed with the grievance process, plaintiff conceded that he: was aware that a grievance process existed; knew he had to “follow the necessary steps. I have to follow these specific steps”; knew that if informal methods of resolution were unsuccessful, he should file a grievance; asked his “bunkie” to help him file grievances; filed at least four grievances with respect to the underlying incident; and hired a fellow inmate to assist him. Dkt. No. 26-5 at 79. “[S]ince Plaintiff was able to discern and navigate the first two steps of the grievance process, there is nothing to suggest that the third step, the appeal to CORC, was opaque to such a point that it became incapable of use.” Beauvoir v. Smith, No. 9:14-CV-1495 (MAD/DEP), 2017 WL 4271636, at *3 (N.D.N.Y. Sept. 26, 2017). Defendants submit records from Gouverneur demonstrating that plaintiff successfully completed shop facility orientation which included training on how to file a grievance and exhaust administrative remedies. When asked about such training, plaintiff gave vague and dismissive answers, suggesting he was unsure if he learned about how to proceed with a grievance and the various steps required because he did not pay attention, believing that it was not relevant to him and/or because he did not have a sufficient attention span to focus. Plaintiff testified that he did not know how to grieve and properly exhaust his grievance does demonstrate that administrative remedies were unavailable to him. Plaintiff concedes that he attended the orientation, but that he was unsure if he was taught how to proceed through the grievance process because he did not pay attention as he felt the information was not relevant to him or he zoned out due to attention span issues. Similarly, when confronted at his deposition with the fact that the Superintendent's denial of his grievance included instructions that advised him that if he wished to appeal the denial, he was to sign and return the appeal section to the IGRC, plaintiff did not deny that the form contained such instruction, but responded that he was “not even sure” where he sent the appeal and was “pretty sure I sent it to the grievance. I am not sure where it went, man. I know I sent it out. I did every little piece of paperwork I was supposed to do.” Dkt. No. 26-5 at 97-99. Plaintiff's choosing not to pay attention to the training needed to learn how to exhaust or declining to seek assistance does not demonstrate that the grievance process was “essentially unknowable.” Hill v. Tisch, No. 02-CV-390, 2016 WL 6991171, at *7 (E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to demonstrate that the grievance “procedures were essentially unknowable”). It demonstrates that plaintiff actively chose against educating himself or allowing his facility to educate him as to the grievance procedure. *10 The undersigned recognizes that plaintiff's orientation took place after he filed his grievances and received the Superintendent's denial. Thus, although he may have been untrained regarding the grievance process at the time he filed his grievances and received the Superintendent's denial, he attended such training by May 22, 2022, at the latest. Upon completing the orientation, he could have reached out to the IGRC or CORC and requested an extension 4 of time to appeal to CORC, citing mitigating circumstances, but failed to do so. See 7 NYCRR § 701.6(g); 5 see generally Valverde v. Folks, No. 1:19-CV-08080-MKV, 2022 WL 836310, at *7 (S.D.N.Y. Mar. 21, 2022) (“As such, it is possible that if Plaintiff had sought an extension to file an appeal from CORC, he could have received one. Plaintiff never did so.”), aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10, 2023). Plaintiff's failure to avail himself of the grievance procedure is based on his ignorance of the training and failure to seek out resources rather than the opacity of the procedure. “Courts within the Second Circuit are split regarding whether a failure to respond by CORC constitutes unavailability excusing a plaintiff's failure to exhaust.” High v. Switz, No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *4 (N.D.N.Y. July 9, 2018), report and recommendation adopted sub nom. High v. PA Switz, No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018). Indeed, the Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 156 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 regulations “ ‘do not describe a mechanism’ for appealing or advancing a grievance when a grievant does not receive a response from CORC.” Id. at *5 (quoting Williams, 829 F.3d at 124). Plaintiff's case differs from those in which courts held administrative remedies were unavailable where a plaintiff appealed to CORC, but CORC never responded or failed to respond within a reasonable period of time. See, e.g., High, 2018 WL 3736794, at *4 (exclusing the plaintiff's failure to exhaust where the plaintiff appealed to CORC but never received a response, finding administrative remedies were unavailable when CORC failed to respond). Unlike in those cases, 6 where the Court found that administrative remedies were unavailable because the regulations did not explain what an inmate should do if he appealed to CORC but receives no response, in those cases there did not appear to be a question whether the plaintiffs actually appealed to CORC. Here, plaintiff presents no details nor any proof of his alleged appeal to CORC beyond his conclusory claim during his deposition. He testified that he appealed the Superintendent's denial, but offered conflicting testimony over where the appeal was sent – either to the Attorney General's Office or another agency “in Albany” or to the IGRC, did not provide a copy of the appeal, and did not indicate that he ever attempted to follow up with CORC or the IGRC after failing to receive any response from his appeal. See Valverde v. Folks, No. 1:19-CV-08080 (MKV), 2022 WL 836310, at *8 (S.D.N.Y. Mar. 21, 2022), aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10, 2023) (“Here, unlike Williams [v. Priatno], Plaintiff concedes that his initial grievance was processed and answered. [ ] .... Plaintiff had an avenue to appeal the denial of his grievance, however he filed the appeal form improperly and it does not appear that he made any attempt to ever ask the grievance supervisor for confirmation that his appeal was received.”). *11 Plaintiff proffered no argument or evidence that he “received written notice that the appeal was filed or that he attempted to contact CORC of the IGRC ... regarding the status of his appeal before commencing this action.” Bowie v. Woodruff, No. 9:1-8CV-0266 (BKS/ML), 2019 WL 7606078, at *6 (N.D.N.Y. Sept. 20, 2019), report and recommendation adopted, No. 9:18-CV-00266 (BKS/ML), 2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019) (citing Fox v. Lee, 9:15-CV-0390 (TJM/CFH), 2018 WL 8576600, at *7 (“granting summary judgment because the plaintiff did not proffer evidence that he wrote to the IGRC or CORC inquiring as to the status of his appeals” and “ ‘never contacted Eastern's [IGP supervisor] in writing ... to confirm that any of his appeals were filed and transmitted to CORC.’ ”) vacated in part on other grounds 2023 WL 7481423 (2d. Cir. Nov. 13, 2023); see § 701.5(d)(3)(i) (noting that the IGRC dates all CORC appeals and will forward the inmate a copy of the receipt, and that “[i]f a grievant does not receive a copy of the written notice of receipt within 45 days of filing an appeal, the grievant should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.”). Indeed, “[t]he record is devoid of any indication that Plaintiff followed up with the [facility] IGP supervisor ‘to confirm that the appeal was filed and transmitted to CORC’ when he did not receive written confirmation within forty-five days that his appeal was received.” Shabazz, 2023 WL 5779533, at *7 (quoting 7 N.Y.C.R.R. § 701.5(d)(3) (i) and citing Simpson v. Price, No. 9:19-CV-1413 (MAD/ ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021)) (“granting summary judgment on exhaustion grounds where plaintiff ‘provided no specifics regarding when the grievances were written, their content, or the steps he took to provide them to an officer to send to the grievance office’ and there was no documentary evidence to corroborate the fact plaintiff attempted to file a grievance, such as follow-up correspondences.”); see Gizewski v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 9:14-CV-124, 2016 WL 3661434, at *13 (N.D.N. Y July 5, 2016) (concluding that the plaintiff did not exhaust his administrative remedies because he failed to take further action under § 701.5(d)(3)(i) when he did not receive written notice of receipt by the CORC within 45 days of filing his appeal; he did not contact the Inmate Grievance Program to ascertain whether CORC received his appeal), aff'd, 692 F. App'x 668 (2d Cir. 2017)). By contrast, defendants produce records from both Gouverneur and DOCCS, along with declarations from the officials who maintain such records, showing that they have no record of plaintiff having ever filed an appeal of the Superintendent's denial of his grievance. See Dkt. Nos. 26-3, 26-4 at 7-8. Accordingly, plaintiff has failed to demonstrate that his lack of understanding of grievance process amounts to the grievance process being so opaque to be rendered incapable of use. b. Transfer Further, plaintiff's transfer from Gouverneur to Cayuga “does not excuse his failure to exhaust, as the grievance process is identical in all New York state-run facilities.” Campbell v. Prue, No. 9:16-CV-0004 (MAD/CFH), 2018 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 157 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 WL 4635708, at *5 (N.D.N.Y. July 3, 2018), report and recommendation adopted, No. 9:16-CV-0004 (MAD/CFH), 2018 WL 3574871 (N.D.N.Y. July 25, 2018) (citing Hartry v. Cnty. of Suffolk, 755 F.Supp. 2d 422, 434 (E.D.N.Y. 2010)) (“[S]ome courts [ ] have found that transfer within correctional facilities governed by the same governmental agency will not excuse exhaustion, regardless of whether the inmate had an opportunity to pursue the remedy while at the facility where the claim arose.”) (additional citations omitted). Plaintiff testified at his deposition that he did not attempt to follow up on his grievance after being transferred to Cayuga. Plaintiff offered conflicting testimony for his reasoning behind declining to follow up once he reached Cayuga. First, plaintiff testified that he did not follow up at Cayuga regarding his grievance because he did not know he was supposed to follow up there. However, he later testified that he decided not to pursue his grievance once at Cayuga because he wanted to be able to serve out his time at Cayuga without being “noticed.” Dkt. No. 26-5 at 101. Second, plaintiff made clear that he was not in any fear while incarcerated at Cayuga. Thus, he was not prevented from pursuing his grievance at Cayuga. Further, as noted, plaintiff received the Superintendent's denial of his grievance on May 5, 2022, and remained at Gouverneur until June 13, 2022, giving him sufficient time to pursue an appeal at Gouverneur before his transfer. See Dkt. No. 26-2 at 2. Plaintiff's conclusory and conflicting statements that he did not know how to use the grievance procedure fails to demonstrate that, as a result of his transfer to Cayuga, administrative remedies were so opaque they were rendered incapable of use. 6. Grievance Process as a Dead End *12 Plaintiff testified that he did not know the next step he was supposed to take when he did not receive a response from his alleged appeal to CORC. Plaintiff further testified that he filed a fifth grievance regarding “medical” while at Gouverneur but that he did not receive a response. Dkt. No. 26-5 at 94-95. Applying a very liberal reading of this testimony, plaintiff's statements could be interpreted as arguing that the grievance procedure operated as a “dead end.” However, plaintiff's testimony on this point fails to raise a material question of fact for the reasons discussed below. Courts have rejected arguments that the grievance procedure was a “dead end” where the plaintiffs chose to participate in the grievance procedure in some way, even in unrelated matters, concluding that such participation demonstrates that the plaintiffs did not view the grievance procedure as a dead end. See Luke Matthews, et al. v. L. Sweeny, Clinton Corr. Sergeant, et al., No. 9:17-CV-0503 (GTS/ML), 2025 WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025) (citing Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018)) (“While Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (and others); see Barrett v. Ballard, No. 9:23-CV-113 (DNH/ DJS), 2024 WL 4627511, at *4 (N.D.N.Y. Oct. 4, 2024), report and recommendation adopted, No. 9:23-CV-113, 2024 WL 4627801 (N.D.N.Y. Oct. 30, 2024) (“Plaintiff makes no argument that the grievance process was unavailable to him and cannot carry that burden especially since he claims that he did, in fact pursue, at least at the outset, to resolve this issue through the grievance process.”). Here, plaintiff filed at least four grievances regarding the issues underlying this complaint; thus, any argument suggesting that he believed the grievance procedure to be a dead end is without force. To the extent plaintiff's testimony that he filed a fifth grievance that went “missing” could suggest that he believed the grievance process was a dead end, “Courts within the Second Circuit have continuously held that ‘mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.’ ” Blake v. Porlier, No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4, 2019) (quoting Rodriguez v. Cross, No. 9:15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *5 (N.D.N.Y. May 9, 2017) report and recommendation adopted, 2017 WL 1076343 (N.D.N.Y. Mar. 22, 2019)). Plaintiff offers no proof that he filed a fifth grievance relating to the matters underlying this suit or any support for his conclusory claim that the fifth grievance was filed and went missing. See Rodriguez, 2017 WL 2791063, at *5 n.13 (finding that the plaintiff's failure to exhaust was not excused because, although the plaintiff “state[d] that some grievances were destroyed ... he ha[d] not submitted any copies of these grievances, nor d[id] he specify when he attempted to file them.”). In sum, the undersigned concludes that plaintiff has failed to demonstrate a material question of fact as to whether Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 158 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 the grievance process amounted to a “dead end” such that administrative remedies were unavailable to him. 7. Fear Plaintiff testified that he was in fear for his life while he was incarcerated at Gouverneur. See Dkt. No. 26-5 at 99. When asked for clarification as to whether he was afraid to file a grievance, plaintiff stated, “Grievance? I was – was more fearful for my life.” Id. Plaintiff testified, however, that he was not in fear once he was transferred to Cayuga. See id. at 100. He testified that he did not pursue his grievance after not receiving a response to his alleged appeal because he did not know he was “supposed to” but also because he “didn't want the whole state against me, man. I didn't want to leave one jail and then go to another jail and I got the police all over me there neither. So I wanted to like kind of fly under the radar.” Id. at 101. *13 Administrative remedies may be unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. However, a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies. Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016 WL 4411338, at *5 (N.D.N.Y. July 5, 2016). Estoppel is found where “verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers” occur showing that defendants acted affirmatively to prevent an inmate from availing him or herself of the grievance procedures. Id. at *5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)). Pridgen v. Beatie, No. 9:16-CV-535 (DNH/CFH), 2018 WL 1402049, at *8 (N.D.N.Y. Jan. 17, 2018), report and recommendation adopted, No. 9:16-C-V535 (DNH/CFH), 2018 WL 1394146 (N.D.N.Y. Mar. 19, 2018). Here, plaintiff's generalized, conclusory arguments about being in fear while at Gouverneur fail to state a viable unavailability argument under the “machination, misrepresentation, or intimidation” exception. Ross, 136 S. Ct. at 1860. Plaintiff does not assert that any specific individual at Gouverneur prevented him from filing an appeal by threatening or intimidating him. Plaintiff offers no argument or proof that defendants or other prison officials “affirmatively or misleadingly prevented Plaintiff from filing the appeal to CORC” or otherwise pursuing his administrative remedies.” Shabazz, 2023 WL 5779533, at *7. Further, when asked if he were afraid of filing a grievance, his response suggested that he was fearful, generally, during his time at Gouverneur, and suggested that he was not specifically afraid of proceeding with his grievance. See Dkt. No. 26-5 at 99. Significantly, the undisputed facts in this case belie any claims of fear. Plaintiff filed four – and argues he filed five – grievances at Gouverneur, defeating an argument that he was too afraid for his life to take advantage of his administrative remedies. See, e.g., McNab v. Doe, 686 F. App'x 49, 51 (2d Cir. 2019) (summary order) (affirming summary judgment dismissing the plaintiff's complaint for failure to exhaust where although the plaintiff asserted that the defendants tried to intimidate him because “none of the actions allegedly taken by the defendants actually prevented [him] from submitting his complaint letter.”); Riles v. Buchanan, 656 F. App'x 577, 581 (2d Cir. 2016) (summary order) (finding that the defendants’ alleged threats of retaliation did not interfere with the plaintiff's exhaustion efforts because, following a threat, the plaintiff “thereafter submitted ... [a] grievance in spite of this alleged threat”); Hall v. Annucci, No. 19- CV-5521 (KMK), 2022 WL 3903255, at *10 (S.D.N.Y. Aug. 30, 2022), aff'd, No. 22-2031, 2023 WL 7212156 (2d Cir. Nov. 2, 2023) (“[w]here an inmate files a grievance or appeals a grievance determination after having received threats or suffered retaliation, the inmate's conduct ‘directly cuts against’ ... [an] argument that ... administrative remedies were unavailable.”) (citation omitted). *14 Accordingly, the undersigned concludes that plaintiff fails to demonstrate that administrative remedies were unavailable to him on the ground that “prison administrators thwart[ed] [him] from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643-44. C. Doe Defendants The undersigned observes that plaintiff has failed to identify or serve process on John Does 1-8, as required by Rule 4(m) and N.D.N.Y. Local Rule 4.1, despite having ample time and opportunity. Plaintiff commenced this action on March 8, 2023. See Compl. Discovery in this action expired in March 2024. See Dkt. No. 22. Plaintiff has had a substantial amount of time to identify and serve the Doe defendants, “and the Court is under no obligation to extend the deadline Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 159 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 indefinitely.” Santiagocruz v. Doe #4, No. 9:21-CV-0806 (TJM/ML), 2023 WL 9600956, at *1 n.1 (N.D.N.Y. Dec. 15, 2023), report and recommendation adopted sub nom. Santiagocruz v. Gordon, No. 9:21-CV-806, 2024 WL 532499 (N.D.N.Y. Feb. 8, 2024) (citation omitted); see Waldo v. Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing claims against Doe defendants pursuant to Fed. R. Civ. P. Rule 4(m) where the pro se plaintiff failed to serve the Doe defendants within a year of commencing the action). “All discovery is complete and thus, [P]laintiff's failure to identify the ‘John Doe’ defendant[s] mandates dismissal.” Epps v. City of Schenectady, No. 10-CV-1101, 2013 WL 717915, at *5 (N.D.N.Y. Feb. 27, 2013). Accordingly, the undersigned recommends sua sponte dismissal of defendants John Does 1-8 from this action without prejudice. D. Dismissal The Second Circuit has “recognized that failure to exhaust administrative remedies is usually a ‘curable, procedural flaw’ that can be fixed by exhausting those remedies and then reinstituting the suit.” Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001) (quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002). Thus, where a claim is dismissed for failure to exhaust administrative remedies, dismissal without prejudice is appropriate if the time permitted for pursuing administrative remedies has not expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004); see Pettus v. McCoy, 04-CV-0471, 2006 WL 2639369, at *1-2 (N.D.N.Y. Sept. 13, 2006) (dismissing a complaint without prejudice for failure to exhaust). However, if a prisoner has failed to exhaust available administrative remedies and the time in which to exhaust has expired, it is proper for the court to dismiss the complaint with prejudice because any attempt to exhaust would be futile. See Berry v. Kerik, 366 F.3d 85, 86 (2d Cir. 2004); see, e.g., Hilbert v. Fischer, 12-CV-3843, 2013 WL 4774731, at *7 (S.D.N.Y. Sept. 5, 2013) (collecting cases). Here, plaintiff received the Superintendent's denial on May 3, 2022, and he commenced this action March 8, 2023. As plaintiff's time to exhaust his administrative remedies has expired, it is recommended that his complaint be dismissed with prejudice. IV. Conclusion WHEREFORE, for the reasons set forth herein, it is hereby RECOMMENDED, that defendants’ West and Fenlong's Motion for Summary Judgment, Dkt. No. 26, be GRANTED in its entirety with prejudice; and it is further *15 RECOMMENDED, that the claims against the Doe defendants be DISMISSED without prejudice based on plaintiff's failure to timely identify and serve those defendants; and it is ORDERED, that the Clerk serve this Report- Recommendation & Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. Pursuant to 28 U.S.C. 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). 7 All Citations Slip Copy, 2025 WL 1033787 Footnotes Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 160 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 1 Unless otherwise noted, the Court has provided plaintiff with copies of all unpublished cases cited herein. 2 As in this case, There are ... special procedures that may be used when the grievance involves a claim of staff misconduct. Id. § 701.8. A grievance alleging staff misconduct, once it is recorded and given a number, must be sent directly to the Superintendent, and the Superintendent must issue a decision within twenty-five days. Id. § 701.8(f). If the grievant wishes to appeal a decision by the Superintendent to CORC, he must file a notice of decision to appeal with the inmate grievance clerk at the bottom of the Superintendent's decision within seven days of receipt of the decision. Id. § 701.8(h). CORC is required to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.8(i) (incorporating § 701.5). Ayers v. Trombley, No. 9:17-CV-01229 (DNH/TWD), 2019 WL 3892864, at *10 (N.D.N.Y. July 8, 2019), report and recommendation adopted, No. 9:17-CV-1229 (DNH/TWD), 2019 WL 3891027 (N.D.N.Y. Aug. 19, 2019). 3 As concluded, supra, the undersigned has found that plaintiff failed to demonstrate that he appealed the Superintendent's denial to CORC. 4 The regulations provide that an individual who wishes to appeal a Superintendent's denial in the expedited procedure has seven calendar days after receipt of the denial to do so. See 7 N.Y.C.R.R. 701.6(h)(2). The Superintendent's denial of his grievance is dated May 5, 2022. It is unclear when he received the Superintendent's denial, but the undersigned recognizes that his training likely came after the seven-day period had expired. However, plaintiff demonstrates that his absence of formal training at Gouverneur did not stop him from successfully navigating the grievance procedure at the earlier stages. 5 A request for an extension of time to file an appeal to CORC may be requested in writing, but “an exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.” N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(1)(i)(a), (b). An inmate may choose to file a separate grievance if a request for an extension is denied. See id. § 701.6(1)(i)(b). Plaintiff completed the shop facility orientation on May 22, 2022, within forty-five days after the alleged occurrence on April 11, 2022. Thus, even if he was untrained on how proceed with the grievance process after receiving the Superintendent's denial until after he completed training, he still had time to request an extension to do so after receiving training. In such training, he would have likely also been advised to write to CORC or the IGRC if he did not receive confirmation of receipt of an appeal. 6 Further, in some cases addressing unavailability when an appeal to CORC is unanswered, the court found administrative remedies unavailable where the inmate plaintiff was transferred before receiving a response; here, however, plaintiff received the Superintendent's denial before being transferred and remained at Gouverneur for over a month after receipt of the denial. See, e.g., Robinson v. Ballard, 9:13-CV-01213 (TJM/ TWD), 2017 WL 979047, at *12 (N.D.N.Y. Feb. 3, 2017), report and recommendation adopted, 2017 WL 979039 (N.D.N.Y. Mar. 13, 2017) (citing Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016)) (“as in Williams, Plaintiff in this case was transferred to a new facility before receiving a response to his grievance and failed to receive a response after the transfer.”); See Dkt. No. 26-2 at 2. 7 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. See FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(C). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 161 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 162 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 814966 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Craig A. JACKSON, Plaintiff, v. Sergeant WEST, et al., Defendants. 9:23-CV-306 (LEK/PJE) | Signed March 14, 2025 Attorneys and Law Firms Craig A. Jackson, Moravia, NY, Pro Se. Alexandra L. Galus, Anthony Huntley, Lauren Rose Rosenberg, NYS Office of the Attorney General, Albany, NY, for Defendants Sergeant West, D. Fenlong. MEMORANDUM-DECISION AND ORDER LAWRENCE E. KAHN, United States District Judge I. INTRODUCTION *1 Plaintiff Craig A. Jackson brings this pro se action pursuant to 42 U.S.C. § 1983 against Defendants Sergeant West, D. Fenlong, and eight John Does, asserting violations of his constitutional rights. Dkt. No. 1. Defendants West and Fenlong filed a motion for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies before commencing this action. Dkt. No. 26 (“Motion”). On February 20, 2025, the Honorable Paul Evangelista, United States Magistrate Judge, issued a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), recommending that the Motion be granted. Dkt. No. 30 (“Report and Recommendation”). No party has filed objections to the Report and Recommendation. For the reasons that follow, the Court adopts the Report and Recommendation in its entirety. II. BACKGROUND The Court assumes familiarity with the factual background detailed in the Court's April 18, 2023 Memorandum-Decision and Order. See Dkt. No. 4 at 2–3. In his analysis, Judge Evangelista first noted that Plaintiff filed four grievances relating to the staff assault that occurred in April 2022. Id. at 8. Those grievances were consolidated into one, id., which was denied on May 5, 2022, id. at 9. Judge Evangelista then explained that Plaintiff was informed that he could appeal the decision to the Superintendent of his facility, but the records reveal that he never did so. Id. While Plaintiff testified that he did file an appeal, Judge Evangelista found Plaintiff's testimony to be “littered with contradictions and lack[ing] support,” such that there was no genuine dispute of fact on this issue. Id. at 15. He concluded that Plaintiff did not exhaust his administrative remedies. Id. at 17. Judge Evangelista then examined whether the grievance process was “unavailable” to Plaintiff, such that Plaintiff may be excused from the exhaustion requirement. Id. at 19–31. First, Judge Evangelista found that “[P]laintiff has failed to demonstrate that his lack of understanding of [the] grievance process amounts to the grievance process being so opaque to be rendered incapable of use.” Id. at 25–26. Next, Judge Evangelista found that “[P]laintiff has failed to demonstrate a material question of fact as to whether the grievance process amounted to a ‘dead end’ such that administrative remedies were unavailable to him.” Id. at 29. Lastly, Judge Evangelista explained that “Plaintiff fails to demonstrate that administrative remedies were unavailable to him on the ground that prison administrators thwarted him from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 31 (cleaned up). Judge Evangelista thus recommended that the Motion be granted in its entirety. Id. at 33. Further, Judge Evangelista recommended that the Court sua sponte dismiss Plaintiff's claims against the eight John Does, because discovery has completed and Plaintiff failed to identify the defendants. Id. at 31–32. III. LEGAL STANDARD “Within fourteen days after being served with a copy [of the Magistrate Judge's report and recommendation], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1)(C); see also L.R. 72.1. However, if no objections are made, a district court need only review a report and recommendation for clear error. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009) (“The district court may adopt those portions of a report and recommendation to which no timely objections have been Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 163 of 290
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 made, provided no clear error is apparent from the face of the record.”). Clear error “is present when upon review of the entire record, the court is left with the definite and firm conviction that a mistake has been committed.” Rivera v. Fed. Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y. 2019) (cleaned up). Upon review, a court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). IV. DISCUSSION *2 No party objected to the Report and Recommendation within fourteen days after being served with a copy of it. Accordingly, the Court reviews the Report and Recommendation for clear error. See DiPilato, 662 F. Supp. 2d at 339. Having found none, the Court approves and adopts the Report and Recommendation in its entirety. V. CONCLUSION Accordingly, it is hereby: ORDERED, that the Report and Recommendation, Dkt. No. 30, is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that the motion for summary judgment, Dkt. No. 26, is GRANTED; and it is further ORDERED, that the Clerk close this action; and it is further ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Slip Copy, 2025 WL 814966 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 164 of 290
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 7012961 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Andre A. JOHNSON, Plaintiff, v. Correctional Sgt. J. FRAIZER, Correctional Officer L. DiRienzo and Saj, Deputy Superintendent, Defendants. 16-CV-6096 CJS | Signed 12/01/2016 Attorneys and Law Firms Andre A. Johnson, Attica, NY, pro se. Hillel David Deutsch, NYS Attorney General's Office, Department of Law, Rochester, NY, for Defendants. DECISION and ORDER CHARLES J. SIRAGUSA, United States District Judge INTRODUCTION *1 Andre Johnson (“Plaintiff” or “Johnson”), a prison inmate in the custody of the New York State Department of Corrections and Community Services (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights by, inter alia, retaliating against him and violating his procedural due process rights. Now before the Court is Defendants' motion to dismiss the Amended Complaint, for failure to exhaust administrative remedies. The application is granted. BACKGROUND The operative pleading in this action is Plaintiff’s Amended Complaint. Generally, the Amended Complaint alleges that, at Livingston Correctional Facility (“Livingston”), after Plaintiff filed complaints against defendant Corrections Sergeant Fraizer (“Fraizer”), Fraizer conspired with defendant Corrections Officer L. DiRienzo (“DiRienzo”), who filed false misbehavior reports against him; and that thereafter, defendant Deputy Superintendent Saj (“Saj”) conducted a disciplinary hearing in which he violated Plaintiff’s right to procedural due process. According to the pleading, Saj found Plaintiff guilty of the disciplinary infractions and sentenced him to period of confinement in the Special Housing Unit (“SHU”). The Amended Complaint contains certain allegations regarding Plaintiff’s attempts to exhaust his administrative remedies before commencing this action. In pertinent part, the pleading makes the following statements, which are listed in the order in which they appear: That because of the retaliatory actions of the Defendants the Plaintiff was also deprived of his rights to appeal the disposition of the Tier II hearing. *** That because of the Defendants retaliatory actions the Plaintiff has been harassed, threats made towards his life, has been subjected to unfair and impartial hearings[.] *** The Plaintiff has exhausted his administrative remedies before filing this claim, by filing formal complaints to the Governor of the State of New York, to the Acting Commissioner of D.O.C.C.S., to the Superintendent of Livingston Correctional Facility, as well as [the] Grievance Office of Livingston Correctional Facility, and the Internal Affairs bureau to no avail. Amended Complaint. However, the amended pleading also indicates that the alleged constitutional violations occurred in Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 165 of 290
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 mid– and late-January, 2016, and that Plaintiff commenced this action a mere three weeks later, on February 17, 2016. As an aside, Plaintiff’s contention in the Amended Complaint, that he exhausted his administrative remedies before commencing this action, is at odds with his statements in the original Complaint. Specifically, in the original Complaint, which was filed less than a month prior to the Amended Complaint, and which was sworn to by Plaintiff under penalty of perjury, he stated that he neither grieved his claims, nor appealed any adverse decision concerning the grievance process. Further, in response to the question, on the form complaint that Plaintiff used to draft the original complaint, “If you did not exhaust your administrative remedies, state why you did not do so,” Plaintiff wrote, “N/A.” 1 *2 On September 30, 2016, Defendants filed the subject motion to dismiss the Amended Complaint, for failure to exhaust administrative remedies. Defendants contend that the allegations in the Amended Complaint establish that Plaintiff failed to exhaust his administrative remedies before commencing this action. In that regard, Defendants point out that while Plaintiff claims that he took certain actions, such as sending complaints to the Governor of the State of New York, such actions do not amount to exhaustion under the PLRA: In the matter before the Court, the complaint states that Plaintiff did not file a grievance, appeal to the superintendent and then appeal to [the Central Office Review Committee] [“]CORC[”], as he is required to do. Instead, Plaintiff claims to have simply written a letter to various different agencies, waited approximately ten days, and then filed suit. ... He simply refused to wait for the relevant decisions to come down and appeal them; instead he attempted to file his grievance and appeals all at the same time. 2 Defendants further contend that while the Amended Complaint alleges that Plaintiff was “deprived of his rights to appeal the disposition of the Tier II hearing,” it “provides no further explanation.” 3 In opposition to Defendants' motion to dismiss, Plaintiff filed a response [#33], which makes the following arguments: 1) on January 29, 2016, Plaintiff “filed an appeal” of his convictions at the Tier III disciplinary hearing, but “said Appeal was not allowed to leave the Facility”; 2) the results of the tier disciplinary hearing could not be “grieved” through the IGP; 3) Plaintiff was not required to exhaust his administrative remedies because in this action he is seeking only money damages. Because Plaintiff is a pro se inmate, the Court also takes judicial notice of the fact that the instant lawsuit is not the only one that he has filed in this Court concerning the events in this action. 4 For example, on June 20, 2016, Plaintiff filed an action, entitled “Johnson v. Annucci, et al.,” 16- CV-6417 CJS, in which he refers to some of the same events about which he complains in this action. Particularly, in the Amended Complaint [#7] in that action, Plaintiff clarifies, somewhat, his cryptic statement, in the amended complaint, that he was “deprived” of the right to appeal, as well as the related statement, made in response to Defendants' motion to dismiss this action, that he attempted to appeal his disciplinary conviction, but the appeal was “not allowed to leave the facility”: [O]n January 29, 2016, the Plaintiff submitted his appeal while being confined in S.H.U. at the Livingston Correctional Facility, by placing in the hands of the 11-to-7 officer on duty said appeal in a “stamped envelope” addressed to the Office of the Director of the Special Housing/ Inmate Disciplinary in Albany N.Y. Also, sending a copy of the appeal to the office of the Governor of the State of New York. The Defendants refused to allow any and all legal correspondence of the Plaintiff to leave the facility in an attempt to hid[e] the misconduct of Officials[.] 16-CV-6417, Docket No. [#7] at p. 5 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 166 of 290
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 PRINCIPLES OF LAW *3 At the outset, since Johnson is proceeding pro se, his papers “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (citation omitted). The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires prison inmates to exhaust such administrative remedies “as are available” before commencing an action “with respect to prison conditions under [42 U.S.C. §] 1983.” “The PLRA requires proper exhaustion, which means using all steps that the prison grievance system holds out, and doing so properly (so that the prison grievance system addresses the issues on the merits. Untimely or otherwise procedurally defective administrative grievances or appeals fail to satisfy PLRA’s exhaustion requirements.” Riles v. Buchanan, ––– Fed. Appx. ––––, 2016 WL 4572321 at *1 (2d Cir. Sep. 1, 2016) (citations and internal quotation marks omitted). However, the PLRA exhaustion requirement may be excused where administrative remedies are not “available,” and there are at least three circumstances under which such remedies may be considered unavailable: First, an administrative remedy may be unavailable when it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Second, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In other words, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. Third, an administrative remedy may be unavailable when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Williams v. Correction Officer Priatno, 829 F.3d 118, 123– 24 (2d Cir. 2016) (quoting Ross v. Blake, ––– U.S. ––––, 136 S.Ct. 1850, 1859-1860 (2016); internal quotation marks omitted). “Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings.” Geer v. Chapman, No. 915CV952GLSATB, 2016 WL 6091699, at *3 (N.D.N.Y. Sept. 26, 2016) (citing Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004)), report and recommendation adopted, No. 915CV952GLSATB, 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016). For retaliation claims, an New York State inmate must exhaust his administrative remedies by utilizing New York’s three- tiered Inmate Grievance Program (“IGP”) procedures: DOC[C]S' Inmate Grievance Program (“IGP”) has a regular three-tiered process for adjudicating inmate complaints: (1) the prisoner files a grievance with the Inmate Grievance Resolution Committee (“IGRC”), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the Central Officer Review Committee (“CORC”). Quezada v. Ercole, No. 09CIV2832DLC, 2011 WL 3251811, at *4 (S.D.N.Y. July 29, 2011) (citing Espinal v. Goord, 554 F.3d 216, 224 (2d Cir. 2009)). On the other hand, an inmate exhausts a procedural due process claim, arising from a prison disciplinary hearing, by completing the disciplinary administrative appeal process. See, Davis v. Jackson, 2016 WL 5720811 at * 7 (Noting that the filing of an administrative appeal from a disciplinary hearing is “the proper mode of exhaustion” for a procedural due process claim arising from the disciplinary hearing). *4 Where the inmate is asserting both retaliation claims and procedural due process claims, he must separately exhaust both types of claim, using the procedure appropriate to each type of claim. See, Davis v. Jackson, 2016 WL 5720811 at * 7 (Observing that filing an administrative appeal from Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 167 of 290
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 an underlying disciplinary proceeding was “an inappropriate means of exhaustion for Plaintiff’s retaliation claims.”) (collecting cases); see also, Washington v. Chaboty, No. 09 CIV. 9199 PGG, 2015 WL 1439348, at *7 (S.D.N.Y. Mar. 30, 2015) (“In certain circumstances, however, courts have deemed a disciplinary appeal inadequate to exhaust a claim under the PLRA. Inmate Grievance Program exhaustion has been required, for example, where an inmate alleges retaliation, including retaliation based on the filing of an allegedly false misbehavior report.”) (citation omitted). The PLRA’s exhaustion requirement is an affirmative defense, not a jurisdictional requirement: The Second Circuit has made clear that, in this context, “administrative exhaustion is not a jurisdictional predicate,” but rather, “an affirmative defense.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004). Accordingly, “defendants bear the burden of proof[,] and prisoner plaintiffs need not plead exhaustion with particularity.” McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003)[.] France v. Cty. of Westchester, No. 12-CV-5576 (KMK), 2016 WL 1270259, at *4 (S.D.N.Y. Mar. 30, 2016) (additional citations omitted). Consequently, as Defendants admit, dismissal under Rule 12 for failure to exhaust administrative remedies is only appropriate where such failure is “clear” from the face of the complaint. On this point, the Second Circuit recently stated: Failure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement. Accordingly, inmates are not required to specially plead or demonstrate exhaustion in their complaints. However, a district court still may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement. Williams v. Correction Officer Priatno, 829 F.3d at 122 (citations omitted). DISCUSSION Defendants contend that the action should be dismissed pursuant to Fed. R. Civ. P. 12, because it is evident from the face of Johnson’s Amended Complaint [#17] that he failed to exhaust his administrative remedies before commencing this action. The Court agrees with Defendants that, to the extent that Plaintiff maintains that he did not need to exhaust his administrative remedies because he is seeking money damages in this action, his argument lacks merit. Similarly, Plaintiff’s argument that his disciplinary conviction is a “non-grievable issue” is, while true, irrelevant; although such convictions cannot be “grieved” through the IGP, they can be, and must be, administratively exhausted through the appeals process, as discussed above. Additionally, Plaintiff obviously understood that fact, since he claims that he attempted to exhaust his procedural due process claim by appealing his disciplinary conviction. The Court also tends to agree with Defendants' argument that, since Plaintiff filed this action a mere three weeks after the events at issue, it is probable that he simply skipped the grievance/appeal stage and came directly to Federal Court. Certainly, Plaintiff’s original Complaint in this action tends to support such a view. In opposition to Defendants' arguments, Plaintiff is essentially left with two contentions. First, he states that he attempted to mail an appeal of his disciplinary conviction, but unidentified persons prevented the envelope from leaving Livingston. Indeed, Plaintiff even more broadly states, “The Defendants refused to allow any and all legal correspondence of the Plaintiff to leave the facility in an attempt to hid[e] the misconduct of Officials[.]” (emphasis added). The Court liberally construes such statements to mean that the administrative appeals process was not “available” to Plaintiff, because corrections staff “thwarted” his efforts. However, Plaintiff’s contention on this point is not plausible, and therefore need not be accepted as true. 5 First and foremost, Plaintiff makes only a conclusory statement that his mailing was not allowed to leave the facility, without offering any explanation for why he believes that. Meanwhile, his contention that all of his legal mail was similarly purloined is belied by his admission that he was able to send other complaints about the matter to various New York State officials at around the same time. Plaintiff offers no explanation for why Livingston staff would prevent him from mailing that particular appeal, but allow him to mail out all Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 168 of 290
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 his other complaints, including the original complaint in this action. *5 Lastly, Plaintiff claims that Livingston staff harassed him and threatened his life, after he filed other grievances. The Court liberally construes this statement as an argument that the IGP procedures were not “available” to him, due to threats from corrections staff. However, the Court does not find this allegation plausible. To begin with, the allegation itself is entirely conclusory, since it does not indicate who threatened him, when he was threatened, or how he was threatened. Moreover, the alleged threats clearly did not dissuade Plaintiff from making and sending a wide variety of other complaints about Livingston staff to New York State officials, including officials at Livingston. See, Amended Complaint (“The Plaintiff has exhausted his administrative remedies before filing this claim, by filing formal complaints to the Governor of the State of New York, to the Acting Commissioner of D.O.C.C.S., to the Superintendent of Livingston Correctional Facility, as well as [the] Grievance Office of Livingston Correctional Facility, and the Internal Affairs bureau to no avail.”); see also, Riles v. Buchanan, 2016 WL 4572321 at *3 (“Nor did DOC officials' alleged threats of retaliation interfere with his exhaustion efforts....He was not deterred from exhausting; he simply did not exhaust in accordance with the procedures.”). For all of these reasons, the Court finds that it is clear, from the face of Plaintiff’s Amended Complaint, that he failed to exhaust his administrative remedies before commencing this action, in violation of 42 U.S.C. § 1997e(a). CONCLUSION Defendants' motion to dismiss [#30] is granted, and this action is dismissed without prejudice. The Clerk of the Court is directed to close this action. SO ORDERED. All Citations Not Reported in Fed. Supp., 2016 WL 7012961 Footnotes 1 “A statement in a withdrawn complaint that is superseded by an amended complaint without the statement is no longer a conclusive judicial admission[, though] the factfinder may very well find that such a contradictory statement reduces the credibility of the witness[.]” Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23, 32 (2d Cir. 2002) overruled on other grounds by Slayton v. Am. Exp. Co., 460 F.3d 215 (2d Cir. 2006). 2 Def. Memo of Law [#30-1] at pp. 3-4. 3 Def. Memo of Law [#30-1] at p. 1. 4 “In deciding a motion to dismiss a pro se complaint, it is appropriate to consider certain materials outside the complaint to the extent that they are consistent with the allegations in the complaint.” Davis v. Jackson, Case No. 15-CV-5359 (KMK), 2016 WL 5720811 at *4 (S.D.N.Y. Sep. 30, 2016) (citation and internal quotation marks omitted). 5 In Williams v. Priatno, 829 F.3d at 124, n. 3, the Second Circuit explained why it found an SHU inmate’s contention, that a corrections officer never filed his grievance, to be plausible. Here, there is no such supporting facts to make Johnson’s contention plausible. Instead, there is evidence tending to refute his assertion. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 169 of 290
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 4732755 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Alfredo LEWIS, Plaintiff, v. Lynn WASIELEWSKI, Rebecca McDaniel, Paul Burke, Dennis Becker and Sabato Parisi, Defendants. 15-CV-0168-RJA-MJR | Signed 07/09/2018 | Filed 07/10/2018 Attorneys and Law Firms Alfredo Lewis, Uniondale, NY, pro se. David J. Sleight, Office of the Attorney General, Buffalo, NY, for Defendants. REPORT AND RECOMMENDATION HONORABLE MICHAEL J. ROEMER, United States Magistrate Judge INTRODUCTION *1 This case has been referred to the undersigned pursuant to Section 636(b)(1) of Title 28 of the United States Code, by the Honorable Richard J. Arcara, for hearing and reporting on dispositive motions for consideration by the District Court. Before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 61). For the following reasons, it is recommended that defendants' motion for summary judgment be granted and the complaint dismissed. PROCEDURAL BACKGROUND Plaintiff Alfredo Lewis (“plaintiff”), an inmate in the care and custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) who is proceeding pro se, claims that his constitutional rights were violated, in contravention of Section 1983 of the Title 28 of the United States Code, when he was retaliated against and assaulted as a result of writing letters of complaint while incarcerated at Gowanda Correctional Facility (“Gowanda”). (Dkt. No. 1). Plaintiff sued Gowanda and a number of individuals employed by DOCCS as counselors and correction officers during the relevant time period. (Dkt. No. 1). On August 28, 2015, the Court granted plaintiff’s request to proceed in forma pauperis. (Dkt. No. 10). The Court also dismissed, with prejudice, plaintiff’s claims against Gowanda, Supervisor Counselor Cabeara, and all other individual defendants in their official capacities. (Id.). The remaining defendants, sued in their individual capacities, include Lynn Wasielewski, Rebecca McDaniel, Paul Burke, Dennis Becker, and Sabato Parisi. In addition to the complaint, plaintiff submitted a number of other documents and exhibits in support of his claims. (Dkt. Nos. 11, 13, 14, 22 and 33). Defendants filed answers to the complaint and the Court held a preliminary pretrial conference on August 16, 2016, at which time it entered a Case Management Order. (Dkt. Nos. 25, 28, 31, 34, 37, 39). The parties proceeded with discovery which included Rule 26 disclosures, document and interrogatory requests by plaintiff, and a deposition of plaintiff by defendants. (Dkt. Nos. 40, 43, 48, 58, 64). Defendants filed the instant motion for summary judgment on November 26, 2017. (Dkt. Nos. 61-63). Plaintiff submitted a number of responses in opposition to the motion (Dkt. Nos. 65, 66, 69), and defendants filed a reply on December 22, 2017 (Dkt. No. 67). RELEVANT FACTS At the time of the incidents relevant to this lawsuit, plaintiff was an inmate in the care and custody of DOCCS. 1 (Dkt. No. 62, ¶¶ 1-2; Dkt. No. 1, pg. 2). Also at the time of the events alleged in the complaint, defendant Lynn Wasielewski was employed by DOCCS as a social worker at Gowanda, defendant Rebecca McDaniel was employed by DOCCS as an Offender Rehabilitation Coordinator at Gowanda, defendants Paul Burke and Dennis Becker were employed by DOCCS as correction officers at Gowanda, and defendant Sabato Parisi was employed by DOCCS as a correction sergeant at Gowanda. (Dkt. No. 62 at ¶¶ 3-7; Dkt. No. 1, pg. 2). *2 Plaintiff’s Arrival at Gowanda Plaintiff was transferred to Gowanda from Bare Hill Correctional Facility on or around January 20, 2015. (Dkt. No. 62-2; Dkt. No. 68, pg. 8). The conviction that resulted Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 170 of 290
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 in plaintiff’s placement in DOCCS custody at that time was stalking in the second degree. (Dkt. No. 68, pg. 5) Plaintiff testified that upon arrival at Gowanda, he learned that he had been transferred there in order to participate in the Sex Offender Treatment Program (“SOP”). (Id. at 10). Plaintiff was interviewed by McDaniel, a counselor assisting with the SOP, on the day he arrived at Gowanda. (Id. at 8, 11). Plaintiff testified that he informed McDaniel that because he was not incarcerated for a sex offense, he was not required to complete the SOP. (Id.). Plaintiff contends that McDaniel informed him that unless he signed a paper enrolling himself in the SOP, he would be required to serve his maximum sentence of incarceration. (Id. at 9-11). Plaintiff emphasized to McDaniel that the SOP was not consistent with his “merit board” and that it would interfere with his ability to enroll in other programs. 2 (Id. at 9, 11). Plaintiff indicates that McDaniel became very agitated with him during the interview as result of his opposition to participate in the SOP. (Id. at 11-12). Nonetheless, plaintiff was enrolled in the SOP and began participating. (Dkt. No. 66, pg. 21; Dkt. No. 64, pgs. 27, 31). In early February of 2015, plaintiff wrote letters of complaint to Cabrera and Wasielewski. (Dkt. No. 1, pgs. 3-5; Dkt. No. 69, pgs. 9-18). Plaintiff indicates that both of these individuals were supervisors at Gowanda. (Id.). Specifically, plaintiff complained about his placement in the SOP and McDaniel’s refusal to place him in other programs. (Id.). He complained that during the SOP meetings McDaniel asked him inappropriate questions about his parents' sexual relationship. (Id.). He further complained that McDaniel would have outbursts during meetings if he or other inmates did not provide certain answers to her questions, which caused them to fabricate stories. (Id.). Alleged Assault on February 6, 2015 Plaintiff contends that on February 6, 2015, Wasielewski confronted him immediately prior to a SOP meeting. (Dkt. No. 68, pgs. 14-15; Dkt. No. 1, pg. 6). Wasielewski was upset that plaintiff “went over her head and McDaniel’s head by writing to Cabrera.” (Dkt. No. 68, pg. 15). Plaintiff states that he returned to the meeting and that after it ended, he was approached by a correction officer who indicated that a sergeant wanted to speak with him. (Dkt. No. 68, pg. 17; Dkt. No. 1, pg. 6). Plaintiff reported to Parisi, the correction sergeant. (Dkt. No. 62, ¶ 15). Plaintiff states that he was then taken to a stairwell, told to put his hands on the wall, and handcuffed. (Dkt. No. 68, pg. 18; Dkt. No. pg. 6). Plaintiff claims that Parisi pulled his hair and repeatedly punched him in the ribs. (Dkt. No. 68, pgs. 18-19; Dkt. No. pg. 6). Plaintiff contends that Parisi stated “what the hell do [you] think [you are] doing writing letters” and accused him of trying to get staff members fired. (Dkt. No. 68, pg. 19; Dkt. No. 1, pg. 6). Plaintiff alleges that Parisi stated to him: “I'm going to put your black ass in the SHU box” and to another officer in plaintiff’s presence: “[Plaintiff is] lucky he don't put [plaintiff] somewhere [his] body can't be found.” (Dkt. No. 1, pg. 6). *3 Plaintiff received an inmate misbehavior report that same day charging him with harassment, lying and stalking. (Dkt. No. 68, pg. 17; Dkt. No. 1, pg. 6-7). The misbehavior report, which was written by K. Hoth and signed by Parisi, alleged that plaintiff harassed McDaniel and included inappropriate comments about her in his letters of complaint causing her to fear for her safety. (Dkt. No. 69, pg. 21-22; Dkt. No. 62-5). Plaintiff contends that the charges were fabricated by McDaniel and Wasielewski to retaliate against him for his complaints. (Dkt. No. 1; pg. 6-7). Plaintiff was found guilty of all three charges at a disciplinary hearing held on February 20, 2015. (Dkt. No. 68 pg. 24; Dkt. Nos. 62-6, 62-7). Plaintiff was sentenced to ninety days in the special housing unit (“SHU”) and ninety days loss of recreation, packages, commissary, phone and special events. (Dkt. No. 62, ¶ 17). Plaintiff appealed the hearing determination to the DOCSS Commissioner in Albany, New York. (Dkt. No. 68, pg. 25; Dkt. No. 11). On or around March 6, 2015, plaintiff was transferred to Upstate Correctional Facility (“Upstate”). (Dkt. No. 68, pg. 27; Dkt. No. 62-2). As a result of his appeal, plaintiff’s convictions for making a false statement and stalking were dismissed on April 23, 2015. (Dkt. No. 68, pgs. 24-25, 27; Dkt. No. 11). His sentence was reduced to thirty days in SHU. (Id.). Use of DOCCS' Grievance Procedures In his federal court complaint, plaintiff states that he did not file a grievance regarding the assault on February 6, 2015 “in order to keep [himself] safe from staff.” (Dkt. No. 1, pg. 7). He further states in the complaint that “Albany was sent a complaint by mail on what ha[d] taken place.” (Id.). However, plaintiff provided contradictory testimony during his deposition. Specifically, plaintiff testified during his deposition that he filed a grievance about the February 6, 2016 incident but never received a response. (Dkt. No. 68, pg. 20). Plaintiff also testified that he wrote a letter to the State Commission of Corrections about the incident. (Id. at 21; Dkt. No. 62-9). When asked for clarification by defense counsel, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 171 of 290
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 plaintiff testified, “I wrote to grievance on a few different people ... I don't think I put exactly what happened because I didn't know if it would actually be, you know, passed off to the wrong person ... I didn't want to let too much be known after the threats I was getting.” (Dkt. No. 68, pg. 22). Later during the same deposition, defense counsel asked plaintiff about his statement in his federal court complaint indicating that he did not grieve the incident. Plaintiff testified, in contradiction to his earlier statement during the deposition that he filed a grievance, that he did not file a grievance because he was fearful that officers would further harm him. (Id. at 29-30). Plaintiff further testified that officers harassed and threatened him and that when he was being taken to SHU an officer stated “go ahead and run your mouth” and “your other hand will be broken.” (Id. at 22-23, 31-32). However, plaintiff did not specify which officers threatened him nor is it clear exactly when these alleged threats occurred. Also during his deposition, plaintiff acknowledged that he filed the instant lawsuit on February 25, 2015, less than thirty days after the alleged assault and while he was still incarcerated at Gowanda. (Dkt. No. 68, pgs. 29-30). When asked by defense counsel why he was afraid to file a grievance but was not afraid to file a lawsuit, plaintiff testified that he believed he would be transferred out of Gowanda soon after his disciplinary hearing. (Id. at 30). Plaintiff further testified that he did not believe the grievance process was effective, since he “knew it would be intercepted someway”, he did not “see [the officers] investigating themselves” and he “wanted somebody to come from the outside to investigate this.” (Id. at 30-31). Plaintiff also testified that he did not file a grievance after his transfer to Upstate because he described the alleged assault during the appeal of his disciplinary charges. (Id. at 33). Plaintiff testified that he is familiar with inmate grievance procedures. (Id. at 22). A review of the inmate grievance records from DOCCS shows no record of a grievance or appeal filed by plaintiff while at Gowanda alleging retaliation or assault by defendants. (Dkt. No. 62, ¶ 21, Dkt. No. 62-8). DISCUSSION *4 Pursuant to Federal Rule of Civil Procedure 56, summary judgment is to be granted where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56. A genuine issue of material fact exists “where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). “[V]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier [of fact] could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.” Bay v. Times Mirror Magazine, Inc., 936 F.2d 112, 116 (2d Cir. 1991). When a movant has met this burden, the burden shifts to the non-movant to bring forth evidence establishing the existence of an issue of material fact. Linares v. McLaughlin, 423 Fed. Appx. 84, 86 (2d Cir. 2011). In evaluating a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and it is the burden of the moving party to demonstrate the absence of any material facts genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988). Where a plaintiff is proceeding pro se, the court must “construe the complaint liberally and interpret it to raise the strongest arguments that [it] suggest[s].” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). However, even a pro se litigant cannot defeat a motion for summary judgment by relying upon conclusory statements or mere allegations unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). Plaintiff’s Failure to Exhaust Administrative Remedies The Prison Litigation Reform Act of 1995 (the “PLRA”) requires an inmate to exhaust available administrative remedies before bringing suit to complain of prison conditions or actions taken by prison officials, such as retaliation or excessive force. See 42 U.S.C. § 1997e(a); Ross v. Black, 136 S. Ct. 1850, 1854-55 (2016). Exhaustion under the PLRA is mandatory, and must occur before the filing of a lawsuit in federal district court. Woodford v. Ngo, 548 U.S. 81, 85 (2006). In order to exhaust administrative remedies, the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he or she is incarcerated. Jones v. Bock, 549 U.S. 199, 218 (2007). DOCCS provides a detailed administrative review and appeals system for inmate grievances in New York. Nji v. Heath, 13 Civ. 200, 2014 U.S. Dist. LEXIS 163060, *7-6 (SDNY Nov. 10, 2014); accord 7 N.Y. Comp. Codes R. & Regs. § 701.5. In order to exhaust administrative remedies, the inmate must file a grievance with his or her facility’s Inmate Grievance Resolution Committee (“IGRC”) within 21 calendar days of the alleged occurrence. Id. If the IGRC denies the grievance, the inmate must file an appeal of the decision to the superintendent of his or her facility. Id. If the appeal to the superintendent is denied, the inmate must then appeal that determination to the Central Office Review Committee (“CORC”) located in Albany, New York. 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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Id.; accord Espinal v. Goord, 558 F.3d 119, 125-26 (2d Cir. 2009). The record before the Court establishes that plaintiff did not exhaust his administrative remedies before filing the instant lawsuit. Plaintiff states in his complaint that he did not file a grievance as to the incident on February 6, 2015. He then provided contradictory statements during his deposition as to whether he filed a grievance. Plaintiff initially testified during his deposition that he filed a grievance but did not receive a response. He later attempted to clarify the statement by explaining that he “wrote to grievance on a few people” but that he did not “put exactly what happened.” Plaintiff then testified during the same deposition that he did not file a grievance because he feared retaliation by officers. He later testified that he did not file a grievance because he believed the grievance process was ineffective. Indeed, a review of DOCCS records confirms that plaintiff did not file a grievance or appeal of the February 6, 2015 incident. Despite plaintiff’s initial statement in his deposition that he filed a grievance, the evidence in the record reflects that no grievance was filed as to the February 6, 2015 incident. This evidence includes plaintiff’s statements in his complaint, the majority of plaintiff’s deposition testimony wherein he indicates that he did not file a grievance, plaintiff’s deposition testimony as to the various reasons he did not file a grievance, and DOCCS' records, which confirm that no grievance or appeal were filed. Thus, the Court finds that plaintiff has not raised a genuine issue of material fact as to whether he filed a grievance. See Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005) (summary judgment in favor of defendant upheld where nothing in the record supported plaintiff’s allegations other than his own contradictory and incomplete testimony); Deebs v. Alstom Transp., Inc., 346 F. App'x 654, 656 (2d Cir. 2009) (“self-serving” deposition testimony cannot, by itself, defeat summary judgment); Burwell v. Payton, 5:12-cv-166, 2015 U.S. Dist. LEXIS 152745 (D. Vt. Nov. 9, 2015) (where plaintiff’s deposition testimony was contradicted by the video recording, his own statement of undisputed facts, and the allegations of his complaint, plaintiff failed to identify a genuine issue of material fact that would justify reconsideration). *5 Moreover, even if the Court were to credit plaintiff’s initial statement during his deposition that he filed a grievance, it remains clear that plaintiff did not fully exhaust his administrative remedies. Plaintiff testified that he did not receive a response to the grievance. DOCCS records reflect that no grievance or appeal was filed regarding the February 6, 2015 incident. Indeed, “the law is well-settled” that an inmate’s “failure to take an available administrative appeal, even when the initial grievance receives no response, constituted a failure to exhaust administrative remedies.” Garvin v. Rivera, 13-cv-7054, 2015 U.S. Dist. LEXIS 84675, *7-8 (SDNY June 29, 2015). See also Johnson v. New York City Dep't of Correction, 13-cv-6799, 2014 U.S. Dist. LEXIS 85444 (SDNY June 16, 2014) (“Assuming that Plaintiff filed a timely grievance ... and received no response within five business days[,] ... Plaintiff ... could have taken the next step and requested a hearing.”). Finally, plaintiff’s assertions that he sent a copy of his federal court complaint to Albany, wrote to the State Commission of Corrections, and that he complained about the February 6, 2015 incident during the appeal of his disciplinary hearing determination do not constitute exhaustion under the PLRA. The Second Circuit has held that alerting prison officials, through informal steps, as to the nature of the wrong for which redress is sought does not constitute proper exhaustion. Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir. 2007). See e.g., Nji, 2014 U.S. Dist. LEXIS 163060, *9 (“[s]ending letters to persons outside the grievance process is insufficient to establish exhaustion because it is well settled that complaints and communications made outside of formal grievance procedures do not satisfy the PLRA’s exhaustion requirement”) (internal citations and quotations omitted); David v. Doe, 9:16-cv-0994, 2017 U.S. Dist. LEXIS 213704 (NDNY Dec. 29, 2017) (prisoner who did not file a grievance as to his constitutional claims, but instead submitted a disciplinary appeal and told a representative of the Office of the Inspector General about the facts alleged in his lawsuit, did not properly exhaust his administrative remedies under the PLRA). Exceptions to the Exhaustion Requirement Do Not Apply Having concluded that plaintiff failed to exhaust his administrative remedies under the PLRA, the Court next considers whether there is any basis for excusing plaintiff’s failure to exhaust. In Ross v. Blake, the Supreme Court significantly narrowed the exceptions a court may afford a prisoner who does not comply with the exhaustion requirement in the PLRA. 136 S. Ct. 1850 (2016). Therein, the Supreme Court rejected the prior “special circumstances” exceptions to the exhaustion requirement which had previously been recognized by the Second Circuit. Id. at 1862. The Supreme Court held instead that the PLRA includes only a single “textual exception”, in that an inmate Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 173 of 290
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 need not exhaust administrative remedies not available to him or her. Id. at 1858. The Supreme Court went on to cite three scenarios in which an administrative grievance procedure would be unavailable to an inmate: (1) “[the procedure] operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) the procedure is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. Here, the record before the Court fails to demonstrate that administrative remedies were unavailable to plaintiff. There is no evidence that the grievance procedures were opaque or incapable of use. As described above, DOCCS has a clear, detailed procedure for inmate grievances. Moreover, plaintiff testified that he was familiar with the DOCCS' grievance procedure. Plaintiff testified that he believed the grievance procedure was ineffective because he did not “see the officers investigating themselves” and that he “wanted somebody to come from the outside to investigate this.” (Dkt. No. 64, pg. 63). However, these conclusory statements, which reflect only plaintiff’s subjective beliefs, are insufficient to raise a triable issue of fact as to the availability of administrative remedies. In Woodward v. Ngo, the Supreme Court noted that “exhaustion requirements are designed to deal with parties who do not want to exhaust”, including those who “conclude —correctly or incorrectly—that exhaustion is not efficient in that party’s particular case.” 548 U.S. 81, 89-90 (2006). See also Harrison v. Goord, 07 Civ. 1806, 2009 U.S. Dist. LEXIS 48478, *15 (SDNY June 9, 2009) (“Prisoners are required to exhaust their administrative remedies even if they believe that administrative remedies would be ineffective or futile.”) (internal citations omitted); McMillian v. Walters, 9:16-CV-0277, 2017 U.S. Dist. LEXIS 208444, *7-8 (NDNY Dec. 18, 2017) (“An inmate’s belief that administrative remedies would be futile is not a valid excuse establishing the unavailability of such remedies.”). Moreover, there is no evidence in the record to indicate that DOCCS' complaint or grievance procedures were either opaque or operated as a dead end. To the contrary, plaintiff was able to successfully file an appeal of his disciplinary hearing determination to the Commissioner in Albany, New York. His appeal resulted in a dismissal of two charges and reduction of the amount of time he was sentenced to SHU. *6 Plaintiff also stated in his complaint and during his deposition that he did not file a grievance as to the incident on February 6, 2015 because he feared retaliation from officers at Gowanda. However, a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies. Brown v. Napoli, 687 F. Supp. 2d 295, 297-98 (WDNY 2009); Harrison v. Stallone, 9:06-CV-902, 2007 U.S. Dist. LEXIS 98742 (NDNY Sept. 24, 2007) (“If an inmate could simply state that he feared retaliation, there would be no point in having a grievance procedure[.]”). During his deposition, plaintiff stated in a general and conclusory manner that he was threatened and harassed. He also testified that on one occasion an officer escorting him to SHU told him that his hand would be broken if he “ran his mouth”. However, plaintiff does not indicate who made this statement nor does he indicate the date or time it occurred. Plaintiff also fails to provide any further details as to the alleged threat or how it was specifically connected to his use of grievance procedures. Similarly, in Henry v. Cty. of Nassau, an inmate argued that administrative remedies were unavailable because defendants threatened to have him killed or assaulted if he reported various incidents of failure to intervene, and that on one occasion they threatened to “jump” him if he reported an incident. CV 13-7427, 2017 U.S. Dist. LEXIS 125443 (EDNY Aug. 7, 2017). The Eastern District of New York Court rejected these assertions and concluded that “[p]laintiff’s statements, devoid of any specifics, including which defendants were involved, are insufficient to defeat summary judgment.” Id. Likewise here, plaintiff’s general and conclusory statements that he was threatened are insufficient to raise a triable issue of fact as to the unavailability of the grievance procedure because of intimidation by prison administrators. See e.g., Rodriguez v. Cross, 15-CV-1079, 2017 U.S. Dist. LEXIS 71337 (NDNY May 9, 2017) (plaintiff’s conclusory allegations that he “was beaten” while attempting to access grievance procedures were insufficient to excuse his failure to exhaust under Ross, where he does not state “how any specific threat or subsequent act of violence impacted his ability to exhaust administrative remedies[.]”); Johnson v. Frazier, 16-CV-6096, 2016 U.S. Dist. LEXIS 165987 (WDNY Dec. 1, 2016) (plaintiff’s allegations that grievance procedures were not available due to threats from staff were “entirely conclusory, since [plaintiff did] not indicate who threatened him, when he was threatened or how he was threatened.”). Further, plaintiff’s actions after the February 6, 2015 incident directly contradict his claim that he did not file a grievance because he feared retaliation by officers at Gowanda. Plaintiff both wrote a letter about the incident to the State Commissioner of Corrections and filed the instant Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 174 of 290
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 federal lawsuit in February of 2015, while he was still incarcerated at Gowanda. See Rodriguez, 2017 U.S. Dist. LEXIS 71337 (“[P]laintiff’s failure to follow the grievance procedures cannot be excused by fears or intimidation, when he simultaneously made his complaints known through other means” such as informing a nurse that officers beat him and “air[ing] his complaints and concerns in writing outside of the grievance procedures[.]”); Johnson, 2016 U.S. Dist. LEXIS 165987, *13-14 (rejecting plaintiff’s contention that administrative remedies were unavailable to him because he was threatened by correction officers but continued to make and send formal complaints to prison officers and other New York State officials). Indeed, plaintiff’s own deposition testimony belies his claim that he was afraid to grieve the February 6, 2015 incident. Plaintiff testified during his deposition that he was not afraid to file a federal lawsuit while still incarcerated at Gowanda, despite alleged threats or harassment, because he was informed that he would be transferred to a different facility immediately after his disciplinary hearing. It defies logic that plaintiff would be unafraid to file a lawsuit because he believed a transfer of facilities was imminent, but that he would still be fearful of filing a grievance. Additional inconsistencies and contradictions in plaintiff’s deposition testimony cast further doubt on his claim that he was afraid to file a grievance. Not only does plaintiff contradict himself as to whether he filed a grievance, but he also provides varying rationales as to why he did not file one. Plaintiff testified that he did not file a grievance because he was fearful of the officers. However, he also testified that he did not file a grievance because he believed the process was ineffective and he wanted someone from the “outside” to investigate. See Dailey v. Fuller, 9:15-cv-1051, 2016 U.S. Dist. LEXIS 168482 (NDNY Dec. 5, 2016) (“Even where a complaint or affidavit contains specific assertions, the allegations may still be deemed conclusory if they are: (1) largely unsubstantiated by any other direct evidence and (2) so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of belief necessary to credit the allegations[.]”) (internal citations and quotations omitted). *7 Finally, even if the Court were to conclude that plaintiff had been threatened at Gowanda and that those threats prevented him from filing a grievance, there has been no showing that administrative remedies remained unavailable to plaintiff after he was transferred to Upstate. DOCCS procedures provides that an inmate may request an extension of the time limit to file a grievance within forty-five days of the date of the alleged occurrence. See N.Y. Comp. Codes R. & Regs., § 701.6(g). Here, the alleged assault took place on February 6, 2015 and plaintiff was transferred to Upstate on or about March 6, 2015. When plaintiff arrived at Upstate, approximately twenty-nine days had elapsed since the alleged assault, and plaintiff could have timely requested an extension of time to file a grievance. In fact, plaintiff had an additional seventeen days after arriving at Upstate to request an extension of time. See Bookman v. Linstrand, 9:15-CV-1542, 2018 U.S. Dist. LEXIS 25157 (NDNY February 14, 2018) (“Even assuming that [plaintiff’s allegations] could be construed as creating an issue of fact with respect to the grievance process at GMCF, it does not create an issue of fact with respect to the availability of the grievance process at Clinton, where plaintiff was housed in the immediate aftermath of the alleged assault.”); Smith v. Costello, 9:15-CV-0401, 2017 U.S. Dist. LEXIS 31341 (NDNY March 3, 2017) (specific threats against plaintiff with respect to filing a grievance did not excuse his failure to exhaust administrative remedies where plaintiff had thirty-three days to request an extension of time to file after his transfer from the facility where the threats occurred); Wallace v. Fisher, 9:13-CV-1208, 2015 U.S. Dist. LEXIS 169256 (NDNY Dec. 18, 2015) (concluding that even if plaintiff’s administrative remedies were unavailable at Watertown Correctional Facility, plaintiff did not persuade the Court that his administrative remedies continued to be unavailable after his transfer to Gouverneur Correctional Facility, since after his transfer plaintiff had twelve days in which to request an extension of the twenty-one day deadline for filing a grievance). Thus, the Court finds no basis in the record to excuse plaintiff’s failure to exhaust his administrative remedies. CONCLUSION For the foregoing reasons, it is recommended that defendants Lynn Wasielewski’s, Rebecca McDaniel’s, Paul Burke’s, Dennis Becker’s and Sabato Parisi’s motion for summary judgment be granted and the complaint dismissed. (Dkt. No. 61). Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report, Recommendation and Order be filed with the Clerk of Court. Unless otherwise ordered by Judge Arcara, any objections to this Report and Recommendation must be filed with the Clerk of Court within fourteen days of service of this Report and Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 175 of 290
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Recommendation in accordance with the above statute, Rules 72(b), 6(a), and 6(d) of the Federal Rules of Civil Procedure, and W.D.N.Y. L. R. Civ. P. 72. Any requests for an extension of this deadline must be made to Judge Arcara. Failure to file objections, or to request an extension of time to file objections, within fourteen days of service of this Report and Recommendation WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989). The District Court will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Paterson–Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988). Finally, the parties are reminded that, pursuant to W.D.N.Y. L.R.Civ.P. 72(b), written objections “shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority.” Failure to comply with these provisions may result in the District Court’s refusal to consider the objection. SO ORDERED. All Citations Not Reported in Fed. Supp., 2018 WL 4732755 Footnotes 1 The facts described herein are taken from pleadings, motion papers, discovery and exhibits filed in this lawsuit. Also, because plaintiff is proceeding pro se, the Court has considered all of his submissions in support of his complaint and in opposition to defendants' motion for summary judgment, regardless of the form in which they have been submitted. 2 A DOCCS Directive dated November 12, 2011 provides that inmates serving sentences for certain nonviolent crimes may receive merit time allowances against their sentences provided they have, inter alia, “achieved certain significant programmatic objections.” (Dkt. No. 69, pg. 5). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 176 of 290
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 4692476 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Alfredo LEWIS, Plaintiff, v. Lynn WASIELEWSKI, Rebecca McDaniel Paul Burke, Dennis Becker and Sabato Parisi, Defendants. 15-CV-168-A | Signed 10/01/2018 Attorneys and Law Firms Alfredo Lewis, Uniondale, NY, pro se. David J. Sleight, Office of the Attorney General, Buffalo, NY, for Defendants. DECISION AND ORDER HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE *1 This pro se civil rights case was referred to Magistrate Judge Michael J. Roemer for the conduct of pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). On July 10, 2018, the Magistrate Judge filed a Report and Recommendation (Dkt. No. 71) recommending that defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 61) be granted. On September 10, 2018, pro se plaintiff Alfredo Lewis filed objections to the Report and Recommendation. (Dkt. No. 75). Defendants filed a response on September 10, 2018. (Dkt. No. 76). Oral argument is unnecessary. Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which pro se plaintiff Lewis has objected. Upon de novo review after reviewing the submissions of the parties, the Court adopts the Magistrate Judge’s findings and conclusions. It is therefore ORDERED, pursuant to 28 U.S.C. § 636(b)(1), and for the reasons stated in the Report and Recommendation (Dkt. No. 71), that the defendants' Rule 56 motion for summary judgment (Dkt. No. 61) is granted. The Clerk of the Court shall enter judgment on behalf of defendants Lynn Wasielewski, Rebecca McDaniel, Paul Burke, Dennis Becker, and Sabato Parisi and shall close the case. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2018 WL 4692476 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 177 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 447734 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Luke MATTHEWS; Carlos Gomez; Gentl Bonds; Robert Smith; and Kasiem Chaves, Plaintiffs, v. L. SWEENEY, Clinton Corr. Sergeant; Michael Guynup, Clinton Corr. Lieutenant; Corr. Emergency Response Team (“CERT”) Officer 44-3; CERT Officer 44-4; CERT Officer 44-5; and CERT Officer 44-29, Defendants. 9:17-CV-0503 (GTS/ML) | Signed February 10, 2025 Attorneys and Law Firms DAVID B. RANKIN, ESQ., JONATHAN C. MOORE, ESQ., MARC A. CANNAN, ESQ., BEDLOCK, LEVINE & HOFFMAN, Counsel for Plaintiffs, 99 Park Avenue, 26th Floor, New York, NY 10016. DAVID C. WHITE, ESQ., THOMAS A. CULLEN, ESQ., MARK G. MITCHELL, ESQ., HON. LETITIA A. JAMES, Attorney General for the State of New York, Counsel for Defendants, The Capitol, Albany, NY 12224. DECISION and ORDER GLENN T. SUDDABY, United States District Judge *1 The trial in this prisoner civil rights case, filed by the five above-captioned individuals (“Plaintiffs”) against the six above-captioned employees of the New York State Department of Corrections and Community Supervision (“Defendants”) pursuant to 42 U.S.C. § 1983, began with an evidentiary hearing before the undersigned on February 5, 2025, regarding the affirmative defense of Defendants that Plaintiffs Gomez, Smith and Bonds failed to exhaust their available administrative remedies, as required by the Prison Litigation Reform Act, before filing this case on June 6, 2016 (their “exhaustion defense”). At the hearing, documentary evidence was admitted, and testimony was taken of Defendants’ witnesses (particularly, Cory Proscia, Rachael Seguin, and Jonathan Nocera), as well as Plaintiffs’ witnesses (particularly, Plaintiff Gomez, Plaintiff Smith, and non-party Manuel Nunez), 1 each of whom was able to be cross-examined by opposing counsel. At the conclusion of the hearing, the undersigned indicated that a written decision and order would follow. This is that written decision and order. For the reasons stated below, the claims of Plaintiffs Gomez, Bonds, and Smith are dismissed because of their failure to exhaust their available administrative remedies before filing this action. I. RELEVANT BACKGROUND A. Plaintiffs’ Claims and Case's Relevant Procedural History Generally, the surviving claims in this case assert violations of the Eighth Amendment and Title VI of the Civil Rights Act of 1964 by Defendants during an investigation, at Clinton Correctional Facility (“Clinton C.F.”), in Dannemora, New York, into the escape of two inmates (David Sweat and Richard Matt) from Clinton C.F., in June of 2015, before those Plaintiff were transferred to Upstate Correctional Facility (“Upstate C.F.”) and Sullivan Correctional Facility (“Sullivan C.F.”). (See generally Dkt. No. 298 [Plfs.’ Third Am. Compl.].) Generally, his Decision and Order of March 18, 2022, Senior U.S. District Judge Thomas J. McAvoy 2 left to be determined, through an evidentiary hearing, Defendants’ exhaustion defense against the claims of Plaintiffs Gomez, Bonds, and Smith. (Dkt. No. 325, at 19.) 3 Not addressed at the evidentiary hearing are the following: (1) any exhaustion defense against the claims of Plaintiff Negron, which (although mentioned in Judge McAvoy's Decision and Order) were voluntarily discontinued on January 4, 2022 (Dkt. No. 310); (2) any exhaustion defense against the claims of Plaintiff Matthews, with regard to which Judge McAvoy denied Defendants’ motion for summary judgment (id. at 13-16, 19), and Defendants have since effectively abandoned their exhaustion defense against the claims of Matthews (Dkt. No. 364); 4 and (3) any exhaustion defense against the claims of Plaintiff Chaves, with regard to which Defendants never moved for summary judgment (see generally Dkt. No. 254, Attach. 1, at 14 [attaching page “11” of Defs. Memo. of Law, stating, “At this time, defendants do not assert a failure to exhaust argument with respect to Chaves’ sole surviving claim”]), and in any event Defendants have since effectively abandoned their exhaustion defense against the claims of Chaves (Dkt. No. 364). 5 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 178 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 Because this Decision and Order is intended primarily for the review of the parties, the Court will presume the reader's familiarity with further details regarding Plaintiffs’ claims and the relevant procedural history of this case. B. Parties’ Arguments 1. Defendants’ Arguments Generally, Defendants assert four arguments. First, Defendants argue, Plaintiff Gomez never filed grievances at either Clinton C.F. or Upstate C.F., regarding his current claims of mistreatment at Clinton C.F. on June 6, 2015, and June 16, 2015; and, although he filed two grievances at Sullivan C.F. on December 2, 2015, neither of those grievances regarded the claims asserted in this case. (Dkt. No. 254, Attach. 1, at 9-10 [attaching pages “6” and “7” of Defs.’ Memo. of Law].) In any event, Defendants argue, Plaintiff Gomez never filed a grievance appeal regarding the claims he asserts. (Id.) Second, Defendants argue, Plaintiff Bonds never filed grievances at either Clinton C.F. or Upstate C.F., regarding his current claims of mistreatment at Clinton C.F. on June 15, 2015; and, although, while at Sullivan C.F., he filed a grievance regarding his current claims, that grievance was denied by the Superintendent of Sullivan C.F., and Plaintiff Bonds never appealed that denial. (Id. at 10-11 [attaching pages “7” and “8” of Defs.’ Memo. of Law].) 6 Third, Defendants argue, Plaintiff Smith never filed grievances at Clinton C.F., Upstate C.F., or Sullivan C.F., regarding his current claims of mistreatment at Clinton C.F. on June 15, 2016, nor did he appeal the denial of any such grievances. (Id. at 12-13 [attaching pages “9” and “10” of Defs.’ Memo. of Law].) Fourth, Defendants argue, any argument that these Plaintiffs were not required to exhaust because the administrative procedure offered to them operated as a “simple dead end” is conclusory in nature. (Dkt. No. 286, at 7 [attaching page “5” of Defs.’ Reply Memo. of Law].) 2. Plaintiffs’ Arguments Generally, Plaintiffs assert three arguments. First, Plaintiffs argue, Plaintiffs Gomez, Bonds and Smith should be excused from having to exhaust their available administrative remedies because the administrative procedure offered by the New York State Department of Corrections and Community Supervision operated as a “simple dead end” for plaintiffs making the types of complaints in question (due to officers being consistently unwilling to provide any relief to aggrieved inmates). (Dkt. No. 281, at 11-19 [attaching pages “7” through “15” of Plfs.’ Opp'n Memo. of Law]; Dkt. No. 372, at 2 [Plfs.’ Ltr. Motion].) More specifically, Plaintiffs argue that Office of Special Investigations (“OSI”) Investigator John Nocera was tasked with conducting “the majority” of the OSI's investigation of inmate grievances and allegations of assault that resulted from the June 2015 escape investigation (including interviews of several corrections officers and/ or CERT officers), but that Nocera either did not conduct those investigations or misrepresented evidence that was provided to him during them. (Id.) As a result, Plaintiffs argue, OSI recommended that all inmate allegations of assault against the CERT Officers and other corrections officers be unsubstantiated. (Id.) II. GOVERNING LEGAL STANDARD *3 The Prison Litigation Reform Act of 1995 (“PLRA”) requires that prisoners who bring suit in federal court must first exhaust their available administrative remedies: “No action shall be brought with respect to prison conditions under § 1983 ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e. The PLRA was enacted “to reduce the quantity and improve the quality of prisoner suits” by “afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In this regard, exhaustion serves two main purposes. First, it protects “administrative agency authority” by giving the agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency's procedures.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion promotes efficiency because (a) “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court,” and (b) “even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration.” Woodford, 548 U.S. at 89. “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 179 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. at 532. In accordance with the PLRA, the New York State Department of Corrections and Community Supervision (“DOCCS”) has made available a well-established inmate grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the DOCCS Inmate Grievance Program (“IGP”) involves the following three-step procedure for the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7. 7 First, an inmate must file a complaint with the facility's IGP clerk within a certain number of days of the alleged occurrence. 8 If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. A representative of the facility's inmate grievance resolution committee (“IGRC”) has a certain number of days from receipt of the grievance to informally resolve the issue. If there is no such informal resolution, then the full IGRC conducts a hearing within a certain number of days of receipt of the grievance, and issues a written decision within a certain number of days of the conclusion of the hearing. Second, a grievant may appeal the IGRC decision to the facility's superintendent within a certain number of days of receipt of the IGRC's written decision. The superintendent is to issue a written decision within a certain number of days of receipt of the grievant's appeal. *4 Third, a grievant may appeal to the central office review committee (“CORC”) within a certain number of days of receipt of the superintendent's written decision. CORC is to render a written decision within a certain number of days of receipt of the appeal. Moreover, there is an expedited process for the review of complaints of inmate harassment or other misconduct by corrections officers or prison employees. 7 N.Y.C.R.R. § 701.8. In the event the inmate seeks expedited review, he or she may report the misconduct to the employee's supervisor. The inmate then files a grievance under the normal procedures outlined above, but all grievances alleging employee misconduct are given a grievance number, and sent immediately to the superintendent for review. Under the regulations, the superintendent or his designee shall determine immediately whether the allegations, if true, would state a “bona fide” case of harassment, and if so, shall initiate an investigation of the complaint, either “in-house,” by the Inspector General's Office, or by the New York State Police Bureau of Criminal Investigations. An appeal of the adverse decision of the superintendent may be taken to the CORC as in the regular grievance procedure. A similar “special” procedure is provided for claims of discrimination against an inmate. 7 N.Y.C.R.R. § 701.9. These procedural requirements contain several safeguards. For example, if an inmate could not file such a complaint within the required time period after the alleged occurrence, he or she can apply to the facility's IGP Supervisor for an exception to the time limit based on mitigating circumstances. If that application is denied, the inmate can file a complaint complaining that the application was wrongfully denied. 9 Moreover, any failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, may be appealed to the next level, including CORC, in order to complete the grievance process. 10 The Court hastens to add, however, that, although an unprocessed grievance (i.e., a grievance that has not been assigned a grievance number) may technically be appealed, it need not be appealed in order for exhaustion to occur, because the regulatory scheme advising the inmate of that right has been found to be “too opaque.” See Williams v. Corr. Officer Priatno, 829 F.3d 118, 126 (2d Cir. 2016) (finding that, “even if Williams technically could have appealed his [unprocesseed] grievance, we conclude that the regulatory scheme providing for that appeal is ‘so opaque’ and ‘so confusing that ... no reasonable prisoner can use [it pursuant to Ross v. Blake, 136 S. Ct. 1850 (2016)]”). *5 Moreover, it is important to note that DOCCS has a separate and distinct administrative appeal process for inmate misbehavior hearings: A. For Tier III superintendent hearings, the appeal is to the Commissioner's designee, Donald Selsky, D.O.C.S. Director of Special Housing/Inmate Disciplinary Program, pursuant to 8 N.Y.C.R.R. § 254.8; B. For Tier II disciplinary hearings, the appeal is to the facility superintendent pursuant to 7 N.Y.C.R.R. § 253.8; and C. For Tier I violation hearings, the appeal is to the facility superintendent or a designee pursuant to 7 N.Y.C.R.R. § 252.6. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 180 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 “An individual decision or disposition of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered non-grievable.” 7 N.Y.C.R.R. § 701.3(e)(1). Similarly, “an individual decision or disposition resulting from a disciplinary proceeding ... is not grievable.” 7 N.Y.C.R.R. § 701.3(e)(2). However, “[t]he policies, rules, and procedures of any program or procedure, including those above, are grievable.” 7 N.Y.C.R.R. § 701.3(e)(3); see also N.Y. Dep't Corr. Serv. Directive No. 4040 at III.E. Generally, if a prisoner has failed to properly follow each of the required three steps of the above-described grievance procedure prior to commencing litigation, he has failed to exhaust his administrative remedies, and his claims are subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534 U.S. at 524; Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). However, a plaintiff's failure to exhaust does not end the inquiry. This is because certain exceptions exist to the exhaustion requirement. In particularly, in 2004, in Hemphill v. State of New York, the Second Circuit held that a three-part inquiry is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686, 691 (2d Cir. 2004), accord, Ruggiero, 467 F.3d at 175. First, “the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact ‘available’ to the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted). Second, if those remedies were available, “the court should ... inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it ... or whether the defendants’ own actions inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense.” Id. [citations omitted]. Third, if the remedies were available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, “the Court should consider whether ‘special circumstances’ have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements.” Id. [citations and internal quotations omitted]. However, in 2016, in Ross v. Blake, the Supreme Court abrogated Hemphill’s third prong and effectively enveloped its second prong within its first prong. Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). More specifically, under Ross, any inquiry that previously would have been considered under the second or third prongs of Hemphill is now considered entirely within the context of whether administrative remedies were actually available to the aggrieved inmate. Ross, 136 S. Ct. at 1858. This is because, the Supreme Court explained, the PLRA “contains its own, textual exception to mandatory exhaustion.” Id. In particular, 42 U.S.C. § 1997e(a) provides that only those administrative remedies that “are available” must first be exhausted. Id. In the PLRA context, the Supreme Court determined that “availability” means that “an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of.” Id. at 1859 (quotation marks omitted). *6 To guide courts in this new analysis, the Supreme Court has identified three kinds of circumstances in which an administrative remedy, “although officially on the books,” is not “available.” Ross, 136 S. Ct. at 1859. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end–with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, an administrative remedy is not “available” when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. Finally, two additional points bear mentioning regarding exhaustion hearings. First, the Second Circuit has ruled that a plaintiff in a lawsuit governed by PLRA is not entitled to a jury trial on disputed factual issues relating to his exhaustion of administrative remedies; rather, PLRA exhaustion is a matter of judicial administration. Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir. 2011). Second, given that non- exhaustion is an affirmative defense, the defendant bears the burden of proving that a prisoner has failed to exhaust his available administrative remedies. 11 However, once a defendant has adduced reliable evidence that administrative remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those administrative remedies, the plaintiff must then “counter” the defendant's assertion by persuading the Court of either exhaustion or unavailability. 12 As a result, practically speaking, while the burden of proving this affirmative defense remains at all times on the defendant, the plaintiff may sometimes have to adduce evidence in order to defeat it. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 181 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 III. ANALYSIS After carefully considering the admissible record evidence adduced at the exhaustion hearing, the Court renders the following three factual findings: (1) Defendants have met their burden of proving that Plaintiffs Gomez, Smith and Bonds failed to exhaust their administrative remedies regarding the claims in question before filing this action; (2) Defendants have also met their burden of proving that administrative remedies were generally available to those Plaintiffs during the time in question (e.g., that the grievance procedure was working at Upstate C.F. and Sullivan C.F. during the time in question); and (3) Plaintiffs have not persuaded the Court that, at Upstate C.F. and Sullivan C.F. during the time in question, the grievance procedure operated as a “simple dead end” (with officers unable or consistently unwilling to provide any relief to aggrieved inmates). In support of the first factual finding, the Court relies on the following: (1) the fact that Plaintiffs’ counsel conceded at the exhaustion hearing that Plaintiffs Gomez, Smith and Bonds failed to exhaust their administrative remedies regarding the claims in question before filing this action; and (2) alternatively, the hearing exhibits admitted during the hearing testimony on that subject by Cory Proscia and Rachael Seguin, as well as those witnesses’ convincing demeanor and body language (including, but not limited to, their tone of voice, facial expressions, and eye contact). *7 In support of the second factual finding, the Court relies on the following: (1) the fact that Plaintiffs’ counsel conceded at the exhaustion hearing that Plaintiff Chaves, Plaintiff Matthews, and non-party Manuel Nunez were able to exhaust their available administrative remedies regarding claims of excessive force during their removal from Clinton C.F.; 13 and (2) alternatively, the hearing exhibits admitted during the hearing testimony on that subject by Cory Proscia and Rachael Seguin, as well as those witnesses’ convincing demeanor and body language (including, but not limited to, their tone of voice, facial expressions, and eye contact). In support of the third factual finding, the Court relies on the following: (1) the hearing exhibits admitted during and after 14 the hearing testimony of OSI Investigator Jonathan Nocera, as well as his convincing demeanor and body language (including, but not limited to, his tone of voice, facial expressions, and eye contact); (2) the unconvincing demeanor and body language of non-party Manuel Nunez, Plaintiff Gomez, 15 and Plaintiff Smith, 16 during their hearing testimony (including, but not limited to, their tone of voice, facial expressions, and eye contact or lack thereof); (3) the fact that, at the exhaustion hearing, Plaintiff Bonds chose to not even testify that he viewed the process as a “dead end” (much less subject himself to cross-examination on the issue); 17 and (4) alternatively, the fact that, on June 30, 2015, Plaintiffs Bonds chose to file a grievance at Sullivan C.F. regarding the claims at issue in this action on June 30, 2015, 18 which constitutes at least some evidence that Bonds did not view the process as a “dead end.” 19 *8 In addition, the Court makes the following three points. First, the Court rejects Plaintiffs’ post-hearing argument that “the purpose of the [exhaustion] hearing was not to assess whether Mr. Bonds failed to exhaust administrative remedies” but “to assess the weight of Plaintiffs’ evidence that DOCCS's summarily rejected inmate complaints of harassment during the 2015 escape investigation and the credibility of the DOCCS employee who conducted the majority of that investigation—John Nocera.” (Dkt. No. 378, at 1-2.) Contrary to Plaintiffs’ interpretation of Judge McAvoy's Decision and Order of March 18, 2022, his finding that “Plaintiffs have met their burden of demonstrating that DOCCS personnel rejected grievances of employee harassment arising from [the] 2015 escape investigation regardless of the merits of those grievances” was merely a ground to deny Defendants’ motion for summary judgment on the issue of exhaustion (the success of which turned on whether Plaintiffs failed to exhaust as a matter of law). (Dkt. No. 325, at 12.) 20 The question of fact that remained for the exhaustion hearing (the outcome of which turns on a mere preponderance of the evidence) was “whether Plaintiffs’ administrative remedies were available to them with respect to grievances against DOCCS personnel surrounding the escape investigation, or whether the IGP related to these grievances was a simple dead end.” (Id.) Simply stated, the rejection-of-grievances-regardless-of-the- merits fact identified by Plaintiffs was left to be proven by them at the exhaustion hearing, unless it was conceded by Defendants (which it was not). Furthermore, although the Court has certainly considered Plaintiffs’ hearing evidence as applying to all Plaintiffs (including Plaintiffs Bonds), the Court simply finds that evidence unconvincing for the reasons stated above and below. Second, to prove that a grievance process operated as a dead end, a plaintiff must show that the grievance process “could not lead to a change in the challenged prison policies.” Green Haven Prison Preparative Meeting of Religious Soc'y Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 182 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 of Friends v. N.Y. State Dep't of Corr. & Cmty. Supervision, 16 F.4th 67, 82 (2d Cir. 2021), cert. denied sub nom. Green Haven Preparative Meeting v. New York State Dep't of Corr. & Cmty. Supervision, 142 S. Ct. 2676 (2022). As the Second Circuit explained in Green Haven, Plaintiffs ... appear to make a futility argument, claiming that the grievance process was ‘a dead end’ such that they were not required to exhaust administrative remedies .... The bar for the availability of remedies, however, is low. To constitute an ‘available’ remedy, a process requires only ‘the possibility of some relief.’ Ross v. Blake, 578 U.S. 632, 643, 136 S. Ct. 1850, 195 L.Ed.2d 117 (2016) (emphasis added) (quotation marks omitted). Here, the Incarcerated Plaintiffs provide no evidence that a grievance asserting that a prisoner's religious liberty has been violated by a limitation on the number or timing of religious services or celebrations could not lead to a change in the challenged prison policies. Plaintiffs are thus unable to avoid the exhaustion requirement, and the Incarcerated Plaintiffs’ RLUIPA claims fail. Green Haven, 16 F.4th at 82 [emphasis in original]. A plaintiff has not met this burden simply by arguing that DOCCS never approved a grievance similar to the sort at issue in his case. See Wright v. Georgia Dep't of Corr., 820 F. App'x 841, 845 (11th Cir. 2020) (“Wright argued that the grievance process was an unavailable dead end because the wardens had never approved an inmate grievance involving medical treatment; however, he provided no factual support for this assertion. Accordingly, the district court did not err in concluding that the defendants satisfied their burden to show the failure to exhaust an available remedy and Wright failed to show that the remedy was effectively unavailable to him.”). Third, the fact that Mr. Nunez may have experienced a problem submitting his claim to Investigator Nocera – particularly when Nocera was trying to investigate the claim of Plaintiff Matthews 21 – hardly establishes that the problem asserted by Nunez was systematic. See Barksdale v. Annucci, 15-CV-0560, 2016 WL 4708235, at *3 (N.D.N.Y. Aug. 4, 2016) (Stewart, M.J.) (“As evidence of systematic delays, Plaintiff cites several grievances filed by other inmates, which he notes were not stamped as received until as long as a week and a half after they were dated .... [T]his evidence is insufficient to establish a pattern of systematic delays in the processing of grievances at Coxsackie.”), report- recommendation adopted, 2016 WL 4703740 (N.D.N.Y. Sept. 8, 2016) (Kahn, J.). This is particularly true given that, contrary to Plaintiff's argument that Investigator Nocera was tasked with conducting the “majority” of the OSI's investigation of inmate grievances and allegations of assault that resulted from the June 2015 escape investigation (Dkt. No. 372, at 2 [Plfs.’ Ltr. Motion]; Dkt. No. 281, at 6-7 [attaching pages “2” and “3” of Plfs.’ Opp'n Memo. of Law]), in fact, it appears (based on the available record evidence) that Nocera conducted fewer than half of those investigations. 22 In any event, regardless of whether Nocera conducted more than half of the investigations, the fact that other investigators existed further weakens Mr. Nunez's claim that Investigator Nocera's (purported) inaction rendered the entire procedure a “dead end.” *9 For each of these numerous alternative reasons, the claims of Plaintiffs Gomez, Smith and Bonds are dismissed. ACCORDINGLY, it is ORDERED that the claims of Plaintiffs Gomez, Smith and Bond in their Third Amended Complaint (Dkt. No. 298) are DISMISSED for failure to exhaust their available administrative remedies before filing suit. All Citations Slip Copy, 2025 WL 447734 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 183 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Footnotes 1 Plaintiff Bonds did not testify. His proffered reason for not appearing was “I was given 20 minutes to ready [sic]. First made aware of leaving on the day I had to leave. I was physically incapable of [sic].” (Dkt. No. 373 [Refusal/Waiver of Right to Be Physically Present at Court].) The Order to appear was served on Plaintiff's counsel on January 15, 2025. (Dkt. No. 368.) At the exhaustion hearing, his counsel stated that, after speaking with Plaintiff Bonds on February 4, 2025, counsel had learned as follows: (1) Plaintiff Bonds claims that, in his 15 years’ experience being incarcerated he “usually” gets a day's notice before he is transported to court; (2) here, he did not receive that one day's notice, but only twenty or thirty minutes’ notice; and (3) as a result, he was not “prepared” because he had not showered and was not “groomed,” and because he just suffered an injury in the gym so he had a “pain issue” as well. (Exhaust. Hrg. Tr.) 2 This case was reassigned from Judge McAvoy to the undersigned on February 13, 2024. (Dkt. No. 356.) 3 Although Judge McAvoy also stated in his Decision and Order that “Defendants may renew their summary judgment motion following the conclusion of this hearing” (Dkt. No. 325, at 19), such a renewed motion for summary judgment is unnecessary given the preponderance-of-the-evidence standard that governs the Court's determination in an exhaustion hearing, as stated in the undersigned's Text Order of February 2, 2024 (Dkt. No. 366). 4 In addition, the Court notes that, on January 15, 2025, the undersigned's Courtroom Deputy, Shelly Muller, received an email message from defense counsel confirming the fact that Defendants will not be pursuing their exhaustion defense against the claims of Plaintiffs Matthews or Chaves at the exhaustion hearing. 5 See, supra, note 4 of this Decision and Order. 6 Defendant argues that Plaintiff Bonds initially submitted this grievance to the Superintendent of Clinton C.F., who responded (through a representative) that it must be filed at Sullivan C.F. (Dkt. No. 254, Attach. 1, at 10-11 [attaching pages “7” and “8” of Defs.’ Memo. of Law].) 7 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. March 31, 2010) [citation omitted]. 8 The Court uses the term “a certain number of days” rather than a particular time period because (1) since the three-step process was instituted, the time periods imposed by the process have changed, and (2) the time periods governing any particular grievance depend on the regulations and directives pending during the time in question. 9 See Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *2 & n.3 (N.D.N.Y. March 31, 2010) (citing Groves v. Knight, 05-CV-0183, Decision and Order at 3 [N.D.N.Y. filed Aug. 4, 2009], an appeal from which was subsequently dismissed as frivolous, see Groves v. Knight, No. 09-3641, Mandate [2d Cir. filed Jan. 15, 2010].) 10 See 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next step.”); see also Murray, 2010 WL 1235591, at *2 & n.4 [collecting cases]; cf. 7 N.Y.C.R.R. § 701.8(g) (“If the superintendent fails to respond within the required 25 calendar day time limit the grievant may appeal his/her grievance to CORC.”). 11 Id. at *4 [citation omitted]. 12 Id. at *4 & n.17 [citing cases]; see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (noting that special circumstances must be “plausibly alleged, ... justify[ing] the prisoner's failure to comply with administrative Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 184 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 procedural requirements”); Grant v. Kopp, 17-CV-1224, 2019 WL 368378, at *4 (N.D.N.Y. Jan. 3, 2019) (Peebles, M.J.) (“I conclude that although the burden of proof on this affirmative defense remains with the defendant at all times, the plaintiff can be required to produce evidence in order to defeat it.”) (citing cases), adopted, 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (Sharpe, J.). 13 The Court notes that the fact that Plaintiff Chaves, Plaintiff Matthews, and non-party Nunez were able to exhaust their administrative remedies regarding their treatment during transfer from Clinton C.F. to Upstate C.F. is at least some evidence that that the grievance process was available during the time in question. See Moreau v. Ellsworth, No. 21-2997, 2023 WL 3477153, at *2 (2d Cir. May 16, 2023) (“[T]he record evidence demonstrates that Moreau and other inmates at Eastern were able to appeal from several unfavorable IGRC decisions during the same period. There is thus no basis to conclude that the inmate-grievance process was unavailable.”). 14 The Court notes that, after the hearing testimony of Nocera, Plaintiffs’ counsel submitted into evidence selected portions of the deposition testimony of several CERT Officers testifying that they do not recall having been interviewed by OSI or DOCCS regarding the allegations in question in 2015 (at Hrg. Exs. P-10, P-11, P-12, P-13, and P-14). Defendants’ counsel objected to the admission of these selected portions of the deposition testimony, and the Court reserved decision on this issue. After carefully considering the matter, the Court admits these exhibits into the record, because they do not change the outcome of the Court's decision. In addition to the fact that nearly six years passed between the interviews and the depositions, the Court is persuaded by the credible testimony of Nocera that the interviews occurred (as well as the corroborating documentary evidence). 15 For example, the Court does not find credible Plaintiff Gomez's hearing testimony that (1) he tried to file a grievance at Upstate C.F. regarding the claims at issue but was unable to do so because of a sign on his cell gate, and (2) he did not try to file such a grievance at Sullivan C.F. because he was threatened by unidentified officers (or anyone else) there. (Exhaust. Hrg. Tr.) The Court notes that it has carefully considered this testimony as potentially relevant to both the first circumstance of unavailability described in Ross, 136 S. Ct. at 1859-60 (regarding when the administrative procedure operates as a “simple dead end” because officers are “unable or consistently unwilling to provide any relief to aggrieved inmates”) and the third circumstance of unavailability described in Ross (regarding when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation”). 16 For example, the Court does not find credible Plaintiff Smith's hearing testimony that he did not file a grievance at Upstate C.F. regarding the claims at issue because of a sign on his cell gate and/or because CERT officers had instructed medical staff not to give him treatment. (Exhaust. Hrg. Tr.) Again, the Court has carefully considered this testimony as potentially relevant to both the first and third circumstances of unavailability described in Ross, 136 S. Ct. at 1859-60. See, supra, note 9 of this Decision and Order. 17 See Woodward v. Lytle, 16-CV-1174, 2019 WL 2527342, at *8 (N.D.N.Y. May 24, 2019) (Peebles, M.J.) (recommending dismissal for failure to exhaust, because “plaintiff who bore the burden of production to demonstrate unavailability of the grievance process failed to meet that burden in failing to present any evidence [at the exhaustion hearing], including his own testimony, that would indicate that Ms. Hartz, or any defendants, refused to file a grievance while he was housed in the SHU at Cape Vincent”), report- recommendation adopted, 2019 WL 2524756, at *1 (N.D.N.Y. June 19, 2019) (Mordue, J.). 18 (See Dkt. No. 254, Attach. 2, at 12 [Ex. C to Pinsonnault Decl., attaching copy of grievance from Bonds dated June 30, 2015]; Exhaust. Hrg. Ex. D-10.) 19 See Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018) (Stewart, M.J.) (“While Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 185 of 290
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (Hurd, J.); Lapierre v. LaValley, 15-CV-1499, 2019 WL 4015689, at *5 (N.D.N.Y. Aug. 26, 2019) (Stewart, M.J.) (rejecting an asserted “dead end” exception and granting a motion for summary judgment because the plaintiff's prior filings “show[ ] that [he] did not view the filing of grievances as a dead end”) (citation omitted), report and recommendation adopted, 2019 WL 4686415 (N.D.N.Y. Sept. 26, 2019) (D'Agostino, J.), aff'd, 847 F. App'x 47 (2d Cir. 2021). The Court notes that the fact that Plaintiff Bonds lost this grievance is not evidence that it was a dead end. See McMillian v. Walters, 16-CV-0277, 2018 WL 879270, at *3 (N.D.N.Y. Feb. 14, 2018) (D'Agostino, J.) (“Plaintiff did not provide any evidence that would suggest that the administrative procedures act as a dead end. Although Plaintiff stated in his deposition that the grievance process ‘didn't do anything’ for him in the past ..., a record of administrative defeats for a single prisoner is not sufficient evidence to effectively indict the system.”). 20 To be clear, the “burden” referenced by Judge McAvoy regarded Plaintiffs’ modest burden in opposing Defendants’ motion for summary judgment, not their shifted burden of persuasion at a subsequent exhaustion hearing (during which the Court might evaluate the credibility of Plaintiffs’ testimony under cross- examination). See, supra, Part II of this Decision and Order (setting forth legal standard). 21 The Court notes that, at the exhaustion hearing, Mr. Nunez testified that, as Investigator Nocera was attempting to question him regarding the claim by Plaintiff Matthews on July 2 or 3, 2015, at Sing Sing C.F, Mr. Nunez attempted to remind Plaintiff about his own claim and did not receive a satisfactory response. (Exhaust. Hrg. Tr.) 22 More specifically, it appears that, of the 35 OSI Interview Statements in the record that indicate the name of the investigating officer, 16 of those statements identify that officer as Jonathan Nocera, seven identify him as James Lovelace, four identify him as Christopher Payant, three identify him as Scott Lustan, three identify him as Ryan Graziano, one identifies him as Felix Cotto, and one identifies him as Investigator Retrosi. (Dkt. No. 281, Attach. 9, at 3-8, 10, 12-17, 19, 20, 22-24, 26, 28, 30, 32, 33, 36, 38, 40, 42-45, 47, 49, 52, 55, 56 [Ex. 7 to Cannan Decl., attaching “OSI Interview Statements”].) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 186 of 290
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 2045094 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Tony MCGEE, Plaintiff, v. Correction Officer MCGREADY, et al., Defendants. 16-CV-4187 (NSR) | Signed 04/30/2018 Attorneys and Law Firms Tony McGee, Brooklyn, NY, pro se. Colleen Kelly Faherty, State of New York Office of the Attorney General, New York, NY, for Defendants. OPINION & ORDER NELSON S. ROMÁN, United States District Judge *1 Plaintiff, Tony McGee (“Plaintiff”), an incarcerated pro se inmate at Sing Sing Correctional Facility, brings this action pursuant 42 U.S.C. § 1983 against Inmate Grievance Supervisor Anthony Black (“Black”), former Corrections Counselor Mary Jackson (“Jackson”), Sergeant Murray or Murphy (“Sgt. Murray”), Sergeant Poole (“Sgt. Poole”) and several other corrections officers. 1 Before this court is Defendant Black and Jackson’s motion to dismiss the amended complaint as against them based on failure to plead a plausible claim, failure to exhaust administrative remedies, and qualified immunity. For the foregoing reasons, the motion is GRANTED. FACTUAL BACKGROUND The following facts are taken from Plaintiff’s Amended Complaint and are deemed true for the purpose of this motion. Plaintiff alleges that on or about July 22, 2013, while in the mess hall he was assaulted by a fellow “gang related Hispanic inmate” who made a derogatory or offensive statement. In response to the statement, Plaintiff punched the inmate in the face resulting in an altercation. During the fight, Plaintiff was repeatedly punched about the face causing several lacerations. Plaintiff alleges that a “Black Correction Officer” 2 was present in the mess hall, observed the incident, and failed to prevent it and/or failed to intervene. On or about July 11, 2013, approximately eleven days prior to the altercation, Plaintiff spoke to Jackson and requested that he be placed in protective custody because he was threatened and being targeted by “gang-related Hispanic inmates.” Jackson purportedly prepared a request for “voluntary protective custody,” and informed Plaintiff he would be contacted sometime later. Later that day, Plaintiff was interviewed by Sgt. Murray concerning his request for protective custody. Plaintiff purportedly informed Sgt. Murray of the threats and being targeted. Plaintiff was once again informed he would be contacted sometime later. Plaintiff’s request was not granted. Plaintiff suggests had he been placed in protective custody, as requested, he would not have been assaulted and injured. Additionally, Plaintiff asserts that Defendant Black failed to process multiple sick- call grievances by failing to forward them to Central Office Review Committee (“CORC”). Plaintiff asserts claims under the Eight and Fourteenth Amendments. STANDARD OF REVIEW Rule 12(b)(6) On a 12(b)(6) motion, dismissal is proper unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). When there are well-pled factual allegations in the complaint, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. *2 Where a pro se Plaintiff is concerned, Courts must construe the pleadings in a particularly liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Court must therefore interpret the pleading “to raise the strongest arguments that [it] suggest[s].” Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a pro se plaintiff’s pleading must contain factual allegations that sufficiently “raise a right to Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 187 of 290
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 relief above the speculative level” (Jackson v. N. Y.S. Dep't of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) ), and the Court’s duty to construe the complaint liberally is not “the equivalent of a duty to re-write it.” Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009). Exhaustion The Prison Litigation Reform Act (“PLRA”) precludes the filing of an action “with respect to prison conditions under [42 US.C. § 1983] ... by a prisoner confined in any jail, prison or other correction facility until such administrative remedies as are available are exhausted.” Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations omitted). Whether an inmate has exhausted all administrative remedies turns on a review of “the state prison procedures [available] and the prisoner’s grievance....” See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) citing Jones v. Bock, 549 U.S. 199, 218 (2007). Grievances at DOCCS are governed by the Inmate Grievance Program (“IGP”), which is based on a three-tiered system. Id. at 125. To adjudicate an inmate complaint: “(1) the prisoner files a grievance with the Inmate Grievance Resolution Committee (“IGRC”), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the CORC. Id.; see also N.Y. Comp. Codes. R. & Regs., tit. 7, § 701.7 (1999). Notably, exhaustion is an affirmative defense, not a pleading requirement; thus, inmate plaintiffs need not “specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216. Instead, Defendants must demonstrate lack of exhaustion. Colon v. N. Y.S. Dep't of Corr. & Cmty. Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at *5 (S.D.N.Y. Sept. 15, 2017) citing Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). Dismissal on a 12(b)(6) motion for failure to exhaust is permissible where “it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement.” Williams, 829 F.3d at 122; see also Parris v. N.Y.S. Dep't Corr. Sews., 947 F. Supp. 2d 354, 261 (S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dep't of Con: Med. Dep't, No. 10-CV-6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of motion was appropriate where complaint was ambiguous as to exhaustion). Further, on such a motion, where a court is confined to the four corners of the complaint, the documents attached thereto, and things of which it is entitled to take judicial notice (see, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011) ), a court is only permitted to consider outside documents related to exhaustion and submitted by defendants under limited circumstances. See, Smith v. Miller, No. 15- CV-9561 (NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23, 2017) (noting courts can take judicial notice of administrative records in Section 1983 cases in limited circumstances). Those include instances where “the complaint a) was the standard pro se form complaint that has a check-box regarding exhaustion, b) contained allegations clearly stating that the inmate had exhausted his administrative remedies, or c) clearly pointed to the fact that the inmate had, in fact, not exhausted.” Cohn, 2017 WL 4157372, at *5. Qualified Immunity *3 “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19. It is within the Court’s discretion to determine the order in which the two prongs are analyzed. Pearson v. Callahan, 555 U.S. 223, 236 (2009). DISCUSSION Plaintiff asserts § 1983 claims under the Eighth Amendment against Defendants Black and Johnson. The essence of Plaintiff’s claim is a failure to protect. Plaintiff’s complaint suggest that Defendants' failure in processing or approving his request for voluntary confinement resulted in his subsequent assault. Or, construing the allegations liberally as the Court is required to do, but for Defendants' failure in placing him in voluntary protective custody, Plaintiff would not have been attacked and injured by a fellow inmate. Plaintiff’s 1983 complaint is that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth. See Estelle v. Gamble, 429 U.S, 97, 102 (1976) citing Robinson v. California, 370 U.S. 660 (1962). “To prevail on an Eighth Amendment claim, an inmate must first show that his injury Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 188 of 290
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 is objectively a ‘sufficiently serious’ one.” Brims v. Burdi, No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2 (S.D.N.Y. June 23, 2004) quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Additionally, a plaintiff must “show that the defendant had knowledge of [the] prisoner’s problem and was deliberately indifferent to [the] prisoner’s plight.” Calhoun v. N. Y State Div. of Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) citing Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989). Deliberate indifference requires a showing that the conditions of incarceration posed a substantial risk of serious harm, and that prison officials possessed sufficient culpable intent. Hayes v. New York City Dep't Of Corr., 84 F.3d 614, 620 (2d Cir. 1996) citing Farmer v. Brennan, 511 U.S. 825, 834 (1994).The deliberate indifference requires a two prongs analysis: substantial risk of serious harm, objective prong; and sufficient culpable intent, subjective prong. Farmer, 511 U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Here, the objective prong is meet and not disputed. Subjectively, the prison official acts with the requisite sufficient culpable state of mind when he (or she) “has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.” Hayes, 84 F.3d at 620. Courts have denied deliberate indifference claims based upon surprise attacks. See Fernandez v. N.Y.C. Dep't of Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber, No. 95-CV-0882(DAB), 2001 WL 946383 (S.D.N.Y. Aug. 21, 2001). Plaintiff alleges he provided advance notice to Jackson and Black of threats and a possible attack. Plaintiff’s allegation also suggest he identified the attacker(s), “gang related Hispanic inmates” at the facility. Plaintiff’s allegations suggest that Black and Jackson failed to take reasonable measures to abate the impending attack. Thus, Plaintiff has pled a plausible Eighth Amendment claim. *4 Plaintiff’s Eighth Amendment claim, however, fails for failure to exhaust his administrative remedies. This case involves the use of the pro se form complaint which contains the equivalent of a check-box exhaustion section. The amended complaint is clear as to whether Plaintiff alleges he grieved his claims. Plaintiff explicitly states he filed grievances concerning, inter alia, the “5 sick call request,” the “non-protection grievances” and the “foreseeable assault.” (See Amended Compl., Sect. IV., E (1).) Because the exhaustion issue is an integral part of the prisoner’s claims, the Court may refer to materials outside of the complaint on a 12(b)(6) motion in determining whether a plaintiff has exhausted. See Smart v. Goode, No. 04-CV-8850 (RWS), 2008 WL 591230, at *2 (S.D.N.Y. Mar. 3, 2008) (recognizing that the Court’s previous opinion “[did] not faithfully capture the subtlety of exhaustion doctrine in the Second Circuit” and that the Court should have addressed non-exhaustion as an affirmative defense). In support of their motion, Defendants submit a declaration from Karen Bellamy (“Bellamy”), the Director of the Inmate Grievance Program (“IGP”). Bellamy avers that she is the custodian of records maintained by the CORC, which is tasked with rendering administrative decisions on grievances filed by inmates. Based upon her review of the records, she found that Plaintiff made other complaints concerning meals, conditions of the facility, and “problems with security staff” on December 17, 2013. Plaintiff, however, did not file a grievance concerning the July 22nd incident nor his request for voluntary confinement. Though Plaintiff attempts to rebut Defendants' showing, mere conclusory statements in opposition is insufficient. Accordingly, Plaintiff’s Eighth Amendment claims must be dismissed. Plaintiff also asserts a claim based on Defendant Black’s failure to process his grievances, including his “5 sick call grievances.” It is well settled that in order to succeed on a § 1983 claim, Plaintiff must show that he has been deprived of a constitutional or other federal right. 42 U.S.C. § 1983. Inmate grievances procedures are undertaken voluntarily by the states and are not constitutionally required. Johnson v. New York City Dep't of Health, No. 06-CV-13699 (BSJ) (FM), 2008 WL 5378124, at *3 (S.D.N.Y. Dec. 22, 2008) (internal citation omitted). Accordingly, a failure to process a prisoner's grievance(s) does not in itself give rise to a constitutional claim. Swift v. Tweddell, 582 F. Supp. 2d 437, 445-46 (W.D.N.Y. 2008) (internal citations omitted). This claim must therefore be dismissed. CONCLUSION For the foregoing reasons, Defendants' motion is GRANTED in part and DENIED in part. Plaintiff’s Eighth Amendment and claims premised on the failure to process his grievances are dismissed. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 29. The parties are directed to confer, complete and submit to the Court a Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 189 of 290
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 completed case management plan (blank form attached) within thirty (30) days of the date of this opinion. SO ORDERED. Attachment All Citations Not Reported in Fed. Supp., 2018 WL 2045094 Footnotes 1 The operative complaint is the Amended Complaint filed February 2, 2017. (ECF No. 22.) 2 In his complaint, Plaintiff appears to identify the “Black Correction Officer” as C.O. Javier Caban. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 190 of 290
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 3948100 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Jonathan MENA, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. No. 13-cv-2430 (RJS) | Signed 07/19/2016 Attorneys and Law Firms Jonathan Mena, Stormville, NY, pro se. Omar Javed Siddiqi, Ryan Glenn Shaffer, New York City Law Department, New York, NY, for Defendants. OPINION AND ORDER RICHARD J. SULLIVAN, District Judge *1 Plaintiff Jonathan Mena, who is currently incarcerated and proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Correction Officer Benjamin Eason (“Defendant”), alleging violations of the Eighth Amendment. Now before the Court is Defendant's motion for summary judgment. For the reasons set forth below, the motion is granted. I. BACKGROUND A. Facts 1 On September 9, 2012, while incarcerated at the Otis Bantum Correctional Center (“OBCC”) on Rikers Island, Plaintiff was placed in an intake cell in the OBCC's receiving area, which he shared with two other individuals. (56.1 Stmt. ¶¶ 2–3.) Plaintiff alleges that the cell was extremely cold, vermin- infested, and too small to accommodate three men. (See Doc. No. 54-1 (“Compl.”) 4, 8.) Plaintiff further alleges that these conditions, coupled with the constant noise made by the two other inmates, prevented him from sleeping for the entire 60-hour period that he was held in the cell. (See id. at 4.) Consequently, he asked Defendant, who was on duty, to transfer him to a different cell. (56.1 Stmt. ¶¶ 7–8.) According to Plaintiff, Defendant responded that there was “nothing he could do” about the situation. (Id. ¶ 9; see also Doc. No. 54-2 (“Mena Dep.”) 59:5-8.) Plaintiff avers that he filed a grievance with the OBCC to complain about his experience in the cell. (See Compl. at 7.) The New York City Department of Correction (“DOC”) has an administrative grievance procedure, known as the Inmate Grievance and Request Program (“IGRP”), for inmates housed at facilities such as the OBCC. The IGRP, which was available and in effect at all times relevant to this lawsuit, requires that inmates first file a complaint with the Inmate Grievance Resolution Committee (“IGRC”) within ten days of the complained-of act. (56.1 Stmt. ¶¶ 11–12; see also Doc. No. 54-3 (“IGRP Directive”) § IV(D)(1).) The IGRC then attempts to resolve the grievance informally within five days, and if the grievance is not informally resolved, then the inmate may request a formal hearing before the IGRC. (56.1 Stmt. ¶ 12; see also IGRP Directive §§ IV(G)-(H).) An inmate may appeal the IGRC's decision to the commanding officer, or her designee, and subsequent appeals may be taken to the Central Office Review Committee (“CORC”). (56.1 Stmt. ¶ 13; see also IGRP Directive §§ IV(I)-(J).) The CORC's decision is the final and binding decision of the DOC; if an inmate disputes the decision of the CORC, he may independently appeal to the Board of Correction. (IGRP Directive at 47.) Finally, if an inmate does not receive a timely disposition at any point throughout the grievance process, he has the option of either granting an extension of time to the relevant decisionmaker (i.e., the IGRC, the commanding officer, or the CORC) or appealing and proceeding to the next level of review. (56.1 Stmt. ¶ 14; see also IGRP Directive §§ IV(D)(9)(b), (10).) *2 As Plaintiff himself acknowledges, after submitting the grievance and receiving no response, he neither granted the DOC an extension of time nor appealed. (See Compl. 7– 8; Opp'n 6.) In his Complaint, Plaintiff admits that he is “still waiting” for a disposition of his grievance, but does not indicate any steps he has taken to appeal any decision before the IGRC. (See Compl. 7.) In response to a question on the Southern District of New York Prison Complaint form asking a plaintiff to “set forth any additional information that is relevant to the exhaustion of your administrative remedies,” Plaintiff repeated a number of his substantive allegations against the OBCC staff, but did not state any information relevant to the grievance process. (Id. at 5.) And in his opposition brief in connection with this motion, Plaintiff again notes that he filed “several grievances about the issues Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 191 of 290
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 in question,” but he does not indicate any specific steps he took to appeal to the IGRC or to pursue any other avenue of appellate review within the IGRP. (Opp'n 6.) B. Procedural History On April 11, 2013, Plaintiff commenced this action by filing a complaint against the City of New York, Correction Officer Jaquon Pickwood (“Pickwood”), Correction Officer Sauda Abdul-Malik (“Abdul-Malik”), and Defendant (collectively, “Defendants”), pursuant to Section 1983, asserting violations of his constitutional rights under the Eighth and Fourteenth Amendments. (See Doc. No. 1.) On December 9, 2013, Defendants moved to dismiss the Complaint. (Doc. No. 18.) On September 17, 2014, the Court granted Defendants' motion to dismiss with respect to Plaintiff's claims against the City of New York, Pickwood, and Abdul-Malik, and Plaintiff's Fourteenth Amendment claims against Defendant for failure to state a claim upon which relief can be granted, but denied Defendants' motion to dismiss with respect to Plaintiff's Eighth Amendment claim against Officer Eason. (Doc. No. 29.) On September 11, 2015, following the completion of discovery, Defendant filed the instant motion for summary judgment, along with his brief and his 56.1 Statement, arguing that Plaintiff failed to exhaust administrative remedies, that his Eighth Amendment conditions of confinement claim failed on the merits, and that in any event, Defendant was entitled to qualified immunity. (Doc. Nos. 53–55, 57.) Defendant also filed a notice pursuant to Local Civil Rule 56.2 alerting Plaintiff of his obligation to submit a responsive statement and informing him of the consequences of not doing so. (Doc. No. 56.) In accordance with Local Rule 56.2, this notice included copies of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1. (Id.) On October 14, 2015, Plaintiff filed a brief opposing summary judgment and submitted several exhibits (see Doc. No. 58), but he failed to submit a responsive 56.1 Statement. Defendant submitted his reply on October 22, 2015. (Doc. No. 59 (“Reply”).) II. LEGAL STANDARD Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is “no genuine dispute as to any material fact” where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties disagree on some or all facts, but even on the nonmoving party's version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a fact is genuinely disputed, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show a genuine dispute, the nonmoving party must provide “hard evidence,” D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998), “from which a reasonable inference in [its] favor may be drawn,” Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). “Conclusory allegations, conjecture, and speculation,” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), as well as the existence of a mere “scintilla of evidence in support of the [nonmoving party's] position,” Anderson, 477 U.S. at 252, are insufficient to create a genuinely disputed fact. A moving party is “entitled to judgment as a matter of law” on an issue if (1) it bears the burden of proof on the issue and the undisputed facts meet that burden; or (2) the nonmoving party bears the burden of proof on the issue and the moving party “ ‘show[s]’– that is, point[s] out ... – that there is an absence of evidence [in the record] to support the nonmoving party's [position].” See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). *3 Typically, a “nonmoving party's failure to respond to a [Local Civil] Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (citing Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998)). “This general rule applies equally” to cases involving a pro se nonmoving party who has been provided adequate notice of the consequences of failing to properly respond to a summary judgment motion. Pierre-Antoine v. City of N.Y., No. 04-cv-6987 (GEL), 2006 WL 1292076, at *3 (S.D.N.Y. May 9, 2006); see also Gilliam v. Trustees of Sheet Metal Workers' Nat'l Pension Fund, No. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 192 of 290
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 03-cv-7421 (KMK), 2005 WL 1026330, at *1 n.2 (S.D.N.Y. May 3, 2005). Even so, the Court “may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement,” Holtz, 258 F.3d at 73, and the Court is obligated to construe pro se litigants' submissions liberally, see McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Here, Plaintiff failed to submit a responsive Rule 56.1 statement, even though Defendant, pursuant to Local Civil Rule 56.2, sent Plaintiff notice of his obligations under Local Civil Rule 56.1 and Federal Rule of Civil Procedure 56 and sent copies of both rules. (Doc. No. 56). In light of Plaintiff's pro se status, the Court has exercised its discretion to independently review the record, which reveals no controverted facts. See Holtz, 258 F.3d at 73. In fact, as discussed below, Plaintiff's own submissions confirm the material facts contained in Defendant's Rule 56.1 Statement. III. DISCUSSION Defendant argues that summary judgment should be granted because Plaintiff has failed to comply with the administrative exhaustion requirement of the Prison Litigation Reform Act of 1995 (the “PLRA”). The Court agrees. Under the PLRA, inmates bringing claims with respect to prison conditions under Section 1983 must exhaust the administrative remedies that are available at that prison before proceeding in federal court. 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement is “mandatory,” thus “foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) (describing the “invigorated exhaustion provision” as “[a] centerpiece of the PLRA's effort to reduce the quantity of prisoner suits” (citations and quotation marks omitted)). Accordingly, “the law is well-settled that the failure to take an available administrative appeal, even when the initial grievance receives no response, constitutes a failure to exhaust available administrative remedies.” Garvin v. Rivera, No. 13-cv-7054 (RJS), 2015 WL 3999180, at *3 (S.D.N.Y. June 29, 2015); accord Johnson v. N.Y.C. Dep't of Corr., No. 13-cv-6799 (CM), 2014 WL 2800753, at *6 (S.D.N.Y. June 16, 2014) (“Assuming that [p]laintiff filed a timely grievance ... and received no response within five business days[,] ... [p]laintiff ... could have taken the next step and requested a hearing.”); Leacock v. N.Y.C. Health Hosp. Corp., No. 03-cv-5440 (RMB) (GWG), 2005 WL 483363, at *7 (S.D.N.Y. Mar. 1, 2005) (“[T]hat [plaintiff] allegedly did not receive a response to her grievance does not excuse her from failing to exhaust the appellate remedies available to her.”); Burns v. Moore, No. 99-cv-966 (LMM) (THK), 2002 WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) (“Thus, even if [p]laintiff received no response to his initial grievance, [p]laintiff could have sought the next level of review, in this case, to the prison superintendent.”). *4 At the OBCC, where Plaintiff was incarcerated, an inmate must exhaust several layers of review, even if the inmate does not receive a timely disposition at the initial stages. (56.1 Stmt. ¶ 12–14.) Here, as Plaintiff reveals in his own complaint and brief in opposition to the motion for summary judgment, he did not exhaust the OBCC administrative procedure. (Compl. 7–8; Opp'n 6.) Rather, he indicates that he filed a grievance but otherwise did not appeal or seek further review through the IGRP process. (Compl. 7–8 (noting that he is “still waiting” for disposition of his grievances and did not seek review at the next levels within IGRP); Opp'n 6 (noting that he filed “several grievances about the issues in question,” but omitting reference to any specific steps taken to appeal)). Accordingly, Plaintiff failed to satisfy the PLRA exhaustion requirement. The Court next considers whether there is any basis for excusing Plaintiff's failure to exhaust administrative remedies at the IGRP. Last month, the Supreme Court forcefully disapproved of judge-made exceptions to the PLRA's exhaustion requirement, stressing the mandatory language of the statute. See Ross, 136 S. Ct. at 1862 (“Courts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA's exhaustion requirement.”) In doing so, the Supreme Court expressly rejected the Second Circuit's prior framework under Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), and, by extension, Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), which recognized a “special circumstances” exception to the PLRA's exhaustion requirement. See Williams v. Priatno, No. 14-4777, ___ F.3d. ____, ____, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016) (“[T]o the extent that our special circumstances exception ... permits plaintiffs to file a lawsuit in federal court without first exhausting administrative remedies that were, in fact, available to them, those aspects of Giano and Hemphill are abrogated by Ross.”). Thus, post-Ross, the lone surviving exception to the PLRA's exhaustion requirement is that embedded in its text: that an inmate need only exhaust those administrative remedies that Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 193 of 290
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 are “available” to him. Ross, 136 S. Ct. at 1862; see also 43 U.S.C. § 1997e(a). An inmate's failure to exhaust may therefore be excused when his prison's grievance mechanisms are literally or constructively “unavailable.” Ross, 136 S. Ct. at 1858–59. The Supreme Court described three scenarios in which administrative procedures could be “officially on the books,” but “not capable of use to obtain relief,” and therefore unavailable. Id. While not exhaustive, these illustrations nonetheless guide the Court's inquiry. See Williams, 2016 WL 3729383, at *4 n.2. First, an administrative procedure is unavailable when “it operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to inmates.” Ross, 136 S. Ct. at 1859. If prison administrators either lack the necessary authority to provide any relief or possess authority but consistently decline to exercise it, the administrative channels are not “available” within the meaning of the PLRA. Id.; see also Booth v. Churner, 523 U.S. 731, 736, 738 (2001) (“[T]he modifier ‘available’ requires the possibility of some relief.”). Second, an administrative procedure is unavailable where it is “so opaque that it becomes, practically speaking, incapable of use.” Id. To meet this high bar, the administrative remedy must be “essentially ‘unknowable.’ ” Id. Finally, “a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of it through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. Here, Plaintiff has not alleged – let alone shown – that the administrative procedures at the OBCC were unavailable to him. Although Plaintiff's initial grievance received no response, this alone is insufficient to show that the IGRP acted as a mere dead end. As stated earlier, “the law is well-settled” that an inmate's “failure to take an available administrative appeal, even when the initial grievance receives no response, constitutes a failure to exhaust available administrative remedies.” Garvin, 2015 WL 3999180, at *3 (collecting authorities). In short, the DOC's untimeliness in this case is not enough to demonstrate the unavailability of an administrative remedy. This is especially true in light of the IGRP's built-in appeal mechanism, whereby inmates may directly proceed to the next level of review in the event of the DOC's failure to respond to a grievance. (See IGRP Directive § IV(D)(9)(b), (10).) Furthermore, Plaintiff has not introduced any facts to indicate that prison officials at OBCC are “consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. *5 Nor has Plaintiff pointed to any evidence that the IGRP was “so opaque that it [became], practically speaking, incapable of use” and therefore “essentially unknowable.” Ross, 136 S. Ct. at 1859. While the Second Circuit recently found that certain administrative grievance procedures at a different New York State facility met this standard, the Second Circuit's decision hinged on the “extraordinary circumstances” specific to the case before it, for which the applicable grievance regulations gave “no guidance whatsoever.” See Williams, 2016 WL 3729383, at *1, *5. Specifically, the plaintiff in Williams was housed in a special housing unit and segregated from the regular prison population; therefore, he gave his grievance complaint to a correction officer to file on his behalf. Williams, 2016 WL 3729383, at *2. However, the plaintiff in Williams alleged that the correction officer to whom he gave his complaint failed to file it, id., and because the Second Circuit concluded that the applicable grievance regulations gave “no guidance whatsoever to an inmate whose grievance was never filed,” id. at 5, it reversed the District Court's dismissal for failure to exhaust. Here, by contrast the IGRP expressly guides inmates in Plaintiff's position who have filed a grievance but have not received a timely response and directs them to either grant an extension of time to the relevant decisionmaker or to appeal to the next level of review. (See IGRP Directive §§ IV(D)(9)(b), (10).) In light of the IGRP's unambiguous directive, Plaintiff has clearly failed to show that the IGRP was “essentially unknowable.” See Ross, 136 S. Ct. at 1859. Finally, the Court turns to the third scenario contemplated by the Supreme Court, in which “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859. Plaintiff has not demonstrated, or even suggested, that prison administrators obstructed or interfered with his access to administrative remedies. See, e.g., Winston v. Woodward, No. 05-cv-3385 (RJS), 2008 WL 2263191, at *10 (S.D.N.Y. May 30, 2008) (concluding that plaintiff's failure to exhaust administrative remedies was not excused in light of his “failure to put forth any corroborating evidence, either direct or circumstantial, to support his claims that he suffered retaliation in the form of threats, harassment and mail tampering”). Thus, this exception to the exhaustion requirement is also clearly inapplicable. Therefore, the Court concludes, as a matter of law, that Plaintiff has failed to exhaust administrative remedies available to him through the IGRP and has failed to offer any facts to prove that administrative remedies were not available Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 194 of 290
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 to him. Because Plaintiff's claims are barred for failure to comply with the administrative exhaustion requirement of the PLRA, Defendant's motion for summary judgment is granted. 2 IV. CONCLUSION For the reasons stated above, IT IS HEREBY ORDERED that Defendant's motion for summary judgment is GRANTED. Although Plaintiff has paid the filing fee in this action and has not applied to proceed in forma pauperis, the Court nevertheless certifies pursuant to 28 U.S.C. § 1915(a)(3) that, in the event Plaintiff seeks to appeal this Order in forma pauperis, any appeal would not be taken in good faith. The Clerk is respectfully directed to terminate the motion pending at docket number 53, to mail a copy of this order to Plaintiff, and to close this case. SO ORDERED. All Citations Not Reported in Fed. Supp., 2016 WL 3948100 Footnotes 1 The following facts are drawn from Defendant's unopposed Local Civil Rule 56.1 Statement. (Doc. No. 55 (“56.1 Statement” or “56.1 Stmt.”).) In deciding Defendant's motion for summary judgment, the Court has also considered Plaintiff's submission in opposition to summary judgment (Doc. No. 58 (“Opp'n”)), and has conducted an independent review of the record, notwithstanding Plaintiff's failure to submit a statement compliant with Local Civil Rule 56.1. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d. Cir. 2001) (noting that district court “may in its discretion opt to conduct an assiduous review of the record even when” a party has failed to comply with Local Civil Rule 56.1 (citations and quotation marks omitted)). 2 Although Defendant has raised other grounds for summary judgment, including that Plaintiff has failed to establish an Eighth Amendment conditions of confinement claim, and that Defendant is entitled to qualified immunity, the Court finds it unnecessary to address these other arguments because of Plaintiff's failure to exhaust remedies. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 195 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Ratigan v. CSX Transportation, Inc., N.D.N.Y., September 30, 2025 2019 WL 1386047 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Edward NIEDZIEJKO, Plaintiff, v. DELAWARE & HUDSON RY. CO., INC., d/b/a Canadian Pac. Ry., Defendant, 1:18-CV-0675 (GTS/CFH) | Signed 03/27/2019 Attorneys and Law Firms OF COUNSEL: GERARD J. MARTILLOTTI, ESQ., JERRY MARTILLOTTI & ASSOCIATES, PC, 4221 Ridge Avenue, P.O. Box 18509, Philadelphia, Pennsylvania 19129, Counsel for Plaintiff. OF COUNSEL: MICHAEL D. BILLOK, LLP, BOND, SCHOENECK & KING, PLLC, 22 Corporate Woods Boulevard, Suite 501, Albany, New York 12211, Counsel for Defendant. OF COUNSEL: TRACEY H. DONESKY, ESQ., NICOLE FAULKNER, ESQ., STINSON LEONARD STREET LLP, 50 South Sixth Street, Suite 2600, Minneapolis, Minnesota 55402, Co-Counsel for Defendant. DECISION and ORDER Hon. Glenn T. Suddaby, Chief U.S. District Judge *1 Currently before the Court, in this Federal Railway Safety Act action filed by Edward Niedziejko (“Plaintiff”) against Delaware & Hudson Railway Company, Inc. (“Defendant”), is Defendant's motion to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or, in the alternative, motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 12.) For the reasons set forth below, Defendant's motion is granted. TABLE OF CONTENTS I. RELEVANT BACKGROUND...–––– A. Plaintiff's Complaint...–––– B. Statement of Undisputed Material Facts...–––– C. Parties' Briefing on Defendant's Motion...–––– 1. Defendant's Memorandum of Law...–––– 2. Plaintiff's Opposition Memorandum of Law...–––– 3. Defendant's Reply Memorandum of Law...–––– II. GOVERNING LEGAL STANDARDS...–––– A. Standard Governing Motion to Dismiss for Lack of Subject-Matter Jurisdiction...–––– B. Standard Governing Motion to Dismiss for Failure to State a Claim...–––– C. Standard Governing Motion for Summary Judgment...–––– D. Standard Governing Plaintiff's Claims and Defendant's Defenses...–––– III. ANALYSIS...–––– A. Analysis of Plaintiff's Motion to Dismiss for Lack of Subject-Matter Jurisdiction...–––– B. Analysis of Plaintiff's Claim of Discriminatory Reprimand...–––– 1. Failure-to-State-a-Claim Analysis...–––– 2. Summary-Judgment Analysis...–––– C. Analysis of Plaintiff's Claim of Discriminatory Termination...–––– 1. Failure-to-State-a-Claim Analysis...–––– 2. Summary-Judgment Analysis...–––– I. RELEVANT BACKGROUND Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 196 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 A. Plaintiff's Complaint Generally, liberally construed, Plaintiff's Complaint alleges as follows. (Dkt. No. 1.) Staffing Reduction Before late 2015, Plaintiff was hired as a Special Agent in Defendant's Police Department. (Id.) Starting in late 2015, the number of police officers available to staff Defendant's Police Department was reduced (due to Defendant's closure of a section of its Police Department in Taylor, Pennsylvania, as a result of a sale of part of Defendant's business in August of 2014). (Id.) Subsequently, in 2015 and 2016, this reduction was exacerbated by work injuries and retirements. (Id.) Because of these reductions, at any given time, there were three or fewer special agents or police officers available to staff Defendant's Police Department for the entire Eastern United States, including Upstate New York. (Id.) As a result, on several occasions, Plaintiff worked a full shift and then, either before returning home or a short time after arriving home, was required to return to work to respond to a call to work for an additional period lasting several hours. (Id.) Safety Complaints Starting on or about March 30, 2016, and continuing into June of 2016, Plaintiff complained to his supervisors, union representatives, and colleagues about safety issues resulting from the aforementioned reduction in staffing and requirement of excessive overtime. (Id.) More specifically, Plaintiff complained that being required to work for extended periods of time without adequate rest of days off posed safety issues to the Albany Police Unit of the Canadian Pacific Railway starting in the fall of 2015. (Id.) Plaintiff's fellow employees, including Michael Savokinas, joined in these complaints. (Id.) However, rather than take steps to resolve Plaintiff's concerns, Plaintiff's supervisors made it known that any safety complaints would lead to trouble for the person making them. (Id.) Plaintiff responded by letting it be known that he was going to have Defendant's staffing policy evaluated by the Occupational Safety and Health Administration (“OSHA”). (Id.) Review of Shotgun Logs *2 Immediately thereafter, Defendant initiated its first-ever review of the shotgun logs of its special agents, including Plaintiff, from October 1, 2015, through March 31, 2016. (Id.) Pursuant to Defendant's policy (which was put in place in 2009), shotgun logs were to be kept by all special agents who carried a shotgun, and were to be reviewed and signed by all supervisors. (Id.) Since 2013, Plaintiff had not filled out a shotgun log because he had not regularly carried a shotgun. (Id.) Defendant conducted an intensive investigation of Plaintiff in June of 2016, then brought disciplinary charges against him for (1) not logging out a shotgun in August 2015 (three months before the beginning of the audit period), and (2) violating the shotgun log policy in March 2016 based on the testimony of his supervisor (to whom Plaintiff had made a safety complaint). (Id.) No similar investigation was made against Defendant's other employees, despite the fact that Plaintiff's direct supervisor (Sergeant Seymour) himself was found to have not reviewed shotgun logs on a monthly basis as required by the policy. (Id.) After finding Plaintiff guilty of the disciplinary charges, Defendant reprimanded him. (Id.) Call to Mechanicsville On June 9, 2016, while on duty as a special agent working for Defendant, Plaintiff received a call from Defendant's dispatcher directing him to go Mechanicsville, New York, to investigate a report of teenage trespassers allegedly placing debris on the train tracks. (Id.) Plaintiff responded to the call, worked with local law enforcement, and checked the area for more than an hour. (Id.) After determining that the area was clear, Plaintiff called the train crew on the radio and was informed that the train had passed the area without any issue. (Id.) As a result, Plaintiff closed the call and deemed the issue resolved. (Id.) Shortly thereafter, Plaintiff's supervisor, Commander Szymaszek, inquired about the events in Mechanicsville, and Plaintiff advised him that the matter had been resolved without issue. (Id.) On June 19, 2016, Defendant brought a disciplinary charge against Plaintiff for deceit in his conversation with Commander Szymaszek based on the fact that Plaintiff had not responded to the actual location of the call. (Id.) After being informed of the charges, Plaintiff informed his supervisors that the dispatcher had sent him to the wrong location. (Id.) Plaintiff's supervisor listened to the dispatch tape and found that Plaintiff had indeed been sent to the wrong location. (Id.) However, Defendant did not provide this information to Plaintiff or his representatives. (Id.) Instead, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 197 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 after an investigation and hearing, Defendant terminated Plaintiff's employment. (Id.) Claims Generally, based on these factual allegations, the Complaint asserts the following two claims: (1) a claim that Plaintiff was discriminatorily reprimanded for reporting, in good faith, a hazardous safety condition in violation of the Federal Railway and Safety Act, 49 U.S.C. § 20109(1)(A) (“FRSA”); and (2) a claim that Plaintiff was discriminatorily terminated for reporting, in good faith, a hazardous safety condition, also in violation of the FRSA. (Id.) B. Statement of Undisputed Material Facts Unless otherwise noted, the following facts were asserted and supported by Defendant in its Rule 7.1 Statement and not successfully denied by Plaintiff in a Rule 7.1 Response that both matched the paragraphs of Defendant's Rule 7.1 Statement and specifically cited the record where the factual issue arises, as required by Local Rule 7.1(c) of the Local Rules of Practice for this Court. (Compare Dkt. No. 15 [Def.'s Rule 7.1 Statement] with Dkt. No. 24 [Plf.’s Rule 7.1 Response].) The Parties 1. The Delaware & Hudson Railway Company, Inc. d/b/ a Canadian Pacific (“CP” or “D&H”) is a Class I railroad providing freight rail transportation services in parts of the United States. On September 18, 2015, CP sold the southern portion of the D&H to another Class I Railroad, which covered 280 miles of Defendant's rail track and included operations in Pennsylvania. Since the fall of 2015, CP has operated only in New York. 1 *3 2. To ensure and promote railway safety, Defendant has its own “CP Police Services” (“CPPS”) railway law enforcement agency that works closely with communities, other law enforcement, and government agencies across the rails where it operates. CPPS's mission is to protect CP's employees, property and passengers, and the lading of its customers. CP operates 24 hours per day and 7 days per week. 2 3. CPPS has police detachments in various locations in the U.S., which provide law enforcement services to multiple separate subsidiary entities, including the D&H and Soo Line Railroad Company. 4. In addition to the detachment on the D&H, CPPS also has U.S. detachments located in the following locations: Detroit, Michigan; Bensenville, Illinois; and several other U.S. locations. 5. The police detachment on the D&H is the only unionized detachment for which the terms and conditions of employment for its Special Agents, like Plaintiff, are governed by a Collective Bargaining Agreement (the “CBA”). The CBA is between the D&H and the Police Department employees represented by the Allied Services Division of the Transportation Communications International Union (the “Union”). 6. Plaintiff worked in law enforcement for Defendant as a Special Agent in the CPPS Northeast U.S. District (out of the “Albany Detachment”). 7. Plaintiff was employed by Defendant from June 2001 until September 2016. 8. For approximately one-and-one-half years, Plaintiff worked part-time for the Ballston Spa Police Department while he was also employed with CP. More specifically, he worked the midnight shift (11 p.m. to 7 a.m.) at the Ballston Spa Police Department on his days off from his CP schedule. The Albany CPPS Police Detachment 9. The CPPS for the D&H was historically comprised of police detachments in the following locations: Taylor, Pennsylvania; Binghamton, New York; Oneonta, New York; Buffalo, New York; Albany, New York; and Clifton Park, New York. 3 10. During Plaintiff's employment, CP employed Special Agents Edward Niedziejko and REDACTION 1 in Albany, New York and two Special Agents, REDACTION 2 and REDACTION 3, in Taylor, Pennsylvania. 4 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 198 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 *4 11. From around the time he started with CP until September 2015, Plaintiff and REDACTION 1 were the only two Special Agents in the Albany detachment. 5 12. For approximately two years following the retirement of the then-manager of the Albany detachment until September 2015, Special Agent REDACTION 2 served as acting manager to oversee the day-to-day activities of the Pennsylvania and New York detachments on the D&H. However, he remained a union employee during this time. 13. Further, as noted above, REDACTION 2 worked out of the Pennsylvania detachment. The Albany and Pennsylvania detachments ultimately reported to District Inspector Dennis Szymaszek, who worked out of Detroit, Michigan. 6 Defendant Sells the Southern Part of Its Rail Line, Which Results in Less Territory to Cover and the Albany Detachment Gaining an Additional Special Agent *5 14. In and around mid-November 2014, D&H announced it was selling the southern portion of its rail line to another Class I rail carrier, the Norfolk Southern (“NS”). 7 15. After review and approval was obtained from the U.S. Surface Transportation Board on May 15, 2015, the sale was completed on September 18, 2015. 8 16. At that time, REDACTION 2, out of the Pennsylvania detachment, left CP and took a position with Norfolk Southern (“NS”). The other Pennsylvania Special Agent, REDACTION 3, remained employed with CP, but moved to the Albany detachment following the sale. 17. Accordingly, as of mid-September 2015, CP increased its Special Agents in the Albany detachment from two to three agents. 9 Supervisory Structure Changes at the Albany Police Detachment 18. Sergeant Seymour has been employed with CP since 2004. 10 19. Sergeant Seymour worked as a Special Agent (then titled “Inspector”) from 2004 through 2011, at which time he took a position in management as Senior Investigator in Charge (later titled “Sergeant”). 20. Beginning in 2011, in his new role as Senior Investigator, he began supervising the police officers/Special Agents of the Detroit, Michigan, detachment. He works out of the Allen Park, Michigan, detachment office. 11 *6 21. In September 2015, Sergeant Seymour was given additional responsibility to temporarily supervise the Albany detachment. 22. In and around February 2016, Sergeant Seymour was permanently named as supervisor for the Albany detachment. He remained in that position during the times relevant to this matter. Sergeant Seymour continued to reside, work, and supervise the Detroit detachment, but the Albany detachment was added to his supervisory responsibilities. 23. Because the Special Agents working out of the Detroit, Michigan, detachment are not unionized, this was Sergeant Seymour's first experience supervising unionized employees. 12 24. Also around this time, Bobby Walker was hired as the new Deputy Chief following his predecessor's retirement. 13 Plaintiff's Unionized Employment with CP 25. Plaintiff began working for Defendant in its CPPS unit in 2001. 26. He began his CP employment as a Special Agent and remained employed in this Unionized position at all times relevant to this matter. 27. Before working for CP, Plaintiff worked in law enforcement as a police officer for the New York State Park Police and the Corinth Police Department. 28. Plaintiff testified that, in his capacity as a police officer and Special Agent, he appreciated and understood the need to be truthful and credible. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 199 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 29. Plaintiff testified that his positions as a police officer and Special Agent involved testifying in a court of law, which he was familiar with and had done with regularity, including while employed at CP. 30. Plaintiff worked as a Special Agent until his dismissal on September 9, 2016. 14 The Special Agent Position *7 31. Special Agent duties include handling of such law enforcement matters as emergency response, special events policing, risk reduction operations, investigation of criminal acts, crime prevention, and public safety programs. 15 32. Responsibilities of a CPPS Special Agent include criminal and collision investigations, emergency response to incidents and calls for service, protection of railway assets, operations and personnel, and work with other law enforcement agencies during investigations and in joint enforcement operations. Further, Special Agents must (a) maintain good working knowledge of relevant legislation, policies and procedures, (b) effectively and efficiently plan, manage and prioritize workload and conduct general and directed patrols, (c) be prepared to travel on assignments, in response to incidents and for training, (d) possess strong communication skills, and (e) prepare comprehensive reports and prosecution files and deliver court testimony. 16 33. CPPS Special Agents for Defendant in New York, including Plaintiff, have arresting power and are authorized to carry a firearm as part of their position. During their service, a CP-issued handgun is personally assigned to each Special Agent; shotguns are located in the police detachment and, pursuant to company policy, are to be signed in and out by completing a shotgun user log. 17 *8 34. As a Special Agent, Plaintiff would “protect the company's interest and minimize lawsuits against the company for people getting hurt on railroad property, trespasser accidents ... [and] [t]heft from the railroad.” 35. Communication between agents was an important aspect of being a Special Agent for CP. 18 36. The Special Agent position is considered safety- sensitive. 19 37. As a Special Agent for Defendant in New York, Plaintiff carried a firearm, and admits the importance of being honest and trustworthy. He also admits that the reports he prepared as a Special Agent were essential. The Union Collective Bargaining Agreement (“CBA”) 38. A CBA governed the terms and conditions of Plaintiff's employment with CP. 39. As a CPPS employee, Plaintiff was represented by the Union. The Union and CP negotiated the terms and conditions of Plaintiff's employment as Special Agent pursuant to the CBA. 40. One of the contractual provisions of the CBA provides Union employees, like Plaintiff, the right to a fair and impartial hearing before the imposition of any discipline. 20 41. The purpose of the formal hearing is to develop the facts regarding the incident and determine the employee's responsibility, if any, in connection with the incident. 42. Union employees, like Plaintiff, can be represented at a formal investigation/hearing by a Union representative, and have the opportunity to present their cases through testimony, exhibits, witnesses, and cross-examination. 43. The CBA also affords Union employees the opportunity to appeal any determination made pursuant to a formal investigation/hearing up to the highest designated officer of the company. 44. If an employee is not satisfied with the outcome of his/ her appeal, the CBA permits him/her to further appeal the decision to a federal arbitration panel under the Railway Labor Act (“RLA”). *9 45. Plaintiff exercised his right to appeal his dismissal. 46. The CBA contains terms such as rates of pay, seniority, vacation, overtime, benefits and other terms as set forth in the contract. For instance, Article 16 of the CBA addresses “Changing Assigned Starting Time and Rest Days,” Article 21 addresses “Hours of Work,” Article 23 addresses the “Work Week,” and three separate Articles of the CBA (Articles 24, 25 and 26) are devoted exclusively to Overtime. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 200 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 More specifically, Article 24 outlines when and under what circumstances work will qualify as Overtime, Article 25 addresses “Absorbing Overtime,” and Article 26 addresses “Authorizing Overtime.” Further, Article 41 of the CBA addresses Health and Safety, stating, inter alia, that “[t]he health and safety of employees shall be protected. Employees will not be required to work under unsafe or unhealthy conditions.” 21 47. If a dispute or issue arose in connection with terms of the CBA, the CBA had a procedure that governed how to grieve or resolve it. 22 48. Plaintiff received a copy of the CBA while employed at CP. Relevant CPPS Policies & Procedures Manual 49. The CPPS mission is to assist Canadian Pacific to become the safest and most reliable railway in North America by enhancing public safety, supporting service reliability by reducing train delay, protecting railway personnel, assets, operations and information, and enforcing the law and bringing offenders to justice. 23 50. Because it is the responsibility of all Canadian Pacific Police Service Employees to protect life, property and railway operations through expeditious and appropriate response to reported incidents, Defendant has a policy requiring that employees document all calls for service and subsequent responses accurately and appropriately. 24 *10 51. The Code of Conduct contained at Section 1.2.1 of the CPPS Policy & Procedures Manual (“CPPS”) provides that “Neglect of Duty” includes “[f]ailing to report a matter that is a member's duty to report[, or] [o]mitting to make necessary entries in a book or record.” The same section of the CPPS Manual also defines “Deceit” as including, but not limited to, “[k]nowingly making or signing false or misleading statements in any report or record,” or “[w]illfully or negligently making false, misleading or inaccurate statements pertaining to [the employee's] job duties.” 25 52. Section 3.3 of the CPPS Manual pertaining to Firearms provides that, “[s]hotguns may be carried in CPPS vehicles by members ... [and] [a] member will sign out a shotgun by completing the User Log.” 26 53. A CPPS Service Order issued June 17, 2009, and effective since July 1, 2009, outlines the CPPS Shotgun Policy which further provides that “[a] shotgun user form ... will be maintained at every detachment. Members will sign out a shotgun at the commencement of duty and sign back in at the end of duty.” 27 54. The shotgun user logs serve a number of important and legitimate purposes, including tracking frequency of use, condition of the weapon, recorded maintenance, and serviceability issues, and identifying who the users of the equipment were during a specific time period. 28 *11 55. Plaintiff acknowledged receipt of the CPPS Policy and Procedure Manual. 56. Plaintiff is familiar with the rule and policy regarding the shotgun user log requirement. 29 57. CPPS Police Headquarters periodically directs audits to be conducted of the shotgun user logs for CPPS detachments. 30 58. One such audit of shotgun user logs was ordered for all CPPS detachments across the United States (and Canada) in June 2016 concerning the time period from October 1, 2015, to March 31, 2016. Information discovered through this regular system-wide audit gave CP reason to notice Plaintiff for hearing under the CBA as discussed herein. 31 59. The 2016 Shotgun User Logs Audit was not the first shotgun user log audit headquarters had conducted, a prior one having been conducted in 2013. 32 Plaintiff's Prior Counseling and Performance Coaching 60. In a performance evaluation of Plaintiff's from 2004, while rating Plaintiff's communications and interactions skills, his then-supervisor commented as follows: “Uses communication breakdowns to excuse failures. Does not take constructive criticism or corrections well. Needs to take responsibility for situations and act responsibly. Trust? Is trust an issue? With him? About him? Discussed same.” Moreover, while rating Plaintiff's goalsetting and commitment to task, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 201 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Plaintiff's then-supervisor commented as follows: “Needs to take the lead, see things, change things, do things, report things. Don't always wait for direction.” 33 *12 61. In a prior email to Plaintiff from 2003, his then- supervisor followed up with him regarding a report that had not been completed by Plaintiff in the time or manner expected by the then-supervisor. 34 62. In another email to Plaintiff, his then-supervisor corrected a case number misidentified by Plaintiff on a report and said, “Please remember what I said about the accuracy of reports. It is essential to what we do.” 35 63. Plaintiff admits that a citizen lodged an Unsafe Vehicle Operation Complaint against him during his employment in 2006, which his then-supervisor met with him about. 64. During the time period from September through the end of December 2015, Plaintiff's new supervisor, Sergeant Seymour, found the Albany detachment lacking in many areas and he began working with the Special Agents there to bring them up to CPPS standards. This included reminders and coaching on such tasks and responsibilities as vehicle inspections, booking travel, where to focus policing efforts, and following CPPS policies generally. Sergeant Seymour stated that the New York detachment was “lacking of maybe some previous oversight.” 36 65. District Inspector Dennis Szymaszek and Sergeant Seymour held a video conference call with the three New York Special Agents in February 2016 to discuss performance issues. Sergeant Seymour recalls this meeting as a discussion of the detachment's “shortcomings.” 37 *13 66. On February 29, 2016, Sergeant Seymour advised Plaintiff that his e-mail signature was not compliant with the CPPS policy that had been published several years before then. 38 67. On March 1, 2016, Plaintiff was one of several who had to be reminded to submit his First Aid Certification. 39 68. In mid-March 2016, when performance of the group was still not meeting CPPS expectations, Sergeant Seymour had individual phone conversations with each agent, including Plaintiff, followed by an email on March 16, 2016, to summarize the calls. This email stated as follows: Since taking over Sgt. duties for NY, in the last 6 months, we've had several instances of policy and procedure violations, disregarding instructions, disregarding the schedule and a general lack of knowledge of equipment, processes and policy. Not all apply to all of you equally but it is very clear we are far from where you need to be as a detachment and it is noticed above Dennis and I. This is not the kind of notice you want. 69. On March 28, 2016, Sergeant Seymour e-mailed the NY agents, including Plaintiff, about overdue reports and the importance of completing them on time, which he noted that he had already discussed with them. 40 70. On May 11, 2016, Deputy Chief Walker met with the New York agents individually, followed by a group meeting to impress upon them the importance of following CPPS policy and procedure. *14 71. In May of 2016 Sergeant Seymour counselled Plaintiff on items including, but not limited to, “starting work on time on the property[,] [s]tarting ... and ending at the scheduled shift[,] [n]ot changing shifts without notification[,] [f]ollowing up on various incidents[,] and [s]preading out patrols and enforcement efforts.” Sergeant Seymour further noted that the New York agents had “a stretch of territory and they would maybe, for example, focus on a handful of locations that we weren't having any issues with.” Sergeant Seymour coached Plaintiff in his May 2016 review that he was “at risk of failing to complete many goals.” 41 72. On July 19, 2016, Sergeant Seymour followed up with Plaintiff and said, “I still need your vehicle log.” CPPS Conducts Shotgun User Log Audit in June 2016, Which Leads to CBA Hearing for Plaintiff's Alleged Violation of Maintaining Shotgun Log Policy 73. In early June 2016, CPPS Headquarters conducted an audit of the shotgun user logs. The audit requested managers Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 202 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 of all the various detachments to forward shotgun user logs to Staff Sergeant Jason Drader. 42 74. On June 6, 2016, Sergeant Seymour forwarded the shotgun user logs for the Detroit detachment in response to Staff Sergeant Drader's request and indicated he was working on getting the New York logs sent to him. 43 75. On June 8, 2016, after trying to obtain them through other means, Sergeant Seymour asked Plaintiff to scan and send him the shotgun user logs for the Albany detachment. However, Plaintiff responded that he does not carry a shotgun. In that e-mail dated June 8, 2016, Plaintiff wrote, “We don't have a shotgun user log at the detachment. REDACTION 3 and myself don't carry a shotgun and they are in the Clifton Park Office. REDACTION 1 has the other shotgun in his vehicle and does a log on his computer.” 44 76. Sergeant Seymour conducted further review of the matter and, on June 15, 2016, asked Plaintiff when he had last carried a shotgun. By e-mail response on June 15, 2016, Plaintiff said he had not carried a shotgun since February 20, 2013, and he supplied a shotgun log showing his last date of use as February 20, 2013. 45 77. Based on the information received, Sergeant Seymour prepared and sent a written summary to the Inspector of Professional Standards, Training & Personnel, Douglas Kinloch. The summary detailed the facts and information pertaining to the shotgun user log matter and asked Inspector Kinloch for his assessment of whether the matter warranted a hearing pursuant to the CBA. 46 *15 78. A hearing notice was issued to Plaintiff pursuant to the CBA by letter dated June 17, 2016. 47 79. The June 17, 2016, hearing notice advised Plaintiff that he was to attend a formal hearing pursuant to the CBA to determine his responsibility, if any, and whether he violated any Company Rules or Polices in connection with his alleged failure to complete shotgun user logs for the period covering August 2015 to March 2016. 48 80. At Plaintiff's request, the hearing was rescheduled from June 23, 2016, to August 18, 2016. Plaintiff was represented by his Union at the hearing. During the hearing, Plaintiff had an opportunity to provide testimony, present exhibits, and question and cross-examine witnesses. 49 81. The following facts were confirmed and/or newly revealed during the hearing of August 18, 2016: a. the fact that, on June 8, 2016, pursuant to CPPS headquarters' directive that an audit be conducted of the shotgun user logs, Sergeant Seymour asked Plaintiff for a copy of the shotgun user logs for the Albany detachment; b. the fact that Plaintiff responded, however, that he does not carry a shotgun and has not done so since February 20, 2013; c. the fact that he supplied a shotgun log showing his last date of use on February 20, 2013; d. the fact that District Inspector Szymaszek also testified that, on at least two occasions–August 26, 2015, and September 16, 2015–he personally saw Plaintiff with a shotgun in his vehicle; e. the fact that, indeed, at the CBA hearing, when questioned about his possession of a shotgun between August 25, 2015, and September 16, 2015, Plaintiff admitted that he had carried a shotgun and failed to fill out the shotgun user log; f. the fact that, more specifically, Plaintiff admitted that he met with the District Inspector on August 26, 2015, and September 16, 2015; g. the fact that he also admitted to switching out his shotgun on both dates and that he failed to complete a user log either time; h. the fact that Plaintiff's only defense was that he was told sometime around February 2013 that he did not have to follow the shotgun log policy; however, he offered no evidence, other than his own testimony, to support this statement; i. the fact that Plaintiff testified that Sergeant Seymour “knew that wasn't true” when trying to explain the inconsistency of his assertion in his e-mail reply that he last carried a shotgun on February 20, 2013, with his testimony during the CBA hearing that he carried a shotgun on August 25, 2015, and September 16, 2015; Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 203 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 j. the fact that Plaintiff received the CPPS Manual and acknowledged receipt of such as well as of the shotgun user log policy on October 15, 2013; and *16 k. the fact that Plaintiff had, in fact, carried a shotgun after February 20, 2013, despite his written statements to Sergeant Seymour to the contrary, and admitted that he did not complete a shotgun log on any occasion that he carried a shotgun after February 20, 2013. 50 82. By letter dated September 9, 2016, CP issued Plaintiff a reprimand for his failure to comply with the shotgun user log policy in 2016. 51 83. Plaintiff was not pulled from service at any time in connection with the shotgun log incident. He was not suspended. He suffered no loss of pay. He lost no benefits. His hours of work were not affected, and Plaintiff continued working as a Special Agent. Events Leading to Plaintiff's Dismissal for Established Rule Violation Pursuant to CBA Procedure 84. On June 10, 2016, District Inspector Szymaszek was reviewing a CP Police Incident Report and observed that, on the previous day, June 9, 2016, a train crew had reported that a group of juveniles had placed obstructions on a track, the train had stopped, and the train crew had requested police support to assist. 52 85. Plaintiff and local police were notified. 53 86. Plaintiff reported to the CP dispatch that he had responded to the location, that the track was clear, and that the youths were gone when he arrived. 54 87. On June 10, 2016, District Inspector Szymaszek asked to discuss the incident by phone with Plaintiff to follow-up and see if there was a need to complete a train-delay report. 88. Plaintiff contacted District Inspector Szymaszek by phone, discussed the incident with him, and said there was no need for continued investigation. 89. District Inspector Szymaszek instructed Plaintiff to obtain the train crew information, interview the crew to see if there was a description of the youths, gather train delay information, and gather any other relevant information. 55 *17 90. Having not received the follow-up information he requested, District Inspector Szymaszek followed up himself on Monday, June 13, 2016. He called the police dispatch and learned that Plaintiff had been dispatched to the wrong location on June 9, 2016, and never went to the scene of the actual reported track obstructions. 56 91. District Inspector Szymaszek's continued investigation revealed that, while Plaintiff was at the wrong location on June 9, 2016, the train crew informed him by radio that he had been dispatched to the wrong location. 92. Plaintiff confirmed this record of events, noting that he learned of the correct location from the crew engineer, who told him that there were kids around the train crossing but that the train did not have to slow or stop. 93. Plaintiff also confirmed that the CBA hearing transcript would accurately reflect the events on June 9, 2016. 94. District Inspector Szymaszek contacted the local Mechanicsville Police Department, spoke with the officer who had responded to the incident, and obtained a copy of his report. 57 95. The responding police officer's report confirmed that, on June 9, 2016, Plaintiff became aware that he had been dispatched to the wrong location and that he was given the correct location when he arrived on the scene in Mechanicsville. 58 96. Plaintiff never went to the correct location. 97. On June 9, 2016, and the following days, Plaintiff never told dispatch or District Inspector Szymaszek that, when he reported that the track was clear and youths were gone, he was actually referring to the location to which he was dispatched as opposed to the location of the incident. 59 98. Plaintiff claims that he “used officer discretion to say well, the call's handled.” 99. On June 18, 2016, District Inspector Szymaszek sent a written summary of his field investigation of the incident Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 204 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 of June 9-10, 2016, described above, to the Inspector of Professional Standards, Training & Personnel, Doug Kinloch. 100. This written summary outlined the steps District Inspector Szymaszek took to investigate the incident. 60 *18 101. Plaintiff was noticed for hearing regarding the incident of June 9, 2016. 61 102. A formal hearing was held on August 18, 2016. At the formal hearing, Plaintiff was represented by his union and had an opportunity to provide a statement and question and cross- examine witnesses. 103. In addition to the above, five facts were confirmed and/or newly revealed at the CBA hearing or confirmed by Plaintiff in his statement. 62 a. Specifically, Plaintiff stated as follows: Q: So, Mr. Niedziejko can you explain ah, did you in fact receive information that the correct location for this incident was in Watervliet, New York? A: Yes. Q: Did you respond to that location and investigate whether or not there is debris on the track? Whether there is any youth in the area? A: No, I didn't respond. b. Plaintiff also stated as follows: Q: Okay. Did you inform the PCC that the actual location of occurrence was in Watervliet? A: No. So much time had passed at that point. They gave me the wrong information to begin with. c. On June 9, 2016, Plaintiff's shift was from 4 p.m. to 2 a.m., and the incident was reported at 5:32 p.m. Plaintiff testified that, later during that shift, he drove by the area of the incident in Watervliet (approximately thirteen miles from Mechanicsville) twice without going to the correct location to investigate. In addition, Plaintiff testified that at least several hours remained in his shift after he cleared the scene in Mechanicsville. d. At the hearing, Plaintiff further admitted to not disclosing to District Inspector Szymaszek on June 10, 2016, during their phone call that he had initially been dispatched to the wrong location. Instead, Plaintiff stated as follows: Q: Alright [sic]. And he mentioned deceit because you didn't tell him where it was actually at. Why didn't you tell him the incident, where the incident actually occurred in Watervliet? A: It was a short call and I was basically cut off. e. When asked why Plaintiff did not go to the site at any time or make a report of any form in connection with Watervliet, he replied, “I didn't feel there was a need because there was no criminal activity. There was, there was, as I understood it, there was no track obstruction. From the crew, they said that from their own statements that there was [sic] kids around the tracks. And like I stated earlier there's kids around the tracks in all cities on the railroad.” 104. It is undisputed that Plaintiff did not go to the correct location of the reported track incident in Watervliet. 63 CP's Post-Hearing Multi-Level Review Concluding that Plaintiff Violated Multiple CPPS Policies Including Neglect of Duty and Deceit, Warranting Dismissal *19 105. Todd Law served as the hearing officer for the hearing held on August 18, 2016, at 1 p.m. 106. Following the hearing, Law concluded that Plaintiff was in violation of CPPS Policy 1.2.1 through .4 (Code of Conduct: Inappropriate conduct, Insubordination, Neglect of Duty, and Deceit), 3.4 (Incident Management), and 3.51 (Investigations). 64 107. Following a review of this conclusion, CP determined that the record supported it. 65 108. Sergeant Seymour was not a decision-maker in the decision to terminate Plaintiff's employment. 66 109. As set forth in the letter of September 9, 2016, CP made the decision to terminate Plaintiff's employment with CPPS effective immediately. 67 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 205 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 Plaintiff's Claimed Protected Activity 110. In his Complaint, Plaintiff alleges that he took issue with CP's on-call and scheduling decisions. *20 111. Aside from alleging that he spoke with his Union co-worker, REDACTION 3, who was also the Union representative but who was not a CP manager, Plaintiff makes only one allegation of a specific conversation he had with a CP manager in paragraph 21 of his Complaint. Plaintiff alleges that, “[o]n or about March 30, 2016, Plaintiff informed his supervisor, Sgt. Seymour in Detroit, Michigan that he had a safety complaint about the manner in which he was being scheduled to work including the need to work excessive overtime and being on call without a break, or time off.” 112. Plaintiff's unsworn “affidavit,” filed in support of his opposition to CP's motion for summary decision before the ALJ in this matter, described an alleged “Spring of 2016” conversation in which he states that he and REDACTION 3 “had a conversation with Sgt. Seymour in Detroit, Michigan about scheduling, overtime, and other union issues.” 68 113. Sergeant Seymour recalls no conversation during which Plaintiff attributed his complaining about his scheduled on- call hours to a hazardous safety concern. 114. In his OSHA complaint, Plaintiff identified two periods in June and July of 2016 in which he allegedly was on-call for extended periods of time. 69 115. In his OSHA complaint and objections to the OSHA dismissal, the only specific dates that Plaintiff complains about being on-call for an extended period relate to a “two- three week[ ]” period in June/July 2016. This on-call rotation Plaintiff describes from June/July 2016 was a deviation from the normal course of business due to two other Special Agents out of the Albany detachment being on leave during such time. 70 116. Sergeant Seymour recalls that it would be “quite rare” for a New York Special Agent to be called to do a job while they were on call. 71 117. Sergeant Seymour recalled generalized complaints in the NY detachment about Sergeant Seymour's remote supervision (from Detroit) and the fact that the New York agents felt they had to perform additional work as a result (e.g., completing vehicle logs and faxing them to Sergeant Seymour). 72 118. Notably, even these types of non-safety-related complaints that Sergeant Seymour recalls, came from a different New York Special Agent and not Plaintiff himself. 73 *21 119. Plaintiff admits that, when they had issues as a group, the detachment would discuss filing a grievance “because [management is] not following certain procedures and scheduling issues and stuff like that.” 74 120. Plaintiff has had at least five opportunities to set forth what alleged complaints about safety he allegedly made to CP management: 75 (1) he provided a statement at his CBA disciplinary hearing; (2) he filed an OSHA complaint with a written narrative; (3) when OSHA found no probable cause for his allegations, he appealed the OSHA complaint with a similar written narrative; 76 (4) during the course of discovery related to his OSHA appeal, Plaintiff gave sworn testimony through a deposition; and (5) in opposition to CP's motion for summary decision before the ALJ, Plaintiff filed an unsworn affidavit in support of his opposition memorandum. 121. Plaintiff testified that he never personally made a complaint about a hazardous safety-related concern. In fact, he testified to the contrary on the following occasions: a. In his deposition, he testified as follows: Q: When you say it's a safety concern, can you tell me, specifically, you, yourself, when you personally, if ever, told a C.P. manager that? A: I told my union rep because they wanted us to follow the chain of command, so. b. He also testified as follows: Q: ... you personally didn't directly speak to them about the issue? A: No. Q: Do you know what, if anything, the topic of any other union grievances were, aside from the–the scheduling on-call issue? Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 206 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 A: No. I–I–I'm not sure. c. He also testified as follows: Q: Well, do you remember talking about that grievance you mentioned in early 2015 that your union– A: I–you're going to have to speak– Q: –that you–? A: –you're going to have to speak with REDACTION 3 in reference to what was filed, when it was filed all that kind of stuff. Q: Okay. Well here's–here's my question. Other–other than that grievance relating to the scheduling and on-call, my question is it–other than that, are there any other reports that you haven't raised or talked about today, that you claim to have made that you claim consist–or constitute a hazardous safety railroad-security concern, that you brought to C.P. management's attention? A: The union did. Q: It would only be the union? A: They want– Q: Not you? A: –they–they wanted to use the chain of command, so that's how we did it. Q: Okay. So, in–to the extent any such reports exist, they come through the union, is what you're saying and your recollection is they are contained in this grievance from early 2015? *22 A: I–I don't know. Q: Okay. You–you can't speak to any personal reports, you individual[ly] and personally made to C.P. management? A: No. d. He also testified that he never made any reports to Human Resources during his employment with CP. e. He also testified that he cannot speak to, recall, or reference any “personal reports” that he, “individually and personally made to CP management.” f. He also responded, “No,” when asked specifically about the alleged safety concerns about which he now claims as protected activity and whether he ever personally spoke to any CP manager directly. g. Finally, he offered the following explanation for this alleged “safety concern”: “[Dennis and Kevin] would always have a different interpretation of the contract.” 77 122. Plaintiff produced an email he sent to Deputy Chief Walker on May 18, 2016, following a meeting in Albany, New York. The email, however, was about current practices on how members record their daily and weekly activities and looking for ways to “make it more efficient for the members and the police service.” The email makes no reference to anything “unsafe” or “hazardous.” Indeed, Plaintiff admitted during his deposition that his email makes no “hazardous-condition report[ ],” or claims “any kind of safety hazard.” 123. Despite the above sworn testimony and other evidence in this case, Plaintiff now alleges in his Complaint that, in March 2016, he complained to Sergeant Seymour about his overtime and on-call schedule, and that he told Sergeant Seymour this was a “safety complaint.” 78 124. In his objections to OSHA's dismissal order, Plaintiff stated, “Our union representative has told District Inspector Szymaszek that they are running us ragged and it is against labor laws to have us work so many days in a row without complete days off.” 79 125. District Inspector Szymaszek does not believe he received any complaints about the on-call procedures in place between September 2015 and September 2016 in the Albany detachment, and at no point in time did he become aware that Plaintiff had complained that he was experiencing health issues related to the hours of work and hours of being on-call; and Sergeant Seymour does not recall receiving any complaints regarding the on-call procedures in place between September 2015 and September 2016 in the Albany detachment, nor was he aware of any safety hazards between September 2015 to July 2016. 80 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 207 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 *23 126. Sergeant Seymour recalls speaking with the Union representative, Mary Gunn, during which she communicated that the agents had an issue with Sergeant Seymour's “remote supervision” (from Detroit) and that the other detachments with an on-site supervisor did not have to do some of the things being asked of the New York agents, “such as scanning their vehicle logs and sending them to [Sergeant Seymour.]” 81 127. Sergeant Seymour testified that even this type of complaint, as communicated from the union representative, referred to the New York agents collectively or “some of the guys” and nothing was specific to Plaintiff. 82 128. Similarly, Plaintiff testified that the New York detachment supervisors were “trying to supervise from, you know, a thousand miles away.” 129. Plaintiff further testified that he does not know Mary Gunn. 130. Plaintiff offers no evidence of having engaged in FRSA protected activity, except that he recalls that, sometime in “early 2015,” he believes a grievance was filed; he offers no details about the grievance, what was contained in the grievance, or whether Defendant ever received such a grievance. 83 131. CP's Labor Relations department has no record of any union grievance or other communication from the union on behalf of Plaintiff alleging claims or complaints relating to a hazardous safety issue or concern. 84 132. In his OSHA complaint of June 21, 2016, Plaintiff alleged that his protected activity refers to a Union grievance filed on behalf of the collective group of New York Special Agents, which was submitted by the Union in “early 2015.” 133. In his deposition, Plaintiff testified as follows: Q: I'd like to know from you, what evidence you have, or facts and circumstances you're going to rely on, to claim that your termination was intentional retaliation for this grievance you reference was made in early 2015. A: Well, if you look at the form–the facts of the case, I mean, this all started when Dennis and Kevin took over, basically. We never had any issues with the company before these two. Q: Anything else? A: Not that I can recall right now. 134. Plaintiff's Complaint in this action does not allege that a formal Union safety grievance was filed in “early 2015.” Instead, the Complaint alleges that “[s]tarting in March 2016 and continuing into June 2016, Mr. Niedziejko and his fellow employees including but not limited to Michael Savokinas made several complaints regarding the safety of the work practice of having workers stay on call without days off and limitation for extended periods of time.” Plaintiff's Complaint also does not allege other previously asserted complaints about dispatch, triplicate documentation, remote supervision, and purported age discrimination. 85 135. Plaintiff alleges he was overworked with his on-call schedule. Plaintiff's OSHA complaint identifies two specific periods of time during which, he was “on call” for a consecutive period (June 8, 2016, through June 26, 2016, and July 6, 2016, through July 17, 2016). Plaintiff's Complaint describes this same discrete period beginning June 2016. 86 *24 136. Notably, Plaintiff was off for one-week vacations the week leading up to each of these on-call periods of time. Specifically, he was on vacation from May 29, 2016, through June 7, 2016, and again from June 26, 2016, through July 5, 2016. 87 137. Plaintiff admits that, during the approximately eighteen months that preceded his termination, he worked the midnight-shift as a part-time police officer for the Ballston Spa Police Department on his days off from CP. Plaintiff's Filing of an OSHA Complaint 138. Plaintiff filed an OSHA complaint on or about June 21, 2016. 139. Plaintiff's OSHA complaint sets forth the following seven grievances: (1) being on call without days off; (2) being on call but receiving no compensation (pay) for it, and the Union representative being advised that “[u]nion members do not receive compensation for on call during days off”; (3) working so many days without complete days Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 208 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 off as being “against our [U]nion contract”; (4) needing to complete “triplicate documentation” as “only one example of the discriminatory behavior towards [U]nion members;” (5) noting that the Union “filed a grievance” over the frequent scheduling of being on call; (6) noting a meeting held with management about “scheduling, overtime and other union issues”; and (7) classifying a hearing and purported discipline as being “against the [U]nion contract” where they occur beyond 15 days of an incident. 140. At the time Plaintiff filed his OSHA complaint, Defendant had not issued any discipline to Plaintiff. 88 141. Rather, when Plaintiff filed his OSHA complaint, Defendant had only issued contractually-required hearing notices pursuant to the governing CBA for each of the separate and unrelated incidents of potential rule violations, the first regarding the alleged failure to maintain the shotgun user log, and the second relating to Plaintiff's alleged deceit and neglect of duty pertaining to his response and investigation of a track obstruction and trespasser incident on June 9, 2016. 89 142. Plaintiff testified that such hearing notices are contractually required by the CBA when an employee is charged with a disciplinary violation. 90 143. As each hearing notice advised, the hearings for the separate alleged incident violations were scheduled to take place on June 23, 2016 (shotgun allegations) and June 24, 2016 (neglect of duty and deceit allegations). 91 *25 144. However, pursuant to the Union's request– and Defendant's grant of such request–the hearing was postponed. 92 145. By email of September 13, 2016, OSHA advised CP that Plaintiff wished to amend his OSHA complaint to address his termination. 93 146. Nothing further was alleged or provided from OSHA in terms of amendment; and Plaintiff never sought to amend his OSHA complaint to challenge the reprimand issue following the hearing on the shotgun user log violation. 94 147. Plaintiff admits that (1) he was not held out of service for any period of time related to the shotgun user log incident, (2) he lost no pay, (3) he lost no benefits, (4) his hours of work were not affected, and (5) he continued working as a Special Agent with no change to the terms and conditions of his employment. OSHA Investigates and Dismisses Plaintiff's OSHA Complaint 148. OSHA conducted an independent investigation of Plaintiff's OSHA complaint, detailing Plaintiff's allegations that Defendant purportedly harassed him, improperly brought him up on charges, then terminated his employment because he (a) voiced a safety concern about the lack of Special Agents, hours on call without compensation, and lack of rest, (b) made complaints to Defendant about being dispatched to calls numerous times by the communications center, and (c) was being scrutinized by Defendant because of his age and for being a Union member. 95 149. Following such investigatory review, OSHA dismissed Plaintiff's OSHA complaint with findings and an amended decision dated July 6, 2017. 96 150. Specifically, OSHA found that Plaintiff failed to establish, inter alia, that he engaged in FRSA-protected conduct or that CP's decision to terminate his employment for the established rule violations committed in connection with the trespass and obstruction incident on June 9-10, 2016, was in retaliation for the alleged protected activity he claimed. OSHA held that *26 [Plaintiff] does not have protected activity under the FRSA. Even if it was determined that he had FRSA protected activity with [CP's] knowledge, evidence shows [CP] issued [Plaintiff] the hearing notices, sent him to a hearing then terminated his employment, for legitimate, non- retaliatory business reasons and not in retaliation for his alleged protected activity as claimed. Consequently, this complaint is dismissed. 97 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 209 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 Plaintiff Objects to OSHA's Decision to Dismiss His OSHA Complaint and Proceeds Before an Administrative Law Judge (“ALJ”) 151. Plaintiff thereafter appealed OSHA's findings and decision by request dated August 1, 2017, to the ALJ. 98 152. A discovery period ensued, which included exchange of initial disclosures by the parties, services and response to discovery requests, and production of documents including third-party records such as the past employment and medical records of Plaintiff. Plaintiff took both depositions it requested: (1) then-Sergeant Kevin Seymour, and (2) District Inspector Dennis Szymaszek. Defendant took the deposition of Plaintiff. 153. In his deposition, Plaintiff testified as follows, in pertinent part: (1) his Union representatives “were the ones advising Dennis and Kevin they couldn't be doing that, that it was a violation of the contract”; (2) the Unionized police department was a target for discrimination; (3) “Anyone who– who made any kind of grievance, or you know, objected to their way of doing things, which they weren't following the contract, so we used our right as a union member, to file a grievance because they didn't want to work with us on the scheduling”; and (4) “So it was pretty–pretty obvious. We were, you know, getting retaliated against because we wanted to enforce our union contract.” 99 154. On March 7, 2018, Defendant filed a motion for summary decision with the Office of Administrative Law Judges, to which Plaintiff submitted an opposition response and Defendant replied. 155. During a pre-trial telephone conference call, the ALJ communicated that he was holding his decision on Defendant's motion for summary decision in abeyance. 156. By separate Order dated April 27, 2018, the hearing was continued upon “conferring with the parties and with their consent” and re-scheduled to commence on June 13, 2018, in Albany, New York. 157. However, on May 25, 2018, Plaintiff filed (through counsel) a notice of intent to opt out to federal court. On June 5, 2018, the ALJ held a conference with the parties to discuss Plaintiff's notice of intent “given the timing of the filing on the eve of trial.” *27 158. On June 8, 2018, Plaintiff's counsel served Defense counsel with a copy of the Complaint he had filed in federal court the day before. 159. On June 11, 2018, the ALJ issued an Order canceling the hearing and dismissing the case with prejudice from jurisdiction of the ALJ. 160. This matter has been litigated for more than two years, since Plaintiff first filed his OSHA complaint in June 2016. During that time period, Defendant prevailed at OSHA after that department's review and investigation of Plaintiff's claim and the record has been developed through litigation before the ALJ. C. Parties' Briefing on Defendant's Motion 1. Defendant's Memorandum of Law Generally, in support of its motion to dismiss or, alternatively, for summary judgment, Defendant asserts five arguments. (See generally Dkt. No. 13 [Def.'s Mem. of Law].) First, Defendant argues that the Court lacks subject-matter jurisdiction over Plaintiff's Complaint because the Complaint is precluded by the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (1994) (“RLA”), which requires that “minor disputes” between rail carriers and their employees be arbitrated, not litigated. (Id.) More specifically, Defendant argues that disputes involving an employer's enforcement of company policies, a supervisor's instructions, or the initiation of disciplinary investigations under a collective bargaining agreement (“CBA”) are all minor disputes precluded by the RLA, and that the alleged protected activities that Plaintiff engaged in are merely Plaintiff's grievances over terms of the governing CBA. (Id.) Defendant argues that, for example, Plaintiff's claims relate to work hours, work scheduling, on-call schedule, overtime, staffing levels, pay claims, and dismissal and hearing notices, all of which are governed by the CBA and thus must be litigated pursuant to the RLA. (Id.) Second, Defendant argues that Plaintiff's Complaint fails to state a claim because it does not allege facts plausibly suggesting that he engaged in FRSA-protected activity. (Id.) More specifically, Defendant argues that OSHA exhaustively reviewed Plaintiff's grievances, which were set forth in his Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 210 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 OSHA complaint, and concluded that none of Plaintiff's asserted activities were protected by the FRSA. (Id.) Third, Defendant argues that, in the alternative, Plaintiff cannot make a prima facie showing that (a) he engaged in good-faith FRSA-protected activity before Defendant took steps to investigate Plaintiff's alleged misconduct, (b) the decision-maker(s) knew of that alleged protected activity, and (c) that the alleged protected activity was a contributing factor in the decision to dismiss him. (Id.) Regarding requirement “(a),” Defendant argues that it took steps to investigate Plaintiff's alleged misconduct before Plaintiff reported a safety violation and that, in any event, Plaintiff did not either subjectively or objectively believe the conduct he reported presented an actual hazardous safety condition at the time based on the undisputed facts (including, but not limited to, Statement of Fact Numbers 8, 17, 106, 107, 136 and 137 above). (Id.) Regarding requirement “(b),” Defendant argues that Plaintiff cannot establish that the decision-makers involved in the post-hearing multi-level review process relating to his dismissal (e.g., District Inspector Law, Deputy Chief Walker, or Chief Marchant) were personally aware of his alleged protected activity before they initiated a hearing notice (and, indeed, Plaintiff cannot recall a single “personal report” that he “individually and personally made to CP management,” see, supra, Statement of Fact Number 121[c] ). (Id.) Regarding requirement “(c),” Defendant argues that, although the crux if Plaintiff's FRSA retaliation claim is “discriminatory animus,” he cannot establish that Defendant's dismissal decision was based on such discriminatory animus given, among other things, (i) the fact that Plaintiff was coached and counseled for deficient work performance before he engaged in the alleged protected activity (see, supra, Statement of Fact Numbers 60-72), (ii) the evidence that Plaintiff's dismissal was based on his deceitful and neglectful actions in connection with the track obstruction and trespasser incident on June 9, 2016, (iii) the one-and-one-half-year lapse between Plaintiff's alleged protected activity and his dismissal, and (iv) the fact that Sergeant Seymour, with whom Plaintiff alleges he had a conversation about overtime and scheduling concerns in March 2016, was not a decision-maker with regard to Plaintiff's dismissal (see, supra, Statement of Fact Number 108). (Id.) *28 Fourth, Defendant argues that, in the alternative, it would have taken the same action regardless of Plaintiff's alleged protected activity. (Id.) More specifically, Defendant argues that the evidence from the CBA hearing established Plaintiff's non-compliance and neglect of duty in connection with his response and investigation of the track obstruction and trespasser incident on June 9, 2016, which fully warranted his dismissal regardless of any FRSA-protected activity in which he may have engaged. (Id.) Fifth, Defendant argues that, at a minimum, to the extent Plaintiff's Complaint asserts a claim arising from the reprimand he received for violation of the shotgun log policy, that portion of the Complaint must be dismissed based on (a) a failure to exhaust his administrative remedies regarding that claim (due to his failure to previously challenge the reprimand), (b) the untimeliness of that claim and (c) the fact that the reprimand did not constitute an adverse action. (Id.) 2. Plaintiff's Opposition Memorandum of Law Generally, in opposition to Defendant's motion, Plaintiff asserts two arguments. (See generally Dkt. No. 23 [Plf.’s Opp'n Mem. of Law].) First, Plaintiff argues that the RLA does not preclude a FRSA complaint. (Id.) More specifically, Plaintiff argues that the 2007 amendments to the FRSA make clear that its protection against whistleblower discrimination exists in addition to the collective bargaining remedies available to an employee under the RLA. (Id.) In addition, Plaintiff argues that the record contains evidence that he made safety complaints to decision-making supervisors, including through (a) his March 2016 conversation with District Inspector Szymaszek, (b) his separate March 2016 conversation with Sergeant Seymour in Detroit during firearms training, and (c) his conversation with Jim Thomas, in which Mr. Thomas informed him that District Inspector Szymaszek had called the Superintendent to inquire about the disciplinary process with the goal of firing and writing up Plaintiff. (Id.) Plaintiff further argues that District Inspector Szymaszek was a decision-making supervisor with regard to Plaintiff's disciplinary hearing and termination because (a) District Inspector Szymaszek sent an e-mail to Inspector Kinloch outlining his investigation and requesting a hearing, and (b) District Inspector Szymaszek was copied on the letter that put Plaintiff on notice of his disciplinary hearing. (Id.) Second, Plaintiff argues that there is evidence in the record establishing that he was reprimanded and terminated for FRSA-protected activity, which included making safety complaints about his work and on-call schedule. (Id.) More specifically, Plaintiff argues that there is evidence that he (a) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 211 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 was an exceptional police officer, (b) made complaints to the Superintendent of his police department directly and had his union representatives make complaints for him regarding safety concerns, and (c) was disciplined for those complaints. (Id.) In addition, Plaintiff argues that the Court need not accept Defendant's purportedly non-retaliatory motive for dismissing him (i.e., dishonesty) because (a) the record establishes that Defendant's allegation that Plaintiff was deceitful is without merit, (b) the record establishes that similar violations of the shotgun policy either did not result in discipline or were handled in an informal manner, (c) the temporal proximity between Plaintiff's safety complaints and the discipline is circumstantial evidence of discrimination, (d) the record establishes that Defendant withheld exculpatory evidence from Plaintiff regarding the dispatcher's error on June 9, 2016, (e) the record establishes that District Inspector Szymaszek's testimony, which formed the sole basis of Defendant's case at both of Plaintiff's disciplinary hearings, is unreliable, and (f) Defendant's attempt to take inconsequential work instructions and redefine them as reprimands is overreaching in light of Plaintiff's fourteen- year employment with Defendant during which he was not disciplined until the shotgun policy incident. (Id.) 100 3. Defendant's Reply Memorandum of Law *29 Generally, in its reply, Defendant asserts four arguments. (Dkt. No. 26 [Def.'s Reply Mem. of Law].) First, Defendant argues that Plaintiff misapprehends its RLA preemption argument and thus his FRSA claims must be dismissed. (Id.) More specifically, Defendant argues that an essential element of Plaintiff's FRSA claims is showing that he engaged in FRSA-protected activity, which Plaintiff alleges he did in the form of making complaints about on-call scheduling, staffing, and overtime. (Id.) However, Defendant argues that one cannot determine if the manner in which Defendant scheduled employees to work violated the CBA (much less created a hazardous safety condition) without interpreting or applying the negotiated CBA terms and provisions that specifically address those issues; thus, Plaintiff's claims are precluded by the RLA and must be dismissed. (Id.) Second, Defendant argues that, even if not dismissed on RLA preemption grounds, Plaintiff's FRSA claims fail on the merits because he cannot establish knowledge. (Id.) More specifically, Defendant argues that “[i]n direct contravention to his deposition testimony ... Plaintiff now claims that he directly complained about scheduling matters to Dennis Szymaszek ... and Kevin Seymour ... [b]ut even assuming these new allegations are true for purposes of this motion, Plaintiff's FRSA claim still fails because neither Szymaszek nor Seymour were actual decision-makers in Plaintiff's dismissal.” (Id.) Defendant argues that Plaintiff produced no admissible evidence that Inspector Kinloch, District Inspector Law, Deputy Chief Walker, and Chief Marchant (the decision-makers involved in Plaintiff's dismissal) knew about Plaintiff's purported safety complaints (see, e.g., supra, Statement of Fact Number 125). (Id.) Third, Defendant argues Plaintiff cannot establish a contributory cause because to do so he must establish a discriminatory animus, and here he cannot establish discriminatory animus on the current record. (Id.) More specifically, Defendant argues that Plaintiff cannot establish discriminatory animus for the following reasons: (a) his attempt to shorten the time gap between his purported safety complaints and his termination fails to establish sufficient temporal proximity to raise an inference of retaliatory intent; (b) he has failed to present admissible evidence that he personally engaged in FRSA-protected activity; (c) he has failed to present admissible evidence that any of his purported concerns were beyond CBA-contract-based grievances, which are preempted by the RLA; and (d) he has failed to present admissible evidence that the purported CBA-grievances were in any way presented or described to Defendant as a “hazardous safety condition.” (Id.) In addition, Defendant argues that, in an attempt to establish discriminatory animus, Plaintiff misstates the record in the following ways: (a) contrary to what Plaintiff argues, Sergeant Seymour is not similarly situated to Plaintiff and his testimony that he was not “reprimanded” is not inconsistent with District Inspector Szymaszek's testimony that Szymaszek “had a discussion [with Seymour] and he was [informally] counseled”; (b) contrary to what Plaintiff argues, the record contains undisputed evidence that the audit of the shotgun user logs was not manufactured or created solely for retaliatory purposes and instead was also conducted in 2013; and (c) Plaintiff's assertion that Defendant withheld exculpatory evidence is a misstatement of fact because the CBA hearing transcript reflects that District Inspector Szymaszek directly spoke of the incorrect dispatch location and there is no admissible evidence that Defendant's basis for Plaintiff's dismissal has ever shifted. (Id.) 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Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 *30 Fourth, Defendant argues that, at a minimum, Plaintiff's admissions require dismissal of his reprimand claim. (Id.) More specifically, Defendant argues that (a) in his opposition memorandum of law, Plaintiff does not oppose Defendant's challenge to this claim, and (b) indeed, he admits that he did not amend his OSHA complaint to challenge the reprimand and it is too late to do so now. (Id.) II. GOVERNING LEGAL STANDARDS A. Standard Governing Motion to Dismiss for Lack of Subject-Matter Jurisdiction Under Fed. R. Civ. P. 12(b)(1) “It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be properly dismissed for lack of subject-matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when resolving a motion to dismiss for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Makarova, 201 F.3d at 113. The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996] ). When a court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must be resolved, and inferences drawn, in favor of the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113). B. Standard Governing Motion to Dismiss for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6) It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review). Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a “short and plain statement” and requiring that the statement “show[ ]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2). On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above- described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212, n.17 (citing Supreme Court cases) (emphasis added). 101 *31 The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 213 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 19 mean that the pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id. As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Id. (citations omitted). *32 Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case. 102 C. Standard Governing Motion for Summary Judgment Under Fed. R. Civ. P. 56 Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 103 As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. *33 In determining whether a genuine dispute of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine dispute of material fact for trial. Fed. R. Civ. P. 56(a),(c),(e). Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute. Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response ... does not ... [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten the movant's burden. For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 214 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 20 supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement. 104 Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3). 105 Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possess facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). *34 Finally, the Court notes that the “principles governing admissibility of evidence do not change on a motion for summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). “[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment,” and a “district court deciding a summary judgment motion has broad discretion in choosing whether to admit evidence.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009). D. Standard Governing Plaintiff's Claims and Defendant's Defenses Because the parties have (in their memoranda of law) demonstrated an accurate understanding of the legal standards governing Plaintiff's claims and Defendant's defenses in this action, the Court will not recite those legal standards in their entirety in this Decision and Order, which is intended primarily for the review of the parties. (See generally Dkt. No. 13 [Def.'s Mem. of Law]; Dkt. No. 23 [Plf.’s Opp'n Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) Instead, the Court will merely focus on certain portions of those standards where necessary below in Part III of this Decision and Order. III. ANALYSIS For ease of analysis, the Court will first address Defendant's motion to dismiss for lack of subject-matter jurisdiction and then address each of Plaintiff's claims (first in light of Defendant's failure-to-state-a-claim arguments against them and then in light of Defendant's summary-judgment arguments asserted against them). A. Analysis of Defendant's Motion to Dismiss for Lack of Subject-Matter Jurisdiction Under Fed. R. Civ. P. 12(b)(1) After carefully considering the matter, the Court denies Defendant's motion to dismiss for lack of subject-matter jurisdiction for the reasons stated in Plaintiff's opposition memorandum of law. (Dkt. No. 23 [Plf.’s Opp'n Mem. of Law].) To those reasons, the Court adds the following analysis. The FRSA was enacted “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. In 1980, the FRSA was expanded to include amendments that prohibited rail carriers from retaliating against employees who engaged in protected activity, such as reporting safety violations. Ray v. Union Pac. R.R. Co., 971 F. Supp. 2d 869, 877 (S.D. Iowa 2013) (citing Fed. Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811 [1980] ). “Following the 1980 amendments, employees who experienced such retaliation could seek relief through the arbitration procedures set forth in RLA § 3, 45 U.S.C. § 153.” Reed v. Norfolk S. Ry. Co., 12- CV-0873, 2013 WL 1791694, at *3 (N.D. Ill. Apr. 26, 2013) (citing Fed. Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, § 212[c][1], 94 Stat. 1811, 1815 [1980].) In 2007, Congress “eliminated the requirement that retaliation claims be resolved under the RLA, and instead established an administrative procedure under which retaliation complaints are resolved by OSHA.” Welch v. Union R.R. Co., 16- CV-0431, 2016 WL 4154760, at *2 (W.D. Mo. Aug. 4, 2016) (citing 49 U.S.C. § 20109[d]; Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 630 [4th Cir. 2015] ). “The administrative procedure commences with the filing of a complaint with the DOL.” Welch, 2016 WL 4154760, at *2 (citing 49 U.S.C. § 20109[d][1] ). “[I]f the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States....” 49 U.S.C. § 20109(d)(3). The 2007 amendments also included the following addition: “Nothing Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 215 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 21 in this section preempts or diminishes any other safeguards against ... retaliation ... provided by Federal or State law.” 49 U.S.C. § 20109(g). *35 “A ‘typical case’ of retaliatory discharge will not ‘depend[ ] upon the meaning of a collective-bargaining agreement.’ ” Gilmore v. Union Pac. R.R. Co., 09-CV-2180, 2012 WL 3205233, at *4 (E.D. Cal. Aug. 2, 2012) (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 [1988] ). However, even after the 2007 amendments to the FRSA, arbitration pursuant to the RLA remains the exclusive remedy where interpretation of the CBA is required to resolve a dispute. See Brisbois v. Soo Line R.R. Co., 124 F. Supp. 3d 891, at 897-98 (D. Minn. 2015) (dismissing four of the plaintiff's claims because “[i]t would ... be impossible for the Court to adjudicate [plaintiff's] claims without interpreting provisions of the CBA–provisions that, according to [plaintiff], entitled her to these reimbursement[s] and positions and that, according to [defendant], created no such entitlement” and maintaining four of the plaintiff's claims that are independent of the CBA holding that “[t]o resolve these retaliation claims, the Court will primarily address ‘purely factual questions’ about [plaintiff's] conduct and [defendant's] motivations”); Dunn v. BNSF Ry. Co., 17-CV-0333, 2017 WL 3670559, at *4 (W.D. Wash. Aug. 25, 2017) (ordering the plaintiff to show cause why his alternative handling claim should not be dismissed for lack of subject-matter jurisdiction because it involved a “minor dispute” that required the Court to ascertain whether he was entitled to alternative handling in the first place pursuant to the CBA); cf. Powell v. Union Pac. R.R. Co., 864 F. Supp. 2d 949, 959-60 (E.D. Cal. 2012) (holding that the plaintiff's FRSA wrongful termination claim does not require interpretation of the CBA and thus is not preempted by the RLA); Ray, 971 F. Supp. 2d at 880 (holding that the plaintiff's FRSA claims were not precluded by the election of remedies provision in § 20109[f] where the plaintiff also brought an enforcement action under the RLA for rights that substantively arose under the CBA); Reed, 2013 WL 1791694, at *4-5 (quoting 45 U.S.C. § 153[i] ) (holding that arbitration under the RLA “is not an ‘election’ of a remedy” because the arbitration provisions of the RLA are mandatory and only authorize the arbitration tribunal to hear disputes “arising ‘out of the interpretation or application of [collective bargaining] agreements concerning rates of pay, rules, or working conditions[.]’ ”); Ratledge v. Norfolk S. Ry. Co., 12-CV-0402, 2013 WL 3872793, at *12-17 (E.D. Tenn. July 25, 2013) (holding that the purpose of the FRSA would be impeded by interpreting the election-of- remedies provision to extend to the RLA where the plaintiff sought relief from his dismissal pursuant to the provisions of the RLA, because the “2007 amendments [to FRSA], ... were intended to provide more protection to employees.... If [defendant's] interpretation were adopted, employees would face a choice between whistleblower protection and seeking review of CBA rights. Forcing an employee into such a choice will result in fewer § 20109 actions, and potentially insulate rail carriers from administrative or judicial review of retaliatory conduct.”). *36 Here, the Court finds that it possesses subject- jurisdiction over Plaintiff's Complaint because Plaintiff's claims are independent of the CBA and thus not subject to mandatory arbitration pursuant the RLA. “To establish a prima facie claim of retaliation under the FRSA, an employee must show by a preponderance of the evidence that he (1) engaged in protected activity as defined by the statute; (2) his employer knew that he had engaged in protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action.” Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659, 663 (S.D.N.Y. 2017) (citing Bechtel v. Admin. Review Bd., 710 F.3d 443, 447 [2d Cir. 2013]; Conrad v. CSX Transp., Inc., 824 F.3d 103, 107 [4th Cir. 2016]; Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157 [3d Cir. 2013] ). If the plaintiff satisfies all of these requirements, “then the burden shifts to the employer to demonstrate by clear and convincing evidence that the employer would have taken the same personnel action in the absence of the protected activity.” Conrad, 824 F.3d at 107. “Failure to satisfy any one of the prima facie requirements is fatal to a claim.” Lockhart, 266 F. Supp. 3d at 663 (citing Conrad 824 F.3d at 107). The Court finds that the only element of the four elements listed above that could involve the need to interpret the terms of the CBA appears to be the element of whether Plaintiff has engaged in protected activity; whether Defendant was aware of protected activity, whether Plaintiff suffered an unfavorable personnel action, and whether the protected activity was a contributing factor in that action all appear to be factual matters outside the scope of the CBA. As Plaintiff alleges in his Complaint, 49 U.S.C. § 20109(b) indicates that a railroad carrier “shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for (A) reporting, in good faith, a hazardous safety Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 216 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 22 or security condition.” 49 U.S.C. § 20109(b). Therefore, protected activity under this section would include the reporting of safety concerns, as long as those reports were made in good faith. Plaintiff's alleged protected activity included complaints about Defendant's “on-call and scheduling decisions” that allegedly caused security officers to be over-worked and without adequate rest or sleep, which decreased the security officers' ability to perform their jobs effectively and thus created an unsafe condition. See, supra, Part I.B. at ¶ 110 of this Decision and Order. While Plaintiff asserted at various times (i.e., in his OSHA complaint and during his deposition) that Defendant's on-call, scheduling, and overtime decisions were in violation of the CBA (see, e.g., Dkt. No. 18, Attach. 1, at 6-8), the Court is not required to determine the veracity of those assertions to resolve Plaintiff's claim for retaliation. More specifically, the Court need not determine whether Defendant's on-call and scheduling practices were in violation of the CBA to answer the question of whether Plaintiff engaged in protected activity when he allegedly raised “safety concerns” regarding Defendant's on-call and scheduling practices. As a result, these questions are independent of one another. See Crayton v. Long Island R.R., 05-CV-1721, 2006 WL 3833114, at *4 (E.D.N.Y. Dec. 29, 2006) (holding that, where a claim “turns on the interpretation of a provision of the CBA,” it “is substantially dependent upon an analysis of the terms of a collective bargaining agreement” and thus, precluded by the RLA). *37 Even the determination of whether Plaintiff's reports of safety concerns were made in good faith would not require interpretation of the CBA because, apart from whether Plaintiff has alleged that Defendant's on-call and other policies violated the terms of the CBA, the relevant question is whether Plaintiff had a good-faith belief that the actual fact of being on-call for extended lengths of time without days off created a hazardous safety or security condition. The Court can assess Plaintiff's belief without having to interpret the terms of the CBA. The fact that the CBA specifically states that union members cannot be required to work in unsafe conditions or otherwise proscribes certain on-call or overtime practices of Defendant does not preclude a finding of subject-matter jurisdiction because Plaintiff does not allege that conditions were unsafe in that they violated the terms set forth in the CBA; rather, Plaintiff alleges conditions were unsafe because the “excessive overtime” and on-call requirement caused fatigue that undermined his ability to perform his job safely. (Dkt. No. 1, at ¶ 9.) Therefore, to the extent that Plaintiff alleges safety concerns beyond mere failure to comply with the standards that the CBA deems to be “safe,” Plaintiff's retaliation claims are properly reviewable under the FRSA. For all of these reasons, the Court denies Defendant's motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). 106 B. Analysis of Plaintiff's Claim of Discriminatory Reprimand 1. Failure-to-State-a-Claim Analysis Under Fed. R. Civ. P. 12(b)(6) After carefully considering the matter, the Court denies this aspect of Defendant's motion to dismiss for failure to state a claim for the reasons stated in Plaintiff's memorandum of law. (Dkt. No. 23 [Plf.’s Opp'n Mem. of Law].) To those reasons, the Court adds the following analysis. Liberally construed (as all complaints must be under Fed. R. Civ. P. 8[e] ), Plaintiff's Complaint plausibly alleges FRSA- protected activity. More specifically, the Complaint alleges that “[o]n or about March 30, 2016, Plaintiff informed his supervisor, Sgt. Seymour in Detroit Michigan, that he had a safety complaint about the manner in which he was being scheduled to work, including the need to work excessive overtime and being on call without a break, or time off.” (Dkt. No. 1, at ¶ 21.) Drawing all reasonable inferences in Plaintiff's favor, as the Court must do on a motion to dismiss for failure to state a claim, the Court finds that the Complaint sufficiently alleged that Plaintiff engaged in FRSA-protected activity. 2. Summary-Judgment Analysis Under Fed. R. Civ. P. 56 a. Whether Plaintiff Engaged in Good-Faith FRSA-Protected Activity After carefully considering the matter, the Court answers this question in the negative for the reasons stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To those reasons, the Court adds the following analysis, which is intended to supplement but not supplant Defendant's reasons. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 217 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 23 As discussed above, the FRSA forbids a rail carrier from retaliating against an employee who “report[s], in good faith, a hazardous safety or security condition.” 49 U.S.C. § 20109(b)(1)(A). To establish that he engaged in protected activity, a plaintiff must demonstrate that the information he provided concerned conduct that he “reasonably believe[d] constitute[d] a violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security.” 49 U.S.C. § 20109(a) (1). “A ‘reasonable belief contains both subjective and objective components.’ ” Hernandez v. Metro-N. Commuter R.R., 74 F. Supp. 3d 576, 580 (S.D.N.Y. 2015) (quoting Nielson v. AECOM Tech. Corp., 762 F.3d 214, 221 [2d Cir. 2014] ) (holding applicable to FRSA the Second Circuit's reasonable belief standard that includes subjective and objective components from whistleblower claims brought pursuant to other statutes). “A plaintiff must ‘show not only that he believed that the conduct constituted a violation, but also that a reasonable person in his position would have believed that the conduct constituted a violation.’ ” Hernandez, 74 F. Supp. 3d at 580 (quoting Nielsen, 762 F.3d at 221). Moreover, the information must be provided to “a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct[.]” 49 U.S.C. § 20109(a)(1)(C). *38 “Where, as here, the non-moving party has the burden of proof on a specific issue, the moving party may satisfy its summary judgment burden by ‘point[ing] to an absence of evidence to support an essential element of the nonmoving party's claim.’ To avoid summary judgment, the opposing party ‘must [then] show the presence of a genuine issue by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in his favor, to establish the existence of that element at trial.’ ” Young v. CSX Transp., Inc., 42 F. Supp. 3d 388, 394 (N.D.N.Y. 2014) (Hurd, J.) (quoting Doona v. OneSource Holdings, Inc., 680 F. Supp. 2d 394, 399 [E.D.N.Y. 2010], and United States v. Rem, 38 F.3d 634, 643 [2d Cir. 1994] ). The Court notes that much of the evidence before it is inadmissible hearsay that cannot be considered on a motion for summary judgment. For example, both parties submitted “declarations” or “affidavits” that were not signed before a notary public or sworn to pursuant to 28 U.S.C. § 1746. In addition, Plaintiff's Complaint was not verified and his response to Defendant's Interrogatories was signed only by his attorney, who lacked first-hand knowledge of the answers to the interrogatories. Having said that, based on the admissible evidence before it, the Court agrees with Defendant that Plaintiff is unable to establish that he engaged in protected activity. In his deposition, Plaintiff unequivocally testified that he did not personally have any conversations with supervisors employed by Defendant regarding safety concerns. 107 Instead, Plaintiff testified that, beginning sometime in early 2015, the Union filed a grievance (and possibly additional grievances) about scheduling that may or may not have identified Plaintiff by name. (Dkt. No. 18, Attach. 12, at 12.) 108 *39 In addition to Plaintiff's deposition testimony, the parties submitted Plaintiff's OSHA complaint, which he signed under penalty of perjury. (Dkt. No. 18, Attach. 1, at 8.) Plaintiff testified at his deposition regarding the allegations contained in his OSHA complaint. (See, e.g., Dkt. No. 18, Attach. 12, at 59-60 [attaching pages “232” and “233” of transcript].) Regarding his allegation in his OSHA complaint that, “I as well as other union members have notified my Sergeant and Commander numerous times about how it is a safety hazard for lack of staffing of Special Agents that we have, and being s [sic] frequently scheduled to be on call” (Dkt. No. 18, Attach. 1, at 6), Plaintiff clarified that he was, in fact, referring to the Union grievances that were filed in early 2015. 109 The Court notes also that neither party has produced any documentation of or testimony from Union representatives regarding the Union grievance that was allegedly filed. Plaintiff does not argue that raising safety concerns to the Union constituted the good-faith protected activity on which he is relying. (Dkt. No. 23.) See also Kuduk v. BNSF Ry. Co., 980 F. Supp. 2d 1092, 1099 (D. Minn. 2013) (holding that reporting safety concerns to a union representative is not protected activity as defined in FRSA where there is no evidence that the union representative was a supervisor or had authority to investigate, discover or terminate the misconduct), aff'd on other grounds, 786 F.3d 786 (8th Cir. 2014). Instead, Plaintiff asserts that he did, in fact, discuss his safety concerns directly with his supervisors. In support of that argument, Plaintiff points to three separate portions of his deposition testimony regarding conversations that he had with (1) District Inspector Szymaszek, (2) Sergeant Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 218 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 24 Kevin Seymour, and (3) Jim Thomas. 110 The Court notes that Plaintiff's testimony concerning what Jim Thomas told him is inadmissible hearsay and is not considered by the Court in deciding Plaintiff's motion: what remains regarding that conversation is insufficient to establish that Plaintiff discussed his safety concerns directly with Jim Thomas. Furthermore, Plaintiff's testimony about conversations with District Inspector Szymaszek and Sergeant Seymour fail to establish a genuine dispute of material fact for trial regarding whether Plaintiff engaged in protected activity for the following two reasons. *40 First, Plaintiff's testimony does not reasonably suggest that he raised any safety concern to District Inspector Szymaszek or Sergeant Seymour. (Dkt. No. 18. Attach. 12, at 13, 64.) Instead, the only reasonable interpretation of Plaintiff's testimony regarding the conversation with District Inspector Szymaszek is that, at some point in time and to someone (perhaps not even in Plaintiff's presence) in response to complaints about Defendant's scheduling and on- call practices, District Inspector Szymaszek said something to the effect of “sometimes you guys got to suck it up and sometimes the company's got to feel the burn.” (Id. at 13.) In addition, the only reasonable interpretation of Plaintiff's testimony regarding the conversation with Sergeant Seymour is that sometime between March 28 and March 31, 2016, in Plaintiff and REDACTION 3's presence, Sergeant Seymour said something to the effect of “calling the union on us is not going to hurt me or Dennis. It is only going to hurt you guys.” (Id. at 64.) 111 These statements by District Inspector Szymaszek and Sergeant Seymour do not reasonably suggest that any safety concerns specifically were raised by Plaintiff or the Union. Instead, the statements appear to be in response to CBA disputes between the Union and CP management regarding scheduling. See Gibbs v. Norfolk S. Ry. Co., 14- CV-0587, 2018 WL 1542141, at *5 (W.D. Ky. Mar. 29, 2018) (holding that an e-mail that did not contain any concerns about safety and instead described an inconvenience was not FRSA protected activity). Second, this incomplete testimony is insufficient to defeat a summary judgment motion because Plaintiff also testified that the only safety complaints he made were to the Union and that he did not make any safety complaints to Defendant's management. (Dkt. No. 18, Attach. 12, at 57-58.) See also Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (citation omitted) (“While it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether ‘the jury could reasonably find for the plaintiff,’ and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiff's account.”). Even drawing all inferences in the light most favorable to Plaintiff, the Court finds that no reasonable person could believe that Plaintiff engaged in good-faith protected activity by (allegedly) making safety complaints to District Inspector Szymaszek or Sergeant Seymour. Moreover, the Court notes that Plaintiff did not dispute Defendant's argument that his OSHA complaint did not constitute good-faith protected activity. (Compare Dkt. No. 13, at 10-14 [attaching pages “8” through “12” of Def.'s Memo. of Law] with Dkt. No. 23 [Plf.’s Opp'n Memo. of Law].) As set forth above in Part II.C. of this Decision and Order, in this District, when a non-movant fails to oppose a legal argument asserted by a movant, the movant's burden with regard to that argument is lightened, such that, in order to succeed on that argument, the movant need only show that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. N.D.N.Y. L.R. 7.1(b)(3). 112 Here, Defendant has shown that its argument that Plaintiff's OSHA complaint did not constitute protected activity possesses facial merit for the reasons stated in its motion papers. *41 For all of these reasons, the Court grants Defendant's motion for summary judgment with regard to Plaintiff's discriminatory reprimand claim because Plaintiff failed to establish a genuine dispute of material fact that he engaged in protected activity under FRSA. b. Whether any Decision-Maker(s) Knew of the Protected Activity In the alternative, after carefully considering the matter, the Court answers this question in the negative for the reasons stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To those reasons, the Court adds the following analysis, which is intended to supplement but not supplant Defendant's reasons. “[A]t least one person involved in the adverse employment decision must have knowledge of the protected activity, even if it is an advisor or [member of] upper management.” Conrad Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 219 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 25 v. CSX Transp., Inc., 13-CV-3730, 2014 WL 7184747, at *4 (D. Md. Dec. 15, 2014). The plaintiff “need not prove that the decision-maker responsible for the adverse action knew of the protected activity if it can be established that those advising the decision-maker knew, regardless of their motives.” Rudolph v. Nat'l R.R. Passenger Corp., ARB Case No. 11-037, 2013 WL 1385560, at *12 (Dep't of Labor Mar. 29, 2013). In Conrad v. CSX Transp., Inc., a district court held that there was not a genuine dispute of material fact as to the knowledge element where the evidence established that the plaintiff provided educational materials to other union members about their rights, advocated for the rights of other union members, and was generally a “thorn in the side” of the defendant's management, but there was no evidence that the plaintiff's supervisors knew that he had engaged in FRSA-protected activity. Conrad, 2014 WL 7184747, at *4-5. Plaintiff argues that, because District Inspector Szymaszek (who was aware of the Union grievance) initiated a disciplinary charge against him and testified at the disciplinary proceeding, the decision to reprimand Plaintiff was influenced by him, and thus Defendant should be found to have such knowledge. “Courts have accepted this so-called “cat's-paw” theory under certain circumstances.” 113 Gibbs v. Norfolk S. Ry. Co., 14- CV-0587, 2018 WL 1542141, at *6 (W.D. Ky. Mar. 29, 2018). Generally, these circumstances involve the supervisor advising the decision-maker or being intimately involved in the decision. See, e.g., Lowery v. CSX Transp., Inc., 690 F. App'x 98, 100 (4th Cir. 2017) (accepting cat's-paw theory where the supervisor “advised” all three decision-makers as to whether the plaintiff had committed a rules violation); Johnston v. BNSF Ry. Co., 15-CV-3685, 2017 WL 4685012, at *8 (D. Minn. Oct. 16, 2017) (accepting cat's-paw theory where the supervisors were “intimately involved” in the adverse decision rather than “trivial participants”). *42 Here, District Inspector Szymaszek testified at his deposition that he was not involved in determining the discipline that was imposed on Plaintiff, and that he does not know who was involved in making that decision. (Dkt. No. 18, Attach. 29, at 22, 27, 40 [attaching pages “21,” “26” and “39” of transcript].) 114 Plaintiff has not adduced admissible record evidence establishing that District Inspector Szymaszek directed or advised that he be reprimanded (or that District Inspector Szymaszek was even the main instigator of the charges). Instead, District Inspector Szymaszek merely submitted a written summary of his field investigation of the incident of June 9-10, 2016, and provided oral statements at the CBA disciplinary hearing. See, e.g., supra, Part I.B., ¶¶ 99-100 of this Decision and Order. This is insufficient. See, e.g., Gunderson v. BNSF Ry. Co., 850 F.3d 962, 970 (8th Cir. 2017) (rejecting cat's-paw theory where the supervisor merely informed his supervisor of the plaintiff's alleged rules violation and arranged for witness interviews); Kuduk v. BNSF Ry. Co., 768 F.3d 786, 790-91 (8th Cir. 2014) (rejecting cat's-paw theory where the supervisor merely participated as a witness at the hearing that led to the plaintiff's discharge and there was “no evidence [that the supervisor] advised the decision-makers ... [or] influenced their discharge decision”). In addition, although Plaintiff does not argue that Sergeant Seymour was a decision-maker with knowledge of his FRSA-protected activity, the Court finds that Plaintiff has not adduced admissible record evidence establishing that Sergeant Seymour directed or advised that Plaintiff be reprimanded. 115 *43 For all of these reasons, the Court grants Defendant's motion for summary judgment with regard to Plaintiff's discriminatory reprimand claim on the alternative basis that Plaintiff has failed to establish a genuine dispute of material fact that the decision-makers who issued the reprimand had knowledge of his protected activity. c. Whether the FRSA-Protected Activity Was a Contributing Factor in Defendant's Reprimand Decision In the alternative, after carefully considering the matter, the Court answers this question in the negative for the reasons stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To those reasons, the Court adds the following analysis, which is intended to supplement but not supplant Defendant's reasons. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Araujo v. New Jersey Transit Rail Op., Inc., 708 F.3d 152, 158 (3d Cir. 2013) (quoting Marano v. Dep't of Justice, 2 F.3d 1137, 1140 [Fed. Cir. 1993] ); Cyrus v. Union Pac. R.R. Co., 12-CV-10248, 2015 WL 5675073, at *11 (N.D. Ill. Sept. 24, 2015); Kuduk, 768 F.3d at 791 (quoting Procedures for the Handling of Retaliation Complaints Under Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 220 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 26 the Federal Railroad Safety Act, 75 Fed. Reg. 53522-01, 2010 WL 3392070, at *53524 [Aug. 31, 2010] ). While the Second Circuit has not yet addressed this factor, other courts in this Circuit and other circuits have. “Notably, under the statute's ‘contributing factor’ causation standard, a prima facie case does not generally require proof of the employer's retaliatory motive.” Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659, 663 (S.D.N.Y. 2017), appeal filed No. 17-2725 (2d Cir. Aug. 31, 2017) (citing Kuduk, 768 F.3d at 791, and Coppinger-Martin v. Solis, 627 F.3d 745, 750 [9th Cir. 2010] ). “But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” Kuduk, 768 F.3d at 791 (citing Consol. Rail Corp. v. U.S. Dep't of Labor, 567 F. App'x 334, 338-39 [6th Cir. 2014]; Ameristar Airways, Inc. v. U.S. Dep't of Labor, 650 F.3d 562, 569-70 [5th Cir. 2011] ). “The essence of this intentional tort is ‘discriminatory animus.’ ” Id. (citing Staub v. Proctor Hosp., 131 S. Ct. 1186, 1193 [2011] ). A plaintiff can establish a prima facie case that his protected activity was a contributing factor in the adverse action by direct or circumstantial evidence. See Araujo, 708 F.3d at 161 (holding that direct evidence is not required to establish this element). Circumstantial evidence that may indicate a link between the protected activity and the allegedly adverse actions include “[1] temporal proximity, [2] indications of pretext, [3] inconsistent application of an employer's policies, [4] an employer's shifting explanations for its actions, [5] antagonism or hostility toward a complainant's protected activity, [6] the falsity of an employer's explanation for the adverse action taken, and a [7] change in the employer's attitude toward the complaint after he or she engages in protected activity.” Ray v. Union Pac. R.R. Co., 971 F. Supp. 2d 869, 885 (D. Iowa 2013). Here, a thorough analysis of the relevant factors reveals that Plaintiff has failed to create a genuine dispute of material fact for trial that he was reprimanded because he engaged in protected activity. i. Temporal Proximity *44 Plaintiff testified that the Union grievance was filed in early 2015; however, the disciplinary charges were not filed until June 17, 2016, and Plaintiff was not issued the reprimand until September 9, 2016. (Dkt. No. 18, Attach. 12, at 12, 38-39; Dkt. No. 18, Attach. 19, at 2, 138.) The Court finds that the approximately fifteen- to eighteen-month gap between the alleged protected activity (early 2015) and the adverse action is too attenuated to raise an inference of discriminatory animus or retaliatory intent. See Doner-Hendrick v. New York Inst. of Tech., 874 F. Supp. 2d 227, 242 (S.D.N.Y. 2012) (collecting cases) (“Courts in this Circuit have held that periods ‘of two months or more defeat an inference of causation.’ ”); Kuduk, 980 F. Supp. 2d at 1101 (“[A] plaintiff cannot establish a prima facie case of retaliation based on temporal proximity alone when the termination occurred two months after the alleged protected conduct.”), aff'd 768 F.3d 786 (8th Cir. 2014) (“[W]e reject the notion ... that temporal proximity, without more, is sufficient to establish a prima facie case.”); Cyrus, 2015 WL 5675073, at *11 (holding that “[g]iven the attenuated nature of the temporal gaps, no reasonable jury could infer that [plaintiff] was placed on a [developmental action plan] and terminated based on his complaint” where there was a two- to five-month period between the plaintiff's complaint and the developmental action plan, and a five- to nine-month period between the complaint and termination); King v. Indiana Harbor Belt R.R., 15-CV-0245, 2018 WL 5982134, at *9 (N.D. Ind. Nov. 13, 2018) (“the Court agrees that temporal proximity alone cannot create an inference of retaliatory animus here.”). Similarly, Plaintiff asserts that his conversations with District Inspector Szymaszek and Sergeant Seymour took place in March 2016. (Dkt. No. 23, at 10.) Approximately three months elapsed between these conversations and when Plaintiff was charged with the shotgun log violation; and approximately six months elapsed between these conversations and when Plaintiff was actually reprimanded. Again, this time gap is too attenuated to raise an inference of discriminatory animus or retaliatory intent. ii. Indications of Pretext Plaintiff argues that the reprimand he received for violating the shotgun log policy was a pretext for his safety complaints about his work schedule. (Dkt. No. 23, at 22.) However, Defendant presented evidence that the shotgun log policy audit conducted in June 2016, was not the first shotgun log policy audit. In fact, a shotgun log policy audit had been conducted as recently as 2013. (Dkt. No. 17, Attach. 6.) In addition, it is undisputed that the audit of June 2016 was conducted not only in the Albany detachment (where Plaintiff was employed) but in all detachments in the United Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 221 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 27 States and Canada. See, supra, Part I.B., ¶¶ 57-59 of this Decision and Order. Even drawing all reasonable inferences in Plaintiff's favor, a reasonable fact finder could not conclude that Defendant conducted a periodic nationwide audit of shotgun logs simply to target Plaintiff for his complaints. iii. Inconsistent Application of Policies Plaintiff argues that Defendant's disciplinary charges against him were based on his safety report, but the other Special Agents in the Albany Detachment were not charged with a shotgun log policy violation despite also being members of the Union, which allegedly filed a safety complaint on their behalf, and also not filling out a shotgun log. (Dkt. No. 18, Attach. 1, at 7; Dkt. No. 18, Attach. 28, at 31-32, 34.) See also Pollock v. Union Pacific R.R. Co., 12-CV-2128, 2014 WL 3696116, at * 3 (S.D. Cal. July 23, 2014) (granting summary judgment for the defendant where the plaintiff and another employee [“Brooks”] were disciplined after plaintiff engaged in protected activity but Brooks did not engage in protected activity). In addition, the Court finds that Sergeant Seymour, who was required to (but did not) review the shotgun logs on a monthly basis, but was not formally reprimanded for his violation of the policy, is not similarly situated to Plaintiff. Gunderson v. BNSF Ry. Co., 850 F.3d 962, 970 (8th Cir. 2017) (citing Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 957 [8th Cir. 2012] ). During the relevant time period, Sergeant Seymour was a non- union manager, whose terms and conditions of employment were not governed by the same CBA as Plaintiff's. (Dkt. No. 17, at ¶¶ 4-5; Dkt. No. 18, Attach. 28, at 7-9.) iv. Remaining Types of Circumstantial Evidence *45 After carefully reviewing the record, the Court can find no admissible evidence of any shifting explanations for Defendant's actions, any antagonism or hostility toward Plaintiff's protected activity, any falsity of Defendant's explanation for the adverse action taken, and any change in Defendant's attitude toward Plaintiff after he engaged in protected activity. For all of these reasons the Court grants Defendant's motion for summary judgment with regard to Plaintiff's discriminatory reprimand claim based on the alternative finding that Plaintiff has failed to establish a genuine dispute of material fact that his protected activity was a contributing factor in Defendant's decision to reprimand him. C. Analysis of Plaintiff's Claim of Discriminatory Termination 1. Failure-to-State-a-Claim Analysis Under Fed. R. Civ. P. 12(b)(6) As set forth above in Part III.A.1 of this Decision and Order, the Court finds that Plaintiff's Complaint sufficiently alleges that he engaged in FRSA-protected activity. Therefore, the Court denies this aspect of Defendant's motion to dismiss for failure to state a claim. 2. Summary-Judgment Analysis Under Fed. R. Civ. P. 56 a. Whether Plaintiff Engaged in Good-Faith FRSA-Protected Activity After carefully considering the matter, the Court answers this question in the negative for the reasons stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To those reasons, the Court adds one point, which is intended to supplement but not supplant Defendant's reasons: as set forth above in Part III.A.2.a. of this Decision and Order, the Court finds that Plaintiff has failed to establish a genuine dispute of material fact that he engaged in good-faith FRSA-protected activity. Therefore, to the extent that Defendant moves for summary judgment with regard to Plaintiff's discriminatory termination claim, that motion is granted. b. Whether any Decision-Maker(s) Knew of the Protected Activity In the alternative, after carefully considering the matter, the Court answers this question in the negative for the reasons stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To those reasons, the Court adds one point, which is intended to supplement but not supplant Defendant's reasons: as set forth above in Part III.A.2.b. of this Decision and Order, the Court finds that Plaintiff has failed to establish a genuine dispute of material fact that the decision-makers in his termination had Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 222 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 28 knowledge of, or were advised by individuals who knew of, Plaintiff's FRSA-protected activity. For all of these reasons, Defendant's motion for summary judgment with regard to Plaintiff's discriminatory termination claim is granted. ACCORDINGLY, it is ORDERED that Defendant's motion to dismiss or, in the alternative, for summary judgment (Dkt. No. 13) is GRANTED; and it is further ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED; and it is further ORDERED that the Clerk of the Court shall close this action. All Citations Not Reported in Fed. Supp., 2019 WL 1386047 Footnotes 1 Defendant supports this factual assertion by citing an “declaration” that was neither signed before a notary public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 1.) As a result, the Court finds that this declaration (Dkt. No. 18, Attach. 31 [Szymaszek Decl.] ) is inadmissible and will not be considered. However, this fact is supported by other admissible evidence in the record that the Court has come across and will not ignore. (Dkt. No. 18, Attach. 29, at 9.) In addition, Plaintiff has admitted this factual assertion. (Dkt. No. 24, at ¶ 1.) 2 Defendant supports this factual assertion by citing an exhibit attached to its attorney declaration which includes excerpts from the policies and procedures manual of 2013. (Dkt. No. 15, at ¶ 2.) Defendant's counsel does not purport to be the records keeper, and has not adduced a certification by that records keeper. (See generally Dkt. No. 18.) However, Plaintiff has admitted this fact. (Dkt. No. 24, at ¶ 2.) Indeed, Plaintiff has not contested the accuracy of this document and has testified that he recognizes the document and acknowledges that the policy would have applied to him. (Dkt. No. 18, Attach. 12, at 32 [attaching page “121” of transcript].) The Court notes that docket citations given in this Decision and Order are to the screen number shown on the docket, not the page number listed on the document. 3 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 9), the Court will deem this fact established because (1) it is partially supported by other admissible evidence in the record (Dkt. No. 18, Attach. 28, at 11; Dkt. No. 18, Attach. 29, at 8-9), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 9), and (3) the fact is not highly material to this motion. See, supra, note 1 of this Decision and Order. 4 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 10), the Court will deem this fact established because (1) it is supported by other admissible evidence in the record (Dkt. No. 18, Attach. 12, at 29; Dkt. No. 18, Attach. 29, at 9), and (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 10). See, supra, note 1 of this Decision and Order. 5 Plaintiff responds that this factual assertion is “[a]dmitted in part” and “[d]enied in part.” (Dkt. No. 24, at ¶ 11.) However, Plaintiff does not identify which part of the asserted fact is denied. (Id.) This is improper in a Rule 7.1 Response. See N.D.N.Y. L.R. 7.1(a)(3) (“The opposing party shall file a response to the Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs.”) (emphasis added); cf. Fed. R. Civ. P. 56(e)(2) (“If a party ... fails to properly address another party's assertion of fact as required by Rule Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 223 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 29 56(c), the court may ... consider the fact undisputed for purposes of the motion....”). Instead, Plaintiff asserts, “[b]y way of further answer,” facts that attempt to either undermine Defendant's asserted fact or deny an implication of that asserted fact, both of which are also improper in a Rule 7.1 Response. See Goldstick v. The Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1 Statement, in part, because plaintiff added “argumentative and often lengthy narrative in almost every case the object of which is to ‘spin’ the impact of the admissions plaintiff has been compelled to make”); Yetman v. Capital Dist. Transp. Auth., 12-CV-1670, 2015 WL 4508362, at *10 (N.D.N.Y. July 23, 2015) (Suddaby, J.) (citing authority for the point of law that summary judgment procedure involves the disputation of asserted facts not implied facts). To the extent that a non-movant desires to set forth any additional material facts that he contends are in dispute, he is required by Local Rule 7.1(a)(3) to do so in separately numbered paragraphs. Granted, Defendant supports this fact by citing an inadmissible “declaration.” (Dkt. No. 15, at ¶ 11.) See also, supra, note 1 of this Decision and Order. However, this fact is supported by other admissible evidence in the record. (Dkt. No. 18, Attach. 12, at 29.) 6 Although Defendant supports the second sentence of this asserted fact by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 13), the Court will deem this fact established because (1) it is supported by other admissible evidence in the record (Dkt. No. 18, Attach. 29, at 7-8), and (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 13). See, supra, note 1 of this Decision and Order. 7 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 14), the Court will deem this fact established because (1) the fact appears established elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 29, at 9), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 14), and (3) the fact is not highly material to this motion. See, supra, note 1 of this Decision and Order. 8 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 15), the Court will deem this fact established because (1) the fact is consistent with the rest of the record (see, e.g., Dkt. No. 18, Attach. 29, at 9), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 15), and (3) the fact is not highly material to this motion. See, supra, note 1 of this Decision and Order. 9 Because of the conflict between Plaintiff's cited record evidence (which establishes that his “territory” used to be “much smaller”) and Defendant's cited record evidence (which establishes that “the amount of rail left to patrol” decreased after the merger), the Court will deem the second sentence in Paragraph 17 of Defendant's Rule 7.1 Statement as controverted. (Dkt. No. 15, at ¶ 17; Dkt. No. 24, at ¶ 17.) The Court notes that Plaintiff has admitted the first sentence of Paragraph 17, which is established by the record. 10 While this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 18), it is supported elsewhere in the record (Dkt. No. 18, Attach. 28, at 5). 11 Defendant supports this factual assertion by citing an “declaration” that was neither signed before a notary public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 20.) As a result, the Court finds that this declaration (Dkt. No. 18, Attach. 30 [Seymour Decl.] ) is inadmissible and will not be considered. However, the Court will deem this fact established because (1) the fact appears consistent with the rest of the record (see, e.g., Dkt. No. 18, Attach. 28, at 6-7), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 20), and (3) the fact is not highly material to this motion. 12 Although this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 23), it is supported elsewhere in the record (Dkt. No. 18, Attach. 28, at 33). In addition, Plaintiff's inability to admit or deny this factual assertion does not constitute a denial. See F.D.I.C. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 205 F.3d 66, 75 (2d Cir. 2000) (“[V]ague denials and memory lapses ... do not create genuine issues of material fact.”); Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 224 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 30 (“On a motion for summary judgment, denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or inadmissible evidence are insufficient to create a genuine dispute.”). 13 Defendant supports this fact by citing to an “declaration” that was neither signed before a notary public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 24.) See, also supra, note 1 of this Decision and Order. However, the Court will deem this fact established because (1) it is supported elsewhere in the record (Dkt. No. 18, Attach. 29, at 12), and (2) Plaintiff has admitted it (Dkt. No. 24, at ¶ 24). 14 Defendant supports this asserted fact by citing an exhibit attached to its attorney declaration. (Dkt. No. 15, at ¶ 30.) Defendant's counsel does not purport to be Defendant's records keeper, and has not adduced a certification by that records keeper. (See generally Dkt. No. 18.) However, the Court will deem this fact established because (1) the fact appears consistent with the rest of the record (see, e.g., Dkt. No. 18, Attach. 12, at 39-40), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 30), and (3) the fact does not appear highly material to this motion. 15 Defendant supports this asserted fact by citing to an exhibit attached to its attorney declaration that included the job description for the Special Agent position. (Dkt. No. 15, at ¶ 31.) Defendant's counsel does not purport to be Defendant's records keeper, and has not adduced a certification by that records keeper. (See generally Dkt. No. 18.) However, the Court will deem this fact established because (1) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 31), (2) the fact appears consistent with the rest of the record, and (3) indeed, he testified that the document relied upon by Defendant reflects an accurate description of the duties associated with his Special Agent position (Dkt. No. 18, Attach. 12, at 35). 16 In support of the second sentence of this asserted fact, which includes the bulleted list, Defendant cites the same exhibit as discussed above in note 15 of this Decision and Order. (Dkt. No. 15, at ¶ 32.) The Court will deem this portion of the asserted fact established for the same reasons as stated in note 15. 17 Although this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 33), it is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 12, at 34; Dkt. No. 18, Attach. 31, at ¶ 7; Dkt. No. 18, Attach. 15, at 11, 23-31, 35-44; Dkt. No. 18, Attach. 17, at 2-4). In addition, Plaintiff partly admits this fact. (Dkt. No. 24, at ¶ 33.) In partially denying this fact, Plaintiff states, “It is denied that the Defendant and some [of] its employees used shot gun [sic] logs. Plaintiff was specifically told by his prior Sargent [sic] that he did not have to fill out a shot-gun log in 2014.” (Dkt. No. 24, at ¶ 33.) However, the above-stated fact (as modified by the record evidence) does not regard the practice of Defendant, or “some of its employees,” regarding the shotgun logs. Nor does it regard what Plaintiff was told by his prior sergeant in 2014. See Yetman, 2015 WL 4508362, at *10 (citing authority for the point of law that summary judgment procedure involves the disputation of asserted facts not implied facts). As a result, the Court will deem the above-stated fact uncontroverted. 18 The Court has modified the above-stated fact to accord with the cited record evidence, which establishes that Plaintiff believed that communication “through our com-center” was not an important aspect of his job as a Special Agent for C.P., because the com-center was “totally un–unreliable.” (Dkt. No. 24, at ¶ 35; Dkt. No. 18, Attach. 2, at 34.) 19 Although Plaintiff denies this factual assertion in part, he does not specify the portion of the fact he is denying, nor does he cite record evidence that actually controverts the record evidence cited by Defendant. (Dkt. No. 24, at ¶ 36.) According to Defendant's cited record evidence, Plaintiff testified as follows: Q: The position of the special agent would be considered safety sensitive? A: You would think, right? That's in– Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 225 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 31 Q: Well, you're carrying a handgun, right? A: Yeah, that's in contention right now. C.P. doesn't believe so. Q: You had–you carried a handgun with you? A: Yes. (Dkt. No. 18, Attach. 12, at 34.) As a result, the Court will deem this fact uncontroverted. 20 The Court has modified the above-stated fact to accord with the cited record evidence. Although Plaintiff disputes that he was indeed afforded a fair and impartial hearing (Dkt. No. 24, at ¶ 40), the fact stated above does not regard what Plaintiff was actually afforded. As a result, the Court will deem the above-stated fact uncontroverted. 21 Plaintiff denies this factual assertion on the ground that his numerous specific complaints were repeatedly ignored. (Dkt. No. 24, at ¶ 46.) However, the factual assertion does not regard whether Plaintiff made complaints or they were ignored. As a result, this factual assertion will be deemed uncontroverted. 22 Although Plaintiff denies this factual assertion in part, he does not specify the portion of the fact he is denying, nor does he cite record evidence that actually controverts the record evidence cited by Defendant. (Dkt. No. 24, at ¶ 47.) According to Defendant's cited record evidence, Plaintiff testified as follows: Q: And when there's a dispute or issue in connection with the terms that are under the C.B.A. you have a procedure under the C.B.A. that–that governs how to either grieve it or resolve it. Is that fair to say? A: Yes. (Dkt. No. 18, Attach. 12, at 33.) Moreover, although Plaintiff cites exhibits to his Complaint, that pleading was not verified and thus is not admissible evidence on a motion for summary judgment. (Dkt. No. 1.) As a result, the Court deems this fact uncontroverted. 23 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 49), the Court will deem this fact established because (1) the fact appears consistent with the rest of the record (see, e.g., supra, Statements of Fact Nos. 31-32, 34), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 49), and (3) the fact is not highly material to this motion. See, supra, note 2 of this Decision and Order. 24 The Court has modified the above-stated fact to accord with the cited record evidence. (Dkt. No. 18, Attach. 15, at 35 [attaching page stamped “208”].) Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 50), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 20, at 18), and (2) Plaintiff has not effectively denied the above-stated fact (Dkt. No. 24, at ¶ 50). See, supra, note 2 of this Decision and Order. 25 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 51), the Court will deem this fact established because (1) the fact appears consistent with the rest of the record (see, e.g., Dkt. No. 18, Attach. 20, at 10, 19, 39, 42, 67), and (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 51). See, supra, note 2 of this Decision and Order. 26 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 52), the Court will deem this fact both established and uncontroverted because (1) the fact appears consistent with the rest of the record (see, e.g., Dkt. No. 18, Attach. 19, at 44-45, 62, 90-92, 115, 122, 123, 138), and (2) Plaintiff has not effectively denied the fact (Dkt. No. 24, at ¶ 52). See, supra, note 2 of this Decision and Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 226 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 32 Order. Plaintiff bases his denial on the assertion that he was informed by his sergeant that he did not have to use a shotgun log. (Dkt. No. 24, at ¶ 53.) However, setting aside issues of lack of personal knowledge and hearsay, the fact asserted does not regard what Plaintiff was or was not informed by his prior sergeant. 27 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 53), the Court will deem this fact both established and uncontroverted because (1) the fact appears consistent with the rest of the record (see, e.g., Dkt. No. 18, Attach. 19, at 13-14), and (2) Plaintiff has not effectively denied the fact (Dkt. No. 24, at ¶ 53). See, supra, notes 2 and 26 of this Decision and Order. 28 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶ 54), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 28, at 38), and (2) Plaintiff has not effectively denied the fact (Dkt. No. 24, at ¶ 54). See, supra, notes 1 of this Decision and Order. Plaintiff supports his denial based on his assertion that he was informed by his sergeant that he did not have to use a shotgun log. (Dkt. No. 24, at ¶ 54.) However, setting aside issues of lack of personal knowledge and hearsay, the fact asserted does not regard what Plaintiff was or was not informed by his prior sergeant. 29 Although Plaintiff admits this factual assertion only “in part,” he does not specify what portion of the fact he is denying, nor does he cite record evidence that actually controverts the record evidence cited by Defendant. (Dkt. No. 24, at ¶ 57.) Plaintiff again asserts that he was informed by his sergeant that he did not have to use a shotgun log. (Id.) However, setting aside issues of lack of personal knowledge and hearsay, the fact asserted does not regard what Plaintiff was or was not informed by his prior sergeant. 30 The Court notes that Defendant supports this factual assertion citations to, inter alia, Sergeant Seymour's supplemental declaration (Dkt. No. 17, Attach. 6.) (Dkt. No. 15, at ¶ 58; Dkt. No. 17, Attach. 6), which the Court finds to be admissible (because it was sworn to pursuant to 28 U.S.C. § 1746), and which the Court finds sufficiently authenticates the e-mail thread with Staff Sergeant Drader. See Bell v. Rochester Gas & Elec. Corp., 329 F. App'x 304, 306 (2d Cir. 2009) (holding that the burden rests with the proponent of documentary evidence and the proponent carries this burden by introducing “sufficient proof ... [allowing] a reasonable juror [to] find in favor of authenticity”). The Court notes also that Plaintiff's denial is ineffective for the same reason as set forth in note 29 of this Decision and Order. 31 Although Defendant supports this factual assertion by citing, inter alia, an inadmissible “declaration” (Dkt. No. 15, at ¶ 59), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (including, but not limited to, the Supplemental Seymour Declaration and exhibits thereto), and (2) Plaintiff has neither expressly denied the fact nor supported that denial with a citation of admissible record evidence that actually controverts the fact asserted (Dkt. No. 24, at ¶ 52). See, supra, notes 2, 12 and 30 of this Decision and Order. 32 Plaintiff responds that he has no recollection of the audit. (Dkt. No. 24, at ¶ 60.) This is insufficient to create an issue of material fact for trial. See, supra, note 12 of this Decision and Order. 33 The Court has modified the above-stated fact to accord with the admissible record evidence cited by Defendant. (Dkt. No. 18, Attach. 12, at 50.) The record evidence Plaintiff cites does not actually controvert the above-stated fact. (Dkt. No. 24, at ¶ 62.) Moreover, his attempt to place the fact in a greater context is in vain. See, supra, note 5 of this Decision and Order. 34 The Court has modified the above-stated fact to accord with the admissible record evidence cited by Defendant. (Dkt. No. 18, Attach. 12, at 50-51.) The record evidence Plaintiff cites does not actually controvert the above-stated fact. (Dkt. No. 24, at ¶ 63.) Moreover, his attempt to place the fact in a greater context is in vain. See, supra, note 5 of this Decision and Order. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 227 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 33 35 The Court has modified the above-stated fact to accord with the admissible record evidence cited by Defendant. (Dkt. No. 18, Attach. 12, at 51.) The record evidence Plaintiff cites does not actually controvert the above-stated fact. (Dkt. No. 24, at ¶ 64.) Moreover, his attempt to place the fact in a greater context is in vain. See, supra, note 5 of this Decision and Order. 36 Although Defendant supports this factual assertion by citing, inter alia, exhibits to an inadmissible “declaration” by an apparent non-records keeper (Dkt. No. 15, at ¶ 66), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 28, at 10-11), and (2) Plaintiff has neither expressly and specifically denied the fact nor supported any such denial with a citation of admissible record evidence that actually controverts the fact asserted (Dkt. No. 24, at ¶ 66). See, supra, note 2 of this Decision and Order; see also Willis v. Cty. of Onondaga, 14-CV-1306, 2016 WL 7116126, at *5, n.10 (N.D.N.Y. Dec. 6, 2016) (Suddaby, C.J.) (“This partial denial is ineffective ... [because] it fails to specify which part of the fact is denied as required by Local Rule 7.1[a][3].”). 37 Although Defendant supports this factual assertion by citing, inter alia, an exhibit to an inadmissible “declaration” by an apparent non-records keeper (Dkt. No. 15, at ¶ 67), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 28, at 14-15), (2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3) Plaintiff has supported his denial with a citation to admissible record evidence that actually controverts the fact asserted (Dkt. No. 24, at ¶ 67). See, supra, notes 2 and 5 of this Decision and Order. 38 Although Defendant supports this factual assertion by citing an exhibit to an inadmissible “declaration” by an apparent non-records keeper (Dkt. No. 15, at ¶ 68), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 12, at 47), (2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3) Plaintiff has supported his denial with a citation to admissible record evidence that actually controverts the fact asserted (Dkt. No. 24, at ¶ 67). See, supra, notes 2 and 5 of this Decision and Order. 39 Although Defendant supports this factual assertion by citing an exhibit to an inadmissible “declaration” by an apparent non-records keeper (Dkt. No. 15, at ¶ 69), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 12, at 47-48), (2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3) Plaintiff has supported his denial with a citation to admissible record evidence that actually controverts the fact asserted (Dkt. No. 24, at ¶ 69). See, supra, notes 2 and 5 of this Decision and Order. 40 Although Defendant supports this factual assertion by citing an exhibit to an inadmissible “declaration” by an apparent non-records keeper (Dkt. No. 15, at ¶ 71), the Court will deem this fact both established and uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 12, at 48), (2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3) Plaintiff has not supported any such his denial with a citation to admissible record evidence (Dkt. No. 24, at ¶ 71). See, supra, notes 2 and 5 of this Decision and Order. 41 The Court notes that, although the last sentence of the above-stated paragraph is not supported by Sergeant Seymour's deposition transcript, it is supported by Plaintiff's deposition transcript. (Dkt. No. 18, Attach. 12, at 44-45.) 42 See, supra, note 30 of this Decision and Order. 43 See, supra, note 30 of this Decision and Order. 44 The Court notes that, although Defendant cites only inadmissible declarations and exhibits thereto in support of the above-stated fact, the fact is supported by other admissible evidence in the record. (See, e.g., Dkt. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 228 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 34 No. 18, Attach. 12, at 37; Dkt. No. 18, Attach. 19, at 11-12, 22-26.) The Court notes further that, although the deposition introducing this document is inadmissible, the above-stated fact is supported elsewhere in the record. (See, e.g., Dkt. No. 18, Attach. 12, ay 38-39.) 45 See, supra, note 44 of this Decision and Order. 46 Defendant supports this factual assertion by citing an “declaration” that was neither signed before a notary public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 80.) As a result, the Court finds that this declaration (Dkt. No. 18, Attach. 32 [Kinloch Decl.] ) is inadmissible and will not be considered. However, this fact is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 28, at 51-52; Dkt. No. 18, Attach. 29, at 26-27.) 47 Although Defendant cites “Tab I” (Dkt. No. 18, Attach. 9) as containing the document stamped 1508 (Dkt. No. 15, at ¶ 82), in fact that document is contained at “Tab S” (Dkt. No. 18, Attach. 19, at 2). Furthermore, although this document is introduced by declarations that are inadmissible, the above-stated fact is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 38-39.) 48 See, supra, note 47 of this Decision and Order. 49 See, supra, note 47 of this Decision and Order; see also Dkt. No. 18, Attach. 12, at 39, 54, 69. 50 The Court finds that Dkt. No. 18, Attach. 19, is admissible for the limited purposes of showing Plaintiff's statements in his hearing, which are unchallenged by him on Defendant's motion. Moreover, the above-stated facts are supported by other admissible evidence in the record. (Dkt. No. 18, Attach. 12, at 37-38; Dkt. No. 18, Attach. 19, at 11-12, 22-27; Dkt. No. 18, Attach. 28, at 32.) Finally, Plaintiff's denial is ineffective as non- responsive to any fact expressly asserted (Dkt. No. 24, at ¶ 71). See, supra, note 5 of this Decision and Order. 51 Although Defendant's cited evidence is introduced by a declaration that is inadmissible, the above-stated fact is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 38-39.) 52 Although Defendant's cited evidence includes a declaration that is inadmissible, the above-stated fact is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 50-51; Dkt. No. 18, Attach. 20, at 22-30, 34-35; Dkt. No. 18, Attach. 29, at 29-31.) Moreover, Plaintiff's response that he is unable to admit or deny the asserted fact is insufficient to create an issue of fact for trial. (Dkt. No. 24, at ¶ 91.) See also, supra, note 12 of this Decision and Order. 53 See, supra, note 52 of this Decision and Order. The asserted fact is supported by other admissible evidence in the record. (Dkt. No. 18, Attach. 29, at 31.) 54 See, supra, note 52 of this Decision and Order. The asserted fact is supported by other admissible evidence in the record. (Dkt. No. 18, Attach. 20, at 22-30, 34-35; Dkt. No. 18, Attach. 29, at 31.) 55 See, supra, note 52 of this Decision and Order. The asserted fact is supported by the other citations provided by Defendant. (Dkt. No. 18, Attach. 29, at 29-31.) Moreover, Plaintiff's attempt to controvert the factual assertion by denying what he perceives to be an implication of the factual assertion is in vain. (Dkt. No. 24, at ¶ 96.) See also, supra, note 5 of this Decision and Order. 56 See, supra, note 52 of this Decision and Order. The asserted fact is supported by admissible evidence in the record. (Dkt. No. 18, Attach. 29, at 30-32, 34-35.) 57 See, supra, note 52 of this Decision and Order. The asserted fact is supported by other admissible evidence in the record. (Dkt. No. 18, Attach. 29, at 31-32.) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 229 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 35 58 The Court finds this report admissible as a public record and/or for the effect on the listener (i.e., District Inspector Szymaszek). (Dkt. No. 18, Attach. 20, at 52.) In any event, the factual assertion is established elsewhere in the record. (See, e.g., Dkt. No. 18, Attach. 29, at 31-32.) 59 See, supra, note 52 of this Decision and Order. The asserted fact is supported by admissible evidence in the record. (Dkt. No. 18, Attach. 12, at 54; Dkt. No. 18, Attach. 20, at 23-24; Dkt. No. 18, Attach. 29, at 31-37.) Moreover, Plaintiff's attempt to controvert the factual assertion by denying what he perceives to be an implication of the factual assertion is in vain. (Dkt. No. 24, at ¶ 106.) See also, supra, note 5 of this Decision and Order. 60 Although Defendant's cited evidence includes a declaration that is inadmissible, the above-stated fact is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 29, at 28-29.) In support of his denial of this factual assertion, Plaintiff cites generally to his 47-paragraph Statement of Additional Facts in Dispute. (Dkt. No. 24, at ¶ 110.) This is improper. See also N.D.N.Y. L.R. 7.1(a)(3) (“Each fact listed shall set forth a specific citation to the record where the fact is established.... Each denial shall set forth a specific citation to the record where the factual issue arises.”); Rizzo v. Health Research, Inc., 12-CV-1397, 2016 WL 632546, at *2 (N.D.N.Y. Feb. 16, 2016) (Suddaby, C.J.) (“Of these 136 denials, 117 denials do not contain a specific citation to the record. Therefore, the facts ‘denied’ by these paragraphs will be deemed admitted.”); Benson v. Otis Elevator Co., 10-CV-3246, 2012 WL 4044619, at *1, n.1 (S.D.N.Y. Sept. 13, 2012) (deeming fact asserted by movant to be admitted by non-movant where non-movant supported denial “only with non-specific citations to the entire testimony of several witnesses”); Janneh v. Regal Entm't, 07- CV-0079, 2009 WL 2922830, at *1, n.3 (N.D.N.Y. Sept. 8, 2009) (McAvoy, J.) (“In response ... Janneh filed a ‘Statement of Material Facts Not in Dispute.’ ... The document consists of ... a phrase at the end of the document stating simply: ‘See Attached Exhibits.’ Janneh's statement fails to comply with the Local Rules which Janneh has repeatedly been advised about....”); Univ. Calvary Church v. City of New York, 96-CV-4606, 2000 WL 1538019, at *2, n.6 (S.D.N.Y. Oct. 17, 2000) (“Despite the clear language of Rule 56 requiring specificity, Plaintiffs rarely offers an exact cite in support of their version of the facts.... [A] vague cite to all of the exhibits is simply unacceptable.”). The Court deems Plaintiff's response as an admission. 61 Although Defendant's cited evidence is inadmissible, the above-stated fact is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 54.) 62 The Court finds that Dkt. No. 18, Attach. 20, is admissible for the limited purposes of showing the witnesses statements in Plaintiff's hearing, which are unchallenged by him on Defendant's motion. 63 Although Plaintiff denies this factual assertion, he does not cite record evidence that actually controverts the record evidence cited by Defendant. (Dkt. No. 24, at ¶ 116.) 64 Although Law's written summary of findings is not admissible in current form, the Court finds that it can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). In any event, the Court finds that the factual assertion is supported elsewhere in the copious record. 65 Although admissibility problems plague the evidence cited by Plaintiff (for reasons previously stated), the Court finds that, at the very least, the above-stated fact is supported by those portions of that evidence which can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). In any event, the Court finds that the above-stated fact is supported elsewhere in the copious record. 66 The Court finds that the above-stated fact is supported in the record. (See, e.g., Dkt. No. 18, Attach. 28, at 11-12.) Plaintiff's response that he is unable to admit or deny the asserted fact is insufficient to create an issue of fact for trial. (Dkt. No. 24, at ¶ 126.) See also, supra, note 12 of this Decision and Order. In addition, Plaintiff does not provide a record citation supporting a denial. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 230 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 36 67 The Court finds that the above-stated fact is supported in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 56.) Additionally, Plaintiff improperly denied this fact without providing any record citation. (Dkt. No. 24, at ¶ 128.) See also Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of the record ... or ... showing that the materials cited do not establish the absence ... of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”); N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs.”); N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed [movant's] statement of facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a] [3] statement that “offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations”). 68 The Court notes that, although the parties characterize Plaintiff's affidavit as “sworn,” in fact it was neither signed before a notary public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 18, Attach. 36, at 2-4.) 69 Although admissibility problems plague the evidence cited by Plaintiff (for reasons previously stated), the Court finds that, at the very least, the above-stated fact is supported by those portions of that evidence which can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). In any event, the Court finds that the above-stated fact is supported elsewhere in the copious record. Moreover, Plaintiff's denial is ineffective because (1) neither of the two “declarations” he cites were signed before a notary public or sworn to pursuant to 28 U.S.C. § 1746, and (2) he fails to cite any specific paragraph(s) in those declarations. 70 See, supra, note 69 of this Decision and Order. (See also Dkt. No. 18, Attach. 12, at 19.) 71 Plaintiff's denial is ineffective because (1) neither of the two “declarations” he cites were signed before a notary public or sworn to pursuant to 28 U.S.C. § 1746, and (2) he fails to cite any specific paragraph(s) in those declarations. 72 See, supra, note 71 of this Decision and Order. 73 Plaintiff neither admits nor denies this asserted fact. (Dkt. No. 24, at ¶ 137.) This is improper. See N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's responses shall ... admit[ ] and/or deny[ ] each of the movant's assertions in matching numbered paragraphs.”) (emphasis added); In re Horowitz, 2016 WL 1039581, at *1 n.2. In any event, Plaintiff cites two declarations that are inadmissible. See, supra, note 71 of this Decision and Order. 74 Although Plaintiff denies this fact in part, he does not specify which part of the fact he is denying. (Dkt. No. 24, at ¶ 138.) This is improper. See, supra, note 5 of this Decision and Order. In any event, the portion of the record that Plaintiff cites does not actually controvert the above-stated fact. 75 Plaintiff improperly denies this fact without setting forth any record citation. See, supra, note 67 of this Decision and Order. 76 The Court notes that this asserted fact is not supported by the citation provided by Defendant. (Dkt. No. 15, at ¶ 139[c].) However, it is supported by Dkt. No. 18, Attach. 4, at 3-6 (which, although not currently in admissible form, the Court finds can be presented in a form that would be admissible at trial). 77 Plaintiff's denial is ineffective because (1) neither of the two “declarations” he cites were signed before a notary public or sworn to pursuant to 28 U.S.C. § 1746, and (2) he fails to cite any specific paragraph(s) in those declarations. 78 See, supra, note 77 of this Decision and Order. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 231 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 37 79 See, supra, note 77 of this Decision and Order. 80 The Court has modified the above-stated facts to accord with the cited record evidence. (Dkt. No. 18, Attach. 28, at 20, 35; Dkt. No. 18, Attach. 29, at 14, 21-22.) Plaintiff's denial is ineffective for the reasons stated above in note 77 of this Decision and Order. 81 See, supra, note 77 of this Decision and Order. 82 See, supra, note 77 of this Decision and Order. 83 See, supra, note 77 of this Decision and Order. 84 See, supra, note 77 of this Decision and Order. The Court notes that the Scudds Declaration is properly certified pursuant to 28 U.S.C. § 1746. (Dkt. No. 18, Attach. 35, at 4.) 85 The above-stated fact is established by Plaintiff's Complaint in this action. (Dkt. No. 1.) Plaintiff improperly denied the above-stated fact without providing any record citation for the dispute of fact. (Dkt. No. 24, at ¶ 154.) See also, supra, note 67 of this Decision and Order. 86 See, supra, note 77 of this Decision and Order. The Court notes that the above-stated fact is established by Plaintiff's Complaint in this action. (Dkt. No. 1.) 87 The Court notes that the above-stated fact is supported by the record. (See, e.g., Dkt. No. 17, Attach. 3.) 88 Plaintiff improperly denies this fact without setting forth any record citation. See, supra, note 67 of this Decision and Order. Moreover, the factual assertion expressly regards discipline, not mere charges. 89 The Court notes that this asserted fact is supported by the record. (See, e.g., Dkt. No. 18, Attach. 19, at 2; Dkt. No. 18, Attach. 20, at 39.) 90 The Court has modified the above-stated fact to accord with the cited record evidence. (Dkt. No. 18, Attach. 12, at 39; Dkt. No. 25, Attach. 7; Dkt. No. 25, Attach. 8.) 91 The Court finds that this factual assertion is supported by admissible record evidence. (Compare Dkt. No. 25, Attach. 7, and Dkt. No. 25, Attach. 8, with Dkt. No. 18, Attach. 19, at 2, and Dkt. No. 18, Attach. 20, at 39.) 92 Although Defendant's cited record evidence is not admissible in current form, the Court finds that it can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). (Dkt. No. 18, Attach. 19, at 98; Dkt. No. 18, Attach. 20, at 40.) In any event, the Court finds that the factual assertion is supported elsewhere in the copious record. 93 Although Defendant's cited record evidence is not admissible in current form, the Court finds that it can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). (Dkt. No. 18, Attach. 2, at 2-3.) In any event, the Court finds that the factual assertion is supported elsewhere in the copious record. 94 See, supra, note 93 of this Decision and Order. 95 Although some of Defendant's cited record evidence is not admissible in current form, the Court finds that it can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). (Dkt. No. 18, Attach. 1, at 4.) In any event, the Court finds that the factual assertion is supported elsewhere in the copious record. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 232 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 38 96 The Court notes that, although this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 171), it is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 3, at 8-12; Dkt. No. 18, Attach. 12, at 61). 97 The Court notes that, although this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 172), it is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 3). Moreover, Plaintiff's denial of this asserted fact is ineffective because the asserted fact regard's OSHA's findings, not Plaintiff's agreement or disagreement with them. 98 The Court finds that, although the record evidence cited by Defendant is not currently in admissible form (Dkt. No. 18, Attach. 4), the Court finds that it can be presented in a form that would be admissible at trial. 99 In support of his denial of this factual assertion, Plaintiff improperly cited to his entire deposition testimony rather than any specific location in the record. (Dkt. No. 24, at ¶ 175.) See also, supra, note 5 of this Decision and Order. 100 Plaintiff's opposition memorandum of law does not address Defendant's fifth argument. (See generally Dkt. No. 23.) Out of special solicitude to Plaintiff as a civil rights litigant, the Court will assume he has sufficiently addressed Defendant's second argument, although (despite reciting the Rule 12[b][6] standard) Plaintiff appears to rely on record evidence in all of his arguments. (Id.) 101 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.). 102 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, 10-CV-573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint (and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint....” Where a document is not incorporated by reference, the court may neverless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... “However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” “the court may nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted). 103 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]. As the Supreme Court has Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 233 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 39 explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). 104 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3). 105 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3] ); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground). 106 The Court notes that Plaintiff's opposition memorandum of law also asserts a new allegation that “[a]ny evidence regarding any discriminatory basis of the disciplinary charge is strictly excluded from the transcribed record by the hearing officer.” (Dkt. No. 23, at 8.) To the extent Plaintiff wishes to assert an allegation that Defendant violated the CBA procedure during his disciplinary proceedings, his opposition memorandum of law is an impermissible vehicle by which to assert new factual allegations. In any event, even if Plaintiff had successfully amended his Complaint to add such an allegation, an interpretation of the CBA would be required to resolve a claim based on that allegation; hence, the Court would lack subject-matter jurisdiction over such a new claim. 107 Plaintiff provided the following testimony: Q: When you say it's a safety concern, can you tell me, specifically you, yourself, when you personally, if ever, told a C.P. manager that? A: I told my union rep because they wanted us to follow the chain of command, so. ... Q: So it would be fair to say that you never–you, Mr. Niedziejko, never personally spoke to one of the C.P. managers directly? A: I–I've spoken to them directly. They–they were under–yeah– Q: About–about–about this issue, sorry. Not–not–I know you've talked– A: Yeah. Q: –with them, I'm sorry, I should be more specific–about this particular issue? A: There–they were well aware of the issue. Q: Right, but just answer my question, you personally didn't directly speak to them about the issue? A: No. (Dkt. No. 18, Attach. 12, at 14 [attaching pages “50” through “52” of transcript].) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 234 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 40 108 In addition, Plaintiff testified as follows: Q: Okay. Well, here's–here's my question. Other–other than that grievance relating to the schedule and on-call, my question is it–other than that, are there any other reports you haven't raised or talked about today, that you claim to have made that you claim consist–or constitute a hazardous safety railroad-security concern, that you brought to C.P.’s management's attention? A: The union did. Q: It would only be the union? A: They want– Q: Not you? A: –they–they wanted to use the chain of command, so that's how we did it. Q: Okay. So, in–to the extent any such reports exist, they come through the union, is what you're saying and your recollection is they are contained in this grievance from early 2015? A: I–I don't know. Q: Okay. You–you can't speak to any personal reports, you individual and personally made to C.P. management? A: No. (Dkt. No. 18, Attach. 12, at 57-58 [attaching pages “224” and “225” of transcript].) 109 Specifically, Plaintiff testified as follows: Q: And the next paragraph begins with being notified numerous times about a safety hazard, for lack of staffing of special agents being frequently scheduled to be on-call, the incompetence of our call- center, that dispatch has called numerous times. Do you see that–the–that first full sentence? It runs about four lines? A: Okay. Q: Is that reference to the notification about this alleged safety hazard? Is that getting at the grievance that you've been referring to, that you say you relied on the union to submit and work the chain of command? A: Yeah. I'm guessing so. Q: Okay. Is there anything else alleged in this statement about any other types of alleged safety reports that you claimed to have raised to C.P. management? A: Whatever's in here. Q: Okay. So, this is a complete and accurate statement from you, as to what, if any hazardous-condition reports you claim to have made? Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 235 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 41 A: Whatever's in that document there. Q: Okay. But I just wanted to be clear on that first paragraph, that we're talking–that it's again, going back to that union grievance, that you direct me to the union, to find more out about, that you can't speak to, directly or personally. That's what I just want to make clear, that it is–there isn't something else. A: Whatever's in the complaints. (Dkt. No. 18, Attach. 12, at 59-60 [attaching pages “232” and “233” of transcript].) 110 Plaintiff testified regarding a conversation with District Inspector Szymaszek as follows: Q: So can you explain to me more specifically how you believe they were violating the contract when it came to scheduling? A: Whatever the Union rep went with. They would have us working, like, seventeen days straight with no days off, being on-call for all those times, you know, we brought that to their attention, that it was a safety issue. And they said, you know– Q: And– A: –they–they always said, you know, sometimes–I'm like, we can't be on call, you know twenty-one days straight or seventeen days straight and Dennis would say, well sometimes, you know, you guys got to suck it up and, you know, sometimes the company's got to feel the burn. But the only people that felt the burn were the guys being on-call, you know, seventeen days straight. (Dkt. No. 18, Attach. 12, at 13 [attaching pages “45” and “46” of transcript].) Plaintiff testified regarding a conversation with Sergeant Kevin Seymour as follows: Q: Okay. Is that the only statement that you claim was made? A: No. He's also made the statement–he's like I don't know what you guys think you're doing, calling the union on us. It's not–it's not going to hurt me or Dennis. It's only going to hurt you guys. That sounds like a threat to me and that was in Detroit, during firearms training. And REDACTED was– Q: And–? A: –and REDACTED was present, right there. Because we were complaining, once again, about the scheduling. So, we called the union, the union called him. So–. Q: And when exactly was the date that you're referring to, in Detroit, during firearms training? A: Hang on. March 28th, through the 31st, we were in Detroit for firearms training. (Dkt. No. 18, Attach. 12, at 64 [attaching pages “250” and “251” of transcript].) Plaintiff testified regarding a conversation with Jim Thomas, a claims agent for Defendant as follows: A: ... The claims' manager was listening in on a conversation over the speaker phone and Dennis called up the superintendent to get the process of how you go about writing people up because we never had anybody written up before. And then this claims' manager pulled me aside and said hey, Dennis Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 236 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 42 is calling here. He's looking to fire you guys and write you guys up. I'm like, are you kidding me. I'm like, over what? So, and that's–that was during the time the grievances were filed. (Dkt. No. 18, Attach. 12, at 65 [attaching page “254” of transcript].) 111 Plaintiff's OSHA complaint also refers to his conversation with Sergeant Seymour stating: REDACTION 3 and myself had a conversation with Sgt. Seymour on March 30, 2016, in Det [sic] Michigan about scheduling, overtimes, and other union issues. He told us that he had spoken to REDACTION 4 about our concerns. He stated “it's only going to hurt you guys an [sic] not me or Dennis.” (Dkt. No. 18, Attach. 1, at 7.) 112 Alternatively, the Court can, and does, deem the challenged claims abandoned (regardless of the facial merit of the unresponded-to argument). See Jackson v. Fed. Exp., 776 F.3d 189, 197-98 (2d Cir. 2014) (“Where a partial response to a motion is made-i.e. referencing some claims or defenses but not others-a distinction between pro se and counseled responses is appropriate. In the case of a pro se, the district court should examine every claim or defense with a view to determining whether summary judgment is legally and factually appropriate. In contrast, in the case of a counseled party, a court may, when appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been abandoned. In all cases in which summary judgment is granted, the district court must provide an explanation sufficient to allow appellate review. This explanation should, where appropriate, include a finding of abandonment of undefended claims or defenses.”). 113 “The term ‘cat's paw’ derives from a fable conceived by Aesop.... In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.” Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011). The term was injected into employment-discrimination law in 1990, see Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990), and into the FRSA context in 2014, see Consol. Rail Corp. v. U.S. Dep't of Labor, 567 F. App'x 334, 338 (6th Cir. 2014). 114 For example, District Inspector Szymaszek testified as follows: Q: In terms of the shotgun incident that led to charges against Mr. Niedziejko, were you involved in determining the ultimate discipline that was assessed in that matter? A: No. Q: Who was? ... A: I don't know who was involved in determining it. I know I was copied on a letter regarding the discipline but I don't know who was involved in determining. (Dkt. No. 18, Attach. 29, at 22 [attaching page “21” of transcript].) Q: Did you consider an informal counseling for Mr. Niedziejko over that event? A: I believe that was discussed with the Inspector of Personnel and Training. Q: Did he ask you for your input on that? Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 237 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 43 A: I believe he asked for information and I believe that a write-up was submitted. Q: Okay. But did he ask you for your input as to whether [or] what the discipline should be? A: No. (Id. at 27 [attaching page “26” of transcript].) Q: At any point did you advocate that Mr. Niedziejko should not be terminated from his position to any persons? A: I didn't have any conversations with anybody regarding what the discipline should be that I recall. (Id. at 40 [attaching page “39” of transcript].) 115 Rather, Sergeant Seymour testified as follows: Q: In terms of your time as a supervisor at Albany, ... how many times have you brought charges against one of the people that worked under you in terms of they're not following the rules not, you know, acting appropriately or for any reasons? ... A: I never personally brought charges against anybody. I was involved in one hearing as a witness. Q: So in terms of the disciplinary charges that were brought against Mr. Niedziejko you weren't involved in raising any of those charges? ... A: I was not involved in raising or bringing charges, no. ... Q: Okay. The question is: Were you involved in raising any disciplinary charges under the Collective Bargaining Agreement that led to Mr. Niedziejko's termination. A: I was a witness in–not in the–no. I was witness in the one hearing involving shotgun logs. Q: At any point from the time you became a supervisor up until the time Mr. Niedziejko was terminated did anyone at C.P. Rail other than attorneys, ... did anyone ever ask you your opinion on whether Mr. Niedziejko should be terminated or dismissed? A: No. Q: At any time from the time that Mr. Niedziejko was initially charged with any disciplinary violations over the Collective Bargaining Agreement up until the time he was terminated, at any point did you request that the termination be rescinded or that he be charged with something less than termination? A: No. (Dkt. No. 18, Attach. 28, at 11-13 [attaching pages “10” through “12” of transcript].) Q: Okay. Now there was a hearing for the shotgun logs, are you familiar with that? Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 238 of 290
Niedziejko v. Delaware & Hudson Ry. Co., Inc., Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 44 A: Yes. Q: Were you involved in that hearing at all? A: I was a witness. (Id. at 31 [attaching page “30” of transcript].) Q: Do you know why Mr. Niedziejko was charged with a disciplinary infraction regarding the shotgun logs? A: I, I have a general knowledge but I wasn't part of that decision. (Id. at 34-35 [attaching pages “33” and “34” of transcript].) Q: Other than what's in the transcript hearing which I have and I've reviewed, did anyone that you're aware of advocate that Mr. Niedziejko not be terminated from his position? ... A: Not that I'm aware of. (Id. at 45-46 [attaching pages “44” and “45” of transcript].) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 239 of 290
Reyes v. McGinnis, Not Reported in Fed. Supp. (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Tackman v. Goord, W.D.N.Y., September 26, 2005 2003 WL 23101781 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Jose REYES, Plaintiff v. Superintendent MCGINNIS, Dept. of Security Morse, Correctional Officer Gridley, and Nurse Miller, Defendants. No. 00–CV–6352–CJS | April 10, 2003. Synopsis Background: Pro se prisoner brought § 1983 action against prison superintendent, deputy superintendent, corrections officer, and prison nurse, alleging that he was forcibly removed from his cell, handcuffed too tightly, punched and threated by officer, that nurse ignored prisoner's injuries, and that superintendent and deputy were aware that officer had injured other prisoners. Defendants moved for summary judgment. Holdings: The District Court, Siragusa, J., held that: [1] neither prison superintendent nor deputy superintendent were deliberately indifferent to danger of assault by officer; [2] genuine issues of material fact precluded summary judgment in favor of officer and nurse; and [3] state law tort claims against prison officials and corrections officer were required to be dismissed. Motion granted in part, and denied in part. West Headnotes (4) [1] Civil Rights Criminal law enforcement; prisons Neither prison superintendent nor deputy superintendent were deliberately indifferent to danger of assault by corrections officer against prisoner, and thus could not be liable in prisoner's § 1983 supervisory liability action, arising out of alleged actions of officer, in forcibly removing prisoner from cell, handcuffing him to tightly, punching and threatening him; superintendent and deputy lacked direct personal knowledge about the incident or about alleged prior incidents of violence involving officer. 42 U.S.C.A. § 1983. [2] Civil Rights Criminal law enforcement; prisons Summary Judgment Prisons and jails Genuine issue of material fact as to whether prison staff prevented prisoner from exhausting his administrative remedies with respect to claim arising from alleged assault by corrections officer and nurse's alleged failure to treat his injuries, precluded summary judgment in favor of officer and nurse, in prisoner's § 1983 action. 42 U.S.C.A. § 1983; Civil Rights of Institutionalized Persons Act, § 7, 42 U.S.C.A. § 1997e(a). 1 Case that cites this headnote [3] Civil Rights Criminal law enforcement; prisons Summary Judgment Prisons and jails Genuine issue of material fact as to whether corrections officer's alleged improper use of handcuffs on prisoner's wrist was proximate cause of ganglion cyst that prisoner developed, precluded summary judgment in favor of officer, in prisoner's § 1983 excessive force action. 42 U.S.C.A. § 1983. 2 Cases that cite this headnote [4] Prisons Liabilities Public Employment Law enforcement personnel Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 240 of 290
Reyes v. McGinnis, Not Reported in Fed. Supp. (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Prisoner's in forma pauperis state law tort claims against prison officials and corrections officer, in their individual capacities, arising out of officer's alleged assault against prisoner, were required to be dismissed. 28 U.S.C.A. § 1915(e)(2)(B). Attorneys and Law Firms Jose Reyes, Brooklyn, New York, for plaintiff, pro se. Kelly McCarthy, Assistant Attorney General, Office of the New York State, Attorney General, Rochester, New York, for defendants. DECISION AND ORDER SIRAGUSA, J. INTRODUCTION *1 This is an action in which the pro se plaintiff, a former prison inmate, is suing various employees of the New York State Department of Correctional Services (“DOCS”), pursuant to 42 U.S.C. § 1983. The complaint also asserts state-law causes of action for assault, battery, and negligence. Now before the Court is plaintiff's motion for summary judgment [# 40]. For the reasons that follow, the application is granted in part and denied in part. BACKGROUND On July 28, 1998, at Southport Correctional Facility, plaintiff was forcibly removed from his cell by corrections officers, after he allegedly refused to uncover his cell door. Once plaintiff was removed, defendant Corrections Officer Dana Gridley (“Gridley”) handcuffed plaintiff. Plaintiff contends that Gridley intentionally applied the handcuffs too tightly, causing plaintiff extreme pain. Plaintiff alleges that Gridley then repeatedly punched and threatened to kill him, and lifted him from the floor by his handcuffs, again causing extreme pain. According to plaintiff, Gridley's misuse of the handcuffs caused him to suffer nerve damage in his wrists. Plaintiff also contends that Gridley's alleged improper use of handcuffs caused him to develop a ganglion cyst, which he had surgically removed from his wrist in January 2001. The Complaint asserts a cause of action pursuant to 42 U.S.C. § 1983, as well as state-law claims for assault and battery, against Gridley. After plaintiff was forcibly removed from his cell on July 28, 1998, corrections officers had him examined by defendant Nurse Steven Miller (“Miller”), who made notes in plaintiff's ambulatory health record regarding his various injuries. Plaintiff alleges, however, that Miller ignored and failed to record the fact that plaintiff's hands were extremely swollen and bleeding. The Complaint asserts 8 th Amendment deliberate indifference and state-law negligence claims against Miller. Neither defendant Michael McGinnis (“McGinnis”), Superintendent of Southport, nor defendant Richard Morse (“Morse”), Deputy Superintendent for Security at Southport, were present when plaintiff was extracted from his cell or when he was examined by Miller. Nonetheless, plaintiff contends that both are liable for the alleged constitutional violations by Gridley. Plaintiff contends that both McGinnis and Morse were aware, prior to the July 28 th incident, that Gridley had injured other inmates by applying their handcuffs too tightly, but had failed to take action against him. The Complaint asserts Section 1983 supervisory liability claims against McGinnis and Morse in connection with the alleged assault by Gridley, as well as claims for assault and battery. 1 The parties have now completed pre-trial discovery, and defendants are moving for summary judgment on three separate grounds. Defendants first allege that the entire action must be dismissed, because plaintiff failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). McGinnis and Morse also contend that they are entitled to judgment, because they were not personally involved in the alleged constitutional violations. Finally, defendants contend that plaintiff's claims seeking damages for the ganglion cyst on his wrist must be dismissed, since there is no proof that Gridley's alleged misuse of handcuffs caused the ganglion cyst. Plaintiff has filed a response, disputing all of defendants' contentions. The Court has thoroughly considered the parties' submissions and the entire record in this action. ANALYSIS *2 The standard for granting summary judgment is well established. Summary judgment may not be granted unless Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 241 of 290
Reyes v. McGinnis, Not Reported in Fed. Supp. (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 “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.” Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied.” 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190 (1996). The burden then shifts to the non-moving party to demonstrate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, “after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non- moving party.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v.. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). A court should read a pro se litigant's papers liberally, interpreting them “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). However, when alleging a violation of a civil rights statute, even a pro se litigant must make “specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.” Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987). To pursue an action under 42 U.S.C. § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v.. City of New York, 985 F.2d 94, 98 (2d Cir.1993). To be liable for money damages under 42 U.S.C. § 1983, a defendant must have been personally involved in the alleged constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Personal involvement by a supervisory official may be shown by evidence that: *3 (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Id. (citations omitted). A plaintiff may not rely upon the doctrine of respondeat superior to establish supervisory liability under 42 U.S.C. § 1983. Monell v. New York City Department of Social Services, 436 U.S. 658, 691–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). [1] Applying these legal principles to the facts of this case, the Court first finds that judgment must be granted as to Superintendent McGinnis and Deputy Superintendent Morse. In support of the motion to dismiss the supervisory liability claims, defendants' counsel has submitted sworn interrogatory responses from McGinnis and Morse, in which they deny any knowledge of Gridley having committed assaults on inmates. McCarthy Aff. [# 47], Ex. B. Defendants have also submitted a portion of the transcript of plaintiff's April 1, 2001 deposition, in which he testified that he did not have any direct personal knowledge that either McGinnis or Morse knew, prior to August 28, 1998, that Gridley had mistreated other inmates. Id., Ex. B. Plaintiff testified that he Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 242 of 290
Reyes v. McGinnis, Not Reported in Fed. Supp. (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 assumed that McGinnis and Morse must have become aware of assaults by Gridley through reading incident reports and letters from inmates, although he admitted that he did not have any evidence of that. Id., pp. 61–62. In opposition to defendants' motion, plaintiff has not supplied any evidence that either McGinnis or Morse were deliberately indifferent to a danger of assault by Officer Gridley. Rather, plaintiff now lists a number of inmates who were allegedly assaulted by corrections officers over a period of years. 2 However, with the exception of an alleged assault of an inmate named R. Stokes, none of those alleged incidents involved Gridley. As to Stokes, plaintiff has provided an affidavit from him, in which Stokes claims that, prior to the alleged incident involving plaintiff, Gridley applied handcuffs to him “sadistically,” but Stokes does not allege that he ever made McGinnis or Morse aware of the incident. Complaint, Ex. 7; Plaintiff's Aff. in Support of Attempted to Exhaust [sic] Administrative Remedies, Attached Aff. of Roger Stokes . 3 Plaintiff also makes an unsubstantiated, hearsay accusation that Gridley kicked out the teeth of an inmate named Miguel Hacha on March 10, 1995. Plaintiff's Aff. in Support of Supervisor Liability Against Defendants McGinnis and Morse, ¶¶ 20, 24. There is no indication, though, in the record that plaintiff either actually witnessed, or that he has any personal knowledge regarding the alleged incident. Plaintiff's claim that Hacha filed an inmate grievance concerning the matter is similarly unsupported hearsay. The Court, therefore, finds that plaintiff has not come forward with evidentiary proof in admissible form sufficient to create a triable issue of fact as to supervisory liability under Section 1983, and accordingly, grants summary judgment as to defendants McGinnis and Morse. *4 Defendants further contend that plaintiff's remaining claims must be dismissed pursuant to 42 U.S.C. § 1997e(a), because he did not exhaust his administrative remedies before commencing this action. 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” It is well settled that, [i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee (“IGRC”), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee (“CORC”) makes the final administrative determination. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court. Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y.2002) (citations omitted). Where a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing his lawsuit, the district court should dismiss the action without prejudice. Neal v.. Goord, 267 F.3d 116, 121–23 (2d Cir.2001), overruled in part on other grounds, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Here, it is undisputed that plaintiff did not actually exhaust his administrative remedies before commencing this action. However, he contends that he made a good faith effort to exhaust, but was prevented from doing so by unknown prison staff. Specifically, he states that on August 3, 1998, he filed two grievances, one concerning the purported assault by Gridley, and one concerning the alleged denial of medical treatment by Miller, by handing them to the individual collecting outgoing mail in Attica's 4 Segregated Housing Unit (“SHU”). Plaintiff's Aff. in Support of Attempt to Exhaust, ¶¶ 8, 17–19. He maintains that, when he did not receive a response to those complaints, he filed another grievance in the same manner on August 14, 1998, complaining that his grievances were not being processed. Having received no response to any of the three grievances, he claims that on September 13, 1998, he wrote to Superintendent McGinnis, complaining about the alleged assault and failure to provide medical care, as well the failure to process his grievances. 5 Plaintiff contends that when McGinnis did not respond, on October 27, 1998, he filed an appeal with the Central Office Review Committee (“CORC”). CORC has no record of ever having received such an appeal. Bellamy Aff. [# 46]. Nonetheless, plaintiff maintains that he did mail the appeal, by placing it in the custody of Attica staff, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 243 of 290
Reyes v. McGinnis, Not Reported in Fed. Supp. (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 just as he had earlier mailed the grievances and the appeal letter to McGinnis. *5 [2] There is a “general principle that an inmate's technical failure to exhaust administrative remedies before commencing a § 1983 action may be excused where officials prevented him from utilizing a grievance procedure.” Arnold v. Goetz, – F.Supp.2d –, No. 01 Civ. 8993(WK), 2003 WL 256777 at *6 (S.D.N.Y. Feb.4, 2003) (citations omitted). As the Court noted in Arnold v. Goetz, “prison officials cannot have it both ways—they cannot obstruct an inmate's pursuit of administrative exhaustion on the one hand and then claim the inmate did not properly exhaust these remedies on the other.” Id. Based upon plaintiff's affidavit, the Court finds that there is a triable issue of fact as to whether or not prison staff prevented him from exhausting his administrative remedies. Defendants, however, contend that they are nonetheless entitled to summary judgment on the exhaustion issue, since plaintiff's attempts to exhaust were untimely. In that regard, defendants refer to to 7 N.Y.C.R.R. §§ 701.7 & 701.8, which establish certain deadlines in the inmate grievance process. For example, § 701.7(a)(3) & (4) provide that the Inmate Grievance Resolution Committee “shall have up to seven working days to review a grievance and resolve it informally,” and that if there is no informal resolution, a hearing “must take place within seven working days after receipt of the grievance.” Moreover, § 701.7(b)(1) provides that an inmate may file an appeal “[w]ithin four working days receipt of the committee's written response to the grievance,” and that, “[i]f no appeal is filed upon denial by the IGRC, it will be presumed that the grievant or direct party accepts the committee's recommendation.” Section 701.7(b) also specifies deadlines for the superintendent to respond to grievances. Section 701.7(c)(1), meanwhile, states that “[w]ithin four working days after receipt of the superintendent's written response, an inmate ... may appeal the superintendent's action to the CORC by filing an appeal with the IGP clerk.” Defendants contend that, if an inmate does not receive a response, either from the IGRC or the Superintendent, within the time specified for the IGRC or the superintendent to take action, he must file an appeal to the next level of review, or else be time barred from exhausting administrative remedies. 6 Defendants do not cite any New York regulation to support this theory, and, on the contrary, § 701.7 expressly provides that the deadlines for inmates to file appeals are triggered by the inmate's receipt of a written response from either the IGRC or the superintendent. Section 701.8 states that “matters not decided within the time limits may be appealed to the next step,” but is not mandatory. (emphasis added). Defendants have not cited any case authority from this circuit to support their theory, and the two cases from other circuits which they have cited, Marsh v. Jones, 53 F.3d 707 (5 th Cir.1995) and Wright v. Morris, 111 F.3d 414 (6 th Cir.1997), are factually inapposite. Under the facts of the instant case, viewed in the light most favorable to plaintiff, the Court declines to find that plaintiff's appeals are time barred. Consequently, defendants' motion for summary judgment pursuant to 42 U.S.C. § 1997e(a) is denied. *6 [3] The Court also denies defendants' application for summary judgment as to plaintiff's claims involving the ganglion cyst on his right forearm. 7 A plaintiff suing under Section 1983 must demonstrate that the defendant's actions were the proximate cause of the alleged injury. Taylor v. Brentwood Union Free School Dist., 143 F.3d 679 (2d Cir.1998), cert. denied, 525 U.S. 1139 (1999). It is a “well established principle that questions of causation are generally questions of fact to be submitted to the jury.” Petrozza v. Inc. Village of Freeport, 602 F.Supp. 137, 144 (E.D.N.Y.1984)(citing PROSSER, LAW OF TORTS § 45 (4th ed.1971)). Here, plaintiff claims to have suffered trauma to his wrists as a result of Gridley's use of handcuffs, and he subsequently developed a cyst at the site of the trauma. The Court finds that it is an issue of fact for trial as to whether or not the ganglion cyst was caused by the alleged assault. [4] Finally, in its initial Decision and Order [# 4] in this action, entered on October 23, 2000, the Court granted plaintiff's application to proceed in forma pauperis, and reviewed the complaint pursuant to 28 U.S.C. § 1915(e)(2) (B). At that time, the Court understood that plaintiff was only asserting claims pursuant to 42 U.S.C. § 1983. See, Decision and Order [# 4], p. 4 (“Plaintiff brings this action pursuant to 42 U.S.C. § 1983.”). In connection with its review of the record in this action, the Court has reviewed the complaint, and notes that the complaint also purports to assert pendent state tort claims for assault, battery, and negligence. See, e.g., Complaint, p. 1. Any state tort causes of action should have been dismissed in the Court's initial Decision and Order, pursuant to New York Corrections Law § 24, which bars civil actions against officers and employees of the Department of Correctional Services, in the individual capacities, “for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.” In Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 244 of 290
Reyes v. McGinnis, Not Reported in Fed. Supp. (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir.1996), the Second Circuit Court of Appeals held that Corrections Law § 24, “by its plain terms, precludes the assertion of [state law] claims against corrections officers in any court, including the federal courts.” Accordingly, the Court now dismisses plaintiff's state tort causes of action against all of the defendants in their individual capacities. 8 CONCLUSION With regard to plaintiff's causes of action pursuant to 42 U.S.C. § 1983, defendants' motion for summary judgment is granted as to McGinnis and Morse, and is denied as to Gridley and Miller. Plaintiff's state tort causes of action are dismissed as against all defendants. The case will proceed to trial only on the Section 1983 claims against Gridley and Miller. By separate order, the Court will schedule a pre-trial conference. So ordered. All Citations Not Reported in Fed. Supp., 2003 WL 23101781 Footnotes 1 The Complaint does not assert supervisory liability claims against McGinnis or Morse in connection with Miller's alleged failure to provide medical care. 2 Plaintiff offers no explanation of how he has now come to have this information, which he claimed he did not have at the time of his deposition. 3 In his affidavit attached to the complaint, Stokes stated only that he was injured by Officer Gridley's misuse of handcuffs, but did not indicate that he filed a grievance or took any other action. In his affidavit submitted in opposition to the summary judgment motion, Stokes claims that he filed grievances regarding the incident on three separate occasions, but “never receive[d] any response from the inmate grievance complaint office.” Plaintiff's Aff. in Support of Attempted to Exhaust Administrative Remedies, Attached Aff. of Roger Stokes. Stokes does not allege that he ever made McGinnis or Morse aware of the alleged incident. 4 As discussed above, the incidents complained of occurred at Southport Correctional Facility. The day following the alleged incidents, plaintiff was moved to Attica Correctional Facility and placed in Attica's SHU. Plaintiff contends that he attempted to mail his various grievances and letters from Attica to Southport. 5 Defendants contend that there is no record of any of the three grievances having been received. In support of the motion for summary judgments, defendants have submitted an affidavit from William Ciancio, the Inmate Grievance Supervisor at Southport. In it, Ciancio states that he “caused a print-out to be made of all grievances filed by inmate Jose Reyes (93–R–3077) while he was incarcerated at Southport.” Ciancio Aff. [# 45], ¶ 2 (emphasis added). However, Reyes was incarcerated at Attica, not Southport, when he allegedly filed the grievances. 6 Defendants allege that plaintiff was 19 days late in filing his appeal to the superintendent, and 36 days late in filing his appeal to CORC. 7 In footnote 5 of their reply brief, defendants state that they wish to amend their motion for summary judgment, to include plaintiff's claim that he suffered neuropathy as a result of Gridley's application of handcuffs. That application is denied, since plaintiff did not have notice or an opportunity to be heard on that issue. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 245 of 290
Reyes v. McGinnis, Not Reported in Fed. Supp. (2003) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 8 The Court's initial Decision and Order dismissed all claims against the defendants in their official capacities, pursuant to the Eleventh Amendment. Decision and Order [# 4], p. 4. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 246 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Foskey v. Paige, N.D.N.Y., March 4, 2024 2017 WL 2791063 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Edy RODRIGUEZ, Plaintiff, v. J. CROSS, Sergeant, Clinton Correctional Facility; et al., Defendants. No. 15-CV-1079 (GTS/CFH) | Signed 05/09/2017 Attorneys and Law Firms Edy Rodriguez, East Elmhurst, NY, pro se. Ryan E. Manley, Harris, Conway & Donovan, Christopher J. Hummel, New York State Attorney General, Albany, NY, for Defendants. REPORT-RECOMMENDATION AND ORDER 1 Christian F. Hummel, U.S. Magistrate Judge *1 Plaintiff pro se Edy Rodriguez (“Plaintiff”), an inmate who was, at all relevant times, in the custody of the New York Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that Sergeant (“Sgt.”) J. Cross, Sgt. R. Furnia, Correction Officer (“C.O.”) G. Falcon, and C.O. J. Roberts (collectively “Defendants”) violated his constitutional rights under the First and Eighth Amendments. Dkt. No. 1 (“Compl.”). 2 Presently pending is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56(a) for plaintiff's failure to exhaust administrative remedies before commencing this action. Dkt. No. 26. Plaintiff filed a response in opposition to defendants' motion. Dkt. No. 34. Defendants filed a reply. Dkt. No. 39. I. Background The facts are reviewed in the light most favorable to plaintiff as the non-moving party. See subsection II(A) infra. At the relevant times giving rise to plaintiff's claims, plaintiff was an inmate incarcerated at Clinton Correctional Facility (“Clinton”). On July 10, 2014, plaintiff wrote a letter to Sgt. Cross “complaining about being harassed” by staff at Clinton. Compl. at 4. Plaintiff further alleges that he was taken out of his cell on July 14, 2014, brought to the second floor of the facility's hospital, and subjected to a “beating” by defendants. Compl. at 4-5. Sgt. Cross grabbed him by the hair; Sgt. Furnia punched him; and C.O. Falcon and C.O. Roberts punched him in the face, back, and neck. Id. at 4. Plaintiff alleges “each one of the blows” he suffered was from the named defendants, as well as other officers he cannot identify by name. Id. at 5-6. After the alleged incident, plaintiff was seen by a nurse with “about ten” officers present in the room, where he admits “having no choice,” but to tell the nurse that officers had just beat him up. See Affirmation of Christopher J. Hummel (“Hummel Aff.”), Dkt. No. 26-1, Exhibit (“Exh.”) A 3 at 59-60. 4 While at Clinton, plaintiff filed five grievances. See Declaration of Christine Gregory (“Gregory Decl.”), Dkt. No. 26-3 Exh. A at 6. Only one grievance was appealed. Declaration of Jeffrey Hale (“Hale Decl.”), Dkt. No. 26-2 ¶¶ 12-13. The subject matter of the single appealed grievance does not concern the matter before the Court. Id. ¶ 12. The only grievance filed that is pertinent to the pending motion was filed on July 29, 2014. See Gregory Decl. Exh. B at 8. This grievance alleges that plaintiff suffered “an assault by (C.O.)” and, following the assault, did not receive appropriate medical care. Id. The investigation into the July 29, 2014 grievance concluded that plaintiff saw his medical provider, and medicine was given to him without any further action. Id. at 10. The investigation did not mention anything about an assault. Id. *2 Plaintiff alleges that he filed a grievance regarding the incidents described in his complaint, but an unidentified Sergeant destroyed the grievance. Compl. at 2. He also alleges that he was beaten by correction staff for filing the grievance. Id. Plaintiff also states that he filed a handwritten grievance (not on a grievance form) on July 19, 2014, regarding the July 14, 2014 incident. See Hummel Aff. Exh. A at 93. Plaintiff Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 247 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 alleges that he sent a copy of this grievance to his mother and instructed her to send it directly to Clinton “[f]rom outside.” Id. at 94. Defendants have no record of this grievance being filed. See Gregory Decl. Exh. A at 6. Plaintiff never inquired further about the July 19, 2014 grievance, but maintains that he has handwritten copies of the grievance since he did not have access to carbon paper when he originally drafted this grievance. See Hummel Aff. Exh. A at 94-95, 96-97. The July 19, 2014 grievance was drafted while plaintiff was in keeplock. Id. at 93. Plaintiff further alleges, in his response to defendants' motion for summary judgment, that defendants have total control over facility mail and any failure to exhaust administrative remedies occurred because defendants strategically removed grievances from the mailbox to cover up their use of excessive force against plaintiff. See Dkt. No. 34 at 4. Plaintiff further alleges a general belief that there is a pattern of prison officials threatening and retaliating against inmates for filing grievances, thus making administrative remedies unavailable. Id. at 6. Lastly, plaintiff alleges that there is an “unwritten posture” at Clinton where inmates are not given grievance forms unless they provide a clear description of their complaint, or the complaint does not involve staff misconduct. Id. at 8. II. Discussion 5 Plaintiff alleges that defendants retaliated against him in violation of the First Amendment, used excessive force against him in violation of the Eighth Amendment, and violated his Due Process rights under the First and Fourteenth Amendments. See Compl. at 7. Defendants argue that plaintiff's complaint should be dismissed in its entirety as plaintiff failed to exhaust his administrative remedies with respect to the causes of action outlined in the Complaint. See Defendants' Memorandum of Law, Dkt. No. 26-5 at 3. A. Legal Standard For Motions Pursuant to Fed. R. Civ. P. 56(a) “A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party has the burden of showing the absence of disputed material facts by providing the Court with portions of “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it may affect the outcome of the case as determined by substantive law, such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “In determining whether summary judgment is appropriate, [the Court] will resolve all ambiguities and draw all reasonable inferences against the moving party.” Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). To avoid summary judgment, a non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A non-moving party must support such assertions by evidence showing the existence of a genuine issue of material fact. Carey, 923 F.2d at 19. “When no rational jury could find in favor of the non-moving party because the evidence to support is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Services, Ltd. Partnership, 22 F.3d, 1219, 1224 (2d Cir. 1994). *3 Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated, [t]here are many cases in which we have said that a pro se litigant is entitled to “special solicitude,” ... that a pro se litigant's submissions must be construed “liberally,” ... and that such submissions must be read to raise the strongest arguments that they “suggest,” .... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not “consistent” with the pro se litigant's allegations, ... or arguments that the submissions themselves do not “suggest,” ... that we should not “excuse frivolous or vexatious filings by pro se litigants,” ... and that pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law” .... Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191–92 (2d Cir. 2008). B. Exhaustion of Administrative Remedies Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 248 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust any administrative remedies available to him or her before bringing an action for claims arising out of his or her incarceration. Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 548 U.S. 81, 82 (2006). The exhaustion requirement applies “ ‘to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.’ ” Mauldin v. Kiff, No. 11-CV-107- A, 2014 WL 2708434, at *4 (W.D.N.Y. June 16, 2014) (quoting Porter, 534 U.S. at 532). Further, the exhaustion requirement applies even where the prisoner seeks relief not available in the administrative grievance process, such as monetary damages. Porter, 534 U.S. at 524. To exhaust administrative remedies, the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he or she is incarcerated. Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation omitted). Although the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that “certain caveats apply.” Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citation omitted). Until recently, courts in this District followed a three-part test established by the Second Circuit in Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). Under the test established in Hemphill, a plaintiff's failure to exhaust could be excused if a plaintiff established that his or her failure to exhaust was justified by “special circumstances.” Id. However, the Supreme Court recently held that “[c]ourts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA's exhaustion requirement.” Ross v. Blake, 136 S. Ct. 1850, 1862 (2016). As such, the special circumstances exception previously promulgated by the Second Circuit in Hemphill is no longer consistent with the statutory requirements of the PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016). *4 Although the Supreme Court's decision in Ross eliminates the “special circumstances” exception promulgated by Hemphill, courts must still consider the PLRA's “textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. Under this exception, courts must determine whether administrative remedies were “available” to a prisoner. Id. The Supreme Court identified three circumstances where administrative remedies may be unavailable to a prisoner. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859 (citing Booth v. Churner, 532 U.S. 731, 736, 738 (2001)). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. Here, there is no genuine dispute that at all relevant times, DOCCS had in place a three-step inmate grievance program. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5. First, the inmate must file a complaint with an inmate grievance program (“IGP”) clerk within twenty-one days of the alleged incident. Id. at § 701.5(a)(1). An IGP representative has sixteen calendar days to informally resolve the issue. Id. at § 701.5(b)(1). If no informal resolution occurs, the Inmate Grievance Review Committee (“IGRC”) must hold a hearing within sixteen days of receipt of the grievance and must issue a written decision within two working days after the conclusion of the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the determination is unfavorable to the inmate, the inmate may appeal the IGRC's determination to the facility superintendent within seven calendar days of receipt of the determination. Id. § 701.5(c)(1). If the superintendent's determination is unfavorable to the inmate, the inmate may appeal to the Central Office Review Committee (“CORC”) within seven days after receipt of the superintendent's determination. Id. §§ 701.5(d)(i)-(ii). CORC must “review each appeal, render a decision on the grievance, and transmit its decision to the facility, with reasons stated, for the [inmate], the grievance clerk, the superintendent, and any direct parties within thirty (30) calendar days from the time the appeal was received.” Id. § 701.5(d)(3)(ii). 1. Application First, the Court will address whether there is any genuine dispute that plaintiff failed to exhaust his administrative remedies. Courts in the Second Circuit have consistently held that any informal resolutions or relief outside of the administrative procedures do not satisfy exhaustion requirements. See, e.g., Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (holding that regardless of whether prison officials know of plaintiff's complaints in a “substantive sense,” procedural exhaustion of remedies must still occur); Ruggiero v. Cty. of Orange, 467 F.3d 170, 177-78 (2d Cir. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 249 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 2006); Perez v. City of N.Y., No. 14 CIV. 07502(LGS), 2015 WL 3652511, at *4 (S.D.N.Y. June 11, 2015) (“Plaintiff's allegation that he advised others of his grievance does not excuse his failure to exhaust the administrative process.”). Here, subsequent to the alleged events giving rise to the matter before the Court, plaintiff states he and family members contacted the Inspector General's Office to complain about prison conditions and concerns of plaintiff's safety. See Hummel Aff. Exh. A at 89, 90. Such correspondence does not satisfy exhaustion and falls outside of the grievance procedures. See Geer v. Chapman, No. 9:15-CV-952(GLS/ ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26, 2016), report and recommendation adopted, No. 9:15- CV-952 (GLS/ATB), 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016) (“It is well-settled that writing letters to prison officials, or other officials, is insufficient to properly exhaust administrative remedies.”); Salmon v. Bellinger, No. 9:14- CV-0827(LEK/DJS), 2016 WL 4411338, at *4 (N.D.N.Y. July 5, 2016), report and recommendation adopted by, No. 9:14-CV-0827(LEK/DJS), 2016 WL 4275733 (N.D.N.Y. Aug. 12, 2016) (holding that letters sent to the Inspector General do not satisfy exhaustion procedures). *5 After the alleged incident of excessive force, plaintiff was seen by a nurse in a room with “about ten” officers present, where he admits “having no choice” but to tell the nurse that the officers had beat him up. Hummel Aff. Exh. A at 59-60. Plaintiff alleges filing grievances on July 19, 2014 and July 29, 2014 that mention the assault. See id. at 93; Gregory Decl. Exh. B at 6, 8-10. Defendants state that there is no record of appeal on any grievances pertaining to the alleged assault. Gregory Decl. ¶ 15. While plaintiff's complaints were aired verbally and in writing, plaintiff failed to utilize the procedures required to exhaust administrative remedies. Timmons v. Schriro, No. 14-CV-6606(RJS), 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law is well-settled that informal means of communicating and pursuing a grievance, even with senior prison officials, are not sufficient under the PLRA.”). Thus, there is no genuine dispute that plaintiff failed to exhaust administrative remedies. As a result, the Court must determine whether administrative remedies were in fact available to plaintiff. See Ross, 136 S. Ct. at 1858 (“An inmate ... must exhaust available remedies, but need not exhaust unavailable ones”); Mena v. City of New York, No. 13-cv-2430(RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016) (citing Ross, 136 S. Ct. at 1862) (“[T]he lone surviving exception to the PLRA's exhaustion requirement is that embedded in its text: that an inmate need only exhaust those administrative remedies that are ‘available’ to him.”). Plaintiff sets forth three factual arguments as to why administrative remedies were not available to him. First, plaintiff alleges that the grievance procedures were unavailable to him because he was denied access to paper and writing instruments. See Compl. at 3. Next, plaintiff alleges that he was physically beaten when he attempted to take steps to utilize the grievance process. Id. Lastly, plaintiff suggests that he never received a response to his grievance, his mail was tampered with, and his letters were not delivered. See Hummel Aff. Exh. A at 91-92, 94. a. Lack of Paper and Pen to Complete Grievance Procedures The third prong of Ross is triggered by plaintiff's argument that he was denied access to pen and paper, as it shows an alleged attempt to stop him from taking part in the grievance process. When a plaintiff-inmate asserts that a defendant-facility withheld pens, courts have granted summary judgment against a plaintiff when “the record does not show that “[p]laintiff indicated to prison officials that he needed a pen so he could file a grievance or that prison officials refused to provide him a pen for this purpose.” Mena v. City of N.Y., No. 12 CIV. 6838(GBD), 2013 WL 3580057, at *2 (S.D.N.Y. July 10, 2013). When an inmate argues that a correction officer denies him access to pen or paper, even assuming the allegations are true, courts examine whether the inmate was drafting other documents during the same time period, or whether they were able to access materials from other sources. See Williams v. Ramos, No. 13 CV 826(VLB), 2015 WL 864888, at *3 (S.D.N.Y. Feb. 9, 2015) (“It is unclear how plaintiff was able to submit [other] grievances if defendants took his pens and paper and threatened him ... Moreover, when defendants allegedly stole his pens and papers, plaintiff testified he was able to file grievances on his commissary sheet.”); Lahoz v. Orange Cty. Jail, No. 08 CIV. 4364(RWS), 2010 WL 1789907, at *3 (S.D.N.Y. Apr. 29, 2010) (stating that an inmate was not deprived of writing materials when he drafted a handwritten letter during the same time period as the grievance process). Here, the Court notes contradictory statements within the complaint pertaining to plaintiff's access to writing instruments or paper. When prompted as to why facts relating to the complaint were not presented in the grievance program, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 250 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 plaintiff asserts that he was denied a paper or pen. Compl. at 3. However, plaintiff also states that he wrote a grievance, the grievance was destroyed by a Sergeant, and he was beaten in retaliation for writing the grievance. See id. at 2. The only time plaintiff asserts that he was denied a paper and pen was when he was taken to the Special Housing Unit (“SHU”) 6 on July 14, 2014 after the alleged incident. See id. at 3; Hummel Aff. Exh. A at 68. In fact, records indicate that plaintiff filed grievances on July 19, July 29, August 4, and November 19 of that same year. 7 Gregory Decl. Exh. A at 6. Plaintiff does not allege any difficulties obtaining a pen and paper after the July 2014 SHU stay, but rather, admits having “a piece of paper that an inmate had and a pen” on at least one occasion. See id. at 94. *6 Lastly, in his response to defendants' motion for summary judgment, plaintiff alleges that there is an “unwritten posture” at Clinton where inmates are not given grievance forms unless they provide a clear description of their complaint, or if their complaint does not involve staff misconduct. Dkt. No. 34 at 8. Such general allegations without any factual support are insufficient to show that procedures were unavailable, coupled with the fact that, grievances can and have been submitted by plaintiff on plain paper. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(a)(1) (“If this form is not readily available, a complaint may be submitted on plain paper.”); see Veloz v. N.Y., 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (granting summary judgment where plaintiff does not allege that any specific officer thwarted his efforts to timely file a grievance); Hummel Aff. Exh. A at 94. Even if the Court assumes that plaintiff was denied access to pen and paper while in the SHU, the grievances filed in July 2014 were filed within the twenty-one calendar days required, and his subsequent failure to exhaust administrative remedies regarding those grievances is unaffected by any denial of pen and paper that occurred in the past. Thus, the Court rejects plaintiff's argument as there is no genuine dispute of fact that administrative remedies were unavailable due a lack of writing instruments or paper. b. Allegation that Grievance Was Not Received and Mail Tampering Courts have long held that where an inmate does not receive a response to a written grievance, the inmate must appeal to the next level of review. See Khudan v. Lee, No. 12- cv-8147(RJS), 2015 WL 5544316, at *5 (S.D.N.Y. Sept. 17, 2015) (dismissing a plaintiff's complaint where plaintiff failed to appeal to the next level of review after not receiving a response to his filed grievance); see also Veloz v. New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (“[P]laintiff's allegation that these particular grievances were misplaced or destroyed by correctional officers ultimately does not relieve him of the requirement to appeal these claims to the next level once it became clear to him that a response to his initial filing was not forthcoming.”). However, recent decisions by courts in the Second Circuit have addressed the availability of administrative remedies when an inmate's grievance is unfiled and unanswered. These cases have focused on the second prong of the Ross test, where a grievance process becomes unusable for an inmate. Ross, 136 S. Ct. at 1859. In Williams v. Priatno, the Second Circuit held that when an inmate's grievance is not filed, “the regulations plainly do not describe a mechanism for appealing a grievance.” See 829 F.3d at 126. Thus, “the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it.” Id. The Williams ruling relied upon a scenario where an inmate is housed in a SHU and personally gives a grievance to a correction officer, as required by grievance procedures. Id. at 120-21. Additionally, adding to the “opaque” nature of the procedures, the plaintiff in Williams followed up when he did not receive a response after a week, but was subsequently transferred one week later without any resolution or knowledge of his grievance being filed. Williams, 829 F.3d at 120-21. Ultimately, the Williams Court held that “in giving his grievance to the correction officer, [the plaintiff] exhausted all administrative remedies that were available to him.” Id. at 126. Here, in his September 19, 2016 deposition, plaintiff sets forth facts suggesting prison staff filtered his mail and “when they [saw] grievances” they were thrown to the side, not delivered, “and were never [ ] seen.” See Hummel Aff. Exh. A at 91-92. The grievance that plaintiff allegedly filed on July 19, 2014 was sent to the Clinton grievance office by his mother. Id. at 94. Plaintiff never received a response on the grievance or followed up on the status of the grievance. Id. Without concrete facts, plaintiff states that his grievance was not resolved because “no civilian ... picks up your grievances. It's officers.” Id. at 91. Plaintiff's allegations of mail tampering are conclusory and weakened by the fact that other correspondence, including complaints, were sent and Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 251 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 received during the general time period material to the issues before the Court. Johnson v. Fraizer, No. 16-CV-6096(CJS), 2016 WL 7012961, at *4 (W.D.N.Y. Dec. 1, 2016) (“Plaintiff makes only a conclusory statement that his mailing was not allowed to leave the facility[,] ... his contention ... is belied by his admission that he was able to send other complaints about the matter to various New York State officials at around the same time.”); see Hummel Aff. Exh. A at 89, 94 (providing an example where plaintiff successfully sent legal mail to his mother). *7 In plaintiff's response in opposition to defendants' motion for summary judgment, he raises general complaints about defendants having total control over facility mail and defendants strategically removing grievances from the mailbox to cover up their excessive use of force against plaintiff and other inmates. See Dkt. No. 34 at 2. Plaintiff's bare assertions do not excuse exhaustion requirements. Courts in this Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations. Khudan, 2016 WL 4735364, at *6 (citations omitted) (holding that under Ross, mere stand alone contentions of mail tampering without support and particularity cannot deem administrative remedies unavailable); Veloz, 339 F. Supp. 2d at 516 (holding that summary judgment is proper where the plaintiff contends that officers misplaced his grievances, but offers no evidence to support his claim). In Khudan, the court did not consider or rely upon conclusory allegations when plaintiff attested he “was informed by other [unnamed] inmates that grievances routinely go ‘missing.’ ” Khudan, 2016 WL 4735364, at *6. This is similar to plaintiff's conclusory theory of injustice and displeasure with mail procedures, and other “recurrent pattern[s]” in New York correctional facilities. Dkt. No. 34 at 2, 4; see Khudan, 2016 WL 4735364, at *6 (“Plaintiff's accusations, which ‘stand alone’ and are ‘unsupported,’ are insufficient to withstand summary judgment.”) (quoting Bolton v. City of N.Y., No. 13-CV-5749(RJS), 2015 WL 1822008, at *2 (S.D.N.Y. Apr. 20, 2015)). Courts have denied a defendant's motion for summary judgment when faced with an unanswered and unfiled grievance drafted in SHU. See, e.g., Juarbe v. Carnegie, No. 9:15-CV-01485(MAD/DEP), 2016 WL 6901277, at *1, 4 (N.D.N.Y. Nov. 23, 2016). This is distinguishable from plaintiff's alleged July 19, 2014 grievance drafted in keeplock. 8 Such a difference in inmate housing supports the notion that, “the Second Circuit's decision hinged on the ‘extraordinary circumstances’ specific to the case before it.” Mena v. City of N.Y., No. 13-CV-2430(RJS), 2016 WL 3948100, at *5 (S.D.N.Y. July 19, 2016) (quoting Williams, 829 F.3d at 119); see N.Y. COMP. CODES R. & REGS. tit. 7, § 701.7 (explaining that there are different grievance filing procedures for an inmate housed in the SHU). Inmates not housed in the SHU are in a different position to SHU inmates when determining if grievance procedures are “essentially unknowable” or unavailable. Id. at *5 (quoting Ross v. Blake, 136 S. Ct. at 1859). Plaintiff never followed up on the July 19, 2014 grievance. Hummel Aff. Exh. A at 94-95. However, on July 29, 2014, he filed a grievance in the facility that included medical complaints, but also a reference to the alleged assault on July 14, 2014. See Gregory Decl. Exh. B at 8. The Clinton grievance department received and responded to this grievance. Id. This grievance was not appealed. Id. ¶ 15. Even assuming, as the Court must on this motion, that plaintiff's allegations of mail tampering are true, he did not exhaust his administrative remedies when he failed to appeal the July 29, 2014 grievance to the next level of review. The fact that this grievance was subsequently filed and not appealed within close proximity to the July 19, 2014 grievance, coupled with three unrelated grievances filed within the next year, demonstrates that plaintiff's situation does not rise to the level where the grievance process is “opaque,” unavailable, or unascertainable. See Hill v. Tisch, No. 02CV3901(DRH/AYS), 2016 WL 6991171, at *7 (E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to demonstrate that the grievance “procedures were essentially unknowable”); Gregory Decl. Exh. A at 6. c. Allegation that Plaintiff Suffered Retaliation and Physical Beatings Plaintiff's pleadings also suggest an inquiry under the third prong of Ross, whether “machination, misrepresentation, or intimidation” occurred. See Ross, 136 S. Ct. at 1860. Specifically, plaintiff alleges that he did not comply with the grievance procedures because he was subjected to physical beatings, retaliation, and intimidation after complaining about conditions at Clinton. See Compl. at 3, 4, 7. For these reasons, he believed the grievance procedures were unavailable. See id. at 2-3. *8 Specific threats of retaliation or intimidation by prison employees can render administrative remedies unavailable. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 252 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Ross, 136 S. Ct. at 1860 & n.3. However, a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies. Salmon, 2016 WL 4411338, at *5. Estoppel is found where “verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers” occur showing that defendants acted affirmatively to prevent an inmate from availing him or herself of the grievance procedures. Id. at *5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)). In Riles, the Second Circuit affirmed a district court's ruling that prison officials' alleged threats did not interfere with exhaustion efforts when plaintiff stated he was threatened “if he pushed the issue,” but then subsequently filed a grievance in spite of the alleged threats. See Riles v. Buchanan, 656 Fed.Appx. 577, 581 (2d Cir. 2016) (summary order). Relying on Ross, courts have carved out factual limitations to the third prong of unavailability concerning fear of retaliation. See, e.g., Aviles v. Tucker, No. 14-CV-08636(NSR), 2016 WL 4619120, at *3-4 (S.D.N.Y. Sept. 1, 2016) (citing Ross, 136 S. Ct. at 1860). In Aviles, the court noted a longstanding rule that general beliefs of retaliation or fears do not excuse the exhaustion requirement. Aviles, 2016 WL 4619120, at *4 (citations omitted). Circumstances that have met the threshold of unavailability by means of intimidation have included widespread beatings with assertions of fear for one's life, in conjunction with the plaintiff withholding all complaints until he was transferred to a different facility. See, e.g., id. (quoting Thomas v. Cassleberry, No. 03-cv-6394L, 2007 WL 1231485, at *2 (W.D.N.Y. Apr. 24, 2007)). Allegations of threats are conclusory where a plaintiff's allegation “does not indicate who threatened him, when he was threatened, or how he was threatened.” See Johnson v. Fraizer, No. 16- CV-6096(CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016). In contrast, this Court has denied a summary judgment motion when a plaintiff alleged he was threatened by a specific correction that the officer would “break [plaintiff's] bones,” and another specific correction officer threatened to beat plaintiff “a [sic] inch from life” if he filed a grievance. Galberth v. Durkin, No. 914CV115(BKS/ATB), 2016 WL 3910270, at *3 (N.D.N.Y. July 14, 2016). Here, plaintiff offers conclusory allegations in his complaint that “[he] was beaten” while attempting to access Clinton's grievance program. Compl. at 2, 3. Plaintiff offers no information of when or how he was threatened or beaten after the July 14, 2014 incident. Some instances of threats alleged by plaintiff refer to a time period before he filed a grievance and he does not state how any specific threat or subsequent act of violence impacted his ability to exhaust administrative remedies related to the events that occurred on July 14, 2014. See Aviles, 2016 WL 4619120, at *4 (finding grievance procedures available where plaintiff offers conclusory allegations of fear and does not substantiate what specific fears or past acts preclude him from advancing in grievance procedures); Harrison v. Stallone, No. 9:06- CV-902(LEK/GJD), 2007 WL 2789473, at *5 (N.D.N.Y. Sept. 24, 2007) (“It has been held that a ‘general fear’ of retaliation is not sufficient to excuse the exhaustion requirement.... If an inmate could simply state that he feared retaliation, there would no point in having a grievance procedure.”) (citations omitted); see, e.g., Hummel Aff. Ex. A at 58. Much of plaintiff's fear is generalized. For instance, he notes that corrections officers become agitated when they see legal mail and “that's when harassment comes.” Hummel Aff. Ex. A at 92. By his own admission, plaintiff denies any actual physical force being used against him that prohibited him from taking part in the grievance program. Hummel Aff. Ex. A at 99; see Salmon, 2016 WL 4411338, at *5 (stating there must be affirmative actions or specific instances of physical assault or threats of retaliation for plaintiff to show unavailability of the grievance process). *9 The Court notes that plaintiff directly contradicted allegations in his complaint by statements made in his deposition. While the complaint alleges conclusory instances of being “beaten by staff,” plaintiff admits that other than being cut on his face by an inmate in the yard on October 5, 2015, there has not been any other physical force used against him by inmates or correction officers since July 14, 2014. Hummel Aff. Ex. A at 99; Compl. at 3. This statement contradicts plaintiff's allegations of being beaten by staff. See Williams v. Doe, No. 12-CV-1147(HKS), 2016 WL 4804057, at *5 (W.D.N.Y. Sept. 14, 2016) (granting a motion for summary judgment after noting that any triable issue of fact on exhaustion of administrative remedies can be eliminated when plaintiff's prior representations to the court are “flatly contradict[ed]”). Further, this Court finds that plaintiff's failure to follow the grievance procedures cannot be excused by fears or intimidation, when he simultaneously made his complaints known through other means. After the alleged incident, plaintiff was seen by a nurse in a room with “about ten” officers, where he admits “having no choice,” but to tell the nurse that they had beaten him. Hummel Aff. Exh. A at 57-58. Plaintiff also aired his complaints and concerns in writing Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 253 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 outside of the grievance procedures, clearly identifying his complaints in full substance, including the identification of those who committed acts against him. See, e.g., Hummel Aff. Exh. A at 93; Gregory Decl. Exh. A at 8. Similarly in Johnson v. Fraizer, the Court rejected plaintiff's argument that administrative remedies were unavailable where the plaintiff alleged he was threatened by correction officers but continued to make and send formal complaints to prison officials and other New York State officials. Johnson v. Fraizer, No. 16- CV-6096 (CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016). By plaintiff's own admission, it is clear that he sought to file the initial grievance and tell others about his complaints, which disprove any claim of intimidation or fear of retaliation. Quick v. Omittee, No. 14-CV-1503(TJM/ CFH), 2016 WL 5219732, at *4 (N.D.N.Y. Aug. 11, 2016), report and recommendation adopted, No. 914CV1503 (TJM/ CFH), 2016 WL 5107125 (N.D.N.Y. Sept. 20, 2016) (holding that fear of physical retaliation or assaults does not deem grievance procedures unavailable when plaintiff continuously sought to file complaints with officials). Like in Quick, where the plaintiff filed formal internal grievances and the grievance procedures were deemed available, here the plaintiff alleges drafting two internal grievances outlining the alleged July 14, 2014 incident. See id. at * 4; Hummel Aff. Exh. A at 93; Gregory Decl. Exh. B at 8. Thus, plaintiff has not shown that administrative remedies were unavailable due to intimidation and threats. In conclusion, the Court finds that defendants have met their burden in showing that there is no genuine issue of material fact as to plaintiff's failure to exhaust administrative remedies. Accordingly, the Court recommends that defendants' motion be granted. III. Conclusion For the reasons stated above, it is hereby RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 26) on plaintiff Edy Rodriguez's complaint (Dkt. No. 1) be GRANTED; and it is further RECOMMENDED that plaintiff Edy Rodriguez's complaint (Dkt. No. 1) be DISMISSED in its entirety, without prejudice; and it is further ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties in this action, pursuant to local rules. Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F. 2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F. 2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). All Citations Not Reported in Fed. Supp., 2017 WL 2791063 Footnotes 1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c). 2 On March 27, 2017, this Court granted plaintiff an extension until May 1, 2017 to file a motion to amend his complaint. Dkt. No. 38. The deadline has expired and plaintiff has not filed a motion to amend his complaint. 3 Exhibit A to the Affirmation of Christopher J. Hummel is a transcript of plaintiff's deposition, held on September 19, 2016 at Great Meadow Correctional Facility. See Dkt. No. 26-1. 4 When citing documents within the record, the Court uses the page numbers generated by CM/ECF. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 254 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 5 All unpublished opinions cited to by the Court in this Report-Recommendation and Order are, unless otherwise noted, attached to this Report-Recommendation and Order. 6 SHUs exist in all maximum and certain medium security facilities. The units “consist of single-occupancy cells grouped so as to provide separation from the general population....” N.Y. COMP. CODES R. & REGS. tit. 7, § 300.2(b). Inmates are confined in a SHU as discipline, pending resolution of misconduct charges, for administrative or security reasons, or in other circumstances as required. Id. at pt. 301. 7 Both the August and November grievances are unrelated to the cause of action before the Court. Gregory Decl. Exh. A at 6. 8 “Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him of participation in normal prison activities.” Green v. Bauvi, 46 F.3s 189, 192 (2d Cir. 1995); N.Y. COMP. CODES R. & REGS. tit. 7, § 301.6. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 255 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2017 WL 2790530 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Edy RODRIGUEZ, Plaintiff, v. J. CROSS, Sergeant, Clinton Corr. Fac.; R. Furnia, Sergeant, Clinton Corr. Fac.; G. Falcon, Corr. Officer, Clinton Corr. Fac.; and J. Roberts, Corr. Officer, Clinton Corr. Fac., Defendants. 9:15-CV-1079 (GTS/CFH) | Filed 06/27/2017 Attorneys and Law Firms EDY RODRIGUEZ, No. 8951602009, Anna M. Kross Center, 18-18 Hazen Street, East Elmhurst, New York 11370, Pro Se. HON. ERIC T. SCHNEIDERMAN, OF COUNSEL: CHRISTOPHER J. HUMMEL, ESQ. Assistant Attorney General, The Capitol Albany, New York 12224, Attorney General for the State of New York, Counsel for Defendants. DECISION and ORDER HON. GLENN T. SUDDABY, Chief United States District Judge *1 Currently before the Court, in this pro se prisoner civil rights action filed by Edy Rodriguez (“Plaintiff”) against the four above-captioned employees of the New York State Department of Corrections and Community Supervision at Clinton Correctional Facility in Dannemora, New York (“Defendants”), are Defendants' motion for summary judgment seeking dismissal of Plaintiff’s Complaint for failure to exhaust his administrative remedies, and United States Magistrate Judge Christian F. Hummel’s Report- Recommendation recommending that Defendants' motion be granted and that Plaintiff’s Complaint be dismissed in its entirety without prejudice. 1 (Dkt. Nos. 26, 40.) Plaintiff has not filed an Objection to the Report-Recommendation despite having received an extension of the filing deadline, which has expired. (Dkt. No. 42.) After carefully reviewing the relevant papers herein, including Magistrate Judge Hummel’s thorough Report- Recommendation, the Court can find no clear-error in the Report-Recommendation. 2 Magistrate Judge Hummel employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 40.) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein; Defendants' motion for summary judgment is granted; and Plaintiff’s Complaint is dismissed in its entirety without prejudice. ACCORDINGLY, it is ORDERED that Magistrate Judge Hummel’s Report- Recommendation (Dkt. No. 40) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants' motion for summary judgment (Dkt. No. 26) is GRANTED; and it is further ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety without prejudice; and it is further ORDERED that the Clerk of the Court shall enter Judgment for Defendants and close this action. All Citations Not Reported in Fed. Supp., 2017 WL 2790530 Footnotes 1 The Court notes that Assistant Attorney General Christopher J. Hummel is of no relation to U.S. Magistrate Judge Christian F. Hummel. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 256 of 290
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 2 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 257 of 290
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 3020254 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Michael RUIZ, Plaintiff, v. P. LINK, J. Reyes, Patrick Squire, Michael Blot, Deborah Macdonald, and John Does #1-3, Defendants. No. 20-CV-235 (CS) | Signed July 29, 2022 Attorneys and Law Firms Michael Ruiz, Comstock, New York, Pro Se Plaintiff. Kathryn Martin, Assistant Attorney General, Office of the Attorney General of the State of New York, White Plains, New York, Counsel for Defendants. OPINION & ORDER Seibel, District Judge *1 Before the Court is Defendants' motion for summary judgment. (ECF No. 66.) For the reasons set forth below, Defendants' motion is GRANTED. I. BACKGROUND The following facts are based on Defendants' Local Civil Rule 56.1 Statement, (ECF No. 68 (“D's 56.1 Stmt.”)), and supporting materials, and are undisputed unless otherwise noted. 1 A. Facts Plaintiff Michael Ruiz is incarcerated in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). (D's 56.1 Stmt. ¶ 1.) Plaintiff's claims arose while he was held at Green Haven Correctional Facility. (Id. ¶ 2.) Plaintiff brings this lawsuit in connection with an altercation in the prison yard on April 6, 2019 and the medical treatment he received thereafter. (Id. ¶¶ 3-4.) He alleges excessive force claims against Defendants Link, Reyes, Squire and Blot, and a claim of deliberate indifference to medical needs against Defendant MacDonald. 2 *2 The altercation and medical treatment at issue occurred on April 6, 2019. (Ds' 56.1 Stmt. ¶¶ 3-4.) That same day, Plaintiff was transferred from Green Haven to Sing Sing Correctional Facility. (Id. ¶ 22.) While at Sing Sing, Plaintiff filed a grievance, dated April 9, 2019, 3 alleging that on April 6, 2019, correction officers used excessive force against him, and medical staff failed to properly treat him. (D's 56.1 Stmt. ¶ 24; see ECF No. 71-6.) The grievance was denied by the Sing Sing Superintendent on July 26, 2019. (D's 56.1 Stmt. ¶ 25; ECF No. 71-7.) Plaintiff testified at his deposition that he did not receive a copy of the Superintendent's denial until October 9, 2019, when he received a memo from Sing Sing's Inmate Grievance Program (“IGP”) Supervisor, dated August 30, 2019. (P's Depo. at 79:22-80:13; see ECF No. 65-6.) The letter informed Plaintiff that his grievance had been answered on July 26, 2019 and forwarded to Plaintiff at that time; the Supervisor included with the memo a copy of the Superintendent's July 26 denial. (Id.) The bottom portion of the Superintendent's denial letter is a form the inmate can fill out if he wishes to appeal; it states, “[R]eturn this copy to your Inmate Grievance Clerk.” (ECF No. 71-7.) 4 By the time Plaintiff received the letter and the copy of the Superintendent's denial on October 9, Plaintiff had been transferred out of Sing Sing and was being held in the Special Housing Unit (“SHU”) at Elmira Correctional Facility. (Ds' 56.1 Stmt. ¶ 26; P's Depo. at 78:8-19, 78:25-79:21.) 5 DOCCS records reflect that the Central Office Review Committee (“CORC”) never received any appeal of the Superintendent's denial of Plaintiff's grievance. (D's 56.1 Stmt. ¶ 28.) Further, DOCCS records reflect that CORC did not receive any correspondence from Plaintiff at all during 2019 or 2020. (Id. ¶ 29; see ECF No. 70 (“Seguin Decl.”) ¶ 13.) Plaintiff asserted in his deposition that he filled out the appeal form on October 10, 2019 and “forwarded it to CORC ... [b]y mail.” (P's Depo. at 80:24-81:4; see id. at 82:20-83:7.) Plaintiff did not specify the address to which he mailed the appeal, but stated that he requested and received the address from the law library. (Id. at 82:3-19.) Plaintiff did not receive an acknowledgement of receipt or answer from CORC. (Id. at 81:5-7.) After several months, he filed this lawsuit. (Id. at 81:8-13.) B. Procedural History Plaintiff filed his original complaint on January 8, 2020, bringing claims under 42 U.S.C. § 1983 against eight Green Haven employees in their individual capacities for violations Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 258 of 290
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 of the Eighth Amendment. (ECF No. 2.) The case was reassigned to me on February 14, 2020. At a pre-motion conference on August 28, 2020 in anticipation of a potential motion to dismiss, I granted Plaintiff leave to amend his Complaint. (See Minute Entry dated Aug. 28, 2020.) The Amended Complaint was filed on September 25, 2020. (ECF No. 30.) Defendants answered on April 8, 2021. (ECF No. 44.) On May 11, 2021, I held a status conference and set a discovery schedule, (ECF No. 51), which was extended twice, (ECF Nos. 57, 60). At the close of discovery, Defendants filed a pre-motion letter in anticipation of their motion for summary judgment. (ECF No. 64.) 6 I held a pre-motion conference on November 16, 2021 and set a briefing schedule for Defendants' motion. (See Minute Entry dated Nov. 16, 2021.) On December 29, 2021, Defendants filed their motion papers. (ECF Nos. 66-71.) Plaintiff's opposition was initially due on January 27, 2022. Approximately one to two weeks before the due date Plaintiff left two phone messages with my chambers, requesting an extension of the briefing schedule and permission to file a motion to obtain counsel. (See ECF No. 74.) On January 19, 2022, I entered an Order extending Plaintiff's time to respond to the motion to February 28, 2022, and advising him of his right to file a motion asking the Court to seek volunteer counsel. (Id.) On March 18, 2022, I received a letter from Plaintiff (dated March 14, 2022), indicating that his opposition was ready, and he just wanted permission to file it late; I granted an extension to April 6, 2022, and noted there would be no further extensions. (ECF No. 76.) On April 28, 2022, after no opposition was received, I deemed the motion fully submitted. (ECF No. 78.) II. LEGAL STANDARD *3 Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law .... Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The movant bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” and, if satisfied, the burden then shifts to the non-movant to “present evidence sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (cleaned up). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials ....” Fed. R. Civ. P. 56(c)(1). Where a declaration is used to support or oppose the motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the ... declarant is competent to testify on the matters stated.” Id. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that “a party fails ... to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). Pro se litigants must be afforded “special solicitude,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly where motions for summary judgment are concerned,” Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014). Where, as here, the non-moving party fails to respond to the movant's summary judgment motion, “the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (cleaned up). “If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then summary judgment Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 259 of 290
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 must be denied even if no opposing evidentiary matter is presented.” Id. (cleaned up) (emphasis omitted). III. DISCUSSION A. Exhaustion Under the PLRA The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is required for “all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA mandates that a plaintiff use “all steps that the agency holds out, and do[ ] so properly” – that is, in accordance with the applicable agency rules. Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (cleaned up). Exhaustion of available administrative remedies “must be complete prior to commencement of suit” and “[t]he fact that a grievance is filed, or the process is completed, subsequent to commencement of suit will not salvage an otherwise premature filing.” Chalif v. Spitzer, No. 05-CV-1355, 2008 WL 1848650, at *13 (N.D.N.Y. Apr. 23, 2008) (cleaned up). *4 For inmates in New York State prison, administrative exhaustion requires compliance with DOCCS' three-tiered IGP, in which (1) the inmate must file a grievance with the Inmate Grievance Resolution Committee (“IGRC”) within twenty-one days of the alleged occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the superintendent of the facility within seven days after receipt of the IGRC's response, and (3) the inmate must then appeal an adverse decision by the superintendent to the CORC within seven days after receipt of the superintendent's response. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2022); McGee v. McGready, No. 16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018). “[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance.” Jackson v. Jackson, No. 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021); see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8. Under the expedited procedure, the Superintendent has twenty-five days to respond to the grievance. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8(f). If the Superintendent fails to respond within twenty-five days, the inmate may appeal directly to CORC. Id. § 701.8(g). If the Superintendent does respond, the inmate has seven days from receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g). Whether or not the Superintendent timely responds, the procedure to appeal a determination of the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the inmate grievance clerk.” Id. § 701.8(g)-(h). 7 Inmates who have been transferred to a different facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2). CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the inmate does not receive such confirmation within forty-five days, he “should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.” Id. § 701.5(d)(3)(i). The IGP requires CORC to respond to an appeal within thirty days of receipt. Id. § 701.5(d)(3)(ii). If CORC has received an appeal and fails to rule within those thirty days, the inmate is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020). B. Plaintiff's Failure to Exhaust Defendants have met their burden to demonstrate that Plaintiff failed to follow IGP procedures with regard to his CORC appeal and that CORC never received Plaintiff's appeal. Accordingly, Plaintiff failed to “properly” exhaust administrative remedies prior to filing suit. See Amador, 655 F.3d at 96. Plaintiff testified that once he received the Superintendent's adverse decision on October 9, 2021, he filled out the appeal statement and “forwarded it to CORC ... [b]y mail.” (P's Depo. at 80:24-81:4.) He never received confirmation that his appeal was received or any response from CORC, and after a few months he filed this lawsuit. (Id. at 81:8-13.) The IGP required Plaintiff to forward the appeal to the Inmate Grievance Clerk. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8(g)-(h). The form at the bottom of the Superintendent's letter also notified Plaintiff that the appeal to CORC had to be transmitted via the Inmate Grievance Clerk. (See ECF No. 71-7.) The IGP specifically provides that Plaintiff, having Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 260 of 290
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 been transferred to a different facility from that in which he originally filed his grievance, should get his appeal to the proper Inmate Grievance Clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2). Nothing in the record indicates that Plaintiff followed this procedure; rather, it appears he tried to mail his appeal directly to CORC, and CORC never received the document. (See Seguin Decl. ¶¶ 12-13 (CORC never received appeal of Plaintiff's grievance, nor did it receive any other correspondence from Plaintiff during 2019 or 2020); ECF No. 71-8 (CORC records showing no receipt of appeal)). *5 Accordingly, Plaintiff failed to properly follow the grievance procedure and has failed to exhaust his administrative remedies. See Valverde v. Folks, No. 19- CV-8080, 2022 WL 836310, at *6 (S.D.N.Y. Mar. 21, 2022) (“Plaintiff did not properly comply with [the] prison grievance procedural rules. Plaintiff ... mailed his appeal statement directly to CORC. However, to appeal a decision denying a grievance, an inmate must submit the appeal, not directly to CORC, but to the grievance supervisor of the facility where the grievance was originally filed for forwarding to that facility's grievance clerk.”); Wilkinson v. Banks, No. 2-CV-361, 2007 WL 2693636, at *6 (W.D.N.Y. Sep. 10, 2007) (“[N]o dispute exists that [the pro se plaintiff] did not follow correct procedure in attempting to appeal that grievance to CORC. He did not file his appeal with the Inmate Grievance Clerk as required by the regulations, but rather mailed it directly to CORC.”) (cleaned up). C. Availability of Administrative Remedies Although the Supreme Court has deemed exhaustion mandatory, there are circumstances under which administrative remedies may be deemed “unavailable” to an inmate, such that an inmate is not required to exhaust. Ross v. Blake, 578 U.S. 632, 642 (2016). The Supreme Court identified three circumstances where administrative remedies may be unavailable. See id. at 643-44. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 643. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644. “If the defendant has met its burden of establishing the existence and applicability of the grievance policy, the plaintiff bears the burden of establishing de facto unavailability.” Saeli v. Chautauqua County, 36 F.4th 445, 453 (2d Cir. 2022) (emphasis in original). Plaintiff has submitted no opposition to the instant motion and has not argued that administrative procedures were unavailable to him. See Dowling v. Barkman, No. 17- CV-647, 2019 WL 7971868, at *5 (N.D.N.Y. Dec. 20, 2019) (“Given Plaintiff's failure to oppose the Motion, no basis appears on the record for concluding that DOCCS' grievance procedure was unavailable to him.”), report and recommendation adopted sub nom. Dowling v. Schleicher, 2020 WL 103480 (N.D.N.Y. Jan. 8, 2020). Even if that were not the case, the record does not reflect that any of the above- listed circumstances apply. First, nothing in the record suggests that Plaintiff did not receive a response from CORC because the grievance process was operating as a “dead end” – rather, it appears that CORC never received Plaintiff's appeal because of Plaintiff's failure to send the appeal to the appropriate official. (See P's Depo. at 80:24-81:4; Seguin Decl. ¶¶ 12-13; ECF No. 71-8.) Similarly, the record is bereft of evidence that the IGP is unavailable to inmates generally. See White v. Veile, 709 F. App'x 35, 38 (2d Cir. 2017) (summary order) (affirming summary judgment for failure to exhaust administrative remedies where plaintiff did not “present[ ] any evidence about the outcomes in the grievance system in general” or “show[ ] that prison officials are consistently unwilling to grant relief”). Second, as set out above, the relevant procedures are not opaque. The IGP clearly sets out the process for appealing a grievance to CORC through the Inmate Grievance Clerk – including the instructions under § 701.6(h)(2) for an inmate who has been transferred from one facility to another to send an appeal to the appropriate facility's IGP Supervisor. Plaintiff testified that he is familiar with the grievance process, (see P's Depo. at 18:3-19:6), and the Superintendent's denial stated that the appeal to CORC had to go through the Inmate Grievance Clerk, (see ECF No. 71-7). *6 Third, while there is some evidence in the record that Plaintiff sought information from the “law library officer” while he was in the SHU at Elmira and appears to have been given a mailing address for CORC, 8 this fact alone is insufficient to establish that a prison official thwarted his ability to successfully appeal to CORC. Plaintiff has not suggested that he asked how to appeal and was told to mail his Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 261 of 290
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 appeal to CORC, or that he asked the law library officer for anything other than the address of CORC. There is simply no evidence of machination, intimidation or misrepresentation. That the breakdown of the grievance procedure here was due to Plaintiff's failure to follow it, rather than to its unavailability, is highlighted by the fact that when Plaintiff did not receive confirmation that CORC was in possession of his appeal within the forty-five days envisioned by the regulations, instead of following the IGP and writing to Sing Sing's IGP Supervisor – an official with whom he had recently communicated, (see P's Depo. at 79:22-80:13, 81:14-21) – to confirm that the appeal was filed, see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(3)(i), he simply waited a few months and then filed this lawsuit. (P's Depo. at 79:25-80:8, 81:5-13). 9 In short, “[g]iven the lack of evidence that Plaintiff's appeal to CORC was ever filed, or ever followed up on, it is not that the full scope of administrative remedies was not available to Plaintiff – rather, Plaintiff failed to fully exhaust the administrative remedies available to him.” Houston v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3 (W.D.N.Y. May 14, 2020); see Litchmore v. Williams, No. 11- CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013) (no “sufficient basis in the record to find that administrative remedies were unavailable” where, among other things, there was “no evidence here that the plaintiff's appeal was actually mailed, intercepted, or ignored” and “DOCCS has no record of any appeal filed with CORC”). 10 IV. CONCLUSION For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motion, (ECF No. 83), enter judgment for Defendants, and close the case. SO ORDERED. All Citations Not Reported in Fed. Supp., 2022 WL 3020254 Footnotes 1 Plaintiff did not file a responsive Rule 56.1 Statement or any papers in opposition to this motion. Local Civil Rule 56.1 requires that the party opposing a motion for summary judgment submit a counterstatement responding to the moving party's statement of material facts, indicating which facts are admitted and which the opposing party contends are in dispute and require a trial. L.R. 56.1(b). Under the Local Rule, “[i]f the opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.” Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (citing L.R. 56.1(c)). Pro se litigants are not excused from this requirement. SEC v. Tecumseh Holdings Corp., 765 F. Supp. 2d 340, 344 n.4 (S.D.N.Y. 2011). As Defendants served Plaintiff with the requisite notice pursuant to Local Civil Rule 56.2, (see ECF No. 72), I have discretion to consider any properly supported facts in Defendants' Local Civil Rule 56.1 Statement admitted. (The Court will send Plaintiff copies of any unpublished decisions cited in this Opinion and Order.) But granting Plaintiff solicitude, I have considered his deposition testimony, (ECF No. 71-2 (“P's Depo.”)), statements in his complaint and amended complaint, both of which are sworn under penalty of perjury pursuant to 28 U.S.C. § 1746, (ECF Nos. 2, 30), and his letter in response to Defendants' pre-motion letter, (ECF No. 65). See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement.”) (cleaned up). 2 Defendants move for summary judgment on all of Plaintiff's claims on the ground that he failed to exhaust his administrative remedies, and in the alternative for summary judgment only on Plaintiff's deliberate medical Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 262 of 290
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 indifference claim. (See ECF No. 67 at 1.) Because I resolve the motion on the basis of failure to exhaust administrative remedies, I do not describe the specific allegations further. 3 Defendants state in their Rule 56.1 statement that Plaintiff's grievance is dated April 22, 2019, but that is the date on which the grievance was stamped as received by the facility. (See ECF No. 71-6.) 4 The form is captioned “Appeal Statement,” and below the caption it reads: “If you wish to refer the above decision of the Superintendent please sign below and return this copy to your Inmate Grievance Clerk. You have seven (7) calendar days from your receipt of this notice to file your appeal.* Please state why you are appealing this decision to C.O.R.C.” The asterisk leads to a statement about how to request an exception to the time limit. Below the language quoted above are several lines for the inmate to explain why he is appealing, and then signature lines for the inmate and the Grievance Clerk. 5 Plaintiff notes that it is possible he had not previously received the Superintendent's denial because much of the time he was at Sing Sing he was housed in the Office of Mental Health (“OMH”) unit after several suicide attempts between June and September of 2019. (P's Depo. at 78:5-19.) 6 Plaintiff responded by letter dated November 8, 2021, but that letter was not received and docketed until November 24, 2021. (See ECF No. 65.) 7 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(1)(i). 8 Plaintiff testified as his deposition as follows: [Q.] So how do you know where to send the grievance appeal? ... A. You can actually get the address from the law library that they provide in the facility. They have all the information of addresses, names, stuff like that. Q. And is that what you did? You went to the law library? A. Yes, ma'am. I was in the special housing unit at the time, so the law library officer will actually come to you and take your request and then return the request by the next day. (P's Depo. at 82:6-19.) 9 Plaintiff's response to the question whether he ever followed up with CORC – that he “tried checking [the appeal], but it had already been months they hadn't responded, so I proceeded with my civil Complaint,” (P's Depo. at 81:8-13) – not only contains no information about what he did to check, but suggests at most that he asked about the status of his appeal at or about the same time that he filed this lawsuit. 10 Having so found, I need not and do not address the merits of Plaintiff's medical indifference claim. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 263 of 290
Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2009 WL 3672105 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Walter RUSYNIAK; and Anthony Rusyniak, Plaintiffs, v. Ena Paola GENSINI; Gunilla De Montaigu; and Concha Futura, S.A., Defendants. No. 5:07–CV–0279 (GTS/GHL). | Oct. 30, 2009. Attorneys and Law Firms Costello, Cooney & Fearon, PLLC, Robert M. Smith, Esq., Kristen L. Pickard, Esq., of Counsel, Syracuse, NY, for Plaintiffs. Hiscock & Barclay, LLP, Robert A. Barrer, Esq., of Counsel, Syracuse, NY, for Defendants Gunilla De Montaigu and Concha Futura, S.A. Greene, Hershdorfer & Sharpe, Victor J. Hershdorfer, Esq., of Counsel, Syracuse, NY, for Defendant Ena Paola Gensini. MEMORANDUM DECISION and ORDER GLENN T. SUDDABY, District Judge. *1 Currently pending before the Court in the above- captioned action is a motion by Defendants containing two alternative requests for relief: (1) a request for reconsideration of Part III.D.5 of the Court's Decision and Order of May 5, 2009, denying Defendants' request for dismissal of all of Plaintiffs' claims due to the doctrine of forum non conveniens; and (2) a request for dismissal of the First Cause of Action of Plaintiffs' Third Amended Complaint (asserting a claim of violation of Panama law) as barred by the three-year statute of limitations set forth in the certified translation of Article 1652 of the Panamanian Code. (Dkt. No. 61.) For the reasons set forth below, Defendants' motion is granted in part, and denied in part. I. REQUEST FOR RECONSIDERATION To the extent that Defendants' motion requests reconsideration of the Court's decision to denying their request for dismissal of all of Plaintiffs' claims due to the doctrine of forum non conveniens, that motion is untimely. Defendants' motion was filed on June 8, 2009. (Dkt. No. 61.) The Order of which reconsideration was sought was entered on May 5, 2009. (Dkt. No. 56.) See N.D.N.Y. L.R. 7.1(g) (setting ten-day deadline for motions for reconsideration). Defendants' attempt to characterize the Order of which reconsideration is sought as being the Court's Text Order of May 29, 2009, is unconvincing. That Text Order merely indicates the extent to which Plaintiffs' signed Third Amended Complaint fails to comport with the Court's Decision and Order of May 5, 2009 (and was issued in response to Plaintiffs' request for guidance). Even liberally construed, Defendants' motion for reconsideration expressly and repeatedly challenges the substance of the Court's Order of May 5, 2009 (specifically, Part III.D.5. thereof), and only that Order. (See, e.g., Dkt. No. 61, Part 2, ¶ 4; Dkt. No. 61, Part 4, Points II and III.) In any event, even if the Court were to consider the merits of Defendants' motion for reconsideration, the Court would deny that motion as without cause: there has been no intervening change of controlling law, no previously unavailable evidence, and there exists no clear error of law or manifest injustice with regard to the relevant portion of the prior decision in question. For these reasons, Defendants' request for reconsideration is denied. II. REQUEST FOR DISMISSAL OF FIRST CAUSE OF ACTION To the extent that Defendants' motion alternatively requests the dismissal of the First Cause of Action of Plaintiffs' Third Amended Complaint (asserting a claim of violation of Panama law) as barred by the three-year statute of limitations set forth in the certified translation of Article 1652 of the Panamanian Code, that motion is granted. Defendants are correct that Plaintiffs failed, in their response papers, to oppose this request. (See Dkt. No. 63.) The closest that Plaintiffs come to opposing this request is when, in a supplemental letter request, they (correctly) point out that Defendants have improperly broadened the target of their Panamanian-statute-of-limitations argument from Plaintiffs' First Cause of Action to all of Plaintiffs' causes of action. (Dkt. No. 66; see also Dkt. No. 61, Part 4, at 7–8.) As a result of Plaintiffs' failure to address Defendants' argument Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 264 of 290
Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 regarding Plaintiffs' First Cause of Action, Defendants' burden on this motion is somewhat lightened with regard to that cause of action. 1 *2 After carefully reviewing the parties' motion papers, and Plaintiffs' Third Amended Complaint, the Court finds that Defendants have met their lightened burden on their motion to dismiss Plaintiff's First Cause of Action. The Court reaches this conclusion based on substance of the certified translation provided by Defendants (i.e., the certified translation of Article 1652 of the Commercial Code of the Republic of Panama). (Dkt. No. 61, Part 3.) The Court reaches this conclusion also based on the reasons stated in Part III.D.7.a. of the Court's Order of May 5, 2009. (See Dkt. No. 56, at 44– 47.) See also Rusyniak v. Gensini, 629 F.Supp.2d 203, 231– 33 (N.D.N.Y.2009) (Suddaby, J.). For these reasons, Defendants' request to dismiss Plaintiff's First Cause of Action is granted. ACCORDINGLY, it is ORDERED that Defendants' motion (Dkt. No. 61) is GRANTED in part, and DENIED in part, in accordance with the above Decision and Order; and it is further ORDERED that Defendants' motion for reconsideration of the May 5, 2009 Decision and Order is DENIED, however, the First Cause of Action of Plaintiffs' Third Amended Complaint (Dkt. No. 58) is DISMISSED as barred by the three-year statute of limitations set forth in the certified translation of Article 1652 of the Panamanian Code; and it is further ORDERED that counsel for all parties are directed to attend an in-person pretrial conference on NOVEMBER 19, 2009 at 2:00 p.m. in Judge Suddaby's chambers in Syracuse, New York, at which counsel are directed to appear with settlement authority. All Citations Not Reported in F.Supp.2d, 2009 WL 3672105 Footnotes 1 See Cossey v. David, 04–CV–1501, 2007 WL 3171819, at *7 (N.D.N.Y. Oct. 29, 2007) (Lowe, M.J. adopted by Scullin, J.) (noting that, where plaintiffs do not respond to defendants' argument made in their summary judgment motion, plaintiffs are deemed to have consented to defendants' argument, and thus defendants must only satisfy “their modest burden of demonstrating entitlement to the relief requested through that argument”); Saunders v. Ricks, 03–CV–598, 2006 WL 3051792, at *9 (N.D.N.Y. Oct. 18, 2006) (Lowe, M.J. adopted by Hurd, J.) (“By failing to respond to Defendants' first argument ... Plaintiff may be deemed to have consented to that argument under Local Rule of Practice 7.1(b)(3). Thus, Plaintiff's claim against those Defendants may be dismissed on that ground alone [provided that] ... Defendants have met their modest threshold burden to demonstrate entitlement to the relief requested in their motion for summary judgment.”); Beers v. GMC, 97–CV–0482, 1999 U.S. Dist. LEXIS 12285, at *27–31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3] ). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 265 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 1062590 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Gregory SAGE, Plaintiff, v. HSBC BANK USA NATIONAL ASSOCIATION, AS TRUSTEE in Trust FOR ACE SECURITIES CORP., HOME EQUITY LOAN TRUST SERIES 2006-0P2 ASSET-BACKED PASS- THROUGH CERTIFICATES, Defendant. 1:18-CV-1494 (GTS/DJS) | Signed 03/19/2021 Attorneys and Law Firms GREGORY SAGE, 60 Terwilliger Road, Kerhonkson, NY 12446, Plaintiff, Pro Se. OF COUNSEL: DAVID S. YOHAY, ESQ., HOUSER LLP, 60 East 42nd Street, Suite 2330, New York, NY 10165, Counsel for Defendant. DECISION and ORDER GLENN T. SUDDABY, Chief United States District Judge *1 Currently before the Court, in this action under the Truth in Lending Act filed by Gregory Sage (“Plaintiff”) against HSBC Bank USA National Association (“Defendant”), is Defendant's motion for summary judgment. (Dkt. No. 69.) For the reasons set forth below, Defendant's motion is granted. I. RELEVANT BACKGROUND A. Plaintiff's Complaint Generally, in his Complaint, Plaintiff claims that Defendant failed to notify him when his mortgage was transferred to Defendant as required by 15 U.S.C. § 1641(g). (Dkt. No. 2 [Plf.’s Compl.].) More specifically, Plaintiff alleges that (a) this assignment was not filed with the Ulster County Clerk's Office, and he was unaware of the assignment until February 2018, and (b) because a previous transfer of his mortgage in 2009 was not valid in that it included falsified signatures, Defendant was required to notify him regarding the more- recent transfer underlying his claim. (Id., at ¶¶ 4-6, 8-11.) B. Undisputed Material Facts Despite having been repeatedly notified of the consequences of doing so, 1 Plaintiff has violated Local Rule 56.1(b) (formerly Local Rule 7.1[a][3]) of the Court's Local Rules of Practice, which requires opponents of a motion for summary judgment to file a response expressly admitting or denying (in matching numbered paragraphs and with appropriate record citations) each of the factual assertions in the movant's Statement of Material Facts. (Compare Dkt. No. 69, Attach. 2 [Def.’s Rule 56.1(a) Statement] with Dkt. No. 82, at 27-36 [Plf.’s Response to Def.’s Motion].) 2 On this ground alone, the Court may deem Defendant's properly supported factual assertions as having been admitted by Plaintiff. The Court has no duty to sua sponte sift through the record to assure itself there is no genuine dispute of material fact. 3 *2 However, in the interest of thoroughness, the Court will recite the material facts that, based on its review of the record, it finds to be both established by Defendant and undisputed by the record. 1. Plaintiff received a loan in the original amount of $200,000 (the “Loan”) from Option One Mortgage Corporation, which was memorialized by a note, dated May 5, 2006 (the “Note”). 2. The Loan was secured by a mortgage on the premises commonly known as 60 Terwilliger Road, Kerhonkson, New York 12446 (the “Property”), dated May 5, 2006, given by Defendant to Option One (the “Mortgage”). 3. The Mortgage was recorded by the Ulster County Clerk on May 16, 2006, as instrument number 2006-00012658. 4. The Note was repayable as follows: the sum of $1,523.68 on July 1, 2006, and a like sum each and every month thereafter June 1, 2008, at which time the monthly payment amount is to be determined by the interest rate prevailing on that day and the first day of every sixth month thereafter until the maturity date of June 1, 2036, at which time the entire residue should become due and payable. 5. Pursuant to the Pooling and Servicing Agreement of October 1, 2006, and the accompanying Mortgage Loan Schedule, the Loan was conveyed to Defendant. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 266 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 6. Defendant has continuously owned the Loan since its acquisition in 2006. 7. Defendant has never sold or otherwise transferred or assigned the Loan to a new creditor. 8. Pursuant to the Custodial Agreement of October 1, 2006, Wells Fargo Bank, N.A. (“Wells Fargo”) is Defendant's document custodian. 9. Between May 5, 2006, and May 18, 2006, Jamie Ellis, Assistant Secretary for Option One, endorsed the original Note in blank by signing an allonge that was firmly affixed to the original Note. 10. On June 16, 2006, the original “wet ink” Note with a firmly affixed allonge bearing Option One's endorsement in blank was delivered to Wells Fargo, as Defendant's custodian. 11. Defendant, through Wells Fargo, has maintained continuous physical possession of the original “wet ink” Note, endorsed in blank, since June 16, 2006. 12. The Mortgage was also assigned to the Trust, as memorialized by the assignment of mortgage, dated April 20, 2009, and recorded by the Ulster county Clerk on April 24, 2009, as instrument number 2009-00006019 (the “2009 Assignment of Mortgage”). 13. Plaintiff breached his obligations pursuant to the Note and the Mortgage by failing to tender the installment that became due and payable on August 1, 2008, and subsequent installments. 14. As of August 18, 2020, no payment has been made on the Loan since Plaintiff's default on August 1, 2008. 15. During this period, Defendant has paid the taxes and insurance on the Property. 16. On April 23, 2009, Defendant commenced an action in the Supreme Court of the State of New York, County of Ulster to foreclose the Mortgage due to Plaintiff's default under the Loan (the “Foreclosure Action”). 17. Defendant's foreclosure counsel attempted to record a corrective assignment of mortgage, dated July 30, 2015. 18. On August 19, 2015, the Ulster County Clerk rejected and refused to record the 2015 assignment of mortgage upon finding that the 2009 assignment of mortgage was a “good/clean assignment along with the acknowledgment.” *3 19. On August 3, 2017, Defendant moved for a judgment of foreclosure and sale in the Foreclosure Action. Defendant's motion consisted of more than 100 pages. 20. Defendant annexed a copy of the 2015 assignment of mortgage to its August 3, 2017, motion. 21. On August 11, 2017, Defendant mailed the motion, including the 2015 assignment of mortgage, to Plaintiff at the Property. 22. Defendant obtained a judgment of foreclosure and sale, dated October 26, 2017, and filed it with the Ulster County Clerk's Office on October 30, 2017. 23. On February 1, 2018, Plaintiff presented a proposed order to show cause in the foreclosure action for a motion to vacate the judgment of foreclosure and sale on the basis of the 2015 assignment of mortgage and other grounds. 24. Although Plaintiff briefly mentioned a failure to serve as required under CPLR § 4313 in his order to show cause, Plaintiff failed to contend in his motion to vacate that he was not served or timely served with Defendant's motion for a judgment of foreclosure and sale. 25. On April 5, 2018, the Hon. Christopher E. Cahill, J.S.C., determined that there was “no viable basis to vacate the Judgment of Foreclosure” and denied Plaintiff's motion. 26. As of the filing of this action, Plaintiff has filed nine motions and four notices of appeal in the Foreclosure action. 27. On November 16, 2018, Plaintiff commenced the current action in the Supreme Court of Ulster County. 28. Plaintiff verified the contents of the Complaint in a sworn verification accompanying the Complaint. The Complaint purports to state one claim for a violation of the “notice of new creditor” provision of the federal Truth in Lending Act (“TILA”), 15 U.S.C. § 1641(g). 29. Plaintiff's Complaint alleges that Defendant failed to properly notify him of the 2015 assignment of mortgage Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 267 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 and that he first received the 2015 Assignment of Mortgage in the mail in February 2018. 30. On December 27, 2018, Defendant removed this action to the United States District Court for the Northern District of New York on the basis of federal-question jurisdiction pursuant to 28 U.S.C. § 1331. 31. On November 26, 2019, Plaintiff attended the Rule 16 conference before Magistrate Judge Daniel J. Stewart in this action. 32. At the Rule 16 conference, Plaintiff represented to Magistrate Judge Stewart that he has “been searching [for] ways to open up discovery again” in the Foreclosure action and that he is on a “fishing expedition” with this action. (Dkt. No. 69, Attach. 28, at 4-5.) 33. At the Rule 16 conference, Plaintiff also stated as follows: So in – my main goal here, okay, is – of course, if there was any way that I could just rape the bank for money right now – what I really want is I want this case, not this case in front of your court, but eventually, okay, I want this case to make it back down to Ulster County – in the Supreme Court of Ulster County so that I can have a trial and I can present evidence which has been denied to me now for ten years. 34. On March 13, 2020, Plaintiff appeared for a deposition in this action. 35. At his deposition, Plaintiff testified that he was not at all concerned about the outcome of this action because the true goal was to defeat the Foreclosure action. *4 36. Plaintiff further testified that he did not first become aware of the 2015 assignment of mortgage until August 2018 or August 2019. Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. C. Parties Briefing on Defendant's Motion for Summary Judgment 1. Defendant's Memorandum of Law Generally, in its motion for summary judgment, Defendant asserts three alternative arguments. (Dkt. No. 69, Attach. 1 [Def.’s Memo. of Law].) First, Defendant argues that Plaintiff fails to establish a claim under TILA, because the 2015 assignment of mortgage did not assign the debt obligation to Defendant. (Id. at 6-10.) More specifically, Defendant argues that the 2015 assignment of mortgage was a corrective assignment of Plaintiff's mortgage (and is thus not subject to the notice provision of 18 U.S.C. § 1641[g]) because it did not actually effectuate a new sale, transfer, or assignment. (Id.) Second, Defendant argues that, in any event, Plaintiff's TILA claim is time-barred by the statute's one-year statute of limitations. (Id. at 15-21.) In particular, Defendant argues as follows: (a) Plaintiff's claim accrued on August 30, 2015 (31 days after the execution of the corrective assignment on July 30, 2015), and Plaintiff did not file his Complaint until November 16, 2018; (b) equitable tolling does not apply because Plaintiff has not alleged any act of fraudulent concealment by Defendant apart from the mere failure to give notice, let alone conduct sufficient to meet Fed. R. Civ. P. 9(b); and (c) even assuming Plaintiff has sufficiently pled fraudulent concealment, the doctrine of equitable tolling would still not render his claim timely, because he was made aware of the corrective assignment as early as August 2017 when Defendant served its motion for judgment of foreclosure and sale in the state court action, Plaintiff did not file his Complaint until November 2018, and he has failed to rebut the presumption of proper service. (Id.) Third, in the alternative, Defendant argues that Plaintiff's claim is barred by the doctrine of res judicata, because the foreclosure action involved him, an adjudication on the merits, and his TILA claim could have been raised in the foreclosure action. (Id. at 21-25.) Specifically, Defendant argues as follows: (a) the operative facts underlying the state court foreclosure action and those underlying this action are part of the same transaction or factual grouping (and indeed Plaintiff previously argued in the state court action that the corrective assignment constituted a standing defect that merited vacation of the judgment of foreclosure and sale); and (b) Plaintiff's TILA claim arose before the entry of the judgment of foreclosure action and is an improper, collateral attack on the judgment of foreclosure sale. (Id.) Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 268 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 2. Plaintiff's Opposition Memorandum of Law Generally, in opposition to Defendant's motion, Plaintiff asserts four arguments. (Dkt. No. 82, at 1-26 [Pl.’s Opp'n Memo. of Law].) First, Plaintiff argues that 15 U.S.C. § 1641(g) applies to Defendant's assignment of mortgage because the plain language of the statute requires disclosures when a mortgage loan is “sold or otherwise transferred or assigned to a third party....” (Id. at 11-13.) *5 Second, Plaintiff argues that the statute of limitations did not begin to run in 2015, because he first received notice of the 2015 assignment of mortgage in 2018, when Defendant first “attached it as an exhibit to a motion.” (Id. at 14-20.) Third, Plaintiff argues that the doctrine of res judicata should not apply to his case, because his foreclosure action was dismissed because he did not raise an objection or defense of lack of standing in his responsive pleading or pre-answer motion to dismiss, and the New York State Legislature recently passed a statute, N.Y. RPAPL § 1302-a, that states a party does not waive any objection or defense based on the lack of standing in a foreclosure action if that party fails to raise the objection or defense in a responsive pleading or pre- answer motion to dismiss, thereby permitting the Court to ignore the doctrine of res judicata to allow a party to benefit from an intervening change in the law. (Id. at 20-21.) Fourth, and finally, Plaintiff argues that there are triable questions of fact precluding summary judgment, because (a) the question of when Ms. Ellis signed the allonge as an “assistant secretary” is critical to determining its merit, (b) there are inconsistencies in Defendant's accounting of when Ms. Ellis signed the indorsement, (c) there are inconsistencies in the description of when it was received, and (d) there are concerns about the purported mortgage assignment. (Id. at 22-25.) 3. Defendant's Reply Memorandum of Law Generally, in reply to Plaintiff's opposition, Defendant asserts four arguments. (Dkt. No. 86 [Def.’s Reply Memo. of Law].) First, Defendant argues that the Court should deem admitted each fact set forth in its Statement of Material Facts due to Plaintiff's failure to comply with Local Rule 7.1(a)(3) (now Local Rule 56.1). (Id. at 6-9.) Second, Defendant argues that Plaintiff has failed to rebut Defendant's prima facie showing that there is no genuine dispute regarding Plaintiff's TILA claim, because (a) the law is clear that an assignment of the mortgage without a concurrent assignment of the debt obligation does not give rise to liability for a violation of 15 U.S.C. § 1641(g), and (b) Plaintiff has not presented competent evidence to refute Defendant's prima facie showing as to when the original note was negotiated in favor of Defendant. (Id. at 9-15.) Third, Defendant argues that Plaintiff has failed to rebut Defendant's prima facie showing that there is no genuine dispute that the TILA claim is time-barred by the one-year statute of limitations, because (a) Plaintiff failed to rebut Defendant's prima facie showing that equitable tolling is not available, and (b) Plaintiff has not rebutted Defendant's prima facie showing that his TILA claim is still untimely even if the statute of limitations was equitably tolled. (Id. at 15-20.) Fourth, Defendant argues that Plaintiff failed to rebut Defendant's prima facie showing that there is no genuine dispute that Plaintiff's TILA claim is barred by the doctrine of res judicata, because Plaintiff's TILA claim in this action is undeniably based on the same set of facts as his defenses in the foreclosure action, Plaintiff had an opportunity to raise the TILA claim in the foreclosure action but failed to do so, and that, even if N.Y. RPAPL § 1302-a was relevant and retroactively applied to the facts of this case, it would nevertheless fail to strip the Judgment of Foreclosure and Sale of its preclusive effect with respect to any previously waived objections or defenses other than lack of standing. (Id. at 20-21.) II. RELEVANT LEGAL STANDARD *6 Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 4 As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 269 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a), (c), (e). 5 Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute–even if that non-movant is proceeding pro se. 6 (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) 7 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules. 8 Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response ... does not ... [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non- movant's failure to respond to the motion does is lighten the movant's burden. *7 For these reasons, this Court has often enforced Local Rule 56.1 (previously Local Rule 7.1[a][3]) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement, 9 even where the non- movant was proceeding pro se. 10 Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). 11 Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possess facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). III. ANALYSIS After carefully considering whether Plaintiff is entitled to summary judgment, the Court answers that question in the affirmative for the reasons stated in Defendant's memoranda of law. (Dkt. No. 69, Attach. 1; Dkt. No. 86.) To those reasons, the Court adds the following analysis, which is intended to supplement, and not supplant, Defendant's reasoning. A. Whether the 2015 Assignment of Mortgage Assigned Defendant a Debt Obligation In pertinent part, Section 1641(g) states, “In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or otherwise assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer.” 15 U.S.C. § 1641(g). This Court previously addressed the notice requirements of 15 U.S.C. § 1641(g) in Garrasi v. Christiana Trust. 16-CV-1035, 2017 WL 4334134, at 6 n.7 (N.D.N.Y. Sept. 28, 2017) (Suddaby, C.J.). There, the Court identified several cases recognizing that, “[b]ased on its plain language, [Section] 1641(g)’s disclosure obligation is triggered only when ownership of the ‘mortgage loan’ or ‘debt’ itself is transferred, not when the instrument securing the debt (that is, the mortgage) is transferred.” Rider v. HSBC Mortg. Corp. (USA), 12-CV-0925, 2013 WL 3901519, at *4 (S.D. Ohio Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 270 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 July 29, 2013) (quoting Giles v. Wells Fargo Bank, N.A., 519 F. App'x 576, 578 [11th Cir. 2013]); accord, e.g., In re Bishop, 13-CV-0977, 2014 WL 1266363, at *7 (D. De. Mar. 21, 2014) (“[C]ase law confirms that what matters for § 1641(g) purposes is [the] transfer of the debt obligation, not merely [the] assignment of the mortgage.”) (quoting Connell v. CitiMortgage, Inc., 11-CV-0443, 2012 WL 5511087, at *8 [S.D. Ala. Nov. 13, 2012]); Foley v. Wells Fargo Bank, N.A., 11-CV-62314, 2012 WL 4829124, at *3 (S.D. Fla. Sept. 28, 2012) (concluding that Wells Fargo's “interests in the Mortgage, not in the Note, that were conveyed to [it] by the ... 2010 Assignment were insufficient to trigger the notification requirements of § 1641(g)” because Wells Fargo was not “ ‘the creditor that is the new owner or assignee of the debt,’ which is to whom the very terms of the statute apply the 30- day notice requirement”). *8 Here, in his Complaint, Plaintiff alleges that in February 2018 he received an Assignment of Mortgage assigning the deed of trust on his home from his original lender, effective July 20, 2015. (Dkt. No. 2, at ¶ 4.) Despite Plaintiff's arguments to the contrary, such an assignment does not give rise to liability for a violation of Section 1641(g) because of the lack of admissible record evidence that Defendant is a new owner or the new assignee of a mortgage loan. See, e.g., Jara v. Aurora Loan Servs., 852 F. Supp. 2d 1204, 1209 (N.D. Cal. 2012) (“15 U.S.C. § 1641(g) only applies to creditors who are new owners or assignees of [a] mortgage loan, and Mr. Jara does not allege that Aurora is a new owner or assignee of his loan.”) (emphasis added). Accordingly, Plaintiff does not have a valid TILA claim against Defendant. 12 B. Whether Plaintiff's TILA Claim Is Barred by the Statute of Limitations “The statute of limitations for filing a private action for monetary damages under TILA is one year.” Kelmetis v. Fed. Nat'l Mortg. Assoc., 16-CV-0246, 2017 WL 395120, at *6 (N.D.N.Y. Jan. 27, 2017) (D'Agostino, J.). Plaintiff does not appear to dispute that this limitations period expired in or around August 30, 2016 (i.e., one year after the thirty-day period following the assignment); instead, Plaintiff argues that he is entitled to equitable tolling dating back to February 2018, eight months before this case was filed. (Dkt. No. 82 at 18-20 [Plf.’s Opp'n Memo. of Law].) However, “equitable tolling will not be applied unless the plaintiff alleges affirmative acts of concealment by the defendant over and above any alleged non-disclosure that forms the basis of her claims.” Kelmetis, 2017 WL 395120, at *6 (quoting Futterman v. Washington Mut. Bank, FA, 10-CV-1002, 2010 WL 5067650, at *2 [N.D.N.Y. Dec. 6, 2010] [Kahn, J.]). To invoke the doctrine of fraudulent concealment properly [for purposes of seeking an equitable tolling of the statute of limitations], a plaintiff must establish three elements, including (1) wrongful concealment by defendants [of their actions] (2) which prevented plaintiff's discovery of their nature of the claim within the limitations period, and (3) due diligence in pursuing the discovery of the claim. Reeder v. Robinson, 16-CV-1129. 2018 WL 3121633, at *5 (N.D.N.Y. Jan 24, 2018) (Danks, M.J.) (quoting Richard v. LeClaire, 15-CV-0006, 2017 WL 4349381, at *2 [N.D.N.Y. Sept. 29, 2017] [Sannes, J.]). “A claim of fraudulent concealment must be pled with particularity, in accordance with the heightened pleading standards of Fed. R. Civ. P. 9(b).” Hinds Cty., Miss. v. Wachovia Bank N.A., 620 F. Supp. 2d 499, 520 (S.D.N.Y. 2009). As to the circumstances of fraud, “the complaint must ‘(1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.’ ” Lorely Fin. Jersey No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160, 171 (2d Cir. 2015) (quoting Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 [2d Cir. 2004]). As to the defendant's mental state, although the heightened pleading standard does not apply, the plaintiff “must nonetheless allege facts ‘that give rise to a strong inference of fraudulent intent.’ ” Loreley Fin., 797 F.3d at 171 (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290-91 [2d Cir. 2006]). “In determining the adequacy of [the plaintiff's] fraud pleadings under these various requirements, we view the alleged facts in their totality, not in isolation.” Id. (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 [2007]). *9 Here, Plaintiff has failed to identify with particularity the circumstances constituting fraud or mistake. “[I]n cases involving TILA, the courts have held uniformly that fraudulent conduct beyond the nondisclosure itself Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 271 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 is necessary to equitably toll the running of the statute of limitations[,] ... because if the very nondisclosure or misrepresentation that gave rise to the TILA violation also tolled the statute of limitations, the effect of the statute of limitations would be nullified.” Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 286 (S.D.N.Y. 2011) (internal quotation marks omitted; emphasis in original). Because Plaintiff has failed to adduce admissible record evidence establishing (let alone plead with particularity) any fraudulent conduct that Defendant engaged in beyond the nondisclosure itself, the Court finds that the statute of limitations should not be equitably tolled. Accordingly, for all of these reasons, the Court finds, in the alternative, that Defendant is entitled to summary judgment because Plaintiff's claim is time-barred by the statute of limitations. C. Whether Plaintiff's TILA Claim Is Barred by the Doctrine of Res Judicata “Under the Constitution's Full Faith and Credit Clause, see U.S. Const. Art. IV, § 1, federal courts must accord state court judgments the same preclusive effect as other courts within that state.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Migra v. Warren City Sch. Dist., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 [1984]). The Court's “analysis is governed by New York State law, which has adopted a transactional approach to res judicata, barring a later claim arising out of the same factual grouping as an earlier litigated claim even if the later claim is based on different legal theories or seeks dissimilar or additional relief.” Burgos, 14 F.3d at 790 (emphasis added) (citing Smith v. Russel Sage College, 54 N.Y. 2d 185, 445 N.Y.S.2d 68, 429 N.E.2d 746 [1981]). “To prove the affirmative defense [of res judicata] a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiff[ ] or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Monohan v. New York City Dep't of Corrs., 214 F.3d 275, 285 (2d Cir. 2000) (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 [1980]). Here, Defendant has provided uncontroverted evidence that the operative facts alleged in both actions are a part of the same transaction and factual grouping. In the Foreclosure Action, Plaintiff has argued that the 2015 assignment of mortgage evidenced a standing defect sufficient to vacate the foreclosure judgment and to dismiss the action. (See, supra, Part I.B. of this Decision and Order.) In this case, Plaintiff seeks a computation of damages due to Defendant's alleged failure to notify him of the 2015 assignment of mortgage in accordance with 15 U.S.C. § 1641(g). (See generally Dkt. No. 2 [Plf.’s Compl].) Although Plaintiff seeks dissimilar forms of relief in the two actions, both the Complaint in this action and Plaintiff's defense in the Foreclosure Action involve allegations relating to the origin of Plaintiff's mortgage and its subsequent assignment. Harris v. BNS Mortg. Inc., 737 F. App'x 573, 576 (2d Cir. 2017). Moreover, Defendant has satisfied all three elements necessary to invoke the doctrine of res judicata and preclude Plaintiff's TILA claim. A judgment of foreclosure and sale, even if obtained by default, is a final adjudication of the merits. See EDP Med. Comput. Sys. Inc. v. United States, 480 F.3d 621, 626 (2d Cir. 2007) (“Res judicata does not require the precluded claim to actually have been litigated.... That is why it has long been the law that default judgments can support res judicata as surely as judgments on the merits.”); Henry Modell & Co., Inc. v. Minister, Elders & Deacons of Reformed Protestant Dutch Church of City of New York, 68 N.Y. 2d 456, 461, 510 N.Y.S.2d 63, 502 N.E.2d 978 (N.Y. 1986) (“[A] party is not free to remain silent in an action in which he is the defendant and then bring a second action seeking relief inconsistent with the judgment in the first action by asserting what is simply a new legal theory.”); Harris, 737 F. App'x at 575. Additionally, there is no dispute that Plaintiff was a party to the foreclosure action; Plaintiff has been contesting the foreclosure action for more than eleven years, even after the entry of the October 26, 2017, foreclosure order. (See, supra, Part I.B. of this Decision and Order.) Accordingly, the Court must determine whether Plaintiff's TILA claim could have been raised in the prior action. *10 The Court concludes that Plaintiff could have raised his TILA claim in the prior action. 13 Assuming Plaintiff's TILA claim did not arise until he discovered the 2015 assignment of mortgage, the unrebutted evidence demonstrates that Plaintiff became aware of the 2015 assignment of mortgage in August 2017, prior to the entry of the October 26, 2017, judgment of foreclosure and sale. Although Plaintiff's points to the affidavit of Mr. Rosendale in opposition to Defendant's position, the Court notes that Mr. Rosendale's representation fails to rebut the presumption of the mailing of the 2015 Assignment of Mortgage on August 11, 2017. Specifically, Mr. Rosendale's affidavit does not assert that he resided with Plaintiff or that he had any personal knowledge of what mail was delivered to Plaintiff's home on August 11, 2017, or any other day. (See generally Dkt. No. 82, Attach. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 272 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 1.) Thus, Plaintiff has no basis other than inadmissible hearsay on which to challenge the affidavit of service of Defendant's foreclosure counsel. Inadmissible hearsay cannot be considered on a motion for summary judgment. Niedzieko v. Del. & Hudson Ry. Co., 18-CV-0675, 2019 WL 1386047, at *38 (N.D.N.Y. Mar. 27, 2019) (Suddaby, C.J.). Accordingly, even if the accrual date was resolved most favorably to Plaintiff, he would nevertheless have had the opportunity to litigate his TILA claim in the Foreclosure Action. Because Plaintiff had an opportunity to raise his TILA claim in the related foreclosure action, and he failed to do so, he is now precluded from re-litigating the waived claim. For all of these reasons, the Court finds, in the alternative, that Plaintiff's TILA claim is barred under the doctrine of res judicata. ACCORDINGLY, it is ORDERED that Defendant's motion for summary judgment (Dkt. No. 69) is GRANTED; and it is further ORDERED that Plaintiff's Complaint (Dkt. No. 2) is DISMISSED. All Citations Not Reported in Fed. Supp., 2021 WL 1062590 Footnotes 1 (Dkt. No. 4; Dkt. No. 69, Attach. 33; Dkt. No. 71, at 2.) 2 The Court notes that, in response to Defendant's motion for summary judgment, Plaintiff filed not a Rule 7.1 (or 56.1) Response but a “FRCP 56.1 b 1 Statement.” (Dkt. No. 82, at 27-36.) Such a document, which omits admissions/denials and attempts to assert undisputed material facts, has no place in the procedure established by Local Rule 7.1 (or 56.1) and will be disregarded. See Binghamton-Johnson City Joint Sewage Bd. v. Am. Alternative Ins. Corp., 12-CV-0553, 2015 WL 2249346, at *11 n.1 (N.D.N.Y. May 13, 2015) (Suddaby, J.) (“Neither the Federal Rules of Civil Procedure nor the Local Rules of Practice [for the N.D.N.Y.] permit such a counterstatement in response to a motion for summary judgment.... This, of course, makes sense, given that what is needed for a non-movant to defeat a motion is a genuine dispute of fact; and the only point of asserting undisputed facts would be to prevail on a cross-motion for summary judgment.”); accord, Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 n.1 (N.D.N.Y. Mar. 27, 2015) (Suddaby, J.); N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed [movant's] statement of facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a][3] statement that “offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations”); Meaney v. CHS Acquisition Corp., 103 F. Supp. 2d 104, 108-09 (N.D.N.Y. 2000) (Kahn, J.) (deeming assertions in movant's Rule 7.1 Statement where non-movant's Rule 7.1 Response did not mirror the Rule 7.1 Statement); Phipps v. New York State Dept. of Labor, 53 F. Supp. 2d 551, 556 (N.D.N.Y. 1999) (McAvoy, C.J.) (“Because plaintiff's 129 paragraph response did not mirror the 7.1(a)(3) Statement submitted by the defendant, the facts set forth in defendant's 7.1(a)(3) Statement are deemed admitted.”). 3 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing cases). 4 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]. As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 273 of 290
Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed.... © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). 5 Among other things, Local Rule 56.1 (previously Local Rule 7.1[a][3]) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching number paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1. 6 Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing cases). 7 Cusamano, 604 F. Supp.2d at 426 & n.3 (citing cases). 8 Cusamano, 604 F. Supp.2d at 426-27 & n.4 (citing cases). 9 Among other things, Local Rule 56.1 (previously Local Rule 7.1[a][3]) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3). 10 Cusamano, 604 F. Supp.2d at 427 & n.6 (citing cases). 11 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31, 1999 WL 325378 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3]); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground). 12 Plaintiff also mistakenly argues that, because the Court rejected the argument on Defendant's original motion to dismiss (Dkt. No. 28), the Court should do so again. (Dkt. No. 82, at 11-13.) However, Plaintiff does not properly identify the Court's ruling in its previous decision: that Defendant's affirmative defense arguments were improper for a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) but are more appropriate for a motion for summary judgment pursuant to Fed. R. Civ. P. 56. 13 Plaintiff's reliance on N.Y. RPAPL § 1302-a is misplaced because the statute, by its own terms, strips neither the October 26, 2017, judgment of foreclosure and sale, nor the Hon. Christopher E. Cahill's decision to not vacate the judgement of foreclosure and sale, of its preclusive effect regarding any other previously waived objections or defenses other than lack of standing. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 274 of 290
Simpson v. Price, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 336540 Only the Westlaw citation is currently available. United States District Court, N.D. New York. James SIMPSON, Plaintiff, v. R. PRICE, C.O., Defendant. 9:19-CV-1413 (MAD/ATB) | Signed 02/04/2022 Attorneys and Law Firms JAMES SIMPSON, 18-B-0295, Cayuga Correctional Facility, P.O. Box 1186, Moravia, New York 13118, Plaintiff pro se. OF COUNSEL: KONSTANDINOS D. LERIS, AAG, OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL, The Capitol, Albany, New York 12224, Attorneys for Defendant. MEMORANDUM-DECISION AND ORDER Mae A. D'Agostino, United States District Judge: I. INTRODUCTION *1 On November 15, 2019, Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), filed his original complaint in this matter pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. On January 3, 2020, the Court dismissed the complaint on initial review and permitted Plaintiff an opportunity to file an amended complaint. See Dkt. No. 4. Plaintiff filed his amended complaint on January 21, 2020, which the Court accepted for filing to the extent that it asserted an Eighth Amendment excessive force claim against Defendant Price stemming from events that occurred on August 9, 2019. See Dkt. Nos. 5 & 8. Plaintiff was granted leave to file a second amended complaint on September 24, 2020, and the second amended complaint was accepted for filing to the extent that it asserted an additional excessive force claim against Defendant arising from events that occurred on October 10, 2018. See Dkt. No. 29. On August 24, 2021, Defendant moved for summary judgment. See Dkt. No. 41. On September 9, 2021, Plaintiff responded to Defendant's motion. See Dkt. No. 43. In a Report-Recommendation dated December 29, 2021, Magistrate Judge Baxter recommended that the Court grant Defendant's motion in its entirety and dismiss this case. See Dkt. No. 46. In his Report-Recommendation, Magistrate Judge Baxter first found that Defendant was not personally involved in the October 10, 2018 incident. See id. at 9. As to the August 9, 2019 excessive force claim, Magistrate Judge Baxter initially found that dismissal is appropriate because Plaintiff failed to exhaust his administrative remedies. See id. at 13-21. Alternatively, Magistrate Judge Baxter found that the claim should be dismissed on the merits because Plaintiff failed to establish both the subjective and objective components of an Eighth Amendment excessive force claim. See id. at 23-26. In objections received on January 13, 2022, Plaintiff argues, in an entirely conclusory manner, that he has set forth a valid Eighth Amendment excessive force claim. See Dkt. No. 47 at 1-4. Additionally, Plaintiff contends that he was not required to exhaust his claim stemming from the events on August 9, 2019 because of the “futility exception.” Id. at 2. As set forth below, Defendant's motion for summary judgment is granted in its entirety. II. BACKGROUND For a complete recitation of the relevant factual background, the parties are referred to Magistrate Judge Baxter's December 29, 2021 Report-Recommendation. See Dkt. No. 46. III. DISCUSSION A. Standard of Review When a party files specific objections to a magistrate judge's report-recommendation, the district court “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, when a party files “[g]eneral or conclusory objections, or objections which merely recite the same arguments [that he] presented to the magistrate judge,” the court reviews those recommendations for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 275 of 290
Simpson v. Price, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 and footnote omitted). After the appropriate review, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). *2 A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Id. at 36– 37 (quotation and other citation omitted). Moreover, it is well- settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56 (c), (e)). In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of New York., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment “would derogate the truth-finding functions of the judicial process by substituting convenience for facts”). “Assessments of credibility and choices between 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) (quotation omitted). “However, ‘[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.” Id. (quoting Anderson, 477 U.S. at 252 (emphasis and alterations in original)). “To defeat summary judgment, therefore, nonmoving parties ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ ... and they ‘may not rely on conclusory allegations or unsubstantiated speculation.’ ” Id. (quotations omitted). “[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’ ” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to “make reasonable allowances to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). “However, this does not mean that a pro se litigant is excused from following the procedural requirements of summary judgment.” Kotler v. Fischer, No. 9:09-CV-01443, 2012 WL 929823, *12 (N.D.N.Y. Mar. 19, 2012) (citations omitted). Specifically, “a pro se party's ‘bald assertion,’ completely unsupported by evidence is not sufficient to overcome a motion for summary judgment.” Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). B. October 10, 2018 Incident In his second amended complaint, Plaintiff alleges that on October 10, 2018, he had a medical appointment outside of Cayuga Correctional Facility (“Cayuga C.F.”). See Dkt. No. 30 at 2. Plaintiff informed the correctional officers responsible for his transport that the leg irons that he was placed in were too small for his ankles. See id. The officers ignored Plaintiff's complaints, resulting in severe bruises and aggravation of an open wound on his ankle. See id. *3 In its initial review of Plaintiff's second amended complaint, the Court read the pleading as alleging that Defendant Price was one of the officers who transported Plaintiff to his medical appointment on October 10, 2018. See Dkt. No. 29 at 3. At Plaintiff's deposition, however, he confirmed that Defendant Price was not involved in the October 10, 2018 incident. See Dkt. No. 41-1 at 41. Since Defendant Price was not present at the time of the October 10, 2018 incident, the undisputed facts demonstrate that he was not personally involved in any constitutional violation. As such, Magistrate Judge Baxter correctly determined that this claim must be dismissed due to Defendant's lack of personal involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). C. August 9, 2019 Incident Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 276 of 290
Simpson v. Price, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 1. Exhaustion of Administrative Remedies As Magistrate Judge Baxter correctly determined, the excessive force claim stemming from the incident on August 9, 2019 should be dismissed due to Plaintiff's failure to exhaust. The undisputed facts before the Court establish that there is no record of a grievance being filed regarding this incident and that, even if such a grievance was filed, the denial of the grievance was not appealed to the CORC. See Dkt. No. 46 at 13-15; Dkt. No. 41-3; Dkt. No. 41-4. Plaintiff attempts to argue that the grievance process was unavailable to him, but his explanations/arguments have evolved over time and are insufficient to establish his burden of demonstrating unavailability, as fully explained by Magistrate Judge Baxter. See Dkt. No. 46 at 13-20. Plaintiff has provided no specifics regarding when the alleged grievances were written, their content, or the steps that he took to provide them to an officer to send to the grievance office. Additionally, Plaintiff has failed to provide the Court with any documentary evidence to corroborate that he attempted to file a grievance, such as follow-up correspondence after his release from SHU. As such, the Court finds that Plaintiff's conclusory allegations are insufficient to defeat summary judgment. See Sankara v. Montgomery, No. 9:16-cv-885, 2018 WL 4610686, *8 (N.D.N.Y. June 25, 2018) (“Plaintiff's conclusory allegations that the DOCCS IGP was unavailable to him [while confined to the SHU] were insufficient to withstand summary judgment,” where the plaintiff “provided no evidence that he actually did write grievances; when they were written; the content of the grievances; ... the officers named in the grievance(s) ...; 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”). Plaintiff's objections to Magistrate Judge Baxter's Report-Recommendation simply reiterate his belief that administrative remedies were unavailable to him in an entirely conclusory fashion. See Dkt. No. 47 at 2. Accordingly, the Court's Defendant's motion for summary judgment as to this claim based on Plaintiff's failure to exhaust the available administrative remedies. 2. Merits Magistrate Judge Baxter also correctly found, in the alternative, that Plaintiff's excessive force claim relating to the August 9, 2019 incident should be dismissed on the merits. This incident again involves the application of leg irons on Plaintiff while he was being transported that were allegedly too small and caused a wound to reopen, resulting in an infection. See Dkt. No. 46 at 23. According to the undisputed facts, on August 9, 2019, Plaintiff had an appointment at SUNY Upstate Medical University at 9:45 a.m. See Dkt. No. 41-2 at ¶¶ 10-11. Plaintiff was required to arrive at the departure location at Cayuga C.F. no later than 8:15 a.m. for an 8:30 a.m. departure. See id. at ¶¶ 11-12. Plaintiff arrived at the transport location at 8:45 a.m., at which point he was frisked and then placed in the transport van. See id. at ¶¶ 13-14. Once Plaintiff was placed in the van, Defendant attempted to place standard- sized ankle restraints on Plaintiff, which Plaintiff refused. See id. at ¶ 15. Plaintiff told Defendant that he would not wear the standard-sized restraints, and that he had a permit for “big boy” cuffs to ease the pressure placed on chronic wounds on his ankles and feet. See id. at ¶ 17. At this point, Defendant stopped attempting to place the standard-sized leg restraints on Plaintiff and contacted the area supervisor. See id. at ¶ 21. Defendant and the supervisor then escorted Plaintiff from the van to the infirmary, where Plaintiff spoke with Nurse Giovannetti. See id. at ¶ 22. Nurse Giovannetti placed a gauze bandage around one of Plaintiff's ankles and, at this point, Plaintiff agreed to continue on the medical trip. See id. at ¶ 23. *4 Additionally, while at the infirmary, Defendant and the supervisor checked with the Deputy Superintendent's Office and Medical Office for any documentation concerning a permit approving Plaintiff for larger restraints. See id. at ¶ 24. Neither office found any documentation and, therefore, it was determined that standard-sized ankle restraints would be used. See id. Upon returning to the van, Plaintiff permitted Defendant to apply the standard-sized restraints without further complaint. See id. The delay caused by the trip to the infirmary and checking for the existence of the permit resulted in Plaintiff arriving for his medical appointment thirty-five minutes after the scheduled arrival time. See id. at ¶ 26. As Magistrate Judge Baxter correctly determined, the undisputed facts, beyond Plaintiff's own conclusory assertions, demonstrate that the alleged force was not employed in a sadistic or malicious manner intending to cause harm. As such, he has failed to satisfy the subjective prong of his excessive force claim. See Chambliss v. Rosini, 808 F. Supp. 2d 658, 669 (S.D.N.Y. 2011) (citation omitted). Moreover, Plaintiff has failed to satisfy the objective prong of his excessive force claim since he has alleged only de minimis injury without any plausible allegations of wantonness or maliciousness. See Livingston v. Hoffnagle, Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 277 of 290
Simpson v. Price, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 No. 9:19-cv-353, 2019 WL 7500501, *4 (N.D.N.Y. Nov. 8, 2019) (listing cases); see also Burroughs v. Mitchell, 325 F. Supp. 3d 249, 265 (N.D.N.Y. 2018) (dismissing the pro se inmate's excessive force claim where he alleged only that the defendants “handcuffed him tightly, which caused cuts to his wrist”). Based on the foregoing, the finds that Defendant is entitled to summary judgment on this alternative ground. IV. CONCLUSION Accordingly, the Court hereby ORDERS that Magistrate Judge Baxter's December 29, 2021 Report-Recommendation (Dkt. No. 46) is ADOPTED in its entirety for the reasons set forth therein; and the Court ORDERS that Defendant's motion for summary judgment (Dkt. No. 41) is GRANTED in its entirety; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; 1 and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2022 WL 336540 Footnotes 1 In a one-page letter motion dated January 18, 2022, Plaintiff asks the Court “for permission for the defendant to take a voice analysis with my question, about the event that happen [sic] at my cost.” Dkt. No. 48. It is entirely unclear what Plaintiff is seeking in this letter motion. However, since the Court has granted Defendant's motion for summary judgment in its entirety, this letter motion is denied as moot. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 278 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 806331 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Paul STEPHANSKI, Plaintiff, v. Randy ALLEN, Sergeant, Cape Vincent Correctional Facility; Thomas Stackle, Correctional Officer, Cape Vincent Correctional Facility; and Brandon Payne, Correctional Officer, Cape Vincent Correctional Facility, Defendants. 9:18-CV-0076 (BKS/CFH) | Signed 01/22/2020 Attorneys and Law Firms PAUL STEPHANSKI, 99-B-2439, Plaintiff pro se, Marcy Correctional Facility, P.O. Box 3600, Marcy, New York 13403. HON. LETITIA JAMES, Attorney General for the State of New York, OF COUNSEL: AIMEE COWAN, ESQ., Assistant Attorney General, Attorney for Defendants, 300 South State Street, Suite 300, Syracuse, New York 13202. REPORT-RECOMMENDATION AND ORDER 1 CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE *1 Plaintiff pro se Paul Stephanski (“Stephanski”), an inmate who was, at all relevant times, in the custody of the New York Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983 against Defendants Sergeant Randy Allen (“Allen”) and Correctional Officers Thomas Stackle (“Stackle”) and Brandon Payne (“Payne”) for alleged violations of his rights under the Eighth Amendment. Dkt. No. 1 (“Compl.”). Presently before the Court is Defendants’ motion for summary judgment. Dkt. No. 39. Stephanski opposed the motion, and Defendants submitted a reply. Dkt. Nos. 44, 45. For the following reasons, it is recommended that Defendants’ motion for summary judgment be denied. I. BACKGROUND A. FACTS 2 In support of their motion, Defendants filed a Statement of Material Facts. 3 Dkt. No. 39-9. The facts are reviewed in the light most favorable to Stephanski as the non-moving party. See subsection II.A.1 infra. 1. Use of Force Incident *2 On September 30, 2015, a use of force incident involving Stephanski and Defendants occurred at Cape Vincent Correctional Facility (“Cape Vincent C.F.”). Compl. at 5-6. 4 At approximately 5:30 P.M., Stephanski was smoking a cigarette in his cell, C29, in the Special Housing Unit (“SHU”). Dkt. No. 39-2 at 26-27. Payne and Stackle came to Stephanski's cell and directed him to put his hands out of the hatch to be handcuffed. 5 Id. at 29. Stephanski complied, and Defendants handcuffed him with his arms behind his back. Id. at 30-31, 40. One of the officers told Stephanski to walk to the center of the cell. Id. at 34. Stephanski complied, and Payne and Stackle “rushed in.” Dkt. No. 39-2 at 34. Stackle grabbed Stephanski and pushed him to the corner of the room while Payne searched the cell. Id. Stackle punched Stephanski twice in the ribcage, and Payne punched him six to eight times in the back. Id. at 34-41. Defendants forcibly removed Stephanski from his cell. Id. at 39. Payne and Stackle escorted Stephanski to the strip frisk room where they were met by Allen. Dkt. No. 39-2 at 41. Allen directed Stephanski to lie on the floor of the room and then punched him eight times in the back of his right leg while Payne twisted his right ankle and Stackle “mush[ed] [his] face into the floor.” Id. at 43-46. After the incident, Stephanski was confined to the SHU and remained on “special watch” for eleven days. Dkt. No. 39-8 at 4. On November 6, 2015, Stephanski was transferred to Southport Correctional Facility (“Southport C.F.”). 6 Dkt. No. 39-2 at 62-63; Dkt. No. 39-4 at 7. 2. Grievances Stephanski testified that between October 7, 2015 and October 9, 2015, he attempted to file two grievances while Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 279 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 confined in Cape Vincent C.F. SHU Cell A-1-1. 7 Dkt. No. 39-3 at 14-15. Stephanski claims that he handed the grievances to an officer who collected mail and that he observed the officer put the mail in a locked box. Id. Stephanski alleges that the grievances, “never got to [the Inmate Grievance Committee].” Dkt. No. 39-2 at 60-62. Stephanski did not receive a response to his grievances. Id. at 62. After Stephanski arrived at Southport C.F., he wrote a letter to the Cape Vincent Grievance Committee inquiring about the status of his grievance(s) related to the September 2015 incident. 8 Dkt. No. 39-2 at 61-62; Dkt. No. 39-8 at 11. The letter reads, “[w]hen I was at your facility I wrote a grievance on a assault that took place in your box-against C.O. Stackle, C.O. Payne and Sgt. Allen - what is the status on that grievance - please respond.” Id. On November 27, 2015, Stephanski submitted a written grievance to the Inmate Grievance Resolution Committee (“IGRC”) at Southport C.F. related to the September 2015 incident. Dkt. No. 39-2 at 64-65; Dkt. No. 39-6 at ¶ 11. In the grievance, Stephanski described the use of force incident and claimed, “I also filed a grievance got no response - I also wrote and reported it to IG in Albany - still haven't heard anything so I now file this at Southport C.F. due to mitigating circumstances.” Dkt. No. 39-8 at 5-6. Stephanski also alleged that his grievances and letters were “tampered with[.]” 9 Id. On November 30, 2015, Tami Hartz (“Hartz”), the Inmate Grievance Program (“IGP”) Supervisor at Cape Vincent C.F., responded to Stephanski's inquiry. The response states, “This is in response to your note received on 11/30/15. A review of the IGRC log reveals there is no record of a grievance from you in 2015.” Dkt. No. 39-2 at 61-62; Dkt. No. 39-8 at 10. On November 30, 2015, the IGP Supervisor denied the grievance as “untimely.” 10 Dkt. No. 39-2 at 64; Dkt. No. 39-6 at ¶ 13. *3 On December 1, 2015, Stephanski wrote a letter to “H. Martin,” the IGP Supervisor at Southport C.F., “returning the grievance” because it “need[ed] a number.” Dkt. No. 39-2 at 64; Dkt. No. 39-8 at 4. Stephanski indicated, “I do not know if Cape Vincent Correctional Facility filed my original complaint[.]” Dkt. No. 39-8 at 4. Stephanski noted, “this needs to be filed and given a number - your response [that it] is untimely - that's fine - please give it a number so it's on file.” Id. Stephanski argued that “mitigating circumstances” excused the late filing. Id. On December 2, 2015, the IGRC received and filed the grievance as SPT-61355-15. Dkt. No. 39-6 at ¶ 15; Dkt. No. 39-8 at 2. On December 4, 2015, DOCCS issued a document entitled “Inmate Grievance Program - Investigation”, denying Grievance No. SPT 61355-15. 11 Dkt. No. 39-8 at 2, 3, 9. Under the heading “Investigative Report,” the decision states: “Denied: According to Cape Vincent C.F. no grievance was filed concerning this issue. Grievant was informed by mail dated 11/30/15. The incident is untimely and will not be investigated.” Dkt. No. 39-8 at 9. The Investigative Report also contains the following notation: 1/27 - IGPS Hartz No F/U with IGPS prior to 11/6 T/F to SPT. Dkt. No. 39-8 at 9. On December 9, 2015, Stephanski appealed the IGRC's decision to the Superintendent. Dkt. No. 39-8 at 3. On December 10, 2015, the Superintendent denied the grievance. Id. at 2, 7. The response reads: Upon full hearing of the facts and circumstances in the instant case, the action requested herein is denied. According to our investigation Cape Vincent CF has advised that no grievance concerning this issue was ever received and filed. Grievant was informed by mail dated 11/30/15 that the issues in his complaint are now beyond the timeframes established in Directive 4040. Therefore, any issues raised in grievant's complaint which exceed the time frames for filing a grievance will not be addressed and should not be the subject of another grievance. Dkt. No. 39-8 at 7. On December 14, 2015, Stephanski appealed the decision to the Central Office Review Committee (“CORC”) arguing that Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 280 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 “[d]ue to Cape Vincent not filing grievance - this should be accepted and investigated fully.” Dkt. No. 39-8 at 2, 3, 7. On February 17, 2016, CORC issued a decision and “unanimously denied [the appeal] as without merit.” Dkt. No. 39-8 at 1; Dkt. No. 39-6 at ¶ 16. CORC reasoned that Stephanski could not avail himself of Section 701.6(g)(1)(i) (a) 12 because “an exception to the time limit may not be granted more than 45 days after an alleged occurrence.” Dkt. No. 39-8 at 1; Dkt. No. 44-5 at 9. B. Procedural History *4 On January 18, 2018, the Court received the Complaint in the within action. Dkt. No. 1. Upon review of the Complaint, the Court directed Defendants to respond to the Eighth Amendment claim. Dkt. No. 9. On June 1, 2018, Defendants filed an Answer to the Complaint. 13 Dkt. No. 18. On November 21 and December 7, 2018, Stephanski appeared at depositions. 14 Dkt. No. 39-2 and 39-3. On June 26, 2019, Defendants filed the within motion pursuant to Fed. R. Civ. P. 56 seeking judgment as a matter of law with respect to Stephanski's Eighth Amendment claim. Dkt. No. 39. II. DISCUSSION Stephanski contends that Defendants used excessive force during the September 2015 incident in violation of the Eighth Amendment. See generally Compl. Defendants move for summary judgment on Stephanski's Eighth Amendment claim arguing that he failed to exhaust his administrative remedies. See generally Dkt. No. 39. A. Legal Standard A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it was supported by affidavits or other suitable evidence, and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of demonstrating the absence of disputed material facts by providing the court with portions of pleadings, depositions, and affidavits which support the motion. FED R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 317, 248, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). The party opposing the motion must set forth facts showing a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). For a court to grant a motion for summary judgment, it must be apparent that no rational finder of fact could find in favor of the non-moving party. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated, [t]here are many cases in which we have said that a pro se litigant is entitled to “special solicitude,” ... that a pro se litigant's submissions must be construed “liberally,” ... and that such submissions must be read to raise the strongest arguments that they “suggest,” .... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not “consistent” with the pro se litigant's allegations, ... or arguments that the submissions themselves do not “suggest,” ... that we should not “excuse frivolous or vexatious filings by pro se litigants,” ... and that pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law. Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008). B. Exhaustion 15 *5 Defendants contend that the motion for summary judgment must be granted because Stephanski failed to exhaust his administrative remedies through available grievance procedures. See Dkt. No. 39. The PLRA requires that a prisoner exhaust any administrative remedies available to him or her before bringing an action for claims arising out of his or her incarceration. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Woodford v. Ngo, 548 U.S. 81, 82, 126 S.Ct. 2378, 165 Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 281 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 L.Ed.2d 368 (2006). The exhaustion requirement applies “to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. at 532, 122 S.Ct. 983. Further, the exhaustion requirement applies even where the prisoner seeks relief not available in the administrative grievance process, such as monetary damages. Id. at 524, 122 S.Ct. 983. To exhaust administrative remedies, the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he or she is incarcerated. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation omitted). Although the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that “certain caveats apply.” Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citation omitted). The Supreme Court of the United States has held that “[c]ourts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA's exhaustion requirement.” Ross v. Blake, ––– U.S. ––––, 136 S. Ct. 1850, 1862, 195 L.Ed.2d 117 (2016). As such, the special circumstances exception previously promulgated by the Second Circuit in Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), is no longer consistent with the statutory requirements of the PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016). 16 Although Ross eliminates the “special circumstances” exception, courts must still consider the PLRA's “textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. Under this exception, courts must determine whether administrative remedies were “available” to a prisoner. Id. The Supreme Court identified three circumstances where administrative remedies may be unavailable to a prisoner. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859 (citing Booth v. Churner, 532 U.S. 731, 736, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. Here, there is no dispute that at all relevant times, DOCCS had in place a three-step inmate grievance program. N.Y.C.R.R. tit. 7, § 701.5 (2015). First, the inmate must file a complaint with an inmate grievance program (“IGP”) clerk within twenty-one days of the alleged action. Id. at § 701.5(a) (1). An IGP representative has sixteen calendar days to informally resolve the issue. Id. at § 701.5(b)(1). If no informal resolution occurs, the full IGP committee must hold a hearing within sixteen days of receipt of the grievance and must issue a written decision within two working days after the conclusion of the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the determination is unfavorable to the inmate, the inmate may appeal the IGRC's determination to the facility superintendent within seven calendar days of receipt of the determination. Id. § 701.5(c)(1). If the superintendent's determination is unfavorable to the inmate, the inmate may appeal to the Central Office Review Committee (“CORC”) within seven days after receipt of the superintendent's determination. Id. §§ 701.5(d)(i)-(ii). CORC must “review each appeal, render a decision on the grievance, and transmit its decision to the facility, with reasons stated, for the [inmate], the grievance clerk, the superintendent, and any direct parties within thirty (30) calendar days from the time the appeal was received.” Id. § 701.5(d)(3)(ii). *6 If it is found that the plaintiff has not exhausted all available administrative remedies, his or her case generally should be dismissed without prejudice. Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 560 F.3d 118, 124 (2d Cir. 2009) (citation omitted). Since “[f]ailure to exhaust administrative remedies is often a temporary, curable procedural flaw,” and “[i]f the time permitted for pursuing administrative remedies has not expired, a prisoner ... can cure the defect by exhausting [the available remedies] and reinstating his suit.” Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003), amended 2004 (quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)). Where the grievance involves allegations of employee excessive force, as alleged by Stephanski, there is an expedited administrative process. N.Y.C.R.R. tit. 7, § 701.8; see Torres v. Carry, 691 F. Supp. 2d 366, 369-70 (S.D.N.Y. 2009). Complaints and grievances of this nature are forwarded directly to the superintendent of the facility. Bell v. Napoli, No. 9:17-CV-850 (ATB), 2018 WL 6506072, at *2 (N.D.N.Y. Dec. 11, 2018). In such cases the superintendent is required to order an investigation and render a decision within twenty-five (25) days. Id. § 701(a)-(f). If the superintendent fails to respond within the twenty-five (25) time limit the Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 282 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 inmate may appeal his grievance to the CORC. Disagreement with the superintendent's decision in the expedited review process also requires an appeal to the CORC. See N.Y.C.R.R., title 7,§ 701.8-(g)-(h); see also Espinal v. Goord, 588 F.3d 119, 125 (2d Cir. 2009) (explaining IGP and the expedited procedure for harassment claims and its appeal mechanism through the CORC). The Second Circuit has long recognized this procedure as an “available remedy” for purposes of the PLRA. See Hall v. County of Saratoga, No. 1:10-CV-1120 (NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6, 2013). 1. Did Plaintiff Exhaust his Administrative Remedies? The Court will address whether there is any genuine dispute that Stephanski failed to exhaust his administrative remedies. Stephanski does not dispute that a grievance process existed at Cape Vincent C.F. and that he was aware of the process. Dkt. No. 39-2 at 58-59. Stephanski sets forth two arguments to establish that he exhausted his administrative remedies. First, Stephanski alleges that he verbally complained about the incident and wrote letters to the Inspector General. Id. at 55-58; Dkt. No. 39-8 at 6. Second, Stephanski alleges that he exhausted his administrative remedies because he filed a grievance at Southport C.F. and appealed the unfavorable determination to CORC. Dkt. No. 44 at 2-3; Dkt. No. 44-4 at 6. a. Verbal Complaints and Letters Stephanski testified that he complained to Captain Hanson and sent letters to the Inspector General regarding the September 2015 incident. 17 Dkt. No. 39-2 at 55-58. Insofar as Stephanski argues that he sufficiently exhausted because he verbally complained to Hansen, “[t]he law is well-settled that informal means of communicating and pursuing a grievance, even with senior prison officials, are not sufficient under the PLRA.” Timmons v. Schriro, No. 14-CV-6606, 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015). Similarly, assuming as true that Stephanski wrote to the Inspector General, a plaintiff's letters to prison officials or other officials outside of the grievance chain of command are insufficient to properly exhaust administrative remedies. See Geer v. Chapman, No. 9:15-CV-952 (GLS/ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26, 2016), Report-Recommendation adopted, 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016) (citing Macias v. Zenk, 495 F.3d 37, 44-45 (2d Cir. 2007) (“It is well-settled that writing letters to prison officials, or other officials, is insufficient to properly exhaust administrative remedies.”)). Thus, these actions are insufficient to constitute proper exhaustion. b. Southport C.F. Grievance *7 In support of the motion for summary judgment, Defendants submitted the Declaration of Tami Hartz. Dkt. No. 39-5. Hartz reviewed Cape Vincent C.F. records and found that Stephanski submitted no grievances related to allegations of excessive force on or around September 30, 2015. Id. at ¶ 8. Defendants also provided the Declaration of Rachael Seguin (“Seguin”), Assistant Director of DOCCS’ Inmate Grievance Program. Dkt. No. 39-6. Seguin avers that “DOCCS [ ] provides for an expedited procedure for the review of grievances alleging harassment or misconduct by DOCCS employees.” Id. at ¶ 6. The procedure allows an inmate to directly forward the grievance to the Superintendent of the facility however, the inmate must still appeal the determination to CORC. Id. Seguin reviewed CORC records for determinations on any Stephanski grievance appeals and found that there were none filed at Cape Vincent C.F. with respect to the September 2015 incident. Id. at ¶ 10. According to Seguin, “[i]t appears that while at Southport Correctional Facility, Plaintiff submitted a complaint to the IGRC dated November 27, 2015 related to the September 30, 2015 incident at Cape Vincent.” Dkt. No. 39-6 at ¶ 11. The grievance was assigned a number and denied as untimely. Id. at ¶ 13, 15, 16; see Part I(A)(2). Stephanski's appeals to the Superintendent and to CORC were denied. Stephanski's request for an exception to the time limit for filing a grievance based upon “mitigating circumstances” was also denied. Dkt. No. 39-8 at 1. An inmate must submit a grievance within twenty-one calendar days of the alleged occurrence. See N.Y.C.R.R. tit. 7, § 701.5(a). “An inmate may request an exception to the time limit for filing a grievance, ... and the IGP supervisor may grant an exception to the time limit for filing a grievance based on mitigating circumstances[.]” Id. at § 701.6(g). “An exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.” Id. “A grievance which is denied as untimely does not satisfy the PLRA's exhaustion requirements.” Burrell v. Zurek, No. 9:17-CV-0906 (LEK/ TWD), 2019 WL 5197519, at *15 (N.D.N.Y. June 21, 2019). Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 283 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Further, “[f]iling an untimely grievance without subsequently obtaining a finding of mitigating circumstances is insufficient to exhaust one's available administrative remedies.” Adams v. O'Hara, No. 9:16-CV-0527 (GTS/ATB), 2019 WL 652409, at *7 (N.D.N.Y. Feb. 15, 2019) (finding that the plaintiff failed to exhaust his administrative remedies because his grievance was rejected as untimely, and there was no subsequent finding of mitigating circumstances to excuse that untimeliness). “An inmate has not exhausted his administrative remedies when he has requested permission to file an untimely appeal and been denied by CORC due to an unpersuasive showing of mitigating circumstances.” Galberth v. Durkin, No. 9:14- CV-115 (BKS/ATB), 2016 WL 11480153, at *7 (N.D.N.Y. Apr. 21, 2016) (citations omitted). Here, Stephanski's grievance filed at Southport C.F. was denied as untimely and outside the time period in which to seek an extension. Accordingly, Stephanski failed to exhaust his Eighth Amendment claim. See LionKingzulu v. Jayne, 714 F. App'x 80, 82 (2d Cir. 2018) (summary order) (citing § 701.6(g)(1)(i)(a)); see also Armand v. Mosko, No. 13-CV-5, 2019 WL 2374948, at *4 (W.D.N.Y. Apr. 9, 2019) (“Plaintiff's belated attempt to file a grievance from Southport plainly does not satisfy the exhaustion requirement because the PLRA requires proper exhaustion of administrative remedies.”). Defendants have met their burden of demonstrating that a grievance procedure existed, and that Stephanski failed to exhaust administrative remedies related to the 2015 use of force incident. As a result, the Court must assess whether administrative remedies were available to Stephanski. 2. Availability of Administrative Remedies *8 Administrative remedies may be unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. However, it is well-settled that where an inmate does not receive a response to a grievance, the inmate must appeal to the next level of review notwithstanding the lack of response at the first level of review. See Khudan v. Lee, No. 12-CV-8147, 2015 WL 5544316, at *5 (S.D.N.Y. Sept. 17, 2015) (dismissing the plaintiff's complaint because he failed to appeal to the next level of review after receive no response on his filed grievance). Thus, if an inmate suspects that his or her grievances were discarded, he or she must appeal the grievance despite the lack of response at the first step of review. Chiarappa v. Meyers, No. 09-CV-607, 2013 WL 6328478, at *5 (W.D.N.Y. Dec. 5, 2013) (“[E]ven if plaintiff attempted unsuccessfully to file a grievance in a timely manner, the lack of a response does not relieve him of the requirement to timely appeal the grievance through all three steps of the grievance process.”). However, recent decisions by courts in the Second Circuit have addressed the availability of administrative remedies when an inmate's grievance is both unfiled and unanswered. In Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), the plaintiff, like Stephanski, alleged that he attempted to file a grievance while he was in the SHU. Id. The plaintiff contended that he gave his grievance to a correction officer to be filed, and that the correction officer must have disposed of the grievance because the facility had no record of the grievance. Id. The Williams Court accepted the plaintiff's allegation that the correction officer failed to file the grievance, and held that “[u]nder that circumstance, the regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies. On their face, the regulations only contemplate appeals of grievances that were actually filed.” Id. Indeed, the Second Circuit notes in detail the confusing nature of the timelines set forth in the DOCCS’ regulations governing the grievance procedure. See id. at 124-25. Ultimately, the Second Circuit held that the DOCCS “regulations plainly do not describe a mechanism for appealing a grievance that was never filed.” Id. at 126. Following Williams, this Court has denied a defendant's motion for summary judgment when faced with an unanswered and unfiled grievance drafted in SHU. See, e.g., Juarbe v. Carnegie, No. 9:15-CV-01485 (MAD/DEP), 2016 WL 6901277, at *1, 4 (N.D.N.Y. Nov. 23, 2016). In this case, Hartz avers that inmates in the Cape Vincent C.F. SHU were provided with inmate grievance complaint forms and envelopes upon request. Dkt. No. 39-5 at ¶ 4. Hartz further declared that an IGP staff member was required to make weekly rounds to SHU cells to collect grievances. Id. at ¶ 5. Stephanski disputes this account by contending that he never saw a grievance staff member in the SHU, and arguing that inmates are not permitted “to give a civilian staff member any type of envelope, it is against the code of ethics.” Dkt. No. 44-3 at ¶ 6. Stephanski testified that SHU inmates handed their grievance to a correction officer and that the officer “drop[ped] it in the box.” Dkt. No. 39-2 at 59. The next morning, the mailbox is unlocked and opened by the officer. Id. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 284 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Stephanski alleges that grievance procedures were not available to him because he attempted to file two grievances while confined in the SHU at Cape Vincent C.F., and the grievances were intercepted “due to the seriousness of the incident.” Dkt. No. 39-2 at 60-61; Dkt. No. 39-3 at 13-15; Dkt No. 44-1. Stephanski testified that, while confined in the Cape Vincent C.F. SHU cell A-1-1, he gave two grievances to the officer who collected mail. 18 Dkt. No. 39-3 at 14-15. Stephanski witnessed the officer put the grievances in a locked box. Id. Stephanski suspects that the grievances were intercepted and alleges that the “C.O.s” have the only key to the box and that he “assumes” that Stackle or Payne told the officer, “[i]f there's any grievances that come through from Stephanski, take them out.” Dkt. No. 39-2 at 60-61; Dkt. No. 39-3 at 14-15. Stephanski did not receive a response to his grievances. Dkt. No. 39-3 at 17. *9 Defendants contend that Stephanski has no direct knowledge or evidence that any defendant or other person interfered with his grievances and his only support for this accusation are his own conclusory allegations. Dkt. No. 39-10 at 10-12; Dkt. No. 45 at 7. Defendants point out that, “[c]onveniently, Plaintiff does not have any copies of the grievances he alleges that he filed while at Cape Vincent” or copies of letters he wrote to the IGRC. Dkt. No. 39-10 at 11. Although Defendants are correct regarding the absence of copies, Stephanski testified during his deposition that he attempted to file the grievances while confined in the SHU and that he did not have carbon paper to make copies. Dkt. No. 39-2 at 64. Although Stephanski fails to proffer copies of the grievance(s) he attempted to file at Cape Vincent C.F., his claims are supported by evidence suggesting that he attempted to file a grievance at Cape Vincent C.F. including: (1) Stephanski's deposition testimony; (2) Stephanski's letter to the Cape Vincent Grievance Committee; (3) Stephanski's letter to Mrs. Martin; (4) grievance SPT 61355-15; and (5) Stephanski's Appeal Statement referring the Superintendent's decision to CORC for review. 19 Dkt. No. 39-8 at 4, 5-7, 11; see Reid v. Marzano, 9:15-CV-761 (MAD/CFH), 2017 WL 1040420, at *3 (N.D.N.Y. Mar. 17, 2017) (“[I]t is unclear what evidence Defendants expect Plaintiff to produce of his grievances that were allegedly discarded by corrections officers[,]” while “[the] [p]laintiff would have ideally made a photocopy of his grievances for his own personal file, inmates in the SHU do not have regular access to the law library[.]”). Stephanski's allegations of mail tampering are further supported by the fact that the CORC has no record of any grievance filed while he was incarcerated at Cape Vincent C.F. Dkt. No. 39-6 at ¶ 8, 10; Dkt. No. 39-7 at 5; see Ortiz v. Annucci, No. 17-CV-3620, 2019 WL 1438006, at *9 (S.D.N.Y. Mar. 29, 2019) (“The absence of any official records of Plaintiff's grievance or appeal comports with Plaintiff's assertion that the officer to whom he handed his grievance failed to file it.”); Zulu v. Barnhart, No. 9:16- CV-1408 (MAD/DEP), 2019 WL 2997226, at *13 (N.D.N.Y. Apr. 22, 2019), report-recommendation adopted, 2019 WL 2150628 (N.D.N.Y. May 17, 2019) (“The absence of any official records of plaintiff's initial attempts to grieve the incident comports with plaintiff's assertion that once he handed a grievance through the feed-up hatch in the SHU, it was out of his possession and it was not filed.”). Upon review of the record, the Court finds sufficient evidentiary support to withstand Defendants’ motion for summary judgment for Stephanski's claim that he attempted to file a grievance at Cape Vincent C.F. See Burroughs v. Petrone, No. 9:15-CV-818 (DNH/ATB), 2018 WL 7291419, at *5 (N.D.N.Y. Dec. 27, 2018), Report-Recommendation adopted, 2019 WL 587090 (N.D.N.Y. Feb. 13, 2019) (finding that documentary evidence, even though it is evidence that the plaintiff “apparently had no recollection of during his deposition,” coupled with the inmate's “necessary reliance on SHU officers to deliver his grievance,” are some of “several factors” that the Court “may consider when evaluating the question of exhaustion” on a motion for summary judgment.) (citation omitted). Defendants attempt to distinguish this case from Williams and cite several cases in support of their position that Stephanski's failure to submit evidence supporting his claim that his grievances were intercepted fails to create a genuine issue of material fact regarding unavailability. See, e.g., Smith v. Dodge, No. 9:18-CV-1066 (MAD/TWD), 2019 WL 2250552 (N.D.N.Y. May 24, 2019) (granting summary judgment where the plaintiff failed to respond to the defendant's statement of material facts or offer any evidence detailing where he mailed his grievance, when he mailed it, who he gave it to, or what, if anything, prevented him from timely filing the grievance); Sankara v. Montgomery, No. 9:16-CV-885 (FJS/TWD), 2018 WL 4610686 (N.D.N.Y. June 25, 2018) (granting summary judgment where the plaintiff failed to respond to the defendants’ statement of material facts and “submitted no documentary evidence whatsover that supports his conclusory assertions that he submitted grievances [...] or demonstrates any follow up on his part when he allegedly received no response.”); Grayson v. Courtney, No. 9:16- CV-1118 (GLS/ATB), 2018 WL 6933296 (N.D.N.Y. Dec. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 285 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 3, 2018) (granting summary judgment and finding no issue of material fact as to exhaustion because the only evidence on record was the plaintiff's deposition testimony regarding his efforts to file grievances); Khudan, 2016 WL 4735364 (finding no issue of material fact as to whether the plaintiff appealed to CORC as the plaintiff's affidavit made “no mention of submitting an appeal to the CORC,” and at his deposition the plaintiff “asserted that he sent an appeal of his grievance to ‘Albany,’ ” but “failed to specify where in Albany he sent his grievance and fails to provide any other details, including the approximate date he submitted his appeal and whether he properly used a ‘notice of decision to appeal’ form.”); Nelson v. Artus, No. 14-CV-6634, 2016 WL 1023324 (W.D.N.Y. Mar. 8, 2016) (finding no material issue of fact on exhaustion where the “[p]laintiff had the ability to file an appeal regarding his grievance in this case, but chose not to do so. There is no allegation – much less any evidence – that [the p]laintiff was in any way prevented from accessing the grievance process as it relates to this incident, and there are no special circumstances alleged or proven that would justify the [p]laintiff[’]s failure to comply with DOCCS’ grievance procedures.”). However, there are discernable differences between the facts in those cases, and the facts at hand. Here, Stephanski properly and timely responded to Defendants’ Motion for Summary Judgment and Statement of Material Facts, testified under oath (on two occasions) regarding his efforts to file grievances at Cape Vincent C.F., and submitted some corroborating documentary evidence. *10 Defendants also argue that, even assuming Stephanski attempted to file grievances at Cape Vincent C.F., he has not established that the grievance process was unavailable because he made no effort to follow up on the status of the grievances until “long after the 21-day deadline and long after he was transferred to Southport C.F.” and “nearly 60 days after the alleged incident occurred.” Dkt. No. 39-10 at 13; Dkt. No. 45 at 6. However, the record contains credible evidence suggesting that, from September 30, 2015 until December 14, 2015, Stephanski made a good-faith effort to exhaust his claims. Stephanski testified that he did not follow up on the status of his grievances while he was in the SHU at Cape Vincent C.F. because he was “out of there pretty quick.” Dkt. No. 39-3 at 16. According to DOCCS’ records, Stephanski was “referred” to Southport C.F. on October 26, 2015, “effective” November 6, 2015. Dkt. No. 39-4 at 7. Upon arriving at Southport C.F., he wrote to the grievance committee at Cape Vincent C.F. Dkt. No. 39-8. On November 27, 2015, before he received a response to that correspondence, Stephanski filed a grievance at Southport C.F. Dkt. No. 39-8 at 5-6. When the grievance was denied without a grievance number, Stephanski re- submitted the grievance. After the grievance was accepted and denied, Stephanski appealed the IGRC decision to the Superintendent, and appealed the Superintendent's decision to CORC. Accordingly, the Court finds that Stephanski has credibly documented his efforts to file grievances and to follow up in a timely manner. See Zulu, 2019 WL 2997226, at *13 (excusing the plaintiff from the exhaustion requirement due to his “persistent efforts to follow up, re-file, and appeal the grievances”). Defendants next argue that, even assuming Stephanski's grievance was intercepted, the motion must be granted because he failed to complete “steps two and three” of the grievance process. Dkt. No. 45 at 10. Stephanski plainly knew how to file a grievance, and proves as much where he states that he twice attempted to give his grievance regarding the September 30, 2015 incident to a correction officer while he was in the SHU. Dkt. No. 39-3 at 14-15. However, it is clear to the Court from Stephanski's deposition testimony that there is a genuine issue of material fact whether knew how to proceed when he never received a response. During his deposition, Stephanski testified: Q. So although you never heard back about those two Cape Vincent grievances did you ever appeal those grievances? A. Well you can't appeal if you don't get the grievance back. Dkt. No. 39-3 at 17. Plaintiff's confusion about the process is supported by his follow up letter to the Cape Vincent Grievance Committee and Hartz's brief response. Dkt. No. 39-8 at 10-11. Hartz's response reads, “[t]his is in response to your note received on 11/30/15. A review of the IGRC log reveals there is no record of a grievance from you in 2015.” Id. at 10. Hartz did not provide any information about how to pursue administrative remedies when a grievance is unfiled and unanswered. See Woodward v. Lytle, No. 9:16-CV-1174 (NAM/DEP), 2018 WL 4643036, at *4 (N.D.N.Y. Sept. 27, 2018) (finding that the grievance process was unavailable as the process to appeal an unanswered grievance is prohibitively opaque and noting that the defendants, in response to an inquiry by the plaintiff, failed to explain that the plaintiff “had to appeal the non- response to his alleged unfiled grievance to the CORC,” but was told that Directive 4040 “makes no provision for an inmate to refer grievances directly to the Central Office, and Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 286 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 that specific grievance concerns should be directed to the IGP Supervisor for the most expeditions means of resolution.”). Moreover, Stephanski did not receive Hartz's memorandum until November 30, 2015, after the twenty-one day deadline and the forty-five day limit on requesting an extension of time to file a grievance based on mitigating circumstances. See Hamlet v. Stotler, No. 9:17-CV-0939 (GLS/TWD), 2018 WL 2729263, at *8 (N.D.N.Y. Apr. 27, 2018) (reasoning that the IGP Supervisor's response to the plaintiff's inquiry that no grievances had been filed, did not render Williams inapplicable when it was issued beyond the twenty-one day deadline and forty-five day limit on requesting an extension based upon mitigating circumstances). Defendants fail to set forth evidence showing that Stephanski received information about how to pursue administrative remedies when a grievance is unfiled and unanswered. See, e.g., Juarbe, 2016 WL 6901277, at *1 (“In Williams, the Second Circuit held that when a plaintiff's grievance is both unfiled and unanswered, the regulations do not clearly outline the process to appeal or otherwise exhaust administrative remedies, and therefore, the administrative remedies are unavailable under Ross.”). Consequently, this Court reaches the same conclusion as the Second Circuit in Williams. Viewing the facts in the light most favorable to Stephanski, the record suggests that he submitted grievances while confined in the Cape Vincent C.F. SHU, but the grievances were unfiled and unanswered, creating an issue of material fact as the availability of the grievance process, and, thus, whether administrative remedies were available to him. See Williams, 829 F.3d at 126 (concluding that “the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it.”); Thaxton v. Simmons, No. 9:10-CV-1318 (MAD/RFT), 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance that was lost or tampered with by [d]efendants. Such credibility assessments are to be resolved by a trier of fact.”). Accordingly, it is recommended that Defendants’ motion for summary judgment, insofar as it raises the affirmative defense of nonexhaustion, should be denied. III. CONCLUSION *11 WHEREFORE, based on the findings set forth above, it is hereby: RECOMMENDED, that Defendants’ motion for summary judgment (Dkt. No. 39) be: DENIED; and it is further ORDERED, that copies of this Report-Recommendation and Order be served on the parties in accordance with the Local Rules. IT IS SO ORDERED. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72. All Citations Not Reported in Fed. Supp., 2020 WL 806331 Footnotes 1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c). 2 The parties provided exhibits with their submissions, without objection or challenges to the authenticity of any of the opposing parties’ documents. Therefore, to the extent that the “facts” asserted by the parties are supported by the record, the undersigned will consider the facts and relevant exhibits or documents in the context of the within motion. See U.S. v. Painting known as Hannibal, No. 07-CV-1511, 2010 WL 2102484, at *1, n. 2 (S.D.N.Y. May 18, 2010) (citing Daniel v. UnumProvident Corp., 261 F. App'x 316, 319 (2d Cir. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 287 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 2008) (summary order) (“[A] party is not required to authenticate documents on a summary judgment motion where, as here, authenticity is not challenged by the other party)). In light of the procedural posture of the case, the recitation of facts is derived from the record now before the Court, with all inferences drawn and ambiguities resolved in non-moving party's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). 3 Local Rule 7.1(a)(3) states: Summary Judgment Motions Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. The opposing party shall file a response to the Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute. Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party. N.D.N.Y. L.R. 7.1(a)(3). 4 The Court's citation to page numbers in materials filed on the docket refer to the pagination generated by CM/ECF located at the header of each page. 5 Stephanski had not met Payne or Stackle before the September 30, 2015 incident. Dkt. No. 39-2 at 32-33. 6 Stephanski was confined at Cape Vincent C.F. from March 2015 until November 2015. Dkt. No. 39-4 at 7. 7 Defendants dispute this contention. 8 The letter, attached as an exhibit to Defendants’ motion, is undated. Dkt. No. 39-8 at 11. 9 Stephanski proffers a copy of the grievance filed at Southport C.F. Dkt. No. 44-5 at 6-7. Defendants also provided a copy of the grievance. Dkt. No. 39-8 at 5-6. 10 The record does not contain a copy of this decision. 11 The signature of the “Report Writer” is illegible. Dkt. No. 39-8 at 9. Under the heading, “Name of Person(s)/ Title and/or Department Involved” is the name “T. Hartz IGPS”. Id. 12 § 701.6(g)(i)(i)(a) provides: Time limit exceptions and extensions. (1) Time limit for filing a grievance or appeal: (i) An inmate may request an exception to the time limit for filing a grievance, or for filing an appeal to the superintendent or to CORC. Such a request shall be in writing and shall be submitted to the grievance clerk with the grievance or appeal the inmate wishes to file. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 288 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 (a) The IGP supervisor may grant an exception to the time limit for filing a grievance based on mitigating circumstances (e.g., timely attempts to resolve a complaint informally by the inmate, etc.). An exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence. N.Y.C.R.R. tit. 7, § 701.6 13 In the Answer, Defendants pleaded, inter alia, the affirmative defense that Stephanski failed to exhaust his administrative remedies. Dkt. No. 18 at ¶ 19. 14 The November 2018 deposition was continued due to time constraints. Dkt. No. 39-3 at 5. 15 Unpublished decisions cited herein have been provided to plaintiff pro se. 16 In Williams v. Priatno, the Second Circuit debated Ross’ effect on Hemphill’s estoppel exception. See Williams, 829 F.3d at 123. The Williams Court stated that “Ross largely supplants our Hemphill inquiry by framing the exception issue entirely within the context of whether administrative remedies were actually available to the aggrieved inmate.” Id. (citing Ross, 136 S.Ct. at 1858-59). 17 Stephanski has not proffered evidence of such letters. 18 This officer is not named as a defendant herein. Dkt. No. 39-3 at 15. 19 Defendants do not contest the admissibility of the documents Stephanski produced and have annexed copies of the same documents to their motion papers. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 289 of 290
Stephanski v. Allen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 777268 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Paul STEPHANSKI, Plaintiff, v. Randy ALLEN, Thomas Stackle and Brandon Payne, Defendants. 9:18-cv-0076 (BKS/CFH) | Signed 02/18/2020 Attorneys and Law Firms Plaintiff, pro se, Paul Stephanski, 99-B-2439, Marcy Correctional Facility, PO Box 3600, Marcy, NY 13403. For Defendants:, Letitia James, Attorney General of the State of New York, Aimee Cowan, Assistant Attorney General, of Counsel, 300 South State Street, Suite 300, Syracuse, NY 13202. MEMORANDUM-DECISION AND ORDER Hon. Brenda K. Sannes, United States District Judge: *1 Plaintiff Paul Stephanski, a New York State inmate, commenced this action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at the Cape Vincent Correctional Facility. (Dkt. No. 1). On June 26, 2019, Defendants filed a motion for summary judgment seeking dismissal of the complaint based upon Plaintiff's failure to exhaust his administrative remedies. (Dkt. No. 39). Plaintiff filed an opposition on August 26, 2019, to which Defendants replied on August 30, 2019. (Dkt. Nos. 44, 45). This matter was referred to United States Magistrate Judge Christian F. Hummel, who issued a Report-Recommendation on January 22, 2020, recommending that Defendants’ motion for summary judgment be denied. (Dkt. No. 48). Magistrate Judge Hummel concluded that there is “an issue of material fact as [to] the availability of the grievance process, and, thus, whether administrative remedies were available” to Plaintiff. (Id. at 24). Magistrate Judge Hummel advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. (Id. at 25). No objections have been filed. As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report- Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment. Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report-Recommendation in its entirety. For these reasons, it is ORDERED that the Report-Recommendation (Dkt. No. 48) is ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 39) is DENIED; and it is further ORDERED that the Court will schedule an evidentiary exhaustion hearing; and it is further ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2020 WL 777268 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 290 of 290
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