Burnett v. Coppola et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TONY BURNETT,
Plaintiff,
v. 	9:25-CV-0153
(DNH/ML)
COPPOLA; N. GENTILE; NICHOLAS
KIEFFER; MATHEW GALLIHER,
formerly doing business as Matthew
Gulliher; and CORRECTIONS
OFFICER SHAW,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
TONY BURNETT
Pro Se Plaintiff
Upstate Correctional Facility
Post Office Box 2001
Malone, New York 12953
LETITIA A. JAMES 	RACHAEL OUIMET, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Counsel for Defendants Coppola and Shaw1
The Capitol
Albany, New York 12224
LUIBRAND LAW FIRM, PLLC 	KEVIN LUIBRAND, ESQ.
Counsel for Defendant Galliher
950 New Loudon Road
Latham, New York 12110
1 	The Clerk of the Court is directed to update the docket to reflect that the Attorney
General’s Office only represents Defendants Coppola and Shaw. (Dkt. No. 34, Attach. 1 at 3
n.1; see Dkt. Nos. 17, 29; see generally Dkt. No. 27, docket sheet.) It appears as though the time
for Defendants Gentile and Kieffer to answer or otherwise respond to the Complaint expired on
October 23, 2025. (Dkt. No. 28.) Notwithstanding, the undersigned recommends dismissal of
the Complaint for the reasons set forth herein. To the extent that the assigned District Judge
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MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
Currently before the Court, in this civil rights action filed by Tony Burnett (“Plaintiff”)
against Coppola, N. Gentile, Nicholas Kieffer, Mathew Galliher, and Corrections Officer Shaw
(collectively “Defendants”), is a motion for summary judgment filed by Defendants Coppola and
Shaw (collectively “Moving Defendants”). (Dkt. No. 34.) For the reasons set forth below, I
recommend that Moving Defendants’ motion for summary judgment be granted and the
Complaint be dismissed in its entirety.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
The undersigned’s Decision and Order dated March 31, 2025, thoroughly outlined the
factual allegations set forth in the Complaint. (Dkt. No. 10 at 5-6.) Plaintiff asserts excessive
force claims against Defendants pursuant to the Eight Amendment and 42 U.S.C. § 1983 related
to an incident that took place on November 10, 2022. (See generally Dkt. Nos. 1, 10.)
B. 	Parties’ Briefing on Moving Defendants’ Motion for Summary Judgment
1. 	Moving Defendants’ Motion for Summary Judgment
Generally, in support of their motion for summary judgment Moving Defendants assert
that Plaintiff failed to exhaust his available administrative remedies before commencing this
action. (See generally Dkt. No. 34, Attach. 1.) More specifically, Moving Defendants assert that
on November 29, 2022, Plaintiff filed a grievance regarding his claims in this action. (Dkt. No.
rejects the recommendation contained herein, if he desires, Plaintiff may seek an entry of default
pursuant to N.D.N.Y. L.R. 55.1.
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34, Attach. 1 at 4.) Moving Defendants argue that Plaintiff’s grievance was immediately sent to
the Superintendent because it alleged staff misconduct. (Id.) Moving Defendants assert that the
Superintendent issued a disposition denying Plaintiff’s grievance, which was provided to
Plaintiff but that Plaintiff failed to appeal the Superintendent’s denial to the Central Office
Review Committee (“CORC”) as required to exhaust his administrative remedies. (Id. at 4, 8.)
2. 	Plaintiff’s Response in Opposition
Generally, in opposition to Moving Defendants’ motion Plaintiff asserts that he did not
appeal the Superintendent’s denial of his grievance because Sergeant S. Cooney informed
Plaintiff that his grievance would “not [be] going anywhere so take it back to your dorm.” (Dkt.
No. 49 at 7; accord Dkt. No. 49 at 9, 16.) Plaintiff argues that hence, the prison administrative
procedure was unavailable to him. (Id. at 7.) In addition, Plaintiff asserts that he was in transit
status at Midstate Correctional Facility (“Midstate C.F.”) from November 10, 2022, to November
14, 2022; November 17, 2022, to January 17, 2023; and January 26, 2023, to June 21, 2023. (Id.
at 8.) Plaintiff argues that he did not know how to utilize the grievance system at Midstate C.F.
because he never attended an orientation there. (Id.) Moreover, Plaintiff argues that he did not
receive a copy of the Superintendent’s decision because he would have signed it. (Id. at 9;
accord Dkt. No. 49 at 15.) Plaintiff argues that he filed an OSI Complaint because of “the threat
of the officer[’]s misconduct, intimidation, and retaliation from the grievance [he] filed.” (Dkt.
No. 49 at 15-16.)
3. 	Moving Defendants’ Reply
Generally, in further support of their motion, Moving Defendants assert the following
four arguments: (1) lack of understanding does not render the grievance process unavailable; (2)
Plaintiff was never threatened or stopped from filing his appeal; (3) the Superintendent’s late
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receipt of a grievance and ultimate determination does not render the grievance system
unavailable; and (4) Plaintiff’s claims about OSI complaints do not prove that he properly
exhausted his available administrative remedies. (See generally Dkt. No. 52.)
With respect to their first argument, Moving Defendants assert that because Plaintiff
successfully submitted a grievance, this proves that Plaintiff knew about the grievance system
and how to utilize it. (Dkt. No. 52 at 3-4.) Moving Defendants argue that Plaintiff’s assertion
that he attempted to appeal his grievance shows that he knew how to properly navigate the
administrative grievance system. (Id. at 4.) Further, Moving Defendants assert that Plaintiff’s
claim that he did not attend facility orientation is belied by the record. (Id.)
With respect to their second argument, Moving Defendants assert that it is not a threat or
intimidation if an officer merely tells an incarcerated individual that they should not grieve
because their grievance would not be successful. (Dkt. No. 52 at 5.) Moving Defendants argue
that Plaintiff does not allege that he was told he could not appeal his grievance or that if he did
there would be retaliation. (Id. at 5-6.)
With respect to their third argument, Moving Defendants assert that to the extent that
Plaintiff argues that the grievance process was unavailable to him because the Superintendent did
not receive his grievance until after the 25-day timeframe to respond, it should be rejected. (Dkt.
No. 52 at 6-7.) Moving Defendants argue that the Superintendent’s untimely response was a
constructive denial and thus, did not make the grievance system inaccessible to Plaintiff. (Id.)
Finally, Moving Defendants argue that any letter or complaint to OSI is not a grievance
and cannot be used by an incarcerated individual to prove that he grieved his claims. (Id. at 7.)
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C. 	Moving Defendants’ Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Moving
Defendants in their Statement of Material Facts and not denied by Plaintiff in his response.
(Compare Dkt. No. 34, Attach. 3, with Dkt. No. 49 at 1-4.)
1. 	Plaintiff was housed at Marcy Correctional Facility (“Marcy C.F.”) and Midstate
Correctional Facility (“Midstate C.F.”) during all times relevant to this matter.
2. 	At all relevant times, incarcerated individuals at Marcy C.F. and Midstate C.F.
were provided with full access to the New York State Department of Corrections and
Community Supervision (“DOCCS”) Incarcerated Grievance Program (“IGP”).
3. 	The IGP is governed by state regulation (7 N.Y.C.R.R. §§ 701.1-701.11) and
administered through an agency-level directive (DOCCS Directive 4040).
4. 	The IGP provides three levels of administrative review: (1) complaints to the
Incarcerated Grievance Review Committee (“IGRC”) at the facility-level; (2) appeals to the
facility superintendent; and (3) appeals to the Central Office Review Committee (“CORC”).
5. 	For grievances alleging harassment (which includes harm allegedly sustained
from facility employee misconduct), the IGP follows a separate, expedited procedure.
6. 	For grievances alleging staff harassment and misconduct, upon receipt, the IGP
directly forwards the grievance to the Superintendent upon filing by the close of business day,
who has 25 calendar days to render a response.2
2 	The Court deems this fact admitted because Plaintiff’s response states “I admit paragraph
6 is true . . .” then improperly adds additional language intended to place the fact in context.
(Dkt. No. 49 at 2); CA, Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at *2 n.3
(E.D.N.Y. Apr. 8, 2015) (“[T]he Court will consider the statement provided by [Plaintiff] as
undisputed because [Defendant’s] initial response in each instance is, in fact, ‘Undisputed.’”);
Washington v. City of New York, 05-CV-8884, 2009 WL 1585947, at *1 n.2 (S.D.N.Y. June 5,
2009) (holding that “the statement provided by Defendants is taken as true because Plaintiff[’]s
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7. 	If an incarcerated individual disagrees with the Superintendent’s response, they
must still appeal the decision to CORC to fully exhaust their administrative remedies.3
8. 	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
denial, and the incarcerated individual can appeal to CORC to exhaust their administrative
remedies.
9. 	All grievances, whether they concern allegations of harassment or not, must be
filed within 21 days of the alleged incident.
10. 	Extensions of time to file a grievance may be granted, but only upon request in
writing within 45 days of the alleged incident.
11. 	CORC is the final appellate level of the IGP.
12. 	Plaintiff was housed at Marcy C.F. from October 18, 2022,4 to November 10,
2022; and November 14, 2022, to November 17, 2022.5
initial response in each instance is ‘Admit’”); 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”).
3 	See, supra, note 2.
4 	Based on the undersigned’s review of Plaintiff’s chronological history display (Dkt. No.
34, Attach. 5 at 12), Plaintiff appears to have transferred to Marcy on October 18, 2022, not
October 8, 2022, as set forth by Moving Defendants in their Statement of Material Facts and Ms.
Pfendler’s declaration. (Compare Dkt. No. 34, Attach. 3 at ¶ 12, and Dkt. No. 34, Attach. 5 at ¶
18, with Dkt. No. 34, Attach. 5 at 12, and Dkt. No. 34, Attach. 6 at ¶ 11.)
5 	Plaintiff denies this fact asserted and cites to Exhibit C of Mr. Tapia’s Declaration. (Dkt.
No. 49 at 3 [citing Dkt. No. 34, Attach. 4 at 14-21].) However, Exhibit C to Mr. Tapia’s
Declaration is a computer printout of grievances filed by Plaintiff and does not appear to reflect
Plaintiff’s location within DOCCS at any specific time. (Dkt. NO. 34, Attach. 4 at ¶ 24.)
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13. 	Plaintiff was housed at Midstate C.F. from November 10, 2022, to November 14,
2022; November 17, 2022, to January 17, 2023; and January 26, 2023, to August 18, 2023.6
14. 	Plaintiff’s claim that Moving Defendants used excessive force on him is the
proper subject for a grievance through DOCCS’ IGP.
15. 	Plaintiff had until December 1, 2022, to file a timely grievance with the IGRC
related to his claims of November 10, 2022.7
16. 	Plaintiff had until December 25, 2022, to request an extension of time to file and
supply mitigating circumstances, which is 45 days from the alleged incident on November 10,
2022.8
17. 	DOCCS records maintained at Marcy C.F.’s grievance office show that Plaintiff
did not file a relevant grievance regarding the alleged incident of November 10, 2022, while he
was housed at Marcy C.F.9
6 	See, supra, note 5.
7 	Moving Defendants cite to Ms. Pfendler’s declaration at paragraph 21 in support of this
fact asserted. (Dkt. No. 34, Attach. 3 at ¶ 15 [citing Dkt. No. 34, Attach. 5 at ¶ 21].) However,
support for this fact asserted is located in Ms. Pfendler’s declaration at paragraph 20. (Dkt. No.
34, Attach. 5 at ¶ 20.)
8 	Moving Defendants cite to Ms. Pfendler’s declaration at paragraph 22 in support of this
fact asserted. (Dkt. No. 34, Attach. 3 at ¶ 16 [citing Dkt. No. 34, Attach. 5 at ¶ 22].) However,
support for this fact asserted is located in Ms. Pfendler’s declaration at paragraph 20. (Dkt. No.
34, Attach. 5 at ¶ 21.)
9 	Moving Defendants cite to Ms. Pfendler’s declaration at paragraph 20 in support of this
fact asserted. (Dkt. No. 34, Attach. 3 at ¶ 17 [citing Dkt. No. 34, Attach. 5 at ¶ 20].) However,
support for this fact asserted is located in Ms. Pfendler’s declaration at paragraph 22. (Dkt. No.
34, Attach. 5 at ¶ 22.)
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18. 	DOCCS records maintained at Midstate C.F.’s grievance office show that, on
November 29, 2022, Plaintiff filed a grievance (“Grievance No. MS-0349-22”) concerning the
alleged incident that occurred on November 10, 2022, at Marcy C.F.
19. 	Grievance No. MS-0349-22 was logged, coded and titled, and forwarded to
Midstate C.F.’s Superintendent for review as it contained allegations of staff misconduct.
20. 	On February 7, 2023, the Superintendent issued a response denying Grievance
No. MS-0349-22.
21. 	On February 10, 2023, the Midstate C.F.’s grievance officer received the
Superintendent’s response denying Grievance No. MS-0349-22.
22. 	Plaintiff was housed at Midstate C.F. from January 26, 2023, to August 18, 2023.
23. 	On February 13, 2023, Plaintiff was sent the Superintendent’s response to
Grievance No. MS-0349-22.
24. 	Plaintiff had seven days or until February 20, 2023, to appeal the Superintendent’s
decision.
25. 	Plaintiff never sent an appeal of Grievance No. MS-0349-22 to the Midstate
C.F.’s grievance office to be sent to CORC.10
26. 	CORC never received an appeal of Grievance No. MS-0349-22.11
10 	See, supra, note 2.
11 	See, supra, note 2.
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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).12 As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute–even if that non-
12 	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).
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movant is proceeding pro se.13 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.14 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.15
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 56.1. What the non-movant’s failure to respond to the motion does is lighten the
movant’s burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set
forth in a movant’s statement of material facts to be admitted, where (1) those facts are supported
13 	Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.)
(citing cases).
14 	Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
15 	Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
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by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement16–even when the non-movant was proceeding pro se.17
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).18 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possesses facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009
WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
16 	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.
17 	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.”).
18 	See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004)
(McCurn, J.) (deeming plaintiff’s failure to respond to “aspect” of defendant’s motion to exclude
expert testimony as “a concession by plaintiff that the court should exclude [the expert’s]
testimony” on that ground).
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B. 	Standard Governing Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with
respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a); see also Ross v. Blake, 578 U.S. 632, 136 S. Ct. 1850, 1854-55, 195 L.Ed.2d
117 (2016) (“The [PLRA] mandates that an inmate exhaust ‘such administrative remedies as are
available’ before bringing suit to challenge prison conditions.”). “[T]he PLRA’s exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). “There is
no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
The PLRA requires “proper exhaustion,” which means using all steps required by the
administrative review process applicable to the institution in which an inmate is confined and
doing so properly. Jones, 549 U.S. at 218, 127 S.Ct. 910 (citing Woodford v. Ngo, 548 U.S. 81,
88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d
Cir. 2011) (quoting Woodford, 548 U.S. at 90, 126 S.Ct. 2378) (exhaustion necessitates “‘using
all steps that the [government] agency holds out, and doing so properly’”). In New York State
prisons, DOCCS has a well-established three-step incarcerated grievance program (“IGP”), in
which, (1) the inmate must file a grievance with the IGRC within twenty-one days of the alleged
occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the
superintendent of the facility within seven days after receipt of the IGRC’s response, and (3) the
inmate must then appeal an adverse decision by the superintendent to the CORC within seven
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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).19 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)
19 	The procedure to appeal to CORC under the normal, non-expedited procedures is the
same. 7 N.Y.C.R.R. § 701.5(d)(1)(i).
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(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
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illustrations of unavailability in Ross nonetheless guide the Court’s inquiry. Mena v. City of New
York, 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
Because non-exhaustion is an affirmative defense, the defendant bears the burden of
showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at
216, 127 S.Ct. 910. The plaintiff must then establish the IGP grievance procedure was
unavailable to him under Ross. Id.
III. 	ANALYSIS
After carefully considering the matter, I recommend that Moving Defendants’ motion for
summary judgment be granted for the reasons stated in their memoranda of law. (Dkt. No. 34,
Attach. 1; Dkt. No. 52.) The following is intended to supplement—not supplant—those reasons.
A. 	Exhaustion of Administrative Remedies
Plaintiff appears to concede that he did not exhaust his administrative remedies. (Dkt.
No. 49 at 7 [“I did not file an appeal to my grievance . . .”].)
Moreover, Moving Defendants submitted proof in admissible form by way of an affidavit
from Erin Pfendler, the custodian for all grievance-related records at Marcy C.F. (Dkt. No. 34,
Attach. 5.) In her affidavit, Ms. Pfendler stated that she conducted a search of DOCCS records
for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 22.) Ms.
Pfendler affirmed that her search revealed that Plaintiff never filed any grievances with Marcy
C.F.’s grievance office while housed at Marcy C.F. (Id.)
In addition, Moving Defendants submitted proof in admissible form by way of an
affidavit from Christopher Tapia, the custodian for all grievance-related records at Midstate C.F.
(Dkt. No. 34, Attach. 4.) In his affidavit, Mr. Tapia stated that he conducted a search of DOCCS
records for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 24.) Mr.
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Tapia affirmed that his search revealed that Plaintiff filed Grievance No. MS-0349-22 while
housed at Midstate C.F. related to the incident that is the subject of this action. (Id. at ¶¶ 24-25.)
Mr. Tapia affirmed that Plaintiff did not send an appeal of the Superintendent’s denial of
Grievance No. MS-0349-22 to the Midstate C.F. IGP office. (Id. at ¶ 31.)
Finally, Moving Defendants submitted proof in admissible form by way of an affidavit
from Rachael Seguin, the custodian of records maintained by CORC. (Dkt. No. 34, Attach. 6.)
In her affidavit, Ms. Seguin stated that she conducted a diligent search of DOCCS records for
appeals received by CORC filed by Plaintiff, and her search revealed that Plaintiff failed to
appeal any grievances to CORC. (Id. at ¶¶ 12-14.).
As a result, I find that Plaintiff has not exhausted his administrative remedies.
B. 	Availability of Administrative Remedies
As set forth above, the Supreme Court of the United States identified three circumstances
in which a court may find administrative remedies are not “available” for purposes of exhaustion
under the PLRA:
[A]n administrative procedure is unavailable when it operates as a simple
dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates. Next, an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of use—i.e., some
mechanism exists to provide relief, but no ordinary prisoner can navigate
it. “And finally, a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.”
Ross, 578 U.S. at 643-44.
To the extent that Plaintiff’s opposition is construed as arguing that the “dead end”
exception applies, I reject that argument. 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 of
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17
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). Plaintiff’s assertion that an officer told him that his
grievance was “not going anywhere so take it back to your dorm,” (Dkt. No. 49 at 7; accord Dkt.
No. 49 at 9, 15) does not create a genuine dispute of material fact as to whether the grievance
system could lead to a change in the challenged prison policies. Indeed, “a record of
administrative defeats for a single prisoner is not sufficient to effectively indict the system.”
McMillian v. Walters, 16-CV-0277, 2018 WL 879270, at *3 (N.D.N.Y. Feb. 14, 2018)
(D'Agostino, J.). Moreover, the fact that Plaintiff filed Grievance No. MS-0349-22 is at least
some evidence that he did not view the process as a “dead end.” See Matthews v. Sweeney, 17-
CV-0503, 2025 WL 447734, at *7 (N.D.N.Y. Feb. 10, 2025) (Suddaby, J.) (finding that the
plaintiff “chose to file a grievance at Sullivan C.F. regarding the claims at issue in this action on
June 30, 2015, . . . constitutes at least some evidence that [the plaintiff] did not view the process
as a ‘dead end.’”) (citing 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 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)).
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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).
Upon arrival to Marcy C.F. and Midstate C.F., Plaintiff attended orientation programs
that included presentations on the grievance policies and procedures set forth in DOCCS
Directive 4040.20 (Dkt. No. 34, Attach. 4 at ¶¶ 5-6; Dkt. No. 34, Attach. 5 at ¶¶ 5-6.) Among
the topics covered in the orientation presentation, Plaintiff was taught how to file and appeal
grievance complaints. (Dkt. No. 34, Attach. 4 at ¶¶ 5-6; Dkt. No. 34, Attach. 5 at ¶¶ 5-6.) Mr.
Tapia declared that from December 5, 2022, to December 11, 2022, Plaintiff attended and
successfully completed the facility orientation at Midstate C.F. (Dkt. No. 34, Attach. 4 at ¶ 6;
Dkt. No. 34, Attach. 4 at 10.) Moreover, Ms. Pfendler declared that from October 24, 2024, to
October 30, 2024, Plaintiff attended and successfully completed the facility orientation at Marcy
C.F. (Dkt. No. 34, Attach. 5 at ¶ 6; Dkt. No. 34, Attach. 5 at 10.) In addition, Title 7 of the
Official Compilation of Codes, Rules, and Regulations of the State of New York and DOCCS
20 	Although Plaintiff contends that he did not attend an orientation program at Midstate C.F.
(Dkt. No. 49 at 8), the record belies that assertion. (Dkt. No. 34, Attach. 4 at ¶¶ 5-6; Dkt. No. 34,
Attach. 4 at 10.) Plaintiff attended the orientation after he filed Grievance No. MS-0349-22 but
before expiration of the deadline for the Superintendent to respond to the grievance and before
the Superintendent denied the grievance. Hence, Plaintiff completed the orientation before the
time for him to appeal Grievance No. MS-0349-22 began. Further, the fact that Plaintiff filed
Grievance No. MS-0349-22 is reflective of his knowledge of the grievance process and
exhaustion requirements.
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Directive 4040 were available in the law libraries at Marcy C.F. and Midstate C.F. (Dkt. No. 34,
Attach. 4 at ¶ 4; Dkt. No. 34, Attach. 5 at ¶ 4.)
Plaintiff’s conclusory assertion that he did not know how to utilize the grievance system
(Dkt. No. 49 at 8) is insufficient to apply the opaqueness exception. See, e.g., Jackson v. West,
23-CV-0306, 2025 WL 1033787, at *9 (N.D.N.Y. Feb. 20, 2025) (Evangelista, M.J.) (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’s argument that Sergeant Cooney’s statement discouraging Plaintiff
from filing an appeal because the grievance “is not going anywhere” (Dkt. No. 49 at 15) is
insufficient to raise a triable issue of fact as to unavailability 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)). As Moving Defendants assert, Plaintiff
does not allege that he could not appeal his grievance or that if he did there would be retaliation.
(Dkt. No 52 at 5-6); Lucente v. Cnty. of Suffolk, 980 F.3d 284, 312 (2d Cir. 2020) (holding that
the plaintiff alleged “no more than a generalized fear of retaliation which is insufficient as a
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20
matter of law to support a finding that the grievance process was unavailable in order to
overcome her failure to exhaust administrative remedies under the PLRA.”).
Further, the undersigned rejects Plaintiff’s arguments that (1) his OSI complaint
constituted exhaustion of his administrative remedies pursuant to the PLRA, see Beauvoir v.
Smith, 14-CV-1495, 2017 WL 9511157, at *7 (N.D.N.Y. Aug. 30, 2017) (Peebles, M.J.) (citing
Smith v. Kelly, 985 F. Supp. 2d 275, 285 (N.D.N.Y. 2013)) (“For purposes of the PLRA,
however, complaints filed by inmates with the OSI do not satisfy an inmate’s obligation to
exhaust administrative remedies.”); and (2) that the Superintendent’s late receipt of Grievance
No. MS-0349-22 and ultimate determination rendered the grievance system unavailable, see 7
N.Y.C.R.R. § 701.8(g) (if the superintendent does not render a decision within twenty-five
calendar days, the incarcerated individual “may appeal his/her grievance to CORC.”); Teaque v.
Mullen, 18-CV-1412, 2019 WL 8589277, at *6 (N.D.N.Y. Dec. 17, 2019) (Hummel, M.J.)
(collecting cases) (“Many courts in this District have held that where the inmate does not receive
a timely response, an inmate must appeal the next step or make efforts to track their grievance.”).
Therefore, the undersigned concludes that Plaintiff failed to exhaust his available
administrative remedies before commencing this action. I recommend that Moving Defendants’
motion for summary judgment be granted. See, e.g., Jenkins v. Short, 19-CV-1352, 2020 WL
9264842, at *7 (N.D.N.Y. Nov. 17, 2020) (Dancks, M.J.) (citing Berry v. Kerik, 366 F.3d 85, 87
(2d Cir. 2004)) (recommending granting the defendants’ motion for summary judgment, where
there was “no genuine issue of material fact that Plaintiff failed to exhaust his administrative
remedies,” and dismissal of the complaint with prejudice, explaining “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.”).
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21
Furthermore, with respect to Plaintiff’s claims against Defendants Gentile, Keiffer, and
Galliher, I recommend dismissal because Plaintiff failed to exhaust his administrative remedies.
See Webb v. Fessette, 23-CV-1577, 2025 WL 1859012, at *4 n. 3 (N.D.N.Y. Jan. 22, 2025)
(Dancks, M.J.) (recommending dismissal of the plaintiff’s claims against John Doe defendants
because, among other things, the plaintiff failed to exhaust his administrative remedies), report
and recommendation rejected on other grounds 2025 WL 2711067 (N.D.N.Y. Sept. 23, 2025)
(Coombe, J.).
As a result, I recommend that the Complaint be dismissed with prejudice.
ACCORDINGLY, it is
RECOMMENDED that the Court GRANT Moving Defendants’ motion for summary
judgment (Dkt. No. 34); and it is further respectfully
RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED in its
entirety with prejudice; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.21
21 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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22
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.22 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: May __, 2026
Binghamton, New York
22 	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).
5
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Beauvoir v. Smith, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 9511157
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jimmy BEAUVOIR, Plaintiff,
v.
Kevin SMITH, et al., Defendants.
Civil Action No. 9:14-CV-1495 (MAD/DEP)
|
Signed 08/30/2017
Attorneys and Law Firms
JIMMY BEAUVOIR, 14-A-0367, Fishkill Correctional
Facility, P.O. Box 1245, Beacon, NY 12508, pro se.
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN,
New York State Attorney General, OF COUNSEL: LOUIS
JIM, ESQ., LOUIS JIM, ESQ., Assistant Attorney General,
The Capitol, Albany, NY 12224.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
*1 This is a civil rights action brought pursuant to 42 U.S.C.
§ 1983 by pro se plaintiff Jimmy Beauvoir, a New York State
prison inmate, against several individuals employed at the
correctional facility in which he was confined at the relevant
times. Although plaintiff’s claims were much broader at the
outset, they have been significantly narrowed as a result of the
court’s initial review of plaintiff’s complaint pursuant to 28
U.S.C. §§ 1915(e), 1915A. In the surviving claims, plaintiff
asserts a cause of action for the use of excessive force and
failure to intervene against defendants whose identities are
known to him and two additional “Doe” defendants, and a
false imprisonment claim against another defendant based
upon the results of a disciplinary hearing conducted by that
individual.
Currently pending in connection with the action is a summary
judgment motion brought by defendants seeking dismissal of
plaintiff’s remaining claims. For the reasons set forth below,
I recommend the motion be granted based on plaintiff’s
failure to exhaust available administrative remedies prior to
commencing this lawsuit.
I. BACKGROUND 1
Plaintiff is a prison inmate currently being held in the
custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”). See generally Dkt. No.
16. At the times relevant to this action, plaintiff was confined
in the Bare Hill Correctional Facility (“Bare Hill”) located in
Malone, New York. Id.
Plaintiff’s claims center upon an incident that allegedly
occurred on September 13, 2014, while plaintiff was being
transferred by van to the Bare Hill Special Housing Unit
(“SHU”) for “being out of place.” Dkt. No. 16 at 4. According
to plaintiff, upon his arrival at the SHU at approximately
10:00 p.m., he was dragged out of the van and beaten by
defendant Kevin Smith, a corrections officer, and John Doe
#5, while defendants Lt. Bashaw, Sergeant Conto, and John
Doe #6 witnessed the assault but failed to intervene. Dkt. No.
16-1 at 1-6. Plaintiff claims that, as a result of the assault, he
sustained a broken nose, stomach pain, headaches, and bloody
noses. 2 Id. at 2.
*2 Two disciplinary hearings were conducted by defendant
Lieutenant LaGray on September 18, 2014, to address charges
lodged against plaintiff. Dkt. No. 75-9 at 2-10; see also
Dkt. No. 16-1 at 4. The first hearing was held to address a
misbehavior report issued to plaintiff by M. Southworth on
September 13, 2014, accusing him of being out of place and
failure to comply with a prior hearing disposition. Dkt. No.
75-4 at 25. The second centered upon a misbehavior report
authored by E. Phillips, accusing plaintiff of disobeying a
direct order, being out of place, and failing to abide by a
prior hearing disposition. Id. at 29. At those hearings, plaintiff
pleaded guilty to all charges lodged against him. Dkt. No.
75-9 at 4, 8. Based upon those guilty pleas, defendant LaGray
imposed penalties of thirty days of disciplinary confinement,
together with a loss of recreation, packages, commissary, and
telephone privileges for a corresponding period in each of the
two cases. Id.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about November
25, 2014, in the United States District Court for the
Southern District of New York. Dkt. No. 1. The matter
was subsequently transferred to this district by order issued
by District Judge Loretta A. Preska on December 8, 2014.
Dkt. No. 4. Plaintiff’s original complaint was subsequently
dismissed for failure to state a claim upon which relief may be
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Beauvoir v. Smith, Not Reported in Fed. Supp. (2017)
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granted, with leave to replead, based upon the court’s initial
review pursuant to 28 U.S.C. §§ 1915(e), 1915A. Dkt. No. 13.
Plaintiff filed an amended complaint in the action on April 20,
2015. Dkt. No. 16. Upon review of that amended complaint,
District Judge Mae A. D'Agostino issued a decision on
June 1, 2015, dismissing several of plaintiff’s newly pleaded
claims. Dkt. No. 17. The claims now remaining in the action
include the alleged use of excessive force and failure to
protect plaintiff from harm asserted against defendants Smith,
John Doe #5, John Doe #6, Bradshaw, and Conto, and a
false imprisonment claim asserted against defendant LaGray
concerning the sanctions imposed following the disciplinary
hearings. Dkt. Nos. 17, 19.
On December 29, 2016, defendants moved for the entry of
summary judgment dismissing plaintiff’s remaining claims.
Dkt. No. 75. In their motion, defendants argue that (1)
plaintiff’s claims are procedurally barred based upon his
failure to exhaust available administrative remedies before
commencing suit; (2) plaintiff’s excessive force, failure
to protect, and false imprisonment claims lack merit; (3)
plaintiff’s false imprisonment claim is precluded under New
York Correction Law § 24; (4) all claims against the
defendants in their official capacities are barred by the
Eleventh Amendment; and (5) defendants are entitled to
qualified immunity. See generally Dkt. No. 75-27. Plaintiff
has failed to oppose defendants' motion, which is now ripe for
determination, and has been referred to me for the issuance of
a report and recommendation pursuant to 28 U.S.C. § 636(b)
(1)(B) and Northern District of New York Local Rule 72.3(c).
See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Plaintiff’s Failure to Oppose Defendants' Motion
Before turning to the merits of defendants' motion, a threshold
issue to be addressed is the legal significance of plaintiff’s
failure to oppose defendants' motion, and specifically whether
that failure should be construed as a consent to the dismissal
of his amended complaint.
Pursuant to Local Rule 7.1(b)(3), by failing to oppose
defendants' motion, plaintiff has effectively consented to the
granting of the relief sought. That rule provides as follows:
Where a properly filed motion is
unopposed and the Court determines
that the moving party has met its
burden to demonstrate entitlement to
the relief requested therein, the non-
moving party’s failure to file or serve
any papers as this Rule requires shall
be deemed as consent to the granting
or denial of the motion, as the case may
be, unless good cause is shown.
*3 N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed.
Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that
the district courts may enter summary judgment in favor
of the moving party where the non-moving party fails to
respond in opposition, but not without first “ensur[ing] that
each statement of material fact is support by record evidence
sufficient to satisfy the movant’s burden of production” and
“determin[ing] whether the legal theory of the motion is
sound”).
In this case, plaintiff has not responded to defendants'
motion. The motion was properly filed by defendants, and
defendants, through their motion, have met their burden
of demonstrating entitlement to the relief requested. With
respect to the question of whether defendants have met their
burden, I note that the “burden of persuasion is lightened
such that, in order to succeed, [the] motion need only be
‘facially meritorious.’ ” See Rodriguez v. Goord, No. 04-
CV-0358, 2007 WL 4246443, at *1 (N.D.N.Y. Nov. 27, 2007)
(Scullin, J., adopting report and recommendation by Lowe,
M.J.) (finding that determination of whether a movant has
satisfied its burden to demonstrate entitlement to a dismissal
under Local Rule 7.1(b)(3) “is a more limited endeavor than
a review of a contested motion to dismiss” (citing cases) ).
Because defendants have accurately cited both proper legal
authority and evidence in the record supporting the grounds
on which their motion is based, and plaintiff has failed to
respond in opposition to the motion, I find that defendants'
motion is facially meritorious. Jackson, 766 F.3d at 194.
Accordingly, I recommend that the court grant defendants'
motion on this basis.
It should also be noted that there are additional consequences
flowing from plaintiff’s failure to file an opposition to
defendants' Local Rule 7.1(a)(3) Statement of Material Facts.
Local Rule 7.1 provides, in relevant part, that “[t]he Court
shall deem admitted any properly supported facts set forth
in the Statement of Material Facts that the opposing party
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does not specifically controvert.” N.D.N.Y. L.R. 7.1(a)(3)
(emphasis in original). Courts in this district have routinely
enforced this rule in cases where a non-movant has failed to
properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-
CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010)
(McCurn, J.) (listing cases). Undeniably, pro se litigants are
entitled to some measure of forbearance when defending
against summary judgment motions. Jemzura v. Public Serv.
Comm'n, 961 F. Supp. 406, 415 (N.D.N.Y. 1997) (McAvoy,
J.). The deference owed to pro se litigants, however, does
not extend to relieving them of the ramifications associated
with the failure to comply with the court’s local rules.
Robinson v. Delgado, No. 96-CV-0169, 1998 WL 278264,
at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report
and recommendation by Hurd, M.J.). Stated differently, “a
pro se litigant is not relieved of his duty to meet the
requirements necessary to defeat a motion for summary
judgment.” Latouche v. Tompkins, No. 09-CV-0308, 2011
WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.).
Here, because plaintiff was warned of the consequences of
failing to properly respond to defendants' Local Rule 7.1
Statement, Dkt. No. 75-1, Dkt. No. 78 at 2, and he has failed
to do so, I recommend that the court deem the facts contained
in defendants' Local Rule 7.1(a)(3) Statement as having been
admitted to the extent they are supported by accurate record
citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see
also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). As
to any facts not contained in defendants' Local Rule 7.1(a)
(3) Statement, in light of the procedural posture of this case,
the court is “required to resolve all ambiguities and draw all
permissible factual inferences” in favor of plaintiff. Terry, 336
F.3d at 137.
B. Summary Judgment Standard 3
*4 Summary judgment motions are governed by Rule 56 of
the Federal Rules of Civil Procedure. Under that provision,
the entry of summary judgment is warranted “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); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is
“material” for purposes of this inquiry if it “might affect the
outcome of the suit under the governing law.” Anderson, 477
U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553
(2d Cir. 2005). A material fact 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.
A party moving for summary judgment bears an initial burden
of demonstrating that there is no genuine dispute of material
fact to be decided with respect to any essential element of
the claim in issue; the failure to meet this burden warrants
denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins.
Co., 391 F.3d at 83. In the event this initial burden is met, the
opposing party must show, through affidavits or otherwise,
that there is a material dispute of fact for trial. Fed. R. Civ. P.
56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must
resolve any ambiguities, and draw all inferences, in a light
most favorable to the non-moving party. Anderson, 477 U.S.
at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d
133, 137-38 (2d Cir. 1998). The entry of summary judgment
is justified only in the event of a finding that no reasonable
trier of fact could rule in favor of the non-moving party. Bldg.
Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501,
507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250
(finding summary judgment appropriate only when “there can
be but one reasonable conclusion as to the verdict”).
C. Exhaustion of Administrative Remedies
Defendants contend that plaintiff’s remaining causes of action
are subject to dismissal because he failed to exhaust the
available administrative remedies with respect to those claims
prior to commencing this lawsuit. Dkt. No. 75-27 at 13-17.
The Prison Litigation Reform Act of 1996 (“PLRA”), Pub. L.
No. 104-134, 110 Stat. 1321 (1996), which imposes several
restrictions on the ability of prisoners to maintain federal
civil rights actions, expressly 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); see also Ross v. Blake, 136 S. Ct.
1850, 1856 (2016). Section 1917e(a)’s exhaustion provision
is “mandatory” and applies to all inmate lawsuits regarding
the conditions of their confinement. Ross, 136 S. Ct. at 1856;
Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle,
534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer
Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a
defendant establishes that the inmate-plaintiff failed fully
comply with the administrative process prior to commencing
an action in federal court, the plaintiff’s complaint is subject
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to dismissal. See Woodford, 548 U.S. at 93 (“[W]e are
persuaded that the PLRA exhaustion requirement requires
proper exhaustion.”); Wilson v. McKenna, 661 Fed.Appx. 750
(2d Cir. 2016). 4 “Proper exhaustion” requires a plaintiff to
procedurally exhaust his claims by “compl[ying] with the
system’s critical procedural rules.” Woodford, 548 U.S. at 95;
accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007). 5
*5 In New York, state prison inmates have available to them
a grievance procedure, which is designated as the Inmate
Grievance Program (“IGP”). Williams, 829 F.3d at 119. The
IGP is comprised of three steps that inmates must satisfy
when they have a grievance regarding prison conditions. 6
7 N.Y.C.R.R. §§ 701.1 701.5; Williams, 829 F.3d at 119.
The IGP requires that an inmate first file a grievance with
“the clerk” within twenty-one days of the alleged occurrence
giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1).
“The complaint may only be filed at the facility where the
inmate is housed even if it pertains to another facility.” Id.
Representatives of the inmate grievance resolution committee
(“IGRC”) 7 have up to sixteen days after the grievance is filed
to informally resolve the issue. Id. at § 701.5(b)(1). If there
is no such informal resolution, then the full IGRC conducts a
hearing within sixteen days after receipt of the grievance. Id.
at § 701.5(b)(2).
A grievant may then appeal the IGRC’s decision to the
facility’s superintendent within seven days after receipt of
the IGRC’s written decision. 7 N.Y.C.R.R. § 701.5(c). The
superintendent must issue a written decision within a certain
number of days after receipt of the grievant’s appeal. 8 Id. at
§ 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the
DOCCS Central Office Review Committee (“CORC”), which
must be taken within seven days after an inmate receives the
superintendent’s written decision. 7 N.Y.C.R.R. § 701.5(d)(1)
(i). The CORC is required to render a written decision within
thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).
As can be seen, at each step of the IGP process, a decision
must be rendered within a specified time period. 7 N.Y.C.R.R.
§ 701.5. Where the IGRC and/or superintendent do not timely
respond, an inmate is permitted to appeal “to the next step.”
Id. at § 701.6(g)(2). Generally, if a plaintiff fails to follow
each of the required three steps of the above-described IGP
prior to commencing litigation, he has failed to exhaust
his administrative remedies as required under the PLRA.
See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d
Cir. 2006) (“[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).” (quotation marks omitted) ).
While the PLRA mandates exhaustion of available
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 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 omitted).
In Ross, the Supreme Court identified three circumstances
in which a court could find that internal administrative
remedies are not available to prisoners under the PLRA. 9
Ross, 136 S. Ct. at 1859-60. Under the 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. In
addition, “an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.” Id. The
Court explained that, “[i]n this situation, some mechanism
exists to provide relief, but no ordinary prisoner can discern
or navigate it.” Id. The third scenario in which administrative
remedies are deemed unavailable to prisoners is when “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
*6 In this case, there is no record evidence that plaintiff
submitted an appeal of a grievance to the CORC regarding
the events related to his claims asserted in this action. Jeffrey
Hale, the Assistant Director of the IGP for the DOCCS,
submitted a declaration in support of defendants' pending
motion stating that his review of the relevant CORC records
reflects that plaintiff did not appeal a grievance filed at Bare
Hill to the CORC concerning either a use of force incident
on September 13, 2014, or a disciplinary sanction imposed
following a disciplinary hearing on September 18, 2014. Dkt.
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No. 75-10 at 4; see also Dkt. No. 75-11. Indeed, according to
Hale, plaintiff filed no appeals whatsoever to the CORC while
he was confined at Bare Hill. Id.
Plaintiff alleges in his amended complaint that he filed a
grievance regarding the allegations giving rise to this action
following his transfer into the Greene Correctional Facility
(“Greene”) but that it was not successful. Dkt. No. 16 at
2-3. More specifically, plaintiff alleges that the “grievance
office” at Greene denied his grievance because he is “not from
Green[e] and [the incidents] did not happen in Green[e.]” Id.
at 2. The amended complaint does not indicate whether, and
there is otherwise no record evidence that, plaintiff appealed
this denial to the CORC.
On or about November 13, 2014, plaintiff filed a complaint to
the OSI regarding, inter alia, the use of force incident at Bare
Hill. 10 Dkt. No. 75-18. For purposes of the PLRA, however,
complaints filed by inmates with the OSI do not satisfy an
inmate’s obligation to exhaust administrative remedies. See,
e.g., Smith v. Kelly, 985 F. Supp. 2d 875, 285 (N.D.N.Y. 2013)
(Suddaby, J.) (collecting cases).
In light of the above-described record evidence, I find that
there is no basis to conclude that plaintiff exhausted the
administrative remedies by pursuing a grievance through to
the CORC prior to filing this action.
In addition, there is no evidence to support a finding that the
IGP was unavailable to plaintiff while he was incarcerated
at Bare Hill or Greene. Under the IGP, inmates must file a
grievance within twenty-one days of the occurrence forming
the basis for the grievance. 7 N.Y.C.R.R. § 701.5(a)(1).
Because plaintiff was confined in Bare Hill until October 17,
2014, Dkt. No. 75-23 at 2, the record reflects that the deadline
to file a grievance concerning the use of force incident and
disciplinary hearing sanctions had expired by the date he was
transferred. There is no evidence that the IGP was unavailable
to plaintiff during the period between when the incidents
occurred (September 14, 2014, and September 18, 2014)
and when plaintiff was transferred. While the IGP provides
a mechanism for requesting an extension of time to file a
late grievance, 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a), there is no
evidence that plaintiff availed himself of that opportunity
while at Bare Hill or Greene. Because I find no basis to
conclude that the IGP was rendered unavailable to plaintiff,
I recommend that defendants' motion be granted based on
plaintiff’s failure to exhaust the available administrative
remedies prior to commencing this action.
IV. SUMMARY AND RECOMMENDATION
Plaintiff’s surviving claims in this action are subject to the
PLRA’s exhaustion requirement. Because it is clear that
plaintiff did not file any grievances concerning the events
giving rise to his claims and pursue them to completion before
the CORC, and no grounds exist to excuse the exhaustion
requirement, his amended complaint is subject to dismissal in
its entirety. Accordingly, it is here respectfully
*7 RECOMMENDED that defendants' motion for summary
judgment (Dkt. No. 75) be GRANTED, and that plaintiff’s
amended complaint in this action be DISMISSED for failure
to exhaust available administrative remedies.
It is hereby ORDERED that the clerk of the court serve a
copy of this report and recommendation upon the parties in
accordance with this court’s local rules.
All Citations
Not Reported in Fed. Supp., 2017 WL 9511157
Footnotes
1 In light of the procedural posture of the case, the following recitation is derived from the record now before
the court, with all inferences drawn and ambiguities resolved in plaintiff’s favor. Terry v. Ashcroft, 336 F.3d
128, 137 (2d Cir. 2003).
2 Plaintiff’s medical records reflect that he was seen by medical personnel at the facility on September 13, 2014,
at 10:40 p.m., but that no bruises or injuries were observed and that plaintiff denied any medical concerns or
complaints at that time. Dkt. No. 76 at 4. In addition, in support of the pending motion, the defendants accused
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of assaulting plaintiff have submitted declarations denying the use of excessive force. Dkt. No. 75-12 at 2;
Dkt. No. 75-13 at 2; Dkt. No. 75-14 at 2. In his deposition plaintiff was vague and equivocal concerning the
assault and those allegedly involved in it. See, e.g., Dkt. No. 75-4 at 12-13. An investigation conducted by
representatives of the DOCCS Office of Special Investigations (“OSI”) into the incident resulted in a finding
that plaintiff’s allegations were without merit. Dkt. No. 75-17 at 2-3; Dkt. No. 75-22.
3 Although I have recommended dismissal of plaintiff’s amended complaint on the basis of plaintiff’s failure to
respond to defendants' motion, I have addressed one ground upon which defendants' motion is based out
of an abundance of caution.
4 All unreported decisions cited to in this report have been appended for the convenience of the pro se plaintiff.
[Editor’s Note: Appended decisions have been deleted for online purposes.]
5 While placing prison officials on notice of a grievance through less formal channels may constitute claim
exhaustion “ ‘in a substantive sense,’ ” an inmate plaintiff nonetheless must meet the procedural requirement
of exhausting his available administrative remedies within the appropriate grievance construct in order to
satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004)
(emphasis omitted) ).
6 The IGP is described in the declaration of Jeffrey Hale, Assistant Director of the DOCCS IGP, submitted in
support of defendants' motion. See Dkt. No. 75-10.
7 The IGRC is comprised of “two voting inmates, two voting staff members, and a non-voting chairperson.” 7
N.Y.C.R.R. § 701.4(a).
8 Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty
days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
9 According to the Second Circuit, “the three circumstances discussed in Ross do not appear to be
exhaustive[.]” Williams, 829 F.3d at 123 n.2.
10 Following an investigation, Senior OSI Investigator Christopher Retrosi concluded that plaintiff’s allegations
were unsubstantiated. Dkt. No. 75-17 at 2-3; Dkt. No. 75-22.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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CA, Inc. v. New Relic, Inc., Not Reported in F.Supp.3d (2015)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2015 WL 1611993
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
CA, INC., d/b/a CA Technologies, Plaintiff,
v.
NEW RELIC, INC., Defendant.
No. CV I2–5468(AKT).
|
Signed March 30, 2015.
|
Filed April 8, 2015.
Attorneys and Law Firms
Barry Shelton, Conor Civins, Matthew Gates, Pillsbury
Winthrop Shaw Pittman LLP, Austin, TX, for Plaintiff.
Craig N. Dee, Elizabeth Mara Aboulafia, Elizabeth Usinger,
Cullen and Dykman, LLP, Garden City, NY, Christa
Anderson, Corey Johanningmeier, Elizabeth Egan, Elizabeth
McCloskey, Jesse P. Basbaum, Matthew Mickle Werdegar,
Matthias A. Kamber, Rebekah Punak, Robert A. Van Nest,
Keker & Van Nest LLP, San Francisco, CA, for Defendant.
MEMORANDUM AND ORDER
A. KATHLEEN TOMLINSON, United States Magistrate
Judge.
I. PRELIMINARY STATEMENT
*1 In this patent infringement action, plaintiff CA, Inc.
(“CA”) alleges that defendant New Relic, Inc. (“New Relic”)
has infringed three patents which deal with monitoring the
performance of software applications, otherwise known as
application performance management (“APM”) software. See
generally Compl. [DE 1]. New Relic asserted in its First
Affirmative Defense that CA's three patents are invalid for
failure to satisfy the conditions of patentability. See Answer
to Compi. ¶ 62 [DE 8].
Presently before the Court is CA's motion for partial summary
judgment seeking to strike New Relic's First Affirmative
Defense as to two of the three patents at issue-U.S. Patent
No. 7,225,361 B2 (“the ′361 Patent”) and U.S. Patent No.
7,797,580 B2 (“the ′580 Patent”)-and to estop New Relic
from contesting the validity of those two patents. See DE
116. CA's motion is premised on the equitable doctrine of
assignor estoppel, which bars an inventor who assigned his
or her patent to another for valuable consideration from later
asserting that the patent is invalid. See Pl.'s Memorandum of
Law in Support of its Motion For Partial Summary Judgment
Based on the Doctrine of Assignor Estoppel (“Pl.'s Mem.”)
at 1 [DE 116–1]. The doctrine also bars companies in privity
with the inventor from asserting the defense of invalidity
where the company relied on the inventor's knowledge and
assistance in creating products accused of infringing the
inventor's patents. See id.
Lewis Cirne (“Cirne”), the sole founder and CEO of
Defendant New Relic, is one of two named inventors of
the ′361 and ′580 Patents. The parties do not dispute that
Cirne would be personally estopped from asserting that the
′361 and ′580 Patents that he co-invented are invalid. See
Defendant New Relic's Corrected Memorandum of Law in
Opposition to CA's Motion for Partial Summary Judgment
(“Def.'s Opp.”) at 16 n. 11 [DE 119]; Plaintiff's Reply to
Defendant's Opposition to Plaintiff's Motion (“Pl.'s Reply”) at
2 [DE 128]. Rather, the sole issue before the Court is whether
New Relic should be estopped from asserting an invalidity
defense because it is in privity with Cirne under the doctrine
of assignor estoppel.
Although the parties generally agree on the applicable law
governing the doctrine of assignor estoppel, they dispute
whether the record supports a finding, as a matter of law,
of privity between New Relic and Cirne. CA argues the
undisputed facts show that New Relic sufficiently availed
itself of Cirne's knowledge and assistance in developing the
accused products to justify finding privity between New Relic
and Cirne. See Pl.'s Mem. at 15–16. New Relic, on the other
hand, asserts that because New Relic did not rely on Cirne's
knowledge or assistance in developing the specific infringing
features of the accused products, there are genuine issues of
material fact which preclude summary judgment on assignor
estoppel grounds. See Def.'s Opp. at 16. Based upon a review
of the parties' submissions and the relevant case law, the
Court concludes that New Relic is in privity with Cirne and
is therefore barred under the doctrine of assignor estoppel
from asserting an invalidity defense against the ′361 and
′580 Patents. Accordingly, for reasons explained below, CA's
motion for partial summary judgment is GRANTED.
II. BACKGROUND
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*2 The Court's account of the facts is derived from the
parties' submissions in support of and in opposition to the
instant motion for partial summary judgment, including:
Plaintiffs Statement of Undisputed Material Facts In Support
Of Motion For Partial Summary Judgment (“Pl.'s Rule
56.1 Stmt.”) [DE 116–2]; Response to CA's Statement of
Undisputed Material Facts in Support of Motion for Partial
Summary Judgment (“Def.'s Rule 56.1 Counterstmt.”) [DE
119–1], as well as the affidavits, deposition testimony, and
other exhibits attached to the motion papers. Where the
parties' Rule 56.1 Statements contain specific citations to
the record as support, those documents are incorporated by
reference and the Court cites to the Rule 56.1 Statement,
rather than the underlying citation to the record. Where the
facts set forth in a party's Rule 56.1 Statement are supported
by testimonial or documentary evidence, and denied by a,
conclusory statement by the other party without citation
to conflicting testimonial or documentary evidence, the
Court finds such facts to be true. See E.D.N.Y. Local Rule
56.1(c); Petito v. Puritan's Pride, Inc., 35 F.Supp.3d 494,
497 (S.D.N.Y.2014). The Court construes the fact in the
light most favorable to New Relic as the nonmoving party.
Viacom Intern., Inc. v. YouTube, Inc., 676 F.3d 19, 30 (2d
Cir.2012); Petito, 35 F.Supp.3d at 502. The following facts
are undisputed unless otherwise noted.
CA is a provider of enterprise technology management
software and solutions. Plaintiff's Statement of Undisputed
Material Facts In Support Of Motion For Partial Summary
Judgment (“Pl.'s Rule 56.1 Stmt.”) ¶ 1. 1 One of its software
products, Introscope, is an APM tool which customers use
to monitor and manage the performance of web applications
written using Java or .NET software languages. Id. New Relic
also provides an APM service that monitors web applications
written in Java and .NET, as well as the Python, Ruby, and
PHP software languages, among others. Id. ¶ 2. CA holds
a number of patents related to its products, including two
patents related to Introscope which are the subject of the
instant motion. Id. ¶ 13. As noted, the patents at issue are
the ′361 Patent, entitled “Detecting a Stalled Routine,” and
the ′580 Patent, entitled “Determining that a Routine has
Stalled” (collectively, the “Stall Detection Patents”). 2 The
Stall Detection Patents were issued to Jeffrey Cobb and Lewis
Cirne in 2007 and 2010, respectively. Id. ¶¶ 19, 25.
Cirne is the founder and Chief Executive Officer of Defendant
New Relic. Id. ¶ 7. 3 Prior to founding New Relic, Cirne
started a company in 1998 called Wily Technologies, Inc.
Id. ¶ 9. Cirne founded Wily in connection with his invention
of a new approach to APM and is considered a pioneer and
driving innovative force in the APM field. Id. ¶¶ 10–11. Cirne
served as Wily's CEO from 1998 to 2001, and as its Chief
Technology Officer until approximately 2006. Id. ¶¶ 8–9.
During his tenure at Wily, Cirne helped develop Introscope,
which became Wily's flagship APM product, although the
parties dispute the scope of Cirne's role in Introscope's
development. Id. ¶ 12; see Def.'s Rule 56.1 Counterstmt.
¶ 12. Wily and its Introscope product were commercially
successful. Pl.'s Rule 56.1 Stmt. ¶ 27.
*3 CA asserts that in 2001, during the development of the
Introscope product, Cirne and Jeff Cobb solved an important
technical issue raised by customers by creating a solution
that helped customers understand when things were slowing
down and backing up in their applications. Id. ¶ 13. The Stall
Detection Patents were implemented in Introscope to address
this problem and solve it. See id. New Relic disputes that
the technical issue purportedly solved by the Stall Detection
Patents was “an important one,” noting that the stall detection
feature in Introscope was not one of the most important
features to customers. Def.'s Rule 56.1 Counterstmt. ¶ 13.
According to New Relic, the Stall Detection Patents, “at most,
patented one particular method of stall detection, and were
therefore not an important solution.” Id. 4
On February 21, 2002, Wily filed an application with the
United States Patent and Trademark Office (“USPTO”)
entitled “Detecting a Stalled Routine,” which would
eventually become the ′361 Patent. Pl.'s Rule 56.1 Stmt. ¶ 14.
Cirne and Cobb are the named inventors on the ′361 patent
application, id., and Wily submitted a “Declaration for Patent
Application” in support of the ′361 Application, id. ¶ 16. Cirne
executed the declaration on May 7, 2002 and declared his
belief that he was the first and joint inventor of the invention
entitled: DETECTING A STALLED ROUTINE....” Id. ¶
16. On June 27, 2005, Wily filed an application with the
USPTO that would eventually become the ′580 Patent. Id.
¶ 20. Cirne and Cobb are the named inventors on the ′580
Application, which was filed as a continuation of the ′361
Patent. Id. Cirne executed an assignment of his rights to the
intellectual property that would eventually become the Stall
Detection Patents to Wily. Id. ¶¶ 18, 23, n. 7. The assignment
of the subject matter of the ′361 Patent to Wily was executed
on May, 7, 2002. Id. ¶ 18. Likewise, Cirne assigned to
Wily for “good and valuable consideration” his rights to the
intellectual property which would eventually become the ′580
Patent. Id. ¶ 23. 5 After the assignment, Cirne continued to
work at Wily, where he received a salary, stock and other
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benefits. Id. ¶¶ 18, 24. The Stall Detection Patents were issued
to Cirne and Cobb on May 29, 2007 and September 14, 2010,
respectively. Id. ¶¶ 19, 25.
In 2006, CA purchased 100 % of the stock in Wily for
approximately $375 million and merged Wily into CA. Id.
¶ 28. According to CA, as part of the acquisition, (i) CA
acquired Introscope-which it continues to sell today-as well
as Wily's intellectual property, including the ′361 and ′580
Patents, and (ii) Wily assigned all its rights in the patents
to CA. Id. ¶¶ 29–30. New Relic points out that the Stall
Detection Patents did not issue until 2007 and 2010 and
thus were pending patent applications, not issued patents, at
the time CA acquired Wily. Def.'s Rule 56.1 Counterstmt. ¶
29. [Redacted]. Pl.'s Rule 56.1 Stmt. ¶ 32; Def.'s Rule 56.1
Counterstmt. ¶ 32. After the acquisition, Cirne continued to
serve as the Chief Technology Officer of CA's Wily Division.
Pl.'s Rule 56.1 Stmt. ¶ 33.
*4 Cirne resigned from CA on July 31, 2007. Id. ¶ 34.
In February 2008, Cirne authorized the incorporation of
New Relic and installed himself as Chief Executive Officer
(CEO), a position he holds to this day. Id. ¶¶ 38, 53;
Def.'s Rule 56.1 Counterstmt. ¶ 38. As explained below,
the parties dispute, among other things, when Cirne began
developing the prototype for the product that eventually
became New Relic's commercial APM service and whether
Cirne's initial programming contributions still survive in New
Relic's commercial offerings. However, there is no dispute
that Cirne was the only person involved in developing the
first prototype used to launch New Relic, demonstrating the
prototype to third parties, and obtaining the first round of
capital to fund New Relic. Pl.'s Rule 56.1 Stmt. ¶ 51; Def.'s
Rule 56.1 Counterstmt. ¶ 51. Cirne also played a key role in
obtaining subsequent rounds of financing for New Relic. Pl.'s
Rule 56.1 Stmt. ¶ 52; Def.'s Rule 56.1 Counterstmt. ¶ 52. New
Relic commercially released its Java agent in October 2009
and its .NET agent in October 2010. Pl.'s Rule 56.1 Stmt. ¶¶
67–68. The parties agree that Cirne [Redacted] Pl.'s Rule 56.1
Stmt. ¶¶ 64–66; Def.'s Rule 56.1 Counterstmt. ¶¶ 64–66.
The parties' generally differ in their assessment of Cirne's
involvement in the creation and development of New Relic's
accused Java and .NET agents. The Court will now consider
the party's respective factual recitations.
A. CA's Recitation of the Facts
CA asserts that, while Cirne was still an employee at CA
and approximately two months prior to his departure, he
began experimenting with the idea of providing APM through
a Software–as–a–Service, or “SaaS” delivery model, as
opposed to the on-premise model used to deliver Introscope.
Pl.'s Local Rule 56.1 Stmt. ¶ 35. 6 According to CA, Cirne
began writing the code for his new company (New Relic)
during that timeframe. Id. ¶ 36. Instead of disclosing his
new invention to CA, Cirne resigned from CA and began
demonstrating his prototype to third parties. Id. ¶ 37. Less
than two months after leaving CA, Cirne formed an LLC in
September 2007 (New Relic's predecessor) before formerly
incorporating New Relic in February 2008. Id. ¶ 38.
CA maintains that New Relic's APM service and its accused
Java and .NET agents “would not exist but for the knowledge
and assistance provided to New Relic by Mr. Cirne.” Id. if 44.
In particular, CA points to the fact that Cirne alone founded
New Relic, authorized the incorporation of the company, and
installed himself as CEO. Id. ¶¶ 38, 45, 53. According to
CA, Cirne conceived of the idea for New Relic and wrote
the original code for the first prototype used to launch the
company in approximately June 2007, while he was still
employed at CA, and developed the first prototype used
to launch the company. Id. ¶ 46. CA asserts that original
code remains part of New Relic's commercial product today.
Id. ¶ 47. CA also notes (and New Relic does not dispute)
that prior to New Relic's incorporation, Cirne was the only
person developing the original prototype for New Relic,
demonstrating that prototype to third parties, and obtaining
the first round of capital funding for New Relic. Id. ¶ 48–
49, 51; Def.'s Rule 56.1 Counterstmt. ¶¶ 48–49, 51. The
parties also do not dispute that Cirne played a key role
in obtaining New Relic's second, third, fourth, and fifth
rounds of financing to fund New Relic's operations. Pl.'s Rule
56.1 Stmt. ¶ 52; Def.'s Rule 56.1 Counterstmt. ¶ 52. CA
contends that the funding was used, among other things, to
hire engineers to build Cirne's product. Id. ¶ 50. Cirne did,
indeed, hire New Relic's first set of engineers as well as its
first business development manager. Id. ¶ 54. 7 Of the first
seven “key” personnel hired by Cirne, six were from CA. Id. if
55. The engineers from CA included Saxon D′Aubin and Jim
Gochee, both of whom CA contends played a “critical role”
in developing New Relic's accused Java and . NET agents. Id.
¶¶ 56. 8
*5 CA further asserts that, from the inception of New
Relic, Cirne has been “substantially involved in developing,
or managing the development of, all of New Relic's products.”
Id. ¶ 60. In particular, CA alleges that Cirne made the decision
to develop the Java agent in order to expand the company's
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footprint beyond a single software language agent. Id. ¶ 71.
Cirne also conducted the early research to determine whether
New Relic could develop a Java agent compatible with its
APM service, and then handed the project to D'Aubin and
Gochee, two engineers whom Cirne recruited directly from
CA. Id. ¶ 72. Cirne put D'Aubin and Gochee in charge
of developing and managing New Relic's Java agent, and
according to CA, Cirne has acknowledged that both engineers
played a critical role in the development and release of the
agent. Id. ¶ 73. CA also asserts that Cirne wrote code for
the Java agent and was directly involved in reaching out to
customers to test the Java agent prior to its release. Id. ¶ 74.
Cirne also made the decision to develop and release New
Relic's .NET agent. Id. ¶ 75.
B. New Relic's Recitation of the Facts
New Relic generally asserts that it did not rely on Cirne's
knowledge or assistance to develop the accused functionality
in the Java and .NET agents. See Def.'s Rule 56.1
Counterstmt. ¶ 157. New Relic describes Cirne's history and
involvement with the company as follows.
1. New Relic's First Product: Ruby–on–Rails
Performance Monitoring
With regard to Cirne's alleged experimentation while still
working at CA, New Relic contends that, in late June or
early July 2007, while on an unpaid leave of absence, Cirne
“began to play around with a new programming language
called Ruby–on–Rails” (“Ruby”). Id. ¶¶ 121. Cirne taught
himself Ruby on his own time and on his own computer by
experimenting and trying to write code. Id. ¶¶ 122–23. After
experimenting with Ruby for a few weeks, Cirne “realized
that he might want to pursue his Ruby idea so he promptly
resigned from CA.” Id. ¶ 129.
After resigning from CA, Cirne joined Benchmark Capital
(“Benchmark”) as an entrepreneur in residence because he
“was not certain what his next step would be.” Id. ¶ 130.
By the end of 2007, Cirne's initial experimenting with
Ruby became “more directional” toward a Ruby–on–Rails
performance monitoring product delivered through an SaaS
model. Id. ¶ 132. In February 2008, after Cirne obtained
funding from Benchmark, New Relic was incorporated. Id. ¶
138. New Relic released its first product, Rails Performance
Monitoring (“RPM”), in June 2008. Id . ¶ 139. New Relic's
RPM product was developed for the small and medium
business market and developers interested in SaaS rather than
on-premises delivery. Id. ¶ 140. According to New Relic,
Cirne's earlier experimentation with Ruby was the beginning
of research toward what, after many revisions by many
people, ultimately became the New Relic RPM product. Id.
¶ 125.
*6 In New Relic's view, Cirne was not obligated to disclose
his early research related to CA because he was on unpaid
leave of absence, and did the work on his own time and
computer. Id. ¶ 37. Likewise, his idea for a Ruby product did
not relate to CA's business. Id. Moreover, New Relic asserts
that Cirne voluntarily discussed his plans and ideas related to
Ruby with certain CA executives over the years in an effort
to be “transparent” with CA. Id. ¶¶ 134, 136–37. The parties
do not dispute that “CA does not accuse any version of New
Relic's Ruby agent of infringement.” Id. ¶ 149; see Plaintiff's
Reply to Defendant's Rule 56.1 Counterstatement (“Pl.'s Rule
56.1 Reply”) ¶ 149. New Relic further points out that CA
does not currently have a Ruby APM product in development.
Def.'s Rule 56.1 Counterstmt. ¶ 144.
2. New Relic's Reliance on Cirne's Knowledge or
Assistance in Developing New Relic's Java or .NET
agents
a. The Java Agent
According to New Relic, CA accuses two features of New
Relic's Java agent of infringing the Stall Detection Patents: (i)
a former stall detection feature; and (ii) certain functionality
relating to “Apdex,” including byte code instrumentation and
Apdex metric data accumulation for selected transactions. Id.
¶ 162. According to New Relic, D'Aubin wrote the Java agent
with “no assistance whatsoever from Mr. Cirne with respect
to the accused Java agent functionality.” Id. ¶ 163.
More specifically, New Relic asserts that, as CEO of New
Relic, Cirne's “role with respect to product development
varied depending on the product or the feature.” Id. ¶ 158.
Cirne, Gochee, and Mike Malloy were all involved in the
decision to develop the Java agent; however, Cirne was
“the primary decision maker.” Id . ¶ 159. Cirne did some
early research work to “enable Java code to connect to
[New Relic's] Ruby on Rails data collection service.” Id. ¶
160 (quotation marks omitted). Cirne then handed the Java
project off to D'Aubin, the engineer primarily responsible for
developing the Java agent. Id. ¶ 161. New Relic contends
that D'Aubin wrote the accused Java agent himself with no
assistance from Cirne “with respect to the accused Java agent
functionality,” id. ¶ 163, and that Cirne's “early research had
nothing to do with the accused Java agent functionality,” id.
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¶ 164. New Relic further maintains that Cirne: (i) “never got
involved in the development of the Java agent to the level
of reviewing code,” id. at ¶ 165; (ii) “did not supervise Mr.
D'Aubin,” who was supervised by Gochee, id. ¶¶ 166, 168;
and (iii) “suggested Mr. D'Aubin for the [Java agent] project,”
but did not make “the ultimate decision” to assign him, id. ¶
167.
According to New Relic, the allegedly infringing stall
detection feature was so minor that D'Aubin wrote it into the
code for the Java agent without discussing it with anyone. Id.
¶ 169. In fact, Cirne testified at his deposition that he was not
aware that the stall detection feature was in the Java agent
until this lawsuit. Id. ¶ 172. New Relic further states that,
when it received notice of this lawsuit, it removed the stall
detection feature in the Java agent “because it was such an
unimportant feature there was no downside to removing it.”
Id. ¶ 182. According to New Relic, removal of the stall feature
has “had no impact on customers or revenues.” Id. ¶ 183.
*7 With regard to the Apdex functionality of the Java
agent, New Relic similarly contends that D'Aubin wrote that
functionality without any assistance from Cirne. Id. ¶ 163.
As with the stall detection feature, New Relic argues that the
Apdex functionality is not an important feature of the Java
agent. Id. ¶ 186.
b. The .NET Agent
With regard to the .NET agent, New Relic asserts that CA
accuses certain functionality related to the Apdex, including
event monitoring and Apdex metric data accumulation for
selected transactions. Id. ¶ 176. New Relic claims that
sometime in early 2010, D'Aubin suggested that he should
also write a NET agent. Id. ¶ 173. After discussions with
Gochee and D'Aubin, Cirne, as CEO, ultimately approved
the decision to develop the .NET agent, but “had no other
involvement in its development,” according to New Relic. Id.
¶ 174. New Relic Points out that “Cirne has never written
a program in C sharp (“C# ”), the programming language
for .NET, so he could not have added any value to the
technical development” of the agent. Id. ¶ 175. New Relic also
asserts that D'Aubin wrote the agent in 2010, including the
accused .NET agent functionality. Id. ¶¶ 176–77.
Finally, with respect to the accused features of both the
Java and .NET agents, New Relic asserts that it has already
determined that “there are a number of non-infringing
alternatives” available. Id. ¶ 187. New Relic contends that it
could implement any of these alternatives easily with no more
than one month of engineering time, id. ¶¶ 187, 189, and that
the cost do so would be “trivial,” id. ¶ 190.
III. PROCEDURAL HISTORY
CA commenced this action against New Relic on November
12, 2012. See DE 1. New Relic filed its Answer asserting
an affirmative defense of invalidity on January 4, 2013.
See DE 8. On February 21, 2013, the parties consented to
the jurisdiction of a United States Magistrate Judge for all
purposes pursuant to 28 U.S.C. § 636(c). See DE 28, 29. Judge
Wiliam D. Wall was then assigned to this case. Upon Judge
Wall's retirement, the case was referred to the undersigned
for all purposes. See DE 93. On May 13, 2014, the parties
appeared before this Court for a status conference, during
which time the Court set a briefing schedule on the parties'
anticipated summary judgment motions. See DE 103. After
the instant motion was fully briefed and filed under seal on
ECF, see DE 116–120, 128, the Court heard oral argument
and reserved decision, see DE 142.
IV. LEGAL STANDARD
A. Summary Judgment
“The standard for summary judgment in a patent case is
the same as in any other case.” CA, Inc. v. Simple.com,
Inc., 780 F.Supp.2d 196, 208 (E.D.N.Y.2009) (citing Desper
Prods., Inc. v. QSound Labs, Inc., 157 F.3d 1325, 1332
(Fed.Cir.1998)). Summary judgment is appropriate where
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to 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 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–252, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Fed.R.Civ.P. 56(c). In deciding a summary judgment
motion, the role of the court is not “to weigh the evidence
and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson, 477 U.S. at 249;
see, e.g., Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ.,
444 F.3d 158, 162 (2d Cir.2006). A fact is “material” within
the meaning of Rule 56 if its resolution “might affect the
outcome of the suit under the governing law.” Anderson, 477
U.S. at 248. A dispute over a fact is “genuine” if “the evidence
is such that a reasonable jury, could return a verdict for the
nonmoving party.” Id.
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*8 The moving party bears the burden of establishing
the absence of a genuine issue of material fact. Celotex,
477 U.S. at 322–23; see, e.g, Zalaski v. City of Bridgeport
Police Dept., 613 F.3d 336, 340 (2d Cir.2010); CA, Inc., 780
F.Supp.2d at 209 (quoting Celotex, 477 U.S. at 323). Once the
movant has demonstrated that no genuine issue of material
fact exists, then “the nonmoving party must come forward
with ‘specific facts showing that there is a genuine issue for
trial.’ “ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original).
However, there must exist more than mere “metaphysical
doubt as to the material facts” to defeat a summary judgment
motion. Id. at 586. That is, the non-moving party must
present “concrete evidence from which a reasonable juror
could return a verdict in his favor.” Anderson, 477 U.S. at
256. “[T]he 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.” Id. at 247–
248. Thus, 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. Id. at 248; see also
Matsushita, 475 U.S. at 586. The court deciding a summary
judgment motion must draw all reasonable inferences in favor
of the nonmoving party. Anderson, 477 U.S. at 249 (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59, 90 S.Ct.
1598, 26 L.Ed.2d 142 (1970); see also Scott v. Harris, 550
U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)
(internal citation omitted).
B. Assignor Estoppel
“[A]ssignor estoppel is an equitable doctrine that prohibits
an assignor of a patent or patent application, or one
in privity with him, from attacking the validity of that
patent when he is sued for infringement by the assignee.”
Semiconductor Energy Lab. Co. v. Nagata, 706 F.3d 1365,
1369 (Fed.Cir.2013) (citing Diamond Scientific Co. v.
Amrico, Inc., 848 F.2d 1220, 1224 (Fed.Cir.1988) (“Assignor
estoppel is an equitable doctrine that prevents one who has
assigned the rights to a patent (or patent application) from
later contending that what was assigned is a nullity.”)); see
Shamrock Techs., Inc. v. Med. Sterilization, Inc., 903 F.2d 789,
793 (Fed.Cir.1990). “Under the doctrine, an assignor sued for
infringement may not defend or counterclaim that the patent
he assigned is invalid or unenforceable.” Semiconductor
Energy, 706 F.3d at 1370 (citing Diamond Scientific, 848
F.2d at 1226). The doctrine is premised upon the “implicit
representation by the assignor that the patent rights he
is assigning (presumably for value) are not worthless.”
Diamond Scientific, 848 F.2d at 1224. Thus, “the primary
consideration in ... applying the doctrine is the measure
of unfairness and injustice that would be suffered by the
assignee if the assignor were allowed to raise defenses of
patent invalidity.” Id. at 1225; see Pandrol USA, LP v. Airboss
Railway Products, Inc., 424 F.3d 1161, 1166 (Fed.Cir.2005).
The decision to apply assignor estoppel in a particular case
“requires a balancing of the equities between the parties,” a
determination which is “committed to the sound discretion of
the trial court.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc.,
15 F.3d 1573, 1579 (Fed.Cir.1993); see Checkpoint Sys., Inc.
v. All–Tag Sec. S.A., 412 F.3d 1331, 1337 (Fed.Cir.2005); see
also Diamond Scientifc, 848 F.2d at 1225.
*9 The assignor estoppel doctrine “also prevents parties
in privity with an estopped assignor from challenging the
validity of the patent.” Mentor Graphics Corp. v. Quickturn
Design Sys., Inc., 150 F.3d 1374, 1379 (Fed.Cir.1998) (citing
Diamond Scientific, 848 F.2d at 1224); Checkpoint, 412
F.3d at 1337 (same). “Privity, like the doctrine of assignor
estoppel itself, is determined upon a balance of the equities”
and is viewed in light of the alleged acts of infringement.
Shamrock, 903 F.2d at 793; see Mentor Graphics, 150 F.3d
at 1379. Privity can be found as a matter of law. See, e.g.,
Shamrock, 903 F.2d at 796 (upholding district court's grant
of summary judgment on assignor estoppel); L–3 Commc'ns
Corp. v. Jaxon Eng'g & Maint., Inc., No. 10–CV–02868, 2014
WL 4695104, at *5 (D.Colo. Sept. 22, 2014) (finding that
the plaintiff is entitled to summary judgment on all but two
of the defendants' “affirmative defenses of invalidity on the
grounds of assignor estoppel”); BASF Corp. v. Aristo, Inc.,
872 F.Supp.2d 758, 774 (N.D.Ind.2012) (assignor estoppel
and privity are “question[s] for the court to decide and which
can be resolved through summary judgment.”).
“Whether two parties are in privity depends on the nature
of their relationship in light of the alleged infringement.”
Mentor Graphics, 150 F.3d at 1379; see L–3 Commc'ns, 2014
WL 4695104, at *2 (“The question of privity examines the
nature of the relationship between the assignor and the person
sought to be estopped, in light of the alleged infringement.”);
Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., No. 10–
CV–03428, 2012 WL 2326064, at *4 (N.D.Cal.2012). As the
Federal Circuit explained in Shamrock:
If an inventor assigns his invention to
his employer Company A and leaves
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to join Company B, whether company
B is in privity and thus bound by the
doctrine will depend on the equities
dictated by the relationship between
the inventor and company B in light
of the act of infringement. The closer
that relationship, the more the equities
will favor applying the doctrine to
company B.
Shamrock, 903 F.2d at 793 (emphasis added) (citation
omitted); see Mentor Graphics, 150 F.3d at 1379. To
determine if the relationship is sufficiently close, courts
consider all contacts between the inventor-assignor and the
defendant company. See Mentor Graphics, 150 F.3d at 1379;
Intel Corp. v. U.S. Int'l Trade Comm'n, 946 F.2d 821, 838
(Fed.Cir.1991).
In making a privity determination, the central question
is whether the defendant company availed itself of the
inventor-assignor's “knowledge and assistance' to conduct the
alleged infringement.” Intel Corp., 946 F.2d at 839 (quoting
Shamrock, 903 F.2d at 794); see. Checkpoint, 412 F.3d at 1337
(same). “[T]he assignor's mere status as an employee of a
competitor does not necessarily warrant a finding of privity,”
but “[p]rivity may exist in a corporation that is founded by the
assignor.” L–3 Commc'ns, 2014 WL 4695104, at *2 (citing
Shamrock, 903 F.2d at 793); see Nortel Networks Inc. v.
Foundry Networks, Inc., 01–CV–10442, 2003 WL 26476584,
at *8–9 (D.Mass. Mar.24, 2003); see generally Diamond
Scientific, 848 F.2d at 1224 (“The estoppel also operates to bar
other parties in privity with the assignor, such as a corporation
founded by the assignor.”). Moreover, “[p]rivity does not
require that the assignor directly design the infringing features
of the accused product What is significant is whether the
ultimate infringer availed itself of the inventor's ‘knowledge
and assistance’ to conduct infringement.” Brocade, 2012
WL 2326064, at *5 (internal citations and quotation marks
omitted); see Mentor Graphics, 150 F.3d at 1379 (finding
privity between two companies, even though the assignor
company did not assist in developing the accused product);
Synopsys, Inc. v. Magma Design Automation, Inc., No. C–
04–3923, 2005 WL 1562779, at *6 (N.D.Cal. July 1, 2005)
(“The Federal Circuit ... has not required that the assignor
be personally involved in designing the allegedly infringing
aspects of a product before finding the doctrine of assignor
estoppel applicable”).
V. DISCUSSION
*10 Although the parties agree that Cirne himself is
estopped from asserting that the Stall Detection Patents are
invalid, see Pl.'s Mem. at 9–11; Def.'s Opp. at 16 n. 11;
Pl.'s Reply at 2, they dispute whether the record evidence
supports a finding of privity as a matter of law between
Cirne and New Relic. In determining whether privity exists
between an inventor/assignor and another entity for purposes
of assignor estoppel, the Court must evaluate “all direct
and indirect contacts,” see Mentor Graphics, 150 F.3d at
1379, and evaluate the relationship between the inventor/
assignor and the entity “in light of the act of infringement,”
Shamrock, 903 F.2d at 793. Critical to the determination of
privity is whether the company “availed itself of the inventor's
‘knowledge and assistance’ to conduct infringement.” Intel
Corp., 946 F.2d at 839 (quoting Shamrock, 903 F.2d at 794).
Here, the following facts are undisputed. Cirne is a listed
inventor on the Stall Detection Patents which were assigned
to CA when it acquired Cirne's previous company Wily. Cirne
resigned from CA on July 31, 2007 and went on to found New
Relic. Prior to New Relic's incorporation in February 2008,
Cirne alone (i) worked on developing the prototype product
used to launch the company, (ii) demonstrated that prototype
to third parties, and (iii) obtained the initial capital to fund
New Relic. Cirne also played a critical role in obtaining
subsequent rounds of financing for New Relic's operations.
After founding New Relic and becoming its CEO, Cirne hired
New Relic's first engineers, including former CA engineers
D'Aubin and Gochee. Significantly, Cirne conducted initial
research on the accused Java agent before handing that project
to New Relic engineers, and he served as “primary decision
maker” during the development of that agent. Cirne also
approved the decision to develop the accused .NET agent.
New Relic commercially released its Java agent in October
2009 and its .NET agent in October 2010. Cirne [Redacted]
In light of these undisputed facts, CA argues that New Relic
sufficiently availed itself of Cirne's knowledge and assistance
“in developing its APM service and its Java and .NET agents”
to justify a finding of privity as a matter of law. Pl.'s Mem. at
14. CA further asserts that Cirne's role as CEO and founder
of New Relic, as well as his “significant equity ownership in
the company”-both now and when New Relic was developing
the accused Java and .NET agents-“establishes a sufficiently
close connection, in and of itself, to warrant a finding of
privity.” Id. at 13–14 (citing Mentor Graphics, 150 F.3d at
1379). CA therefore maintains that the doctrine of assignor
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estoppel bars New Relic from challenging the validity of the
Stall Detection Patents.
In response, New Relic argues that, because the record shows
that New Relic did not avail itself of Cirne's knowledge or
assistance to develop the allegedly infringing functionalities
of the accused Java and .NET agents, a genuine issue of fact
exists which precludes the application of assignor estoppel
against New Relic. See Def.'s Opp. at 16. New Relic further
argues that where, at a minimum, the parties dispute whether
New Relic relied on Cirne's knowledge or assistance to
develop the accused functionalities, Cirne's role as founder
and CEO of New Relic, by itself, is insufficient to establish
privity. Id. at 17. New Relic also points to certain “equitable
factors” that, in its view, favor denial of CA's motion,
including New Relic's assertion that the accused features are
minor and could be easily removed. See id. at 16.
*11 As a preliminary matter, the Court concludes that Cirne's
undisputed status as founder and CEO of New Relic, as
well as his considerable ownership stake in the company, are
factors that weigh in favor of finding privity between Cirne
and New Relic. See Shamrock, 903 F.2d at 794. In Shamrock,
the Federal Circuit enumerated several factors which justified
a finding of privity in that case, including that (i) the assignor/
inventor left the plaintiff company for a highlevel position at
the defendant company; and (ii) the assignor/inventor owned
shares in the defendant company. Id.; see Brocade, 2012 WL
2326064 at *5. Here, it is undisputed that Cirne left CA and
founded New Relic, where he serves as CEO and has acted
as the “primary decision maker” in the development of New
Relic's accused Java and .NET agents. As in Shamrock, the
fact that Cirne is “far more than a mere employee” of New
Relic supports a finding of privity between the company and
Cirne. 903 F.2d at 794; see Nortel, 2003 WL 26476584, at *9
(noting that inventor/assignor's “involvement in the founding
of the [defendant] company” as a factor favoring privity
under Shamrock ); Eagle Comtronics, 1991 WL 247551, at
*5 (considering the undisputed fact that the inventor/assignor
was a co-founder of the defendant company as a factor leading
the court “to the inevitable conclusion that privity exists”); see
also L–3 Commc'ns, 2014 WL 4695104, at *3 (finding “fairly
clear evidence of privity” between the defendant company
and three assignors/inventors who left the plaintiff company
to serve in high-level positions with the defendant company,
where they “perform the same functions” as they did for the
plaintiff); Brocade, 2012 WL 2326064, at *5 (finding that
the defendant company “failed to raise a genuine dispute
of material fact as to the first Shamrock factor” where the
assignor/inventor left the plaintiff company to serve as the
defendant's Chief Technology Officer). Moreover, the parties
agree that Cirne [Redacted] Although “the Federal Circuit
has not set a minimum percentage ownership threshold for a
finding of privity,” Brocade, 2012 WL 2326064, at *6, it has
noted that “[e]ven a party that owns less than a majority of a
company's stock can still exercise effective control over the
company's operations,” which may justify a finding of privity.
Mentor Graphics, 150 F.3d at 1379; see also Shamrock,
903 F.2d at 794 (finding the inventor/assignor's ownership
of 50,000 shares of the defendant company's stock, was a
factor favoring privity without considering the percentage of
ownership). In light of this precedent, the Court finds that
Cirne's current and previous ownership stake in New Relic
weighs in favor of finding privity between Cirne and New
Relic. See Brocade, 2012 WL 2326064, at *6 (finding that,
although inventor/assignor's “one million shares or options
to purchase shares” constituted “a less than 1% ownership
stake” of the defendant company, the factor still “weigh[ed]
in favor of a finding of privity”); Eagle Comtronics, Inc.
v. Ne. Filter Co., No. 90–CV–573, 1991 WL 247551, at
*5 (N.D.N.Y. Nov.22, 1991) (considering the undisputed
fact that the inventor/assignor “was at all times at least a
50% shareholder” as a factor leading the court to conclude
that privity exists); see generally L–3 Commc'ns, 2014 WL
4695104, at *3 (considering in the privity analysis the fact
that the three inventors/assignors hold stock in the defendant
company). 9 Accordingly, the Court concludes that, because
New Relic has failed to raise a genuine issue of fact regarding
Cirne's status as founder and CEO of New Relic and his
ownership stake in the company, these factors support the
existence of privity between Cirne and New Relic under the
doctrine of assignor estoppel.
*12 As noted, the most “significant” factor in the privity
analysis “is whether the ultimate infringer availed itself
of the inventor's knowledge and assistance to conduct
infringement.” Intel Corp., 946 F.2d at 839 (quoting
Shamrock, 903 F.2d at 794). Here, Cirne founded New
Relic, conducted initial research on the Java agent, and
created the first prototype product eventually used to launch
the company. After incorporating New Relic, Cirne acted
as the “primary decision maker” in the development of
New Relic's accused Java agent, and, as CEO, he approved
the decision to develop the accused .NET agent. In other
words, Cirne held a “key role” in developing New Relic's
Java and .NET agents that are alleged to infringe the Stall
Detection Patents. Synopsys, 2005 WL 1562779, at *8. In
light of these undisputed facts, the Court concludes that New
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Relic sufficiently availed itself of Cirne's knowledge and
assistance in developing the accused Java and .NET agents
so as to support a finding of privity between New Relic and
Cirne.
New Relic contends that, because the parties dispute whether
New Relic availed itself of Cirne's knowledge and assistance
in developing the alleged infringing functionalities of the
accused agents, the Court should decline to find privity
between New Relic and Cirne as a matter of law. See
Def.'s Opp. at 16. However, “[t]he Federal Circuit does not
require that the assignor directly design infringing features
of an accused product in order to find privity between the
assignor and the defendant company.” Brocade, 2012 WL
2326064, at *7 (citing Mentor Graphics, 150 F.3d at 1379);
see Synopsis, 2005 WL 1562779, at *6. This view originates
from the Federal Circuit's decision in Mentor Graphics,
in which the court found privity between two companies
even though the assignor, Mentor, had no involvement in
the creation of the allegedly infringing product, but only
in the marketing and distribution of the product. 105 F.3d
at 1376. In that case, Mentor had assigned a patent for
hardware emulation technology (“the ′473 patent”) to another
company, Quicktum. See id. Thereafter, Mentor bought a
company, Meta, which had developed hardware emulation
technology independent of Mentor and Quicktum. See id.
When Quicktum asserted that Meta's technology infringed the
′473 patent Quicktum had purchased from Mentor, Mentor
filed an action for a declaratory judgment of invalidity of
the ′473 patent. See id. at 1377. The Federal Circuit applied
the doctrine of assignor estoppel to bar both Mentor and
Meta from challenging the ′473 patent. See id. at 1378–79.
In doing so, the Federal Circuit found Mentor was barred
because it had assigned the patent to Quicktum for value,
and that Meta was also barred because it was in privity with
Mentor. See id. at 1378–79. The court reasoned that privity
existed between the two companies because: Mentor owned
all of Meta's stock, “giving Mentor considerable control over
Meta's operations”; the two companies shared personnel; and
Mentor approved Meta's budget. Id. at 1379. The court also
noted that Mentor acquired Meta for the purpose of marketing
the allegedly infringing device in the United States. Id. Thus,
even though Mentor had no role in creating the allegedly
infringing product, other than its marketing and distribution,
the Court found Mentor was in privity with Meta for purposes
of assignor estoppel. See id.
*13 Courts applying Mentor have consistently held that
“[p]rivity does not require that the assignor directly design
the infringing features of the accused product.” Brocade,
2012 WL 2326064, at *7 (citing Mentor Graphics, 150 F.3d
at 1379); Synopsis, 2005 WL 1562779, at *7 (holding that,
although the defendant company “contends ... the patent
assignor[ ] had little involvement in creating the precise
components that are alleged to infringe, Mentor demonstrates
that assignor estoppel may apply even where the assignor had
no involvement at all in creating the infringing technology.”);
see also Nortel, 2003 WL 26476584, at *8–9 (finding privity
between the assignor-founder and his company where the
founder oversaw the design of the product's hardware, but
the alleged infringement occurred in the product's software,
where the assignor was actively involved in the design of
his company's products during the relevant time period).
Significantly, the district court in Brocade further stated that
the assignor need not have written code for the infringing
device to warrant a finding of privity between the assignor
and his company. See 2012 WL 2326064, at *5 (“Moreover,
whether or not [the inventor-assignor] actually wrote the code
to the accused AX Series is also immaterial.”) (citing BASF
Corp., 2012 WL 1933700, at *15 (finding privity between
consultant and defendant company, even though consultant
did not “actually sit down and operate the [infringing
product]”)).
In light of this line of cases, New Relic has failed to
raise a genuine issue of material fact regarding Cirne's role
in alleged infringement which would preclude a finding
of privity between New Relic and Cirne. It is undisputed
that Cirne, as founder and CEO of New Relic, created the
prototype of New Relic's first product, obtained funding
so that New Relic could develop that. product, contributed
research toward the accused Java agent, and was substantially
involved in the decision to develop both of the company's
accused agents. Under the circumstances of this case, “[n]o
more is required for the application of assignor estoppel.”
Synopsys, 2005 WL 1562779, at *8. New Relic asserts that
it did not avail itself of Cirne's knowledge and assistance
to develop the infringing features of the accused agents.
However, the relevant case law simply does not require
that Cirne be personally and directly involved in developing
the infringing functionalities for assignor estoppel to apply
against New Relic. Thus, even assuming as true New Relic's
assertions that (i) D′Aubin wrote the code for both the stall
detection and Apdex functionalities of the accused Java agent
without Cirne's involvement; (ii) Cirne was not aware that
the accused stall detection feature was in the Java agent until
New Relic received notice of this lawsuit; and (iii) Cirne
neither wrote code nor assisted D'Aubin in the development
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of the .NET agent, Def.'s Opp. at 16–17 (citing Def.'s Rule
56.1 Counterstmt. ¶¶ 157–68, 172, 175, 178), these assertions
do not preclude a finding of privity between New Relic
and Cirne. See, e.g., Brocade, 2012 WL 2326064, at *5,
*7. 10 In other words, even if the Court resolved the parties'
dispute over Cirne's role in the development of the alleged
infringing features in New Relic's favor, this issue would not
“affect the outcome of the suit under the governing law” or
cause a reasonable jury to return a verdict in favor of New
Relic. Anderson, 477 U.S. at 248. Accordingly, the Court
concludes that, in light of the critical and substantial role
Cirne played in founding New Relic (i.e., creating its first
prototype and authorizing the development of the accused
agents, among other undisputed facts), the record evidence
provides sufficient grounds to support a finding that New
Relic is in privity with Cirne under the doctrine of assignor
estoppel.
*14 In further arguing against privity, New Relic asks
the Court to consider the broader equities between Cirne
and CA, and identifies facts that, in New Relic's view, “tip
the equitable balance in favor of New Relic and against
application of the assignor estoppel doctrine.” Def.'s Opp. at
16. In particular, New Relic points out that
(i) New Relic kept CA apprised
of its product development, (ii)
New Relic intentionally focused its
products on a different and emerging
market, (iii) the allegedly infringing
features were known to CA for years
before CA accused those features of
infringement, and (iv) the accused
features are minor and could be easily
removed or redesigned[.]
Id.; see also id. at 21–22. However, as CA notes in its reply,
the determination whether a defendant company is in privity
with the inventor and therefore bound by the doctrine of
assignor estoppel “depend[s] on the equities dictated by the
relationship between the inventor and [defendant] company,
not the relationship between the inventor and the plaintiff.
Shamrock, 903 F.2d at 793 (emphasis added). Moreover,
“the primary consideration” in applying the doctrine of
assignor estoppel is preventing unfairness and injustice to
the assignee, i.e., a plaintiff company like CA. Diamond
Scientific, 848 F.2d at 1225. Here, the Court determines that,
for the reasons explained above, the balance of equities as
well as the relationship between Cirne and New Relic favor
the application of assignor estoppel to bar New Relic from
asserting that the Stall Detection Patents are invalid.
In sum, considering the undisputed facts and drawing all
reasonable inferences in favor of New Relic as the non-
moving party, the Court concludes there is no genuine issue of
material fact on the matter of New Relic being in privity with
Cirne under the doctrine of assignor estoppel. Accordingly,
CA is entitled to partial summary judgment striking New
Relic's affirmative defense of invalidity with respect to the
Stall Detection Patents based on the principle of assignor
estoppel. 11
VI. CONCLUSION
For the foregoing reasons, CA's motion for partial summary
judgment striking New Relic's First Affirmative Defense with
respect to the Stall Detection Patents is GRANTED.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1611993
Footnotes
1 Although New Relic does not dispute this statement of fact, it contends that the evidence cited by CA does
not support its factual assertion. Def.'s Rule 56.1 Counterstmt. ¶ 1. New Relic makes this claim in response
to several of CA's other statements of fact as well. See id. ¶¶ 3, 8, 14, 20. Having reviewed the evidence
cited in support of these statements of fact and on the motion as a whole, the Court is satisfied that the
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record supports CA's assertions. See Vermont Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244
(2d Cir.2004) (citing Giannullo v. City of N.Y., 322 F.3d 139, 143 n. 5 (2d Cir.2003)).
2 This litigation also concerns a third patent held by CA–U.S. Patent No. 7,512,935 B1 (the #935 patent)-which
is not in dispute on the instant motion.
3 Here, and in multiple instances throughout its Rule 56.1 Counterstatement, New Relic responds to CA's
statement of the facts by stating that the facts are “Undisputed” but that “New Relic objects to and asks the
Court to disregard of strike” certain exhibits cited by CA to support its statement and/or certain facts contained
within those exhibits. See, e.g., Def.'s Rule 56.1 Counterstmt. ¶¶ 7, 9, 10, 11, 27, 30, 33, 43, 45, 62, 67, 68.
Where this occurs, the Court will consider the statement provided by CA as undisputed because New Relic's
initial response in each instance is, in fact, “Undisputed.” See Washington v. City of New York, No. 05 CIV.
8884, 2009 WL 1585947, at *1 n. 2 (S.D.N.Y. June 5, 2009) (taking the statement of relevant facts provided
by the defendants “as true” where the plaintiffs initial response in each instance was “Admit, but deny to the
extent the statement cites to inadmissible evidence” and finding that, in any event, the challenged evidence
“would undoubtedly be admissible at trial”). Furthermore, the Court observes that, to the extent New Relic
objects to CA's use of printed statements from New Relic's own website as exhibits-which bear both a time-
and-date stamp and URL, and which have been authenticated in a declaration by CA's counsel, see Decl.
of Matthew K. Gates [DE 118]-those documents are admissible in evidence. See In re Vitamin C Antitrust
Li tig., No. 06–MD–1738, 2013 WL 504257, at *5 (E.D.N.Y. Feb. 8, 2013) (“Statements on a website can
be considered business records within the scope of Rule 803(6).”) (citing Doctors Med. Ctr. of Modesto v.
Global Excel Mgmt., Inc., No 08–CV–1231, 2009 WL 2500546, at *9 (E.D.Cal.Aug.14, 2009) (concluding that
statements on a party's website were admissible, despite hearsay objections, under the business records
exception and as party admissions)); see also Langbord v. U.S. Dep't of Treasury, No. CIV.A. 06–5315, 2011
WL 2621310, at *4 (E.D.Pa. July 5, 2011) (holding that “a 2007 printout from the Mint's website listing the
1933 Double Eagle as a circulating coin, is admissible as a statement of a party opponent, no matter what
the Mint intended by posting the information.”).
4 On this point, New Relic further asserts in its Rule 56.1 Counterstatement that “[t]here are many prior art
methods for detecting a stall,” Def.'s Rule 56.1 Counterstmt. ¶ 93, and that the Stall Detection Patents, at
most, patented specific methods of stall detection, id. ¶ 92.
5 This assignment took place in 2002. The #580 Patent, which is a continuation of the #361 Patent, was
conveyed to Wily by Cime as part of the assignment of the #361 application. Pl's Rule 56.1 Stmt. ¶ 23 n. 7.
6 According to CA, “[t]he fundamental difference between SaaS and on-premise is that SaaS allows customers
to monitor their applications by downloading software agents through a remotely hosted website, whereas
on-premise software must be physically installed on the customers' computers in order to monitor their web
applications.” Pl.'s Rule 56.1 Stmt. ¶ 35 n. 11.
7 Although the parties agree that Cime hired New Relic's first engineers, New Relic disputes CA's
characterization that the engineers were “needed to develop New Relic's APM service.” Pl.'s Rule 56.1 Stmt.
¶ 54; Def.'s Rule 56.1 Counterstmt. ¶ 54.
8 New Relic agrees with CA's assertion only to the extent that D'Aubin played a critical role in the development
of New Relic's Java agent. Def.'s Rule 56.1 Counterstmt. ¶ 56.
9 New Relic correctly notes that Cirne's role as founder/CEO and ownership interest in New Relic alone would
not be sufficient to warrant the application of assignor estoppel, which requires the balancing of multiple
equitable factors. See Def.'s Opp. at 20 n. 17. However, as the Court discusses below, New Relic also availed
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itself of Cirne's knowledge and assistance in developing the accused Java and .NET agents, which tips the
equitable balance in favor of privity.
10 The Court is unpersuaded by New Relic's attempt to distinguish Cirne from one of the assignors at issue in
Brocade, who held the title of “Chief Architect” of the defendant company. See Def.'s Opp. at 20 20, 20 n.
16. New Relic asserts that the court in Brocade found it “immaterial” that the Chief Architect-assignor did not
write code for the accused product because, unlike in this case, “the defendant [company] still availed itself
of [the assignor's] knowledge and assistance to develop the accused product.” Id. at n. 16. However, the
Court finds that, like the assignor in Brocade, New Relic did, in fact, rely on Cirne's knowledge and assistance
to conduct the alleged infringement-i.e., to create and develop the accused agents-despite whether Cirne
himself developed the infringing features of those agents.
11 New Relic argues in the alternative that, even if it is bound by the doctrine of assignor estoppel, it may still
rely on “anticipatory prior art” to defend against CA's infringement claims at trial. Def.'s Opp. at 22–25. CA
responds that “[t]his argument is for another day” and notes that, should New Relic attempt to rely on prior
art “as a defense to infringement (or for any other purpose), CA will file a motion in limine to exclude that
evidence in accordance with the Court's schedule, and New Relic will have an opportunity to respond at that
time.” CA Reply at 7. Having considered these arguments, the Court concludes that the issue of whether (and
to what extent) New Relic may rely on anticipatory prior art as a defense at trial is not ripe for adjudication
on this motion.
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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
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II. Summary Judgment Motion........................................................................................ 24
Introduction
*1 “Between 1987 and 1997, the percentage of Americans
being treated for depression more than tripled nationwide[.]”
Shankar Vedantam, Report Shows Big Rise in Treatment
for Depression, WASH. POST, Jan. 9, 2002, at A01. In
December 1996, plaintiff Michael DeVito became one of
those Americans. At that time, his primary care physician
prescribed Paxil, a selective serotonin reuptake inhibitor
(“SSRI”). Mr. DeVito takes Paxil to this day, despite attempts
through the years to discontinue. DeVito claims that he cannot
discontinue taking Paxil because he has become “dependent”
upon it. Affidavit of Robert E. Glanville (Oct. 20, 2003),
exh. A thereto (Complaint) at 2, ¶ 9. More specifically,
plaintiff alleges that he has been unable to stop taking
Paxil due to what he characterizes as “withdrawal reactions”
or “dependency/withdrawal syndrome,” which according to
plaintiff “includ[es], but [is] not limited to, dizziness, nausea,
shaking, electrical-like shocks and horrible dreams.” Id. at 2,
¶¶ 7 and 6.
In this lawsuit plaintiff alleges five causes of action against
the manufacturer of Paxil, defendant Smithkline Beecham
Corporation d/b/a Glaxo Smithkline (“Glaxo”): (1) fraud; (2)
negligence; (3) strict liability; (4) breach of express warranty;
and (5) breach of implied warranty. There is a great deal
of overlap among these five causes of action. The thrust of
plaintiff's complaint is that Glaxo failed to adequately warn
of “Paxil's addictive qualities and dependency/withdrawal
characteristics[.]” Id. at 6, ¶ 19; see also id. at 3, ¶ 11b); at 7,
¶ 25; and at 8, ¶ 33. 1
Discovery is complete and Glaxo is now moving for
summary judgment pursuant to Fed.R.Civ.P. 56. Pursuant to
Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S .Ct. 2786 (1993), Glaxo is also moving to
preclude the testimony of the three witnesses whom plaintiff
is proffering as experts. The court will address Glaxo's
motion to preclude first because if any or all of the proffered
testimony is inadmissible, then that could significantly impact
Glaxo's summary judgment motion in terms of the admissible
proof before the court. See Toole v. Toshin Co. Ltd ., No.
00–CV–821S, 2004 WL 2202580, at *4 (W.D.N.Y. Sept.
29, 2004) (granting defense motion to preclude testimony
of plaintiff's expert and declining to consider his report on
summary judgment motion).
I. Preclusion Motion
Each of the five causes of action which plaintiff alleges
requires him to prove causation. “Under settled New York
law, whether the action is pleaded in strict products liability,
breach of warranty or negligence, the plaintiff in a products
liability case bears the burden of establishing that a defect
in the product as a substantial factor in causing the
injury.” Prohaska v. Sofamor, S.N.C., 138 F.Supp.2d 422,
434 (W.D.N.Y.2001) (internal quotation marks and citation
omitted). Common law fraud likewise “requires a showing of
proximate causation, such that the injury is the natural and
probable consequence of the defrauder's misrepresentation
or ... the defrauder ought reasonably to have foreseen that the
injury was a probable consequence of his fraud.” Cyber Media
Group, Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d
559, 580 (E.D.N.Y.2002) (internal quotation marks and
citation omitted). To establish causation here, plaintiff DeVito
“must offer admissible testimony regarding both general
causation,” i.e. that Paxil can cause the type of symptoms of
which plaintiff complains when attempting to discontinue that
drug, “and specific causation,” i.e. that Paxil actually caused
DeVito's alleged symptoms upon discontinuation of Paxil.
See Amorgianos v. National Railroad Passenger Corporation,
303 F.3d 256, 268 (2d Cir.2002) (citation omitted) (emphasis
added); see also Blanchard v. Eli Lilly & Co., 207 F.Supp.2d
308, 314 (D . Vt.2002) (citations omitted) (“Plaintiffs ...
must prove both general and specific causation in order to
prevail on their claim, that is, that Prozac is capable of
causing and in fact did cause the deaths in this case.”). In the
context of Paxil litigation, “the general causation question is
limited to whether discontinuation from Paxil is capable of
causing dizziness, agitation, anxiety, nausea, etc.” In re Paxil
Litigation, 218 F.R.D. 242, 249 (C.D.Cal.2003). Specific
causation, on the other hand, focuses on whether a plaintiff
can “prove that [his] symptoms came from Paxil, as opposed
to, for example, the relapse of the underlying illness or the
consumption or discontinuation of other drugs.” Id.
*2 To establish causation, plaintiff DeVito seeks to offer
the testimony of three “expert” witnesses: (1) Mr. John T.
O'Donnell, a pharmacist with a Master's Degree in nutrition;
(2) Dr. Kevin W. George, a former psychiatrist of plaintiff's;
and (3) Ms. Deborah Sweeney, plaintiff's treating nurse
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practitioner. Glaxo is seeking to “preclude ... [these] experts
from offering any opinion that: (I) Paxil causes substance
dependence, or is either addictive or habit-forming; or (ii)
that plaintiff is addicted to Paxil or has developed substance
dependence as a result of taking it.” Memorandum of Law in
Support of Glaxosmithkline's Motion to Preclude Plaintiff's
Experts' Testimony Pursuant to Fed.R.Evid. 702 and Daubert
(“Def. Preclude Memo.”) at 4. In preparation for trial, each
of these witnesses has been deposed and Mr. O'Donnell has
provided an “expert” report on plaintiff's behalf. Apart from
these witnesses, plaintiff proffers no other causation evidence.
To support his theory that Paxil is defective due to an
inadequate warning, plaintiff is relying solely upon the
deposition testimony and “expert” report of Mr. O'Donnell.
Glaxo argues for the preclusion of “[h]is warnings ‘opinions”
’ because O'Donnell is not qualified to testify on that issue
and even if he were, “his opinions are neither reliable nor
scientific.” Def. Preclude Memo. at 24.
A. Standard for Admissibility of Expert Evidence
There is a two-part inquiry in deciding the admissibility
of expert evidence. First, in accordance with Fed.R.Evid.
702, “[t]he court should admit specialized expert testimony
if the witness is ‘qualified as an expert by knowledge,
skill, experience, training or education’ and his testimony
‘will assist the trier of fact to understand the evidence or
to determine a fact in issue.” ’ Nora Beverages, Inc. v.
Perrier Group of America, Inc., 164 F.3d 736, 746 (2d
Cir.1998) (quoting Fed.R.Evid. 702); see also Kass v. West
Bend Company, No. 02–CV–3719, 2004 WL 2475606, at *4
(E.D.N.Y. Nov. 4, 2004) (citation omitted) (“As a threshold
matter, the court must examine [the witness'] qualifications
to testify about alternative ... designs.”) Second, “in the form
of an opinion or otherwise,” the court must insure that “(1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” Fed.R.Evid. 702. In other
words, whether an expert witness' “opinion is ultimately
admissible depend on the reliability and relevance of the
proffered testimony.” Kass, 2004 WL 2475606, at *5.
In this regard, the Supreme Court has instructed the by now
oft-cited rule that a district court must act as “a gatekeeper to
exclude invalid and unreliable expert testimony.” Bonton v.
City of New York, No. 03 Civ. 2833, 2004 WL 2453603, at *2
(S.D.N.Y. Nov. 3, 2004) (citation omitted). This gatekeeping
obligation applies whether the proposed expert testimony is
based upon scientific knowledge, “technical,” or some other
“specialized” knowledge. See Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999) (citing
Fed.R.Evid. 702). As with other types of evidence, the
court must also bear in mind that under Rule 403, even
relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, or misleading the jury.” Fed.R.Evid.
403. In Daubert the Supreme Court soundly reasoned that
“[e]xpert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of this risk,
the judge in weighing possible prejudice against probative
force under Rule 403 ... exercises more control over experts
than over lay witnesses.” Daubert, 509 U.S. at 595, 113 S.Ct.
at 2798 (quotation marks and citation omitted) (emphasis
added). Finally, it should be noted that “[t]he proponent
of expert evidence must establish admissibility under Rule
104(a) of the Federal Rules of Evidence by a preponderance
of the proof.” Bonton, 2004 WL 2453603, at *2 (citing
Bourjaily v. United States, 483 U.S. 171, 175–76 (1987)).
This burden is the same regardless of whether the issue is
the “qualification[s] of a person to be a witness, ..., or the
admissibility of the evidence” itself. Fed.R.Evid. 104(a). In
the present case, this requires plaintiff Devito to prove by a
preponderance of the evidence that each of the three witnesses
whom he is proposing to call as an expert qualify as such; and
that the proposed testimony of each is admissible.
*3 “In assessing expert qualifications, ‘[l]iberality and
flexibility in evaluating qualifications should be the rule; the
proposed expert should not be required to satisfy an overly
narrow test of his own qualifications.” ’ Kass, 2004 WL
2475606, at *4 (quoting Lappe v. American Honda Motor
Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y.1994) aff'd 101 F.3d
682 (2d Cir.1996)). “So long as the expert stays within the
‘reasonable confines of his subject area,’ the expert can fairly
be considered to possess the ‘specialized knowledge’ required
by Rule 702.” Id. (quoting Lappe, 857 F.Supp. at 227) (other
citation omitted).
“In Daubert, the Supreme Court articulated four factors
pertinent to determining the reliability of an expert's
reasoning or methodology: (1) whether the theory or
technique relied on has been tested; (2) whether the theory or
technique has been subjected to peer review and publication;
(3) whether there is a known or potential rate of error and
the existence and maintenance of standards controlling the
technique's operation; and (4) whether the theory or method
has been generally accepted by the scientific community.”
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Id. (citing Daubert, 509 U.S. at 593–94, 113 S.Ct. at 2796–
97). “These factors do not, however, constitute a ‘definitive
checklist or test.” ’ Id. (quoting Daubert, 509 U.S. at 593,
113 S.Ct. at 2796). “Rather, they are intended to be applied
flexibly, depending on the particular circumstances of the
particular case at issue.” Id. (citing Kumho Tire, 526 U.S. at
150, 119 S.Ct. at 1175).
In Kumho, the Supreme Court recognized that “when
evaluating the admissibility of non-scientific expert
testimony, the standard under Rule 702 is a liberal and flexible
one, and the factors outlined in Daubert are merely guidelines
in aiding a court's reliability determination.” Houlihan v.
Marriott International, Inc., No. 00 Civ. 7439, 2003 WL
22271206, at *3 (S.D.N.Y. Sept. 30, 2003) (citing Kuhmo, 526
U.S. at 151, 119 S.Ct. at 1175). “For example, in some cases,
reliability concerns may focus on personal knowledge or
experience rather than strict scientific methods.” Id. (citation
omitted). Regardless of which criteria a court applies to assess
the admissibility of expert testimony, “the Supreme Court has
made clear that the district court has a ‘gatekeeping function’
under Rule 702—is charged with ‘the task of ensuring that
an expert's testimony both rests on a reliable foundation and
is relevant to the task at hand.” ’ Amorgianos, 303 F.3d at
265 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786)
(other citation omitted). Finally, it should be noted that “ ‘the
gatekeeping inquiry must be tied to the facts of a particular
case[.]” ’ Id. at 266 (quoting Kumho Tire, 526 U.S. at 150,
119 S.Ct. at 1175).
1. Deborah L. Sweeney
a. Qualified?
Glaxo's motion to preclude the testimony of Ms. Sweeney 2
requires little if any analysis. Glaxo is moving to preclude
her testimony because it does not believe she is qualified to
testify as an expert. Additionally, Glaxo contends that “her
proposed opinion lacks a reliable scientific foundation.” Def.
Preclude Memo. at 26. Plaintiff did not bother to respond
to this aspect of Glaxo's motion. This lack of response
amounts to a concession by plaintiff that the court should
exclude Ms. Sweeney's testimony. Cf. Green v. Doukas, No.
97 CIV.8288CMGAY, 2001 WL 767069, at *8 (S.D.N.Y.
June 22, 2001) (granting motion to preclude expert testimony
because “plaintiff's failure to oppose the motion suggests ... it
has merit[ ]”). Accordingly, the court grants Glaxo's motion
to the extent it is seeking preclusion of Ms. Sweeney's
testimony. See Amaker v. Coombe, No. 96 Civ. 1622, 2003
WL 21222534, at *6 (S.D .N.Y. May 27, 2003) (granting
motion to preclude where plaintiff defaulted); see also
Martinez v. Sanders, No. 02 Civ.5624, 2004 WL 1234041, at
*3 (S.D.N.Y. June 3, 2004) (because plaintiff did not respond
to motion, court granted same on “default” theory) (and cases
cited therein).
2. Kevin W. George, M.D.
*4 Glaxo also seeks to preclude the testimony of Dr. Kevin
George. Dr. George is a psychiatrist who saw Mr. DeVito in
consultation twice—once on November 2, 2001 and again on
December 13, 2001. Glanville Aff., exh. G thereto at 51 and
76.
Glaxo is not challenging Dr. George's qualifications, but
rather the nature of his testimony. Glaxo is seeking to exclude
Dr. George's testimony because he “has expressly disavowed
all of the opinions that plaintiff ascribed to him in plaintiff's
expert disclosure.” Def. Preclude Memo. at 25. Further, even
if Dr. George had not disavowed those opinions, Glaxo argues
that his “proposed testimony [is] inadmissible because it lacks
any reliable scientific foundation.” Id.
Plaintiff's response focuses almost exclusively on Dr.
George's qualifications, which are not in dispute. As to the
opinions which plaintiff attributes to Dr. George, the sum
total of plaintiff's response is that any alleged “shortcomings”
in that testimony go to weight and credibility, and not
to admissibility. Memorandum of Law in Opposition to
Defendant's Motion to Preclude Plaintiff's Experts (“Pl. Opp'n
Preclude”) at 5. The court disagrees. As will be seen, Dr.
George's purported opinion testimony does not have simply
a few “shortcomings.” It has glaring holes in terms of
reliability, not the least of which is Dr. George's unequivocal
deposition testimony disavowing that he made the opinions
which plaintiff claims he did.
In his expert disclosure plaintiff specifically identifies Dr.
George as an “expert” whom he intends to call at the time
of trial. Glanville Aff., exh. E thereto at 1. According to
plaintiff's expert disclosure, Dr. George will testify as follows:
that in his opinion, within a degree of
reasonable medical certainty, ... [1] the
plaintiff is experiencing withdrawal
reactions from the drug Paxil and
that each time the plaintiff attempts
to ‘wean’ himself off of the drug or
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to lower the dosage of the drug, the
plaintiff experiences said withdrawal;
2) ... the plaintiff's withdrawal signs
and symptoms are a result of the
plaintiff ingesting Paxil; and 3) ... the
plaintiff has sustained injury in that
he has been unable to discontinue the
use of Paxil and has been caused to
suffer the signs and symptoms of the
withdrawal syndrome associated with
the use and attempted discontinuance
of Paxil.
Glanville Aff., exh E thereto. Dr. George is confining his
opinions to how Paxil allegedly effected plaintiff DeVito—not
whether Paxil is capable generally of causing the symptoms
of which DeVito complains. Therefore, although the plaintiff
did not specify the purpose for which he is offering Dr.
George's testimony, presumably it is being offered on the
issue of specific causation.
As noted earlier, ordinarily once a court finds a witness
qualified as an expert, the next issue is the admissibility of
that witness' opinion testimony. Here, however, it appears that
each of the opinions which plaintiff attributes to Dr. George
have been expressly disavowed in his deposition. Dr. George
was asked point blank whether he had formed any of the
three opinions quoted above, and whether he was prepared
to testify to same. Each time he answered no. See Glanville
Aff., exh. G thereto at 88–91. Obviously, if Dr. George has
not formed the opinions which plaintiff is ascribing to him,
necessarily he has no foundation, scientific or otherwise, for
same. Accordingly, the court excludes the opinion testimony
outlined above which plaintiff is attributing to Dr. George.
*5 Even if Dr. George had not expressly disavowed the
opinions set forth above, the court still must exclude his
testimony. The crux of each of these opinions is that plaintiff
DeVito has “withdrawal reactions,” or “withdrawal signs and
symptoms” caused when he attempts to discontinue or taper
below a certain dosage of Paxil. Glanville Aff., exh. E thereto.
Dr. George's deposition testimony did not so state such. To be
sure, Dr. George did testify that he used “Paxil withdrawal”
as a “label to capture what [DeVito] was describing that he
had been experiencing.” Id., exh. G thereto at 59 (emphasis
added). When later in his deposition Dr. George was pressed
as to whether or not he diagnosed plaintiff “as suffering from
Paxil withdrawal [,]” he reiterated that he “applied that label
to describe the symptoms that [DeVito] reported in relation to
tapering Paxil.” Id. at 102 (emphasis added).
There is an obvious difference between labeling a symptom
which a patient describes and actually diagnosing that person.
Significantly, Dr. George did not diagnosis plaintiff with Paxil
withdrawal. Perhaps that is because “Paxil withdrawal is
not a formal diagnosis within DMS–IV[.]” Id. at 94. (“The
DSM–IV is the Diagnostic and Statistical Manual, the fourth
revision of it, that psychiatrists generally base their diagnoses
on.” Id.) And, “[t]here is no criteria for diagnosing somebody
with Paxil withdrawal.” Id. at 60. For example, there are no
“objective tests or assessments,” aside from skin inspection
for signs of sweating, “that could have been done to determine
whether those reports [by DeVito] were genuine[.]” Id. at
62. So, Dr. George simply took plaintiff's description of his
symptoms at “face value,” and made no attempt to determine
whether [DeVito's] report of those symptoms was genuine [.]”
Id. at 62 and 79.
In light of the foregoing, even if Dr. George were inclined
to testify that Paxil specifically caused the symptoms which
plaintiff claims it did, there is no foundation for this testimony.
What is particularly revealing in this regard is Dr. George's
candor when asked: “Have you ever made any determination
as to why Mr. DeVito's tapering off of Paxil may be taking
longer than some of your other patients?” ' Id. at 100. Dr.
George replied, “I had no scientific way, ..., of explaining
why he was having such difficulty tapering off Paxil.” Id.
(emphasis added).
Further, plaintiff DeVito saw Dr. George in the latter's
capacity as a treating psychiatrist. Thus, as is plain from Dr.
George's deposition, he was concerned primarily with the
symptoms of which plaintiff complained, not determining the
underlying cause. See Munafo v. Metropolitan Transportation
Authority, Nos. 98 CV–4572, 00–CV–0134, 2003 WL
21799913, at *19 (E.D.N.Y. Jan. 22, 2003). Had Dr. George
been focusing on the underlying cause, undoubtedly he would
have performed a differential diagnosis, which “typically
includes a physical examination, clinical tests, and a thorough
case history.” Zwillinger v. Garfield Slope Housing Corp .,
No. CV 94–4009, 1998 WL 623589, at *19 (E.D.N.Y.
Aug. 17, 1998) (citations omitted). But, Dr. George did not.
Without a differential diagnosis, specific causation cannot be
established. See id. (“To establish specific causation, other
possible causes for the symptoms experienced by plaintiff
should be excluded by performing a ‘differential diagnosis.”
’)
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3. James T. O'Donnell
*6 Glaxo argues that the court must preclude O'Donnell's
testimony for two reasons. First, he is not qualified as an
expert as to the issues upon which he is being asked to opine—
general and specific causation and the adequacy of the Paxil
warnings. Second, even if he does qualify as an expert, Glaxo
contends that the court should preclude his opinions because
they lack the requisite scientific foundation and are otherwise
unreliable. Plaintiff responds that O'Donnell's “experience
and credentials are impressive [,]” whether the issue is his
qualifications to testify as an expert on causation or as an
expert on warnings. Pl. Preclude Memo. at 4. Plaintiff further
responds that regardless of whether O'Donnell is opining
on causation or warnings, any alleged “shortcomings” in
that testimony go to “weight and credibility, and not [to] ...
admissibility.” Id. at 5 (citation omitted).
Plaintiff DeVito is offering O'Donnell's testimony on three
separate issues, which require different areas of expertise. The
court will examine O'Donnell's qualifications as to each.
a. General Causation
Glaxo offers a host of reasons as to why O'Donnell “is not
an ‘expert’ on scientific issues concerning general or specific
causation” with respect to SSRIs or Paxil. Def. Preclude
Memo. at 7 (emphasis added). All of these reasons have merit.
i. Qualified?
This is not the first court to be confronted with the issue
of whether Mr. O'Donnell is qualified to give an expert
opinion here. In Newton v. Roche Laboratories, Inc., 243
F.Supp.2d 672 (W.D.Tex.2002), the court found that he was
not qualified to render an opinion on general causation. Id.
at 679. There, the parents of a 16 year old girl claimed
that Accutane, a prescription acne medication manufactured
by the defendant, caused or precipitated the onset of their
daughter's schizophrenia. In much the same way plaintiff
DeVito is offering O'Donnell's testimony here, the plaintiffs
in Newton offered O'Donnell as an expert “to testify regarding
general causation, i.e., that Accutane is pharmacologically
capable of causing schizophrenia.” Id. at 677. After outlining
a number of ways in which O'Donnell's qualifications were
lacking, the court expressly found that he was not qualified to
render such an opinion.
To support that conclusion, the Newton court relied upon
O'Donnell's deposition testimony, which is substantially
similar to his deposition testimony in this case. For example,
O'Donnell testified in Newton, as he did here, that “he
has never earned an M.D., a Ph.D., or any degree in
pharmacology.” Id. at 677; see also O'Donnell Dep'n at 24–
25 and 53. Yet, he “still holds himself out as a ‘doctor’
and a pharmacologist[.]” Id. As in Newton, “O'Donnell ...
[continues to] grant[ ] himself the title of ‘doctor’ in reliance
upon his Pharm.D degree, [which] he conceded in his
deposition that in the majority of pharmacy schools, th[at] ...
degree is ‘an entry-level degree’ that pharmacists must have
to ... even practice pharmacy.” Id. at 677 n. 2 (citation
omitted); see also O'Donnell Dep'n at 24–25. In contrast,
to obtain a degree in pharmacology usually three or four
years of graduate school is required. O'Donnell Dep'n at 25–
26. O'Donnell did get a graduate degree, but it was not in
pharmacology. O'Donnell's formal education consists of a
four year degree in pharmacy and a Master's Degree in clinical
nutrition. Id. at 27.
*7 In addition to questioning O'Donnell's background
generally, the Newton court pointed out his “lack [of]
appropriate pharmacological training relevant to the issues”
therein, i.e. “Accutane, Vitamin A, schizophrenia, or
psychosis[.]” Id. at 678. The same may be said here. There is
no factual basis upon which this court can find that O'Donnell
is an expert regarding SSRIs generally, not to mention Paxil or
discontinuation of Paxil. Indeed, as his deposition testimony
shows, O'Donnell's asserted expertise on these subjects is
non-existent. See id. at 21, 24; 38–40; and 45.
Given that SSRIs are a fairly recently developed class
of drugs, understandably they were not the subject of
O'Donnell's course work as an undergraduate, or when getting
his Master's Degree in nutrition. Id. at 21 and 24. Since
that time, O'Donnell has done nothing to advance his own
knowledge as to SSRIs generally or Paxil in particular.
When directly asked if he had “done any clinical research
whatsoever relating to antidepressants,” O'Donnell replied
that he had not. Id. at 38. He responded the same way when
asked if he had “done any scientific research concerning
Paxil or SSRI antidepressants[.]” Id. at 39. Moreover,
O'Donnell conceded that the first time he “review[ed] ...
scientific literature in connection with Paxil discontinuation
symptoms[ ]” was for this case. Id. at 40–41.
This is the sort of “litigation-drive expertise” which courts
have eschewed. To illustrate, the court in Mancuso, 967
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F.Supp. at 1443, reasoned that it could not “help but conclude
that [plaintiff's expert] was not in fact an expert ... when he
was hired by the plaintiffs, but that he subsequently attempted,
with dubious success, to qualify himself as such be selective
review of the relevant literature.” This appears to be an apt
description of what Mr. O'Donnell attempted to do in the
present case.
The court stresses that it is no single factor which is
dispositive of whether O'Donnell qualifies as an expert on the
issue of general causation. Rather, it is the cumulative effect
of the foregoing which convinces the court that O'Donnell
lacks the lack of relevant “knowledge, skill, experience,
training or education” to testify as an expert on the issue of
general causation vis-a-vis the discontinuation of Paxil. As
he admitted, O'Donnell is not a pharmacologist. Therefore,
he cannot, as he does in his “expert report,” opine to
a “reasonable pharmacological certainty,” that plaintiff is
experiencing “withdrawal toxicity reactions from Paxil[.]”
O'Donnell Rep. Clearly, allowing a pharmacist/nutritionist
such as O'Donnell to testify in that way would run afoul of the
rule that an expert must stay “within the reasonable confines
of his subject area[.]” ' Kass, 2004 WL 2475606, at *2475606,
at *4 (internal quotation marks and citations omitted). Simply
put, the court agrees with the court's comment in Newton
that “[p]laintiff's attempts to present O'Donnell as an expert
pharmacologist [is] ... an extremely bold stretch.” Newton,
243 F.Supp.2d at 279. 3
ii. Reliability of Testimony?
*8 O'Donnell's lack of education, training and background
as to Paxil becomes even more apparent when viewed in terms
of the opinions which he has rendered in this case. That is so
because a “court's evaluation of qualifications is not always
entirely distinct from the court's evaluation of reliability.”
Pearson v. Young, No. CIV–99–1559–F, 2002 WL 32026157,
at *3 (W.D.Okla. Jan. 17, 2002).
O'Donnell's opinion as to causation is that “DeVito is
experiencing withdrawal toxicity reactions from Paxil, and
indeed, each time he attempts to wean or lower the dosage,
he again experiences such infinity [sic].” Glanville Aff., exh.
E thereto. O'Donnell states that when plaintiff's dosage of
Paxil is lowered, he suffers from the following “withdrawal
signs and symptoms [:] anxiety, jitery [sic], agitation, nausea,
drowsiness, generalized discomfort and vertigo[.]” O'Donnell
Report at 2. “For this opinion to be admissible, O'Donnell
must have a reliable scientific basis to support not only
(1) a casual relationship between” Paxil and the enumerated
side-effects, “but also (2) his assertion that [Paxil] will
produce these side-effects.” See Newton, 243 F.Supp.2d at
679 (emphasis added). O'Donnell's report and deposition
testimony are void of a scientific basis to support either of
those assertions.
In terms of publications, O'Donnell testified that he was the
editor of a non-peer reviewed book entitled “Drug Injury
Liability, Analysis and Prevention.” Id. at 98–99. That book
contained a mere six sentences on SSRIs, including the two
sentences on Paxil. Id. at 99. Given that minimal reference
to SSRIs, it is not surprising that that book contains nothing
about discontinuation symptoms. See id. It further appears
that he has performed absolutely no research regarding Paxil,
much less its discontinuation. Id. at 38–39. What is more,
O'Donnell has done no scientific or clinical research of any
kind for almost two decades. The last time he did any such
research was in he “early '80s as part of a pharmacology lab
sabbatical,” where he was looking at vitamins and critical care
drugs used in Intensive Care Units. Id. at 36.
In light of the foregoing, to allow plaintiff to rely upon Mr.
O'Donnell's opinions as to general causation clearly would
violate Daubert' s “requirement that the expert testify to
scientific knowledge—conclusions support by good grounds
for each step in the analysis[.]” ' Amorgianos, 303 F.3d at 267
(citations and quotation marks omitted).
b. Specific Causation
It stands to reason that if Mr. O'Donnell lacks (which he
does) the qualifications to testify as to general causation, he
lacks the qualifications to testify as to specific causation.
His opinion as to specific causation suffers from the
same infirmities, detailed above, as to general causation.
Accordingly, the court finds that Mr. O'Donnell does not have
the requisite qualifications to testify as to specific causation;
and even if he did, his opinions in that regard are unreliable.
c. Warnings
*9 Glaxo contends that because O'Donnell “lacks any
pertinent qualifications[,]” Def. Memo. at 14, he should not
be allowed to testify that in his opinion the “lack of ...
a precaution and warning about withdrawal risk and the
need to taper [when discontinuing Paxil] renders the product
defective due to an inadequate warning. See O'Donnell Report
at 3. Plaintiff did not directly respond to this argument.
Included in the list of highlighted credentials in plaintiff's
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memorandum of law is that Mr. O'Donnell “is currently
involved in the teaching of New Drug Development and
Regulations [.]” Pl. Opp'n Memo. at 2. However, plaintiff
does not explain, or cite to any portion of O'Donnell's
deposition explaining, how or why this position qualifies him
to testify as an expert on warnings.
As with the other issues upon which plaintiff intends to offer
O'Donnell's testimony, plaintiff baldly retorts that O'Donnell's
“extensive experience qualifies as specialized knowledge
gained through experience, training, or education[.]” Pl.
Memo. at 4 (internal quotation marks and citations omitted).
And, once again, he relies upon the argument that
Glaxo's reasons to preclude O'Donnell's testimony regarding
warnings should be saved for trial, i.e. they should be used to
attack O'Donnell's credibility and the weight which the jury
might give to his opinions regarding Paxil warnings.
i. Qualified?
O'Donnell “claim[s] to be an expert in drug labeling[.]”
O'Donnell Dep'n at 90. Presumably he is including drug
warnings within the province of this supposed expertise. In
any event, to qualify as an expert it is not enough for a
witness to simply declare that he is one. Federal Rule of
Evidence 702 requires more. As plaintiff acknowledged, a
witness must satisfy the court that he has a certain amount
of “knowledge, skill, experience, training or education [ ]”
in the relevant field before he can be deemed an expert. See
Nora Beverages, 164 F.3d at 746 (internal quotation marks
and citation omitted). Close examination of O'Donnell's
deposition testimony reveals that he is lacking in each of
those areas when it comes to the subject of the adequacy of
prescription drug warnings.
O'Donnell's claimed expertise admittedly is “through
experience,” not through formal education. O'Donnell
Deposition at 90–92. His experience consists primarily of
having attended continuing education (“CE”) programs,
where drug labeling was a topic. Id. Those CE programs
were to satisfy his pharmaceutical and nutritionist CE
requirements, however; and he was unable to elaborate on the
substance of same. See id. Furthermore, O'Donnell has not
consulted with any pharmaceutical company “concerning the
labeling for any antidepressant[.]” Id. at 96. O'Donnell agrees
“that the FDA [Food and Drug Administration] is the highest
authority on how drugs are labeled in this country[,]” but he
has also never consulted with them “concerning the labeling
for any antidepressant. Id. For that matter, O'Donnell has not
worked for or consulted with the FDA in any capacity. See
Glanville Aff. at 9, ¶ 39. Thus, O'Donnell's experience in this
area is extremely limited.
*10 Moreover, O'Donnell made two especially damaging
concessions which seriously undermine the suggestion that he
is an expert as to the adequacy of prescription drug warnings.
O'Donnell readily agreed “that in assessing the adequacy of a
label for a prescription drug, the expert rendering the opinion
generally should be familiar with the clinical trials data on
the drug as it relates to the side effect concerning which he
is opining[.]” Id. at 192. Yet, O'Donnell frankly admitted that
he had not reviewed any of the Paxil clinical trials data. See
id. Similarly, O'Donnell conceded that “generally to reach a
conclusion regarding the adequacy of a label for a prescription
drug, the expert rendering the opinion should be familiar
with at least a majority of the available medical literature
on the drug as it relates to the side effect on which he is
opining[.]” Id. at 193. Despite the foregoing, O'Donnell went
on to testify that he has “not read the specific literature [ ]”
relating to discontinuation symptoms of Paxil. Id. 193 and
45. In fact, he has only read “abstracts” of articles. Id. at
46–47. Finally, Mr. O'Donnell has not lectured on, or written
anything (peer reviewed or not) about, “Paxil discontinuation
symptoms apart from [his] export [sic] report in this case[.]”
Id. at 45. As the foregoing clearly shows, Mr. O'Donnell does
not “employ[ ] in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant
field[,]” which here is the adequacy of prescription drug
warnings and Paxil in particular. See Kumho Tire, 526 U .S.
at 152, 119 S.Ct. at 1176.
Mr. O'Donnell may qualify as an expert in the fields of
pharmacy or nutrition, but that is not the purpose for which
his testimony is being offered here. Instead, his testimony is
being offered on the adequacy of Paxil warnings. O'Donnell
has never been drafter or been asked to draft a warning for any
antidepressant, let alone for Paxil. Likewise, he has not done
any research or written any publications on prescription drug
warnings. Thus, whether judged in terms of his education or
experience, does not rise to the level of “expertise ... that
the jury would expect from a bona fide warnings expert.”
See Robertson v. Norton, 148 F.3d 905, 907 (8 th Cir.1998)
(internal quotation marks omitted).
In sum, O'Donnell is being called upon to testify regarding
the adequacy of the Paxil warning, an issue which clearly
is outside the “reasonable confine [s] of his subject area[s,]”
which are pharmacy and nutrition. See Kass, 2004 WL
2475606, at *4 (internal quotation marks and citations
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omitted). Therefore, because O'Donnell does not “possess
the specialized knowledge required by Rule 702[,]” the court
finds that he is not qualified as an expert on the issue of the
adequacy of the Paxil warning. See id.
ii. Reliability of Testimony?
*11 Given the nature of the claims which plaintiff is
alleging in this case, plainly there is a close relationship
between excluding the causation opinion and excluding the
warning opinions which are being offered by O'Donnell.
Miller v. Pfizer, Inc., 196 F.Supp.2d 1062 (D.Kan.2002),
aff'd on other grounds, 356 F.3d 1326 (10 th Cir.2004),
cert. denied, 125 S.Ct. 40 (Oct. 4, 2004), provides a good
example of how a decision to preclude causation “expert”
testimony impacts upon a decision to also preclude warning
testimony. The plaintiff parents in Miller were suing the
manufacturer of Zoloft, another SSRI, alleging that it caused
their son to commit suicide. Similar to the present case,
the plaintiffs in Miller asserted state law claims for strict
liability for marketing defects and misrepresentations, and
negligence for failure to test and warn. The court held that
an “eminent” psychiatrist and neuropsychopharmocologist's
proposed testimony regarding general causation, i.e. that
Zoloft causes suicide, did not satisfy the Daubert criteria
for admissibility because, in short, “he lack[ed] sufficient
expertise on the issue of suicide.” Id. at 1087 and 1088.
The Miller court, as is this court, was then confronted with
the issue of whether that same doctor could qualify as an
expert who would opine “that Zoloft labels do not adequately
warn against the danger of SSRI-induced suicide.” Id. at
1088. After finding that the doctor was not an expert on
that issue, the court soundly reasoned, “[i]f the jury will
hear no evidence that [Paxil] causes [withdrawal symptoms/
addictive], it cannot possibly conclude that [Paxil] labels
do not adequately warn against the danger that [Paxil]
causes [such condition.]” Id. at 1089. That reasoning applies
with equal force here. Even if O'Donnell qualifies as a
prescription drug warning expert, because neither O'Donnell
nor Dr. George (plaintiff's only proof as to causation) qualify
to testify about causation, the former's warning testimony
“would essentially be irrelevant to any larger issues in the
case.” See id. Accordingly, there is no need to analyze
whether O'Donnell's opinions as to warnings pass muster
under Daubert.
In short, plaintiff DeVito has not sustained his burden
of proving by a preponderance of the evidence that Mr.
O'Donnell is qualified to render an opinion as to general
causation, specific causation, or the adequacy of Paxil
warnings. Even if O'Donnell could somehow be deemed to
have the requisite “specialized knowledge” to testify as to any
or all of those issues, “courts do not have to credit opinion
evidence connected to data ‘only by the ipse dixit of the
expert.” ’ Prohaska, 138 F.Supp.2d at 438 (quoting General
Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. (1997)). That is
all O'Donnell has to rely upon; simply because he offers an
opinion which he claims to be valid, plaintiff assumes it is so.
This court will not, however.
*12 For the reasons set forth above, the court grants in
its entirety Glaxo's motion to preclude the testimony of Mr.
O'Donnell; Dr. George; and Ms. Sweeney.
II. Summary Judgment Motion
The court assumes familiarity with the Supreme Court's
trilogy of cases clarifying the governing legal standards on
summary judgment motions, and sees no need to repeat those
standards herein. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317
(1986); and Matsushita Elec. Industr. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986)
It is an understatement to say that the wholesale exclusion
of the testimony of O'Donnell, George and Sweeney
significantly impacts plaintiff DeVito's case. As discussed
at the outset causation is a necessary element of each
of the five causes of action which plaintiff is alleging
herein. Because plaintiff's only causation evidence has been
excluded, it necessarily follows that Glaxo is entitled to
summary judgment in its favor. See Kass, 2004 WL 2475606
(after granting motion to exclude testimony of plaintiff's
claimed expert regarding the feasibility of alternative designs,
court granted defense summary judgment motion because
plaintiff could not satisfy the critical element of a design
defect cause of action); and Zwillinger, 1998 WL 623589
(where plaintiff claimed that her exposure to defendants'
carpeting causes her to develop immunotoxicity syndrome,
court granted summary judgment in defendants' favor after
excluding the of doctor's testimony, which was plaintiff's only
causation evidence).
To conclude, the court hereby GRANTS the motion by
Smithkline Beecham Corporation d/b/a Glaxo Smithkline,
to preclude the testimony of James O'Donnell; Dr. Kevin
George; and Ms. Deborah Sweeney. The court further
GRANTS the motion by Smithkline Beecham Corporation
d/b/a Glaxo Smithkline for summary judgment pursuant to
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Fed.R.Civ.P. 56 dismissing all of plaintiff Michael DeVito's
claims as against it.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2004 WL 3691343
Footnotes
1 The present action, which has been referred to as a “tag-along action,” is one of a number throughout
the country wherein plaintiffs are alleging that Glaxo knew of the hazardous side effects of Paxil and
either concealed, misrepresented or failed to warn of them. See In re Paxil Products Liability Litigation,
296 F.Supp.2d 1374 (Judicial Panel on Multidistrict Litigation 2003). In mid-February 2004, this court was
advised that the Judicial Panel on Multidistrict Litigation (“the Panel) had conditionally transferred this action
to the United States District Court fo the Central District of California for coordinated or consolidated pretrial
proceedings pursuant to 28 U.S.C. § 1407.” Glaxo moved to vacate that conditional transfer as it pertained
to the present case. When plaintiff did not respond, on June 15, 2004, the Panel vacated that conditional
transfer as it relates to Mr. DeVito.
2 During her deposition Ms. Sweeney unequivocally testified, “I'm not a physician. I'm not a nurse practitioner.”
Glanville Aff ., exh H thereto at 123. She holds an associates' degree in nursing, a bachelor of science degree
in health and human services, and a nurse practitioner's degree.” Id. at 12, 17, 35–36. Thus, to refer to Ms.
Sweeney as “Doctor Sweeney, as plaintiff does throughout his expert disclosure, is not only a misstatement
but directly contradicts Sweeney's own testimony. Plaintiff's tendency to exaggerate or overstate certain
things, as will be seen, is not limited to the qualifications of his experts.
3 O'Donnell's insistence on holding himself out as a pharmacologist, see O'Donnell Dep'n at 54, ignores at
least one fundamental distinction between pharmacology and pharmacy—a distinction which is critical here.
“Pharmacology can be fairly described as the study of the effect of drugs on living organisms. Pharmacy,
on the other hand, is the profession of preparing and dispensing drugs.” Newton, 243 F.Supp.2d at 677, n.
1. It is self-evident that there is a vast difference in the education, experience and skill necessary to obtain
degrees in these two different fields.
Apparently O'Donnell recognizes this distinction because in Newton he “admitted ... that from approximately
1982 to 1985, he intentionally and falsely advertised that he possessed a doctorate in pharmacology in an
attempt to attract more interest from lawyers for his consulting expert business.” Id. at 677, n .3 (citation
omitted). He made that same admission in this deposition herein. O'Donnell Dep'n at 28–31. O'Donnell did
change this advertisement because, in his words, it was “incorrect.” Id. at 29. This court cannot overlook what
at best appears to be a serious lapse in judgment, however.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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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
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the overpayment; (3) the SSA's past attempts to recover this
overpayment had not been successful; (4) there are actions
that the SSA can take to recover the money, including wage
garnishment; (5) Plaintiff could prevent the wage garnishment
by taking certain steps within sixty days of the letter, including
repaying the debt, agreeing to a definite repayment plan and
repaying the debt according to that plan, asking the SSA to
review the finding that she owed the amount stated and that
the SSA had the right to collect it, asking the SSA to waive
collection of the overpayment, or asking the SSA to review
its plan to collect up to fifteen percent of her disposable pay.
(Id.) In addition, the letter informed Plaintiff of how she could
repay the SSA. (Id.)
*2 Plaintiff returned this letter to the SSA, stating that the
overpayment was not her fault. (Id.) Plaintiff indicated that
she could not afford the amount owed, and that the money
that she received was used for the payee's burial. (Id.) In
March, 2008, Plaintiff spoke with a supervisor of the SSA
by telephone and negotiated a repayment plan agreement for
installments of twenty dollars ($20). (Id.) On April 29, 2008,
the SSA sent Plaintiff a billing statement indicating her debt of
five hundred seventy-one dollars ($571), and that a minimum
payment of twenty dollars ($20) must reach the SSA by May
15, 2008. (Id.) On May 6, 2008, documentation issued in
connection with the administrative garnishment of Plaintiff's
wages was returned to the SSA from Plaintiff's employer,
stating that Plaintiff was no longer employed there. (Id.)
On April 17, 2009, the SSA issued an order to Plaintiff's
employer to garnish her wages. (Id.) Plaintiff's employer
completed this order and returned it to the SSA. (Id.) On May
21, 2009, Plaintiff contacted the SSA to complain about the
garnishment. (Id.) Shortly thereafter, Plaintiff filed this action
with the Small Claims Court, and the Complaint was mailed
to the SSA on May 27, 2009.
II. APPLICABLE LEGAL STANDARDS
A. Standard Governing Motions to Dismiss for Lack
of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)
(citing Fed.R.Civ.P. 12[b][1] ). With regard to a challenge
to a determination by the Social Security Administration,
“[a]ny individual may seek judicial review under 42 U.S.C.
§ 405(g) ‘after any final decision of the Commissioner of
Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy.” Diagnostic
Cardioline Monitoring of New York, Inc. v. Leavitt, 171 F.
App'x. 374, 375 (2d Cir. March 17, 2006) (citing 42 U.S.C.
§ 405[g] ). “This final-decision-after-a-hearing requirement
is critical to the federal court's grant of subject matter
jurisdiction over these claims.” Leavitt, 171 F. App'x. at 375
(citing Weinberger v. Salfi, 422 U.S. 749, 763–64 [1975] ).
“In the absence of a final decision after a hearing, the federal
court lacks subject matter jurisdiction to entertain the claim,
and it must be dismissed.” Id. (citation omitted).
B. Standard Governing Unopposed Motions
“Where a properly filed motion is unopposed and the Court
determines that the moving party has met its burden to
demonstrate entitlement to the relief requested therein, the
non-moving party's failure to file or serve any papers as
required by this Rule shall be deemed as consent to the
granting or denial of the motion, as the case may be, unless
good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3). Defendant's
motion to dismiss was properly filed, and Plaintiff has failed
to oppose them. Therefore, the Court must determine whether
Defendant has met her burden to “demonstrate entitlement to
the relief requested” under Local Rule 7.1(b)(3). 1 An inquiry
into whether a movant has met its “burden to demonstrate
entitlement” to dismissal under Local Rule 7.1(b)(3) is a
more limited endeavor than a review of a contested motion.
Specifically, under such an analysis, the movant's burden
has appropriately been characterized as “modest.” 2 This is
because, as a practical matter, the burden requires only that the
movant present an argument that is “facially meritorious.” 3
III. ANALYSIS
*3 After carefully considering the file in this action,
including Defendant's motion to dismiss and Plaintiff's
Complaint, the Court finds that Defendant has met
his lightened burden on his unopposed motion: he has
demonstrated entitlement to the relief requested by presenting
an argument that is facially meritorious. Even if the Court
were to subject Defendant's motion to the more rigorous
scrutiny appropriate for contested motions, the Court would
find that Defendant has met his burden: Plaintiff failed to
exhaust her administrative remedies prior to commencing
this action. 4 As a result, the Court lacks subject matter
jurisdiction over Plaintiff's claims, and her Complaint is
dismissed.
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ACCORDINGLY, it is
ORDERED that Plaintiff's Complaint is DISMISSED. The
clerk is directed to enter judgment and close the case.
All Citations
Not Reported in F.Supp.2d, 2009 WL 2473509
Footnotes
1 See also Fed.R.Civ.P. 7(b)(1) (requiring motions to, inter alia, “state with particularity the grounds therefor”).
2 See, e.g., Ciaprazi v. Goord, 02–CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe, J.;
Peebles, M.J.) (characterizing defendants' threshold burden on a motion for summary judgment as “modest”)
[citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord,
Saunders v. Ricks, 03–CV–0598, 2006 WL 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, J., adopting
Report–Recommendation of Lowe, M.J.), Smith v. Woods, 03–CV–0480, 2006 WL 1133247, at *17 & n.
109 (N.D.N.Y. Apr.24, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.); see also Race
Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109–1110 (N.D.N.Y.2003) (Munson, J.) (reviewing
merely whether record contradicted defendant's arguments, and whether record supported plaintiff's claims,
in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96–CV–1269, 1997
U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3],
but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons
set forth in defendants' motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N .D.N.Y. Oct. 14,
1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95–CV–989, 1996 U.S. Dist. LEXIS 15072, at
*3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.).
3 See, e.g., Hernandez v. Nash, 00–CV–1564, 2003 U.S. Dist. LEXIS 16258, at *7–8, 2003 WL
22143709(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before a motion to dismiss may be granted under Local
Rule 7.1[b] [3], “the court must review the motion to determine whether it is facially meritorious” ) [emphasis
added; citations omitted]; accord, Topliff v. Wal–Mart Stores East LP, 04–CV–0297, 2007 U.S. Dist. LEXIS
20533, at *28 & n. 43, 2007 WL 911891 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 05–
CV–0380, 2007 U.S. Dist. LEXIS 24356, at *5–6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v.
Kooi, 04–CV–1311, 2007 U.S. Dist. LEXIS 26583, at *28–29 & n. 40, 2007 WL 951447 (N.D.N.Y. Feb. 12,
2007) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele
v. Pelkey, 03–CV–0170, 2006 U.S. Dist. LEXIS 95065, at *5 & n. 2, 2006 WL 3940592 (N.D.N.Y. Dec. 19,
2006) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, J.).
4 As noted by Defendant in his motion to dismiss, because Plaintiff failed to follow the required SSA regulations
before bringing this action, there is no final decision for the Court to review under 42 U.S.C. § 405(g).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-00153-DNH-ML Document 53 Filed 05/05/26 Page 53 of 170

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.
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1998). “[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir. 1994). Furthermore, where a party is
proceeding pro se, the court must “read [his or her] supporting
papers liberally, and ... interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994); see also Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995). Nonetheless, summary judgment is
appropriate “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
III. DISCUSSION
Defendant seeks summary judgment on the ground that
Plaintiff failed to exhaust his available administrative
remedies by failing to appeal the facility-level denial of
his grievance. Dkt. No. 14-1, Def.'s Mem. of Law at pp.
6-7. Plaintiff counters that he attempted to exhaust his
administrative remedies and that, even if he did not, he should
be excused from the exhaustion requirement. Pl.'s Opp. at pp.
4-5.
A. Exhaustion Procedure
The Prison Litigation Reform Act (“PLRA”) provides, in
pertinent part, that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). The Supreme Court has held that “the PLRA's
exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002) (citation omitted). Exhaustion in prisoner cases
covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (stating that the mandatory
language of § 1997e(a) forecloses judicial discretion to craft
exceptions to the requirement). Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of
the administrative process and complying with “deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93 (2006). The defendant bears the burden of proving that
the administrative remedies available to the plaintiff were not
exhausted prior to the initiation of a civil action. Howard v.
Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).
In New York, the administrative remedies consist of a three-
step Inmate Grievance Program (“IGP”). First, a grievance
is submitted to the Inmate Grievance Resolution Committee
(“IGRC”), a committee comprised of both inmates and
facility employees. N.Y. COMP. CODES R. & REGS.
tit. 7, § 701.5(b). An inmate must submit a grievance
“within 21 calendar days of the alleged occurrence.” Id.
at § 701.5(a). An inmate may request an extension of
the time limit within forty-five days of the date of the
alleged occurrence. Id. at § 701.6(g). The IGRC reviews and
investigates the formal complaint and then issues a written
determination. Id. at § 701.5(b). Second, upon appeal of the
IGRC decision, the superintendent of the facility reviews the
IGRC's determination and issues a decision. Id. at § 701.5(c).
Finally, upon appeal of the superintendent's decision, the
Central Office Review Committee (“CORC”) makes the final
administrative determination. Id. at § 701.5(d). Only upon
exhaustion of all three levels of review may a prisoner seek
relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp.
2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v.
Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d
116, 121 (2d Cir. 2001), overruled on other grounds by Porter
v. Nussle, 534 U.S. 516.
*3 An expedited procedure exists for grievances regarding
alleged harassment; this procedure also requires the grievant
receive a response from CORC in order to exhaust. 7
N.Y.C.R.R. § 701.8. Pursuant to this expedited procedure,
the inmate may first report the incident to the employee's
immediate supervisor. Id. at § 701.8(a). The inmate's
allegations are then given a grievance number and the
superintendent (or his designee) must promptly decide
whether the grievance, if true, would represent a bona fide
case of harassment. Id. at §§ 701.8(b) & (c).
B. Plaintiff's Failure to Exhaust
Administrative Remedies
1. Whether Plaintiff Actually Filed a Grievance
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The record before the Court establishes that while DOCCS
has a record of Plaintiff's initial grievance, there is no record
of any appeal of the decision on that grievance to CORC.
Gregory Decl. at ¶ 15; Seguin Decl., ¶ 9 & Ex. A. “Included
within the IGP's exhaustion requirement is the prerequisite
that the inmate file an appeal with CORC and receive a
response from CORC prior to filing a federal lawsuit.” White
v. Drake, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011),
report and recommendation adopted, 2011 WL 4478921
(N.D.N.Y. Sept. 26, 2011); see also Berkley v. Ware, 2018
WL 3736791, at *5 (N.D.N.Y. July 6, 2018), report and
recommendation adopted, 2018 WL 3730173 (N.D.N.Y. Aug.
6, 2018) (citing cases).
Plaintiff makes a purely conclusory allegation that he
appealed the grievance denial to CORC. Pl.'s Opp. at p. 4
(“Plaintiff appealed to the CORC”). 1 Significantly, Plaintiff
has not provided a copy of the grievance appeal or even
asserted on what date he filed the appeal. Gough v. Morris,
2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018), report
and recommendation adopted, 2019 WL 416150 (N.D.N.Y.
Feb. 1, 2019) (“there is no evidence in Plaintiff's opposition,
or any other submission, of ... Plaintiff's alleged appeal to
CORC.”). In light of the documented proof that no such
appeal was filed, such a conclusory statement is insufficient
to create a material question of fact on this Motion. Toliver v.
Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016);
Richardson v. Eberth, 2016 WL 1271078, at *4 (W.D.N.Y.
Mar. 29, 2016).
Under these circumstances, the record before the Court
establishes that Plaintiff did not fully appeal his grievance
regarding the alleged assault by Gadway. He, therefore, did
not exhaust his administrative remedies.
2. Whether Plaintiff's Failure to Exhaust
Administrative Remedies May be Excused
A prisoner's failure to exhaust administrative remedies may
nonetheless be excused if remedies were unavailable to
the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the
Supreme Court stated in Ross, “[a]n inmate ... must exhaust
available remedies, but need not exhaust unavailable ones.”
Id. The Court provided three potential circumstances in which
administrative remedies may be unavailable: (1) where the
administrative procedure technically exists but operates as a
“dead end – with officers unable or consistently unwilling
to provide any relief to aggrieved inmates”; (2) where
the administrative scheme is “so opaque that it becomes,
practically speaking, incapable of use”; and (3) where prison
administrators “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60.
*4 Plaintiff appears to make two arguments for finding that
administrative remedies were unavailable to him: the lack of
guidance in DOCCS' grievance procedure and alleged threats
made against him. Pl.'s Opp. at p. 5. Neither is sufficient to
defeat the pending Motion.
Plaintiff first claims that when he became aware that the
appeal he claims to have filed was never received by CORC
he looked to DOCCS's grievance procedure “for guidance on
what to do ... and found no guidance whatsoever on what the
next step would be.” Pl.'s Opp. at p. 5. Relying on Williams v.
Priatno, 829 F.3d 118 (2d Cir. 2016), he contends he should
be excused from the exhaustion requirement. See Pl.'s Opp.
at p. 3.
At the outset, this case presents a readily distinguishable fact
pattern from that which the Second Circuit was confronted
with in Williams. In that case, the District Court had dismissed
the complaint based on lack of exhaustion because Plaintiff
had not administratively appealed his grievance, even though
the grievance had never been officially filed by DOCCS
personnel at the correctional facility. Williams v. Priatno,
829 F.3d at 121. The Second Circuit reversed, finding that
DOCCS' grievance procedures “do not describe a mechanism
for appealing a grievance that was never filed.” Id. at 126.
On the contrary here, there is no dispute that Plaintiff filed
a grievance at the facility and that he received a response.
Gregory Decl., Exs. B & C. It is also clear that DOCCS
regulations specifically address what should have been done
in a situation such as this when an appeal has allegedly
been filed, but not responded to. Specifically, the applicable
regulation provides that “[i]f a grievant does not receive a
copy of the written notice of receipt within 45 days of filing
an appeal, the grievant should contact the IGP supervisor in
writing to confirm that the appeal was filed and transmitted
to CORC.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). This provision
provided specific guidance to Plaintiff on how to proceed
- when he did not receive notice that his appeal had been
received by CORC he should have contacted the facility
inmate grievance staff to verify that his appeal had been
received and processed. There is no evidence that Plaintiff did
so here and his failure cannot provide the basis for excusing
him from the exhaustion requirement. This is not a situation,
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2019)
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as in Williams, where the procedure was “so opaque and
confusing” that the Plaintiff could have not understood how
to proceed. Williams v. Prianto, 829 F.3d at 126.
Finding Plaintiff's claims unexhausted is consistent with the
decision in Gizewski v. New York State Dep't of Corr. and
Cmty. Supervision which found that an inmate's claim is not
exhausted if he fails to avail himself of the procedure in
section 701.5(d)(3)(i). 2016 WL 3661434, at *13 (N.D.N.Y.
July 5, 2016). In Gizewski, the record established that the
plaintiff had filed an administrative appeal, but DOCCS
personnel had failed to timely forward it to CORC. Id. at
*3. Plaintiff then filed his federal lawsuit before receiving
a decision on the appeal from CORC. Id. at *13. The
Court acknowledged DOCCS' failure to properly process the
appeal, but nonetheless granted judgment to defendants in
part because “Plaintiff [wa]s also at fault for not taking any
further action” pursuant to section 701.5. Id. Plaintiff here
has a less compelling case than in Gizewski since there is no
admissible evidence that he ever, in fact, filed an appeal to
CORC.
*5 Plaintiff also claims that he was threatened and retaliated
against by Defendant. Pl.'s Opp. at p. 5. Under Ross,
threats or other intimidation by prison employees may render
administrative remedies unavailable. Ross v. Blake, 136 S.
Ct. at 1860, n.3. Plaintiff's allegations are entirely conclusory,
however. Plaintiff's Complaint claimed he was threatened
only after filing the grievance, Compl. at p. 1, and he makes
no claim that this alleged threat impacted his ability to appeal
the grievance. McGinnis v. Crissell, 2019 WL 4395410, at
*6 (N.D.N.Y. Apr. 26, 2019), report and recommendation
adopted, 2019 WL 3228867 (N.D.N.Y. July 18, 2019) (citing
cases). There is no specific allegation made by Plaintiff
at all that any retaliatory action was ever taken against
him as a result of filing the grievance. Such “general and
conclusory statements that he was threatened are insufficient
to raise a triable issue of fact as to the unavailability of
the grievance procedure because of intimidation by prison
administrators.” Lewis v. Wasielewski, 2018 WL 4732755, at
*6 (W.D.N.Y. July 10, 2018), report and recommendation
adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018) (citing
cases). Plaintiff's conclusory claims, therefore, are no basis
for denying summary judgment.
To the extent Plaintiff attempts to argue that his grievance
appeal may have been tampered with, Pl.'s Opp. at p. 5 (“Once
[inmate mail] is picked up plaintiff no longer has any control
over what happens to that piece of mail.”), his conclusory
allegation in this regard is not sufficient to defeat summary
judgment. “Courts have consistently held [ ] that an inmate's
general claim that his grievance was lost or destroyed does
not excuse the exhaustion requirement.” Rosado v. Fessetto,
2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010); see also
Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y.
May 9, 2017) (“Courts in this Circuit have continuously
held that mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.”);
Artis v. Dishaw, 2016 WL 11266599, n.13 (N.D.N.Y. Sept.
12, 2016) (finding that plaintiff's failure to exhaust was not
excusable, in part because, while the plaintiff “state[d] that
some grievances were destroyed, but he has not submitted
any copies of these grievances, nor does he specify when he
attempted to file them.”).
Accordingly, the Court finds that Plaintiff has not established
an issue of material fact as to the availability of administrative
remedies. The Court therefore recommends that Defendants'
Motion be granted based upon Plaintiff's failure to exhaust.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendant's Motion for Summary
Judgment (Dkt. No. 14) be GRANTED; and it is further
RECOMMENDED, that the Complaint be DISMISSED;
and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2019)
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All Citations
Not Reported in Fed. Supp., 2019 WL 5191506
Footnotes
1 Plaintiff did not submit a sworn statement attesting to the fact that he filed an appeal. Nor did he file a response
to Defendant's Statement of Material Facts. Although a pro se litigant is entitled to a liberal construction of
his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve
him of his obligation to comply with the relevant procedural rules, see Marino v. Watts, 2018 WL 3121612,
at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL
1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed. Appx. 73 (2d Cir. 2019). The Court therefore will deem
the facts as set forth in Defendant's Statement of Material Facts admitted, to the extent they are properly
supported by the record.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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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
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2020)
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judgment). In such a circumstance, the district court must
make a credibility determination because the very act of
considering the portion of evidence that would create a
genuine dispute of material fact would constitute a rejection
of the contradictory evidence as not credible. Here, the
facts are analogous to the extreme facts present in Jeffreys.
Plaintiff has adduced evidence that purports to show both
(1) that immediately after the superintendent's denial of his
grievance on July 16, 2016, Plaintiff filed an appeal with
CORC (Dkt. No. 22, at 3, 22), and (2) “over two months”
before July 16, 2016, Plaintiff filed his appeal with CORC,
then (approximately a month later) sent a letter complaining
about its non-response to his appeal, and then (on July 16,
2016) sent a second such letter (Dkt. No. 22, at 25). It is
undisputed that Plaintiff filed his grievance on June 13, 2016.
(Dkt. No. 14, Attach. 2, at ¶ 17.) It is also undisputed that the
superintendent denied that grievance on July 16, 2016. (Id.
at ¶ 19.) It is simply impossible that Plaintiff appealed that
denial two months before July 16, 2016 (or on or about May
16, 2016).
For each of these three alternative reasons, the Court rejects
Plaintiff's Objection and accepts and adopts Magistrate Judge
Stewart's Report-Recommendation.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart's Report-
Recommendation (Dkt. No. 19) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 14) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1227156
Footnotes
1 Under the applicable rules, the time period for the filing of an Objection is fourteen (14) calendar days from
the date of filing of the Report-Recommendation (unless the fourteenth day is a Saturday, Sunday, or legal
holiday, in which case the period continues to run until then end of the next day that is not a Saturday, Sunday,
or legal holiday), plus three (3) calendar days if the Report-Recommendation was served on the objecting
party by mail. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a)
(1)(C); Fed. R. Civ. P. 6(d).
2 “When no timely objection [to a recommendation] is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition. When performing such a “clear error” review, the court is permitted to
adopt the sections reviewed “so long as those sections are not facially erroneous.” See Batista v. Walker, 94-
CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those
sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections
are not facially erroneous.”).
3 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's
report before the district court, a party has no right to present further testimony when it offers no justification
for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations
omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding
that district court did not abuse its discretion in denying plaintiff's request to present additional testimony
where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”);
cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings
would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2020)
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the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’
does not indicate that a secondary evidentiary hearing is required.”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-00153-DNH-ML Document 53 Filed 05/05/26 Page 61 of 170

Goldstick v. The Hartford, Inc., Not Reported in Fed. Supp. (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2002 WL 1906029
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Diane F. GOLDSTICK, Plaintiff,
v.
THE HARTFORD, INC., et ano., Defendants.
No. 00 Civ. 8577(LAK)
|
Aug. 19, 2002.
Synopsis
Defendants moved to strike plaintiff's Rule 56.1 Statement,
submitted in opposition to defendants' motion for summary
judgment dismissing the complaint. The District Court,
Kaplan, J., held that statement submitted in opposition to
defendants' motion for summary judgment failed to comply
with local rule by adding argumentative and often lengthy
narrative.
Motion granted in part.
West Headnotes (1)
[1] Summary Judgment Form and requisites
Plaintiff's statement submitted in opposition
to defendants' motion for summary judgment
failed to comply with local rule by adding
argumentative and often lengthy narrative, the
object of which was to “spin” the impact of
the admissions plaintiff had been compelled to
make; additionally, statement was 41 pages long,
a manifest evasion of the page limitation. Local
Civ. R. 56.1.
76 Cases that cite this headnote
ORDER
KAPLAN, J.
*1 Defendants move to strike plaintiff's Rule 56.1
Statement, submitted in opposition to defendants' motion for
summary judgment dismissing the complaint, on the ground
that it fails to comply with Local Civ. R. 56.1 in that it goes
beyond admitting or denying that the propositions of fact set
forth in defendants' Rule 56.1 Statement in fact are undisputed
and contains a great deal of extraneous, argumentative
material, much allegedly based on inadmissible evidence.
“A proper 56.1 statement submitted by a non-movant
should consist of a paragraph-by-paragraph response to
the movant's 56.1 statement, much like an answer to a
complaint. If the non-movant asserts that a fact claimed
by the movant to be undisputed is actually in dispute, the
non-movant must cite evidence on the record to support
its contention. It is permissible for the non-movant to
provide a separate statement, apart from this paragraph-by-
paragraph response, in which it lists other facts it claims
to be in dispute. However, this separate statement is not
a substitute for the paragraph-by-paragraph response. The
non-movant, particularly if represented by counsel, should
not leave it to the Court to cull from this separate statement
the pieces of evidence which would support the contentions
of the non-movant asserted in its paragraph-by-paragraph
response without citation.
“Rule 56.1 statements are not argument. They should
contain factual assertions, with citation to the record.
They should not contain conclusions, and they should be
neither the source nor the result of ‘cut-and-paste’ efforts
with the memorandum of law. A rule 56.1 statement that
contains the same turns of phrase, if not the identical
whole paragraphs, as the memorandum of law is improper.”
Rodriguez v. Schneider, No. 95 Civ. 4083(RPP,) 1999 WL
459813, *1 n. 3 (S.D.N.Y. June 29, 1999).
The plaintiff's Rule 56.1 Statement here does not comply
with the rule. While in most cases it does admit or deny
defendants' descriptions of the allegedly uncontested facts on
a paragraph-by-paragraph basis, it adds 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. In consequence, the response
to the 84 number assertions set forth in defendants' Rule
56.1 Statement is 41 pages long and, whether so intended or
not, a manifest evasion of the page limitation on plaintiff's
memorandum in opposition to the motion for summary
judgment.
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Goldstick v. The Hartford, Inc., Not Reported in Fed. Supp. (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Accordingly, defendants' motion is granted to the extent
that so much of plaintiff's responses as consists of anything
more than (a) the admission or denial of the assertions set
forth in defendants' Rule 56.1 Statement and the citations to
the record, and (b) the section headed “additional facts” is
stricken. It is denied in all other respects.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2002 WL 1906029
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-00153-DNH-ML Document 53 Filed 05/05/26 Page 63 of 170

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
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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
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“resolve all ambiguities and draw all reasonable inferences in
the non-movant's favor.” Id. (citing Giannullo v. City of New
York, 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant
has met its burden, the non-movant “must come forward
with specific facts showing that there is a genuine issue for
trial.” Liverpool, 442 F. Supp. 3d at 722 (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). The non-movant cannot defeat a summary judgment
motion by relying on “mere speculation or conjecture as to the
true nature of the facts....” Id. (quoting Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any
evidence from which a reasonable inference could be drawn
in favor of the opposing party on the issue on which summary
judgment is sought, summary judgment is improper.” Sood,
2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.
2004)).
Should there be no genuine issue of material fact, the movant
must also establish its “entitlement to judgment as a matter
of law.” In re Davis New York Venture Fund Fee Litig., 805
F. App'x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found.
Capital Partners LLC, 920 F.3d 134, 140 (2d Cir. 2019)).
Stated simply, the movant must establish that the law favors
the judgment sought. Gonzalez v. Rutherford Corp., 881 F.
Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that summary
judgment is appropriate only when ... law supports the moving
party”); Linares v. City of White Plains, 773 F. Supp. 559, 560
(S.D.N.Y. 1991) (summary judgment is appropriate when “the
law so favors the moving party that entry of judgment in favor
of the movant ... is proper”). This standard applies equally to
claims for relief and affirmative defenses. Giordano v. Market
Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010) (“The same standard
applies whether summary judgment is granted on the merits
or on an affirmative defense....”). 3
*4 The Court is, of course, mindful that “[p]ro se litigants
are afforded a special solicitude,” which includes reading
their filings “to raise the strongest arguments they suggest.”
Mortimer v. City of New York, No. 15-CV-7186, 2018 WL
1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal quotation
marks omitted). “It is through this lens of leniency towards
pro se litigants that this Court must consider a defendant's
motion for summary judgment against a pro se plaintiff,”
Adams v. George, No. 18-CV-2630, 2020 WL 5504472, at
*5 (S.D.N.Y. Sept. 8, 2020), but the mere fact that a litigant
is pro se “does not relieve the plaintiff of his duty to meet
the requirements necessary to defeat a motion for summary
judgment,” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50
(2d Cir. 2003) (internal quotation marks omitted). Where, as
here, a pro se litigant fails to oppose a motion for summary
judgment, the motion may be granted as unopposed only “if:
(1) the plaintiff has received adequate notice that failure to file
any opposition may result in dismissal of the case; and (2) the
Court is satisfied that the facts as to which there is no genuine
dispute show that the moving party is entitled to judgment
as a matter of law.” McNair v. Ponte, No. 17-CV-2976, 2020
WL 3402815, at *3 (S.D.N.Y. June 18, 2020) (quoting Warren
v. Chem. Bank, No. 96-CV-6075, 1999 WL 1256249, at *2
(S.D.N.Y. Dec. 22, 1999)). 4
ANALYSIS
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as available are
exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to
all inmate suits about prison life, whether they involve general
circumstances or particular episodes,” Hernández v. Coffey,
582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle,
534 U.S. 516, 532 (2002)), and it is “ ‘mandatory’: [a]n inmate
‘shall’ bring ‘no action’ (or said more conversationally,
may not bring any action) absent exhaustion of available
administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856
(2016) (citation omitted). “Moreover, the PLRA ‘requires
proper exhaustion, which means using all steps that the prison
grievance system holds out.’ ” Ayala-Rosario v. Westchester
Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y.
July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118,
122 (2d Cir. 2016)). This “means that ‘prisoners must
complete the administrative review process in accordance
with the applicable procedural rules—rules that are defined
not by the PLRA, but by the prison grievance process
itself.’ ” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL
1082590, at *6 (S.D.N.Y. Mar. 6, 2020) (quoting Johnson v.
Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Accordingly, the
Court looks to the process available to Plaintiff. See Dinkins
v. New York, No. 19-CV-08447, 2020 WL 5659554, at *6
(S.D.N.Y. Sept. 23, 2020).
There are three levels of review for inmate grievances at
Sing Sing. See generally Amador v. Andrews, 655 F.3d 89,
96-97 (2d Cir. 2011) (outlining the three-step process). First,
a grievance is reviewed by the Inmate Grievance Resolution
Committee (“IGRC”), a facility-level body consisting of
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inmates and facility staff members. (Quick Ex. A §§
701.4, 701.5(a)-(b); Senguin Ex. A §§ 701.4, 701.5(a)-
(b)). Second, should the inmate be dissatisfied with the
IGRC's determination, he may appeal that decision to the
Superintendent. (Quick Ex. A § 701.5(c); Senguin Ex. A
§ 701.5(c)). Finally, if the Superintendent's conclusions are
unfavorable, the inmate may appeal that decision to CORC.
(Quick Ex. A § 701.5(d); Senguin Ex. A § 701.5(d)).
However, when a grievance concerns staff harassment,
DOCCS procedures provide for an expedited review that
allows for the complaint to bypass IGRC review and proceed
before the Superintendent in the first instance. (See Quick Ex.
A § 701.8; Senguin Ex. A § 701.8). Both the Superintendent
and CORC are required to “date stamp all” grievances or
appeals forwarded to them for review (Quick Ex. A §§
701.5(c)(3), 701.5(d)(3)(i); Senguin Ex. A §§ 701.5(c)(3),
701.5(d)(3)(i)) and require entities to maintain files “for
the current calendar year plus the previous four calendar
years” (Quick Ex. A § 701.6(k)(3); Senguin Ex. A § 701.6(k)
(3)).
*5 Quick represents, as custodian of records maintained by
the IGP at Sing Sing, that grievances “are collected from
the IGRC mailbox and processed” daily, in accordance with
DOCCS procedures. (Quick Aff. ¶ 5). Quick's records reveal
that Plaintiff filed the Grievance on June 17, 2015, that the
Grievance was forwarded directly to the Superintendent as
one concerning staff harassment, and that the Superintendent
performed an investigation and issued a written decision
denying the Grievance on August 14, 2015. (Id. ¶¶ 9-11;
Quick Ex. B). However, both Quick and Seguin represent
affirmatively that they have no record of Plaintiff taking
the final step of appealing the Superintendent's decision to
CORC. (Quick Aff. ¶12; Seguin Aff. ¶¶ 6-7).
Even while granting Plaintiff—who filed nothing in
opposition to this motion, and, in fact, has filed nothing in
this case at all since November 2019 (see Doc. 32)—every
conceivable benefit of the doubt to which a pro se litigant
is entitled, there is no genuine issue of material fact on the
instant motion. Consequently, summary judgment is proper
here because: (1) Defendants established that Plaintiff failed
to exhaust his administrative remedies and, as such, also
their entitlement to summary judgment on the affirmative
defense of Plaintiff's failure to exhaust his administrative
remedies as required by the PLRA; and (2) Plaintiff was
warned that failure to file an opposition would result in the
Court concluding that the motion was unopposed. 5
CONCLUSION
Based upon the foregoing, the motion for summary judgment
is GRANTED.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 981849
Footnotes
1 There are two docket entries reflecting reassignment of this matter from Judge Román to this Court on
different dates. (See Apr. 3, 2020 Entry; Apr. 13, 2020 Entry).
2 In support of the instant motion, defense counsel filed a Declaration annexing two affidavits (with exhibits)
for the Court's consideration. (Doc. 41). The first affidavit is from Quandera T. Quick (“Quick”), the Inmate
Grievance Program (“IGP”) Supervisor at Sing Sing. (Doc. 41-1, “Quick Aff.” ¶ 1). This affidavit attaches
as exhibits copies of: (1) New York State Department of Corrections and Community Supervision Directive
(“DOCCS”) No. 4040 (id. 5-21, “Quick Ex. A”); (2) Plaintiff's June 4, 2015 Grievance (“Grievance”) (id. at
22-23, “Quick Ex. B”); and (3) the written decision issued by Michael Capra, Sing Sing's Superintendent, on
August 14, 2015 (id. at 24-25, “Quick Ex. C”). The second affidavit is from Rachael Seguin (“Seguin”), the
Assistant Director of the IGP for DOCCS and custodian of records for the Central Office Review Committee
(“CORC”). (Doc. 41-2, “Seguin Aff.”). This affidavit attaches as exhibits copies of: (1) DOCCS Directive No.
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4040 (id. at 4-20, “Seguin Ex. A”); and (2) the results of a search for appeals filed with the CORC (id. at
21-23, “Seguin Ex. B”).
3 “[T]he failure to exhaust administrative remedies in compliance with the [Prison Litigation Reform Act] is an
affirmative defense” and it “may be waived” by a defendant who fails to raise it. Banks v. Cty. of Westchester,
168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (internal quotation marks omitted). Here, Defendants’ Fourth
Affirmative Defense was failure to comply with 42 U.S.C. § 1997e. (Am. Ans. ¶ 14).
4 Given the Court's conclusion that there is no genuine issue of material fact as to exhaustion, it does not need
to reach Defendants’ request for an evidentiary hearing should the Court find otherwise.
5 Even if the Court did not grant Defendants’ motion for summary judgment, it would dismiss the action with
prejudice under Federal Rule of Civil Procedure 41(b) as a result of Plaintiff's failure to prosecute this action.
Indeed, Plaintiff has not filed anything in this case since he filed a proposed discovery schedule more than
a year ago.
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2025 WL 1033787
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Craig A. JACKSON, Plaintiff,
v.
Sergeant WEST, et al., Defendants.
No. 9:23-CV-0306 (LEK/PJE)
|
Signed February 20, 2025
Attorneys and Law Firms
Craig A. Jackson, 22-B-0406, Cayuga Correctional Facility,
P.O. Box 1186, Moravia, New York 13118, Plaintiff pro se.
ALEXANDRA L. GALUS, ESQ., LAUREN R.
ROSENBERG, ESQ., NYS Office of the Attorney General
State Capitol, Albany, New York 12224, Attorneys for
defendants.
REPORT-RECOMMENDATION AND ORDER
PAUL J. EVANGELISTA, UNITED STATES
MAGISTRATE JUDGE
*1 Plaintiff pro se Craig A. Jackson (“plaintiff”), an inmate
who was, at all relevant times, in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. §
1983, alleging that defendants Sergeant West and D. Fenlong
(“defendants”) violated his constitutional rights under the
Eighth Amendment. See Dkt. No. 1 (“Compl.”). Presently
before the Court is defendants’ motion for summary judgment
brought pursuant to Rule 56 of the Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”). See Dkt. No. 26. Plaintiff did
not oppose. For the following reasons, it is recommended that
defendants’ motion be granted.
I. Background 1
On a motion for summary judgment, the facts are related in
the light most favorable to the nonmoving party. See Rattner
v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing
the record ... to determine whether there is a genuine issue
as to any material fact, the court is required to resolve all
ambiguities and draw all factual inferences in favor of the
party against whom summary judgment is sought.”).
On June 13, 2024, the Court served upon plaintiff forms titled,
“Notice of Due Date to Respond to Motion for Summary
Judgment” and “Notification of the Consequences of Failing
to Respond to a Summary Judgment Motion. Dkt. No. 27.
These forms advise plaintiff of his deadline to respond
to defendants’ motion and advise him that if he “do[es]
not submit a proper response to the defendants’ statement
of material facts, the Court may deem [plaintiff] to have
admitted the defendants’ factual statements.” Dkt. No. 27 at
1-2; see also N.D.N.Y. L.R. 56.1(b). Plaintiff did not respond
to defendants’ Statement of Material Facts.
In assessing the record to determine whether any such issues
of material fact exist, the court is required to resolve all
ambiguities and draw all reasonable factual inferences in
favor of the nonmoving party. See Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Where a non-
movant does not respond to the motion or fails to dispute
the movant's statement of material facts, the court may
not rely solely on the moving party's statement of material
facts; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See
Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir.
2003). Therefore, the Court will, for purposes of this motion,
deem as true all properly-supported facts stated in defendants’
Statement of Material Facts. See Gubitosi v. Kapica, 154
F.3d 30, 31 n.1 (2d Cir. 1998) (accepting as true the material
facts contained in unopposed statement of material facts);
see also Demuth v. Cutting, No. 9:18-CV-789 (LEK/TWD),
2020 WL 957381, at *1 (N.D.N.Y. Feb. 3, 2020), report and
recommendation adopted, No. 9:18-CV-0789 (LEK/TWD),
2020 WL 950229 (N.D.N.Y. Feb. 27, 2020) (“Plaintiff's
failure to oppose Defendant's motion results in the admission
of properly supported facts, however the Court must still
ensure those facts show Defendant is entitled to judgment as
a matter of law.”).
A. Facts
*2 Defendants provide that plaintiff was housed at
Gouverneur from April 11, 2022, to June 13, 2022. See Dkt.
No. 26-2 at 2. Gouverneur had a fully-functioning inmate
grievance program during plaintiff's period of incarceration.
See id. (citing Dkt. No. 26-4 at ¶11). Plaintiff's claims are
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proper subjects for a grievance under 7 NYCRR § 701.1, et
seq. See Dkt. No. 26-2 at 2.
Plaintiff filed four grievances, from April 12, 2022, through
April 17, 2022, alleging that defendants West and Fenlong
assaulted him on April 11, 2022. See id. (citing Dkt. No. 26-4
at ¶14). The four grievances were consolidated into Grievance
No. GOV-0087022. See id. Due to the nature of the grievance,
it was forwarded to the Superintendent. See id. at 3. On May
5, 2022, the Superintendent issued a determination denying
plaintiff's grievance. See id. at 3 (citing Dkt. No. 26-4 at ¶28).
Defendants contend that plaintiff did not appeal the grievance
denial to CORC. See id. (citing Dkt. No. 26-4 at ¶13).
II. Legal Standards
Fed. R. Civ. P. 56 instructs courts to grant summary judgment
if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). A fact is “material” if it “might affect the
outcome of the suit under the governing law,” and a dispute
is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while
“[f]actual disputes that are irrelevant or unnecessary” will
not preclude summary judgment, summary judgment cannot
be granted if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see also
Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only
when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of
informing a court of the basis for its motion and identifying
those portions of the record that the moving party claims will
demonstrate the absence of a genuine dispute of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
After the moving party has met its initial burden, the
nonmoving party “must do more than simply show that there
is some metaphysical doubt as to the material facts” to defeat
summary judgment. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party
may not rely on “mere conclusory allegations, speculation,
or conjecture,” Fischer v. Forrest, 968 F.3d 216, 221 (2d
Cir. 2020), and must present more than a mere “scintilla of
evidence” to support its claims, Anderson, 477 U.S. at 252. At
the same time, a court must resolve all ambiguities and draw
all inferences in favor of the nonmoving party. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S 133, 150 (2000).
The Court “may not make any credibility determinations or
weigh the evidence.” Id. Thus, a court's duty in reviewing
a motion for summary judgment is “carefully limited to
discerning whether there are any genuine issues of material
fact to be tried, not to deciding them.” Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.
1994).
Where, as here, a plaintiff proceeds pro se, the court must
grant him “special solicitude,” construe his submissions
“liberally,” and read such submissions “to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation
marks omitted) (citing Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.
1994)). This is because “a pro se litigant generally lacks both
legal training and experience and, accordingly, is likely to
forfeit important rights through inadvertence if [ ] not afforded
some degree of protection.” Tracy v. Freshwater, 623 F.3d 90,
101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475).
*3 However, the Second Circuit has cautioned district courts
that they “cannot read into pro se submissions claims that
are not consistent with the pro se litigant's allegations or
arguments that the submissions themselves do not suggest.”
Triestman, 470 F.3d at 477 (citations omitted). Further, the
“special solicitude” standard does not excuse “frivolous or
vexatious filings by pro se litigants,” nor does it “exempt a
party from compliance with relevant rules of procedural and
substantive law.” Id.
III. Discussion
A. Argument
Defendants argue that this case must be dismissed because
plaintiff did not exhaust his administrative remedies prior
to commencing this action because he did not appeal the
Superintendent's denial of his grievance to CORC. See Dkt.
No. 26-1 at 5. Although plaintiff does not oppose this
motion, in his deposition, he contended that he appealed
the Superintendent's denial to CORC but did not receive a
response. See Dkt. No. 26-5 at 92-93.
B. Analysis
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1. Exhaustion Standards
The Prison Litigation Reform Act (“PLRA”) requires that
a prisoner exhaust any administrative remedies available to
him or her before bringing an action for claims arising out
of his or her incarceration. See 42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions under
section 1983 ... by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.”). The exhaustion requirement
applies “to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is
required even where the prisoner seeks relief not available
in the administrative grievance process, such as money
damages. See id. at 524. “To exhaust administrative remedies,
the inmate must complete the full administrative review
process set forth in the rules applicable to the correctional
facility in which he is incarcerated.” Adams v. Annucci, 537
F. Supp. 3d 475, 477-78 (W.D.N.Y. 2021); see Jones v.
Bock, 549 U.S. 199, 218 (2007). “In accordance with the
PLRA ... [DOCCS] has made available a well-established
inmate grievance program ... [which] involves [ ] following
[a] three-step procedure for the filing of grievances.” Smith
v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y. 2013) (citing 7
N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7).
“Exhaustion is mandatory—unexhausted claims may not be
pursued in federal court.” Amador v. Andrews, 655 F.3d 89,
96 (2d Cir. 2011). Nonetheless, “the defendants have the
burden of proving that [the plaintiff's] claim has not been
exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523
(S.D.N.Y. 2009) (citations omitted). A defendant satisfies this
burden by “establishing ... that a grievance process exists” and
that the plaintiff failed to use the grievance procedure. Hubbs
v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)
(citing Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003),
and Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)).
“[T]he PLRA requires proper exhaustion, which means using
all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).”
Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir.
2006) (quotation marks and citations omitted). “[O]nce a
defendant has produced reliable evidence that such remedies
were generally available, and the plaintiff nevertheless failed
to exhaust those remedies, the plaintiff must then counter
the defendant's proof by showing that, as to him or her, the
remedy was unavailable.” Coleman v. Nolan, No. 9:15-CV-40
(ATB), 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018)
(citing Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y.
2013)). Availability means “an inmate is required to exhaust
those, but only those, grievance procedures that are ‘capable
of use’ to obtain ‘some relief for the action complained of.’
” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth
v. Churner, 532 U.S. 731, 738 (2001)). “An inmate ... must
exhaust available remedies, but need not exhaust unavailable
ones.” Id.
*4 There are “three kinds of circumstances in which an
administrative remedy ... is not capable of use to obtain
relief.” Ross, 578 U.S. at 643. First, “an administrative
procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple
dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id. (citing Booth,
532 U.S. at 736). “Next, an administrative scheme might be
so opaque that it becomes, practically speaking, incapable
of use.” Id. Lastly, administrative remedies are unavailable
where “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 644.
2. Declarations & Plaintiff's Deposition Testimony
Defendants submit a declaration from Laura Hutchins, the
Incarcerated Grievance Program Supervisor at Gouverneur
Correctional Facility. See Dkt. No. 25-3. Ms. Hutchins
declared that plaintiff successfully completed “shop facility
orientation” on May 16, 2022, through May 22, 2022, during
which time he was given a presentation on how to file and
exhaust grievances. See Dkt. No. 26-3 at 2, 9. Ms. Hutchins
located records of plaintiff having filed four grievances in
April 2022, regarding a staff assault on April 11, 2022, and
that these grievances were consolidated into Grievance No.
GOV-0087-22. See id. at 6.
Gouverneur's records further reveal that the Superintendent
denied plaintiff's consolidated grievance on May 5, 2022. See
Dkt. No. 26-3 at 6 (citing Dkt. No. 26-3 at 16). The denial
form advised plaintiff that “[i]f you wish to appeal the above
decision of the Superintendent, please sign below and return
this copy to the IGRC at the facility where the grievance was
filed. You have seven (7) calendar days from the receipt of
this notice to file your appeal. Please provide a reason why
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you are appealing this decision to CORC.” Id. Ms. Hutchins
declared that Gouverneur's records further show that plaintiff
never appealed the Superintendent's denial of his consolidated
grievance. See Dkt. No. 26-3 at 9.
Defendants further submit a declaration from Rachael
Seguin, Director of the Incarcerated Grievance Program
for DOCCS. See Dkt. No. 26-4 at 1. Ms. Seguin declares
that DOCCS Directive 4040 provides that DOCCS must
“maintain grievance files for the current calendar year and the
previous four calendar years,” that DOCCS maintains such
files, and that “she searched DOCCS records for any appeals
received by CORC relating to plaintiff's instant allegation.”
Dkt. No. 26-4 at 4. The records revealed that plaintiff “has not
appealed any grievances to CORC pertaining to allegations
of Eighth Amendment violations against Defendants Fenlong
and West, while Plaintiff was housed at Gouverneur C.F. in
DOCCS custody under DIN: 22-B-0405.” Id.
Defendants note that plaintiff testified at his deposition that
he “ ‘filed the appeal at Gouverneur in May, like two days
after’ he received the determination.” Dkt. No. 26-1 at 9.
Defendants contend that this assertion is incorrect because
DOCCS and Gouverneur records show that plaintiff never
appealed the Superintendent's denial. See id. Defendants
anticipate a potential argument, based on statements plaintiff
made in his deposition, of the existence of “some type of
conspiracy on behalf of the facility to hide or destroy his
paperwork,” but contend that “such allegations are conclusory
and are not sufficient to defeat a motion for summary
judgment.” Id. Thus, defendants argue that this matter must be
dismissed for plaintiff's failure to exhaust his administrative
remedies before commencing this action.
As plaintiff has not responded to the motion for summary
judgment, the Court does not have before it any of plaintiff's
positions regarding exhaustion. Out of special solicitude to
plaintiff and in an attempt to view the facts in the light
most favorable to the nonmoving party, the undersigned
has searched the record for potential arguments regarding
exhaustion. In his deposition, when asked if he “understand[s]
what the grievance process is at ... the DOCCS facility,”
plaintiff acknowledged that he attended an orientation about
grievances and stated that he “somewhat” understood the
process. Dkt. No. 26-5 at 79. Plaintiff testified that his
understanding of the grievance process is that he needs to
“follow the necessary steps. I have to follow these specific
steps.” Id. He states, “what I can do is I can bring it to the
officer's attention.... If that don't work, maybe speak to a
sergeant or something like that. If that don't get nowhere, I
write a grievance.” Id. at 79. When plaintiff was asked how he
knew to file a grievance, plaintiff stated, “This isn't my first
time in jail. I just – you know, I – I—and these grievances
that I've written, these are the first grievances I ever written
in my whole life. I just – I just knew that, you know what I
mean, I had to report it.” Id. at 80. When asked further how he
knew how to file a grievance, plaintiff responded, “I mean, I
had a bunkie in the box. I just wrote out – it wasn't no specific
thing. I just – I just took a piece of paper and just wrote down
what happened and sent it – and sent it to grievance.” Id. at
81. When the AAG asked how he knew where to send the
grievance, plaintiff testified,
*5 it's no specific place. I was in the
box. It's no specific place you have
to send a grievance. You just slide it
underneath your door. They come and
get the mail. It is not like, no, I could
go and put this in a grievance box. No,
we're locked in already. We're in a box.
Id.
The AAG inquired about the grievance orientation plaintiff
attended, to which plaintiff stated, “I am not sure about that,
man. I am not even going to even – I – I can't answer it.”
Dkt. No. 26-5 at 81-82. Plaintiff testified that he filed “like
five” grievances with respect to the issues underlying this
action. Id. at 82. When asked if he heard back about his
grievances, plaintiff testified, “I received a letter in the mail ...
facility mail, stating me that -- it was stating that it would
– they had shut it down. They – they – they shut down my
grievance. It wasn't accepted.” Id. at 83. In response to the
AAG's question whether he heard back from the grievance
office about his grievances, plaintiff testified, “yes.” Id. at 83.
Plaintiff acknowledged the Superintendent's denial and stated
that he understood the denial to mean, “it wasn't going to be
nothing that was done about the incident and that it was going
to be swept under the rug.” Id. at 84. He further testified that
he understood the Superintendent's denial to mean that “it
wasn't found valid. It was – it was shut down. It wasn't going
through.... Basically, ... it's denied.” Id. at 92.
Plaintiff testified that he “filed the appeal at Gouverneur in
May, like two days after I got – right after I got that paper in
the mail, right, I filed – I filed my appeal for it.” Dkt. No. 26-5
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at 92. He states he did not receive a response to his appeal of
the Superintendent's decision. See id. at 92-93. When asked if
it was his “understanding that the appeal you filed was going
to go to CORC,” plaintiff testified that he “didn't know where
it was going.” Id. He testified affirmatively that he filled out
the bottom portion of the Superintendent's denial form and
sent it in. See id. at 93. When plaintiff did not hear back
on his appeal of the Superintendent's denial, he did not file
another grievance or follow up with any kind of request to
the grievance office. See id. at 94. When asked why he did
not follow up, plaintiff stated, “I was still in that facility right
there. And a lot of the paperwork, a lot of stuff, it was all
against me over there. You get what I'm saying. I really didn't
have a – like I said, I put in five grievances. You showed me
four. I'm missing a grievance. You get what I'm saying?” Id. at
94-95. Plaintiff contended that he was “refused medical over
there. I did not feel safe over there. Any type of paperwork
that I do have and that I was able to escape with out of that
facility, like I'm blessed to have it. Like I – I – I didn't have
no control.” Id.
When questioned about how he filed the appeal of his
grievance denial, plaintiff testified that he “had another fellow
peer help me out in here because I'm – I'm really not law
library savvy like that. So I actually paid somebody to help me
put this whole thing together ... [s]o I could get the help that I
need because I – I – like I said, I've never been involved in this
type of stuff before .... I don't know what I am doing .... I told
my story to a couple guys ... and they helped me to get this
far. And I -- I'm struggling here, man.” Dkt. No. 26-5 at 96.
*6 Plaintiff testified that, to file his appeal of the
Superintendent's denial, he went to the law library with
another inmate who “basically did everything. I signed it and
– and we sent it out.” Dkt. No. 26-5 at 97. Plaintiff testified
that he sent his appeal to “Albany – it went to this same
address that I get all this mail from. It went to office of the
attorney – it went to you.” Id. When asked to clarify if plaintiff
was stating that he sent his appeal of the Superintendent's
decision to the Attorney General's Office, plaintiff stated, “It
went to the – all that – that's all in the same building in
Albany, right? The Attorney General's office and everything
is in Albany, two twenty – I believe it's two twenty.” Id. at
97. When confronted with the fact that the Superintendent's
denial of his grievance contained instructions stating that any
appeal of the Superintendent's decision is to be sent to the
Inmate Grievance Resolution Committee (“IGRC”) at the
facility where the grievance is filed, but that he testified he
sent it to the Attorney General's Office, plaintiff stated that
he was “not even sure” where he sent it. Dkt. No. 26-5 at
97. He stated that he is “pretty sure I sent it to the grievance.
I am not sure where it went, man. I know I sent it out. I
did every little piece of paperwork I was supposed to do.”
Id. at 98-99. When asked whether he was “fearful that your
grievance somehow wouldn't be listened to at that facility,
plaintiff replied “Grievance? I was – was more fearful for my
life.” Id. at 99.
Plaintiff testified that when he was transferred out of
Gouverneur to Cayuga, he did not follow up with the
grievance office at Cayuga or attempt to pursue his grievance
further. See Dkt. No. 26-5 at 95. Plaintiff testified that he
“didn't know I had to” as he already filed five grievances
at Gouverneur and “they shut it down.” Id. at 95. “I put the
appeal in. I didn't hear nothing about the appeal.” Id. He
says when he was transferred to Cayuga, he also did not hear
anything about his appeal. See id. Plaintiff then testified that
he did not attempt to seek the status of his grievance once
he was transferred to Cayuga because he “was happy to get
out of that facility .... it's a whole different environment in the
facility I am in now than Gouverneur. You could – you could
feel the fear over there.” Id. at 100. Plaintiff testified that once
he was transferred to Cayuga, “I could start fresh and then go
about my business, do my time, and get home. I wasn't really
like – I didn't want the whole state against me, man. I didn't
want to leave one jail and then go to another jail and I got the
police all over me there neither. So I wanted to like kind of
fly under the radar.” Id. at 101.
Plaintiff states that upon transfer to Cayuga, he did not
complete another orientation about the grievance procedure.
See Dkt. No. 26-5 at 102. As he had completed a full
orientation at Gouverneur, “the grievance thing was not
discussed” at Cayuga; he underwent a more streamlined
orientation. Id. When asked whether the original orientation at
Gouverneur covered grievances, plaintiff then testified, “I'm
not sure about all that, man. I – that's not something that I
am paying attention to, man. I came to jail to do my time,
man. Not write grievances, man. You get what I'm saying?
That's – that's – that's just what it boils down to.” Id. at 102.
When asked to clarify whether he was testifying that he never
attended an orientation that went over the grievance process,
plaintiff again stated, “I'm not sure, man. I – maybe don't be
paying attention to a lot of shit. If it – if it don't – if it don't
affect me or something like that, I'm just not paying attention
to everything. I have a short attention span on certain things.”
Id.
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Plaintiff testified that once he was transferred to Cayuga, he
was in general population, but when asked whether plaintiff
could have “stopped by the grievance office at any point in
time,” he testified, “I mean, yeah. Yes, I guess. I'm not even
sure if we even have a grievance building here at all.” Dkt. No.
26-5 at 105. Plaintiff further testified that while at Cayuga,
he was not “intimidated all,” “assaulted at all,” or “in fear for
[his] life at all,” by Cayuga staff. Id.
3. Exhaustion of Administrative Remedies
Here, the record is clear that plaintiff did not exhaust
his administrative remedies before commencing this
action. Although plaintiff testified that he appealed the
Superintendent's denial of his grievance with help from a
fellow inmate, he testified that was unsure if he sent the appeal
to the IGRC or to the Attorney General's Office or another
agency in Albany. The Court has before it no proof of his
alleged appeal.
*7 Plaintiff's testimony on exhaustion is littered with
contradictions and lacks support. Plaintiff testified that he
never received a response to his appeal, but did not follow up
while he was at Gouverneur or Cayuga. Plaintiff's testimony
was conflicting as to why plaintiff did not follow up. He
indicated that he did not fully understand the grievance
procedure, stating that he was not fully sure whether he
was given a presentation about the grievance process at
Gouverneur's orientation because he stopped paying attention
based on his belief that it was not applicable to him or due to
his short attention span. See Dkt. No. 26-5 at 102. Elsewhere
in his deposition plaintiff suggests he was in fear for his life
while at Gouverneur, but when asked if he feared filing an
appeal to CORC, he indicated he had a general fear for his
life at Gouverneur rather than a specific fear of proceeding
with the grievance procedure. See Dkt. No. 26-5 at 99. Yet,
plaintiff conceded that he did file four to five grievances while
at Gouverneur. Plaintiff testified that he did not follow up on
the grievance or pursue anything further when transferred to
Cayuga because he did not know he was supposed to. See id.
at 101. However, he also testified that he did not follow up
on his grievance once at Cayuga because he was trying to fly
under the radar, complete his time in custody, and go home.
See Dkt. No. 26-5 at 100-101.
In support of their motion for summary judgment, defendants
provide the declarations of Ms. Hutchins and Ms. Seguin, who
both declared that they checked records at both Gouverneur
and DOCCS and there is no record of his appeal. See Dkt.
Nos. 26-3, 26-4. Plaintiff does not counter defendants’ proof
with supported arguments or evidence; he does not provide
to the Court a copy of his appeal or any clarity on where
he alleges to have sent the appeal. See Dkt. No. 26-5 at 12;
See Gibbs v. Gadway, No. 9:19-CV-281 (GTS/DJS), 2019
WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019), report and
recommendation adopted, No. 9:19-CV-0281 (GTS/DJS),
2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (“Plaintiff
makes a purely conclusory allegation that he appealed the
grievance denial to CORC. Significantly, plaintiff has not
provided a copy of the grievance appeal or even asserted on
what date he filed the appeal. In light of the documented proof
that no such appeal was filed, such a conclusory statement
is insufficient to create a material question of fact on this
Motion.”); see also Blake v. Porlier, No. 9:18-CV-1008
(DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y. Oct. 4,
2019), report-recommendation adopted, No. 9:18-CV-1008
(DNH/CFH), 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020) (“Even
considering that plaintiff swore under penalty of perjury that
he mailed a grievance within the allotted time frame, he did
not provide any evidence to substantiate his allegations. [ ]
Therefore, plaintiff's unsupported allegations cannot give rise
to an issue of material fact sufficient to defeat a motion for
summary judgement.) (citations omitted)). “In short, ‘[g]iven
the lack of evidence that Plaintiff's appeal to CORC was ever
filed, or ever followed up on, it is not that the full scope of
administrative remedies was not available to Plaintiff – rather,
Plaintiff failed to fully exhaust the administrative remedies
available to him.’ ” Shabazz v. Bailey, No. 9:20-CV-00057
(LEK/TWD), 2023 WL 5779533, at *7 (N.D.N.Y. June 28,
2023), report and recommendation adopted, No. 9:20-CV-57
(LEK/TWD), 2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023),
aff'd, No. 23-7252, 2025 WL 272602 (2d Cir. Jan. 23,
2025) (quoting Houston v. Coveny, No. 14-CV-6609, 2020
WL 2494439, at *3 (W.D.N.Y. May 14, 2020) and citing
Litchmore v. Williams, No. 11-CV-7546, 2013 WL 3975956,
at *6 (S.D.N.Y. Aug. 5, 2013) (“no ‘sufficient basis in the
record to find that administrative remedies were unavailable’
where, among other things, there was ‘no evidence here
that the plaintiff's appeal was actually mailed, intercepted,
or ignored’ and ‘DOCCS has no record of any appeal filed
with CORC’ ”)). “If a prisoner has failed to properly follow
each of the applicable steps before commencing litigation,
he has failed to exhaust his administrative remedies.” Scott
v. Uhler, No. 9:16-CV-403 (TJM/CFH), 2019 WL 5197139,
at *5 (N.D.N.Y. July 31, 2019), report and recommendation
adopted, 2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019).
Accordingly, the undersigned concludes that plaintiff has
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failed to exhaust his administrative remedies in that he has not
raised a material question of fact as to whether he appealed
the Superintendent's denial of his grievance to CORC. Thus,
the undersigned must next assess whether administrative
remedies were available to plaintiff.
4. Availability of Administrative Remedies
*8 New York law establishes a three-step grievance
and appeal process for prisoners. See N.Y. Comp. Codes
R. & Regs. tit. 7 (“7 N.Y.C.R.R.”), § 701.5. That
process consists of the following: (1) “[a]n inmate must
submit a complaint” with the Inmate Grievance Resolution
Committee, id. § 701.5(a)-(b); (2) if the inmate disagrees
with the response to the grievance, the inmate must “appeal
to the superintendent,” id. § 701.5(c); and (3) if the
inmate disagrees with the superintendent's findings, he
must “appeal to the CORC ... within seven calendar days
after receipt of the superintendent's written response to the
grievance,” id. § 701.5(d). “A prisoner has not exhausted
his administrative remedies until he goes through all three
levels of the grievance procedure.” Toussaint, 660 F. Supp.
2d at 523 (cleaned up). The statute also states, “[i]f a
grievant does not receive a copy of the written notice of
receipt within 45 days of filing an appeal, the grievant
should contact the IGP supervisor in writing to confirm
that the appeal was filed and transmitted to CORC.” 7
N.Y.C.R.R. § 701.5(d)(3).
Foskey v. Paige, No. 9:20-CV-504 (LEK/TWD), 2024 WL
2109150, at *3 (N.D.N.Y. May 10, 2024). 2
Applying special solicitude, it is arguable that plaintiff is
contending that administrative remedies were unavailable on
several grounds, some of them conflicting. The Supreme
Court of the United States has identified three circumstances
in which a court may find administrative remedies are not
“available” for PLRA purposes:
First, ... an administrative procedure
is unavailable when ... it operates
as a simple dead end—with officers
unable or consistently unwilling to
provide any relief to aggrieved
inmates.... Next, an administrative
scheme might be so opaque that
it becomes, practically speaking,
incapable of use. In this situation,
some mechanism exists to provide
relief, but no ordinary prisoner can
navigate it .... And finally, the same
is true when prison administrators
thwart inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Ross, 578 U.S. at 643-44. The Second Circuit has interpreted
these three circumstances as nonexhaustive as Ross focused
on the “three kinds of circumstances that were ‘relevant’ to
the facts of that case.” Williams v. Correction Officer Priatno,
829 F.3d 118, 124 n.2 (2d Cir. 2016) (citing Ross, 578 U.S.
at 643).
5. Was the Grievance Process Opaque?
a. Did Not Know How to Grieve
First, plaintiff's deposition testimony suggests that he did
not fully exhaust because was not sure how to complete the
grievance process. He testified that he had been incarcerated
in state facilities before his incarceration at Gouverneur in
2022 but never had filed a grievance before the ones he
submitted in this action. Plaintiff admits that he attended
Gouverneur's “shop facility orientation,” but states that he
was unaware if he was taught how to exhaust administrative
remedies because he did not pay attention. See Dkt. No. 26-5
at 102
The undersigned observes that the underlying incidents
are alleged to have occurred on April 11, 2022. Plaintiff
filed his four or five grievances in April 2022, which
were consolidated. The Superintendent denied plaintiff's
consolidated grievance on May 5, 2022. Plaintiff attended
“shop facility orientation” from May 16, 2022, to May 22,
2022. See Dkt. No. 26-3 at 9. Plaintiff alleges to have
appealed 3 to CORC within two days of receiving his
denial, meaning this all occurred before he competed his
facility orientation training regarding how to file and exhaust
grievances on May 16-22, 2022. See Dkt. No. 25-3 at 16; Dkt.
No. 26-3 at 9.
*9 The undersigned assesses whether plaintiff's statement
that he did not know how to grieve is sufficient to raise
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a valid argument as to opaqueness. The Second Circuit
recently explained the “opaqueness” exception to the PLRA's
exhaustion requirement applies where “[t]he regulations
simply do not contemplate the situation in which [the
prisoner] found himself, making it practically impossible
for him to ascertain whether and how he could pursue his
grievance.” Williams v. Priatno, 829 F.3d 118, 124 (2d Cir.
2016).
Liberally read, plaintiff's deposition testimony suggests
that he did not understand the grievance procedure at
any stage. However, even accepting as true that plaintiff
did not fully understand what steps needed to be taken
to exhaust his administrative remedies, plaintiff does not
demonstrate that his ignorance of the grievance process
rendered administrative remedies “opaque” as that term is
contemplated by precedent.
To the extent plaintiff appears to have testified that he did
not know how to proceed with the grievance process, plaintiff
conceded that he: was aware that a grievance process existed;
knew he had to “follow the necessary steps. I have to
follow these specific steps”; knew that if informal methods
of resolution were unsuccessful, he should file a grievance;
asked his “bunkie” to help him file grievances; filed at least
four grievances with respect to the underlying incident; and
hired a fellow inmate to assist him. Dkt. No. 26-5 at 79.
“[S]ince Plaintiff was able to discern and navigate the first
two steps of the grievance process, there is nothing to suggest
that the third step, the appeal to CORC, was opaque to such
a point that it became incapable of use.” Beauvoir v. Smith,
No. 9:14-CV-1495 (MAD/DEP), 2017 WL 4271636, at *3
(N.D.N.Y. Sept. 26, 2017).
Defendants submit records from Gouverneur demonstrating
that plaintiff successfully completed shop facility orientation
which included training on how to file a grievance and
exhaust administrative remedies. When asked about such
training, plaintiff gave vague and dismissive answers,
suggesting he was unsure if he learned about how to proceed
with a grievance and the various steps required because he
did not pay attention, believing that it was not relevant to him
and/or because he did not have a sufficient attention span to
focus. Plaintiff testified that he did not know how to grieve
and properly exhaust his grievance does demonstrate that
administrative remedies were unavailable to him. Plaintiff
concedes that he attended the orientation, but that he was
unsure if he was taught how to proceed through the grievance
process because he did not pay attention as he felt the
information was not relevant to him or he zoned out due to
attention span issues.
Similarly, when confronted at his deposition with the fact
that the Superintendent's denial of his grievance included
instructions that advised him that if he wished to appeal
the denial, he was to sign and return the appeal section to
the IGRC, plaintiff did not deny that the form contained
such instruction, but responded that he was “not even sure”
where he sent the appeal and was “pretty sure I sent it to
the grievance. I am not sure where it went, man. I know
I sent it out. I did every little piece of paperwork I was
supposed to do.” Dkt. No. 26-5 at 97-99. Plaintiff's choosing
not to pay attention to the training needed to learn how to
exhaust or declining to seek assistance does not demonstrate
that the grievance process was “essentially unknowable.”
Hill v. Tisch, No. 02-CV-390, 2016 WL 6991171, at *7
(E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to
demonstrate that the grievance “procedures were essentially
unknowable”). It demonstrates that plaintiff actively chose
against educating himself or allowing his facility to educate
him as to the grievance procedure.
*10 The undersigned recognizes that plaintiff's orientation
took place after he filed his grievances and received the
Superintendent's denial. Thus, although he may have been
untrained regarding the grievance process at the time he filed
his grievances and received the Superintendent's denial, he
attended such training by May 22, 2022, at the latest. Upon
completing the orientation, he could have reached out to the
IGRC or CORC and requested an extension 4 of time to
appeal to CORC, citing mitigating circumstances, but failed
to do so. See 7 NYCRR § 701.6(g); 5 see generally Valverde
v. Folks, No. 1:19-CV-08080-MKV, 2022 WL 836310, at
*7 (S.D.N.Y. Mar. 21, 2022) (“As such, it is possible that
if Plaintiff had sought an extension to file an appeal from
CORC, he could have received one. Plaintiff never did so.”),
aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10,
2023). Plaintiff's failure to avail himself of the grievance
procedure is based on his ignorance of the training and failure
to seek out resources rather than the opacity of the procedure.
“Courts within the Second Circuit are split regarding whether
a failure to respond by CORC constitutes unavailability
excusing a plaintiff's failure to exhaust.” High v. Switz,
No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *4
(N.D.N.Y. July 9, 2018), report and recommendation adopted
sub nom. High v. PA Switz, No. 9:17-CV-1067 (LEK/DJS),
2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018). Indeed, the
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regulations “ ‘do not describe a mechanism’ for appealing
or advancing a grievance when a grievant does not receive a
response from CORC.” Id. at *5 (quoting Williams, 829 F.3d
at 124).
Plaintiff's case differs from those in which courts held
administrative remedies were unavailable where a plaintiff
appealed to CORC, but CORC never responded or failed to
respond within a reasonable period of time. See, e.g., High,
2018 WL 3736794, at *4 (exclusing the plaintiff's failure
to exhaust where the plaintiff appealed to CORC but never
received a response, finding administrative remedies were
unavailable when CORC failed to respond). Unlike in those
cases, 6 where the Court found that administrative remedies
were unavailable because the regulations did not explain what
an inmate should do if he appealed to CORC but receives no
response, in those cases there did not appear to be a question
whether the plaintiffs actually appealed to CORC. Here,
plaintiff presents no details nor any proof of his alleged appeal
to CORC beyond his conclusory claim during his deposition.
He testified that he appealed the Superintendent's denial, but
offered conflicting testimony over where the appeal was sent
– either to the Attorney General's Office or another agency “in
Albany” or to the IGRC, did not provide a copy of the appeal,
and did not indicate that he ever attempted to follow up with
CORC or the IGRC after failing to receive any response
from his appeal. See Valverde v. Folks, No. 1:19-CV-08080
(MKV), 2022 WL 836310, at *8 (S.D.N.Y. Mar. 21, 2022),
aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10,
2023) (“Here, unlike Williams [v. Priatno], Plaintiff concedes
that his initial grievance was processed and answered. [ ] ....
Plaintiff had an avenue to appeal the denial of his grievance,
however he filed the appeal form improperly and it does not
appear that he made any attempt to ever ask the grievance
supervisor for confirmation that his appeal was received.”).
*11 Plaintiff proffered no argument or evidence that he
“received written notice that the appeal was filed or that
he attempted to contact CORC of the IGRC ... regarding
the status of his appeal before commencing this action.”
Bowie v. Woodruff, No. 9:1-8CV-0266 (BKS/ML), 2019
WL 7606078, at *6 (N.D.N.Y. Sept. 20, 2019), report and
recommendation adopted, No. 9:18-CV-00266 (BKS/ML),
2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019) (citing Fox v.
Lee, 9:15-CV-0390 (TJM/CFH), 2018 WL 8576600, at *7
(“granting summary judgment because the plaintiff did not
proffer evidence that he wrote to the IGRC or CORC inquiring
as to the status of his appeals” and “ ‘never contacted Eastern's
[IGP supervisor] in writing ... to confirm that any of his
appeals were filed and transmitted to CORC.’ ”) vacated in
part on other grounds 2023 WL 7481423 (2d. Cir. Nov. 13,
2023); see § 701.5(d)(3)(i) (noting that the IGRC dates all
CORC appeals and will forward the inmate a copy of the
receipt, and that “[i]f a grievant does not receive a copy
of the written notice of receipt within 45 days of filing an
appeal, the grievant should contact the IGP supervisor in
writing to confirm that the appeal was filed and transmitted
to CORC.”). Indeed, “[t]he record is devoid of any indication
that Plaintiff followed up with the [facility] IGP supervisor
‘to confirm that the appeal was filed and transmitted to
CORC’ when he did not receive written confirmation within
forty-five days that his appeal was received.” Shabazz, 2023
WL 5779533, at *7 (quoting 7 N.Y.C.R.R. § 701.5(d)(3)
(i) and citing Simpson v. Price, No. 9:19-CV-1413 (MAD/
ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021))
(“granting summary judgment on exhaustion grounds where
plaintiff ‘provided no specifics regarding when the grievances
were written, their content, or the steps he took to provide
them to an officer to send to the grievance office’ and
there was no documentary evidence to corroborate the fact
plaintiff attempted to file a grievance, such as follow-up
correspondences.”); see Gizewski v. N.Y. State Dep't of Corr.
& Cmty. Supervision, No. 9:14-CV-124, 2016 WL 3661434,
at *13 (N.D.N. Y July 5, 2016) (concluding that the plaintiff
did not exhaust his administrative remedies because he failed
to take further action under § 701.5(d)(3)(i) when he did not
receive written notice of receipt by the CORC within 45 days
of filing his appeal; he did not contact the Inmate Grievance
Program to ascertain whether CORC received his appeal),
aff'd, 692 F. App'x 668 (2d Cir. 2017)).
By contrast, defendants produce records from both
Gouverneur and DOCCS, along with declarations from the
officials who maintain such records, showing that they have
no record of plaintiff having ever filed an appeal of the
Superintendent's denial of his grievance. See Dkt. Nos. 26-3,
26-4 at 7-8. Accordingly, plaintiff has failed to demonstrate
that his lack of understanding of grievance process amounts
to the grievance process being so opaque to be rendered
incapable of use.
b. Transfer
Further, plaintiff's transfer from Gouverneur to Cayuga
“does not excuse his failure to exhaust, as the grievance
process is identical in all New York state-run facilities.”
Campbell v. Prue, No. 9:16-CV-0004 (MAD/CFH), 2018
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WL 4635708, at *5 (N.D.N.Y. July 3, 2018), report and
recommendation adopted, No. 9:16-CV-0004 (MAD/CFH),
2018 WL 3574871 (N.D.N.Y. July 25, 2018) (citing Hartry
v. Cnty. of Suffolk, 755 F.Supp. 2d 422, 434 (E.D.N.Y.
2010)) (“[S]ome courts [ ] have found that transfer within
correctional facilities governed by the same governmental
agency will not excuse exhaustion, regardless of whether
the inmate had an opportunity to pursue the remedy while
at the facility where the claim arose.”) (additional citations
omitted).
Plaintiff testified at his deposition that he did not attempt to
follow up on his grievance after being transferred to Cayuga.
Plaintiff offered conflicting testimony for his reasoning
behind declining to follow up once he reached Cayuga. First,
plaintiff testified that he did not follow up at Cayuga regarding
his grievance because he did not know he was supposed to
follow up there. However, he later testified that he decided
not to pursue his grievance once at Cayuga because he
wanted to be able to serve out his time at Cayuga without
being “noticed.” Dkt. No. 26-5 at 101. Second, plaintiff
made clear that he was not in any fear while incarcerated
at Cayuga. Thus, he was not prevented from pursuing his
grievance at Cayuga. Further, as noted, plaintiff received the
Superintendent's denial of his grievance on May 5, 2022,
and remained at Gouverneur until June 13, 2022, giving him
sufficient time to pursue an appeal at Gouverneur before his
transfer. See Dkt. No. 26-2 at 2. Plaintiff's conclusory and
conflicting statements that he did not know how to use the
grievance procedure fails to demonstrate that, as a result of his
transfer to Cayuga, administrative remedies were so opaque
they were rendered incapable of use.
6. Grievance Process as a Dead End
*12 Plaintiff testified that he did not know the next step
he was supposed to take when he did not receive a response
from his alleged appeal to CORC. Plaintiff further testified
that he filed a fifth grievance regarding “medical” while
at Gouverneur but that he did not receive a response. Dkt.
No. 26-5 at 94-95. Applying a very liberal reading of
this testimony, plaintiff's statements could be interpreted as
arguing that the grievance procedure operated as a “dead
end.” However, plaintiff's testimony on this point fails to raise
a material question of fact for the reasons discussed below.
Courts have rejected arguments that the grievance procedure
was a “dead end” where the plaintiffs chose to participate
in the grievance procedure in some way, even in unrelated
matters, concluding that such participation demonstrates that
the plaintiffs did not view the grievance procedure as a
dead end. See Luke Matthews, et al. v. L. Sweeny, Clinton
Corr. Sergeant, et al., No. 9:17-CV-0503 (GTS/ML), 2025
WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025)
(citing Walker v. Ball, 16-CV-0437, 2018 WL 1415212,
at *5 (N.D.N.Y. Feb. 16, 2018)) (“While Plaintiff did not
file any grievances regarding the alleged misconduct of
Noonan and St. Johns ..., he did file grievances regarding
other issues .... This shows that Plaintiff did not view the
filing of grievances as a dead end.”), report recommendation
adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (and
others); see Barrett v. Ballard, No. 9:23-CV-113 (DNH/
DJS), 2024 WL 4627511, at *4 (N.D.N.Y. Oct. 4, 2024),
report and recommendation adopted, No. 9:23-CV-113, 2024
WL 4627801 (N.D.N.Y. Oct. 30, 2024) (“Plaintiff makes no
argument that the grievance process was unavailable to him
and cannot carry that burden especially since he claims that
he did, in fact pursue, at least at the outset, to resolve this
issue through the grievance process.”). Here, plaintiff filed
at least four grievances regarding the issues underlying this
complaint; thus, any argument suggesting that he believed the
grievance procedure to be a dead end is without force.
To the extent plaintiff's testimony that he filed a fifth
grievance that went “missing” could suggest that he believed
the grievance process was a dead end, “Courts within the
Second Circuit have continuously held that ‘mere contentions
or speculation of grievances being misplaced by officers do
not create a genuine issue of material fact when there is
no evidence to support the allegations.’ ” Blake v. Porlier,
No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at
*5 (N.D.N.Y. Oct. 4, 2019) (quoting Rodriguez v. Cross,
No. 9:15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *5
(N.D.N.Y. May 9, 2017) report and recommendation adopted,
2017 WL 1076343 (N.D.N.Y. Mar. 22, 2019)). Plaintiff
offers no proof that he filed a fifth grievance relating to the
matters underlying this suit or any support for his conclusory
claim that the fifth grievance was filed and went missing.
See Rodriguez, 2017 WL 2791063, at *5 n.13 (finding that
the plaintiff's failure to exhaust was not excused because,
although the plaintiff “state[d] that some grievances were
destroyed ... he ha[d] not submitted any copies of these
grievances, nor d[id] he specify when he attempted to file
them.”).
In sum, the undersigned concludes that plaintiff has failed
to demonstrate a material question of fact as to whether
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the grievance process amounted to a “dead end” such that
administrative remedies were unavailable to him.
7. Fear
Plaintiff testified that he was in fear for his life while he was
incarcerated at Gouverneur. See Dkt. No. 26-5 at 99. When
asked for clarification as to whether he was afraid to file a
grievance, plaintiff stated, “Grievance? I was – was more
fearful for my life.” Id. Plaintiff testified, however, that he
was not in fear once he was transferred to Cayuga. See id. at
100. He testified that he did not pursue his grievance after not
receiving a response to his alleged appeal because he did not
know he was “supposed to” but also because he “didn't want
the whole state against me, man. I didn't want to leave one
jail and then go to another jail and I got the police all over me
there neither. So I wanted to like kind of fly under the radar.”
Id. at 101.
*13 Administrative remedies may be unavailable
where “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860.
However, a generalized fear of retaliation is insufficient
to overcome a failure to exhaust administrative remedies.
Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016
WL 4411338, at *5 (N.D.N.Y. July 5, 2016). Estoppel is
found where “verbal and physical threats of retaliation,
physical assault, denial of grievance forms or writing
implements, and transfers” occur showing that defendants
acted affirmatively to prevent an inmate from availing him
or herself of the grievance procedures. Id. at *5 (quoting
Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)).
Pridgen v. Beatie, No. 9:16-CV-535 (DNH/CFH), 2018
WL 1402049, at *8 (N.D.N.Y. Jan. 17, 2018), report and
recommendation adopted, No. 9:16-C-V535 (DNH/CFH),
2018 WL 1394146 (N.D.N.Y. Mar. 19, 2018).
Here, plaintiff's generalized, conclusory arguments about
being in fear while at Gouverneur fail to state a
viable unavailability argument under the “machination,
misrepresentation, or intimidation” exception. Ross, 136 S.
Ct. at 1860. Plaintiff does not assert that any specific
individual at Gouverneur prevented him from filing an
appeal by threatening or intimidating him. Plaintiff offers no
argument or proof that defendants or other prison officials
“affirmatively or misleadingly prevented Plaintiff from filing
the appeal to CORC” or otherwise pursuing his administrative
remedies.” Shabazz, 2023 WL 5779533, at *7. Further, when
asked if he were afraid of filing a grievance, his response
suggested that he was fearful, generally, during his time at
Gouverneur, and suggested that he was not specifically afraid
of proceeding with his grievance. See Dkt. No. 26-5 at 99.
Significantly, the undisputed facts in this case belie any claims
of fear. Plaintiff filed four – and argues he filed five –
grievances at Gouverneur, defeating an argument that he was
too afraid for his life to take advantage of his administrative
remedies. See, e.g., McNab v. Doe, 686 F. App'x 49, 51 (2d
Cir. 2019) (summary order) (affirming summary judgment
dismissing the plaintiff's complaint for failure to exhaust
where although the plaintiff asserted that the defendants tried
to intimidate him because “none of the actions allegedly taken
by the defendants actually prevented [him] from submitting
his complaint letter.”); Riles v. Buchanan, 656 F. App'x
577, 581 (2d Cir. 2016) (summary order) (finding that the
defendants’ alleged threats of retaliation did not interfere
with the plaintiff's exhaustion efforts because, following a
threat, the plaintiff “thereafter submitted ... [a] grievance
in spite of this alleged threat”); Hall v. Annucci, No. 19-
CV-5521 (KMK), 2022 WL 3903255, at *10 (S.D.N.Y.
Aug. 30, 2022), aff'd, No. 22-2031, 2023 WL 7212156 (2d
Cir. Nov. 2, 2023) (“[w]here an inmate files a grievance
or appeals a grievance determination after having received
threats or suffered retaliation, the inmate's conduct ‘directly
cuts against’ ... [an] argument that ... administrative remedies
were unavailable.”) (citation omitted).
*14 Accordingly, the undersigned concludes that
plaintiff fails to demonstrate that administrative remedies
were unavailable to him on the ground that “prison
administrators thwart[ed] [him] from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Ross, 578 U.S. at 643-44.
C. Doe Defendants
The undersigned observes that plaintiff has failed to identify
or serve process on John Does 1-8, as required by Rule 4(m)
and N.D.N.Y. Local Rule 4.1, despite having ample time
and opportunity. Plaintiff commenced this action on March
8, 2023. See Compl. Discovery in this action expired in
March 2024. See Dkt. No. 22. Plaintiff has had a substantial
amount of time to identify and serve the Doe defendants,
“and the Court is under no obligation to extend the deadline
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indefinitely.” Santiagocruz v. Doe #4, No. 9:21-CV-0806
(TJM/ML), 2023 WL 9600956, at *1 n.1 (N.D.N.Y. Dec.
15, 2023), report and recommendation adopted sub nom.
Santiagocruz v. Gordon, No. 9:21-CV-806, 2024 WL 532499
(N.D.N.Y. Feb. 8, 2024) (citation omitted); see Waldo v.
Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct.
1, 1998) (Kahn, J.) (dismissing claims against Doe defendants
pursuant to Fed. R. Civ. P. Rule 4(m) where the pro se
plaintiff failed to serve the Doe defendants within a year of
commencing the action).
“All discovery is complete and thus, [P]laintiff's failure to
identify the ‘John Doe’ defendant[s] mandates dismissal.”
Epps v. City of Schenectady, No. 10-CV-1101, 2013 WL
717915, at *5 (N.D.N.Y. Feb. 27, 2013). Accordingly, the
undersigned recommends sua sponte dismissal of defendants
John Does 1-8 from this action without prejudice.
D. Dismissal
The Second Circuit has “recognized that failure to exhaust
administrative remedies is usually a ‘curable, procedural
flaw’ that can be fixed by exhausting those remedies and
then reinstituting the suit.” Neal v. Goord, 267 F.3d 116,
123 (2d Cir. 2001) (quoting Snider v. Melindez, 199 F.3d
108, 111-12 (2d Cir. 1999)), overruled on other grounds
by Porter v. Nussle, 534 U.S. 516 (2002). Thus, where
a claim is dismissed for failure to exhaust administrative
remedies, dismissal without prejudice is appropriate if the
time permitted for pursuing administrative remedies has not
expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004); see
Pettus v. McCoy, 04-CV-0471, 2006 WL 2639369, at *1-2
(N.D.N.Y. Sept. 13, 2006) (dismissing a complaint without
prejudice for failure to exhaust). However, if a prisoner has
failed to exhaust available administrative remedies and the
time in which to exhaust has expired, it is proper for the court
to dismiss the complaint with prejudice because any attempt
to exhaust would be futile. See Berry v. Kerik, 366 F.3d 85,
86 (2d Cir. 2004); see, e.g., Hilbert v. Fischer, 12-CV-3843,
2013 WL 4774731, at *7 (S.D.N.Y. Sept. 5, 2013) (collecting
cases).
Here, plaintiff received the Superintendent's denial on May
3, 2022, and he commenced this action March 8, 2023. As
plaintiff's time to exhaust his administrative remedies has
expired, it is recommended that his complaint be dismissed
with prejudice.
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
RECOMMENDED, that defendants’ West and Fenlong's
Motion for Summary Judgment, Dkt. No. 26, be GRANTED
in its entirety with prejudice; and it is further
*15 RECOMMENDED, that the claims against the
Doe defendants be DISMISSED without prejudice based
on plaintiff's failure to timely identify and serve those
defendants; and it is
ORDERED, that the Clerk serve this Report-
Recommendation & Order on the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. See Roldan
v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a),
6(e). 7
All Citations
Slip Copy, 2025 WL 1033787
Footnotes
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1 Unless otherwise noted, the Court has provided plaintiff with copies of all unpublished cases cited herein.
2 As in this case,
There are ... special procedures that may be used when the grievance involves a claim of staff misconduct.
Id. § 701.8. A grievance alleging staff misconduct, once it is recorded and given a number, must be sent
directly to the Superintendent, and the Superintendent must issue a decision within twenty-five days. Id. §
701.8(f). If the grievant wishes to appeal a decision by the Superintendent to CORC, he must file a notice
of decision to appeal with the inmate grievance clerk at the bottom of the Superintendent's decision within
seven days of receipt of the decision. Id. § 701.8(h). CORC is required to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.8(i) (incorporating § 701.5).
Ayers v. Trombley, No. 9:17-CV-01229 (DNH/TWD), 2019 WL 3892864, at *10 (N.D.N.Y. July 8, 2019), report
and recommendation adopted, No. 9:17-CV-1229 (DNH/TWD), 2019 WL 3891027 (N.D.N.Y. Aug. 19, 2019).
3 As concluded, supra, the undersigned has found that plaintiff failed to demonstrate that he appealed the
Superintendent's denial to CORC.
4 The regulations provide that an individual who wishes to appeal a Superintendent's denial in the expedited
procedure has seven calendar days after receipt of the denial to do so. See 7 N.Y.C.R.R. 701.6(h)(2).
The Superintendent's denial of his grievance is dated May 5, 2022. It is unclear when he received the
Superintendent's denial, but the undersigned recognizes that his training likely came after the seven-day
period had expired. However, plaintiff demonstrates that his absence of formal training at Gouverneur did not
stop him from successfully navigating the grievance procedure at the earlier stages.
5 A request for an extension of time to file an appeal to CORC may be requested in writing, but “an exception
to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.”
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(1)(i)(a), (b). An inmate may choose to file a separate grievance
if a request for an extension is denied. See id. § 701.6(1)(i)(b). Plaintiff completed the shop facility orientation
on May 22, 2022, within forty-five days after the alleged occurrence on April 11, 2022. Thus, even if he was
untrained on how proceed with the grievance process after receiving the Superintendent's denial until after he
completed training, he still had time to request an extension to do so after receiving training. In such training,
he would have likely also been advised to write to CORC or the IGRC if he did not receive confirmation of
receipt of an appeal.
6 Further, in some cases addressing unavailability when an appeal to CORC is unanswered, the court found
administrative remedies unavailable where the inmate plaintiff was transferred before receiving a response;
here, however, plaintiff received the Superintendent's denial before being transferred and remained at
Gouverneur for over a month after receipt of the denial. See, e.g., Robinson v. Ballard, 9:13-CV-01213 (TJM/
TWD), 2017 WL 979047, at *12 (N.D.N.Y. Feb. 3, 2017), report and recommendation adopted, 2017 WL
979039 (N.D.N.Y. Mar. 13, 2017) (citing Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016)) (“as in Williams,
Plaintiff in this case was transferred to a new facility before receiving a response to his grievance and failed
to receive a response after the transfer.”); See Dkt. No. 26-2 at 2.
7 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Report-Recommendation & Order was mailed to you to serve and file objections. See FED. R. CIV.
P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(C).
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Jenkins v. Short, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 9264842
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Darell JENKINS, Plaintiff,
v.
Sergeant SHORT, et al., Defendants.
9:19-cv-01352 (GTS/TWD)
|
Signed 11/16/2020
|
Filed 11/17/2020
Attorneys and Law Firms
DARELL JENKINS, Plaintiff, pro se, 18-A-0025, Southport
Correctional Facility, PO Box 2000, Pine City, NY 14871.
OF COUNSEL: LAUREN ROSE EVERSLY, ESQ.,
Assistant Attorney General, HON. LETITIA JAMES,
Attorney General for the State of New York, Attorney for
Defendants, The Capitol, Albany, NY 12224.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 This matter was referred for a Report and
Recommendation by the Honorable Glenn T. Suddaby, Chief
U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(c). Plaintiff Darell Jenkins, an inmate in the
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”), commenced this
pro se civil action under 42 U.S.C. § 1983, asserting claims
arising out of his incarceration at Mid-State Correctional
Facility (“Mid-State”). (Dkt. No. 1.) The suit was originally
filed in the United States District Court for the Western
District of New York (“W.D.N.Y.”), but was later transferred
to this District. (Dkt. No. 6.) The District Court reviewed
the complaint in accordance with 28 U.S.C. § 1915,
and found only Plaintiff's First Amendment free exercise
claims against Defendants Correctional Officer (“C.O.”)
Lindermayer, Sergeant (“Sgt.”) Short, and C.O. O'Neil
survived initial review and required a response. (Dkt. No. 10.)
Defendants now move for summary judgment, in lieu of
an answer, pursuant to Rule 56 of the Federal Rules
of Civil Procedure arguing Plaintiff failed to exhaust his
administrative remedies prior to commencing this action.
(Dkt. No. 21.) Plaintiff has not responded to Defendants’
motion and the time to do so has expired. (See Dkt. Nos.
25, 26, 27, 28.) For the reasons set forth below, the Court
recommends that Defendants’ motion be granted.
II. BACKGROUND
Plaintiff alleges that on September 1, 2019, at approximately
9:30AM, while Defendants were inside his cell, C.O.
Lindermayer “kneeled down on the floor above [Plaintiff's]
altar of Santeria, & threw [his] offerings & water away[.]
(Dkt. No. 1 at 5. 1 ) C.O. O'Neil then described Plaintiff's
religion as “voodoo.” Id. C.O. Lindermayer, Sgt. Short, and
C.O. O'Neil told Plaintiff he was not permitted to offer
“any food to [his] saints on [his] altar” and that he was not
permitted to have frankincense oils. Id.
Plaintiff filed a grievance but the grievance officer “Tapia” 2
“never answered [him]” and he “couldn't do anything because
the grievance officer [did] not respond[.]” Id. Attached to
Plaintiff's complaint is a letter dated September 27, 2019,
from C. Tapia, IGP, acknowledging receipt of five pages
of correspondence, assigned Grievance No. MS-24259-19.
Id. at 8. The letter indicates Grievance No. MS-24259-19
was “forwarded to the Superintendent in accordance with
Directive #4040” and that Plaintiff would be “notified of the
results.” Id. The letter stated to “Please refer to this grievance
# with any future inquires.” Id.
*2 Plaintiff's complaint is dated September 27, 2019. Id.
at 7. It was notarized on October 3, 2019, and was stamped
received by the Clerk for the W.D.N.Y. on October 11, 2019.
Id. The matter was subsequently transferred to this District by
Order of U.S. District Judge Elizabeth A. Wolford, issued on
October 15, 2019. (Dkt. No. 5.) Upon receipt of the action,
this Court issued a Decision and Order denying Plaintiff's
in forma pauperis (“IFP”) application as incomplete. (Dkt.
No. 7.) Plaintiff filed a second IFP application and pursuant
to the District Court's March 30, 2020, Decision and Order,
Plaintiff's First Amendment free exercise claims against
Defendants C.O. Lindermayer, Sgt. Short, and C.O. O'Neil
survived initial review, and summonses were issued as to
them. (Dkt. Nos. 8, 10, 11.)
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Defendants have not answered the complaint and instead
move for summary judgment based solely on exhaustion
grounds. (Dkt. No. 21-1.) To that end, Defendants have
submitted sworn declarations from Rachel Seguin, the
Assistant Director of the IGP for DOCCS, and Christopher
Tapia, Supervisor of the IGP at Mid-State, describing
DOCCS’ administrative exhaustion process. (Dkt. Nos. 29-2,
29-3.) Defendants offer evidence that on or about September
4, 2019, Plaintiff filed a series of letters that were consolidated
into Grievance No. MS-24269-19, which alleged that on
September 1, 2019, during a cell integrity check, C.O.
Lindermayer threw out the sacrifices at his altar. (Dkt.
No. 21-2 at ¶ 6.) The letters also alleged that, at some
point between September 1, 2019 and September 3, 2019,
C.O. O'Neil referred to Plaintiff's religion as “voodoo,” and
that Sgt. Short also interfered with his religious practice.
Id. The first page of Grievance No. MS-24269-19, was
stamped received by the “IGP Office” on September 4,
2019. (See Dkt. No. 21-3 at 8.) Due to the nature of the
allegations, Grievance No. MS-24269-19 was forwarded to
the Superintendent. (Dkt. No. 21-2 at ¶ 7.) On or about
April 30, 2020, the Superintendent issued a determination
denying Grievance No. MS-24269-19. Id. There is no record
of Plaintiff appealing Grievance No. MS-24269-19 to the
Central Office Review Committee (“CORC”). Id. at ¶¶ 9,
13. Thus, Defendants argue summary judgment is appropriate
in this case because Plaintiff failed to fully exhaust his
administrative remedies prior to the commencement of this
action. (Dkt. No. 21-1.) As noted above, Plaintiff has failed
to submit any opposition to Defendants’ motion.
III. DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
A. Standard of Review
A court shall grant summary judgment only if the submissions
of the parties 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.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of
demonstrating “the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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.
In determining whether a genuine issue of material fact exists,
the court must resolve all ambiguities and draw all reasonable
inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
A verified complaint, as Plaintiff has filed in this case, is to
be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir. 1995) (“A verified complaint is to be treated as an
affidavit ... and therefore will be considered in determining
whether material issues of fact exist[.]”) (citations omitted).
*3 Where a party is proceeding pro se, the court must “read
[the pro se party's] supporting papers liberally, and ... interpret
them to raise the strongest arguments that they suggest.”
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However,
“a pro se party's ‘bald assertion,’ unsupported by evidence, is
not sufficient to overcome a motion for summary judgment.”
Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL
983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
As noted, Plaintiff did not respond to Defendants’ motion for
summary judgment. Defendants’ motion advised Plaintiff of
the consequences of failing to respond to the motion. (Dkt.
No. 21 at 3.) The Clerk of the Court provided Plaintiff a
similar notice. (Dkt. No. 24.) When Plaintiff failed to timely
respond to the motion, the Court sua sponte granted Plaintiff
additional time in which to do so, again advising Plaintiff of
the consequences of failing to respond. (See Dkt. Nos. 25, 26,
27, 28.)
“The fact that there has been no response to a summary
judgment motion does not, of course, mean that the motion is
to be granted automatically.” Champion v. Artuz, 76 F.3d 483,
486 (2d Cir. 1996). However, when a motion for summary
judgment is unopposed, the court may “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)(3); see also N.D.N.Y. L.R.
7.1(b)(3) (“Where a properly filed motion is unopposed and
the Court determines that the moving party has met its burden
to demonstrate entitlement to the relief requested therein,
the non-moving party's failure to file or serve any papers ...
shall be deemed as consent to the granting or denial of the
motion.”). Moreover, all properly supported facts set forth in
Defendants’ Statement of Material Facts that have not been
specifically controverted shall be deemed admitted. N.D.N.Y.
L.R. 7.1(a)(3).
B. Exhaustion of Administrative Remedies
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The Prison Litigation Reform Act of 1995 (“PLRA”),
provides, in pertinent part, “[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). Exhaustion is required
for “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). “[E]xhaustion is mandatory
under the PLRA and ... unexhausted claims cannot be brought
in court.” Jones v. Bock, 549 U.S. 199, 211 (2007); see also
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).
To properly exhaust administrative remedies under the PLRA,
inmates are required to complete the administrative review
process in accordance with the rules applicable to the
institution to which they are confined. 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”).
*4 In New York State prisons, DOCCS has a well-
established three-step administrative review process. See 7
N.Y.C.R.R. § 701.5. First, an inmate must file a complaint
with the facility's IGP clerk within twenty-one calendar days
of the alleged occurrence. Id. § 701.5(a). A representative
of the facility's inmate grievance resolution committee
(“IGRC”) has sixteen calendar days from receipt of the
grievance to informally resolve the issue. Id. § 701.5(b)(1).
If there is no such informal resolution, then the full IGRC
conducts a hearing within sixteen calendar days of receipt of
the grievance, id. § 701.5(b)(2), and issues a written decision
within two working days of the conclusion of the hearing. Id.
§ 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the
facility's Superintendent within seven calendar days of receipt
of the IGRC's written decision. Id. § 701.5(c)(1). If the
grievance involves an institutional issue (as opposed to a
DOCCS-wide policy issue), the Superintendent must issue a
written decision within twenty calendar days of receipt of the
grievant's appeal. Id. § 701.5(c)(3)(ii).
Third, a grievant may appeal to CORC within seven working
days of receipt of the Superintendent's written decision. Id. §
701.5(d)(1)(i). CORC is to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)
(ii).
Where the grievance involves allegations of employee
misconduct, as alleged here, there is an expedited
administrative process. See id. § 701.8. Complaints of
harassment, once given a number and recorded by the IGP
clerk, are forwarded directly to the Superintendent of the
facility. Id. In such cases the Superintendent is required to
order an investigation and render a decision within twenty-
five calendar days. Id. § 701(a)-(f). If the Superintendent
fails to respond within the required twenty-five day time
limit, the inmate may appeal his grievance to CORC. Id. §
701.8(g). Disagreement with the Superintendent's decision in
the expedited review process also requires an appeal to the
CORC. See id. § 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). Thereafter, CORC must
render a written decision within thirty days of receipt of the
appeal. Id. § 701.8(i). The Second Circuit has long recognized
this procedure as an “available remedy” for purposes of the
PLRA. See Hall v. Cty. of Saratoga, No. 10-CV-1120 (NAM/
CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6, 2013).
At each step of the IGP, a decision must be rendered
within a specified time period. “Where the IGRC and/or
Superintendent do not timely respond, an inmate must appeal
to ‘the next step,’ ” assuming there is a “next step” in the
grievance process. Eleby v. Smith, No. 9:15-CV-0281(TJM/
DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017)
(quoting 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required
steps prior to commencing litigation, he has failed to exhaust
his administrative remedies as required under the PLRA.
See Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d
Cir. 2006) (“[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).” (quotation marks and citations omitted)).
Nevertheless, 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 only those
administrative remedies that “are available” must first be
exhausted. 42 U.S.C. § 1997e(a); Ross, 136 S. Ct. at 1858
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(“[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 “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, 136 S. Ct. at 1859 (quotation marks and citations
omitted).
*5 The Ross Court identified three circumstances in which
a court may find 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.
Because failure to exhaust is an affirmative defense, the
defendants bears the burden of showing that an inmate has
failed to satisfy the exhaustion requirements. See Jones, 549
U.S. at 216; Williams v. Priatno, 829 F.3d 118, 122 (2d Cir.
2016). Whether the plaintiff has exhausted his administrative
remedies is a question of law. See Snider v. Melindez, 199
F.3d 108, 113-14 (2d Cir. 1999). Thus, an inmate's failure to
exhaust administrative remedies is properly considered on a
motion for summary judgment in lieu of an answer. Crichlow
v. Fischer, No. 6:15-CV-06252 EAW, 2017 WL 920753, at
*5 (W.D.N.Y. Mar. 7, 2017) (citing Crenshaw v. Syed, 686 F.
Supp. 2d 234, 236 (W.D.N.Y. 2010) (granting a motion for
summary judgment made in lieu of an answer where inmate
failed to exhaust administrative remedies)).
Here, it is undisputed Plaintiff failed to avail himself of the
full panoply of administrative remedies prior to commencing
this action. (Dkt. No. 21-2.) The record before the Court
demonstrates Plaintiff completed only the first step of the
grievance process before commencing this lawsuit. Id. As
stated above, Plaintiff filed a series of letters that were
consolidated into Grievance No. MS-24269-19. Id. at ¶ 7. Due
to the nature of the allegations, Grievance No. MS-24269-19
was forwarded to the Superintendent for investigation in
accordance with DOCCS policy on or about September 4,
2019. Id. at ¶ 8. On April 30, 2020, the Superintendent issued
a determination denying Grievance No. MS-24269-19. Id. at
¶ 9. However, Plaintiff did not appeal the Superintendent's
denial of Grievance No. MS-24269-19 to CORC. Id. at ¶ 10.
For these reasons, the Court finds Plaintiff failed to exhaust
his administrative remedies. See Bennett v. Fletcher, No.
9:17-CV-849 (GTS/CFH), 2020 WL 872491, at *7 (N.D.N.Y.
Jan. 16, 2020) (citing Omaro v. Annucci, 68 F. Supp. 3d
359, 364 (W.D.N.Y. 2014) (“It is well-established that an
inmate who does not appeal to CORC has failed to exhaust his
administrative remedies.”)), report-recommendation adopted
by 2020 WL 871156 (N.D.N.Y. Feb. 21, 2020); see, e.g.,
Hamm v. Farney, No. 9:13-CV-1302 (BKS/CFH), 2017
WL 8894723, at *5 (N.D.N.Y. Dec. 22, 2017), report and
recommendation adopted by 2018 WL 922149 (N.D.N.Y.
Feb. 16, 2018) (dismissing the plaintiff's complaint for failure
to exhaust where the IGP supervisor and DOCCS Assistant
Director of IGP both declared that “a search of the DOCCS
database confirmed plaintiff's original grievance, as well as
an appeal to the Superintendent, but produced no record of
an appeal to CORC”); see also Teaque v. Mullen, No. 9:18-
CV-01412 (GTS/CFH), 2019 WL 8589277, at *7 (N.D.N.Y.
Dec. 17, 2019) (“Because plaintiff commenced this action
before receiving a response from the Superintendent of
Mid-State regarding his grievance, plaintiff did not fully
exhaust his administrative remedies before commencing this
action.”), report and recommendation adopted by 2020 WL
858355 (N.D.N.Y. Feb. 21, 2020).
*6 “[O]nce a defendant has adduced reliable evidence that
administrative remedies were available to the plaintiff and
that the plaintiff nevertheless failed to exhaust those remedies,
the plaintiff must then ‘counter’ the defendant's assertion by
showing exhaustion [or] unavailability” under Ross. Ferrer v.
Racette, No. 14-cv-1370 (GTS/DJS), 2017 WL 6459525, at
*12 (N.D.N.Y. Dec. 18, 2017) (citation omitted); see Perez v.
Colon, No. 9:19-CV-722 (GTS/DJS), 2020 WL 4549206, at
*4 (N.D.N.Y. June 16, 2020) (“finding no basis appeared on
the record for concluding that DOCCS’ grievance procedure
was unavailable to the plaintiff given he failed to respond
to the defendants’ motion”), report and recommendation
adopted by 2020 WL 4530602 (N.D.N.Y. Aug. 6, 2020).
Although he did not respond to Defendants’ motion,
Plaintiff's verified complaint suggests administrative
remedies were unavailable to him at the time he commenced
this action because the “grievance officer [did] not
respond[.]” (Dkt. No. 1 at 7.) Defendants recognize the
Superintendent's decision was issued beyond the 25 calendar
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days set forth in 7 N.Y.C.R.R. § 701.8(f). (Dkt. No. 21-1 at
7-8.) 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 a lack of response
at any level of review. See Smith v. Kelly, 985 F. Supp. 2d
275, 281 (N.D.N.Y. 2013) (Suddaby, C.J.) (“[Any failure
by the IGRC or the Superintendent to timely respond to a
grievance ... can—and must—be appealed to the next level ...
to complete the grievance process.”).
Here, when the Superintendent did not render a decision
on Plaintiff's grievance within 25 days (i.e., by September
29, 2019), Plaintiff had the ability to file an appeal with
CORC. See 7 N.Y.C.R.R. § 701.8(g). “[I]nstead of doing
so, [Plaintiff] rushed to Court, without attempting to appeal
(the Superintendent's non-response) to [CORC] eviscerating
the purpose of the administrative remedy process.” Teaque
v. Mullen, 2020 WL 858355, at *4 (citing Woodford, 548
U.S. at 89 (articulating two main purposes of exhaustion of
administrative remedies)). Thus, because Plaintiff failed to
appeal the Superintendent's non-response to the next level, he
cannot be excused from the grievance process. See Heyliger
v. Gebler, 624 F. App'x 780, 782 (2d Cir. 2015) (summary
order) (“Under the regulations ..., if at any step of the
grievance process, an inmate did not receive a response within
the specified timeframe, he was nonetheless permitted to
‘appeal[ ] to the next step.’ ”) (quoting N.Y. Comp. Codes R.
& Regs. tit. 7, § 701.6(g)(2) (2015)).
Based on the foregoing, the Court agrees with Defendants
that Plaintiff failed to avail himself of the full panoply of
administrative remedies prior to commencing this action.
See James v. Doty, No. 9:17-CV-1145 (MAD/CFH), 2019
WL 1474309, at *5 (N.D.N.Y. Jan. 4, 2019) (“Plaintiff
does not suggest, and the record does not demonstrate, that
plaintiff appealed the non-response to CORC.”), report and
recommendation adopted by 2019 WL 457694 (N.D.N.Y.
Feb. 6, 2019).
Moreover, there is no evidence in the record showing the
grievance procedure “operate[d] as a simple dead end” to
Plaintiff, nor is there any evidence to establish an issue of
fact as to unavailability due to an “opaque” administrate
scheme. See Ross, 136 S. Ct. at 1859-60. As pointed out
by Defendants, Plaintiff filed and appealed the denial of
an unrelated grievance (Grievance No. MS-24271-19) to
CORC on or about November 7, 2019. (Dkt. No. 21-2 at ¶
10.) See also Gonzalez v. Coburn, No. 6:16-cv-6174, 2017
WL 6512859, at *6 (W.D.N.Y. Dec. 20, 2017) (finding the
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
he could not avail himself of it). Lastly, the record does
not demonstrate prison administrators prevented Plaintiff
from using the grievance procedure due to “machination,
misrepresentation, or intimidation.” See Ross, 136 S. Ct. at
1859-60. Thus, given the record and considering the evidence
in the light most favorable to Plaintiff, the Court finds there is
no genuine dispute of fact that administrative remedies were
available.
*7 In light of the foregoing, the Court recommends granting
Defendants’ motion for summary judgment, as there is no
genuine issue of material fact that Plaintiff failed to exhaust
his administrative remedies. Generally, a dismissal for failure
to exhaust administrative remedies is without prejudice, so
that the inmate-plaintiff can cure the defect by exhausting his
administrative remedies and then reinstituting his suit. See
Snider v. Melindez, 199 F. 3d 108, 111-12 (2d Cir. 1999).
However, 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, more than six months have passed since Plaintiff
should have appealed Grievance No. MS-24269-19 to CORC.
(See Dkt. No. 21-2 at ¶¶ 8, 9, 13.) As Plaintiff's failure
to exhaust his administrative remedies is incurable at this
point, the Court recommends dismissing Plaintiff's complaint
with prejudice. See Castineiras v. Helms, No. 9:17-CV-1084
(BKS/ATB), 2019 WL 2870300, at *5-6 (N.D.N.Y. June 6,
2019).
IV. CONCLUSION
After carefully considering the record, the Court finds
Plaintiff failed to exhaust his administrative remedies.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 21) be GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be
DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of
this Order and Report-Recommendation, along with copies
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of the unpublished decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. 3 Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a).
All Citations
Not Reported in Fed. Supp., 2020 WL 9264842
Footnotes
1 Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF
docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified
by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the
record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar
have not been corrected.
2 Christopher Tapia is the Inmate Grievance Program (“IGP”) Supervisor at Mid-State. (Dkt. No. 23-1 at ¶ 3.)
3 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P.
6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P.
6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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LaPierre v. LaValley, 847 Fed.Appx. 47 (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
847 Fed.Appx. 47
This case was not selected for
publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Mark A. LAPIERRE, Plaintiff-Appellant,
v.
Corrections Officer Chad LAVALLEY, Clinton
Correctional Facility, fka E. LaValley, Sergeant
Delisle, Clinton Correctional Facility, Sergeant Michael
Guynup, Clinton Correctional Facility, fka Terry
Guynup, Doctor Krishna Kumar Vadlamudi, Marcy
Correctional Facility, Corrections Officer Randy Russell,
Clinton Correctional Facility, Defendants-Appellees,
Catherine Leahy-Scott, New York State Inspector
General, Commissioner Anthony J. Annucci,
New York State Department of Corrections and
Community Supervision (DOCCS), Defendants.
19-3318
|
March 3, 2021
Synopsis
Background: Inmate brought § 1983 action against several
employees of New York State Department of Corrections and
Community Supervision, including corrections officers and
inmate's physician, alleging Eighth Amendment violations.
The United States District Court for the Northern District
of New York, Mae A. D'Agostino, J., 2019 WL 4686415,
adopted recommendation of Daniel J. Stewart, United States
Magistrate Judge, 2019 WL 4015689, and granted summary
judgment for defendants. Inmate appealed.
Holdings: The Court of Appeals held that:
[1] inmate failed to exhaust administrative remedies, and
[2] failure to exhaust administrative remedies was not
excused.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Summary
Judgment.
West Headnotes (2)
[1] Civil Rights Criminal law enforcement;
prisons
Inmate failed to exhaust administrative
remedies prior to bringing § 1983 action
against employees of New York State
Department of Corrections and Community
Supervision, despite inmate's claim that he
submitted a handwritten complaint to an
unspecified correction officer and the complaint
subsequently went missing; inmate failed to
properly file his complaint with the inmate
grievance clerk so that it would be numbered
and logged at the time of receipt, failed to take
any additional measures to ensure that complaint
was received, and later made contradictory
statements at his deposition regarding whether he
actually filed a grievance. 42 U.S.C.A. § 1983.
1 Case that cites this headnote
[2] Civil Rights Criminal law enforcement;
prisons
Any absence of grievance forms at correctional
facility did not excuse inmate's failure to
exhaust administrative remedies prior to
bringing § 1983 action against employees of
New York State Department of Corrections
and Community Supervision; inmate grievance
program regulations provided that a complaint
could be submitted on plain paper if a grievance
form was not readily available. 42 U.S.C.A. §
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1983; N.Y. Comp. Codes R. & Regs. tit. 7, §
701.5(a)(1).
4 Cases that cite this headnote
*48 Appeal from a judgment of the United States District
Court for the Northern District of New York (D'Agostino, J.;
Stewart, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
For Plaintiff-Appellant: Mark A. LaPierre, pro se, Comstock,
NY.
For Defendants-Appellees: Barbara D. Underwood, Solicitor
General, Victor Paladino, Senior Assistant Solicitor General,
and Brian D. Ginsberg, Assistant Solicitor General, for Letitia
James, Attorney General of the State of New York, Albany,
NY.
Present: Debra Ann Livingston, Chief Judge, Denny Chin,
Joseph F. Bianco, Circuit Judges.
*49 SUMMARY ORDER
Mark LaPierre, pro se and incarcerated, sued several
employees of the New York State Department of
Corrections and Community Supervision (“DOCCS”)—
including corrections officers and his physician, Dr. Krishna
Vadlamudi—under 42 U.S.C. § 1983, alleging Eighth
Amendment violations. First, LaPierre claimed that, on
December 21, 2012, while he was imprisoned at Clinton
Correctional Facility (“Clinton”), the officers beat him while
others failed to intervene (“the Clinton incident”). Second,
LaPierre claimed that, while he was imprisoned at the Marcy
Correctional Facility (“Marcy”), Vadlamudi was deliberately
indifferent to his medical needs by denying him suitable
pain medication and refusing to order diagnostic testing.
The defendants moved for summary judgment, arguing
that LaPierre failed to exhaust his administrative remedies
before filing suit over the Clinton incident and, while he
properly exhausted his claim against Vadlamudi, LaPierre's
disagreement with Vadlamudi's treatment did not amount
to a constitutional violation. The district court granted the
defendants’ motion and LaPierre timely appealed. As to
LaPierre's Eighth Amendment claim against Vadlamudi, we
affirm for substantially the reasons set forth by the district
court. We address whether LaPierre properly exhausted
his administrative remedies regarding the Clinton incident
herein, and assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
* * *
We review a grant of summary judgment de novo,
“resolv[ing] all ambiguities and draw[ing] all inferences
against the moving party.” Garcia v. Hartford Police Dep't,
706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary
judgment is proper only when, construing the evidence in
the light most favorable to the non-movant, ‘there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’ ” Doninger v. Niehoff,
642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P.
56(a)). As relevant here, the Prison Litigation Reform Act
(“PLRA”) provides that incarcerated plaintiffs must exhaust
administrative remedies before filing a claim under § 1983 “or
any other Federal law.” 42 U.S.C. § 1997e(a); see also Ross v.
Blake, ––– U.S. ––––, 136 S. Ct. 1850, 1856, 195 L.Ed.2d 117
(2016). The PLRA requires “proper exhaustion,” meaning
exhaustion in “compliance with an agency's deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81,
90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). As an inmate
of DOCCS, LaPierre was required to submit his grievance
through the Inmate Grievance Program.
[1] The district court found no material issue of fact had been
raised as to LaPierre's failure to exhaust the administrative
remedies that were available to him regarding the Clinton
incident. We agree. In his verified complaint and affidavit,
LaPierre claims that on or around December 29, 2012,
he submitted a handwritten complaint to an unspecified
correction officer and the complaint subsequently went
missing. However, having failed to properly file his complaint
with the Inmate Grievance Clerk so that it would be numbered
and logged at the time of receipt, LaPierre stated that he
took no additional measures to ensure that his complaint
was received. Moreover, at his deposition, LaPierre testified
that he did not file a grievance concerning the Clinton
incident. He also affirmed at his deposition that “[he] tried
to file a grievance” but did not actually do so, because
no grievance forms *50 were available. 1 Doc. 91-2 at 5.
In such circumstances, LaPierre's shifting and contradictory
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statements “transcend credibility concerns and go to the
heart” of whether LaPierre raised a genuine issue of material
fact as to exhaustion. Rojas v. Roman Cath. Diocese of
Rochester, 660 F.3d 98, 106 (2d Cir. 2011); see also Jeffreys v.
City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (“[I]n the
rare circumstance where the plaintiff relies almost exclusively
on his own testimony, much of which is contradictory and
incomplete,” the court must “mak[e] some assessment of the
plaintiff's account” despite “the duty of district courts not to
weigh the credibility of the parties at the summary judgment
stage”). We see no error in the district court's determination
that LaPierre failed to do so.
[2] Nor does the mere absence of grievance forms attested to
by LaPierre during his deposition excuse his failure to exhaust
administrative remedies. An administrative procedure is
unavailable when (1) “it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief
to aggrieved inmates”; (2) it 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.” Williams v. Corr. Officer Priatno, 829
F.3d 118, 123–24 (2d Cir. 2016) (quoting Ross, 136 S.Ct.
at 1859–60). The Inmate Grievance Program regulations
provide that if the grievance “form is not readily available, a
complaint may be submitted on plain paper.” 7 N.Y.C.R.R. §
701.5(a)(1). Moreover, to the extent LaPierre argues that the
administrative procedure was unavailable for other reasons
—either because it was opaque or because he was thwarted
from using it—we have considered these arguments and find
them to be without support in the record for substantially the
reasons provided by the district court.
* * *
We have considered LaPierre's remaining arguments and find
them to be without merit. 2 Accordingly, we AFFIRM the
judgment of the district court.
All Citations
847 Fed.Appx. 47
Footnotes
1 The record reflects that LaPierre wrote letters to then-DOCCS Commissioner Brian Fischer on January 1,
2013, and letters to the Inspector General's Office on March 21, 2013 and June 9, 2013, which resulted in
an investigation by the Inspector General. These letters, however, are not the equivalent of a grievance and
did not exhaust LaPierre's administrative remedies. See 7 N.Y.C.R.R. § 701.2(a); see also Ross, 136 S.Ct.
at 1855 (applying Maryland law).
2 LaPierre's pending motion for assignment of counsel, submitted after the briefing period ended, is denied
as moot.
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2019 WL 4686415
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Mark LAPIERRE, Plaintiff,
v.
Chad LAVALLEY, et al., Defendants.
9:15-CV-1499 (MAD/DJS)
|
Signed 09/26/2019
Attorneys and Law Firms
MARK A. LAPIERRE, 15-A-1283, Washington Correctional
Facility, Box 180, 72 Lock 11 Lane, Comstock, New York
12821, Plaintiff, pro se.
OF COUNSEL: CHRISTOPHER LIBERATI-CONANT,
AAG, OFFICE OF THE NEW YORK STATE ATTORNEY
GENERAL, The Capitol, Albany, New York 12224,
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge:
I. INTRODUCTION
*1 Plaintiff, an inmate in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), commenced this action pursuant to 42 U.S.C.
§ 1983, asserting claims arising from his confinement at
both Clinton Correctional Facility (“Clinton”) and Marcy
Correctional Facility (“Marcy”). See Dkt. No. 1. Following
initial review of the complaint and after receiving leave from
the Court, Plaintiff filed his amended complaint on November
30, 2017, which removed previously dismissed Defendants
and added Officer Randy Russell as a named Defendant.
See Dkt. No. 68. Plaintiff's amended complaint contains
five causes of action arising from an incident that allegedly
occurred on December 21, 2012, and medical treatment for
injuries associated with that same incident. See id. at 9-10.
On November 13, 2018, Defendants moved for summary
judgment. See Dkt. No. 79. In their motion, Defendants
contend that Plaintiff's four causes of action relating to the
December 21, 2012 use of force incident must be dismissed
because Plaintiff failed to exhaust administrative remedies.
See Dkt. No. 79-1 at 6-10. As to his deliberate medical
indifference claim against Defendant Vadlamudi, Defendants
argue that the claim fails on the merits. See id. at 10-14.
In an August 26, 2019 Report-Recommendation and Order,
Magistrate Judge Stewart recommended that the Court grant
Defendants' motion in its entirety and dismiss this action. See
Dkt. No. 96. Specifically, Magistrate Judge Stewart found that
Plaintiff failed to file a grievance regarding the December
2012 incident and that Plaintiff failed to demonstrate that his
failure to exhaust should be excused because administrative
remedies were available to him. See id. at 8-14. As to the
claim of deliberate medical indifference against Defendant
Vadlamudi, Magistrate Judge Stewart found that the facts in
the record fail to demonstrate that he acted with the requisite
deliberate indifference to Plaintiff's serious medical needs.
See id. at 17-21. Rather, the Report-Recommendation and
Order found that Plaintiff's claim that Defendant Vadlamudi
was deliberately indifferent is nothing more than a difference
of opinion as to the appropriate medical treatment. See id.
Currently before the Court is Magistrate Judge Stewart's
Report-Recommendation and Order and Plaintiff's objections
thereto.
II. BACKGROUND
For a complete recitation of the relevant factual background,
the Court refers the parties to Magistrate Judge Stewart's
August 26, 2019 Report-Recommendation and Order.
III. DISCUSSION
A. Standard of Review
When a party files specific objections to a magistrate judge's
order and 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,
“[g]eneral or conclusory objections, or objections which
merely recite the same arguments presented to the magistrate
judge, are reviewed for clear error.” O'Diah v. Mawhir, No.
9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011)
(citations and footnote omitted). After the appropriate review,
“the court may accept, reject, or modify, in whole or in part,
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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 “the court 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 moving party as a
matter of law.” 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).
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 id. at 36 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations
omitted). Where the nonmovant 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 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 New York,
322 F.3d 139, 143 n.5 (2d Cir. 2003).
“Furthermore, 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. 2003) (quoting Haines v.
Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652
(1972)) (other citations omitted). “Indeed, the Second Circuit
has stated that ‘[i]mplicit in the right to self-representation
is an obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent
forfeiture of important rights because of their lack of legal
training.’ ” Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983)). “This liberal standard, however, does not excuse
a pro se litigant from following the procedural formalities of
summary judgment.” Id. (citing Showers v. Eastmond, No. 00
CIV. 3725, 2001 WL 527484, at *1 (S.D.N.Y. May 16, 2001)).
Moreover, “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 Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir. 1991)).
B. Exhaustion
The Prison Litigation Reform Act (“PLRA”) states that “[no]
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 suits brought by inmates regarding
aspects of prison life. See Porter v. Nussle, 534 U.S. 516,
532 (2002). Inmates must exhaust all available administrative
remedies even if they are seeking only money damages that
are not available in prison administrative proceedings. See
Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004), abrogated
on other grounds by Ross v. Blake, 136 S. Ct. 1850 (2016). The
failure to exhaust is an affirmative defense that must be raised
by the defendants and, as such, it is the defendants' burden
to establish that the plaintiff failed to meet the exhaustion
requirements. See Jones v. Bock, 549 U.S. 199, 216 (2007);
Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009)
(citations omitted).
*3 The Supreme Court has held that in order to properly
exhaust an inmate's administrative remedies, the inmate must
complete the administrative review process in accordance
with the applicable state rules. See Jones, 549 U.S. at 218-19
(citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford,
the Court held that “proper” exhaustion means that the
inmate must complete the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a prerequisite to bringing suit in federal court.
See Woodford, 548 U.S. at 90-103.
New York State has a three-step administrative review
process. First, a grievance is submitted to the IGRC which
reviews and investigates the formal complaint before issuing
a written determination. See 7 N.Y.C.R.R. § 701.5(b). Second,
an adverse decision by the IGRC may be appealed to the
Superintendent of the Facility. See id. at § 701.5(c). Third, an
adverse decision by the Superintendent may be appealed to
the CORC, which makes the final determination within the
administrative review process. See id. at § 701.5(d).
If an inmate's grievance contains issues of employee
harassment, then the grievance bypasses the first step of IGRC
review and is forwarded directly to the Superintendent. See
id. at § 701.8(b)(c). The Superintendent must render a written
decision within twenty-five days of receipt of the grievance.
See id. at § 701.8(g). An inmate may appeal such a decision
to the CORC within seven days of its receipt. See id. at §
701.8(h).
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If all three levels of review are exhausted, then the prisoner
may seek relief in federal court pursuant to section 1983.
See Bridgeforth v. DSP Bartlett, 686 F. Supp. 2d 238, 239
(W.D.N.Y. 2010) (citing Porter, 534 U.S. at 524); Singh v.
Goord, 520 F. Supp. 2d 487, 495-96 (S.D.N.Y. 2007) (quoting
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).
To the extent a civil rights claim must be exhausted by the
grievance process, completion of the three-tiered process,
through and including a final decision by the CORC, must
be completed before an action asserting that claim may be
filed in court. See, e.g., Casey v. Brockley, No. 9:13-CV-1271,
2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) (“Receiving
a decision from CORC after commencing litigation does not
satisfy PLRA's requirement that administrative remedies be
exhausted before filing suit, and any claim not exhausted
prior to commencement of the suit must be dismissed
without prejudice”) (citing Neal v. Goord, 267 F.3d 116,
122-23 (2d Cir. 2001), overruled on other grounds, Porter
v. Nussle, 534 U.S. 516 (2002)); Rodriguez v. Rosner, No.
12-CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012).
“[A] post-exhaustion amendment of the complaint cannot
cure an exhaustion defect existing at the time the action was
commenced.” Guillory v. Haywood, No. 9:13-CV-1564, 2015
WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing Neal, 267
F.3d at 122) (other citation omitted).
Although administrative remedies generally must be
exhausted, a prisoner need not exhaust remedies if they
are not “available.” Ross, 136 S. Ct. at 1855. “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, 136 S. Ct. at 1859).
“Second, ‘an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.’ ” Id.
(quoting Ross, 136 S. Ct. at 1859). “In other words, ‘some
mechanism exists to provide relief, but no ordinary prisoner
can discern or navigate it.’ ” Id. at 123-24 (quoting Ross,
136 S. Ct. at 1859). “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,
136 S. Ct. at 1860).
*4 In the present matter, the Court finds that Magistrate
Judge Stewart correctly determined that Plaintiff failed to
exhaust his administrative remedies that were available to
him regarding the December 2012 incident that occurred at
Clinton. Initially, as Magistrate Judge Stewart correctly noted,
Plaintiff's conclusory allegation that he filed a handwritten
grievance that “disappeared” is insufficient to raise a question
of fact regarding exhaustion. In his objections, Plaintiff claims
that on or about December 29, 2012, Plaintiff “submitted
the hand-written complaint/grievance because the Infirmary
officers did not have official grievance forms.” Dkt. No. 97
at 9. “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.” Rodriquez v.
Cross, No. 9:15-cv-1079, 2017 WL 2791063, *7 (N.D.N.Y.
May 9, 2017) (citations omitted). Plaintiff has not provided
the Court with any evidence, other than his own conclusory
allegation, to support his claim that he attempted to file a
grievance.
Moreover, in a January 1, 2013 letter Plaintiff sent to then
DOCCS Commissioner Brian Fischer, Plaintiff mentions the
assault and asks that his security designation be changed
so that he would not have to be housed at Clinton later in
the month when he had another court date scheduled. See
Dkt. No. 79-5 at 1-3. In that letter, no mention is made of
Plaintiff's alleged attempt to file a grievance. See id. Similarly,
no mention is made of any alleged grievance in the other
documents Plaintiff submitted to DOCCS officials around
the time of the alleged assault. See, e.g., Dkt. No. 57-2 at
35. Additionally, Plaintiff did cause an investigation by the
Inspector General through filing non-grievance complaints.
See Dkt. No. 79-5 at 5-9. In documents generated as part
of that investigation and by Plaintiff, again no mention is
made of any grievance. See id.; see also Dkt. No. 36-1 at 28.
Moreover, while Plaintiff repeatedly checked on the status
of the Inspector General's investigation into the incident,
Plaintiff made no inquiries into the status of the grievance he
now alleges that he attempted to file. See Dkt. No. 79-5 at 5-9.
Previously, courts in the Second Circuit had held that “ ‘a
letter to the Superintendent who then commences an Inspector
General investigation can constitute “special circumstances”
that satisfy the PLRA requirement that prison officials be
afforded time and opportunity to address prison complaints
internally.’ ” Winfield v. Bishop, No. 9:09-cv-1055, 2013
WL 4736378, *6 (N.D.N.Y. Sept. 3, 2013) (quotation
omitted). As discussed above, however, the Supreme Court
recently rejected the Second Circuit's “special circumstances”
exception to the PLRA's exhaustion requirement. Therefore,
Plaintiff's complaints to the Inspector General's Office and
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Commissioner Fischer, which do not constitute complete
and proper exhaustion under New York's grievance scheme,
cannot excuse his failure to exhaust. See Kearney v. Gebo, No.
9:15-cv-253, 2017 WL 61951, *6 (N.D.N.Y. Jan. 4, 2017). 1
Plaintiff also argues that he was “threatened with further
beatings and stabbing, (murder) should he complain, file a
grievance, or seek medical attention.” Plaintiff further alleged
in his amended complaint that he “was threatened with
Assault and Murder if I sought medical attention or filed
a Grievance or complaint between December 21, 2012 and
December 28, 2012, while at Clinton Correctional Facility.”
Dkt. No. 68 at 3-4. Yet Plaintiff was transferred to Downstate
Correctional Facility on December 28, 2012. The record is
clear that once there, Plaintiff was not deterred from raising
complaints about the alleged December 21, 2012 incident.
Nor was Plaintiff deterred from filing a grievance regarding
his medical treatment, in which he reiterated his claim that
he had been the victim of assault by staff. See Dkt. No.
79-9. The only threats Plaintiff claims to have received
were from officers at Clinton. Since Plaintiff was transferred
back to Downstate on December 28, 2012, and had until
January 21, 2013 to file his grievance, Plaintiff was not
prevented from exhausting his administrative remedies by
anyone at DOCCS. See McNab v. Doe, 686 Fed. Appx. 49,
51 (2d Cir. 2017); Riles v. Buchanan, 656 Fed. Appx. 577,
581 (2d Cir. 2016) (holding that where the plaintiff filed a
grievance, despite being threatened by a corrections officer,
“it cannot be said that the threat interfered with his exhaustion.
He was not deterred from exhausting, he simply did not
exhaust in accordance with the procedures”). Thus, Plaintiff
expressed fear of reprisal or retaliation for filing a grievance
is “inconsistent with Plaintiff's assertion that he did properly
grieve the assault, and with Plaintiff's filing of grievances
after that time.” Gough v. Morris, No. 9:16-cv-1107, 2018 WL
7199494, *5 (N.D.N.Y. Dec. 14, 2018) (citation omitted).
*5 Plaintiff also contends that DOCCS employees told him
that the issue was not grievable and that it was “taken care
of.” Dkt. No. 90 at 12. However, Plaintiff allegation that
he filed a grievance undermines his contention that he was
misled regarding the grievability of the issue. See McNab, 686
Fed. Appx. at 51. Moreover, DOCCS Directive 4040 clearly
instructs that “[i]f an inmate is unsure whether an issue is
grievable, he or she should file a grievance and the question
will be decided through the grievance process[.]” Dkt. No.
79-8 at 2.
Accordingly, the Court finds that the undisputed facts
establish that Plaintiff failed to exhaust administrative
remedies that were available to him and, therefore, Magistrate
Judge Stewart correctly determined that Defendants are
entitled to summary judgment on Plaintiff's claims relating to
the December 21, 2012 incident.
C. Deliberate Indifference
The Eighth Amendment explicitly prohibits the infliction of
“cruel and unusual punishment.” U.S. Const. amend. VIII.
This includes the provision of medical care and punishments
involving “the unnecessary and wanton infliction of pain.”
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations
omitted). A prisoner advancing an Eighth Amendment claim
for denial of medical care must allege and prove deliberate
indifference to a serious medical need. See Wilson v. Seiter,
501 U.S. 294, 297 (1991); Hathaway, 37 F.3d at 66. More than
negligence is required “but less than conduct undertaken for
the very purpose of causing harm.” Hathaway, 37 F.3d at 66.
The test for a § 1983 claim is twofold. First, the prisoner
must show that there was a sufficiently serious medical
need. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998). Second, the prisoner must show that the prison official
demonstrated deliberate indifference by having knowledge of
the risk and failing to take measures to avoid the harm. See
id. “[P]rison officials who actually knew of a substantial risk
to inmate health or safety may be found free from liability
if they responded reasonably to the risk, even if the harm
ultimately was not averted.” Farmer v. Brennan, 511 U.S.
825, 844 (1994).
“ ‘Because society does not expect that prisoners will have
unqualified access to healthcare,’ a prisoner must first make
[a] threshold showing of serious illness or injury” to state
a cognizable claim. Smith v. Carpenter, 316 F.3d 178, 184
(2d Cir. 2003) (quotation omitted). Since there is no distinct
litmus test, whether a medical condition is serious depends
on certain factors, such as “(1) whether a reasonable doctor
or patient would perceive the medical need in question as
‘important and worthy of comment or treatment,’ (2) whether
the medical condition significantly affects daily activities, and
(3) the existence of chronic and substantial pain.” Brock v.
Wright, 315 F.3d 158, 162-63 (2d Cir. 2003) (citing Chance,
143 F.3d at 702). The court should also judge the severity of
the denial of care within the context of the surrounding facts
and circumstances of the case. See Smith, 316 F.3d at 185.
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Deliberate indifference requires the prisoner “to prove that
the prison official knew of and disregarded the prisoner's
serious medical needs.” Chance, 143 F.3d at 702. Thus,
prison officials must be “intentionally denying or delaying
access to medical care or intentionally interfering with the
treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97,
104, (1976). “Mere disagreement over proper treatment does
not create a constitutional claim,” as long as the treatment
was adequate. Id. at 703; Chance, 143 F.3d at 703 (finding
that mere disagreement with the prescribed treatment does not
amount to deliberate indifference to a serious medical need).
Furthermore, allegations of negligence or malpractice do
not constitute deliberate indifference unless the malpractice
involved culpable recklessness. See Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir. 1996).
*6 Finally, while “[c]ruel and unusual punishment may
consist of prison officials delaying an inmate[’s] access to
needed medical care,” Kaminsky v. Rosenblum, 929 F.2d
922, 926 (2d Cir. 1991), the case law of this Circuit “has
reserved such a classification for cases in which, for example,
officials deliberately delayed care as a form of punishment;
ignored a ‘life-threatening and fast-degenerating’ condition
for three days; or delayed major surgery for over two years.”
Demata v. New York State Corr. Dep't of Health Servs., 198
F.3d 233 (2d Cir. 1999) (table) (affirming summary judgment
for the defendants where the plaintiff received knee surgery
approximately three years after sustaining the underlying
injury) (internal citations omitted).
In the present matter, the Court finds that Magistrate Judge
Stewart correctly determined that Defendant Vadlamudi did
not act with the requisite deliberate indifference to Plaintiff's
serious medical need. Rather, the record demonstrates that
Plaintiff's claim amounts to nothing more than a difference in
opinion as to the medical treatment Plaintiff required.
Initially, Plaintiff claims that Magistrate Judge Stewart
improperly relied on Defendant Vadlamudi's declaration “to
the exclusion of all other evidence.” Dkt. No. 97 at 17.
Plaintiff also alleges that the report incorrectly states that
Defendant Vadlamudi examined Plaintiff on January 18, 2013
and that he ordered Tylenol 3 for Plaintiff and ordered that
he be permitted to use the bottom bunk. See id. Plaintiff
claims that he arrived at Marcy on January 18, 2013 with a
prescription for Tylenol 3 from the doctor at Downstate and
that he was only seen by a nurse that first day, who consulted
with Defendant Vadlamudi by telephone. See id. Plaintiff
claims that Defendant Vadlamudi directed that Plaintiff's
Tylenol 3 prescription not be renewed, and that he only
had seven days of medication remaining. See id. Plaintiff
complains that Defendant Vadlamudi “had a long reputation
of cancelling other doctor's prescriptions, as well as being
rude, forgetful[ ], and unable to see or hear well.” Id.
When Defendant Vadlamudi saw Plaintiff for the first time
on January 22, 2013, Plaintiff takes issue with the limited
examination that was actually performed, claiming that he
only “listened to Plaintiff's heart and lungs with a stethiscope
[sic] and tested Plaintiff's knee reflexes.” Id. at 18. Moreover,
Plaintiff claims that he informed Defendant Vadlamudi that
the doctor at Downstate informed him that he would need
an MRI and that it could be ordered once Plaintiff arrived at
his permanent facility, i.e., Marcy. See id. Despite being so
informed, Defendant Vadlamudi refused to order an MRI. See
id.
Plaintiff also notes that on two occasions, he was transferred
to Franklin Correctional Facility (“Franklin”) for scheduled
court appearances. See id. at 19. On both occasions, the doctor
at Franklin prescribed Tylenol 3 for Plaintiff “due to his
obvious severe pain.” Id. Upon his return to Marcy, Plaintiff
claims that Dr. Vadlamudi again cancelled his prescription for
Tylenol 3. See id.
As Plaintiff's objections make clear, his deliberate medical
indifference claim is based exclusively on his disagreement
with Defendant Vadlamudi's prescribed treatment. See
Chance, 143 F.3d at 703. In his declaration, upon which
the Court may properly rely, Defendant Vadlamudi indicates
that he did not believe that an MRI was medically indicated
and that nothing more than regular Tylenol or Ibuprofen and
ice were needed to treat Plaintiff's symptoms. See Dkt. No.
79-13 at ¶¶ 8-10. He further determined that Tylenol 3, which
contains codeine, was inappropriate for Plaintiff's treatment,
in part, because Plaintiff had a history of opiate-seeking
behavior, which was documented in his medical records. See
id. at ¶¶ 11-12. 2
*7 As Plaintiff's medical records make clear, Plaintiff
was seen and treated by the medical staff at Marcy on a
regular basis. He was never denied treatment, he was simply
denied the treatment that he wanted. Accordingly, the Court
finds that Magistrate Judge Stewart correctly determined that
Defendants' motion for summary judgment should be granted
as to Plaintiff's deliberate medical indifference claim.
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IV. CONCLUSION
After carefully reviewing the entire record in this matter, the
parties' submissions and the applicable law, and for the above-
stated reasons, the Court hereby
ORDERS that Magistrate Judge Daniel J. Stewart's August
26, 2019 Report-Recommendation and Order (Dkt. No. 96) is
ADOPTED in its entirety; and the Court further
ORDERS that Defendants' motion for summary judgment
(Dkt. No. 79) is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants' favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance in the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4686415
Footnotes
1 In his objections, Plaintiff contends that his “written complaint/grievance” was forwarded to Lieutenant Horan,
who interviewed him on January 9, 2013. See Dkt. No. 97 at 11. The “written complaint/grievance” that Plaintiff
is referring to is his January 1, 2013 letter to Commissioner Fischer which, as discussed, does not constitute
complete and proper exhaustion. See Dkt. No. 79-5 at 1-4.
2 Plaintiff indicates in his objections that it is DOCCS policy that medical records to not travel with an inmate
who is sent to a temporary facility for short periods of time. See Dkt. No. 97 at 19. Since it was noted in
Plaintiff's medical record at Marcy that he has a history of opiate seeking behavior, it is not surprising that he
would be able to obtain a new prescription from a non-treating physician, unfamiliar with his past attempts
at obtaining opiates.
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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018)
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2018 WL 4732755
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Alfredo LEWIS, Plaintiff,
v.
Lynn WASIELEWSKI, Rebecca McDaniel, Paul
Burke, Dennis Becker and Sabato Parisi, Defendants.
15-CV-0168-RJA-MJR
|
Signed 07/09/2018
|
Filed 07/10/2018
Attorneys and Law Firms
Alfredo Lewis, Uniondale, NY, pro se.
David J. Sleight, Office of the Attorney General, Buffalo, NY,
for Defendants.
REPORT AND RECOMMENDATION
HONORABLE MICHAEL J. ROEMER, United States
Magistrate Judge
INTRODUCTION
*1 This case has been referred to the undersigned pursuant
to Section 636(b)(1) of Title 28 of the United States Code, by
the Honorable Richard J. Arcara, for hearing and reporting on
dispositive motions for consideration by the District Court.
Before the Court is defendants' motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Dkt. No. 61). For the following reasons, it is recommended
that defendants' motion for summary judgment be granted and
the complaint dismissed.
PROCEDURAL BACKGROUND
Plaintiff Alfredo Lewis (“plaintiff”), an inmate in the care and
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”) who is proceeding
pro se, claims that his constitutional rights were violated, in
contravention of Section 1983 of the Title 28 of the United
States Code, when he was retaliated against and assaulted
as a result of writing letters of complaint while incarcerated
at Gowanda Correctional Facility (“Gowanda”). (Dkt. No.
1). Plaintiff sued Gowanda and a number of individuals
employed by DOCCS as counselors and correction officers
during the relevant time period. (Dkt. No. 1). On August
28, 2015, the Court granted plaintiff’s request to proceed in
forma pauperis. (Dkt. No. 10). The Court also dismissed, with
prejudice, plaintiff’s claims against Gowanda, Supervisor
Counselor Cabeara, and all other individual defendants in
their official capacities. (Id.). The remaining defendants, sued
in their individual capacities, include Lynn Wasielewski,
Rebecca McDaniel, Paul Burke, Dennis Becker, and Sabato
Parisi. In addition to the complaint, plaintiff submitted a
number of other documents and exhibits in support of his
claims. (Dkt. Nos. 11, 13, 14, 22 and 33). Defendants filed
answers to the complaint and the Court held a preliminary
pretrial conference on August 16, 2016, at which time it
entered a Case Management Order. (Dkt. Nos. 25, 28, 31, 34,
37, 39). The parties proceeded with discovery which included
Rule 26 disclosures, document and interrogatory requests by
plaintiff, and a deposition of plaintiff by defendants. (Dkt.
Nos. 40, 43, 48, 58, 64).
Defendants filed the instant motion for summary judgment on
November 26, 2017. (Dkt. Nos. 61-63). Plaintiff submitted a
number of responses in opposition to the motion (Dkt. Nos.
65, 66, 69), and defendants filed a reply on December 22,
2017 (Dkt. No. 67).
RELEVANT FACTS
At the time of the incidents relevant to this lawsuit, plaintiff
was an inmate in the care and custody of DOCCS. 1 (Dkt.
No. 62, ¶¶ 1-2; Dkt. No. 1, pg. 2). Also at the time of the
events alleged in the complaint, defendant Lynn Wasielewski
was employed by DOCCS as a social worker at Gowanda,
defendant Rebecca McDaniel was employed by DOCCS as an
Offender Rehabilitation Coordinator at Gowanda, defendants
Paul Burke and Dennis Becker were employed by DOCCS
as correction officers at Gowanda, and defendant Sabato
Parisi was employed by DOCCS as a correction sergeant at
Gowanda. (Dkt. No. 62 at ¶¶ 3-7; Dkt. No. 1, pg. 2).
*2 Plaintiff’s Arrival at Gowanda
Plaintiff was transferred to Gowanda from Bare Hill
Correctional Facility on or around January 20, 2015. (Dkt.
No. 62-2; Dkt. No. 68, pg. 8). The conviction that resulted
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in plaintiff’s placement in DOCCS custody at that time was
stalking in the second degree. (Dkt. No. 68, pg. 5) Plaintiff
testified that upon arrival at Gowanda, he learned that he
had been transferred there in order to participate in the Sex
Offender Treatment Program (“SOP”). (Id. at 10). Plaintiff
was interviewed by McDaniel, a counselor assisting with
the SOP, on the day he arrived at Gowanda. (Id. at 8, 11).
Plaintiff testified that he informed McDaniel that because he
was not incarcerated for a sex offense, he was not required
to complete the SOP. (Id.). Plaintiff contends that McDaniel
informed him that unless he signed a paper enrolling himself
in the SOP, he would be required to serve his maximum
sentence of incarceration. (Id. at 9-11). Plaintiff emphasized
to McDaniel that the SOP was not consistent with his “merit
board” and that it would interfere with his ability to enroll
in other programs. 2 (Id. at 9, 11). Plaintiff indicates that
McDaniel became very agitated with him during the interview
as result of his opposition to participate in the SOP. (Id. at
11-12). Nonetheless, plaintiff was enrolled in the SOP and
began participating. (Dkt. No. 66, pg. 21; Dkt. No. 64, pgs.
27, 31).
In early February of 2015, plaintiff wrote letters of complaint
to Cabrera and Wasielewski. (Dkt. No. 1, pgs. 3-5; Dkt.
No. 69, pgs. 9-18). Plaintiff indicates that both of these
individuals were supervisors at Gowanda. (Id.). Specifically,
plaintiff complained about his placement in the SOP and
McDaniel’s refusal to place him in other programs. (Id.).
He complained that during the SOP meetings McDaniel
asked him inappropriate questions about his parents' sexual
relationship. (Id.). He further complained that McDaniel
would have outbursts during meetings if he or other inmates
did not provide certain answers to her questions, which caused
them to fabricate stories. (Id.).
Alleged Assault on February 6, 2015
Plaintiff contends that on February 6, 2015, Wasielewski
confronted him immediately prior to a SOP meeting. (Dkt.
No. 68, pgs. 14-15; Dkt. No. 1, pg. 6). Wasielewski was upset
that plaintiff “went over her head and McDaniel’s head by
writing to Cabrera.” (Dkt. No. 68, pg. 15). Plaintiff states
that he returned to the meeting and that after it ended, he
was approached by a correction officer who indicated that
a sergeant wanted to speak with him. (Dkt. No. 68, pg. 17;
Dkt. No. 1, pg. 6). Plaintiff reported to Parisi, the correction
sergeant. (Dkt. No. 62, ¶ 15). Plaintiff states that he was then
taken to a stairwell, told to put his hands on the wall, and
handcuffed. (Dkt. No. 68, pg. 18; Dkt. No. pg. 6). Plaintiff
claims that Parisi pulled his hair and repeatedly punched
him in the ribs. (Dkt. No. 68, pgs. 18-19; Dkt. No. pg. 6).
Plaintiff contends that Parisi stated “what the hell do [you]
think [you are] doing writing letters” and accused him of
trying to get staff members fired. (Dkt. No. 68, pg. 19; Dkt.
No. 1, pg. 6). Plaintiff alleges that Parisi stated to him: “I'm
going to put your black ass in the SHU box” and to another
officer in plaintiff’s presence: “[Plaintiff is] lucky he don't put
[plaintiff] somewhere [his] body can't be found.” (Dkt. No.
1, pg. 6).
*3 Plaintiff received an inmate misbehavior report that same
day charging him with harassment, lying and stalking. (Dkt.
No. 68, pg. 17; Dkt. No. 1, pg. 6-7). The misbehavior report,
which was written by K. Hoth and signed by Parisi, alleged
that plaintiff harassed McDaniel and included inappropriate
comments about her in his letters of complaint causing her
to fear for her safety. (Dkt. No. 69, pg. 21-22; Dkt. No.
62-5). Plaintiff contends that the charges were fabricated
by McDaniel and Wasielewski to retaliate against him for
his complaints. (Dkt. No. 1; pg. 6-7). Plaintiff was found
guilty of all three charges at a disciplinary hearing held on
February 20, 2015. (Dkt. No. 68 pg. 24; Dkt. Nos. 62-6,
62-7). Plaintiff was sentenced to ninety days in the special
housing unit (“SHU”) and ninety days loss of recreation,
packages, commissary, phone and special events. (Dkt. No.
62, ¶ 17). Plaintiff appealed the hearing determination to the
DOCSS Commissioner in Albany, New York. (Dkt. No. 68,
pg. 25; Dkt. No. 11). On or around March 6, 2015, plaintiff
was transferred to Upstate Correctional Facility (“Upstate”).
(Dkt. No. 68, pg. 27; Dkt. No. 62-2). As a result of his
appeal, plaintiff’s convictions for making a false statement
and stalking were dismissed on April 23, 2015. (Dkt. No. 68,
pgs. 24-25, 27; Dkt. No. 11). His sentence was reduced to
thirty days in SHU. (Id.).
Use of DOCCS' Grievance Procedures
In his federal court complaint, plaintiff states that he did not
file a grievance regarding the assault on February 6, 2015
“in order to keep [himself] safe from staff.” (Dkt. No. 1,
pg. 7). He further states in the complaint that “Albany was
sent a complaint by mail on what ha[d] taken place.” (Id.).
However, plaintiff provided contradictory testimony during
his deposition. Specifically, plaintiff testified during his
deposition that he filed a grievance about the February 6,
2016 incident but never received a response. (Dkt. No. 68, pg.
20). Plaintiff also testified that he wrote a letter to the State
Commission of Corrections about the incident. (Id. at 21; Dkt.
No. 62-9). When asked for clarification by defense counsel,
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plaintiff testified, “I wrote to grievance on a few different
people ... I don't think I put exactly what happened because I
didn't know if it would actually be, you know, passed off to the
wrong person ... I didn't want to let too much be known after
the threats I was getting.” (Dkt. No. 68, pg. 22). Later during
the same deposition, defense counsel asked plaintiff about
his statement in his federal court complaint indicating that he
did not grieve the incident. Plaintiff testified, in contradiction
to his earlier statement during the deposition that he filed a
grievance, that he did not file a grievance because he was
fearful that officers would further harm him. (Id. at 29-30).
Plaintiff further testified that officers harassed and threatened
him and that when he was being taken to SHU an officer stated
“go ahead and run your mouth” and “your other hand will
be broken.” (Id. at 22-23, 31-32). However, plaintiff did not
specify which officers threatened him nor is it clear exactly
when these alleged threats occurred.
Also during his deposition, plaintiff acknowledged that he
filed the instant lawsuit on February 25, 2015, less than
thirty days after the alleged assault and while he was still
incarcerated at Gowanda. (Dkt. No. 68, pgs. 29-30). When
asked by defense counsel why he was afraid to file a grievance
but was not afraid to file a lawsuit, plaintiff testified that he
believed he would be transferred out of Gowanda soon after
his disciplinary hearing. (Id. at 30). Plaintiff further testified
that he did not believe the grievance process was effective,
since he “knew it would be intercepted someway”, he did not
“see [the officers] investigating themselves” and he “wanted
somebody to come from the outside to investigate this.” (Id. at
30-31). Plaintiff also testified that he did not file a grievance
after his transfer to Upstate because he described the alleged
assault during the appeal of his disciplinary charges. (Id. at
33). Plaintiff testified that he is familiar with inmate grievance
procedures. (Id. at 22). A review of the inmate grievance
records from DOCCS shows no record of a grievance or
appeal filed by plaintiff while at Gowanda alleging retaliation
or assault by defendants. (Dkt. No. 62, ¶ 21, Dkt. No. 62-8).
DISCUSSION
*4 Pursuant to Federal Rule of Civil Procedure 56, summary
judgment is to be granted where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” See Fed. R. Civ. P. 56. A genuine
issue of material fact exists “where the evidence is such
that a reasonable jury could decide in the non-movant’s
favor.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d
Cir. 2008). “[V]iewing the evidence produced in the light
most favorable to the nonmovant, if a rational trier [of fact]
could not find for the nonmovant, then there is no genuine
issue of material fact and entry of summary judgment is
appropriate.” Bay v. Times Mirror Magazine, Inc., 936 F.2d
112, 116 (2d Cir. 1991). When a movant has met this burden,
the burden shifts to the non-movant to bring forth evidence
establishing the existence of an issue of material fact. Linares
v. McLaughlin, 423 Fed. Appx. 84, 86 (2d Cir. 2011). In
evaluating a motion for summary judgment, a court must
resolve all ambiguities and draw all reasonable inferences
in favor of the nonmoving party, and it is the burden of the
moving party to demonstrate the absence of any material facts
genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50
(2d Cir. 1988). Where a plaintiff is proceeding pro se, the
court must “construe the complaint liberally and interpret it
to raise the strongest arguments that [it] suggest[s].” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010). However, even a
pro se litigant cannot defeat a motion for summary judgment
by relying upon conclusory statements or mere allegations
unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d
Cir. 2002).
Plaintiff’s Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 (the “PLRA”)
requires an inmate to exhaust available administrative
remedies before bringing suit to complain of prison
conditions or actions taken by prison officials, such as
retaliation or excessive force. See 42 U.S.C. § 1997e(a); Ross
v. Black, 136 S. Ct. 1850, 1854-55 (2016). Exhaustion under
the PLRA is mandatory, and must occur before the filing of a
lawsuit in federal district court. Woodford v. Ngo, 548 U.S. 81,
85 (2006). In order to exhaust administrative remedies, the
inmate must complete the full administrative review process
set forth in the rules applicable to the correctional facility
in which he or she is incarcerated. Jones v. Bock, 549 U.S.
199, 218 (2007). DOCCS provides a detailed administrative
review and appeals system for inmate grievances in New
York. Nji v. Heath, 13 Civ. 200, 2014 U.S. Dist. LEXIS
163060, *7-6 (SDNY Nov. 10, 2014); accord 7 N.Y. Comp.
Codes R. & Regs. § 701.5. In order to exhaust administrative
remedies, the inmate must file a grievance with his or her
facility’s Inmate Grievance Resolution Committee (“IGRC”)
within 21 calendar days of the alleged occurrence. Id. If the
IGRC denies the grievance, the inmate must file an appeal
of the decision to the superintendent of his or her facility.
Id. If the appeal to the superintendent is denied, the inmate
must then appeal that determination to the Central Office
Review Committee (“CORC”) located in Albany, New York.
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Id.; accord Espinal v. Goord, 558 F.3d 119, 125-26 (2d Cir.
2009).
The record before the Court establishes that plaintiff did not
exhaust his administrative remedies before filing the instant
lawsuit. Plaintiff states in his complaint that he did not file
a grievance as to the incident on February 6, 2015. He then
provided contradictory statements during his deposition as to
whether he filed a grievance. Plaintiff initially testified during
his deposition that he filed a grievance but did not receive
a response. He later attempted to clarify the statement by
explaining that he “wrote to grievance on a few people” but
that he did not “put exactly what happened.” Plaintiff then
testified during the same deposition that he did not file a
grievance because he feared retaliation by officers. He later
testified that he did not file a grievance because he believed
the grievance process was ineffective. Indeed, a review of
DOCCS records confirms that plaintiff did not file a grievance
or appeal of the February 6, 2015 incident.
Despite plaintiff’s initial statement in his deposition that he
filed a grievance, the evidence in the record reflects that
no grievance was filed as to the February 6, 2015 incident.
This evidence includes plaintiff’s statements in his complaint,
the majority of plaintiff’s deposition testimony wherein he
indicates that he did not file a grievance, plaintiff’s deposition
testimony as to the various reasons he did not file a grievance,
and DOCCS' records, which confirm that no grievance or
appeal were filed. Thus, the Court finds that plaintiff has
not raised a genuine issue of material fact as to whether he
filed a grievance. See Jeffreys v. City of New York, 426 F.3d
549 (2d Cir. 2005) (summary judgment in favor of defendant
upheld where nothing in the record supported plaintiff’s
allegations other than his own contradictory and incomplete
testimony); Deebs v. Alstom Transp., Inc., 346 F. App'x
654, 656 (2d Cir. 2009) (“self-serving” deposition testimony
cannot, by itself, defeat summary judgment); Burwell v.
Payton, 5:12-cv-166, 2015 U.S. Dist. LEXIS 152745 (D. Vt.
Nov. 9, 2015) (where plaintiff’s deposition testimony was
contradicted by the video recording, his own statement of
undisputed facts, and the allegations of his complaint, plaintiff
failed to identify a genuine issue of material fact that would
justify reconsideration).
*5 Moreover, even if the Court were to credit plaintiff’s
initial statement during his deposition that he filed a
grievance, it remains clear that plaintiff did not fully exhaust
his administrative remedies. Plaintiff testified that he did
not receive a response to the grievance. DOCCS records
reflect that no grievance or appeal was filed regarding the
February 6, 2015 incident. Indeed, “the law is well-settled”
that an inmate’s “failure to take an available administrative
appeal, even when the initial grievance receives no response,
constituted a failure to exhaust administrative remedies.”
Garvin v. Rivera, 13-cv-7054, 2015 U.S. Dist. LEXIS 84675,
*7-8 (SDNY June 29, 2015). See also Johnson v. New York
City Dep't of Correction, 13-cv-6799, 2014 U.S. Dist. LEXIS
85444 (SDNY June 16, 2014) (“Assuming that Plaintiff filed
a timely grievance ... and received no response within five
business days[,] ... Plaintiff ... could have taken the next step
and requested a hearing.”).
Finally, plaintiff’s assertions that he sent a copy of his federal
court complaint to Albany, wrote to the State Commission
of Corrections, and that he complained about the February
6, 2015 incident during the appeal of his disciplinary
hearing determination do not constitute exhaustion under
the PLRA. The Second Circuit has held that alerting prison
officials, through informal steps, as to the nature of the
wrong for which redress is sought does not constitute proper
exhaustion. Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir.
2007). See e.g., Nji, 2014 U.S. Dist. LEXIS 163060, *9
(“[s]ending letters to persons outside the grievance process is
insufficient to establish exhaustion because it is well settled
that complaints and communications made outside of formal
grievance procedures do not satisfy the PLRA’s exhaustion
requirement”) (internal citations and quotations omitted);
David v. Doe, 9:16-cv-0994, 2017 U.S. Dist. LEXIS 213704
(NDNY Dec. 29, 2017) (prisoner who did not file a grievance
as to his constitutional claims, but instead submitted a
disciplinary appeal and told a representative of the Office of
the Inspector General about the facts alleged in his lawsuit,
did not properly exhaust his administrative remedies under
the PLRA).
Exceptions to the Exhaustion Requirement Do Not Apply
Having concluded that plaintiff failed to exhaust his
administrative remedies under the PLRA, the Court next
considers whether there is any basis for excusing plaintiff’s
failure to exhaust. In Ross v. Blake, the Supreme Court
significantly narrowed the exceptions a court may afford
a prisoner who does not comply with the exhaustion
requirement in the PLRA. 136 S. Ct. 1850 (2016).
Therein, the Supreme Court rejected the prior “special
circumstances” exceptions to the exhaustion requirement
which had previously been recognized by the Second Circuit.
Id. at 1862. The Supreme Court held instead that the PLRA
includes only a single “textual exception”, in that an inmate
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need not exhaust administrative remedies not available to him
or her. Id. at 1858. The Supreme Court went on to cite three
scenarios in which an administrative grievance procedure
would be unavailable to an inmate: (1) “[the procedure]
operates as a simple dead end – with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates”; (2) the procedure is “so opaque that it becomes,
practically speaking, incapable of use”; or (3) “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60.
Here, the record before the Court fails to demonstrate that
administrative remedies were unavailable to plaintiff. There
is no evidence that the grievance procedures were opaque or
incapable of use. As described above, DOCCS has a clear,
detailed procedure for inmate grievances. Moreover, plaintiff
testified that he was familiar with the DOCCS' grievance
procedure. Plaintiff testified that he believed the grievance
procedure was ineffective because he did not “see the officers
investigating themselves” and that he “wanted somebody to
come from the outside to investigate this.” (Dkt. No. 64,
pg. 63). However, these conclusory statements, which reflect
only plaintiff’s subjective beliefs, are insufficient to raise a
triable issue of fact as to the availability of administrative
remedies. In Woodward v. Ngo, the Supreme Court noted that
“exhaustion requirements are designed to deal with parties
who do not want to exhaust”, including those who “conclude
—correctly or incorrectly—that exhaustion is not efficient
in that party’s particular case.” 548 U.S. 81, 89-90 (2006).
See also Harrison v. Goord, 07 Civ. 1806, 2009 U.S. Dist.
LEXIS 48478, *15 (SDNY June 9, 2009) (“Prisoners are
required to exhaust their administrative remedies even if they
believe that administrative remedies would be ineffective or
futile.”) (internal citations omitted); McMillian v. Walters,
9:16-CV-0277, 2017 U.S. Dist. LEXIS 208444, *7-8 (NDNY
Dec. 18, 2017) (“An inmate’s belief that administrative
remedies would be futile is not a valid excuse establishing
the unavailability of such remedies.”). Moreover, there is no
evidence in the record to indicate that DOCCS' complaint
or grievance procedures were either opaque or operated as a
dead end. To the contrary, plaintiff was able to successfully
file an appeal of his disciplinary hearing determination to the
Commissioner in Albany, New York. His appeal resulted in a
dismissal of two charges and reduction of the amount of time
he was sentenced to SHU.
*6 Plaintiff also stated in his complaint and during his
deposition that he did not file a grievance as to the incident on
February 6, 2015 because he feared retaliation from officers
at Gowanda. However, a generalized fear of retaliation is
insufficient to overcome a failure to exhaust administrative
remedies. Brown v. Napoli, 687 F. Supp. 2d 295, 297-98
(WDNY 2009); Harrison v. Stallone, 9:06-CV-902, 2007
U.S. Dist. LEXIS 98742 (NDNY Sept. 24, 2007) (“If an
inmate could simply state that he feared retaliation, there
would be no point in having a grievance procedure[.]”).
During his deposition, plaintiff stated in a general and
conclusory manner that he was threatened and harassed.
He also testified that on one occasion an officer escorting
him to SHU told him that his hand would be broken if
he “ran his mouth”. However, plaintiff does not indicate
who made this statement nor does he indicate the date or
time it occurred. Plaintiff also fails to provide any further
details as to the alleged threat or how it was specifically
connected to his use of grievance procedures. Similarly, in
Henry v. Cty. of Nassau, an inmate argued that administrative
remedies were unavailable because defendants threatened to
have him killed or assaulted if he reported various incidents of
failure to intervene, and that on one occasion they threatened
to “jump” him if he reported an incident. CV 13-7427,
2017 U.S. Dist. LEXIS 125443 (EDNY Aug. 7, 2017). The
Eastern District of New York Court rejected these assertions
and concluded that “[p]laintiff’s statements, devoid of any
specifics, including which defendants were involved, are
insufficient to defeat summary judgment.” Id. Likewise here,
plaintiff’s general and conclusory statements that he was
threatened are insufficient to raise a triable issue of fact as
to the unavailability of the grievance procedure because of
intimidation by prison administrators. See e.g., Rodriguez v.
Cross, 15-CV-1079, 2017 U.S. Dist. LEXIS 71337 (NDNY
May 9, 2017) (plaintiff’s conclusory allegations that he “was
beaten” while attempting to access grievance procedures were
insufficient to excuse his failure to exhaust under Ross, where
he does not state “how any specific threat or subsequent act
of violence impacted his ability to exhaust administrative
remedies[.]”); Johnson v. Frazier, 16-CV-6096, 2016 U.S.
Dist. LEXIS 165987 (WDNY Dec. 1, 2016) (plaintiff’s
allegations that grievance procedures were not available due
to threats from staff were “entirely conclusory, since [plaintiff
did] not indicate who threatened him, when he was threatened
or how he was threatened.”).
Further, plaintiff’s actions after the February 6, 2015
incident directly contradict his claim that he did not file
a grievance because he feared retaliation by officers at
Gowanda. Plaintiff both wrote a letter about the incident to
the State Commissioner of Corrections and filed the instant
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federal lawsuit in February of 2015, while he was still
incarcerated at Gowanda. See Rodriguez, 2017 U.S. Dist.
LEXIS 71337 (“[P]laintiff’s failure to follow the grievance
procedures cannot be excused by fears or intimidation, when
he simultaneously made his complaints known through other
means” such as informing a nurse that officers beat him
and “air[ing] his complaints and concerns in writing outside
of the grievance procedures[.]”); Johnson, 2016 U.S. Dist.
LEXIS 165987, *13-14 (rejecting plaintiff’s contention that
administrative remedies were unavailable to him because
he was threatened by correction officers but continued to
make and send formal complaints to prison officers and
other New York State officials). Indeed, plaintiff’s own
deposition testimony belies his claim that he was afraid
to grieve the February 6, 2015 incident. Plaintiff testified
during his deposition that he was not afraid to file a federal
lawsuit while still incarcerated at Gowanda, despite alleged
threats or harassment, because he was informed that he
would be transferred to a different facility immediately
after his disciplinary hearing. It defies logic that plaintiff
would be unafraid to file a lawsuit because he believed a
transfer of facilities was imminent, but that he would still be
fearful of filing a grievance. Additional inconsistencies and
contradictions in plaintiff’s deposition testimony cast further
doubt on his claim that he was afraid to file a grievance.
Not only does plaintiff contradict himself as to whether he
filed a grievance, but he also provides varying rationales
as to why he did not file one. Plaintiff testified that he did
not file a grievance because he was fearful of the officers.
However, he also testified that he did not file a grievance
because he believed the process was ineffective and he wanted
someone from the “outside” to investigate. See Dailey v.
Fuller, 9:15-cv-1051, 2016 U.S. Dist. LEXIS 168482 (NDNY
Dec. 5, 2016) (“Even where a complaint or affidavit contains
specific assertions, the allegations may still be deemed
conclusory if they are: (1) largely unsubstantiated by any
other direct evidence and (2) so replete with inconsistencies
and improbabilities that no reasonable juror would undertake
the suspension of belief necessary to credit the allegations[.]”)
(internal citations and quotations omitted).
*7 Finally, even if the Court were to conclude that plaintiff
had been threatened at Gowanda and that those threats
prevented him from filing a grievance, there has been no
showing that administrative remedies remained unavailable
to plaintiff after he was transferred to Upstate. DOCCS
procedures provides that an inmate may request an extension
of the time limit to file a grievance within forty-five days
of the date of the alleged occurrence. See N.Y. Comp.
Codes R. & Regs., § 701.6(g). Here, the alleged assault took
place on February 6, 2015 and plaintiff was transferred to
Upstate on or about March 6, 2015. When plaintiff arrived
at Upstate, approximately twenty-nine days had elapsed
since the alleged assault, and plaintiff could have timely
requested an extension of time to file a grievance. In fact,
plaintiff had an additional seventeen days after arriving at
Upstate to request an extension of time. See Bookman v.
Linstrand, 9:15-CV-1542, 2018 U.S. Dist. LEXIS 25157
(NDNY February 14, 2018) (“Even assuming that [plaintiff’s
allegations] could be construed as creating an issue of fact
with respect to the grievance process at GMCF, it does
not create an issue of fact with respect to the availability
of the grievance process at Clinton, where plaintiff was
housed in the immediate aftermath of the alleged assault.”);
Smith v. Costello, 9:15-CV-0401, 2017 U.S. Dist. LEXIS
31341 (NDNY March 3, 2017) (specific threats against
plaintiff with respect to filing a grievance did not excuse
his failure to exhaust administrative remedies where plaintiff
had thirty-three days to request an extension of time to
file after his transfer from the facility where the threats
occurred); Wallace v. Fisher, 9:13-CV-1208, 2015 U.S. Dist.
LEXIS 169256 (NDNY Dec. 18, 2015) (concluding that
even if plaintiff’s administrative remedies were unavailable
at Watertown Correctional Facility, plaintiff did not persuade
the Court that his administrative remedies continued to be
unavailable after his transfer to Gouverneur Correctional
Facility, since after his transfer plaintiff had twelve days
in which to request an extension of the twenty-one day
deadline for filing a grievance). Thus, the Court finds no
basis in the record to excuse plaintiff’s failure to exhaust his
administrative remedies.
CONCLUSION
For the foregoing reasons, it is recommended that defendants
Lynn Wasielewski’s, Rebecca McDaniel’s, Paul Burke’s,
Dennis Becker’s and Sabato Parisi’s motion for summary
judgment be granted and the complaint dismissed. (Dkt. No.
61).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED
that this Report, Recommendation and Order be filed with the
Clerk of Court.
Unless otherwise ordered by Judge Arcara, any objections to
this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of service of this Report and
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Recommendation in accordance with the above statute, Rules
72(b), 6(a), and 6(d) of the Federal Rules of Civil Procedure,
and W.D.N.Y. L. R. Civ. P. 72. Any requests for an extension
of this deadline must be made to Judge Arcara.
Failure to file objections, or to request an extension of time
to file objections, within fourteen days of service of this
Report and Recommendation WAIVES THE RIGHT TO
APPEAL THE DISTRICT COURT'S ORDER. See Small v.
Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).
The District Court will ordinarily refuse to consider de novo
arguments, case law and/or evidentiary material which could
have been, but were not, presented to the Magistrate Judge
in the first instance. See Paterson–Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y.
L.R.Civ.P. 72(b), written objections “shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the basis for
each objection, and shall be supported by legal authority.”
Failure to comply with these provisions may result in the
District Court’s refusal to consider the objection.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 4732755
Footnotes
1 The facts described herein are taken from pleadings, motion papers, discovery and exhibits filed in this
lawsuit. Also, because plaintiff is proceeding pro se, the Court has considered all of his submissions in support
of his complaint and in opposition to defendants' motion for summary judgment, regardless of the form in
which they have been submitted.
2 A DOCCS Directive dated November 12, 2011 provides that inmates serving sentences for certain nonviolent
crimes may receive merit time allowances against their sentences provided they have, inter alia, “achieved
certain significant programmatic objections.” (Dkt. No. 69, pg. 5).
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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018)
© 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
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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
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*2 Because this Decision and Order is intended primarily for
the review of the parties, the Court will presume the reader's
familiarity with further details regarding Plaintiffs’ claims
and the relevant procedural history of this case.
B. Parties’ Arguments
1. Defendants’ Arguments
Generally, Defendants assert four arguments. First,
Defendants argue, Plaintiff Gomez never filed grievances
at either Clinton C.F. or Upstate C.F., regarding his current
claims of mistreatment at Clinton C.F. on June 6, 2015,
and June 16, 2015; and, although he filed two grievances
at Sullivan C.F. on December 2, 2015, neither of those
grievances regarded the claims asserted in this case. (Dkt. No.
254, Attach. 1, at 9-10 [attaching pages “6” and “7” of Defs.’
Memo. of Law].) In any event, Defendants argue, Plaintiff
Gomez never filed a grievance appeal regarding the claims he
asserts. (Id.)
Second, Defendants argue, Plaintiff Bonds never filed
grievances at either Clinton C.F. or Upstate C.F., regarding
his current claims of mistreatment at Clinton C.F. on June
15, 2015; and, although, while at Sullivan C.F., he filed a
grievance regarding his current claims, that grievance was
denied by the Superintendent of Sullivan C.F., and Plaintiff
Bonds never appealed that denial. (Id. at 10-11 [attaching
pages “7” and “8” of Defs.’ Memo. of Law].) 6
Third, Defendants argue, Plaintiff Smith never filed
grievances at Clinton C.F., Upstate C.F., or Sullivan C.F.,
regarding his current claims of mistreatment at Clinton C.F.
on June 15, 2016, nor did he appeal the denial of any such
grievances. (Id. at 12-13 [attaching pages “9” and “10” of
Defs.’ Memo. of Law].)
Fourth, Defendants argue, any argument that these Plaintiffs
were not required to exhaust because the administrative
procedure offered to them operated as a “simple dead end” is
conclusory in nature. (Dkt. No. 286, at 7 [attaching page “5”
of Defs.’ Reply Memo. of Law].)
2. Plaintiffs’ Arguments
Generally, Plaintiffs assert three arguments. First, Plaintiffs
argue, Plaintiffs Gomez, Bonds and Smith should be
excused from having to exhaust their available administrative
remedies because the administrative procedure offered by the
New York State Department of Corrections and Community
Supervision operated as a “simple dead end” for plaintiffs
making the types of complaints in question (due to officers
being consistently unwilling to provide any relief to aggrieved
inmates). (Dkt. No. 281, at 11-19 [attaching pages “7” through
“15” of Plfs.’ Opp'n Memo. of Law]; Dkt. No. 372, at 2
[Plfs.’ Ltr. Motion].) More specifically, Plaintiffs argue that
Office of Special Investigations (“OSI”) Investigator John
Nocera was tasked with conducting “the majority” of the
OSI's investigation of inmate grievances and allegations of
assault that resulted from the June 2015 escape investigation
(including interviews of several corrections officers and/
or CERT officers), but that Nocera either did not conduct
those investigations or misrepresented evidence that was
provided to him during them. (Id.) As a result, Plaintiffs
argue, OSI recommended that all inmate allegations of assault
against the CERT Officers and other corrections officers be
unsubstantiated. (Id.)
II. GOVERNING LEGAL STANDARD
*3 The Prison Litigation Reform Act of 1995 (“PLRA”)
requires that prisoners who bring suit in federal court must
first exhaust their available administrative remedies: “No
action shall be brought with respect to prison conditions under
§ 1983 ... by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e.
The PLRA was enacted “to reduce the quantity and improve
the quality of prisoner suits” by “afford[ing] corrections
officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” Porter
v. Nussle, 534 U.S. 516, 524-25 (2002). In this regard,
exhaustion serves two main purposes. First, it protects
“administrative agency authority” by giving the agency “an
opportunity to correct its own mistakes with respect to the
programs it administers before it is haled into federal court,
and it discourages disregard of the agency's procedures.”
Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion
promotes efficiency because (a) “[c]laims generally can be
resolved much more quickly and economically in proceedings
before an agency than in litigation in federal court,” and (b)
“even where a controversy survives administrative review,
exhaustion of the administrative procedure may produce
a useful record for subsequent judicial consideration.”
Woodford, 548 U.S. at 89. “[T]he PLRA's exhaustion
requirement applies to all inmate suits about prison life,
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whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.” Porter, 534 U.S. at 532.
In accordance with the PLRA, the New York State
Department of Corrections and Community Supervision
(“DOCCS”) has made available a well-established inmate
grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the
DOCCS Inmate Grievance Program (“IGP”) involves the
following three-step procedure for the filing of grievances. 7
N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7. 7
First, an inmate must file a complaint with the facility's
IGP clerk within a certain number of days of the alleged
occurrence. 8 If a grievance complaint form is not readily
available, a complaint may be submitted on plain paper. A
representative of the facility's inmate grievance resolution
committee (“IGRC”) has a certain number of days from
receipt of the grievance to informally resolve the issue. If
there is no such informal resolution, then the full IGRC
conducts a hearing within a certain number of days of receipt
of the grievance, and issues a written decision within a certain
number of days of the conclusion of the hearing.
Second, a grievant may appeal the IGRC decision to the
facility's superintendent within a certain number of days of
receipt of the IGRC's written decision. The superintendent is
to issue a written decision within a certain number of days of
receipt of the grievant's appeal.
*4 Third, a grievant may appeal to the central office review
committee (“CORC”) within a certain number of days of
receipt of the superintendent's written decision. CORC is to
render a written decision within a certain number of days of
receipt of the appeal.
Moreover, there is an expedited process for the review
of complaints of inmate harassment or other misconduct
by corrections officers or prison employees. 7 N.Y.C.R.R.
§ 701.8. In the event the inmate seeks expedited review,
he or she may report the misconduct to the employee's
supervisor. The inmate then files a grievance under the
normal procedures outlined above, but all grievances alleging
employee misconduct are given a grievance number, and
sent immediately to the superintendent for review. Under
the regulations, the superintendent or his designee shall
determine immediately whether the allegations, if true, would
state a “bona fide” case of harassment, and if so, shall initiate
an investigation of the complaint, either “in-house,” by the
Inspector General's Office, or by the New York State Police
Bureau of Criminal Investigations. An appeal of the adverse
decision of the superintendent may be taken to the CORC
as in the regular grievance procedure. A similar “special”
procedure is provided for claims of discrimination against an
inmate. 7 N.Y.C.R.R. § 701.9.
These procedural requirements contain several safeguards.
For example, if an inmate could not file such a complaint
within the required time period after the alleged occurrence,
he or she can apply to the facility's IGP Supervisor for an
exception to the time limit based on mitigating circumstances.
If that application is denied, the inmate can file a complaint
complaining that the application was wrongfully denied. 9
Moreover, any failure by the IGRC or the superintendent
to timely respond to a grievance or first-level appeal,
respectively, may be appealed to the next level, including
CORC, in order to complete the grievance process. 10
The Court hastens to add, however, that, although an
unprocessed grievance (i.e., a grievance that has not been
assigned a grievance number) may technically be appealed,
it need not be appealed in order for exhaustion to occur,
because the regulatory scheme advising the inmate of that
right has been found to be “too opaque.” See Williams v. Corr.
Officer Priatno, 829 F.3d 118, 126 (2d Cir. 2016) (finding
that, “even if Williams technically could have appealed his
[unprocesseed] grievance, we conclude that the regulatory
scheme providing for that appeal is ‘so opaque’ and ‘so
confusing that ... no reasonable prisoner can use [it pursuant
to Ross v. Blake, 136 S. Ct. 1850 (2016)]”).
*5 Moreover, it is important to note that DOCCS has a
separate and distinct administrative appeal process for inmate
misbehavior hearings:
A. For Tier III superintendent hearings, the appeal is to
the Commissioner's designee, Donald Selsky, D.O.C.S.
Director of Special Housing/Inmate Disciplinary
Program, pursuant to 8 N.Y.C.R.R. § 254.8;
B. For Tier II disciplinary hearings, the appeal is to the
facility superintendent pursuant to 7 N.Y.C.R.R. § 253.8;
and
C. For Tier I violation hearings, the appeal is to the facility
superintendent or a designee pursuant to 7 N.Y.C.R.R. §
252.6.
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“An individual decision or disposition of any current or
subsequent program or procedure having a written appeal
mechanism which extends review to outside the facility shall
be considered non-grievable.” 7 N.Y.C.R.R. § 701.3(e)(1).
Similarly, “an individual decision or disposition resulting
from a disciplinary proceeding ... is not grievable.” 7
N.Y.C.R.R. § 701.3(e)(2). However, “[t]he policies, rules,
and procedures of any program or procedure, including those
above, are grievable.” 7 N.Y.C.R.R. § 701.3(e)(3); see also
N.Y. Dep't Corr. Serv. Directive No. 4040 at III.E.
Generally, if a prisoner has failed to properly follow each
of the required three steps of the above-described grievance
procedure prior to commencing litigation, he has failed
to exhaust his administrative remedies, and his claims are
subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534
U.S. at 524; Ruggiero v. County of Orange, 467 F.3d 170, 175
(2d Cir. 2006). However, a plaintiff's failure to exhaust does
not end the inquiry. This is because certain exceptions exist
to the exhaustion requirement.
In particularly, in 2004, in Hemphill v. State of New York, the
Second Circuit held that a three-part inquiry is appropriate
where a defendant contends that a prisoner has failed to
exhaust his available administrative remedies, as required by
the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686,
691 (2d Cir. 2004), accord, Ruggiero, 467 F.3d at 175. First,
“the court must ask whether [the] administrative remedies
[not pursued by the prisoner] were in fact ‘available’ to
the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted).
Second, if those remedies were available, “the court should ...
inquire as to whether [some or all of] the defendants may
have forfeited the affirmative defense of non-exhaustion by
failing to raise or preserve it ... or whether the defendants’
own actions inhibiting the [prisoner's] exhaustion of remedies
may estop one or more of the defendants from raising the
plaintiff's failure to exhaust as a defense.” Id. [citations
omitted]. Third, if the remedies were available and some
of the defendants did not forfeit, and were not estopped
from raising, the non-exhaustion defense, “the Court should
consider whether ‘special circumstances’ have been plausibly
alleged that justify the prisoner's failure to comply with the
administrative procedural requirements.” Id. [citations and
internal quotations omitted].
However, in 2016, in Ross v. Blake, the Supreme Court
abrogated Hemphill’s third prong and effectively enveloped
its second prong within its first prong. Ross v. Blake, 136 S.
Ct. 1850, 1857 (2016). More specifically, under Ross, any
inquiry that previously would have been considered under
the second or third prongs of Hemphill is now considered
entirely within the context of whether administrative remedies
were actually available to the aggrieved inmate. Ross, 136 S.
Ct. at 1858. This is because, the Supreme Court explained,
the PLRA “contains its own, textual exception to mandatory
exhaustion.” Id. In particular, 42 U.S.C. § 1997e(a) provides
that only those administrative remedies that “are available”
must first be exhausted. Id. In the PLRA context, the Supreme
Court determined that “availability” means that “an inmate
is required to exhaust those, but only those, grievance
procedures that are capable of use to obtain some relief for the
action complained of.” Id. at 1859 (quotation marks omitted).
*6 To guide courts in this new analysis, the Supreme
Court has identified three kinds of circumstances in which
an administrative remedy, “although officially on the books,”
is not “available.” Ross, 136 S. Ct. at 1859. First, “an
administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates
as a simple dead end–with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” Id.
Second, “an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.” Id. Third,
an administrative remedy is not “available” when “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
Finally, two additional points bear mentioning regarding
exhaustion hearings. First, the Second Circuit has ruled that
a plaintiff in a lawsuit governed by PLRA is not entitled to a
jury trial on disputed factual issues relating to his exhaustion
of administrative remedies; rather, PLRA exhaustion is a
matter of judicial administration. Messa v. Goord, 652
F.3d 305, 308-10 (2d Cir. 2011). Second, given that non-
exhaustion is an affirmative defense, the defendant bears
the burden of proving that a prisoner has failed to exhaust
his available administrative remedies. 11 However, once a
defendant has adduced reliable evidence that administrative
remedies were available to the plaintiff and that the plaintiff
nevertheless failed to exhaust those administrative remedies,
the plaintiff must then “counter” the defendant's assertion by
persuading the Court of either exhaustion or unavailability. 12
As a result, practically speaking, while the burden of proving
this affirmative defense remains at all times on the defendant,
the plaintiff may sometimes have to adduce evidence in order
to defeat it.
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III. ANALYSIS
After carefully considering the admissible record evidence
adduced at the exhaustion hearing, the Court renders
the following three factual findings: (1) Defendants have
met their burden of proving that Plaintiffs Gomez, Smith
and Bonds failed to exhaust their administrative remedies
regarding the claims in question before filing this action;
(2) Defendants have also met their burden of proving that
administrative remedies were generally available to those
Plaintiffs during the time in question (e.g., that the grievance
procedure was working at Upstate C.F. and Sullivan C.F.
during the time in question); and (3) Plaintiffs have not
persuaded the Court that, at Upstate C.F. and Sullivan C.F.
during the time in question, the grievance procedure operated
as a “simple dead end” (with officers unable or consistently
unwilling to provide any relief to aggrieved inmates).
In support of the first factual finding, the Court relies on the
following: (1) the fact that Plaintiffs’ counsel conceded at the
exhaustion hearing that Plaintiffs Gomez, Smith and Bonds
failed to exhaust their administrative remedies regarding
the claims in question before filing this action; and (2)
alternatively, the hearing exhibits admitted during the hearing
testimony on that subject by Cory Proscia and Rachael
Seguin, as well as those witnesses’ convincing demeanor and
body language (including, but not limited to, their tone of
voice, facial expressions, and eye contact).
*7 In support of the second factual finding, the Court
relies on the following: (1) the fact that Plaintiffs’ counsel
conceded at the exhaustion hearing that Plaintiff Chaves,
Plaintiff Matthews, and non-party Manuel Nunez were able
to exhaust their available administrative remedies regarding
claims of excessive force during their removal from Clinton
C.F.; 13 and (2) alternatively, the hearing exhibits admitted
during the hearing testimony on that subject by Cory Proscia
and Rachael Seguin, as well as those witnesses’ convincing
demeanor and body language (including, but not limited to,
their tone of voice, facial expressions, and eye contact).
In support of the third factual finding, the Court relies on
the following: (1) the hearing exhibits admitted during and
after 14 the hearing testimony of OSI Investigator Jonathan
Nocera, as well as his convincing demeanor and body
language (including, but not limited to, his tone of voice,
facial expressions, and eye contact); (2) the unconvincing
demeanor and body language of non-party Manuel Nunez,
Plaintiff Gomez, 15 and Plaintiff Smith, 16 during their
hearing testimony (including, but not limited to, their tone
of voice, facial expressions, and eye contact or lack thereof);
(3) the fact that, at the exhaustion hearing, Plaintiff Bonds
chose to not even testify that he viewed the process as a
“dead end” (much less subject himself to cross-examination
on the issue); 17 and (4) alternatively, the fact that, on June
30, 2015, Plaintiffs Bonds chose to file a grievance at Sullivan
C.F. regarding the claims at issue in this action on June 30,
2015, 18 which constitutes at least some evidence that Bonds
did not view the process as a “dead end.” 19
*8 In addition, the Court makes the following three points.
First, the Court rejects Plaintiffs’ post-hearing argument that
“the purpose of the [exhaustion] hearing was not to assess
whether Mr. Bonds failed to exhaust administrative remedies”
but “to assess the weight of Plaintiffs’ evidence that DOCCS's
summarily rejected inmate complaints of harassment during
the 2015 escape investigation and the credibility of the
DOCCS employee who conducted the majority of that
investigation—John Nocera.” (Dkt. No. 378, at 1-2.) Contrary
to Plaintiffs’ interpretation of Judge McAvoy's Decision and
Order of March 18, 2022, his finding that “Plaintiffs have
met their burden of demonstrating that DOCCS personnel
rejected grievances of employee harassment arising from
[the] 2015 escape investigation regardless of the merits of
those grievances” was merely a ground to deny Defendants’
motion for summary judgment on the issue of exhaustion (the
success of which turned on whether Plaintiffs failed to exhaust
as a matter of law). (Dkt. No. 325, at 12.) 20 The question of
fact that remained for the exhaustion hearing (the outcome of
which turns on a mere preponderance of the evidence) was
“whether Plaintiffs’ administrative remedies were available
to them with respect to grievances against DOCCS personnel
surrounding the escape investigation, or whether the IGP
related to these grievances was a simple dead end.” (Id.)
Simply stated, the rejection-of-grievances-regardless-of-the-
merits fact identified by Plaintiffs was left to be proven by
them at the exhaustion hearing, unless it was conceded by
Defendants (which it was not). Furthermore, although the
Court has certainly considered Plaintiffs’ hearing evidence
as applying to all Plaintiffs (including Plaintiffs Bonds), the
Court simply finds that evidence unconvincing for the reasons
stated above and below.
Second, to prove that a grievance process operated as a
dead end, a plaintiff must show that the grievance process
“could not lead to a change in the challenged prison policies.”
Green Haven Prison Preparative Meeting of Religious Soc'y
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of Friends v. N.Y. State Dep't of Corr. & Cmty. Supervision,
16 F.4th 67, 82 (2d Cir. 2021), cert. denied sub nom. Green
Haven Preparative Meeting v. New York State Dep't of Corr.
& Cmty. Supervision, 142 S. Ct. 2676 (2022). As the Second
Circuit explained in Green Haven,
Plaintiffs ... appear to make a futility
argument, claiming that the grievance
process was ‘a dead end’ such that
they were not required to exhaust
administrative remedies .... The bar
for the availability of remedies,
however, is low. To constitute an
‘available’ remedy, a process requires
only ‘the possibility of some relief.’
Ross v. Blake, 578 U.S. 632, 643,
136 S. Ct. 1850, 195 L.Ed.2d 117
(2016) (emphasis added) (quotation
marks omitted). Here, the Incarcerated
Plaintiffs provide no evidence that a
grievance asserting that a prisoner's
religious liberty has been violated by
a limitation on the number or timing
of religious services or celebrations
could not lead to a change in the
challenged prison policies. Plaintiffs
are thus unable to avoid the exhaustion
requirement, and the Incarcerated
Plaintiffs’ RLUIPA claims fail.
Green Haven, 16 F.4th at 82 [emphasis in original]. A plaintiff
has not met this burden simply by arguing that DOCCS never
approved a grievance similar to the sort at issue in his case.
See Wright v. Georgia Dep't of Corr., 820 F. App'x 841, 845
(11th Cir. 2020) (“Wright argued that the grievance process
was an unavailable dead end because the wardens had never
approved an inmate grievance involving medical treatment;
however, he provided no factual support for this assertion.
Accordingly, the district court did not err in concluding that
the defendants satisfied their burden to show the failure to
exhaust an available remedy and Wright failed to show that
the remedy was effectively unavailable to him.”).
Third, the fact that Mr. Nunez may have experienced a
problem submitting his claim to Investigator Nocera –
particularly when Nocera was trying to investigate the claim
of Plaintiff Matthews 21 – hardly establishes that the problem
asserted by Nunez was systematic. See Barksdale v. Annucci,
15-CV-0560, 2016 WL 4708235, at *3 (N.D.N.Y. Aug. 4,
2016) (Stewart, M.J.) (“As evidence of systematic delays,
Plaintiff cites several grievances filed by other inmates, which
he notes were not stamped as received until as long as a
week and a half after they were dated .... [T]his evidence
is insufficient to establish a pattern of systematic delays
in the processing of grievances at Coxsackie.”), report-
recommendation adopted, 2016 WL 4703740 (N.D.N.Y.
Sept. 8, 2016) (Kahn, J.). This is particularly true given
that, contrary to Plaintiff's argument that Investigator Nocera
was tasked with conducting the “majority” of the OSI's
investigation of inmate grievances and allegations of assault
that resulted from the June 2015 escape investigation (Dkt.
No. 372, at 2 [Plfs.’ Ltr. Motion]; Dkt. No. 281, at 6-7
[attaching pages “2” and “3” of Plfs.’ Opp'n Memo. of Law]),
in fact, it appears (based on the available record evidence) that
Nocera conducted fewer than half of those investigations. 22
In any event, regardless of whether Nocera conducted more
than half of the investigations, the fact that other investigators
existed further weakens Mr. Nunez's claim that Investigator
Nocera's (purported) inaction rendered the entire procedure a
“dead end.”
*9 For each of these numerous alternative reasons, the
claims of Plaintiffs Gomez, Smith and Bonds are dismissed.
ACCORDINGLY, it is
ORDERED that the claims of Plaintiffs Gomez, Smith
and Bond in their Third Amended Complaint (Dkt. No.
298) are DISMISSED for failure to exhaust their available
administrative remedies before filing suit.
All Citations
Slip Copy, 2025 WL 447734
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Footnotes
1 Plaintiff Bonds did not testify. His proffered reason for not appearing was “I was given 20 minutes to ready
[sic]. First made aware of leaving on the day I had to leave. I was physically incapable of [sic].” (Dkt. No. 373
[Refusal/Waiver of Right to Be Physically Present at Court].) The Order to appear was served on Plaintiff's
counsel on January 15, 2025. (Dkt. No. 368.) At the exhaustion hearing, his counsel stated that, after speaking
with Plaintiff Bonds on February 4, 2025, counsel had learned as follows: (1) Plaintiff Bonds claims that, in
his 15 years’ experience being incarcerated he “usually” gets a day's notice before he is transported to court;
(2) here, he did not receive that one day's notice, but only twenty or thirty minutes’ notice; and (3) as a result,
he was not “prepared” because he had not showered and was not “groomed,” and because he just suffered
an injury in the gym so he had a “pain issue” as well. (Exhaust. Hrg. Tr.)
2 This case was reassigned from Judge McAvoy to the undersigned on February 13, 2024. (Dkt. No. 356.)
3 Although Judge McAvoy also stated in his Decision and Order that “Defendants may renew their summary
judgment motion following the conclusion of this hearing” (Dkt. No. 325, at 19), such a renewed motion
for summary judgment is unnecessary given the preponderance-of-the-evidence standard that governs the
Court's determination in an exhaustion hearing, as stated in the undersigned's Text Order of February 2,
2024 (Dkt. No. 366).
4 In addition, the Court notes that, on January 15, 2025, the undersigned's Courtroom Deputy, Shelly Muller,
received an email message from defense counsel confirming the fact that Defendants will not be pursuing
their exhaustion defense against the claims of Plaintiffs Matthews or Chaves at the exhaustion hearing.
5 See, supra, note 4 of this Decision and Order.
6 Defendant argues that Plaintiff Bonds initially submitted this grievance to the Superintendent of Clinton C.F.,
who responded (through a representative) that it must be filed at Sullivan C.F. (Dkt. No. 254, Attach. 1, at
10-11 [attaching pages “7” and “8” of Defs.’ Memo. of Law].)
7 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. March 31, 2010) [citation
omitted].
8 The Court uses the term “a certain number of days” rather than a particular time period because (1) since
the three-step process was instituted, the time periods imposed by the process have changed, and (2) the
time periods governing any particular grievance depend on the regulations and directives pending during the
time in question.
9 See Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *2 & n.3 (N.D.N.Y. March 31, 2010) (citing Groves
v. Knight, 05-CV-0183, Decision and Order at 3 [N.D.N.Y. filed Aug. 4, 2009], an appeal from which was
subsequently dismissed as frivolous, see Groves v. Knight, No. 09-3641, Mandate [2d Cir. filed Jan. 15,
2010].)
10 See 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next
step.”); see also Murray, 2010 WL 1235591, at *2 & n.4 [collecting cases]; cf. 7 N.Y.C.R.R. § 701.8(g) (“If
the superintendent fails to respond within the required 25 calendar day time limit the grievant may appeal
his/her grievance to CORC.”).
11 Id. at *4 [citation omitted].
12 Id. at *4 & n.17 [citing cases]; see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (noting that special
circumstances must be “plausibly alleged, ... justify[ing] the prisoner's failure to comply with administrative
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procedural requirements”); Grant v. Kopp, 17-CV-1224, 2019 WL 368378, at *4 (N.D.N.Y. Jan. 3, 2019)
(Peebles, M.J.) (“I conclude that although the burden of proof on this affirmative defense remains with the
defendant at all times, the plaintiff can be required to produce evidence in order to defeat it.”) (citing cases),
adopted, 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (Sharpe, J.).
13 The Court notes that the fact that Plaintiff Chaves, Plaintiff Matthews, and non-party Nunez were able to
exhaust their administrative remedies regarding their treatment during transfer from Clinton C.F. to Upstate
C.F. is at least some evidence that that the grievance process was available during the time in question. See
Moreau v. Ellsworth, No. 21-2997, 2023 WL 3477153, at *2 (2d Cir. May 16, 2023) (“[T]he record evidence
demonstrates that Moreau and other inmates at Eastern were able to appeal from several unfavorable IGRC
decisions during the same period. There is thus no basis to conclude that the inmate-grievance process was
unavailable.”).
14 The Court notes that, after the hearing testimony of Nocera, Plaintiffs’ counsel submitted into evidence
selected portions of the deposition testimony of several CERT Officers testifying that they do not recall having
been interviewed by OSI or DOCCS regarding the allegations in question in 2015 (at Hrg. Exs. P-10, P-11,
P-12, P-13, and P-14). Defendants’ counsel objected to the admission of these selected portions of the
deposition testimony, and the Court reserved decision on this issue. After carefully considering the matter, the
Court admits these exhibits into the record, because they do not change the outcome of the Court's decision.
In addition to the fact that nearly six years passed between the interviews and the depositions, the Court
is persuaded by the credible testimony of Nocera that the interviews occurred (as well as the corroborating
documentary evidence).
15 For example, the Court does not find credible Plaintiff Gomez's hearing testimony that (1) he tried to file a
grievance at Upstate C.F. regarding the claims at issue but was unable to do so because of a sign on his cell
gate, and (2) he did not try to file such a grievance at Sullivan C.F. because he was threatened by unidentified
officers (or anyone else) there. (Exhaust. Hrg. Tr.) The Court notes that it has carefully considered this
testimony as potentially relevant to both the first circumstance of unavailability described in Ross, 136 S. Ct.
at 1859-60 (regarding when the administrative procedure operates as a “simple dead end” because officers
are “unable or consistently unwilling to provide any relief to aggrieved inmates”) and the third circumstance of
unavailability described in Ross (regarding when “prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation”).
16 For example, the Court does not find credible Plaintiff Smith's hearing testimony that he did not file a grievance
at Upstate C.F. regarding the claims at issue because of a sign on his cell gate and/or because CERT officers
had instructed medical staff not to give him treatment. (Exhaust. Hrg. Tr.) Again, the Court has carefully
considered this testimony as potentially relevant to both the first and third circumstances of unavailability
described in Ross, 136 S. Ct. at 1859-60. See, supra, note 9 of this Decision and Order.
17 See Woodward v. Lytle, 16-CV-1174, 2019 WL 2527342, at *8 (N.D.N.Y. May 24, 2019) (Peebles, M.J.)
(recommending dismissal for failure to exhaust, because “plaintiff who bore the burden of production to
demonstrate unavailability of the grievance process failed to meet that burden in failing to present any
evidence [at the exhaustion hearing], including his own testimony, that would indicate that Ms. Hartz, or
any defendants, refused to file a grievance while he was housed in the SHU at Cape Vincent”), report-
recommendation adopted, 2019 WL 2524756, at *1 (N.D.N.Y. June 19, 2019) (Mordue, J.).
18 (See Dkt. No. 254, Attach. 2, at 12 [Ex. C to Pinsonnault Decl., attaching copy of grievance from Bonds dated
June 30, 2015]; Exhaust. Hrg. Ex. D-10.)
19 See Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018) (Stewart, M.J.) (“While
Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file
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grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead
end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (Hurd, J.); Lapierre
v. LaValley, 15-CV-1499, 2019 WL 4015689, at *5 (N.D.N.Y. Aug. 26, 2019) (Stewart, M.J.) (rejecting an
asserted “dead end” exception and granting a motion for summary judgment because the plaintiff's prior
filings “show[ ] that [he] did not view the filing of grievances as a dead end”) (citation omitted), report and
recommendation adopted, 2019 WL 4686415 (N.D.N.Y. Sept. 26, 2019) (D'Agostino, J.), aff'd, 847 F. App'x
47 (2d Cir. 2021). The Court notes that the fact that Plaintiff Bonds lost this grievance is not evidence that it
was a dead end. See McMillian v. Walters, 16-CV-0277, 2018 WL 879270, at *3 (N.D.N.Y. Feb. 14, 2018)
(D'Agostino, J.) (“Plaintiff did not provide any evidence that would suggest that the administrative procedures
act as a dead end. Although Plaintiff stated in his deposition that the grievance process ‘didn't do anything’
for him in the past ..., a record of administrative defeats for a single prisoner is not sufficient evidence to
effectively indict the system.”).
20 To be clear, the “burden” referenced by Judge McAvoy regarded Plaintiffs’ modest burden in opposing
Defendants’ motion for summary judgment, not their shifted burden of persuasion at a subsequent
exhaustion hearing (during which the Court might evaluate the credibility of Plaintiffs’ testimony under cross-
examination). See, supra, Part II of this Decision and Order (setting forth legal standard).
21 The Court notes that, at the exhaustion hearing, Mr. Nunez testified that, as Investigator Nocera was
attempting to question him regarding the claim by Plaintiff Matthews on July 2 or 3, 2015, at Sing Sing C.F,
Mr. Nunez attempted to remind Plaintiff about his own claim and did not receive a satisfactory response.
(Exhaust. Hrg. Tr.)
22 More specifically, it appears that, of the 35 OSI Interview Statements in the record that indicate the name of
the investigating officer, 16 of those statements identify that officer as Jonathan Nocera, seven identify him
as James Lovelace, four identify him as Christopher Payant, three identify him as Scott Lustan, three identify
him as Ryan Graziano, one identifies him as Felix Cotto, and one identifies him as Investigator Retrosi. (Dkt.
No. 281, Attach. 9, at 3-8, 10, 12-17, 19, 20, 22-24, 26, 28, 30, 32, 33, 36, 38, 40, 42-45, 47, 49, 52, 55, 56
[Ex. 7 to Cannan Decl., attaching “OSI Interview Statements”].)
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McGee v. McGready, Not Reported in Fed. Supp. (2018)
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2018 WL 2045094
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tony MCGEE, Plaintiff,
v.
Correction Officer MCGREADY, et al., Defendants.
16-CV-4187 (NSR)
|
Signed 04/30/2018
Attorneys and Law Firms
Tony McGee, Brooklyn, NY, pro se.
Colleen Kelly Faherty, State of New York Office of the
Attorney General, New York, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Plaintiff, Tony McGee (“Plaintiff”), an incarcerated pro
se inmate at Sing Sing Correctional Facility, brings this
action pursuant 42 U.S.C. § 1983 against Inmate Grievance
Supervisor Anthony Black (“Black”), former Corrections
Counselor Mary Jackson (“Jackson”), Sergeant Murray or
Murphy (“Sgt. Murray”), Sergeant Poole (“Sgt. Poole”)
and several other corrections officers. 1 Before this court
is Defendant Black and Jackson’s motion to dismiss the
amended complaint as against them based on failure to plead
a plausible claim, failure to exhaust administrative remedies,
and qualified immunity. For the foregoing reasons, the motion
is GRANTED.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff’s Amended
Complaint and are deemed true for the purpose of this motion.
Plaintiff alleges that on or about July 22, 2013, while in the
mess hall he was assaulted by a fellow “gang related Hispanic
inmate” who made a derogatory or offensive statement. In
response to the statement, Plaintiff punched the inmate in the
face resulting in an altercation. During the fight, Plaintiff was
repeatedly punched about the face causing several lacerations.
Plaintiff alleges that a “Black Correction Officer” 2 was
present in the mess hall, observed the incident, and failed to
prevent it and/or failed to intervene.
On or about July 11, 2013, approximately eleven days
prior to the altercation, Plaintiff spoke to Jackson and
requested that he be placed in protective custody because
he was threatened and being targeted by “gang-related
Hispanic inmates.” Jackson purportedly prepared a request
for “voluntary protective custody,” and informed Plaintiff he
would be contacted sometime later. Later that day, Plaintiff
was interviewed by Sgt. Murray concerning his request
for protective custody. Plaintiff purportedly informed Sgt.
Murray of the threats and being targeted. Plaintiff was
once again informed he would be contacted sometime later.
Plaintiff’s request was not granted. Plaintiff suggests had he
been placed in protective custody, as requested, he would
not have been assaulted and injured. Additionally, Plaintiff
asserts that Defendant Black failed to process multiple sick-
call grievances by failing to forward them to Central Office
Review Committee (“CORC”). Plaintiff asserts claims under
the Eight and Fourteenth Amendments.
STANDARD OF REVIEW
Rule 12(b)(6)
On a 12(b)(6) motion, dismissal is proper unless the complaint
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). When there
are well-pled factual allegations in the complaint, “a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at 679.
The critical inquiry is whether the plaintiff has pled sufficient
facts to nudge the claims “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss
will be denied where the allegations “allow[ ] the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
*2 Where a pro se Plaintiff is concerned, Courts must
construe the pleadings in a particularly liberal fashion.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Court
must therefore interpret the pleading “to raise the strongest
arguments that [it] suggest[s].” Harris v. City of N.Y., 607
F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation
omitted). Nevertheless, a pro se plaintiff’s pleading must
contain factual allegations that sufficiently “raise a right to
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relief above the speculative level” (Jackson v. N. Y.S. Dep't
of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) ), and
the Court’s duty to construe the complaint liberally is not “the
equivalent of a duty to re-write it.” Geldzahler v. New York
Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009).
Exhaustion
The Prison Litigation Reform Act (“PLRA”) precludes the
filing of an action “with respect to prison conditions under
[42 US.C. § 1983] ... by a prisoner confined in any jail, prison
or other correction facility until such administrative remedies
as are available are exhausted.” Williams v. Corr. Officer
Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations
omitted). Whether an inmate has exhausted all administrative
remedies turns on a review of “the state prison procedures
[available] and the prisoner’s grievance....” See Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009) citing Jones v.
Bock, 549 U.S. 199, 218 (2007). Grievances at DOCCS are
governed by the Inmate Grievance Program (“IGP”), which
is based on a three-tiered system. Id. at 125. To adjudicate
an inmate complaint: “(1) the prisoner files a grievance with
the Inmate Grievance Resolution Committee (“IGRC”), (2)
the prisoner may appeal an adverse decision by the IGRC to
the superintendent of the facility, and (3) the prisoner then
may appeal an adverse decision by the superintendent to the
CORC. Id.; see also N.Y. Comp. Codes. R. & Regs., tit. 7, §
701.7 (1999).
Notably, exhaustion is an affirmative defense, not a pleading
requirement; thus, inmate plaintiffs need not “specially plead
or demonstrate exhaustion in their complaints.” Jones, 549
U.S. at 216. Instead, Defendants must demonstrate lack
of exhaustion. Colon v. N. Y.S. Dep't of Corr. & Cmty.
Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at
*5 (S.D.N.Y. Sept. 15, 2017) citing Key v. Toussaint, 660 F.
Supp. 2d 518, 523 (S.D.N.Y. 2009).
Dismissal on a 12(b)(6) motion for failure to exhaust is
permissible where “it is clear on the face of the complaint
that the plaintiff did not satisfy the PLRA exhaustion
requirement.” Williams, 829 F.3d at 122; see also Parris
v. N.Y.S. Dep't Corr. Sews., 947 F. Supp. 2d 354, 261
(S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dep't
of Con: Med. Dep't, No. 10-CV-6309, 2011 WL 2946168,
at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of
motion was appropriate where complaint was ambiguous as
to exhaustion). Further, on such a motion, where a court is
confined to the four corners of the complaint, the documents
attached thereto, and things of which it is entitled to take
judicial notice (see, e.g., Kleinman v. Elan Corp., 706 F.3d
145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321
(2d Cir. 2011) ), a court is only permitted to consider outside
documents related to exhaustion and submitted by defendants
under limited circumstances. See, Smith v. Miller, No. 15-
CV-9561 (NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23,
2017) (noting courts can take judicial notice of administrative
records in Section 1983 cases in limited circumstances).
Those include instances where “the complaint a) was the
standard pro se form complaint that has a check-box regarding
exhaustion, b) contained allegations clearly stating that the
inmate had exhausted his administrative remedies, or c)
clearly pointed to the fact that the inmate had, in fact, not
exhausted.” Cohn, 2017 WL 4157372, at *5.
Qualified Immunity
*3 “Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011) citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). “If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent
public official should know the law governing his conduct.”
Harlow, 457 U.S. at 818-19. It is within the Court’s discretion
to determine the order in which the two prongs are analyzed.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
DISCUSSION
Plaintiff asserts § 1983 claims under the Eighth Amendment
against Defendants Black and Johnson. The essence of
Plaintiff’s claim is a failure to protect. Plaintiff’s complaint
suggest that Defendants' failure in processing or approving his
request for voluntary confinement resulted in his subsequent
assault. Or, construing the allegations liberally as the Court is
required to do, but for Defendants' failure in placing him in
voluntary protective custody, Plaintiff would not have been
attacked and injured by a fellow inmate.
Plaintiff’s 1983 complaint is that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment,
made applicable to the States by the Fourteenth. See Estelle
v. Gamble, 429 U.S, 97, 102 (1976) citing Robinson v.
California, 370 U.S. 660 (1962). “To prevail on an Eighth
Amendment claim, an inmate must first show that his injury
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is objectively a ‘sufficiently serious’ one.” Brims v. Burdi,
No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2 (S.D.N.Y.
June 23, 2004) quoting Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998). Additionally, a plaintiff must “show that
the defendant had knowledge of [the] prisoner’s problem
and was deliberately indifferent to [the] prisoner’s plight.”
Calhoun v. N. Y State Div. of Parole Officers, 999 F.2d 647,
654 (2d Cir. 1993) citing Sample v. Diecks, 885 F.2d 1099,
1110 (3d Cir. 1989).
Deliberate indifference requires a showing that the conditions
of incarceration posed a substantial risk of serious harm,
and that prison officials possessed sufficient culpable intent.
Hayes v. New York City Dep't Of Corr., 84 F.3d 614, 620
(2d Cir. 1996) citing Farmer v. Brennan, 511 U.S. 825,
834 (1994).The deliberate indifference requires a two prongs
analysis: substantial risk of serious harm, objective prong;
and sufficient culpable intent, subjective prong. Farmer, 511
U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996). Here, the objective prong is meet and not disputed.
Subjectively, the prison official acts with the requisite
sufficient culpable state of mind when he (or she) “has
knowledge that an inmate faces a substantial risk of serious
harm and he disregards that risk by failing to take reasonable
measures to abate the harm.” Hayes, 84 F.3d at 620.
Courts have denied deliberate indifference claims based
upon surprise attacks. See Fernandez v. N.Y.C. Dep't of
Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at
*4 (S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber,
No. 95-CV-0882(DAB), 2001 WL 946383 (S.D.N.Y. Aug.
21, 2001). Plaintiff alleges he provided advance notice to
Jackson and Black of threats and a possible attack. Plaintiff’s
allegation also suggest he identified the attacker(s), “gang
related Hispanic inmates” at the facility. Plaintiff’s allegations
suggest that Black and Jackson failed to take reasonable
measures to abate the impending attack. Thus, Plaintiff has
pled a plausible Eighth Amendment claim.
*4 Plaintiff’s Eighth Amendment claim, however, fails
for failure to exhaust his administrative remedies. This
case involves the use of the pro se form complaint
which contains the equivalent of a check-box exhaustion
section. The amended complaint is clear as to whether
Plaintiff alleges he grieved his claims. Plaintiff explicitly
states he filed grievances concerning, inter alia, the “5
sick call request,” the “non-protection grievances” and the
“foreseeable assault.” (See Amended Compl., Sect. IV., E
(1).) Because the exhaustion issue is an integral part of the
prisoner’s claims, the Court may refer to materials outside of
the complaint on a 12(b)(6) motion in determining whether a
plaintiff has exhausted. See Smart v. Goode, No. 04-CV-8850
(RWS), 2008 WL 591230, at *2 (S.D.N.Y. Mar. 3, 2008)
(recognizing that the Court’s previous opinion “[did] not
faithfully capture the subtlety of exhaustion doctrine in the
Second Circuit” and that the Court should have addressed
non-exhaustion as an affirmative defense).
In support of their motion, Defendants submit a declaration
from Karen Bellamy (“Bellamy”), the Director of the Inmate
Grievance Program (“IGP”). Bellamy avers that she is the
custodian of records maintained by the CORC, which is
tasked with rendering administrative decisions on grievances
filed by inmates. Based upon her review of the records,
she found that Plaintiff made other complaints concerning
meals, conditions of the facility, and “problems with security
staff” on December 17, 2013. Plaintiff, however, did not
file a grievance concerning the July 22nd incident nor his
request for voluntary confinement. Though Plaintiff attempts
to rebut Defendants' showing, mere conclusory statements
in opposition is insufficient. Accordingly, Plaintiff’s Eighth
Amendment claims must be dismissed.
Plaintiff also asserts a claim based on Defendant Black’s
failure to process his grievances, including his “5 sick call
grievances.” It is well settled that in order to succeed on a
§ 1983 claim, Plaintiff must show that he has been deprived
of a constitutional or other federal right. 42 U.S.C. § 1983.
Inmate grievances procedures are undertaken voluntarily by
the states and are not constitutionally required. Johnson v.
New York City Dep't of Health, No. 06-CV-13699 (BSJ)
(FM), 2008 WL 5378124, at *3 (S.D.N.Y. Dec. 22, 2008)
(internal citation omitted). Accordingly, a failure to process
a prisoner's grievance(s) does not in itself give rise to a
constitutional claim. Swift v. Tweddell, 582 F. Supp. 2d 437,
445-46 (W.D.N.Y. 2008) (internal citations omitted). This
claim must therefore be dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion is GRANTED
in part and DENIED in part. Plaintiff’s Eighth Amendment
and claims premised on the failure to process his grievances
are dismissed. The Clerk of the Court is respectfully directed
to terminate the motion at ECF No. 29. The parties are
directed to confer, complete and submit to the Court a
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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.
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McMillian v. Walters, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 879270
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Herman Carlee MCMILLIAN, Plaintiff,
v.
Daniel WALTERS, Correctional Officer, Defendant.
9:16-cv-277 (MAD/DJS)
|
Signed 02/14/2018
Attorneys and Law Firms
HERMAN CARLEE MCMILLIAN, 90-T-5238, Auburn
Correctional Facility, P.O. Box 618, Auburn, New York
13021, pro se.
OFFICE OF THE NEW YORK STATE ATTORNEY
GENERAL, OF COUNSEL: MICHAEL F. MCCARTIN,
AAG, The Capitol, Albany, New York 12224, Attorneys for
Defendant.
ORDER
Mae A. D'Agostino, U.S. District Judge
*1 Plaintiff pro se Herman Carlee McMillian, an inmate
in the custody of the New York State Department
of Corrections and Community Supervision (“DOCCS”),
commenced this civil rights action against Defendant Daniel
Walters (“Defendant”) pursuant to 42 U.S.C. § 1983 asserting
claims arising from an incident that allegedly occurred while
he was incarcerated at the Auburn Correctional Facility
(“Auburn”). See generally Dkt. No. 82.
On March 7, 2017, Defendant filed a motion for summary
judgment seeking dismissal of Plaintiff's Eighth Amendment
excessive force and First Amendment retaliation claims.
See Dkt. No. 44. Defendant argues that Plaintiff failed to
exhaust all administrative remedies available to him under
the Prison Litigation Reform Act (“PLRA”). See Dkt. No.
44-2, 1937 WL 30643 at 8. 1 In a December 2017 Report-
Recommendation and Order, Magistrate Judge Stewart
recommended granting Defendant's motion for summary
judgment after finding that it was uncontested that Plaintiff
failed to initiate any administrative proceeding prior to filing
his complaint in federal court. See Dkt. No. 82 at 2.
In reviewing a report and recommendation, a district 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). When a party makes specific
objections to a magistrate judge's report, the district court
engages in de novo review of the issues raised in the
objections. See id.; Farid v. Bouey, 554 F.Supp.2d 301,
307 (N.D.N.Y. 2008). When a party fails to make specific
objections, the court reviews the magistrate judge's report
for clear error. See Farid, 554 F.Supp.2d at 307; see also
Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1
(S.D.N.Y. Nov. 29, 2004).
On December 27, 2017, Plaintiff submitted objections to
Magistrate Judge Stewart's Report-Recommendation and
Order. See Dkt. No. 84. The first paragraph of Plaintiff's
objections addressed the issue of exhaustion. See id. at
1. Plaintiff argued that he was not required to file an
administrative grievance because this is a civil action based
upon a violation of his constitutional rights which “is not
an administration violation.” Id. at 1. The remainder of the
objections dealt with the merits of Plaintiff's constitutional
claims, which are irrelevant to the issues before the Court.
A court may grant a motion for summary judgment only if
“the court 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 moving party as a matter of
law.” 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).
*2 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 id. at 36 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
2513-14, 91 L.Ed. 2d 202 (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 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).
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Moreover, “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) (quoting Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed. 2d 652
(1972)) (other citations omitted). “Indeed, the Second Circuit
has stated that ‘[i]mplicit in the right to self-representation
is an obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent
forfeiture of important rights because of their lack of legal
training.’ ” Govan, 289 F.Supp.2d at 295 (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). “This liberal standard,
however, does not excuse a pro se litigant from following
the procedural formalities of summary judgment.” Id. (citing
Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL 527484,
at *1 (S.D.N.Y. May 16, 2001)).
The Prison Litigation Reform Act (“PLRA”) states that “[n]o
action shall be brought with respect to prison conditions under
section 1979 of the Revised Statutes of the United States
(42 U.S.C. § 1983), or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). This exhaustion requirement applies
to all suits brought by inmates regarding aspects of prison
life, including allegations of constitutional deprivations such
as “excessive force or some other wrong.” Porter v. Nussle,
534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
Inmates must exhaust all available administrative remedies
even if they are seeking only money damages that are not
available in prison administrative proceedings. See Giano v.
Goord, 380 F.3d 670, 675 (2d Cir. 2004), abrogated on other
grounds by Ross v. Blake, ––– U.S. ––––, 136 S.Ct. 1850, 195
L.Ed.2d 117 (2016). The failure to exhaust is an affirmative
defense that must be raised by the defendants and, as such, it
is the defendants' burden to establish that the plaintiff failed to
meet the exhaustion requirements. See Jones v. Bock, 549 U.S.
199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Johnson v.
Testman, 380 F.3d 691, 695 (2d Cir. 2004); Key v. Toussaint,
660 F.Supp.2d 518, 523 (S.D.N.Y. 2009) (citations omitted).
The Supreme Court has held that in order to properly
exhaust an inmate's administrative remedies, the inmate must
complete the administrative review process in accordance
with the applicable state rules. See Jones, 549 U.S. at 218-19,
127 S.Ct. 910 (citing Woodford v. Ngo, 548 U.S. 81, 126
S.Ct. 2378, 165 L.Ed.2d 368 (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. See Woodford,
548 U.S. at 90-103, 126 S.Ct. 2378.
New York State has a three-step administrative review
process. First, a grievance is submitted to the Inmate
Grievance Resolution Committee (“IGRC”) which reviews
and investigates the formal complaint before issuing a written
determination. See 7 N.Y.C.R.R. § 701.5(b). Second, an
adverse decision by the IGRC may be appealed to the
Superintendent of the Facility. See id. at § 701.5(c). Third, an
adverse decision by the Superintendent may be appealed to
Central Office Review Committee (“CORC”), which makes
the final determination within the administrative review
process. See id. at § 701.5(d). If all three of these levels of
review are exhausted, then the prisoner may seek relief in
federal court pursuant to section 1983. See Bridgeforth v. DSP
Bartlett, 686 F.Supp.2d 238, 239 (W.D.N.Y. 2010) (citing
Porter, 534 U.S. at 524, 122 S.Ct. 983); Singh v. Goord, 520
F.Supp.2d 487, 495-96 (S.D.N.Y. 2007) (quoting Hemphill v.
New York, 380 F.3d 680, 686 (2d Cir. 2004)). When a plaintiff
presents a claim arising “directly out of a disciplinary or
administrative segregation hearing ... (e.g., a claim of denial
of procedural due process), he exhausts his administrative
remedies by presenting his objections in the administrative
appeals process, not by filing a separate grievance instead of
or in addition to his ordinary appeal.” Sweet v. Wende Corr.
Facility, 514 F.Supp.2d 411, 413 (W.D.N.Y. 2007) (internal
quotation and citations omitted); see also Davis v. Barrett, 576
F.3d 129, 131-32 (2d Cir. 2009).
*3 Although administrative remedies generally must be
exhausted, a prisoner need not exhaust remedies if they are
not “available.” Ross v. Blake, ––– U.S. ––––, 136 S.Ct.
1850, 1855, 195 L.Ed.2d 117 (2016). “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 v.
Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 136
S.Ct. at 1859). “Second, ‘an administrative scheme might be
so opaque that it becomes, practically speaking, incapable
of use.’ ” Id. (quoting Ross, 136 S.Ct. at 1859). “In other
words, ‘some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it.’ ” Id. at 123-24
(quoting Ross, 136 S.Ct. at 1859). “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, 136 S.Ct. at 1860). 2
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After de novo review, it is clear that Plaintiff was required to
exhaust his administrative remedies. As a general matter, the
Supreme Court in Porter established that even civil claims
based on constitutional deprivations still require inmates to
exhaust administrative remedies. See Porter, 534 U.S. at 532,
122 S.Ct. 983. Turning to the recognized exceptions to the
administrative exhaustion requirement, Plaintiff has failed to
establish that any of them apply. 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, Dkt. No. 44-10 at 29:22-23, a record of
administrative defeats for a single prisoner is not sufficient
evidence to effectively indict the system. Similarly, the fact
that Plaintiff had initiated the grievance procedures in the
past but failed to do so here demonstrates that at least the
initial step of the process, which Plaintiff failed to engage
in, was not so opaque as to be unavailable. See id.; Dkt.
No. 44-6 at 3. Finally, Plaintiff has failed to provide any
evidence suggesting that the prison administrators thwarted
his attempts to utilize the process. Instead, Plaintiff admits
that he actively chose to forgo the IGRC processes because he
believed the nature of the crime underlying his incarceration
would prejudice the IGRC against him. See Dkt. No. 44-10
at 31:2-17. However, other than this statement, which merely
demonstrates Plaintiff's subjective belief of bias, Plaintiff
introduced no evidence to support this belief. As such, the
Court is unable to find a question of fact over whether
the administrators were interfering with Plaintiff's access to
administrative remedies. Therefore, after de novo review,
the Court concludes that Plaintiff was not excused from
exhausting his administrative remedies prior to bringing this
action in federal court. As it is undisputed that Plaintiff did
not exhaust his administrative remedies, the Court adopts
Magistrate Judge Stewart's Report-Recommendation and
Order.
*4 Accordingly, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-
Recommendation and Order (Dkt. No. 82) is ADOPTED in
its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant's motion for summary judgment
(Dkt. No. 44) is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendant's favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 879270
Footnotes
1 The cited page numbers for docket entries in this Order refer to those assigned by the Court's electronic
filing system (“ECF”).
2 In Ross, the Court rejected the Second Circuit's “extra-textual” exception to the PLRA's exhaustion
requirement which allowed the taking into account of “special circumstances” to justify a prisoner's failure to
comply with administrative procedural requirements. See Ross, 136 S.Ct. at 1856-57. Rather, it held that the
only limit to the PLRA's exhaustion requirement “is the one baked into its text: An inmate need exhaust only
such administrative remedies as are ‘available.’ ” Id. at 1862; see also Williams, 829 F.3d at 123 (recognizing
that the framework set forth in Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) and Hemphill v. New
York, 380 F.3d 680 (2d Cir. 2004), setting forth a “special circumstances” exception to the PLRA's exhaustion
requirement has been abrogated in part by Ross). As such, the Supreme Court specifically 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 remedy unavailable. See id. at 1858.
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Case 9:25-cv-00153-DNH-ML Document 53 Filed 05/05/26 Page 122 of 170

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
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in question,” but he does not indicate any specific steps he
took to appeal to the IGRC or to pursue any other avenue of
appellate review within the IGRP. (Opp'n 6.)
B. Procedural History
On April 11, 2013, Plaintiff commenced this action by filing
a complaint against the City of New York, Correction Officer
Jaquon Pickwood (“Pickwood”), Correction Officer Sauda
Abdul-Malik (“Abdul-Malik”), and Defendant (collectively,
“Defendants”), pursuant to Section 1983, asserting violations
of his constitutional rights under the Eighth and Fourteenth
Amendments. (See Doc. No. 1.) On December 9, 2013,
Defendants moved to dismiss the Complaint. (Doc. No.
18.) On September 17, 2014, the Court granted Defendants'
motion to dismiss with respect to Plaintiff's claims against
the City of New York, Pickwood, and Abdul-Malik, and
Plaintiff's Fourteenth Amendment claims against Defendant
for failure to state a claim upon which relief can be
granted, but denied Defendants' motion to dismiss with
respect to Plaintiff's Eighth Amendment claim against
Officer Eason. (Doc. No. 29.) On September 11, 2015,
following the completion of discovery, Defendant filed the
instant motion for summary judgment, along with his brief
and his 56.1 Statement, arguing that Plaintiff failed to
exhaust administrative remedies, that his Eighth Amendment
conditions of confinement claim failed on the merits, and that
in any event, Defendant was entitled to qualified immunity.
(Doc. Nos. 53–55, 57.) Defendant also filed a notice pursuant
to Local Civil Rule 56.2 alerting Plaintiff of his obligation
to submit a responsive statement and informing him of the
consequences of not doing so. (Doc. No. 56.) In accordance
with Local Rule 56.2, this notice included copies of Federal
Rule of Civil Procedure 56 and Local Civil Rule 56.1.
(Id.) On October 14, 2015, Plaintiff filed a brief opposing
summary judgment and submitted several exhibits (see Doc.
No. 58), but he failed to submit a responsive 56.1 Statement.
Defendant submitted his reply on October 22, 2015. (Doc. No.
59 (“Reply”).)
II. LEGAL STANDARD
Pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment should be granted “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). There is “no genuine dispute as
to any material fact” where (1) the parties agree on all facts
(that is, there are no disputed facts); (2) the parties disagree
on some or all facts, but a reasonable fact-finder could never
accept the nonmoving party's version of the facts (that is, there
are no genuinely disputed facts), see Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
or (3) the parties disagree on some or all facts, but even on
the nonmoving party's version of the facts, the moving party
would win as a matter of law (that is, none of the factual
disputes are material), see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
In determining whether a fact is genuinely disputed, the court
“is not to weigh the evidence but is instead required to view
the evidence in the light most favorable to the party opposing
summary judgment, to draw all reasonable inferences in favor
of that party, and to eschew credibility assessments.” Weyant
v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to
show a genuine dispute, the nonmoving party must provide
“hard evidence,” D'Amico v. City of N.Y., 132 F.3d 145,
149 (2d Cir. 1998), “from which a reasonable inference
in [its] favor may be drawn,” Binder & Binder PC v.
Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation
marks omitted). “Conclusory allegations, conjecture, and
speculation,” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998), as well as the existence of a mere “scintilla of evidence
in support of the [nonmoving party's] position,” Anderson,
477 U.S. at 252, are insufficient to create a genuinely disputed
fact. A moving party is “entitled to judgment as a matter of
law” on an issue if (1) it bears the burden of proof on the
issue and the undisputed facts meet that burden; or (2) the
nonmoving party bears the burden of proof on the issue and
the moving party “ ‘show[s]’– that is, point[s] out ... – that
there is an absence of evidence [in the record] to support the
nonmoving party's [position].” See Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986).
*3 Typically, a “nonmoving party's failure to respond
to a [Local Civil] Rule 56.1 statement permits the court
to conclude that the facts asserted in the statement are
uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ.,
584 F.3d 412, 418 (2d Cir. 2009) (citing Gubitosi v. Kapica,
154 F.3d 30, 31 n.1 (2d Cir. 1998)). “This general rule applies
equally” to cases involving a pro se nonmoving party who
has been provided adequate notice of the consequences of
failing to properly respond to a summary judgment motion.
Pierre-Antoine v. City of N.Y., No. 04-cv-6987 (GEL), 2006
WL 1292076, at *3 (S.D.N.Y. May 9, 2006); see also Gilliam
v. Trustees of Sheet Metal Workers' Nat'l Pension Fund, No.
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03-cv-7421 (KMK), 2005 WL 1026330, at *1 n.2 (S.D.N.Y.
May 3, 2005). Even so, the Court “may in its discretion opt to
conduct an assiduous review of the record even where one of
the parties has failed to file such a statement,” Holtz, 258 F.3d
at 73, and the Court is obligated to construe pro se litigants'
submissions liberally, see McEachin v. McGuinnis, 357 F.3d
197, 200 (2d Cir. 2004).
Here, Plaintiff failed to submit a responsive Rule 56.1
statement, even though Defendant, pursuant to Local Civil
Rule 56.2, sent Plaintiff notice of his obligations under
Local Civil Rule 56.1 and Federal Rule of Civil Procedure
56 and sent copies of both rules. (Doc. No. 56). In light
of Plaintiff's pro se status, the Court has exercised its
discretion to independently review the record, which reveals
no controverted facts. See Holtz, 258 F.3d at 73. In fact,
as discussed below, Plaintiff's own submissions confirm the
material facts contained in Defendant's Rule 56.1 Statement.
III. DISCUSSION
Defendant argues that summary judgment should be granted
because Plaintiff has failed to comply with the administrative
exhaustion requirement of the Prison Litigation Reform Act
of 1995 (the “PLRA”). The Court agrees.
Under the PLRA, inmates bringing claims with respect
to prison conditions under Section 1983 must exhaust the
administrative remedies that are available at that prison
before proceeding in federal court. 42 U.S.C. § 1997e(a).
The PLRA's exhaustion requirement is “mandatory,” thus
“foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct.
1850, 1857 (2016); see also Woodford v. Ngo, 548 U.S. 81,
84 (2006) (describing the “invigorated exhaustion provision”
as “[a] centerpiece of the PLRA's effort to reduce the
quantity of prisoner suits” (citations and quotation marks
omitted)). Accordingly, “the law is well-settled that the failure
to take an available administrative appeal, even when the
initial grievance receives no response, constitutes a failure to
exhaust available administrative remedies.” Garvin v. Rivera,
No. 13-cv-7054 (RJS), 2015 WL 3999180, at *3 (S.D.N.Y.
June 29, 2015); accord Johnson v. N.Y.C. Dep't of Corr.,
No. 13-cv-6799 (CM), 2014 WL 2800753, at *6 (S.D.N.Y.
June 16, 2014) (“Assuming that [p]laintiff filed a timely
grievance ... and received no response within five business
days[,] ... [p]laintiff ... could have taken the next step and
requested a hearing.”); Leacock v. N.Y.C. Health Hosp. Corp.,
No. 03-cv-5440 (RMB) (GWG), 2005 WL 483363, at *7
(S.D.N.Y. Mar. 1, 2005) (“[T]hat [plaintiff] allegedly did
not receive a response to her grievance does not excuse her
from failing to exhaust the appellate remedies available to
her.”); Burns v. Moore, No. 99-cv-966 (LMM) (THK), 2002
WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) (“Thus, even
if [p]laintiff received no response to his initial grievance,
[p]laintiff could have sought the next level of review, in this
case, to the prison superintendent.”).
*4 At the OBCC, where Plaintiff was incarcerated, an
inmate must exhaust several layers of review, even if the
inmate does not receive a timely disposition at the initial
stages. (56.1 Stmt. ¶ 12–14.) Here, as Plaintiff reveals in
his own complaint and brief in opposition to the motion
for summary judgment, he did not exhaust the OBCC
administrative procedure. (Compl. 7–8; Opp'n 6.) Rather, he
indicates that he filed a grievance but otherwise did not appeal
or seek further review through the IGRP process. (Compl.
7–8 (noting that he is “still waiting” for disposition of his
grievances and did not seek review at the next levels within
IGRP); Opp'n 6 (noting that he filed “several grievances about
the issues in question,” but omitting reference to any specific
steps taken to appeal)). Accordingly, Plaintiff failed to satisfy
the PLRA exhaustion requirement.
The Court next considers whether there is any basis for
excusing Plaintiff's failure to exhaust administrative remedies
at the IGRP. Last month, the Supreme Court forcefully
disapproved of judge-made exceptions to the PLRA's
exhaustion requirement, stressing the mandatory language
of the statute. See Ross, 136 S. Ct. at 1862 (“Courts may
not engraft an unwritten ‘special circumstances’ exception
onto the PLRA's exhaustion requirement.”) In doing so,
the Supreme Court expressly rejected the Second Circuit's
prior framework under Giano v. Goord, 380 F.3d 670
(2d Cir. 2004), and, by extension, Hemphill v. New York,
380 F.3d 680, 686 (2d Cir. 2004), which recognized a
“special circumstances” exception to the PLRA's exhaustion
requirement. See Williams v. Priatno, No. 14-4777, ___ F.3d.
____, ____, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016)
(“[T]o the extent that our special circumstances exception ...
permits plaintiffs to file a lawsuit in federal court without
first exhausting administrative remedies that were, in fact,
available to them, those aspects of Giano and Hemphill are
abrogated by Ross.”).
Thus, post-Ross, the lone surviving exception to the PLRA's
exhaustion requirement is that embedded in its text: that an
inmate need only exhaust those administrative remedies that
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are “available” to him. Ross, 136 S. Ct. at 1862; see also
43 U.S.C. § 1997e(a). An inmate's failure to exhaust may
therefore be excused when his prison's grievance mechanisms
are literally or constructively “unavailable.” Ross, 136 S. Ct.
at 1858–59. The Supreme Court described three scenarios in
which administrative procedures could be “officially on the
books,” but “not capable of use to obtain relief,” and therefore
unavailable. Id. While not exhaustive, these illustrations
nonetheless guide the Court's inquiry. See Williams, 2016
WL 3729383, at *4 n.2. First, an administrative procedure
is unavailable when “it operates as a simple dead end –
with officers unable or consistently unwilling to provide
any relief to inmates.” Ross, 136 S. Ct. at 1859. If prison
administrators either lack the necessary authority to provide
any relief or possess authority but consistently decline to
exercise it, the administrative channels are not “available”
within the meaning of the PLRA. Id.; see also Booth v.
Churner, 523 U.S. 731, 736, 738 (2001) (“[T]he modifier
‘available’ requires the possibility of some relief.”). Second,
an administrative procedure is unavailable where it is “so
opaque that it becomes, practically speaking, incapable
of use.” Id. To meet this high bar, the administrative
remedy must be “essentially ‘unknowable.’ ” Id. Finally,
“a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of it
through machination, misrepresentation, or intimidation.”
Ross, 136 S. Ct. at 1860.
Here, Plaintiff has not alleged – let alone shown – that the
administrative procedures at the OBCC were unavailable
to him. Although Plaintiff's initial grievance received no
response, this alone is insufficient to show that the IGRP acted
as a mere dead end. As stated earlier, “the law is well-settled”
that an inmate's “failure to take an available administrative
appeal, even when the initial grievance receives no response,
constitutes a failure to exhaust available administrative
remedies.” Garvin, 2015 WL 3999180, at *3 (collecting
authorities). In short, the DOC's untimeliness in this case
is not enough to demonstrate the unavailability of an
administrative remedy. This is especially true in light of the
IGRP's built-in appeal mechanism, whereby inmates may
directly proceed to the next level of review in the event
of the DOC's failure to respond to a grievance. (See IGRP
Directive § IV(D)(9)(b), (10).) Furthermore, Plaintiff has not
introduced any facts to indicate that prison officials at OBCC
are “consistently unwilling to provide any relief to aggrieved
inmates.” Ross, 136 S. Ct. at 1859.
*5 Nor has Plaintiff pointed to any evidence that the
IGRP was “so opaque that it [became], practically speaking,
incapable of use” and therefore “essentially unknowable.”
Ross, 136 S. Ct. at 1859. While the Second Circuit recently
found that certain administrative grievance procedures at
a different New York State facility met this standard,
the Second Circuit's decision hinged on the “extraordinary
circumstances” specific to the case before it, for which
the applicable grievance regulations gave “no guidance
whatsoever.” See Williams, 2016 WL 3729383, at *1, *5.
Specifically, the plaintiff in Williams was housed in a
special housing unit and segregated from the regular prison
population; therefore, he gave his grievance complaint to a
correction officer to file on his behalf. Williams, 2016 WL
3729383, at *2. However, the plaintiff in Williams alleged
that the correction officer to whom he gave his complaint
failed to file it, id., and because the Second Circuit concluded
that the applicable grievance regulations gave “no guidance
whatsoever to an inmate whose grievance was never filed,”
id. at 5, it reversed the District Court's dismissal for failure to
exhaust. Here, by contrast the IGRP expressly guides inmates
in Plaintiff's position who have filed a grievance but have not
received a timely response and directs them to either grant an
extension of time to the relevant decisionmaker or to appeal to
the next level of review. (See IGRP Directive §§ IV(D)(9)(b),
(10).) In light of the IGRP's unambiguous directive, Plaintiff
has clearly failed to show that the IGRP was “essentially
unknowable.” See Ross, 136 S. Ct. at 1859.
Finally, the Court turns to the third scenario contemplated
by the Supreme Court, in which “prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id.
at 1859. Plaintiff has not demonstrated, or even suggested,
that prison administrators obstructed or interfered with his
access to administrative remedies. See, e.g., Winston v.
Woodward, No. 05-cv-3385 (RJS), 2008 WL 2263191, at
*10 (S.D.N.Y. May 30, 2008) (concluding that plaintiff's
failure to exhaust administrative remedies was not excused in
light of his “failure to put forth any corroborating evidence,
either direct or circumstantial, to support his claims that he
suffered retaliation in the form of threats, harassment and
mail tampering”). Thus, this exception to the exhaustion
requirement is also clearly inapplicable.
Therefore, the Court concludes, as a matter of law, that
Plaintiff has failed to exhaust administrative remedies
available to him through the IGRP and has failed to offer any
facts to prove that administrative remedies were not available
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to him. Because Plaintiff's claims are barred for failure to
comply with the administrative exhaustion requirement of
the PLRA, Defendant's motion for summary judgment is
granted. 2
IV. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that
Defendant's motion for summary judgment is GRANTED.
Although Plaintiff has paid the filing fee in this action and
has not applied to proceed in forma pauperis, the Court
nevertheless certifies pursuant to 28 U.S.C. § 1915(a)(3) that,
in the event Plaintiff seeks to appeal this Order in forma
pauperis, any appeal would not be taken in good faith.
The Clerk is respectfully directed to terminate the motion
pending at docket number 53, to mail a copy of this order to
Plaintiff, and to close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 3948100
Footnotes
1 The following facts are drawn from Defendant's unopposed Local Civil Rule 56.1 Statement. (Doc. No. 55
(“56.1 Statement” or “56.1 Stmt.”).) In deciding Defendant's motion for summary judgment, the Court has
also considered Plaintiff's submission in opposition to summary judgment (Doc. No. 58 (“Opp'n”)), and has
conducted an independent review of the record, notwithstanding Plaintiff's failure to submit a statement
compliant with Local Civil Rule 56.1. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d. Cir. 2001) (noting
that district court “may in its discretion opt to conduct an assiduous review of the record even when” a party
has failed to comply with Local Civil Rule 56.1 (citations and quotation marks omitted)).
2 Although Defendant has raised other grounds for summary judgment, including that Plaintiff has failed to
establish an Eighth Amendment conditions of confinement claim, and that Defendant is entitled to qualified
immunity, the Court finds it unnecessary to address these other arguments because of Plaintiff's failure to
exhaust remedies.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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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
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of the Eighth Amendment. (ECF No. 2.) The case was
reassigned to me on February 14, 2020. At a pre-motion
conference on August 28, 2020 in anticipation of a potential
motion to dismiss, I granted Plaintiff leave to amend his
Complaint. (See Minute Entry dated Aug. 28, 2020.) The
Amended Complaint was filed on September 25, 2020. (ECF
No. 30.) Defendants answered on April 8, 2021. (ECF No.
44.)
On May 11, 2021, I held a status conference and set a
discovery schedule, (ECF No. 51), which was extended twice,
(ECF Nos. 57, 60). At the close of discovery, Defendants
filed a pre-motion letter in anticipation of their motion for
summary judgment. (ECF No. 64.) 6 I held a pre-motion
conference on November 16, 2021 and set a briefing schedule
for Defendants' motion. (See Minute Entry dated Nov. 16,
2021.) On December 29, 2021, Defendants filed their motion
papers. (ECF Nos. 66-71.) Plaintiff's opposition was initially
due on January 27, 2022. Approximately one to two weeks
before the due date Plaintiff left two phone messages with my
chambers, requesting an extension of the briefing schedule
and permission to file a motion to obtain counsel. (See ECF
No. 74.) On January 19, 2022, I entered an Order extending
Plaintiff's time to respond to the motion to February 28, 2022,
and advising him of his right to file a motion asking the Court
to seek volunteer counsel. (Id.) On March 18, 2022, I received
a letter from Plaintiff (dated March 14, 2022), indicating that
his opposition was ready, and he just wanted permission to file
it late; I granted an extension to April 6, 2022, and noted there
would be no further extensions. (ECF No. 76.) On April 28,
2022, after no opposition was received, I deemed the motion
fully submitted. (ECF No. 78.)
II. LEGAL STANDARD
*3 Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “[T]he dispute about a material fact
is ‘genuine’ ... if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if it “might affect the outcome of the suit under
the governing law .... Factual disputes that are irrelevant
or unnecessary will not be counted.” Id. On a motion for
summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in
his favor.” Id. at 255.
The movant bears the initial burden of demonstrating “the
absence of a genuine issue of material fact,” and, if satisfied,
the burden then shifts to the non-movant to “present evidence
sufficient to satisfy every element of the claim.” Holcomb
v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). “The
mere existence of a scintilla of evidence in support of the
[non-movant's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the
[non-movant].” Anderson, 477 U.S. at 252. Moreover, the
non-movant “must do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), and “may not rely on conclusory allegations or
unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 428 (2d Cir. 2001) (cleaned up).
“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by ... citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits
or declarations, stipulations ... admissions, interrogatory
answers, or other materials ....” Fed. R. Civ. P. 56(c)(1).
Where a declaration is used to support or oppose the motion,
it “must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the ...
declarant is competent to testify on the matters stated.” Id.
56(c)(4); see Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that “a
party fails ... to properly address another party's assertion of
fact as required by Rule 56(c), the court may ... consider
the fact undisputed for purposes of the motion” or “grant
summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e).
Pro se litigants must be afforded “special solicitude,” Tracy
v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly
where motions for summary judgment are concerned,”
Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014).
Where, as here, the non-moving party fails to respond to
the movant's summary judgment motion, “the district court
may not grant the motion without first examining the moving
party's submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial.”
Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,
244 (2d Cir. 2004) (cleaned up). “If the evidence submitted
in support of the summary judgment motion does not meet
the movant's burden of production, then summary judgment
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must be denied even if no opposing evidentiary matter is
presented.” Id. (cleaned up) (emphasis omitted).
III. DISCUSSION
A. Exhaustion Under the PLRA
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is required
for “all inmate suits about prison life, whether they involve
general circumstances or particular episodes.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The PLRA mandates that
a plaintiff use “all steps that the agency holds out, and do[ ]
so properly” – that is, in accordance with the applicable
agency rules. Amador v. Andrews, 655 F.3d 89, 96 (2d Cir.
2011) (cleaned up). Exhaustion of available administrative
remedies “must be complete prior to commencement of suit”
and “[t]he fact that a grievance is filed, or the process is
completed, subsequent to commencement of suit will not
salvage an otherwise premature filing.” Chalif v. Spitzer, No.
05-CV-1355, 2008 WL 1848650, at *13 (N.D.N.Y. Apr. 23,
2008) (cleaned up).
*4 For inmates in New York State prison, administrative
exhaustion requires compliance with DOCCS' three-tiered
IGP, in which (1) the inmate must file a grievance with the
Inmate Grievance Resolution Committee (“IGRC”) within
twenty-one days of the alleged occurrence, (2) the inmate
must then appeal an adverse decision by the IGRC to the
superintendent of the facility within seven days after receipt
of the IGRC's response, and (3) the inmate must then appeal
an adverse decision by the superintendent to the CORC within
seven days after receipt of the superintendent's response. See
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2022); McGee
v. McGready, No. 16-CV-4187, 2018 WL 2045094, at *2
(S.D.N.Y. Apr. 30, 2018).
“[W]hen a grievance concerns staff harassment, DOCCS
procedures provide for an expedited review that allows for
the complaint to bypass IGRC review and proceed before
the Superintendent in the first instance.” Jackson v. Jackson,
No. 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16,
2021); see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8. Under
the expedited procedure, the Superintendent has twenty-five
days to respond to the grievance. N.Y. Comp. Codes R. &
Regs. tit. 7, § 701.8(f). If the Superintendent fails to respond
within twenty-five days, the inmate may appeal directly to
CORC. Id. § 701.8(g). If the Superintendent does respond,
the inmate has seven days from receipt of the response to
appeal to CORC. Id. § 701.8(h). The IGP Supervisor has
discretion to grant exceptions to the time limits for filing or
appealing grievances. See id. § 701.6(g). Whether or not the
Superintendent timely responds, the procedure to appeal a
determination of the Superintendent to CORC is to file “a
notice of decision to appeal (form #2133) with the inmate
grievance clerk.” Id. § 701.8(g)-(h). 7 Inmates who have been
transferred to a different facility can get their appeal to the
appropriate grievance clerk by “mail[ing] the signed appeal
form back to the IGP supervisor at the facility where the
grievance was originally filed.” Id. § 701.6(h)(2).
CORC is required to provide, through IGP staff, written
confirmation that an appeal has been received, and if the
inmate does not receive such confirmation within forty-five
days, he “should contact the IGP supervisor in writing to
confirm that the appeal was filed and transmitted to CORC.”
Id. § 701.5(d)(3)(i). The IGP requires CORC to respond to an
appeal within thirty days of receipt. Id. § 701.5(d)(3)(ii). If
CORC has received an appeal and fails to rule within those
thirty days, the inmate is considered to have exhausted his
administrative remedies and may file suit. Hayes v. Dahlke,
976 F.3d 259, 270 (2d Cir. 2020).
B. Plaintiff's Failure to Exhaust
Defendants have met their burden to demonstrate that
Plaintiff failed to follow IGP procedures with regard to
his CORC appeal and that CORC never received Plaintiff's
appeal. Accordingly, Plaintiff failed to “properly” exhaust
administrative remedies prior to filing suit. See Amador, 655
F.3d at 96.
Plaintiff testified that once he received the Superintendent's
adverse decision on October 9, 2021, he filled out the appeal
statement and “forwarded it to CORC ... [b]y mail.” (P's Depo.
at 80:24-81:4.) He never received confirmation that his appeal
was received or any response from CORC, and after a few
months he filed this lawsuit. (Id. at 81:8-13.)
The IGP required Plaintiff to forward the appeal to the Inmate
Grievance Clerk. N.Y. Comp. Codes R. & Regs. tit. 7, §
701.8(g)-(h). The form at the bottom of the Superintendent's
letter also notified Plaintiff that the appeal to CORC had to
be transmitted via the Inmate Grievance Clerk. (See ECF No.
71-7.) The IGP specifically provides that Plaintiff, having
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been transferred to a different facility from that in which
he originally filed his grievance, should get his appeal to
the proper Inmate Grievance Clerk by “mail[ing] the signed
appeal form back to the IGP supervisor at the facility where
the grievance was originally filed.” Id. § 701.6(h)(2). Nothing
in the record indicates that Plaintiff followed this procedure;
rather, it appears he tried to mail his appeal directly to CORC,
and CORC never received the document. (See Seguin Decl. ¶¶
12-13 (CORC never received appeal of Plaintiff's grievance,
nor did it receive any other correspondence from Plaintiff
during 2019 or 2020); ECF No. 71-8 (CORC records showing
no receipt of appeal)).
*5 Accordingly, Plaintiff failed to properly follow
the grievance procedure and has failed to exhaust his
administrative remedies. See Valverde v. Folks, No. 19-
CV-8080, 2022 WL 836310, at *6 (S.D.N.Y. Mar. 21,
2022) (“Plaintiff did not properly comply with [the] prison
grievance procedural rules. Plaintiff ... mailed his appeal
statement directly to CORC. However, to appeal a decision
denying a grievance, an inmate must submit the appeal,
not directly to CORC, but to the grievance supervisor of
the facility where the grievance was originally filed for
forwarding to that facility's grievance clerk.”); Wilkinson v.
Banks, No. 2-CV-361, 2007 WL 2693636, at *6 (W.D.N.Y.
Sep. 10, 2007) (“[N]o dispute exists that [the pro se plaintiff]
did not follow correct procedure in attempting to appeal that
grievance to CORC. He did not file his appeal with the Inmate
Grievance Clerk as required by the regulations, but rather
mailed it directly to CORC.”) (cleaned up).
C. Availability of Administrative Remedies
Although the Supreme Court has deemed exhaustion
mandatory, there are circumstances under which
administrative remedies may be deemed “unavailable” to
an inmate, such that an inmate is not required to exhaust.
Ross v. Blake, 578 U.S. 632, 642 (2016). The Supreme
Court identified three circumstances where administrative
remedies may be unavailable. See id. at 643-44. First, “an
administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates
as a simple dead end – with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” Id. at
643. Second, “an administrative scheme might be so opaque
that it becomes, practically speaking, incapable of use.” Id.
Third, administrative remedies are unavailable where “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 644. “If the defendant has met its burden
of establishing the existence and applicability of the grievance
policy, the plaintiff bears the burden of establishing de facto
unavailability.” Saeli v. Chautauqua County, 36 F.4th 445,
453 (2d Cir. 2022) (emphasis in original).
Plaintiff has submitted no opposition to the instant motion
and has not argued that administrative procedures were
unavailable to him. See Dowling v. Barkman, No. 17-
CV-647, 2019 WL 7971868, at *5 (N.D.N.Y. Dec. 20,
2019) (“Given Plaintiff's failure to oppose the Motion, no
basis appears on the record for concluding that DOCCS'
grievance procedure was unavailable to him.”), report and
recommendation adopted sub nom. Dowling v. Schleicher,
2020 WL 103480 (N.D.N.Y. Jan. 8, 2020). Even if that were
not the case, the record does not reflect that any of the above-
listed circumstances apply.
First, nothing in the record suggests that Plaintiff did not
receive a response from CORC because the grievance process
was operating as a “dead end” – rather, it appears that CORC
never received Plaintiff's appeal because of Plaintiff's failure
to send the appeal to the appropriate official. (See P's Depo. at
80:24-81:4; Seguin Decl. ¶¶ 12-13; ECF No. 71-8.) Similarly,
the record is bereft of evidence that the IGP is unavailable to
inmates generally. See White v. Veile, 709 F. App'x 35, 38 (2d
Cir. 2017) (summary order) (affirming summary judgment
for failure to exhaust administrative remedies where plaintiff
did not “present[ ] any evidence about the outcomes in the
grievance system in general” or “show[ ] that prison officials
are consistently unwilling to grant relief”).
Second, as set out above, the relevant procedures are not
opaque. The IGP clearly sets out the process for appealing
a grievance to CORC through the Inmate Grievance Clerk –
including the instructions under § 701.6(h)(2) for an inmate
who has been transferred from one facility to another to send
an appeal to the appropriate facility's IGP Supervisor. Plaintiff
testified that he is familiar with the grievance process, (see
P's Depo. at 18:3-19:6), and the Superintendent's denial stated
that the appeal to CORC had to go through the Inmate
Grievance Clerk, (see ECF No. 71-7).
*6 Third, while there is some evidence in the record that
Plaintiff sought information from the “law library officer”
while he was in the SHU at Elmira and appears to have
been given a mailing address for CORC, 8 this fact alone
is insufficient to establish that a prison official thwarted his
ability to successfully appeal to CORC. Plaintiff has not
suggested that he asked how to appeal and was told to mail his
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Ruiz v. Link, Not Reported in Fed. Supp. (2022)
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appeal to CORC, or that he asked the law library officer for
anything other than the address of CORC. There is simply no
evidence of machination, intimidation or misrepresentation.
That the breakdown of the grievance procedure here was
due to Plaintiff's failure to follow it, rather than to its
unavailability, is highlighted by the fact that when Plaintiff
did not receive confirmation that CORC was in possession
of his appeal within the forty-five days envisioned by the
regulations, instead of following the IGP and writing to Sing
Sing's IGP Supervisor – an official with whom he had recently
communicated, (see P's Depo. at 79:22-80:13, 81:14-21) –
to confirm that the appeal was filed, see N.Y. Comp. Codes
R. & Regs. tit. 7, § 701.5(d)(3)(i), he simply waited a few
months and then filed this lawsuit. (P's Depo. at 79:25-80:8,
81:5-13). 9
In short, “[g]iven the lack of evidence that Plaintiff's appeal
to CORC was ever filed, or ever followed up on, it is
not that the full scope of administrative remedies was not
available to Plaintiff – rather, Plaintiff failed to fully exhaust
the administrative remedies available to him.” Houston
v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3
(W.D.N.Y. May 14, 2020); see Litchmore v. Williams, No. 11-
CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013)
(no “sufficient basis in the record to find that administrative
remedies were unavailable” where, among other things, there
was “no evidence here that the plaintiff's appeal was actually
mailed, intercepted, or ignored” and “DOCCS has no record
of any appeal filed with CORC”). 10
IV. CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is GRANTED. The Clerk of Court is respectfully
directed to terminate the pending motion, (ECF No. 83), enter
judgment for Defendants, and close the case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 3020254
Footnotes
1 Plaintiff did not file a responsive Rule 56.1 Statement or any papers in opposition to this motion. Local
Civil Rule 56.1 requires that the party opposing a motion for summary judgment submit a counterstatement
responding to the moving party's statement of material facts, indicating which facts are admitted and which
the opposing party contends are in dispute and require a trial. L.R. 56.1(b). Under the Local Rule, “[i]f the
opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact
will be deemed admitted.” Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (citing L.R. 56.1(c)).
Pro se litigants are not excused from this requirement. SEC v. Tecumseh Holdings Corp., 765 F. Supp. 2d
340, 344 n.4 (S.D.N.Y. 2011). As Defendants served Plaintiff with the requisite notice pursuant to Local Civil
Rule 56.2, (see ECF No. 72), I have discretion to consider any properly supported facts in Defendants' Local
Civil Rule 56.1 Statement admitted. (The Court will send Plaintiff copies of any unpublished decisions cited
in this Opinion and Order.) But granting Plaintiff solicitude, I have considered his deposition testimony, (ECF
No. 71-2 (“P's Depo.”)), statements in his complaint and amended complaint, both of which are sworn under
penalty of perjury pursuant to 28 U.S.C. § 1746, (ECF Nos. 2, 30), and his letter in response to Defendants'
pre-motion letter, (ECF No. 65). See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a
court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may
in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed
to file such a statement.”) (cleaned up).
2 Defendants move for summary judgment on all of Plaintiff's claims on the ground that he failed to exhaust his
administrative remedies, and in the alternative for summary judgment only on Plaintiff's deliberate medical
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indifference claim. (See ECF No. 67 at 1.) Because I resolve the motion on the basis of failure to exhaust
administrative remedies, I do not describe the specific allegations further.
3 Defendants state in their Rule 56.1 statement that Plaintiff's grievance is dated April 22, 2019, but that is the
date on which the grievance was stamped as received by the facility. (See ECF No. 71-6.)
4 The form is captioned “Appeal Statement,” and below the caption it reads: “If you wish to refer the above
decision of the Superintendent please sign below and return this copy to your Inmate Grievance Clerk. You
have seven (7) calendar days from your receipt of this notice to file your appeal.* Please state why you are
appealing this decision to C.O.R.C.” The asterisk leads to a statement about how to request an exception
to the time limit. Below the language quoted above are several lines for the inmate to explain why he is
appealing, and then signature lines for the inmate and the Grievance Clerk.
5 Plaintiff notes that it is possible he had not previously received the Superintendent's denial because much of
the time he was at Sing Sing he was housed in the Office of Mental Health (“OMH”) unit after several suicide
attempts between June and September of 2019. (P's Depo. at 78:5-19.)
6 Plaintiff responded by letter dated November 8, 2021, but that letter was not received and docketed until
November 24, 2021. (See ECF No. 65.)
7 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. See N.Y. Comp.
Codes R. & Regs. tit. 7, § 701.5(d)(1)(i).
8 Plaintiff testified as his deposition as follows:
[Q.] So how do you know where to send the grievance appeal? ...
A. You can actually get the address from the law library that they provide in the facility. They have all the
information of addresses, names, stuff like that.
Q. And is that what you did? You went to the law library?
A. Yes, ma'am. I was in the special housing unit at the time, so the law library officer will actually come to
you and take your request and then return the request by the next day.
(P's Depo. at 82:6-19.)
9 Plaintiff's response to the question whether he ever followed up with CORC – that he “tried checking [the
appeal], but it had already been months they hadn't responded, so I proceeded with my civil Complaint,” (P's
Depo. at 81:8-13) – not only contains no information about what he did to check, but suggests at most that
he asked about the status of his appeal at or about the same time that he filed this lawsuit.
10 Having so found, I need not and do not address the merits of Plaintiff's medical indifference claim.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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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
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Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009)
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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.
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Teaque v. Mullen, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 8589277
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Derrick TEAQUE, Plaintiff,
v.
K.L. MULLEN, et al., Defendants.
9:18-CV-01412 (GTS/CFH)
|
Signed 12/17/2019
Attorneys and Law Firms
Derrick Teaque, 16-A-2967, Collins Correctional Facility,
P.O. Box 340, Collins, New York 14034, Plaintiff pro se.
Hon. Letitia James, Attorney General for the State of New
York, OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ.,
Assistant Attorney General, The Capitol, Albany, New York
12224, Attorneys for Defendants.
REPORT-RECOMMENDATION & ORDER 1
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Derrick Teaque (“plaintiff”), an inmate
who was at all relevant times in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), commenced this action on December 4, 2018,
pursuant to 42 U.S.C. § 1983. Dkt. No. 1 (“Compl.”); Dkt.
No. 27 (“Am. Compl.”). Plaintiff contends that defendants
deprived him of his constitutional rights under the Eighth
Amendment. See Am. Compl. Defendants move, pursuant
to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56,
to dismiss the amended complaint. Dkt. No. 32. Plaintiff
opposes defendants’ motion. Dkt. No. 34. For the following
reasons, it is recommended that defendants’ motion be
granted, and plaintiff's amended complaint be dismissed in its
entirety without prejudice.
I. Background
A. Facts
Plaintiff alleges that at Mid-State Correctional Facility (“Mid-
State”) on October 11, 2018, at approximately 9:22 P.M.,
he was pepper-sprayed, “physically mutilated,” and harassed
by multiple corrections officers. Am. Compl. at 5. 2 While
walking through a housing area, plaintiff alleges that he
stopped to give another inmate a writing pen. See id. As a
result, Defendant Mullen indicated that she would be “writing
a misbehavior report for cube visiting[.]” Id. Defendant
Mullen also “grab[bed] [plaintiff] by [his] shirt with full
force[,]” and when plaintiff tried to pull himself away from
Defendant Mullen, she pepper-sprayed him. See id. at 6.
Plaintiff contends that after he was pepper-sprayed, several
other corrections officers approached the area and “physically
mutilated harassed and beat [him] to the point that [he] had
bruises on [his] face, neck, back, and scrapes and cuts on
[his] feet, knees and behind [his] ears.” Id. As a result of this
incident, plaintiff was sent to the hospital and required five
stitches in his right eye. See id. at 6, 20. Plaintiff contends that
Defendants Sexton, O'Donnell, and Ingraham saw and heard
this incident, and failed to intervene. See id. at 23, 25.
On October 22, 2018, plaintiff filed grievance #MS-23743-18
regarding the October 11, 2018, incident involving
Defendants Mullen, Sexton, Ingraham, and O'Donnell. See
Dkt. No. 32-3 (“Tapia Decl.”) ¶ 10. In his Amended
Complaint, filed on May 22, 2019, plaintiff noted that:
(1) his grievance was “ ‘pending’ being investigated
by Superintendent of Midstate Correctional Facility”; (2)
his grievance was “[f]orwarded to Superintendent for
investigation”; (3) he grieved/appealed his claim; (4)
“seventy-three days have passed since grievance was filed,
still no response from grievance department”; and (5) he
grieved/appealed his claim, his grievance was denied, he
appealed the denial, and the appeal is now “pending ...” Am.
Compl. at 5-7, 13, 14, 20.
*2 As plaintiff's grievance qualified as a harassment
grievance, it was immediately forwarded to the
superintendent for investigation; however, the superintendent
did not render a determination regarding grievance
MS-23743-18 until February 20, 2019, when plaintiff's
grievance was denied. See Tapia Decl. ¶ 11. Plaintiff signed
and appealed the superintendent's decision to the Central
Office Review Committee (“CORC”) on March 5, 2019. See
id. ¶¶ 12, 13. CORC received plaintiff's appeal regarding
grievance MS-2743-18 on March 18, 2019. See Dkt. No. 32-4
(“Seguin Decl.”) ¶ 10. Plaintiff received a “response” from
CORC in a letter dated April 25, 2019. See Dkt. No. 34 at
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1. As of June 21, 2019, it does not appear that CORC had
decided plaintiff's appeal. See generally Tapia Decl.
B. Procedural History
On December 4, 2018, the Court docketed the Complaint 3
in the within action, accompanied by an application to
proceed in forma pauperis (“IFP”). See Compl.; Dkt. No. 2.
Plaintiff subsequently filed numerous documents, including
two additional IFP applications and a “supplemental
complaint.” 4 See Dkt. Nos. 5, 8, 10, 11. On February 1, 2019,
Chief District Judge Glenn T. Suddaby issued a Decision and
Order granting plaintiff's third IFP application and accepting
plaintiff's failure-to-intervene claims against defendants
Mullen, Sexton, and Ingram, and directed defendants to
respond. See Dkt. No. 13 at 2, 8. On May 22, 2019, Judge
Suddaby issued a Decision and Order granting in part and
denying in part plaintiff's motion to amend his complaint; (1)
adding as a defendant S. O'Donnell, Corrections Officer; (2)
directing defendants to answer plaintiff's amended complaint;
and (3) dismissing several defendants without prejudice. See
Dkt. No. 26 at 13. Plaintiff filed his Amended Complaint on
May 22, 2019, dkt. no. 27, and defendants filed their Motion
for Summary Judgment in lieu of an answer on June 21, 2019,
seeking to dismiss plaintiff's claim in its entirety for failure
to exhaust administrative remedies. See Dkt. No. 32. Plaintiff
opposes defendants’ motion. See Dkt. No. 34.
On November 7, 2019, plaintiff filed a letter motion seeking
to “withdraw the above-entitled action against Defendants
pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) without prejudice,
and to stop the order of fees from his prison account, any
future payments mailed to the Court for Civil Case 9:18-
CV-01412-GTS-CFH be returned to Collins Correctional
Facility to inmate Derrick Teaque 16A2967.” Dkt. No.
37. Plaintiff advised the Court that he is “not capable of
continuing to prosecute this case alone. I don't have funds
for copies, I don't have access to computers & typewriters,
I don't have the funds for a lawyer. Please dismiss 9:18-
CV-1412 as soon as possible.” Id. at 1-2. Defendants filed
a response to this letter motion indicating that they would
stipulate to dismissal of the action. Dkt. No. 38. On November
15, 2019, plaintiff filed a “reply” to his letter motion. Dkt. No.
39. Therein, plaintiff “request[ed] an Amended Commitment
stating ‘Do NOT Collect & STOP payments of the filing fee.’
” Dkt. No. 39.
On November 27, 2019, the Court issued a Decision & Order
denying plaintiff's request for a refund of that portion of the
filing fee already paid and for a cessation of the withdrawals
of the remainder of the filing fee. Dkt. No. 40. The Court
also stayed the case for thirty days to allow plaintiff to inform
the Court whether he wished to proceed with the action. Id.
On December 4, 2019, plaintiff advised the Court that he
wished to proceed with the action. Dkt. No. 41. On December
5, 2019, the Court issued a text order indicating that the
case would remain open and that the pending motion for
summary judgment would be addressed in due course. Dkt.
No. 42. On December 11, 2019, without permission of the
Court, plaintiff filed a further response in opposition to the
motion for summary judgment. Dkt. No. 43. As plaintiff
filed this further submission without leave of the Court and
well after the time for submissions relating to the motion
for summary judgment were complete, 5 the undersigned has
not considered the filing and recommends that it be deemed
STRICKEN from the record.
II. Discussion
A. Legal Standard
*3 “A court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). The moving party has the burden of
showing the absence of disputed material facts by providing
the Court with portions of “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,” which support the motion. FED. R. CIV.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it may
affect the outcome of the case as determined by substantive
law, such that “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In
determining whether summary judgment is appropriate, [the
Court will] resolve all ambiguities and draw all reasonable
inferences against the moving party.” Skubel v. Fuoroli, 113
F.3d 330, 334 (2d Cir. 1997).
To avoid summary judgment, a non-moving party “must do
more than simply show that there is some metaphysical doubt
as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19
(2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. v.
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Teaque v. Mullen, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986)) (internal quotation marks omitted). A
non-moving party must support such assertions by evidence
showing the existence of a genuine issue of material fact. Id.
“When no rational jury could find in favor of the non-moving
party because the evidence to support is so slight, there is
no genuine issue of material fact and a grant of summary
judgment is proper.” Gallo v. Prudential Services, Ltd. P'ship,
22 F.3d 1219, 1224 (2d Cir. 1994).
In determining a summary judgment motion, “[f]actual
disputes that are irrelevant or unnecessary will not be
counted.” Liberty Lobby, 477 U.S. at 247, 106 S.Ct.
2505. The nonmovant “must present affirmative evidence in
order to defeat a properly supported motion for summary
judgment.” Id. “Mere conclusory statements or reliance on the
pleadings, ... will not suffice, ...” Celtoex, 477 U.S. at 324,
106 S. Ct. 2548. The court must look to the substantive law
to identify which facts are material. Liberty Lobby, 477 U.S.
at 248, 106 S.Ct. 2505.
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). 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
Defendants contend that their motion for summary judgment
must be granted because plaintiff failed to fully and properly
exhaust his administrative remedies before filing suit. See
Dkt. No. 32-1 (“Def. Mem. of Law”) at 7-8. In response,
plaintiff claims that “CORC has 30 days from receipt of
appeal in which to render a decision. They failed to do so.
This rendered the grievance opaque to me.” Dkt. No. 34 at 1.
The Prison Litigation Reform Act (“PLRA”) requires that a
prisoner exhaust any administrative remedies available to him
or her before bringing an action for claims arising out of his
or her incarceration. See Porter v. Nussle, 534 U.S. 516, 524,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Woodford v.
Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
The exhaustion requirement applies “to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter, 534 U.S. at 532, 122 S.Ct.
983. Further, the exhaustion requirement applies even where
the prisoner seeks relief not available in the administrative
grievance process, such as monetary damages. Id. at 524, 122
S.Ct. 983. To exhaust administrative remedies, the inmate
must complete the full administrative review process set forth
in the rules applicable to the correctional facility in which
he or she is incarcerated. See Jones v. Bock, 549 U.S. 199,
218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation
omitted).
*4 Administrative remedies consist of a three-step Inmate
Grievance Program (“IGP”). See N.Y. Comp. Codes R. &
Regs. tit. 7, §§ 701.1, 701.5. First, the inmate must file a
complaint with an inmate grievance program clerk within
twenty-one days of the alleged incident. Id. § 701.5(a)(1). An
IGP representative has sixteen calendar days to informally
resolve the issue. Id. § 701.5(b)(1). If no informal resolution
occurs, the IGRC must hold a hearing within sixteen
days of receipt of the grievance and must issue a written
decision within two working days after the conclusion of
the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the determination is
unfavorable to the inmate, the inmate may appeal the IGRC's
determination to the facility superintendent within seven
calendar days of receipt of the determination. Id. § 701.5(c)
(1). If the superintendent's determination is unfavorable, the
inmate may appeal to CORC within seven days after receipt
of the superintendent's determination. Id. §§ 701.5(d)(i)-
(ii). CORC must “review each appeal, render a decision
on the grievance, and transmit its decision to the facility,
with reasons stated, for the [inmate], the grievance clerk,
the superintendent, and any direct parties within thirty (30)
calendar days from the time the appeal was received.” Id.
§ 701.5(d)(3)(ii). As previously stated by Magistrate Judge
Peebles:
It is worth noting that ... where an inmate complains of
harassment or other misconduct by corrections officers
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or prison employees, the IGP provides for an expedited
review process. 7 N.Y.C.R.R. § 701.8. In particular, the
IGP requires inmates “who wish[ ] to file a grievance
complaint that alleges employee harassment [to] follow the
procedures set forth in [7 N.Y.C.R.R §] 701.5(a)[.]” Id. at
§ 701.8(a). [S]ection 701.5(a)(1) provides that, inter alia,
the inmate shall submit his grievance to the clerk within
twenty-one days of the incident of which he complains.
Id. at § 701.5(a)(1). On the same day the clerk receives a
grievance complaining of employee harassment, he must
forward it “to the superintendent by the close of business.”
Id. at § 701.8(b).
Eleby v. Smith, et al., No. 9:15-CV-0281 (TJM/DEP),
2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2016), report-
recommendation adopted by 2017 WL 979040 (N.D.N.Y.
Marc 13, 2017). 6
Each step of the IGP process requires that a decision be
rendered within a specified time period. 7 N.Y.C.R.R. § 701.5.
Specifically, with a harassment grievance, the superintendent
of the facility “will render a decision on the grievance” within
twenty-five calendar days of receipt. Id. at § 701.8(f). Should
the superintendent fail to respond within the twenty-five day
time frame, “the [inmate] may appeal his/her grievance to
CORC” which can be done by “filing a notice of decision to
appeal [ ] with the inmate grievance clerk.” Id. at § 701.8(g).
When the inmate receives the superintendent's response and
“wishes to appeal the superintendent's response to CORC,
he/she must file a notice of decision to appeal [ ] with
the inmate grievance clerk within seven calendar days of
receipt of that response.” Id. at § 701.8(h). If the IGRC
and/or superintendent fail to timely respond, an inmate may
appeal “to the next step.” Id. at § 701.6(g)(1)(b)(ii)(2); see
also Eleby, 2017 WL 986123, at *4; Smith v. Kelly, 985 F.
Supp. 2d 275, 281 (N.D.N.Y. 2013) (Suddaby, J.) (“[A]ny
failure by the IGRC or the superintendent to timely respond
to a grievance or first-level appeal ... can—and must—be
appealed to the next level, including CORC, to complete the
grievance process.”) (citing 7 N.Y.C.R.R. § 701.6(g)).
Although the Supreme Court of the United States has deemed
exhaustion mandatory, the Second Circuit has recognized that
“certain caveats apply.” Ruggiero v. Cty. of Orange, 467 F.3d
170, 175 (2d Cir. 2006) (citation omitted). In Ross v. Blake,
the Supreme Court held in 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). 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. Id. 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. (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.
*5 Generally, if it is found that the inmate has not
exhausted all available administrative remedies, his or her
case should be dismissed without prejudice. See 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. If 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)).
1. Did Plaintiff Exhaust Administrative Remedies?
It is well-settled that “the PLRA requires that an inmate
plaintiff must exhaust his available administrative remedies
before commencing a lawsuit in federal court with respect
to prison conditions.” Peoples v. Beldock, 212 F. Supp.2d
141, 142 (W.D.N.Y. 2002); see McMillian v. Walters,
No. 9:16-CV-0277 (MAD/DJS), 2017 WL 8894737, at *2
(N.D.N.Y. Dec. 18, 2017) (“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.”) (citation omitted); White v. Drake, No. 10-
CV-1034 (GTS/DRH), 2011 WL 4478988, at *3 (N.D.N.Y.
Aug. 11, 2011) report-recommendation adopted by 2011 WL
4478921 (N.D.N.Y. Sept. 26, 2011) (“Included within the
IGP's exhaustion requirement is the prerequisite that the
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inmate file an appeal with CORC and receive a response from
CORC prior to filing a federal lawsuit.”) (citation omitted).
The record in the case before the Court demonstrates that
plaintiff completed only the first step of the grievance
process before commencing this lawsuit. Plaintiff filed his
grievance regarding the events giving rise to this action on
October 22, 2018. See Dkt. No. 34; Tapia Decl. at ¶ 10. As
plaintiff's grievance qualified as a harassment grievance, it
was forwarded to the superintendent for further investigation.
See Taplia Decl. at ¶ 11. Plaintiff commenced this action on
December 4, 2018, forty-three days after filing his grievance
with the IGRC. See Compl.; Dkt. No. 32-2 at ¶ 4; Def. Mem.
of Law at 7. The superintendent denied plaintiff's grievance
on February 20, 2019 (approximately seventy-eight days after
plaintiff initiated this action). See id. at ¶ 11. Plaintiff signed
his appeal of the superintendent's determination on March 5,
2019, and his appeal was mailed from the grievance clerk at
Mid-State to CORC on March 11, 2019. Id. at ¶ 13. CORC
received the appeal of plaintiff's grievance on March 18, 2019,
and responded to plaintiff in a letter dated April 25, 2019. See
Dkt. No. 34; Seguin Decl. at ¶ 10. To the Court's knowledge,
as of June 21, 2019, CORC had not made a final determination
regarding plaintiff's grievance.
“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-recommendation adopted by
2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019); see also Ford v.
Smith, No. 9:12-CV-1109 (TJM/TWD), 2014 WL 652933, at
*3 (N.D.N.Y. Jan. 16, 2014) (citing Woodford, 548 U.S. at 81,
93, 126 S.Ct. 2378). Because plaintiff commenced this action
before receiving a response from the superintendent of Mid-
State regarding his grievance, plaintiff did not fully exhaust
his administrative remedies before commencing this action.
See Jones v. Bock, 549 U.S. 199, 215-16, 127 S.Ct. 910, 166
L.Ed.2d 798 (2007) (noting that, because failure to exhaust is
an affirmative defense, the plaintiff is not obligated to plead
facts demonstrating that he complied with the exhaustion
requirement; however, where the plaintiff does plead facts
showing his failure to exhaust his administrative remedies
before commencing his federal lawsuit, the complaint may be
dismissed for failure to state a claim); see also Shepherd v.
Lempke, No. 9:10-CV-1524, 2017 WL 1187859 (N.D.N.Y.
Mar. 30, 2017) (“[I]t is well-established that “post-exhaustion
amendment of the complaint does not cure an exhaustion
defect existing at the time the action was commenced[.]”)
(quoting Guillory v. Haywood, 2015 WL 268933, at *11
(N.D.N.Y. Jan. 25, 2015)) (collecting cases).
2. Availability of Administrative Remedies
*6 Plaintiff does not appear to argue that he exhausted
his administrative remedies before commencing this lawsuit;
instead, he contends that administrative remedies were
unavailable to him because the superintendent and CORC's
failures to timely render a decision “rendered the grievance
[o]paque.” Dkt. No. 34. Defendants “acknowledge that the
Superintendent's decision was issued beyond the twenty-five
calendar days set forth in 7 N.Y.C.R.R. § 701.8 (f)[,]” but
point out that plaintiff “had the option of filing his appeal
to CORC” since he had not received a response from the
superintendent within the twenty-five day time frame. Def.
Mem. of Law at 9.
Courts within the Second Circuit, including within this
District, appear split over whether a delay in a response
during the IGP process constitutes “unavailability” excusing
a plaintiff's failure to exhaust his administrative remedies
before commencing suit. Compare Fox v. Lee, No. 9:15-
CV-0390 (TJM/CFH), 2018 WL 8576600, at *7 (N.D.N.Y.
Dec. 18, 2018) (concluding that CORC's approximate four-
month delay in responding to the plaintiff's appeal did not
render the grievance process unavailable) and Berkley v.
Ware, No. 9:16-CV-1326 (LEK/CFH), 2018 WL 3736791, at
*6 (N.D.N.Y. July 6, 2018) report-recommendation adopted
by 2018 WL 3730172 (N.D.N.Y. Aug. 6, 2018) (concluding
“that CORC's approximately five month delay in rendering
a decision did not excuse plaintiff from the exhaustion
requirement.”) with Rodriguez v. Reppert, No. 14-CV-671
(RJA/MJR), 2016 WL 11483439, at *1 (W.D.N.Y. Sept.
28, 2016), report-recommendation adopted by 2016 WL
6993383 (W.D.N.Y. Nov. 30, 2016) (concluding that because
CORC failed to respond within the 30-day time frame set
by regulation, administrative remedies were unavailable to
the plaintiff and dismissal for failure to exhaust was not
appropriate) and High v. Switz, No. 9:17-CV-1067 (LEK/
DJS), 2018 WL 3736794, at *5 (N.D.N.Y. July 9, 2018),
report-recommendation adopted by High v. PA Switz, 2018
WL 3730175 (N.D.N.Y. Aug. 6, 2018) (concluding that
administrative remedies were unavailable to the plaintiff after
CORC's nearly year-long delay because “there is no direction
on any action a[n] [inmate] may take if he does not receive a
response from CORC”; thus, dismissal for failure to exhaust
was not appropriate).
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To the extent plaintiff argues administrative remedies were
unavailable to him at the time he commenced this action, the
undersigned disagrees. As stated above, plaintiff's grievance
was forwarded to the superintendent on an expedited basis 7
due to the “harassment” nature of the grievance. See
Tapia Decl. at ¶ 11. Plaintiff initiated the within action on
December 4, 2018, approximately forty-three days after filing
his October 22, 2018 grievance, but before receiving the
superintendent's response. See Compl.; Am. Compl. at 1, 6,
14. As set out in Section 701.8, the superintendent has twenty-
five calendar days to render a decision on the grievance. See
7 N.Y.C.R.R. § 701.8(f). If, however, the superintendent does
not render a decision within twenty-five calendar days, the
inmate “may appeal his/her grievance to CORC.” Id. at §
701.8(g). Many courts in this District have held that where
the inmate does not receive a timely response, an inmate must
appeal the next step or make efforts to track their grievance.
Indeed, several courts in this district have determined that fact
that the superintendent did not render a decision within the
statutory twenty-five calendar days generally does not excuse
a plaintiff's failure to exhaust. Courts within this Circuit have
found this principle applicable regardless of whether the delay
was from the IGRP, superintendent, or CORC. See, e.g.,
Heyliger v. Gebler, 624 F. App'x. 780, 782 (2d Cir. 2015)
(summary order) (“[I]f at any step of the grievance process[ ]
an inmate did not receive a response within the specified time
frame, he was nonetheless permitted to appeal to the next
step ... [W]hen [the plaintiff] did not receive a [ ] response
from the IGRC, appeal to the superintendent was still an
available administrative remedy.”); Cohen v. Welch, 9:16-
CV-00593 (FJS/TWD), 2017 WL 3311244, at *5 (N.D.N.Y.
July 11, 2017), report-recommendation adopted by, 2017 WL
3309713, at *6 (N.D.N.Y. Aug. 2, 2017) (“[E]ven if Plaintiff
did not receive a timely response from the IGRP, he was
required to complete steps two and three of the IGP.”). In
Berkley, for example, this Court determined that, where the
plaintiff commenced his federal action before receiving a
response from CORC, “CORC's approximately five-month
delay in rendering a decision did not excuse plaintiff from the
exhaustion requirement.” Berkley, 2018 WL 3736791, at *6.
The Berkley Court noted that the plaintiff had not mentioned
the unavailability of the grievance process in his appeal to
CORC and did not write to either the IGRC or CORC to check
on his appeal before filing the lawsuit. Id.
*7 Whether the delay rendered administrative remedies
to the inmate unavailable is a fact-and case-specific
determination. However, in assessing availability, this District
and others within in this Circuit have considered the length
of the delay and the inmate's attempts to reach out to CORC
(or the relevant level of the IGP process). See High, 2018
WL 3736794, at *5 (noting that “the Second Circuit did
not and has not decided the precise issue raised on this
Motion—a claim of failure to exhaust where the plaintiff
had taken all steps he could to fulfill the last step of the
appeal process; where CORC had neglected to respond,
not just during the thirty day time limit, but for a period
of numerous months thereafter; where CORC had further
neglected to respond when Plaintiff wrote to CORC regarding
the status of his appeal; and where CORC had only ultimately
decided the appeal a year later, after the present Motion
to Dismiss had been filed,” and concluding that, although
the regulations explained that an inmate should appeal to
the next step in the event he does not receive a response,
because regulations did not specify what the inmate should
do if he does not receive a timely response from CORC,
administrative remedies were unavailable to the inmate);
see also Gizewski v. N.Y. State Dep't of Corrections and
Community Supervision, 692 F. App'x 668, 670 (2d Cir.
2017) (summary order) (noting that, where a clerical error
caused one-year delay in superintendent's response to the
inmate's grievance, administrative remedies were available as
the inmate did not exhaust prior to commencing a lawsuit);
Berkley, 2018 WL 3736791, at *6; Hayes v. Dahkle, No. 9:16-
CV-1368 (TJM/CFH), 2018 WL 7356343, at *9 (N.D.N.Y.
Dec. 11, 2018) (finding that CORC's delay did not excuse
the exhaustion requirement where “there is no indication in
the record that plaintiff wrote to CORC regarding the status
of his appeal and CORC further neglected to respond); cf.
Henderson v. Annucci, No. 14-CV-445A, 2016 WL 3039687,
at *10 (W.D.N.Y. Mar. 14, 2016) (finding that a two-year
delay in CORC response rendered administrative remedies
unavailable to the inmate plaintiff).
Here, the record indicates that plaintiff waited for the
superintendent's decision before appealing to CORC. There
is no evidence in plaintiff's Amended Complaint or his Reply
to defendants’ Motion for Summary Judgment indicating that
he wrote the superintendent to inquire as to the status of
his grievance or that he was attempting to appeal directly
to CORC. See Am. Compl.; Dkt. No. 34; Fox, 2018 WL
8576600, at *7 (concluding that administrative remedies were
available to the plaintiff, despite a four-month CORC delay
where there was no evidence that the plaintiff “wrote to the
Eastern IGRC or CORC inquiring as to the status of his
appeals....” and because NYCRR § 701.5(d)(3)(1) provides,
“[i]f a grievant does not receive a copy of the written notice
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of receipt within 45 days of filing an appeal [to CORC],
the grievant should contact the IGP supervisor in writing to
confirm that the appeal was filed and transmitted to CORC” as
does DOCCS Directive 4040). The superintendent rendered
a decision regarding plaintiff's grievance on February 20,
2019, approximately ninety-six days beyond the prescribed
twenty-five day time frame. See Tapia Decl. at 11. Between
November 16, 2018, and the time this Motion for Summary
Judgment was fully briefed, plaintiff made no attempt to
appeal his grievance to CORC nor did he attempt to inquire
as to status of the superintendent's determination. As noted
above, in his Amended Complaint, plaintiff makes clear
that he did not fully exhaust his administrative remedies
as he addresses the grievance as “pending[,]” and “being
investigated by Superintendent of Mid-State Correctional
Facility[.]” Am. Compl. at 5-6. Therefore, the record before
the Court demonstrates that plaintiff was waiting for the
superintendent to make a determination on his grievance
before appealing to CORC, and filed this suit before receiving
a response.
Further, plaintiff commenced this action before receiving a
response from either the superintendent or CORC. Although
the superintendent's delay in rendering a decision – forty-
three days as of the day plaintiff filed suit – was not brief,
plaintiff's failure to check with the superintendent as to the
status of his grievance or appeal and his subsequent failure to
appeal to CORC before commencing this lawsuit, leads the
undersigned to conclude that administrative remedies were
available to him. See Scott, 2019 WL 5197139, at *6 (finding
that the plaintiff failed to show administrative remedies were
unavailable “[c]onsidering the totality of the circumstances,
[including the plaintiff's] failure to check with CORC as to the
status of his appeal prior to commencing this action, and the
relatively short delay in receiving a response from CORC.”);
Fox, 2018 WL 8576600, at *7 (holding that four-month
delay between appeal and CORC response did not render
administrative remedies unavailable where the plaintiff did
not attempt to contact the IGP or CORC to check the status of
his appeal); Arce v. Keane, No. 01 Civ. 2648 (BSJ), 2004 WL
439428, at *2 (S.D.N.Y. Mar. 9, 2004) (“An inmate's failure
to appeal a grievance is not excused because he has received
no response to his initial grievance.”); cf. High, 2016 WL
3039687, at *10 (explaining that the relatively long CORC
delay excused the plaintiff from the exhaustion requirement).
*8 Significantly, the undersigned must consider the
availability of remedies at the time the inmate commenced
the action. See Lewis v. Hanson, 9:16-CV-804 (MAD/TWD),
2017 WL 4326084, at *3 (N.D.N.Y. Sept. 28, 2017) (emphasis
added) (“Even if the Court were to find that administrative
remedies became unavailable ... there are no allegations that
administrative remedies were unavailable at the time that [the
p]laintiff commenced this action.”); see also Pacheco v. Zurlo,
No. 09-CV-1330, 2011 WL 1103102, at *3 (N.D.N.Y. Feb. 8,
2011). At the time plaintiff initiated this action, his grievance
was “pending,” and he had “[f]orwarded [the grievance] to
the superintendent for investigation.” Am. Compl. at 5-7.
As discussed above, plaintiff could have inquired into the
status of his grievance with the superintendent or appealed
his grievance to CORC directly while still complying with the
IGP. Plaintiff's admission that his grievance was pending and
being investigated demonstrates that administrative remedies
were available at the time he commenced this action.
Thus, under the totality of the circumstances here, the
undersigned finds that administrative remedies were available
to plaintiff as: (1) plaintiff did not mention unavailability of
the grievance process in his appeal to CORC; (2) plaintiff
did not write to the superintendent to check on the status,
nor appeal to CORC before filing his federal lawsuit; and
(3) the superintendent's delay was fairly brief at the time
plaintiff commenced his federal lawsuit. Accordingly, as
the undersigned concludes that plaintiff failed to exhaust
his administrative remedies and that administrative remedies
were available to him, it is recommended that defendants’
motion be granted. 8 See Berry, 366 F.3d at 87 (holding that
dismissal without prejudice is appropriate where “a prisoner
who brings suit without having exhausted these remedies
can cure the defect by simply exhausting them and then
reinstituting his suit.”).
III. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
RECOMMENDED, that defendants’ Motion for Summary
Judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 32) be
GRANTED; and it is further
RECOMMENDED, that plaintiff's Amended Complaint
(Dkt. No. 27) be DISMISSED in its entirety without
prejudice; and it is
RECOMMENDED, that plaintiff's filing in further support
of his response in opposition to the motion for summary
judgment, dkt. no. 43, be deemed STRICKEN from the
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record as it was filed without leave of the Court and far
beyond the deadline for submissions; and it is
ORDERED, that the Clerk of the Court serve a copy of
this Report-Recommendation and Order on all parties in
accordance with Local Rules.
Pursuant to 28 U.S.C. § 626(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
*9 IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 8589277
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 Throughout this Report-Recommendation and Order, references to page numbers in items that appear on
the docket refer to the pagination of the header numbers generated by CM/ECF, not the page numbers used
by the parties in the individual documents.
3 The Complaint is undated.
4 The Supplemental Complaint is dated December 18, 2018. Dkt. No. 11. After plaintiff filed the “Supplemental
Complaint,” Court combined the Complaint and Supplemental Complaint to be considered the original
Complaint in this action. See Dkt. No. 1.
5 Plaintiff's deadline to file a response to defendants’ motion for summary judgment was July 29, 2019, and
plaintiff was advised of this deadline by the Court. Dkt. No. 33. Plaintiff timely filed a response in opposition
on July 10, 2019, dkt. no. 34, and the undersigned reviewed that filing in rendering the instant Report-
Recommendation & Order.
6 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been
provided to plaintiff.
7 The IGP Supervisor at Mid-State, Christopher Tapia, indicated in his Declaration that plaintiff's grievance
was forwarded to the superintendent for immediate investigation because it was a harassment grievance;
however, his Declaration does not specify the date on which date plaintiff's grievance was forwarded to the
superintendent. See Tapia Decl. at ¶ 11
8 As the undersigned concludes that plaintiff has failed to exhaust his administrative remedies prior to
commencing suit and that administrative remedies were available to him, the undersigned declines to reach
the merits of the plaintiff's claims.
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 Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that
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prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end
of the next day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(C).
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Walker v. Ball, Not Reported in Fed. Supp. (2018)
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2018 WL 1415212
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Eric WALKER, Plaintiff,
v.
R. BALL, Captain, Washington Correctional Facility,
A. Rodriguez, Acting Director, NYS DOCCS Appeals
Unit, St. Johns, Correction Officer, Washington
Correctional Facility, and Wm. Noonan, Sergeant,
Washington Correctional Facility, Defendants.
Civ. No. 9:16-CV-437 (DNH/DJS)
|
Signed 02/16/2018
Attorneys and Law Firms
ERIC WALKER, 15-A-2625, Green Haven Correctional
Facility, P.O. Box 4000, Stormville, New York 12582, pro se.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the
State of New York, OF COUNSEL: NICOLE E. HAIMSON,
ESQ., Assistant Attorney General, The Capitol Albany, New
York 12224, Attorney for Defendants.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 Pro se Plaintiff Eric Walker brought this action, pursuant
to 42 U.S.C. § 1983, alleging his constitutional rights were
violated while an inmate at Washington Correctional Facility.
The Amended Complaint asserts claims for excessive force,
retaliation, and the violation of his due process rights
regarding a prison disciplinary hearing and subsequent
appeal. See generally Dkt. No. 11, Am. Compl. Presently
pending is Defendants' Motion for Summary Judgment which
was filed on July 19, 2017. Dkt. No. 50. To date, Plaintiff has
filed no response to that motion. For the reasons that follow,
it is recommended this case be dismissed pursuant to Fed. R.
Civ. P. 41 based on Plaintiff’s failure to prosecute or, in the
alternative, that Defendants' Motion be granted.
I. DISMISSAL UNDER FED. R. CIV. P. 41
As noted above, Defendants' Motion for Summary Judgment
was filed on July 19, 2017. The motion papers included a
certificate of service indicating it was served on Plaintiff that
same day. Dkt. No. 50-15. On July 20, 2017, the Clerk of
the Court provided an additional notice to Plaintiff regarding
the filing of the motion. Dkt. No. 51. That notice advised
Plaintiff that his response was due on or before August 21,
2017 and informed Plaintiff of the consequences that could
occur should he fail to respond to the Motion. Id. That notice
was returned as undeliverable to the address on record with
the Court. Dkt. No. 53.
Having received no response to Defendants' Motion, on
October 31, 2017, the Court issued an Order directing Plaintiff
to provide the Court and opposing counsel with confirmation,
in writing, of his present address, inform of his intentions with
regard to the pending Motion for Summary Judgment, and
explain why he did not respond to such Motion within the
time allotted. Dkt. No. 54. That Order was served at Plaintiff’s
address of record at Green Haven Correctional Facility and
at an address in Newburgh, New York. The Order mailed to
Green Haven Correctional Facility was again returned with
the notation that Plaintiff was “No Longer Here.” Dkt. No. 57.
Following receipt of a status report from Defendants' counsel,
the October 31, 2017 Order was re-served upon Plaintiff at a
second address in Newburgh, New York. Id. No mail sent to
the Newburgh addresses was returned as undeliverable, but
Plaintiff did not respond to the Order.
To date, the Court has not received a response by Plaintiff
to the Defendants' Motion nor any notification that he
has changed his address. In this District, all litigants have
an ongoing obligation to keep their address information
updated with both the Court and adversaries. N.D.N.Y.L.R.
10.1(c)(2) (“All attorneys of record and pro se litigants
must immediately notify the Court of any change of
address.” (emphasis in original)). A party’s failure to provide
such information is grounds for dismissal. N.D.N.Y.L.R.
41.2(b). As then-District Judge Pooler has observed:
It is neither feasible nor legally
required that the clerks of the district
courts undertake independently to
maintain current addresses on all
parties to pending actions. It is
incumbent upon litigants to inform
the clerk of address changes, for
it is manifest that communications
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between the clerk and the parties
or their counsel will be conducted
principally by mail. In addition to
keeping the clerk informed of any
change of address, parties are obliged
to make timely status inquiries.
Address changes normally would be
reflected by those inquiries if made in
writing.
*2 Dansby v. Albany Cnty. Corr. Facility Staff, 1996 WL
172699, at *1 (N.D.N.Y. Apr. 10, 1996) (citations omitted).
Indeed, courts in the Northern District of New York have
dismissed lawsuits brought by pro se plaintiffs for failure to
provide a current address. See Rivera v. Goord, 1999 WL
33117155 (N.D.N.Y. Sept. 14, 1999); Fenza v. Conklin, 177
F.R.D. 126 (N.D.N.Y. 1988); Morgan v. Dardiz, 177 F.R.D.
125 (N.D.N.Y. 1998); Williams v. Faulkner, 1998 WL 278288
(N.D.N.Y. May 20, 1998).
Rule 41(b) of the Federal Rules of Civil Procedure provides
that a court may, in its discretion, dismiss an action based upon
the failure of a plaintiff to prosecute an action, or to comply
with the procedural rules or orders of the court. Fed. R. Civ. P.
41(b); see Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This
power to dismiss may be exercised when necessary to achieve
orderly and expeditious disposition of cases. See Freeman
v. Lundrigan, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22,
1996). The correctness of a dismissal pursuant to Rule 41(b)
is determined in light of five factors: (1) whether plaintiff's
failure to prosecute or to comply with the court's orders or
procedural rules caused a delay of significant duration; (2)
whether plaintiff was on notice that failure to prosecute or to
comply would result in dismissal; (3) whether the defendant
is likely to be prejudiced by further delay; (4) a balancing of
the court's interest in managing its docket with the plaintiff's
interest in receiving a fair chance to be heard; and (5) whether
the judge has adequately considered a sanction less drastic
than dismissal. Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir.
2009); Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir. 1996). In
making use of this test, “[n]o one factor is dispositive, and
ultimately we must review the dismissal in light of the record
as a whole.” United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 254 (2d Cir. 2004).
The Court has not had any communication from Plaintiff
since May 2017, Dkt. No. 46, and has no means by which
to effectively communicate with him. Plaintiff’s failure to
provide an updated address or to oppose a dispositive motion
evidences his apparent abandonment of this case and evinces
an intent to not prosecute this action. The Court finds that this
period of noncompliance with the requirement that he notify
the Clerk’s Office and Defendants of his current address
weighs in favor of dismissal. Moreover, the Court finds that
Plaintiff was afforded proper notice of his obligation to advise
the Court and counsel of his address and the consequences
of his failure to comply. Any further warnings to Plaintiff
would naturally fall on deaf ears as we have no way of
contacting him. The Court also finds that Defendants are
likely to be prejudiced by further delay in the proceedings,
which may well affect witnesses' memories, the ability to
locate witnesses, and the preservation of evidence. With
regard to the fourth factor, under the circumstances, the
need to alleviate congestion on the Court’s docket outweighs
Plaintiff’s right to receive a further chance to be heard in this
case and weighs in favor of the dismissal of this action.
*3 Lastly, the Court has carefully considered sanctions less
drastic than dismissal. Without the ability to communicate
with Plaintiff, however, there is no meaningful way to
procure his “reappearance” to actively prosecute this action.
Moreover, simply waiting for him to comply with his
obligations has not been, and is not likely to be, fruitful, since
he has failed to do so for some months now. As a result,
the Court finds that the fifth factor also weighs in favor of
dismissal.
In sum, in light of the fact that Plaintiff cannot be located or
communicated with at his address of record, and given his
failure to comply with his obligation to advise the Court and
counsel of any change in his address, I recommend that this
action be dismissed.
II. DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
In the alternative, the Court also recommends that the Motion
for Summary Judgment be granted. For the reasons set forth
below, there are no disputed questions of material fact and
Defendants are entitled to judgment as a matter of law on
Plaintiff’s claims.
A. Standard of Review
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Summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits ... 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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
accord F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.
1994). 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 dispute as to material facts. F.D.I.C.
v. Giammettei, 34 F.3d at 54 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). “[T]he mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment[.]” Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 525 (2d Cir. 1994) (alteration and emphasis in original)
(citation omitted). However, it is well settled that on a
motion for summary judgment, the court must construe the
evidence in the light most favorable to the non-moving party.
Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999).
And, any ambiguities and inferences drawn from the facts
must also be viewed in the light most favorable to the non-
moving party. LaFond v. Gen. Physics Servs. Corp., 50 F.3d
165, 171 (2d Cir. 1995).
When a motion for summary judgment is unopposed,
the court may “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)(3); see also N.D.N.Y.L.R. 7.1(b)(3) (“Where a
properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein, the non-moving
party's failure to file or serve any papers ... shall be deemed
as consent to the granting or denial of the motion.”).
This District’s Local Rules provide that “[t]he Court shall
deem admitted any facts set forth in the [moving party’s]
Statement of Material Facts that the opposing party does not
specifically controvert.” N.D.N.Y.L.R. 7.1(a)(3) (emphasis in
original). Local Rule 7.1(a)(3) further requires that the non-
movant shall file a Statement of Material Facts which mirrors
the movant’s statement in matching numbered paragraphs
and which sets forth a specific reference to the record where
the material fact is alleged to arise. Id. The courts of the
Northern District have adhered to a strict application of Local
Rule 7.1(a)(3)’s requirement on summary judgment motions.
Giguere v. Racicot, 2002 WL 368534, at *2 (N.D.N.Y. Mar.
1, 2002) (citing, inter alia, Bundy Am. Corp. v. K-Z Rental
Leasing, Inc., 2001 WL 237218, at *1 (N.D.N.Y. Mar. 9,
2001)).
B. Factual Background
*4 On December 2, 2015, while an inmate at Washington
Correctional Facility, Plaintiff was issued an inmate
misbehavior report by Defendant Sergeant Noonan. Dkt. No.
50-7, Ball Decl. at ¶ 21. The misbehavior report charged
Plaintiff with attempted assault on staff, violent conduct and
failure to obey a direct order. Ball Decl., Ex. A at p. 16.
The report alleged, in part, that when Defendant Noonan
attempted to address Plaintiff, Plaintiff attempted to strike
Noonan in the face. Id. Plaintiff denies this claim and instead
claims that Noonan and Defendant Corrections Officer St.
Johns subjected him to an unjustified assault on December 2,
2015. Dkt. No. 11, Am. Compl. at p. 5.
After the misbehavior report was issued Plaintiff was
transferred to a Special Housing Unit. Ball Decl, Ex. A at
p. 16. He received a copy of the misbehavior report on
December 5 th . Ball Decl. at ¶ 10; Dkt. No. 50-11, Pl.'s Dep.
at pp. 142-43. Plaintiff was given the opportunity to select an
employee assistant to help him prepare for his hearing. Ball
Decl. at ¶ 12 & Ex. A at p. 11. He met with his assistant and
indicated he did not wish to call any witnesses at the hearing.
Id. at ¶ 13 & Ex. A at p. 12. During the hearing Plaintiff
initially stated he did not wish to call any witnesses, but later
requested the testimony of inmate Devon Williams. Id. at ¶
14 & Ex. B at pp. 1, 9-10. Inmate Williams refused to testify.
Ball Decl. at ¶ 15 & Ex. A at p. 15. Defendants Noonan and
St. Johns both testified. Id. at Ex. B. Plaintiff was given the
opportunity to question each witness. Id.
At the conclusion of the hearing, Defendant Noonan read
his determination finding Plaintiff guilty of the charges into
the record. Ball Decl., Ex. B at pp. 10-11. Plaintiff also
received a written disposition. Ball Decl. at ¶ 29. Plaintiff
then filed an administrative appeal of Ball’s disciplinary
determination to New York State Department of Corrections
and Community Supervision’s (“DOCCS”) Central Office.
Dkt. No. 50-13, Rodriguez Decl. at ¶ 9. That appeal was
reviewed and affirmed. Id. at ¶ 10.
Plaintiff filed no administrative grievance regarding the
events that took place on December 2, 2015. Am. Compl., ¶
4(b); Dkt. No. 50-4, Bellamy Decl. at ¶ 15.
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C. Analysis of the Defendants' Motion
1. Failure to Exhaust Administrative Remedies
Defendants Noonan and St. Johns seek summary judgment
solely on the ground that Plaintiff failed to exhaust his
administrative remedies as required by 42 U.S.C. § 1997e(a)
which provides:
No 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.
There is no question that Plaintiff did not exhaust his claims
against these defendants. The record shows that no grievances
were filed by Plaintiff concerning any events on December
2, 2015. Bellamy Decl. at ¶ 15. Indeed, Plaintiff’s Amended
Complaint conceded his failure to exhaust. Am. Compl. at ¶
4(b).
Exhaustion under this statute is mandatory. Williams v.
Priatno, 829 F.3d 118, 123 (2d Cir. 2016). The failure to
exhaust will be excused only if there was not truly an
“available” means by which to exhaust the claim. Ross
v. Blake, 136 S. Ct. 1850, 1859 (2016). Once Defendants
have established the existence of a viable exhaustion
procedure the burden shifts to Plaintiff to establish that
resort to the established grievance procedure was actually
not available to him within the meaning of Ross. Gilpin
v. Jones, 2017 WL 6558658, at *4 (W.D. Wash. Dec.
1, 2017), report and recommendation adopted, 2017 WL
6558182 (W.D. Wash. Dec. 22, 2017); Washington v. Rounds,
2016 WL 7015666, at *5 (D. Md. Nov. 30, 2016) (citing
cases). In support of summary judgment, defendants have
offered evidence of DOCCS' inmate grievance policies and
procedures. Bellamy Decl. at ¶¶ 5-8 & 10. They have also
offered evidence to show that at the time of the events in
question, “Washington [Correctional Facility] had a fully
functioning inmate grievance process available.” Id. at ¶
12. This satisfies Defendants' burden of establishing that
administrative remedies were available to Plaintiff.
*5 Ross recognized three circumstances under which the
ability to exhaust might not be available to an inmate.
Inasmuch as he has not responded to the motion, Plaintiff has
not met his burden of establishing that any of the exceptions
apply. Moreover, an independent review of the record shows
that none of the exceptions applies here.
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.” Ross v. Blake, 136 S. Ct. at 1859. “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 discern or navigate it.” Id. While Plaintiff did not file
any grievances regarding the alleged misconduct of Noonan
and St. Johns, Bellamy Decl. at ¶ 15, he did file grievances
regarding other issues. Id. at Ex. A. 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. As such, the first two exceptions
identified under Ross are not applicable here. Gonzalez v.
Coburn, 2017 WL 6512859, at *6 (W.D.N.Y. Dec. 20, 2017)
(“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 himself of it.”).
Third, a remedy is unavailable “when prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.”
Ross v. Blake, 136 S. Ct. at 1860. The Amended Complaint
makes no allegation that Plaintiff’s ability to file a grievance
was in any way interfered with and the record supports no
such inference. Plaintiff was able to fully process an appeal
of his Superintendent’s Hearing through the appropriate
administrative channels. Dkt. No. 11-2, Supplement to
Am. Compl. at p. 6; Rodriguez Decl., Ex. A. He also
fully participated in the filing of unrelated grievances.
Bellamy Decl., Ex. A. These factors strongly suggest there
was no impediment to Plaintiff’s ability to grieve these
claims. During his deposition Plaintiff made only conclusory
assertions that the grievance may not have been filed because
of his “feeling at the time” that his mail was being tampered
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with. Pl.'s Dep. at p. 132. Such a lone conclusory claim is not
a sufficient basis from which the Court can conclude that the
grievance procedures were not available to Plaintiff. Aviles v.
Tucker, 2016 WL 4619120, at *4 (S.D.N.Y. Sept. 1, 2016).
Accordingly, given Plaintiff’s conceded failure to exhaust the
available administrative remedies available to him through
DOCCS' grievance program his claims against Defendants
Noonan and St. John should be dismissed.
2. Claims Related to Plaintiff’s Disciplinary Hearing
The remaining claims relate to the Defendant Ball’s conduct
of Plaintiff’s disciplinary hearing and Defendant Rodriguez'
subsequent affirmance of Ball’s decision. Plaintiff alleges that
these Defendants violated his right to Due Process. For the
reasons which follow, Defendants are entitled to summary
judgment.
*6 In the context of an inmate disciplinary proceeding due
process requires that the inmate be: (1) afforded advance
written notice of the charges against him; (2) provided a
written statement supporting the disposition and reasons
for the disciplinary action taken; (3) permitted to call
witnesses and present documentary evidence; (4) entitled to
a fair and impartial hearing officer; and (5) found guilty
only if the disposition is supported by at least “some
evidence.” Wolff v. McDonnell, 418 U.S. 539, 563–64 (1974);
Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999)
(citing cases). Additionally because Plaintiff was confined
to a special housing unit prior to his disciplinary hearing he
was also entitled to an employee assistant. Clark v. Gardner,
256 F. Supp. 3d 154, 170 (N.D.N.Y. 2017). The record
here establishes that all of these due process requirements
were complied with in Plaintiff’s case. Summary judgment,
therefore, is appropriate.
As to a number of these requirements, the record clearly
establishes that they were satisfied and Plaintiff makes no
argument to the contrary. Plaintiff received notice of the
misbehavior report on December 5, 2015. Ball Decl., Ex. A
at p. 2. The hearing was not held until December 9, 2015.
Ball Decl., Ex. B at p. 1. Plaintiff was given the opportunity
to select an employee assistant before the hearing. Ball Decl.,
Ex. A at p. 11. He meet with that assistant on December 7 th .
Id. at p. 12. At that time he indicated that he did not wish
to call any witnesses on his behalf. Id.; Ball Decl., Ex. B at
p.1. At the hearing, he did then request to call one witness,
an inmate named Devon Williams. Id. at pp. 9-10. 1 At the
conclusion of the hearing Plaintiff received a written copy of
the disposition and reasons for it from Defendant Ball. Ball
Decl., Ex. A at pp. 4-5.
Due process also requires that an inmate have a fair and
impartial hearing officer. “An impartial hearing officer is
one who ‘does not prejudge the evidence’ or an inmate's
guilt.” Sowell v. Bullis, 2016 WL 1696454, at *13 (N.D.N.Y.
Mar. 25, 2016), report and recommendation adopted, 2016
WL 1700410 (N.D.N.Y. Apr. 27, 2016). Here, it appears
that Plaintiff’s sole objection is that Ball should not have
served as the hearing officer because he had knowledge
of the underlying events which under a DOCCS regulation
made it inappropriate to act as the hearing officer. While
Plaintiff cites 7 N.Y.C.R.R. § 253.1(b) in support of this
argument, see Supplement to Am. Compl. at p. 1, it appears
that the provision actually applicable to Plaintiff’s claim is 7
N.Y.C.R.R. § 254.1. That regulation provides: “The following
persons shall not be appointed to conduct the proceeding: a
person who actually witnessed the incident; a person who
was directly involved in the incident; the review officer
who reviewed the misbehavior report, or a person who has
investigated the incident.”
At the outset “a violation of state procedural law does not
necessarily mean that the federal due process clause has been
violated.” Shabazz v. Bezio, 669 Fed.Appx. 592, 593 (2d Cir.
2016) (citing Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir.
2003)). More importantly, the only apparent involvement of
Ball to which Plaintiff complains is Ball “asking if I gave
someone an inmate [sic] my DIN number.” Supplement to
Am. Compl. at p. 1. Ball denies having this interaction with
Plaintiff, Ball Decl. at ¶ 34, but it in any event would not
establish involvement or an investigatory role on Ball’s part
sufficient to run afoul of either Section 254.1 or constitutional
due process. A review of the hearing transcript also reveals
no evidence of bias on Bell’s part. See generally Bell Decl.,
Ex. B.
*7 On the issue of the sufficiency of the evidence,
the Second Circuit looks to “whether there was ‘reliable
evidence’ of the inmate's guilt.” Luna v. Pico, 356 F.3d 481,
488 (2d Cir. 2004). Here, Ball based his finding of guilt on
the testimony of St. Johns and Noonan whom he found to be
credible witnesses, the recitation of events in the misbehavior
report, and the injuries suffered (and not suffered) by Plaintiff.
Ball Decl. at ¶¶ 21-27. Noonan’s testimony was consistent
with the facts set forth in the misbehavior report. This
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evidence was sufficient for the guilty determination rendered
in this proceeding. Kotler v. Daby, 2013 WL 1294282, at
*10 (N.D.N.Y. Mar. 28, 2013) (citing cases) (finding “some
evidence” standard satisfied when hearing testimony was
consistent with misbehavior report). Plaintiff objects that Ball
improperly relied on St. Johns' testimony because, despite
being a witness to the underlying conduct, St. Johns did not
separately endorse the misbehavior report. Am. Compl. at p.
1. However, the regulation on which Plaintiff relies for this
argument 7 N.Y.C.R.R. § 251–3.1(b)
requires an endorsement of other
DOCS employees present at the
incident only where appropriate [and]
has consistently been construed as
containing what is in essence a
materiality requirement. As a result,
in order for there to have been a
violation of Section 251–3.1(b), an
inmate must show that the failure to
endorse the misbehavior report caused
him prejudice. There can be no such
prejudice where the employees who
failed to endorse the report either (1)
testified at the hearing or (2) had their
testimony waived by the inmate.
Cusamano v. Sobek, 604 F. Supp. 2d 416, 482–83 (N.D.N.Y.
2009) (emphasis added). Given that St. Johns testified at the
hearing and Plaintiff was afforded the opportunity to question
him, there is simply no basis for establishing a violation of
due process from his arguable failure to comply with a state
regulation. Shabazz v. Bezio, 669 Fed.Appx. at 593.
Rodriguez' sole involvement was to review a staff report
of Ball’s disciplinary determination. Rodriguez Decl. at ¶¶
9-11. When the underlying hearing fully comports with due
process, there can be no liability on the part of the individual
who reviewed the disciplinary appeal. See, e.g., Lopez v.
Whitmore, 2015 WL 4394604, at *11 (N.D.N.Y. July 16,
2015) (dismissing due process claim against DSH Prack
“[b]ecause his only involvement in the plaintiff's claims was
to affirm the results of a disciplinary hearing that th[e] court ...
found comported with due process”); Cole v. New York State
DOCCS, 2016 WL 5394752, at *28 (N.D.N.Y. Aug. 25,
2016) (no due process violation by appeal officer when there
is no basis to conclude that hearing was conducted in a
manner that failed to comport with due process); Wesolowski
v. Harvey, 784 F. Supp. 2d 231, 234 (W.D.N.Y. 2011)
(finding no constitutional claim against supervisor where
no underlying constitutional violation occurred); Alston v.
Bendheim, 672 F. Supp. 2d 378, 388 (S.D.N.Y. 2009) (“The
failure to state a claim for an underlying constitutional
violation forecloses supervisory liability.”). For the reasons
outlined above, Plaintiff’s hearing fully complied with the
requirements of due process and so Rodriguez is also entitled
to summary judgment.
3. Qualified Immunity
The doctrine of qualified immunity shields public officials
from suit for conduct undertaken in the course of their
duties if it “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Whether an official protected by qualified immunity may
be held liable for an alleged unlawful action turns on the
objective legal reasonableness of the action assessed in light
of the legal rules that were clearly established at the time the
action was taken. Anderson v. Creighton, 483 U.S. 635, 639
(1987); Lewis v. Cowan, 165 F.3d 154, 166 (2d Cir. 1999).
*8 In this case Plaintiff raises specific objections to only
two aspects of the process required by Wolff—the impartiality
of the hearing officer and the sufficiency of the evidence.
Both objections relate primarily to Plaintiff’s view that the
disciplinary proceedings were conducted in violation of state
procedural requirements. Supplement to Am. Compl. at pp.
8-12. There is no clearly established law that the failure
to comply with a state regulation constitutes a due process
violation. On the contrary “[n]either federal nor state officials
lose their immunity by violating the clear command of a
statute or regulation—of federal or of state law—unless that
statute or regulation provides the basis for the cause of action
sued upon.” Jamison v. Fischer, 617 Fed.Appx. 25, 28 (2d
Cir. 2015) (quoting Davis v. Scherer, 468 U.S. 183, 194 n.
12 (1984)). That is not the case in the context of an inmate
disciplinary proceedings. Id.
Additionally, for the reasons set forth above, the disciplinary
determination was supported by sufficient evidence. At
the very least, however, qualified immunity is appropriate
as to that claim because “neither this circuit nor the
Supreme Court has clearly defined standards for determining
what constitutes “some evidence” in the context of prison
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Walker v. Ball, Not Reported in Fed. Supp. (2018)
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disciplinary hearings; rather, decisions have addressed the
problem piecemeal, focusing on the discrete problems raised
by the facts of particular cases.” Sira v. Morton, 380 F.3d 57,
81 (2d Cir. 2004).
Accordingly, Defendants Ball and Rodriguez are also entitled
to summary judgment on the ground of qualified immunity.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that the case be DISMISSED under
FED. R. CIV. P. 41; and it is further
RECOMMENDED Defendants' Motion for Summary
Judgment (Dkt. No. 50) be GRANTED; and it is further
RECOMMENDED, that the Amended Complaint be
DISMISSED in its entirety; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action. The Report-Recommendation shall be served upon
Plaintiff at each of the following three addresses:
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
75 Benkard Ave.
Apt. 2
Newburgh, New York 12550
20 Pierce Road
Apt. # 60
Newburgh, New York 12550
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 2 WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
All Citations
Not Reported in Fed. Supp., 2018 WL 1415212
Footnotes
1 Inmate Williams refused to testify. Ball Decl., Ex. A at p. 15. The Amended Complaint makes no allegation
that Williams' failure to testify prejudiced Plaintiff or was otherwise unconstitutional.
2 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Report-Recommendation and Order was mailed to you to serve and file objections. FED. R. CIV. P.
6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P.
6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Walker v. Ball, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 1406632
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Eric WALKER also known as Eric Qwasim Z
Walker also known as Eric Z Q Walker, Plaintiff,
v.
R. BALL, Captain, Washington Correctional Facility;
A. Rodriguez, Acting Director, NYS DOCCS Appeals
Unit; St. Johns, Correction Officer, Washington
Correctional Facility; and Wm Noonan, Sergeant,
Washington Correctional Facility, Defendants.
9:16-CV-437 (DNH/DJS)
|
Signed 03/20/2018
Attorneys and Law Firms
ERIC WALKER also known as ERIC QWASIM Z WALKER
also known as ERIC Z Q WALKER 15-A-2625 Last known
address Green Haven Correctional Facility P.O. Box 4000
Stormville, NY 12582, Plaintiff pro se.
HON. ERIC T. SCHNEIDERMAN OF COUNSEL: NICOLE
E. HAIMSON, ESQ. Ass't Attorney General, Attorney
General for the State of New York The Capitol Albany, NY
12224, Attorney for Defendants.
DECISION and ORDER
DAVID N. HURD, UNITED STATES DISTRICT JUDGE
*1 Pro se plaintiff Eric Walker, also known as Eric Qwasim
Z Walker, also known as Eric Z Q Walker, brought this civil
rights action pursuant to 42 U.S.C. § 1983. On February
16, 2018, the Honorable Daniel J. Stewart, United States
Magistrate Judge, advised by Report-Recommendation that
plaintiff's amended complaint be dismissed in its entirety
pursuant to Federal Rule of Civil Procedure 41 based on
plaintiff's failure to prosecute this action, or in the alternative,
that defendants' unopposed motion for summary judgment be
granted. No objections to the Report-Recommendation were
filed. The Report-Recommendation mailed to plaintiff's last
known address was returned as undeliverable. To date, no
response to defendants' motion for summary judgment has
been received nor any notification that plaintiff changed his
address. The court's last communication from plaintiff was in
May 2017.
Based upon a careful review of the Report-Recommendation,
the Report-Recommendation is accepted in whole. See 28
U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. This action is DISMISSED pursuant to Federal Rule of
Civil Procedure 41 for failure to prosecute; and
2. Defendants' motion for summary judgment is DENIED as
moot.
The Clerk is directed to enter judgment accordingly and close
the file.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1406632
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Washington v. City of New York, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 1585947
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Craig WASHINGTON and Norka Washington, Plaintiffs,
v.
The CITY OF NEW YORK, Sgt, Thomas Kehrli,
Lt. Orsky, Deputy Insp. Salvatore Comodo, Sgt.
Donald McMaster, Deputy Chief Joellen Kunkel,
Capt. Edward Edwards, Lt. James Scully, Sgt. Robert
Dowd, Capt. Pablo Martinez, Lt. Sean Jordan, Sgt.
Thomas Rice, Det. Denis O'Sullivan, Chief Charles
Campisi, Capt. Kenneth Donovan, Capt. Edward
Thompson, And P.O.s John and Jane the N.Y.P.D.
individually and in their Official capacities (the names
of John and Jane the N.Y .P.D. being Fictitious, as
the true names are Presently unknown), Defendants.
No. 05 Civ. 8884(LAP).
|
June 5, 2009.
Opinion
LORETTA A. PRESKA, District Judge.
*1 Plaintiffs Craig and Norka Washington bring this action
pursuant to 42 U.S.C. § 1983 (“Section 1983”) and 42
U.S.C. § 1981 (“Section 1981”) alleging discrimination,
false arrest, malicious prosecution, and malicious abuse
of process in connection with criminal and disciplinary
proceedings initiated against Mr. Washington in the summer
of 2004. Mr. Washington further alleges illegal employment
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., the New York Human Rights Law (“NYHRL”),
Executive law § 296 et seq., and the Administrative Code of
New York. Defendants now move for summary judgment on
all claims. For the reasons below, the motion is granted with
respect to all claims other than Mrs. Washington's claim of
false arrest.
I. BACKGROUND
A. The July 10, 2004 Incident
Mr. Washington began working as a detective for the New
York Police Department (“NYPD”) in 1985. (Plaintiffs' 56.1
Statement of Material Facts in Dispute, (“Pl. 56.1 Stmt.”), ¶
2.) On July 10, 2004, non-party Iris Suarez telephoned the
NYPD Internal Affairs Bureau (“IAB”) and reported that Mr.
Washington, who Suarez described as her “boyfriend”, had
assaulted her. (See id. at ¶ 6; Declaration of Isaac Klepfish in
Support of Mo tion of Defendants for Summary Judgment,
sworn to July 11, 2008 (“Klepfish Decl.”) Ex. L ¶¶ 2, 4.).
Because the alleged misconduct involved a police officer,
Defendant Captain Edward Edwards, along with members of
the Bronx Investigations Unit, interviewed Suarez. (Pl. 56.1
Stmt. at ¶¶ 10-11; Klepfish Decl. Ex. L ¶ 4.) Suarez said
that two days earlier, a verbal dispute with Mr. Washington
culminated in a physical altercation in which he threw her
on the ground and stomped on her left calf, causing bruising.
(Klepfish Decl. Ex. L ¶ 4.) 1 Mr. Washington admits that he
met with Suarez on the day of the alleged assault, but denies
her other allegations. (Pl. 56.1 Stmt ¶¶ 12-14.)
After Suarez's interview, Deputy Chief Joellen Kunkel
suspended Mr. Washington from active duty. (Pl. 56.1 Stmt.
¶ 15.) At the time of his suspension, Mr. Washington
surrendered his firearms, one of which he was later found to
have kept in an unsecure location within a cardboard box in
his automobile. (Id. at ¶ 17; Klepfish Decl. Exs. L ¶ 6, Z at
3). 2
B. The July 20, 2004 Incident
On July 17, 2004, Mr. Washington filed a complaint with the
NYPD alleging that Suarez was harassing him. (Affirmation
of Counsel Walker G. Harman, Jr. in Opposition to Summary
Judgment, sworn to August 22, 2008 (“Harman Aff.”), Ex.
A, Deposition of Craig Washington, taken February 7, 2008,
(“C. Washington Dep.”), 44:4-46:12.) Three days later, on
July 20, 2004, Mr. and Mrs. Washington returned home
to find Suarez waiting for them. (Klepfish Decl. Ex. O.)
The Washingtons called 911, and two police officers soon
arrived on the scene, followed by Defendant Sergeant Thomas
McMaster. (Id.) Defendants contend, and Plaintiffs deny, that
McMaster ordered Mr. Washington to accompany him to the
police station to be interviewed but Mr. Washington angrily
refused to comply. 3 (Pl. 56.1 Stmt. ¶ 20.)
i. Mrs. Washington's Alleged Detention
*2 Mr. Washington subsequently drove Mrs. Washington
and their two-year-old son to the police station, where they
remained for approximately eight hours. (Klepfish Decl.
Ex. B., Deposition of Norka Washington, taken February 7,
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2008, (“N. Washington Dep.”), 6:13-7-8, 23:5-6; 26:18-27:1.)
Mrs. Washington testified that she and her son were held
in a separate room and although she repeatedly asked to
leave, Sergeant McMaster and other officers yelled at her
and refused to let her go. (N. Washington Dep., 4:21-5:19,
26:15-27:7.) Several officers interviewed Mrs. Washington
for approximately one hour about the afternoon incident with
Suarez. (Id. 6:1-7:24; 20:15-16.) Mrs. Washington and her son
left when Mr. Washington's interview had been completed.
(Id. 23:9-13.)
ii. Suarez's Allegations and Washington's Arrest
Defendant Captain Pablo Martinez and members of the Bronx
Investigations Unit also questioned Suarez at the station
house on July 20, 2004. (Pl. 56.1 Stmt., ¶ 21.) Suarez said she
had been romantically involved with Mr. Washington and that
he had lived with her family in June of 2004. (See Id. ¶ 25;
Klepfish Decl. Ex. O, ¶ 4.) Suarez stated that her nine-year-
old daughter, Alexis Wray, told Suarez that morning that Mr.
Washington had sexually molested her when he stayed with
them. (Pl. 56.1 Stmt. ¶ 22.) Specifically, Suarez said Alexis
told her that Mr. Washington had touched her vagina while
she slept. (Id. ¶ 23.)
Because of the serious nature of Suarez's allegations of sexual
abuse, further investigation of the matter was referred to IAB
and the Bronx Special Victims Squad (“SVU”). (Id. ¶ 24.)
When interviewed by IAB and SVU, Suarez again asserted
that Mr. Washington had sexually assaulted her daughter. (Id.
¶ 26.) IAB, SVU, and the Bronx County Assistant District
Attorney's (“DA's”) Office then scheduled a joint interview
of Suarez and her daughter Alexis at the Montefiore Hospital
on July 21, 2004. (Id. ¶¶ 27-31.) They also arranged for
Alexis to be medically examined by Dr. Olga Jimenez. (Id. SI
29.) Both During the joint interview and when questioned by
Dr. Jimenez, Alexis said Mr. Washington had lived with her
mother and that during that time he had entered her bedroom
and pretended to tuck her in while instead inserting his finger
in her vagina. (Kerhli Dep. 57:14-22; Pl. 56.1 Stmt. ¶ 31.)
After the joint interview and medical examination, the Bronx
District Attorney and the Head of IAB authorized Mr.
Washington's arrest. (Pl. 56.1 Stmt. ¶ 32.)
C. Procedural Background
i. Criminal Proceedings
Mr. Washington was arrested on July 21, 2004 and charged
with Sexual Abuse in the First Degree and Endangering the
Welfare of a Child. (Id. ¶ 34.) He was also charged with
Assault in the Third Degree and Harassment in the Second
Degree in connection with the July 10, 2004 incident. (Id. ¶
35.)
On August 19, 2004, Bronx Assistant District Attorney
Michael O'Sullivan sought a grand jury indictment on the
sexual misconduct charges. (Id. ¶ 40.) At the hearing, Mr.
Washington's attorney introduced numerous taped messages
Suarez had left on Mr. Washington's cell phone. (Id. ¶ 41.) In
these recordings, Suarez variously asked for money, insulted
and said she would contact Mrs. Washington, and threatened
to fabricate charges against Mr. Washington. (See Klepfish
Decl. Ex. Z at 4-5; Pl. 56.1 Stmt. ¶ 40.) Plaintiffs admit
that neither IAB investigator Kehrli nor the DA knew about
these tapes before Washington's attorney presented them to
the grand jury. (Pl. 56.1 Stmt. ¶ 41.)
*3 On August 20, 2004, the grand jury voted no true bill on
the sexual misconduct charges, which the DA's Office then
dropped. (Id. ¶ 42.) The DA's Office dropped the remaining
assault charges relating to the July 10, 2004 incident shortly
thereafter. (Id. ¶ 43.)
ii. NYPD Disciplinary Proceedings
Mr. Washington was resuspended on or about the time
he was arrested on the sexual misconduct and assault
charges described above. 4 (Id. ¶ 37.) Two days after his
arrest, the NYPD issued a set of Departmental Charges and
Specifications charging him with (1) sexual assault on a nine-
year old girl and (2) being discourteous to a superior officer
in connection with the July 20, 2004 incident. (Id. ¶ 38.)
In mid-November of 2004, two months after the DA's Office
dropped all criminal charges, the NYPD issued a second
set of Departmental Charges and Specifications against Mr.
Washington alleging that: (1) in June of 2004, he tried to
give his firearm to Suarez, and said “you are ruining my life
anyway, so kill me”, (2) on July 8 of 2004, he had pushed or
thrown Suarez down the stairs, (3) he pushed or threw Suarez
in front of her young children, and (4) on July 10, 2004, he
failed properly to safeguard his firearm. (Pl. 56.1 Stmt. ¶ 49;
Klepfish Decl. Ex. Z at 2.)
On February 4, 2005, non-party David Green, the NYPD
advocate, determined that he would not prosecute the sexual
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misconduct and assault charges because IAB investigators,
the DA's Office, and the advocate's office found them to be
“unsubstantiated.” (See Klepfish Decl. Ex. Z at 2, 8; Pl. 56.1
Stmt. ¶ 50, Harman Aff. Ex. C, Deposition of Thomas Kehrli,
taken March 4, 2008, (“Kehrli Dep.”), 94:17-95:6.) At a May
24, 2005 hearing on all Charges and Specifications against
Mr. Washington before non-party John Grappone, Assistant
Deputy Commissioner of Trials, Green formally moved to
dismiss the assault and sexual misconduct charges. (See Pl.
56.1 Stmt. ¶ 52; Klepfish Decl. Ex. Z at 2-3.) Mr. Washington
then pleaded guilty to the charge of improperly safeguarding
his firearm, (See Pl. 56.1 Stmt. ¶ 53; Klepfish Decl. Ex. Z at
3), and the parties proceeded to trial on the remaining charge
of discourteous conduct to a superior officer (asserted in the
first set of Charges and Specifications issued in July).
Grappone issued a decision on August 23, 2005 dismissing
the sexual misconduct and assault charges and finding Mr.
Washington guilty of the firearm charge and of discourteous
conduct. (Pl. 56.1 Stmt. ¶ 55; Klepfish Decl. Ex. Z at 1,
3.) Grappone recommended that Mr. Washington forfeit the
forty-four days he previously served on suspension. (Pl. 56.1
Stmt. ¶ 56; Klepfish Decl. Ex. Z at 19.) NYPD Commissioner
Raymond Kelley adopted Grappone's recommendation on
September 23, 2005. (Pl. 56.1 Stmt. ¶ 57; Klepfish Decl. Ex.
Z at 19.)
Mr. Washington remained on modified assignment until he
filed for retirement on November 30, 2005. (C. Washington
Dep. 72:16-19.) He alleges that because he retired while
on modified assignment, his pension was reduced. (Second
Amended Complaint (“Compl.”) ¶ 40.)
iii. Mr. Washington's EEOC Charges
*4 On January 20, 2004, nearly six months prior to
the July 10, 2004 incident, Mr. Washington filed a
Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) alleging that Sergeant
Kevin O'Konnor the NYPD discriminated against him
because he is African American by refusing to allow Mr.
Washington to be promoted to a different unit. (Pl. 56.1 Stmt.
¶¶ 63-64.) Mr. Washington named none of the Defendants in
the instant action in his 2004 EEOC filing. (Id. ¶ 65.)
More than a year later on April 25, 2005, Mr. Washington filed
another charge of discrimination with the EEOC alleging that
several of the Defendants unlawfully retaliated against him
by filing criminal and departmental charges against him. 5
(Klepfish Decl. Ex. DD; see also Plaintiff's Memorandum
of Law in Opposition to Defendants' Motion for Summary
Judgment (“Opp.Mem.”) at 5.)
iv. The Instant Suit
Plaintiffs initiated this action on October 19, 2005, and now
bring nine claims against the City of New York and individual
officers who were allegedly involved in Mr. Washington's
arrest and the attendant disciplinary proceedings. In Counts
I, II, and IV, both Plaintiffs assert claims under Section
1983 for general deprivation of federal rights, false arrest,
and malicious abuse of process. Count V alleges that the
City of New York's “customs, policies, usages, practices, and
procedures” violated their constitutional rights. (Compl.¶ 75.)
Mr. Washington alone asserts Count III alleging malicious
prosecution in violation of Section 1983, Counts VI, VIII, and
IX alleging retaliation in violation of Title VII, the NYHRL
and the Administrative Code, and Count VII alleging racially
motivated deprivation of his rights in violation of Section
1981.
II. DISCUSSION
A. Summary Judgment Standard
Defendants are entitled to summary judgment only “if the
pleadings, depositions, answers to interrogatories, and the
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
[they are] entitled to 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) (quoting Fed. R. Civ. Proc. 56(c)). A fact
is material if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute
is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see also
Overton v. New York. State Div. of Military and Naval Affairs,
373 F.3d 83, 89 (2d Cir.2004).
In assessing whether summary judgment is proper, the Court
construes the evidence in the light most favorable to the
non-moving party. Lucente v. IBM Corp., 310 F.3d 243,
253 (2d Cir.2002). As movants, Defendants bear the initial
burden of providing the basis for the motion and identifying
the evidentiary materials, if any, supporting their position.
See Grady v. Affiliated Central, Inc., 130 F.3d 553, 559
(2d Cir.1997.) Plaintiffs must then “come forward with
specific facts showing that there is a genuine issue for trial.”
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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
(quoting Fed.R.Civ.P. 56(e). Mere speculation and conjecture
will not suffice. See Niagara Mohawk Power Corp. v. Jones
Chemical Inc., 315 F.3d 171, 175 (2d Cir.2002).
B. Analysis
i. Mr. Washington's Claims
*5 Mr. Washington makes virtually no effort to preserve
any of his claims other than his retaliation claim. 6 Therefore,
Defendants' motion will be granted with respect to his
false arrest, malicious prosecution, abuse of process, and
discrimination claims so long as they have met their threshold
burden of production. See Vermont Teddy Bear Co., Inc. v.
1-800 Beargram Co., 373 F.3d 241, 241 (2d Cir.2004) (“Even
when a motion for summary judgment is unopposed, the
district court is not relieved of its duty to decide whether the
movant is entitled to judgment as a matter of law.”)
a. False Arrest
Mr. Washington cannot prevail on his false arrest claim if
Defendants show they had probable cause to arrest him. See
DevenPeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588,
160 L.Ed.2d 537 (2004); Jaegly v. Couch, 439 F.3d 149,
151-54 (2d Cir.2004) (probable cause is an absolute defense
to a false arrest claim under Section 1983); see also Boyd
v. City of New York, 336 F.3d 72, 75 (2d Cir.2003) (same).
An officer has probable cause to arrest when “he or she has
‘knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.’ ” Jaegly, 439 F.3d at
152 (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996).
Here, Defendants have produced ample undisputed evidence
demonstrating probable cause for Mr. Washington's arrest on
charges of assault and sexual misconduct based not only on
IAB and DA interviews with Suarez but also on an interview
and medical examination of her daughter, who said that Mr.
Washington had molested her. (See Kehrli Dep. 51:7-22,
52:10-53:11, 56:5-58:16; Klepfish Decl. Ex. O). The fact that
these charges were later dropped does not negate the existence
of probable cause at the time of the arrest, particularly given
that, as Mr. Washington concedes, neither the DA nor IAB
knew about the exculpatory cell phone tapes before they
were played to the grand jury. See Smith v. Ortiz, 2006 U.S.
Dist. LEXIS 34153, *12, 2006 WL 1458404 (S.D.N.Y.2006)
(subsequent acquittal does not negate validity of arrest); (Pl.
56.1 Stmt. ¶ 41).
Furthermore, even if the Defendant Officers lacked probable
cause to arrest Mr. Washington, they are entitled to qualified
immunity if they had “arguable probable cause to arrest”
him. Guerrero v. Scarazzini, No. 06-5016-cv, 2008 U.S.App.
LEXIS 8785, at *4, 2008 WL 1817245 (2d Cir. Feb. 23,
2008). Defendants had arguable probable cause if (i) it
was objectively reasonable to believe there was probable
cause to arrest Mr. Washington or (ii) officers of reasonable
competence could disagree as to whether the probable cause
test was met. Id. Here, Plaintiff does not contest that the IAB
and DA interviews gave probable cause, much less arguable
probable cause, to arrest Mr. Washington. Accordingly,
Defendants' motion for summary judgment is granted with
respect to Mr. Washington's false arrest claim.
b. Malicious Prosecution
*6 Mr. Washington's malicious prosecution claim must also
fail. It is well-settled that the existence of probable cause
supporting an arrest “precludes plaintiffs from establishing
a malicious prosecution claim unless they can point to facts
uncovered after the arrest that negated that probable cause
by making apparent the ‘groundless nature of the charges.’
” Rodriguez v. City of New York, 535 F.Supp.2d 436, 443
(S.D.N.Y.2008) (quoting Lowth v. Town of Cheektowaga, 82
F.3d 563, 571 (2d Cir.1996). As discussed above, Defendants
have supplied uncontested evidence of probable cause
supporting Mr. Washington's arrest. Furthermore, Plaintiff
does not deny that the DA dropped the sexual misconduct
charges upon hearing the tapes calling Suarez's credibility into
question and the assault charges stemming from Suarez's July
10 allegations shortly thereafter. (Pl. 56.1 Stmt. ¶¶ 42-43.)
Defendant's motion for summary judgment with respect to
Mr. Washington's malicious prosecution claim is therefore
granted.
c. Malicious Abuse of Process
Mr. Washington asserts that his arrest and abortive
prosecution constitute malicious abuse of process in violation
of Section 1983. To establish such a claim, he must show
that the Defendants “(1) employ[ed] regularly issued legal
process to compel performance or forbearance of some act
(2) with intent to do harm without excuse or justification, and
(3) in order to obtain a collateral objective that is outside the
legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73,
80 (2d Cir.1994). Here, Defendants have introduced evidence
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that Mr. Washington was arrested and charged pursuant to an
investigation into serious allegations against him by civilian
non-parties. Mr. Washington has provided neither facts nor
argument beyond the general and conclusory allegations in his
Complaint to support his claim that Defendants arrested him
without justification to achieve an illegitimate objective. (See
Compl. ¶¶ 67-70.) Accordingly, this claim fails as a matter
of law. See Mohawk Power, 315 F.3d 171, 175 (2d Cir.2002)
(conclusory assertions do not create an issue of fact for trial).
d. Discrimination
Defendants are also entitled to summary judgment on Mr.
Washington's direct race discrimination claims under Section
1981 and Title VII because he has not established a prima
facie case of discrimination and, even if he had, they
have introduced non-discriminatory reasons for the allegedly
discriminatory behavior which Mr. Washington has not
shown to be pretextual. To establish a prima facie case of
employment discrimination, Mr. Washington must show that
(i) he is a member of a protected class, (ii) he was qualified
for his position, (iii) he suffered an adverse employment
action, and (iv) the circumstances of the adverse action
“give rise to an inference of discrimination.” Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000). Should he
succeed, the burden shifts to the Defendants to “to articulate a
legitimate, non-discriminatory reason for the adverse action.”
Id. If Defendants meet this burden, they are entitled to
summary judgment unless Mr. Washington can show that
the Defendants' non-discriminatory explanation is merely a
pretext for discrimination. Mario v. P & C Food Mkts., 313
F.3d 758, 767 (2d Cir.2002); Cedeno v. N.Y. City Transit Auth.,
No. 01-9049, 2002 U.S.App. LEXIS 23106, at *3 (2d Cir.
November 5, 2002); see also Bickerstaff v. Vassar College,
354 F.Supp.2d 276, 280n.2 (2d Cir.2004) (noting that Title
VII and Section 1981 claims “are analyzed under the same
framework”).
*7 Here, Mr. Washington has not shown circumstances
giving rise to an inference of discrimination. To the contrary,
he flatly concedes that “none of the defendants in this action
ever said something to [him] which evidenced animus against
[his] race.” (Pl. 56.1 Stmt. ¶ 67.) Mr. Washington has offered
nothing other than speculation that Defendants' actions were
motivated by race-based animus and he has made no serious
response to Defendants extensive argument in favor of
summary judgment on this point. (See Memorandum of
Law of City Defendants in Support of Their Motion for
Summary Judgment, (“Def.Mem.”), at 13-18.); see also
Sharif v. Buck, No. 04-5789-cv, 2005 U.S.App. LEXIS
22363, *3, 2005 WL 2650070 (2d Cir. Oct. 17, 2005)
(no inference of discrimination where plaintiff offered only
conclusory allegations to support claim); Brown v. City of
Oneonta, 221 F.3d 329, 339 (2d Cir.2000) (dismissing Section
1983 and Section 1981 claims for inadequate allegations of
discriminatory intent).
Furthermore, Mr. Washington has made no attempt to show
that the Defendants' non-discriminatory reasons for taking
disciplinary action, namely the serious allegations Suarez,
a non-party, leveled against him, his admitted failure to
properly safeguard his firearm on July 10, 2004, and the
finding that he was disrespectful to a superior officer on
July 20, 2004, were pretextual. (See Def. Mem. at 16-18.)
Accordingly, Mr. Washington's direct discrimination claims
under Title VII and Section 1981 fail as a matter of law.
e. Retaliation
Mr. Washington actively opposes the instant motion only
with respect to his retaliation claim under Title VII and the
NYHRL. To establish a prima facie case of retaliation, he
must show that (1) he was engaged in a protected activity, (2)
Defendants knew of the activity, (3) he suffered an adverse
employment action, and (4) there was a causal connection
between the protected activity and the adverse employment
action. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178
(2d Cir.1996) (citing Manoharan v. Columbia Univ. Coll. of
Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). 7 As
with the direct discrimination claims, should Mr. Washington
establish a prima facie case of retaliation, the burden shifts to
Defendants to provide a legitimate, nondiscriminatory reason
for their actions, which he must then show to be pretextual.
Thomas v. S.E.A.L. Security, Inc., NO. 04 Civ. 10248, 2007
U.S. Dist. LEXIS 63841, *38, 2007 WL 2446264 (S.D.N.Y.
August 30, 2007).
Mr. Washington has not established a prima facie case
because he has proffered no evidence showing a causal
connection between his protected activity and the allegedly
retaliatory conduct. He contends that Defendants effectuated
his arrest and initiated disciplinary proceedings against him
in retaliation for his January 20, 2004 and April 25, 2005
EEOC filings. He argues that the temporal proximity between
these filings and his arrest and suspension, standing alone,
constitutes sufficient circumstantial evidence to support an
inference of causation. (Opp.Mem.7.)
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*8 This contention is untenable. While courts may infer a
causal link in the absence of direct evidence of discrimination
where the alleged retaliation occurred shortly after a plaintiff
engaged in protected activity, too much time elapsed between
Mr. Washington's January 20, 2004 filing and his suspension
following Suarez's initial assault complaint in mid-July
to warrant such an inference here. See Hollander v. Am.
Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir.1990) (dismissing
retaliation claim on summary judgment where there was a
three-month lapse between the protected activity and the
alleged retaliation); Lewis v. Snow, No. 01 Civ. 7785, 2003
WL 22077457, at *8 (S.D.N.Y. Sept.8, 2003) (same). Indeed,
Mr. Washington cites only cases in which the adverse action
occurred within two to three months of participation in a
protected activity. See Cifra v. Gen. Elec. Co., 252 F.3d
205, 217 (2d Cir.2001) (twenty-day time lapse); Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998)
(less than two-month time lapse); Parrish v. Sollecito, 258
F.Supp.2d 264, 269 (S.D.N.Y.2003) (one to three month
lapse); Santos v. Costco Wholesale, Inc., 271 F.Supp.2d
565, 575 (S.D.N.Y.2003) (three-month lapse). Here, however,
there is an almost six-month gap between Mr. Washington's
initial EEOC filing and his suspension and subsequent arrest.
Mr. Washington's temporal proximity argument with respect
to his April 25, 2005 EEOC Charge is even more tenuous.
He contends that a causal link may be inferred between
the April filing and the decision to keep him on modified
assignment until he retired. (Opp. Mem. at 7-8.) However,
mere continuation of an adverse employment condition
initiated long before the protected activity in question does
not, without more, logically support an inference that the
protected activity prompted retaliation. See Chamberlain v.
Principi, No. 06-1291-cv, 2007 U.S.App. LEXIS 21829, at
*6, 2007 WL 2692339 (2d Cir. Sept. 12, 2007) (“Where
timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever
engaged in any protected activity, an inference of retaliation
does not arise.”) (quoting Slattery v. Swiss Reinsurance Am.,
248 F.3d 87, 95 (2d Cir.2001)). Here, Mr. Washington was
placed on modified assignment more than six months before
he filed the April 25,2005 EEOC charge, and there is simply
no support for Mr. Washington's conclusion that he continued
to be on modified assignment after that time due to retaliation
for that filing. 8 Nor, as Defendants observe, is there any
evidence that Mr. Washington ever asked to be removed from
modified assignment before he retired. (Reply Memorandum
of Law of City Defendants in Support of Their Motion for
Summary Judgment (“Reply Mem.”), at 6.)
Finally, even if Mr. Washington had established a prima
facie case of retaliation, he has not shown that Defendants'
proffered non-discriminatory reasons for his arrest and the
disciplinary actions taken against him, already discussed
in connection with his direct discrimination claims, are
pretextual. (See Part II(B) (i)(d).) In this regard, Mr.
Washington simply asserts that the IAB did an inadequate
investigation of Suarez's allegations before disciplining
him. 9 (Opp. Mem. at 9.) However, he does not provide even
a conclusory argument as to how the supposedly inadequate
investigation was prompted by either of Mr. Washington's
EEOC charges, the first of which, as he concedes, named
none of the Defendants in this action. (See Pl. 56.1 Stmt. ¶
65.) Accordingly, Mr. Washington's retaliation claim fails as
a matter of law.
ii. Mrs. Washington's claims
*9 Mrs. Washington asserts claims under Section 1983 for
false arrest and malicious abuse of process stemming from her
alleged detention at the police station immediately following
the Washingtons' July 20, 2004 encounter with Suarez. The
parties agree that the fundamental question with respect to
the false arrest claim is whether Mrs. Washington was taken
into custody in violation of her Fourth Amendment right to be
free from unreasonable seizure. (Def. Mem. at 23; Opp. Mem.
at 11-12.) Resolution of this issue requires determination
of “whether a reasonable person in [Mrs. Washington's]
position would have understood [her]self to be subjected to
the restraints comparable to those associated with a formal
arrest.” Hicks v. City of Buffalo, No. 03-6119, 2004 WL
2616750, at *2 (2d Cir. Nov.18, 2004) (quoting United States
v. Newton, 369 F.3d 659, 671 (2d Cir.2004)).
Defendants argue that Mrs. Washington was never taken into
custody because she voluntarily accompanied her husband to
the station. (Def. Mem. 23; N. Washington Dep., 6:13-7:11).
They also rely on Defendant Dowd's deposition testimony
that “Mrs. Washington was not under arrest” and “could
leave at any time.” (Def. Mem. 23; Klepfish Decl. Ex. F,
Deposition of Robert Dowd, taken March 8, 2008 (“Dowd
Dep.”), 43:19-22.) Defendants posit that Mrs. Washington
chose to remain at the station until her husband's interview
had been completed because she is legally blind and did not
want to drive herself home. (Def. Mem. at 23.)
Mrs. Washington does not dispute that she came to the station
house with her husband rather than in a police car. However,
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she asserts that she was then inexplicably placed in a room
alone with her two-year-old son and told not to leave. (N.
Washington Dep. 5:10-13). She repeatedly asked to go home,
but Defendant McMaster yelled at her and told her to “stay
there until I come get you.” (Id. 5:12-13.) All told, she
remained at the station house for more than eight hours. (Id.
6:13-7:8, 23:5-6; 26:18-27:7; Opp. Mem. at 3.)
Viewing the evidence in the light most favorable to Mrs.
Washington, there is a material factual dispute as to whether a
reasonable person in her position would have felt compelled
by the authorities to remain in the station house under the
circumstances as she describes them. Although Defendants
present a compelling argument that she voluntarily awaited
her husband's release, her testimony indicates otherwise.
Should a jury find her account credible, it might conclude
that a reasonable person in Mrs. Washington's position would
have felt herself to be restrained in a fashion similar to a
formal arrest. Accordingly, Defendants' motion for summary
judgment on Mrs. Washington's false arrest claim is denied.
Mrs. Washington also asserts a malicious abuse of process
claim. (Compl.¶¶ 67-70.) This claim fails because she has
identified no “regularly issued legal process” used against her
to obtain any sort of illegitimate collateral objective. Cook,
41 F.3d at 80.
iii. Joint Municipal Liability Claim
*10 Both Plaintiffs assert that under Monell v. Dep't of Soc.
Servs. ., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),
the City of New York is vicariously liable for the alleged
civil rights violations because of the City's unconstitutional
“customs, policies, usages, practices, procedures, and
rules.” (Compl.¶ 73.) However, as Defendants correctly
observe, Plaintiffs have not identified any improper action
taken against them as a result of an unlawful municipal policy
or practice. Accordingly, Defendants' motion is granted with
respect to this claim and the City of New York is therefore
dismissed from the action. See Hicks, 2004 WL 2616750 at
*1 (affirming summary judgment dismissal of Monell claim
“[b]ecause the record is here bereft of any unconstitutional
custom or practice on the part of the City.”)
iv. Joint “Deprivation of Federal Civil Rights”
Although Defendants seek dismissal of all claims,
neither party provides substantive argument regarding the
“Deprivation of Federal Civil Rights” claim asserted in
Count I of the Complaint. (Compl.¶¶ 43-48.) This ill-defined
claim alleges generally that Defendants violated Plaintiffs'
rights under the “First, Fourth, Fifth, Eighth, and Fourteenth
Amendments to the Constitution” in violation of Section
1983. (Id. ¶ 49.) Such general allegations, without supporting
facts other than a clause incorporating an entire complaint
by reference, are insufficient to withstand even a motion to
dismiss because they do not give “fair notice of what the
cl aim is and the grounds upon which it rests.” Sforza v.
City of New York, No. 07cv6122(DLC), 2009 WL 857496, at
*12 (S.D.N.Y. March 31, 2009) (quoting Liebowitz v. Cornell
University, 445 F.3d 586, 591 (2d Cir.2006). Accordingly, this
claim is dismissed. See Diodati v. City of Little Falls, No.
6:04-cv-446 (FJS/DEP), 2007 WL 189130 (N.D.N.Y. Jan.
22, 2007) (granting summary judgment dismissing general
deprivation of federal rights claim where parties provided no
substantive argument regarding the cause of action.)
III. CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment [dkt. No. 31] is GRANTED with respect to all
claims asserted by Mr. Washington and Mrs. Washington's
malicious abuse of process and municipal liability claims. The
motion is DENIED with respect to Mrs. Washington's claim
of false arrest in violation of Section 1983.
Counsel shall confer and inform the Court by letter no later
than June 20 how they propose to proceed.
All Citations
Not Reported in F.Supp.2d, 2009 WL 1585947
Footnotes
1 In their Rule 56.1 statement, Plaintiffs admit that Suarez called IAB to complain about Mr. Washington, (16),
but deny that Suarez made an assault allegation on the grounds that “Defendants cite no admissible evidence
to support this claim”, (¶ 12). However, while Plaintiffs object to the Court's consideration of some police
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reports detailing the incident, (Klepfish Decl. Exs. G, H), and to consideration of photographs of Suarez's
injured leg, (Klepfish Decl. Ex. K), on the grounds that these materials have not been authenticated, they do
not object to Captain Edwards' report, dated July 10, 2004, (Klepfish Decl. Ex. L), which includes a summary
of Suarez's statements to IAB investigators and her allegations of assault. (See Plaintiff's Memorandum of
Law in Opposition to Defendants' Motion for Summary Judgment, (“Opp.Mem.”) at 13-14.) Furthermore, the
police reports are adequately authenticated by the deposition testimony of Defendant Thomas Kehrli, an
IAB investigator, who said they were among materials he compiled in his case folder. (See Supplemental
Declaration of Isaac Klepfish in Support of City Defendants' Motion for Summary Judgment, sworn to Sept. 16,
2008, (“Klepfish Reply Decl.”), Ex. HH., Deposition of Thomas Kehrli, taken March 4, 2008, 12:14-13:20.) To
the extent that Plaintiffs raise a hearsay objection, the purportedly objectionable material would undoubtedly
be admitted at trial as public or business records, and in any event need not be considered for the truth
of Suarez's statements but rather to show that she made them. See Spanierman Gallery v. Merrit, No. 00-
cv5712 (LTS)(THK), 2003 U.S. Dist. LEXIS 22141, at *18-19, 2003 WL 22909160 (S.D.N.Y. Dec. 9, 2003).
2 Here, and in multiple instances throughout their Rule 56.1 Statement, Plaintiffs respond to Defendant's
summation of the relevant facts by saying “Admit, but deny to the extent the statement cites to inadmissible
evidence.” See, e.g., ¶¶ 15, 17, 28-30, 32, 38-39, 49-53, 55-56. The Court declines Plaintiffs' invitation to
identify for them the factual statements to which they object. Where this occurs, the statement provided
by Defendants is taken as true because Plaintiffs initial response in each instance is “Admit.” Furthermore,
the documents proffered by Defendant to each statement challenged in this fashion would undoubtedly be
admissible at trial as public records or business records.
Here, for example, Plaintiffs apparently object to consideration of Klepfish Decl. Exhibit Z, a Disciplinary
Decision by Assistant Deputy Commissioner of Trials John Grappone dated August 23, 2005, for lack
of authentication. (Pl. 56.1 Stmt. ¶ 17; Affirmation of Counsel Walker G. Harman, Jr. in Opposition to
Summary Judgment, sworn to August 22, 2008, (“Harman Aff.”), ¶ 5.) This document would be admissible
at trial under Fed.R.Evid. 803(8)(C) as a public record, for which “the proponent is usually not required
to establish ... admissibility through foundation testimony.” Jack B. Weinstein & Margaret A Berger,
Weinstein's Federal Evidence, § 803.10[2] (2d ed.2009). Furthermore, the document is self-authenticating
under Fed.R.Evid. 902(1) as it bears the official seal of the NYPD and the signatures of both Grappone and
Police Commissioner Raymond Kelly. See CA, Inc. v. Simple, Inc., No. 02 Civ. 2748(DRH)(MLO), 2009
U.S. Dist. LEXIS 25241, at *263 (E.D.N.Y. March 5, 2009).
3 As discussed in Part I(C)(ii) below, Mr. Washington was subsequently found guilty of being discourteous to
Sergeant McMaster in connection with this incident. (Klepfish Decl. Ex. Z, at 17-18.)
4 In all, Mr. Washington was suspended for forty-four days in connection with the July 10 and 20, 2004 incidents,
after which he was placed on modified assignment (making him ineligible for overtime work and pay). (See
C. Washington Dep., 71:1-72:10.)
5 The Second Amended Complaint incorrectly alleges that Washington filed this charge on July 22, 2005.
(Compare Second Amended Complaint ¶ 41 with Opp. Mem. at 5.)
Oddly, Mr. Washington objects to the Court's consideration of his April 25 EEOC complaint while at the
same time, as discussed below, his assertion of unlawful retaliation claim hinges on it. (See Harman Decl.
¶ 5.) In any event, Mr. Washington's April 2005 EEOC charge would be admissible at trial as a party
admission. Fed.R.Evid. 801(d)(2).
6 Indeed, as Defendants observe, the Conclusion of Plaintiffs' brief in opposition to the instant motion asserts
only that:
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“there is sufficient evidence raising triable issues as to whether the disciplinary
charges brought against Plaintiff Craig Washington in November 2004 were brought
in retaliation for his January 2004 EEOC Charge, whether the refusal to restore
Plaintiff Craig Washington to full-duty was carried out in retaliation for Plaintiff Craig
Washington's April 2005 EEOC Charge, and whether Plaintiff Norka Washington was
detained without the requisite probable cause or reasonable suspicion, pursuant to
the Fourth Amendment.”
(Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, (“Opp.Mem.”)
at 14-15.
7 The same standard applies to Mr. Washington's NYHRL claims “because New York courts rely on federal
law when determining claims under the New York Human Rights law.” Reed, 95 F.3d 1170, 1177 (citations
omitted)
8 In this regard, I note that Mr. Washington has not even alleged that any Defendants knew about either of his
EEOC Complaints or even that he ever sought to be taken off of modified assignment.
9 Notably Mr. Washington does not address Defendants' observation that Mr. Washington pleaded guilty
to having failed properly to secure his firearm and was found guilty after an evidentiary hearing of being
discourteous to Sergeant McMaster. (Def.Mem.22.)
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Webb v. Fessette, Not Reported in Fed. Supp. (2025)
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KeyCite Red Flag
Report and Recommendation Rejected by Webb v. Fessette, N.D.N.Y.,
September 23, 2025
2025 WL 1859012
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael WEBB, Plaintiff,
v.
Eric M. FESSETTE, et al., Defendants.
9:23-cv-1577 (ECC/TWD)
|
Signed January 22, 2025
Attorneys and Law Firms
MICHAEL WEBB, Plaintiff, pro se, 90-A-4906, Franklin
Correctional Facility, P.O. Box 10, Malone, NY 12953.
OLIVIA R. COX, ESQ., NEW YORK STATE ATTORNEY
GENERAL, Attorneys for Defendants, NYS Office of The
Attorney General, The Capitol, Albany, NY 12224.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 This matter has been referred for a report and
recommendation by the Hon. Elizabeth C. Coombe, United
States District Judge, pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(c). Plaintiff Michael Webb (“Plaintiff”),
an incarcerated individual in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), commenced this action pursuant to 42 U.S.C.
§ 1983. See generally, Dkt. No. 1. 1 Currently before the
Court is the Defendants’ motion for summary judgment. Dkt.
No. 17. For the reasons set forth below, the undersigned
recommends the Defendants’ motion be granted.
II. BACKGROUND
Plaintiff filed a complaint containing allegations of
wrongdoing that occurred while he was incarcerated at
Clinton Correctional Facility (“Clinton CF”), along with
a motion to proceed in forma pauperis. See generally,
Dkt. Nos. 1-3. By order dated January 23, 2024, the Hon.
Mae A. D'Agostino, United States District Judge, found
Plaintiff's Eighth Amendment excessive force and failure
to intervene claims against “defendants John Doe #1, John
Doe #2, Fessette, Bell, Fittin, Mullady, and Minckler” were
sufficient to survive initial review. Dkt. No. 7 at 10. Counsel
subsequently appeared on behalf of Defendants Bell, Fessette,
Fittin, Minckler, and Mullady (the “named defendants”). See
Dkt. No. 13.
On March 26, 2024, the named defendants filed a motion
for summary judgment, alleging Plaintiff failed to exhaust
his administrative remedies before commencing this action.
See generally, Dkt. No. 17. Plaintiff filed two letter motions
requesting an extension of time to respond to the defendants’
motion, Dkt. Nos. 21, 24, which the undersigned granted, Dkt.
Nos. 22, 25. Plaintiff also filed a third letter request seeking
court assistance to address an alleged medical issue and his
lost property, Dkt. No. 26, and on May 9, 2024, out of an
abundance of solicitude, the undersigned directed the Clerk
to send Plaintiff copies of his complaint and the defendants’
motion, and extended the deadline to file a response, Dkt.
No. 27. Plaintiff has not filed a response in opposition to the
defendants’ motion. 2
III. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is warranted 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); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v.
Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is
“material” if it “might affect the outcome of the suit under the
governing law,” and is genuinely in dispute “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys
v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The
movant may meet this burden by showing 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.
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*2 If the moving party satisfies its burden, the nonmoving
party must move forward with specific facts showing there
is a genuine issue for trial. Salahuddin, 467 F.3d at 273.
In that context, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory
allegations, conjecture and speculation ... are insufficient to
create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d
396, 400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment
motions, “ ‘[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find
for the plaintiff.’ ” Jeffreys, 426 F.3d at 554 (alteration and
emphasis in original) (quoting Anderson, 477 U.S. at 252).
In other words, “a nonmoving party must offer some hard
evidence showing that [his] version of the events is not
wholly fanciful.” Id. (citation and internal quotation marks
omitted). Accordingly, statements “that are devoid of any
specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists,
the court must resolve all ambiguities and draw all reasonable
inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
Where a party is proceeding pro se, the court is obligated to
“read [the pro se party's] supporting papers liberally, and ...
interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
However, that status “does not relieve [a pro se] plaintiff of
his duty to meet the requirements necessary to defeat a motion
for summary judgment.” Jorgensen v. Epic/Sony Records,
351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks and
citation omitted).
In applying the summary judgment standard, the district
court should not weigh evidence or assess the credibility of
witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614,
619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d
Cir. 1996) (“Assessments of credibility and choices between
conflicting versions of the events are matters for the jury, not
for the court on summary judgment.”).
IV. ANALYSIS
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). The
Supreme Court has held “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). Inmates must
exhaust their administrative remedies even if they are
seeking only money damages that are not available in prison
administrative proceedings. See Giano v. Goord, 380 F.3d
670, 675 (2d Cir. 2004), abrogated on other grounds, Ross v.
Blake, 578 U.S. 632 (2016).
Further, “the PLRA exhaustion requirement requires proper
exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). In
order to properly exhaust his administrative remedies, an
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, 548 U.S. at 81).
DOCCS has a well-established inmate grievance process, set
forth in 7 N.Y.C.R.R. § 701 et seq.
*3 First, a grievance is submitted to the facility's Inmate
Grievance Resolution Committee (“IGRC”) within twenty-
one days of the incident. 7 N.Y.C.R.R. §§ 701.5(a)(1),
701.3(b), 701.5(b). The policy provides for a period to
informally resolve the grievance, and thereafter to proceed
through the various steps in the appeal process. Id. § 701.5(b)-
(d). However, a more expedited procedure applies to “those
grievances that allege employee misconduct meant to annoy,
intimidate or harm an inmate.” Id. § 701.2(e); see id. § 701.58.
Such a grievance is given a calendar number and recorded
with all other grievances but is forwarded directly to the
facility superintendent. Id. § 701.8(b). The superintendent
then has twenty-five days to investigate and render a written
response. Id. § 701.8(f). If the superintendent fails to render
a decision within said time period, or rules against the
incarcerated individual, the grievant may appeal to the Central
Office Review Committee (“CORC”). Id. § 701.8(g). CORC
has thirty days to review each appeal and render a decision.
Id. § 701.5(d)(3). Exhaustion of the grievance procedure only
occurs after CORC has rendered its decision. Torres v. Carry,
672 F. Supp. 2d 338, 344 (S.D.N.Y. 2009).
Because non-exhaustion is an affirmative defense, the
defendant bears the burden of showing that an incarcerated
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individual has failed to satisfy the exhaustion requirements.
Jones, 549 U.S. at 216. “Whether the plaintiff has exhausted
his administrative remedies is a question of law .... Thus, an
inmate's failure to exhaust administrative remedies is properly
considered on a motion for summary judgment in lieu of an
answer.” Jenkins v. Short, No. 9:19-CV-1352 (GTS/TWD),
2020 WL 9264842, at *5 (N.D.N.Y. Nov. 17, 2020) (citing
Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999))
(additional citations omitted), report and recommendation
adopted, 2021 WL 958512 (N.D.N.Y. Mar. 15, 2021).
Here, the alleged deprivation of Plaintiff's constitutional
rights by the named defendants at Clinton CF occurred on
May 5, 2021. See Dkt. No. 1 at 4. Plaintiff was housed at
Clinton CF from February 28, 2019, until June 22, 2021. Dkt.
No. 17-8 at 4; Dkt. No. 17-9 at 3. Plaintiff filed a grievance
at Clinton CF regarding the May 5, 2021, incident, dated
May 17, 2021, which was received by Clinton CF's IGP
office on May 24, 2021, designated a “code 28,” and assigned
Grievance No. “CL-0508-21.” Dkt. No. 17-10 at 2; see also
Dkt. No. 17-8 at 4-5.
On June 3, 2021, the Clinton CF IGRC dismissed and
closed Grievance No. CL-0508-21. Dkt. No. 17-10 at 5;
see also Dkt. No. 17-8 at 4-5. Plaintiff appealed the
IGRC's response. See Dkt. No. 17-10 at 6. Pursuant to
DOCCS Directive 4040, Inmate Grievance Program (“IGP”)
Supervisor C. Gregory reviewed Plaintiff's request to appeal
the grievance and determined “this grievance should not
have been Dismissed and Closed. Due to the allegations
contained in the grievance ... grievance CL-0508-21 will be
forwarded to the Superintendent level for an investigation
and response.” Dkt. No. 17-10 at 4. On June 24, 2021,
Plaintiff was transferred to Woodbourne Correctional Facility
(“Woodbourne CF”). Dkt. No. 17-8 at 5; Dkt. No. 17-9 at 3.
On August 18, 2021, Clinton CF Superintendent E. Bell
issued a decision denying Plaintiff's grievance, which was
forwarded to Plaintiff at Woodbourne CF. Dkt. No. 17-10
at 7; Dkt. No. 17-8 at 5. In a letter to the Clinton IGP
Supervisor dated September 8, 2021, Plaintiff “advised that
since August 24, 2021,” he had been “placing my Grievance
appeal #CL-0508-21 in the mailbox here at the Woodbourne
Correctional Facility only to have it returned to be days
later.” Dkt. No. 17-11 at 1. The letter was received by
Clinton CF on September 14, 2021. Id. In a letter dated
September 14, 2021, Clinton IGP Supervisor Gregory advised
Plaintiff under “Directive #4040, section 701.6, (h)(2),” a
grievant transferred to another facility “must mail the signed
appeal form back to the IGP supervisor at the facility where
the grievance was filed. Therefore, you need to send your
grievance appeal directly to the IGP office at Clinton C.F.”
Dkt. No. 17-12 at 1.
*4 A Woodbourne CF legal mail log indicates Plaintiff
signed for receipt of a letter from the Clinton CF IGP
Supervisor on September 27, 2021. Dkt. No. 17-7 at 1; Dkt.
No. 17-5 at 2-3. However, “Plaintiff never sent an appeal of
grievance CL-0508-21 to the IGP Office at Clinton CF to
be sent to CORC.” Dkt. No. 17-8 at 5. A search of CORC
records, conducted March 22, 2024, reveals no appeal of
the Superintendent's denial of Plaintiff's grievance was ever
received, despite Plaintiff's appeals of other facility-level
grievance determinations. Dkt. No. 17-3 at 4-5; Dkt. No. 17-4
at 1-4.
Therefore, the undersigned finds Plaintiff failed to exhaust
his administrative remedies prior to commencing the instant
action. See, e.g., Bennett v. Fletcher, No. 9:17-CV-0849
(GTS/CFH), 2020 WL 872491, at *7 (N.D.N.Y. Jan. 16,
2020) (“ ‘It is well-established that an inmate who does not
appeal to CORC has failed to exhaust his administrative
remedies.’ ”) (quoting Omaro v. Annucci, 68 F. Supp. 3d 359,
364 (W.D.N.Y. 2014), report and recommendation adopted,
2020 WL 871156 (N.D.N.Y. Feb. 21, 2020)). Accordingly,
the Court recommends the named defendants’ motion for
summary judgment be granted. See, e.g., Jenkins, 2020 WL
9264842, at *7 (recommending granting the defendants’
motion for summary judgment, where there was “no genuine
issue of material fact that Plaintiff failed to exhaust his
administrative remedies,” and dismissal of the complaint
with prejudice, explaining “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.”) (citing Berry v. Kerik, 366 F.3d 85,
87 (2d Cir. 2004)).
Finally, with regard to Plaintiff's claims against the John Doe
defendants, the undersigned recommends dismissal due to:
(1) Plaintiff's failure to comply with Judge D'Agostino’s order
to “take reasonable steps to ascertain the identities of the
‘Doe’ defendants,” Dkt. No. 7 at 11, under FED. R. CIV.
P. 16(f); (2) Plaintiff's failure to prosecute under FED. R.
CIV. P. 41(b) and N.D.N.Y. L.R. 41.2(a); and (3) Plaintiff's
failure to serve the complaint on the Doe defendants within
90 days, as required by FED. R. CIV. P. 4(m). See, e.g., Davis
v. Doe, No. 9:16-CV-0994 (MAD/DJS), 2017 WL 8640829,
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at *5 (N.D.N.Y. Dec. 29, 2017), report and recommendation
adopted, 2018 WL 1582230 (N.D.N.Y. Mar. 27, 2018). 3
V. CONCLUSION
Accordingly, it is hereby
RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 17) be GRANTED; and it is further
RECOMMENDED that Plaintiff's Eighth Amendment
excessive force and failure to intervene claims against the
named defendants be DISMISSED WITH PREJUDICE;
and it is further
RECOMMENDED, that Plaintiff's claims against Defendant
Joe Doe #1 and John Doe #2 be DISMISSED sua sponte; and
it is further
ORDERED that the Clerk provide to Plaintiff a copy of this
Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the
Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d
Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) days within which to file written objections to the
foregoing report. 4 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 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
*5 IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 1859012
Footnotes
1 Citations to the parties’ submissions will refer to the pagination generated by CM/ECF, the Court's electronic
filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in
the original and errors in spelling, punctuation, and grammar have not been corrected.
2 This matter was reassigned to Hon. Judge Coombe by text order dated January 15, 2015. Dkt. No. 29.
3 The undersigned further notes even if the John Doe defendants had been properly named, dismissal of
the claims against those defendants would be proper due to plaintiff's failure to exhaust his administrative
remedies.
4 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed. R. Civ. P.
6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P.
6(a)(1)(C).
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2025 WL 2711067
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael WEBB, Plaintiff,
v.
Eric M. FESSETTE, et al., Defendants.
9:23-cv-1577 (ECC/TWD)
|
Signed September 23, 2025
Attorneys and Law Firms
Michael Webb, Plaintiff, pro se.
Olivia R. Cox, Asst. Att'y Gen., for Named State Defendants.
MEMORANDUM-DECISION AND ORDER
Elizabeth C. Coombe, United States District Judge:
I. INTRODUCTION
*1 Plaintiff Michael Webb commenced this civil rights
action asserting claims under 42 U.S.C. § 1983 arising
out of his incarceration at Clinton Correctional Facility
(C.F.). Dkt. No. 1. On March 26, 2024, the named
Defendants filed a pre-answer motion for summary judgment
seeking dismissal of Plaintiff's claims based on his failure
to exhaust available administrative remedies as required
by the Prison Litigation Reform Act (PLRA), 42 U.S.C.
§ 1997e(a). Dkt. No. 17. This matter was assigned to
United States Magistrate Judge Thérèse Wiley Dancks who
issued a Report-Recommendation and Order on January 22,
2025, recommending that Defendants’ unopposed motion
for summary judgment be granted and that the John Doe
Defendants be dismissed sua sponte. Dkt. No. 30. Plaintiff
filed an objection to the Report-Recommendation on April 18,
2025. Dkt. No. 37.
II. STANDARD OF REVIEW
This Court reviews de novo those portions of the Magistrate
Judge's findings and recommendations 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). “A proper objection is one that identifies
the specific portions of the [report-recommendation] that
the objector asserts are erroneous and provides a basis for
this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.
Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks
omitted). Properly raised objections must be “specific and
clearly aimed at particular findings” in the report. Molefe
v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487
(S.D.N.Y. 2009). “[E]ven 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). Findings
and recommendations as to which there was no properly
preserved objection are reviewed for clear error. Id.
III. DISCUSSION
A. Exhaustion of Administrative Remedies Under the
PLRA
Magistrate Judge Dancks recommended granting summary
judgment to the Defendants on exhaustion grounds. Dkt.
No. 30 at 5-8. Specifically, Magistrate Judge Dancks found
that because Plaintiff never sent an appeal of grievance
CL-0508-21 to the IGP Office at Clinton C.F. to be sent to
CORC, he failed to exhaust his administrative remedies. Id. at
7-8. Plaintiff objects to Magistrate Judge Danck's conclusion
that he failed to exhaust his administrative remedies. Plaintiff
contends that Woodbourne C.F. officers were “deliberately
attempting to intercept, or delay” Plaintiff's grievance appeal.
Dkt. No. 37.
In light of Plaintiff's objection, the Court reviews this
issue de novo and, after careful consideration, declines to
adopt Magistrate Judge Dancks’ recommendation granting
summary judgment on the basis of exhaustion. 1 Magistrate
Judge Dancks properly set forth the legal standard for
exhaustion of administrative remedies in her report-
recommendation. Dkt. No. 30 at 5-6. In addition to
those standards, the Court further notes that although the
PLRA mandates exhaustion of administrative remedies, it
also “contains its own, textual exception to mandatory
exhaustion.” Ross v. Blake, 578 U.S. 632, 642 (2016).
Specifically, the exhaustion requirement contained in §
1997e(a) “hinges on the ‘availability’ of administrative
remedies: An inmate, that is, must exhaust available remedies,
but need not exhaust unavailable ones.” Id. (citing 42 U.S.C.
§ 1997e(a)) (alterations in original). In Ross, the Supreme
Court identified three circumstances in which a court may
find administrative remedies are not “available” for PLRA
purposes, holding:
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*2 [A]n administrative procedure
is unavailable when (despite what
regulations or guidance materials may
promise) it operates as a simple
dead end—with officers unable or
consistently unwilling to provide any
relief to aggrieved inmates .... Next,
an administrative scheme might be
so opaque that it becomes, practically
speaking, incapable of use .... And
finally, ... when prison administrators
thwart inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Id. at 643-44. In these situations, exhaustion is not
required. Further, the Second Circuit has observed “the
three circumstances discussed in Ross do not appear to be
exhaustive ....” Williams v. Correction Officer Priatno, 829
F.3d 118, 124 n.2 (2d Cir. 2016).
Because the failure to exhaust administrative remedies is
an affirmative defense, the defendant bears the burden of
showing that an incarcerated individual has failed to satisfy
the exhaustion requirements. See Jones v. Bock, 549 U.S.
199, 216 (2007). Then the plaintiff must establish the
administrative review process was unavailable to him under
Ross. See id. “While the burden of production may shift to a
plaintiff when a court considers whether the grievance process
was unavailable, the ultimate burden of proof with respect
to the exhaustion defense remains, at all times, with the
defendant.” Hudson v. Kirkey, No. 9:20-cv-0581 (LEK/DJS),
2021 WL 1966721, at *3 (N.D.N.Y. May 17, 2021) (citing
Coleman v. Nolan, No. 9:15-cv-0040, 2018 WL 4732778, at
*4 (N.D.N.Y. Oct. 2, 2018)) (alteration in original). “Only
in the rarest of cases may summary judgment be granted
against a plaintiff who has not been afforded the opportunity
to conduct discovery.” Hellstrom v. U.S. Dep't of Veterans
Affs., 201 F.3d 94, 97 (2d Cir. 2000) (citations omitted).
Here, the record is, at best, incomplete as to the availability
of Plaintiff's administrative remedies following the alleged
May 5, 2021 incident. There is no dispute that Plaintiff filed
an initial grievance concerning the underlying incident at
Clinton C.F. in May 2021. Dkt. Nos. 17-10 at 2; 17-8 at
4-5. Plaintiff was subsequently transferred to Woodbourne
C.F. on June 27, 2021. Dkt. Nos. 17-8 at 5; 17-9 at 3. On
August 18, 2021, the Clinton C.F. Superintendent issued a
decision denying Plaintiff's grievance, which was forwarded
to Plaintiff at Woodbourne C.F. Dkt. Nos. 17-10 at 7; 17-8 at
5. On September 8, 2021, Plaintiff sent a letter to the Clinton
IGP Supervisor, with the subject heading “Correspondence
Department blatantly refuses to mail out grievance appeal
address [sic] to Clinton I.G.R.C. Supervisor.” Dkt. No. 17-10
at 26. In the letter, Plaintiff advised:
*3 ... I have been placing
my grievance appeal ... in the
mailbox here at the Woodbourne
Correctional Facility only to have
it returned to me days later. Today
is the fourth time the I.G.R.C. or
inmate correspondence program has
returned this grievance appeal to me,
therefore, I'm respectfully requesting
an exception to the time limit ... to
preserve my rights to due process.
Id. The Clinton IGP Supervisor responded to Plaintiff in a
September 14, 2021 letter, explaining that if Plaintiff wished
to appeal, he “must mail the signed appeal form back to the
IGP [S]upervisor at the facility where the grievance was filed.
Therefore, you need to send your grievance appeal directly to
the IGP office at Clinton C.F.” Dkt. No. 17-12. A Woodbourne
C.F. legal mail log indicates Plaintiff signed for receipt of a
letter from the Clinton C.F. IGP Supervisor on September 27,
2021. Dkt. Nos. 17-7 at 1; 17-5 at 2-3. CORC records indicate
that no appeal of the Clinton C.F. Superintendent's denial of
Plaintiff's grievance was ever received. Dkt. Nos. 17-3 at 4-5;
17-4 at 1-4.
The Court agrees with Magistrate Judge Dancks’
determination that Plaintiff failed to exhaust his
administrative remedies. The documents submitted by
Defendants in support of their motion, including Clinton
IGP records and CORC records, reveal that no appeal was
received by CORC. See 7 N.Y.C.R.R. § 701.5(d); see also,
e.g., Shabazz v. Bailey, No. 9:20-cv-0057 (LEK/TWD), 2023
WL 5779533, at *5 (N.D.N.Y. June 28, 2023) (“Plaintiff's
failure to appeal [his] grievance ... to CORC means Plaintiff
failed to properly exhaust his administrative remedies before
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filing this action.”), report and recommendation adopted,
2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023).
However, Plaintiff's failure to appeal his grievance to CORC
does not end the exhaustion inquiry. As explained above, an
inmate's failure to properly exhaust administrative remedies
does not preclude an action under § 1983 where prison
officials thwart his efforts to utilize the grievance process,
thus rendering it unavailable to him. See generally, Ross,
578 U.S. at 643-44. Here, the Court finds that a question
of fact exists as to whether DOCCS’ grievance process was
fully available to the Plaintiff. Plaintiff maintains that prison
officials at Woodbourne C.F. deliberately interfered with his
ability to appeal to CORC by interfering with his mail.
To be sure, courts in this circuit have consistently found
inmates’ general claims that grievances were lost or destroyed
insufficient to excuse the PLRA's exhaustion requirement.
See, e.g., Rosado v. Fessetto, No. 9:09-cv-0067 (DNH/
ATB), 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010)
(collecting cases), report and recommendation adopted, No.
9:09-CV-67, 2010 WL 3809991 (N.D.N.Y. Sept. 21, 2010);
Rodriguez v. Cross, No. 9:15-cv-1079 (GTS/CFH), 2017
WL 2791063, at *7 (N.D.N.Y. May 9, 2017), report and
recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June
27, 2017). However, in this case Plaintiff's September 8, 2021
letter corroborates his present contention, noting that on four
separate occasions he placed his grievance appeal addressed
to the “Clinton I.G.R.C. Supervisor” in the Woodbourne C.F.
mailbox, only for the appeal to be returned to him, unmailed,
days later.
In support of their motion, Defendants have submitted the
affidavit of Megan Nolan, an Office Assistant at Woodbourne
C.F. who is “familiar with the mailroom procedure in regard
to receiving, logging, and dispatching mail to incarcerated
individuals at Woodbourne C.F.” Dkt. No. 17-5 at 1. However,
Ms. Nolan's affidavit does not in any way address Plaintiff's
contention regarding the handling of Plaintiff's appeals by
Woodbourne C.F. It is also unclear how the Clinton IGP
Supervisor's response directing Plaintiff to mail his appeal
to the IGP Supervisor at the facility where the grievance
was filed (which the record suggests Plaintiff was already
doing) provided Plaintiff with any remedy to the situation.
The response did not expressly grant Plaintiff an extension of
time to appeal, nor does it squarely address the issue Plaintiff
raised concerning Woodbourne C.F.’s alleged interference
with his mail. On these facts, the Court concludes that this
case is distinguishable from those allegations which have
been found inadequate to excuse non-compliance with IGP
requirements, particularly at this early stage in the litigation.
*4 “Because Plaintiff has not yet had an opportunity to
conduct discovery to support his exhaustion theory, the Court
finds Defendants’ request for summary judgment premature.”
Johnson v. Owens, No. 9:20-cv-0982 (LEK/CFH), 2022 WL
958127, at *4 (N.D.N.Y. Mar. 30, 2022) (collecting cases);
see Murray v. Noeth, No. 6:19-cv-6342, 2022 WL 4467691,
at *5 (W.D.N.Y. Sept. 26, 2022) (“[A]t this stage of the
proceedings and with no discovery having been conducted, it
would not be appropriate to resolve [the exhaustion] issue just
based on the papers.”); see also Croney v. Russell, No. 9:23-
cv-1188 (DNH/PJE), 2025 WL 1089520, at *3 (N.D.N.Y.
Feb. 25, 2025) (“Summary judgment is a ‘drastic device’
and ‘should not be granted when there are major factual
contentions in dispute[,] ... particularly ... when, as here,
one party has yet to exercise its opportunities for pretrial
discovery.’ ”) (alterations in original) (quoting Nat'l Life Ins.
Co. v. Solomon, 529 F.2d 59, 61 (2d Cir. 1975)), report-
recommendation adopted, 2025 WL 854718 (N.D.N.Y. Mar.
19, 2025).
In the alternative to summary judgment, Defendants request
an evidentiary hearing on the issue of exhaustion pursuant
to Messa v. Goord, 652 F.3d. 305 (2d Cir. 2011). Dkt. No.
17-13 at 10. However, “doing so here without the benefit of
discovery would not be the most efficient manner in which
to resolve the factual disputes presented here.” Croney v.
Medbury, No. 9:23-cv-1449 (DNH/DJS), 2024 WL 5294279,
at *4 (N.D.N.Y. Nov. 12, 2024), report-recommendation
adopted, 2024 WL 4986160 (N.D.N.Y. Dec. 5, 2024). 2
Accordingly, Defendants’ motion for summary judgment is
denied with leave to renew upon the completion of discovery.
B. Dismissal of John Doe Defendants
Magistrate Judge Dancks recommended sua sponte dismissal
of the John Doe Defendants due to (1) Plaintiff's failure to
comply with Judge D'Agostino’s order to “take reasonable
steps to ascertain the identities of the ‘Doe’ defendants”
under Fed. R. Civ. P. 16(f); (2) Plaintiff's failure to prosecute
under Fed. R. Civ. P. 41(b) and N.D.N.Y.L.R. 41.2(a); and
(3) Plaintiff's failure to serve the Complaint on the Doe
defendants within 90 days, as required by Fed. R. Civ. P. 4(m).
Dkt. No. 30 at 8-9. Magistrate Judge Dancks further noted
that dismissal of the Doe Defendants was proper in light of
her finding that Plaintiff failed to exhaust his administrative
remedies. Id. at 9 n. 3. Plaintiff objects to the dismissal of
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the John Doe Defendants, identifying his pre-litigation efforts
to obtain the identity of these Defendants via FOIL requests,
as well as his March 14, 2024 letter to the Court seeking
assistance identifying the Doe Defendants. Dkt. No. 37 at 1-2.
In light of Plaintiff's objections, the Court reviews this
issue de novo and, upon careful consideration, declines to
adopt Magistrate Judge Dancks’ recommendation to sua
sponte dismiss the Doe Defendants at this juncture. Plaintiff
commenced this action on December 15, 2023 by the filing
of a Complaint. Dkt. No. 1. Upon initial review pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b),
the Court issued a Decision and Order on January 23, 2024
ordering that Plaintiff's Eighth Amendment excessive force
and failure-to-intervene claims against the Doe Defendants,
among others, survived review and require a response. Dkt.
No. 7. In its decision, the Court ordered that Plaintiff take
reasonable steps to ascertain the identities of the “Doe”
Defendants and when identified, seek to amend the Complaint
to add these individuals as defendants in this action pursuant
to Federal Rule of Civil Procedure 15(a). Id. at 11. The
Court further warned Plaintiff of the consequences of his
failure to timely pursue amendment. As previously noted,
Plaintiff subsequently wrote to the Court on approximately
March 14, 2024, seeking assistance identifying the Doe
Defendants and explaining his efforts to date. Dkt. Nos. 15,
16. Defendants’ pre-answer motion for summary judgment
was filed on March 26, 2024. Dkt. No. 17. The following day,
the Court issued a Text Order denying Plaintiff's request for
assistance identifying the Doe Defendants as premature. Dkt.
No. 20. The Court explained that
*5 [i]n the event this action survives
the pending motion, counsel will be
directed to answer the complaint,
after which time a Mandatory Pretrial
Discovery and Scheduling Order shall
issue, which will require counsel
to provide documentation to assist
with identifying the “Doe” defendants
to the extent such information is
available.
Id.
As previously set forth, the Court declines to dismiss
Plaintiff's Complaint at this juncture for failure to exhaust his
administrative remedies. Plaintiff is otherwise entitled to the
benefit of at least some discovery to identify the unknown
Defendants before dismissal would be appropriate. See Brown
v. Doe, No. 96-cv-1222, 1999 WL 893070, at *2 (S.D.N.Y.
Oct. 18, 1999) (deferring defendants’ motion to dismiss until
they have provided the requisite discovery information and
materials to the pro se prisoner litigant on the grounds that
“[p]laintiffs, especially pro se incarcerated plaintiffs should
be given an opportunity to identify ... unknown defendants
through discovery”).
IV. CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Dancks’ Report-
Recommendation, Dkt. No. 30, is REJECTED, and it is
further
ORDERED that Defendants’ motion for summary judgment,
Dkt. No. 17, is DENIED with leave to renew, and it is further
ORDERED that the case be referred to Magistrate Judge
Dancks to reset Defendants’ answer deadline and for general
pretrial management; and it is further
ORDERED that, at such time as discovery on the exhaustion
issue has been completed, Defendants may file a renewed
motion for summary judgment and/or request permission to
hold an exhaustion hearing; and it is further
ORDERED that the Clerk of the Court serve a copy of this
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2711067
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Footnotes
1 Plaintiff failed to respond to Defendants’ motion for summary judgment. Plaintiff's failure to oppose
Defendants’ 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. See Jackson v. Federal Express,
766 F.3d 189, 194 (2d Cir. 2014) (a non-response to a summary judgment motion does not risk default
because the district court must ensure that each statement of material fact is supported by the record evidence
sufficient to satisfy the movant's burden of production even if the statement is unopposed) (citing Vermont
Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242-46 (2d Cir. 2004) (even when a motion for
summary judgment is not opposed, the district court is not relieved of its duty to decide whether the movant
is entitled to judgment as a matter of law)).
2 The Supreme Court recently held that “parties are entitled to a jury trial on PLRA exhaustion when that issue
is intertwined with the merits of a claim protected by the Seventh Amendment.” Perttu v. Richards, 605 U.S.
460, 479 (2025). At this juncture, it does not appear the exhaustion question is intertwined with Plaintiff's
Eighth Amendment excessive force and failure to intervene claims at issue and, therefore, an evidentiary
hearing before the Court may be appropriate after discovery.
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