Hairston v. Newtown et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
CHARLES HAIRSTON,
Plaintiff,
v. 	9:25-cv-0707
(AJB/CBF)
B. NEWTOWN, et al.,
Defendants.
_______________________________________________
APPEARANCES: 	OF COUNSEL:
CHARLES HAIRSTON
Plaintiff, pro se
22-R-0567
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
NEW YORK STATE ATTORNEY GENERAL 	SUSANNA M. KLOSE, ESQ.
Attorney for Defendant
NYS Office of The Attorney General
The Capitol
Albany, NY 12224
CARLA B. FREEDMAN, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
This matter was referred for a report and recommendation by the Hon. Anthony J.
Brindisi, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Plaintiff Charles Hairston (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983
while in the custody of the New York State Department of Corrections and Community
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Supervision (“DOCCS”). See generally, Dkt. No. 1. Currently before the Court is a motion for
summary judgment, filed by Defendants Brian Newtown, Sienna Kenney, and Eric Boyer
(“Defendants”). See generally, Dkt. No 18. For the reasons set forth below, the undersigned
recommends the Defendants’ motion be denied.
II. 	BACKGROUND
Plaintiff commenced this action by filing a complaint dated June 1, 2025, while
incarcerated at Upstate Correctional Facility. Dkt. No. 1 at 5.1 On July 18, 2025, Judge Brindisi
granted Plaintiff’s application to proceed in forma pauperis and found Plaintiff’s Eighth
Amendment excessive force and First Amendment retaliation claims against the Defendants
survived sua sponte review and required a response. See Dkt. No. 8 at 12.
On November 21, 2025, Defendants filed a pre-answer motion for summary judgment.
Dkt. No. 18. Defendants contend Plaintiff failed to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), before
commencing this action; therefore, dismissal of the complaint is warranted under Rule 56 of the
Federal Rules of Civil Procedure. See Dkt. No. 18-8 at 5-10. A notice of the response deadline
and consequences of failing to respond to a summary judgment motion was sent to Plaintiff on
November 23, 2025. Dkt. No. 19.
By Text Order dated January 14, 2026, the Hon. Thérèse Wiley Dancks, United States
Magistrate Judge, granted Plaintiff an extension of time to file a response to the Defendants’
motion sua sponte. Dkt. No. 20. On February 13, 2026, the case was reassigned to the
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.
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undersigned. Dkt. No. 21. To date, Plaintiff has not filed a response to Defendants’ motion for
summary judgment.
III. 	LEGAL STANDARD
A. Summary Judgment
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.
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); see also, e.g., Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) (explaining,
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statements “that are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.”).
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). 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.”). Furthermore, 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).
B. 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). “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.
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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).
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).
Furthermore, “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 Program (“IGP”), set forth in 7
N.Y.C.R.R. § 701 et seq.
Generally, the DOCCS IGP involves the following procedure for the
filing of grievances. First, an inmate must file a complaint with the
facility’s IGP clerk within twenty-one calendar days of the alleged
occurrence. [7 N.Y.C.R.R.] § 701.5(a). A representative of the
facility’s 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, the full IGRC conducts a hearing within sixteen calendar
days of receipt of the grievance and issues a written decision within
two 	working 	days 	of 	the 	conclusion 	of 	the 	hearing. 	Id. 	§§
701.5(b)(2), (3). Second, a grievant may appeal the IGRC decision
to the facility’s superintendent within seven calendar days of receipt
of the IGRC’s written decision. Id. § 701.5(c)(1). If the grievance
involves an institutional issue (as opposed to a DOCCS-wide policy
issue), the superintendent must issue a written decision within
twenty calendar days of receipt of the grievant’s appeal. 	Id. §
701.5(c)(3)(ii). 	Grievances regarding DOCCS-wide policy issues
are forwarded directly to the central office review committee
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(“CORC”) for a decision under the process applicable to the third
step. 	Id. § 701.5(c)(3)(i). 	Third, a grievant may appeal to CORC
within seven working days of receipt of the superintendent’s written
decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision
within 	thirty 	calendar 	days 	of 	receipt 	of 	the 	appeal. 	Id. 	§
701.5(d)(3)(ii).
Hudson v. Kirkey, No. 9:20-CV-00581 (LEK/DJS), 2023 WL 2324988, at *3 (N.D.N.Y. Mar. 2,
2023) (additional citation omitted); see also Jackson v. Jackson, No. 16-CV-8516 (PMH), 2021
WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021) (explaining, “when a grievance concerns staff
harassment, DOCCS procedures provide for an expedited review that allows for the complaint to
bypass IGRC review and proceed before the Superintendent in the first instance.”) (citing 7
N.Y.C.R.R. § 701.8).
Failure to exhaust administrative remedies is an affirmative defense that must be raised
by the defendants. See Jones v. Bock, 549 U.S. 199, 216 (2007). Therefore, “defendants bear
the initial burden of establishing the affirmative defense of non-exhaustion by pointing to legally
sufficient sources such as statutes, regulations, or grievance procedures which demonstrate that a
grievance process exists and applies to the underlying dispute.” Williams v. Correction Officer
Priatno, 829 F.3d 118, 126 n.6 (2d Cir. 2016) (internal quotations and citations omitted). “If the
defendants meet this initial burden, administrative remedies may nonetheless be deemed
unavailable if the plaintiff can demonstrate that other factors . . . rendered a nominally available
procedure unavailable as a matter of fact.” Hubbs v. Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54,
59 (2d Cir. 2015) (citation omitted).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its
own, textual exception to mandatory exhaustion.” Ross, 578 U.S. at 642. Specifically, the
exhaustion requirement contained in § 1997e(a) “hinges on the ‘availability’ of administrative
remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable
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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:
[A]n administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a
simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates . . . . Next, an administrative
scheme might be so opaque that it becomes, practically speaking,
incapable of use . . . . And finally, . . . when prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.
Id. at 643-44. In these situations, exhaustion is not required. Additionally, the Second Circuit
has observed “the three circumstances discussed in Ross do not appear to be exhaustive . . . .”
Williams, 829 F.3d at 124 n.2.
IV. 	ANALYSIS
In his complaint, Plaintiff alleges on April 4, 2025, at Upstate Correctional Facility,
Defendant Newtown “turned off” the water to Plaintiff’s “sink, toilet, and shower for 7 days”
and called Plaintiff “a [racial slur] because of [Plaintiff’s] past grievances, and stated ‘this is
what happens to people like you who file grievances.’” Dkt. No. 1 at 4. The same day,
Defendant Boyer slammed Plaintiff’s “dinner tray against the wall [of his cell] to intimidate
[Plaintiff], because I tried to report that my water was shut off out of retaliation.” Id.
Additionally, the same evening, Defendants Newtown, Boyer, and Kenney entered Plaintiff’s
“cell and started kicking, punching, and slamming [him] maliciously without any justification . .
. . [and] said it was because I file grievances and I better not say a word or they will kill me.” Id.
Defendants contend Plaintiff filed a grievance dated April 14, 2025, wherein Plaintiff
reported that on April 4, 2025, he “was given a tier 3 ticket by sergeant B. Newtown” and his
“property was taken . . . .” Dkt. No. 18-4 at 1; see also Dkt. No. 18-7 at 3; Dkt. No. 18-1 at 5.
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The facility’s IGRC conducted a hearing on the grievance on April 15, 2025, dismissed and
closed Plaintiff’s grievance, and provided notice of the dismissal to Plaintiff on April 17, 2025.
See Dkt. No. 18-4 at 2; Dkt. No. 18-7 at 3; Dkt. No. 18-1 at 5. Defendants assert Plaintiff did not
appeal the IGRC’s decision to the facility’s superintendent within the allotted seven days. See
Dkt. No. 18-7 at 3; Dkt. No. 18-1 at 5.
On June 3, 2025, the Upstate Correctional Facility IGRC office received a grievance
from Plaintiff dated April 6, 2025. See Dkt. No. 18-4 at 3-4; Dkt. No. 18-7 at 3; Dkt. No. 18-1 at
5. In the grievance dated April 6, 2025, Plaintiff reported that on April 4, 2025, (1) sergeant
Newtown turned off Plaintiff’s water and called him a racial slur because of his “past
grievances;” (2) C.O. Boyer slammed Plaintiff’s dinner tray against the wall to intimidate him;
and (3) Sergeant Newtown, C.O. Kenney, and C.O. Boyer entered Plaintiff’s cell and kicked,
punched, and slammed him “because [Plaintiff] file[s] grievances” and told him he “better not
say a word or they will kill [him].” Dkt. No. 18-4 at 4. Upstate Correctional Facility IGP
Supervisor Amanda Richards acknowledged receipt of the complaint on June 3, 2025, and
advised Plaintiff the “alleged incident occurred 60 days ago, . . . and will not be accepted as a
grievance and is considered untimely for filing purposes.” Id. at 3; see also Dkt. No. 18-1 at 5.
Plaintiff also submitted a grievance dated June 3, 2025, wherein he reported on April 4,
2025, he “was maliciously beaten” by Sergeant Newtown, C.O. Kenney, and C.O. Boyer, along
with other incidents which allegedly occurred on May 19, 24, and 31, 2025. Id. at 6; see also
Dkt. No. 18-1 at 5; Dkt. No. 18-7 at 3. On June 4, 2025, IGP Supervisor Richards informed
Plaintiff the “incidents allegedly occurring on 4/4/2025 will not be accepted due to untimeliness.
However, the issues on 5/19, 5/24, and 5/31 . . . regarding harassment, retaliation and the broken
shower will be addressed.” Id. at 6; see also Dkt. No. 18-1 at 5; Dkt. No. 18-7 at 4.
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Accordingly, Defendants argue Plaintiff “did not properly appeal the denial of his
grievance to the Superintendent or CORC . . . . Thus, Plaintiff failed to exhaust his
administrative remedies prior to commencing this action and his Complaint should be dismissed
with prejudice.” Dkt. No. 18-8 at 8 (citations omitted).
However, it is well established that “[o]nly 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); see also, e.g.,
Sorrentino v. Annucci, No. 9:23-CV-00582 (LEK/TWD), 2025 WL 1033687, at *3 (N.D.N.Y.
Feb. 13, 2025), report and recommendation adopted sub nom., Sorrentino v. Tierney, No. 9:23-
CV-582, 2025 WL 841475 (N.D.N.Y. Mar. 18, 2025); Brown v. New York State Dep’t of Corr.
& Cmty. Supervision, No. 9:24-CV-1474 (DNH/TWD), 2025 WL 3962238, at *4-5 (N.D.N.Y.
Nov. 24, 2025), report and recommendation adopted sub nom., Brown v. Fakhr, 2025 WL
3706693 (N.D.N.Y. Dec. 22, 2025). As a result, denial of a pre-answer motion for summary
judgment on exhaustion grounds is appropriate where issues remain as to the availability of
administrative remedies during the relevant period. See, e.g., Hardee v. Thomas, No. 9:23-CV-
1142 (LEK/TWD), 2025 WL 777268, at *5 (N.D.N.Y. Feb. 13, 2025) (recommending denial of
pre-answer motion for summary judgment on the basis of exhaustion where the record was
“incomplete as to the availability of administrative remedies” at the correctional facilities where
the Plaintiff was housed following the subject incident), report and recommendation adopted,
2025 WL 773577 (N.D.N.Y. Mar. 11, 2025); Adams v. Berkman, No. 9:24-CV-0873
(MAD/TWD), 2025 WL 2548797, at *6 (N.D.N.Y. July 11, 2025) (recommending denial of pre-
answer motion for summary judgment where the record was, “incomplete as to the availability of
Plaintiff’s administrative remedies following the alleged . . . incident. There are certainly issues
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that call for further factual development.”), report and recommendation adopted, 2025 WL
2318706 (N.D.N.Y. Aug. 12, 2025).
Significantly, here, Plaintiff has alleged Defendants Newtown, Boyer, and Kenney
kicked, punched, and slammed him in his cell because of his use of the grievance program and
warned him not to say a word or they would kill Plaintiff. Dkt. No. 1 at 4. Moreover, Plaintiff’s
grievance alleging (1) Defendant Newtown turned off his water and used a racial slur due to
Plaintiff’s filing past grievances, (2) Defendant Boyer slammed a dinner tray to intimidate
Plaintiff for reporting alleged retaliation, and (3) Defendants Newtown, Kenney, and Boyer
kicked, punched, and slammed Plaintiff because he filed grievances and instructed Plaintiff not
to say a word, dated April 6, 2025, was received by the Upstate Correctional Facility IGRC
office on June 3, 2025. See Dkt. No. 18-4 at 3-4; Dkt. No. 18-7 at 3; Dkt. No. 18-1 at 5. These
allegations certainly raise questions of fact concerning the availability of the grievance procedure
at Upstate Correctional Facility as to Plaintiff, namely, whether Plaintiff was thwarted from
utilizing the grievance process through machination and/or intimidation. See generally, Ross,
578 U.S. at 643-44.
Additionally, 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).2 While Perttu’s “precise
impact is yet to be understood,” Hawn v. Williams, No. 9:24-CV-1137 (AJB/TWD), 2025 WL
2424309, at *2 (N.D.N.Y. Aug. 22, 2025); see also, e.g., Sparks v. Holland, No. 9:19-CV-1269
(AJB/MJK), 2025 WL 2781551, at *4 (N.D.N.Y. Sept. 30, 2025) (“While Perttu alters the legal
2 The undersigned notes, in Perttu, “[t]he parties agree[d] that the exhaustion and First
Amendment issues [we]re intertwined . . . .” Perttu, 605 U.S. at 464.
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landscape, its precise impact is not yet understood . . . .”), at a minimum, it appears that “the
application of Perttu’s ‘intertwine[ment]’ rule would benefit from some discovery to better
frame whether the question of exhaustion in this case can be separated from the merits of
plaintiff’s claims.” Hawn, 2025 WL 2424309, at *2.3
In sum, Plaintiff’s complaint contains allegations regarding the IGP at Upstate
Correctional Facility which raise questions of fact as to the availability of administrative
remedies precluding summary judgment relief at this juncture. Accordingly, the undersigned
recommends Defendants’ motion be denied. In so recommending, the undersigned recognizes
Plaintiff has not provided any evidence substantiating any efforts to file grievances.
Nevertheless, because Plaintiff has not been afforded the opportunity to conduct discovery,
dismissal is not appropriate. See, e.g., Adams, 2025 WL 2548797, at *6 (N.D.N.Y. July 11,
2025) (recognizing the plaintiff had “not provided any further evidence substantiating his efforts
to file these supposed grievances,” but recommending denial of the defendant’s dispositive
motion because “unlike the case at bar, those cases [granting summary judgment where the
3 Defendants argue “Perttu is distinguishable from this case because there are no claims that
Plaintiff was retaliated against for filing grievances related to the April 4, 2025, incident.
Instead, Plaintiff claims that he was assaulted due to the fact that he previously filed grievances.
Further, the record establishes that Plaintiff filed a grievance related to this incident, he just
failed to appeal it.” Dkt. No. 18-8 at 9 (citations omitted). Such contention, however, omits that
the grievance timely received by the Upstate Correctional Facility IGRC concerned Plaintiff’s
receipt of a ticket and loss of property on April 4, 2025, see Dkt. No. 18-4 at 1, while the
grievance alleging facts nearly identical to those contained in the instant complaint, despite being
dated April 6, 2024, see Dkt. No. 18-4 at 4, was not received by the IGRC office until after the
time to timely file a grievance had expired, see Dkt. No. 18-4 at 3; Dkt. No. 18-1 at 5.
Additionally, Defendants’ assertion Plaintiff claims he “was assaulted due to the fact that he
previously filed grievances,” Dkt. No. 18-8 at 9 (emphasis added), appears difficult to reconcile
with Plaintiff’s assertion the Defendants told him he “better not say a word, or they will kill me,”
during or after the alleged assault. Dkt. No. 1 at 4. Therefore, it appears the exhaustion issue
may be intertwined with the merits of Plaintiff’s constitutional claims protected by the Seventh
Amendment. In any event, because dismissal is not appropriate at this stage, the Court need not
determine whether the exhaustion issue must be resolved by jury trial at this juncture.
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plaintiff had not provided evidence substantiating efforts to comply with the grievance process]
were decided after discovery.”) (emphasis in original); Brown, 2025 WL 3962238, at *5
(acknowledging the plaintiff had “not provided any evidence substantiating his efforts to file
grievances as reported in the complaint,” but, nevertheless, denying the defendant’s pre-answer
motion for summary judgment and/or to dismiss).
V. 	CONCLUSION
Accordingly, it is hereby
RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 18) be
DENIED; 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.
IT IS SO ORDERED.
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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Dated: March 11, 2026
Syracuse, New York
Case 9:25-cv-00707-AJB-CBF Document 22 Filed 03/11/26 Page 13 of 91

Jenkins v. Short, Not Reported in Fed. Supp. (2020)
2020 WL 9264842
© 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.
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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.
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 Christopher Tapia is the Inmate Grievance Program (“IGP”) Supervisor at Mid-State. (Dkt. No. 23-1 at ¶ 3.)
*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.)
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
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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
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).
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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 (“[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
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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 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).
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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 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).
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).
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All Citations
Not Reported in Fed. Supp., 2020 WL 9264842
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Darell JENKINS, Plaintiff,
v.
Sgt. SHORT; Officer Oneill; and Officer Lindermayer, Defendants.
9:19-CV-1352 (GTS/TWD)
|
Signed 03/15/2021
Attorneys and Law Firms
DARELL JENKINS, 18-A-0025, Plaintiff, Pro Se, Clinton Correctional Facility, P.O. Box 2000, Dannemora, New York 12929.
HON. LETITIA A. JAMES, Attorney General for the State of New York Counsel for Defendants, OF COUNSEL: LAUREN
ROSE EVERSLEY, ESQ., Assistant Attorney General, 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 Darell Jenkins (“Plaintiff”) against the above
three employees of the New York State Department of Corrections and Community Supervision (“Defendants”) pursuant to 42
U.S.C. § 1983, are (1) United States Magistrate Judge Thérèse Wiley Dancks’ Report-Recommendation recommending that
Defendants’ motion for summary judgment be granted and that Plaintiff's Complaint be dismissed with prejudice for failure to
exhaust his administrative remedies, and (2) Plaintiff's Objection to the Report-Recommendation. (Dkt. Nos. 29, 30-31.) For
the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety.
I. RELEVANT BACKGROUND
Generally, in her Report-Recommendation, Magistrate Judge Dancks found that (1) because Plaintiff failed to exhaust his
available administrative remedies before filing his Complaint, Defendants’ motion for summary judgment should be granted,
and (2) because Plaintiff cannot at this point cure his failure to exhaust, his Complaint should be dismissed with prejudice.
(Dkt. No. 29, at 2-4, 6-13.)
Generally, in his Objection, Plaintiff asserts that his Complaint should not be dismissed with prejudice for failure to exhaust
because “the Superintendent never responded back to me when I appealed the grievance.” (Dkt. No. 30.) In addition, Plaintiff
submits a decision from the Central Officer Review Committee, dated September 10, 2020, deciding his appeal. (Dkt. No. 31.)
II. STANDARD OF REVIEW
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion
of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the
objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has
an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c). 1 When performing such a de novo review, “[t]he judge
may ... receive further evidence....” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
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material that could have been, but was not, presented to the magistrate judge in the first instance. 2 Similarly, a district court
will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first
instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks and citation omitted); Hubbard v.
Kelley, 752 F. Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider
new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the
magistrate but were not.”) (internal quotation marks omitted).
1 See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario filed objections to the
magistrate's report and recommendation, the statement with respect to his Title VII claim was not specific enough to
preserve this claim for review. The only reference made to the Title VII claim was one sentence on the last page of his
objections, where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set forth in
Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’ This bare statement, devoid of
any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority,
was not sufficient to preserve the Title VII claim.”).
2 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 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.”).
*2 When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that
portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997)
(Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates
the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error review. 3 Finally, when no objection
is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear
error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review,
“the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id. 4
3 See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers or arguments does not constitute an
adequate objection under either Fed. R. Civ. P. 72(b) or Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-
Rate Emp. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections
that merely constitute a “rehashing” of the same arguments and positions taken in original papers submitted to the
magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL 3761902, at *1, n.1 (N.D.N.Y. Sept.
20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue, 07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y.
July 27, 2010) (Mordue, C.J.); Almonte v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan.
18, 2006) (Sharpe, J.).
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4 See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am
permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those
sections are not facially erroneous.”) (internal quotation marks and citations omitted).
After conducting the appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. ANALYSIS
After carefully considering the matter, the Court can find no error in Magistrate Judge Dancks’ thorough Report-
Recommendation, clear or otherwise. Magistrate Judge Dancks employed the proper standards, accurately recited the facts, and
reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for
the reasons set forth therein. To those reasons, the Court adds only four points.
First, the Court is unpersuaded by Plaintiff's argument in his Objection his Complaint should not be dismissed with prejudice
because “the Superintendent never responded back to me when I appealed the grievance.” The Court will set aside the fact that,
literally speaking, this assertion is undermined by the record evidence: the Superintendent did respond to him, on April 30,
2020. (See Dkt. No. 21, Attach. 3, at 12 [attaching decision by Superintendent dated Apr. 30, 2020].) More important, liberally
construed, Plaintiff's argument is that the Superintendent never timely responded to him. The problem with this argument is
that it is immaterial, because Plaintiff adduces no evidence, or even argument, that the time for the Superintendent to respond
had expired by October 3, 2019 (or even that he filed an appeal to the Central Office Review Committee and failed to receive
a timely response by that time). Regardless of whether the Superintendent failed to timely respond to him, Plaintiff filed his
Complaint in this action without waiting the necessary time for a response from him (and/or without filing an appeal to the
Central Office Review Committee and waiting the necessary time for a response from it).
*3 Second, the Report-Recommendation appears to repeat a typographical error contained in Defendants’ Statement of
Material Facts: the assertion that Plaintiff filed a grievance numbered “MS-24269-19” that was distinct from the grievance that
was numbered “MS-24259-19.” (Compare Dkt. No. 21, Attach. 2, at ¶¶ 6-8, 12 [Defs.’ Statement of Material Fact, referencing
a grievance numbered “MS-24269-19”] with Dkt. No. 21, Attach. 2, at ¶ 13 [Defs.’ Statement of Material Fact, referencing a
grievance numbered “MS-24259-19”]; see also Dkt. No. 29, at 3-4, 13 [Report-Recommendation, referencing both numbers].)
In fact, the record evidence relied on by Defendants for this assertion (that there existed a grievance numbered “MS-24269-19”)
does not support the assertion, but merely the assertion that there existed a grievance numbered “MS-24259-19.” (Dkt. No. 21,
Attach. 3, at ¶¶ 16, 17, 20 [Tapia Decl., referencing a grievance numbered “MS-24259-19”].)
However, this typographical error does not change the correctness of the Report-Recommendation's finding and conclusion that
Plaintiff failed to exhaust his available administrative remedies before he filed his Complaint in this action (pursuant to the
“Prison Mailbox Rule”) on October 3, 2019. By that time, he had not received a decision of his grievance by the Superintendent,
and could not realistically have appealed that decision (or the Superintendent's failure to issue a timely decision) to the Central
Office Review Committee and received a response (or failed to receive a timely response) from it.
This is because attached to the Complaint (which is sworn and thus has the force and effect of an affidavit for purposes of
a motion for summary judgment) is a notice dated September 27, 2019, advising Plaintiff that his five pages of previous
correspondence (from September 1-3, 2019), had been received by the Inmate Grievance Program Supervisor, construed
together as a grievance, assigned a grievance number, and forwarded to the Superintendent for decision. (Dkt. No. 1, at 8.) This
failure of Plaintiff to exhaust his available administrative remedies before filing his Complaint is also asserted in Defendants’
Statement of Undisputed Material Facts and not controverted by Plaintiff (despite the fact that he was twice specifically advised
of the consequences of failing to properly oppose Defendants’ motion and was granted three extensions of time in which to do
so). (Compare Dkt. No. 21, Attach. 2, at ¶¶ 2, 6-8 [Defs.’ Statement of Material Facts] with Dkt. No. 25 [Plf.’s Response].)
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Third, rather than oppose Defendants’ motion, Plaintiff attempts to adduce new evidence as part of his objection to the Report-
Recommendation. The Court declines to consider this late-blossoming evidence for each of two independent reasons. 5 First,
Plaintiff has not persuaded the Court that he could not have presented the evidence to Magistrate Judge Dancks before the
issuance of her Report-Recommendation, thus causing a waste of judicial resources (and a frustration of the purpose of the
Federal Magistrates Act of 1968) if the Court were to consider it now. See, supra, note 2 and accompanying text of this Decision
and Order. The Court notes that the document appears to have been created on or soon after September 10, 2020, and Plaintiff's
final response deadline was not until November 2, 2020. Second, in any event, the document in no way shows that Plaintiff
exhausted his available administrative remedies before filing his Complaint in this action; and, indeed, it contradicts any such
assertion.
5 For the sake of brevity, the Court will set aside the fact that the bottom of the document appears missing, and the fact
that the document is not introduced by an affidavit, rendering it somewhat questionable.
Fourth, and finally, although it is conceivable that this late-blossoming document could affect Magistrate Judge Dancks’ finding
that Plaintiff cannot now cure his failure to exhaust, the Court finds that it does not do so because, again, the Court is exercising
its discretion to not consider the document: Plaintiff had a full and fair opportunity to present it to Magistrate Judge Dancks
(before the issuance of her thoughtful Report-Recommendation) and he chose not to do so. 6
6 The Court notes that any arguable prejudice to Plaintiff resulting from this exercise of the Court's discretion is lessened
by the fact that, in its decision, the Central Office Review Committee granted Plaintiff the injunctive relief he requested
in this action. (Compare Dkt. No. 1, at 5 [Complaint, requesting, as relief, “$50,000 and to be able to practice my religion
and have frankenscent [sp] oils for my altar”] with Dkt. No. 31, at 1 [CORC Decision, accepting the grievance in part,
and explaining that Plaintiff has been “permitted religious items”].)
*4 ACCORDINGLY, it is
ORDERED that Magistrate Dancks’ Report-Recommendation (Dkt. No. 29) is ACCEPTED and ADOPTED in its entirety;
and it is further
ORDERED that Defendants’ motion for summary judgement (Dkt. No. 21) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED with prejudice.
The Court finds that an appeal from this Decision and Order would not be taken in good faith.
All Citations
Not Reported in Fed. Supp., 2021 WL 958512
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2023 WL 2324988
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael T. HUDSON, Plaintiff,
v.
Correction Officer C. KIRKEY, et al., Defendants.
9:20-CV-00581 (LEK/DJS)
|
Signed March 2, 2023
Attorneys and Law Firms
Michael T. Hudson, Easton, PA, Pro Se.
Matthew Gallagher, State of New York - Attorney General, Albany Office, Albany, NY, for Defendant Correction Officer C.
Kirkey.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Michael Hudson commenced this action pro se on May 28, 2020, alleging violations of Eighth Amendment rights
at Mohawk Correctional Facility against Defendants Correction Officer (“C.O.”) C. Kirkey, Sergeant John Doe, C.O. John
Does 1–7, Nurse Jane Doe, and Doctor Jane Doe (collectively, “Defendants”). Dkt. No. 1 (“Complaint”). On October 13, 2020,
Defendants filed their first motion for summary judgment. Dkt. No. 17. Thereafter on January 26, 2021, the Honorable Daniel
J. Stewart, United States Magistrate Judge, issued a Report-Recommendation recommending that this Court grant Defendants’
first motion for summary judgment. Dkt. No. 25 (“January 2021 Report-Recommendation”). This Court rejected Judge Stewart's
January 2021 Report-Recommendation on May 17, 2021, and denied Defendants’ first motion for summary judgment. Dkt.
No. 27 (“May 2021 Order”).
On July 29, 2022, Defendants filed another motion for summary judgment. Dkt. No. 49 (“Motion”). Judge Stewart issued another
Report-Recommendation—the underlying Report-Recommendation at issue here—recommending that Defendants’ Motion
be granted in part and denied in part. Dkt. No. 55 (“Report-Recommendation”). Defendants filed objections to the portion
of Judge Stewart's Report-Recommendation recommending that Defendants’ Motion be denied. Dkt. No. 57 (“Objections”).
Plaintiff has not filed a response. See Docket. For the reasons that follow, the Court approves and adopts Judge Stewart's Report-
Recommendation, with the modification that Judge Stewart hold an exhaustion hearing pursuant to Messa v. Goord, 652 F.3d
305 (2d Cir. 2011), to determine whether Plaintiff properly exhausted his administrative remedies concerning his excessive
force claim against Kirkey.
II. BACKGROUND
A. Factual History
Plaintiff's factual allegations are detailed in the Report-Recommendation, familiarity with which is assumed. See R. & R. at 2–3.
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B. Report-Recommendation
In the Report-Recommendation, Judge Stewart recommended that Defendants’ Motion be denied in part and granted in part.
Judge Stewart recommended denying Defendants’ Motion predicated on the defense of exhaustion under the Prison Litigation
Reform Act (“PLRA”) with respect to Plaintiff's excessive force claim against Kirkey. R. & R. at 5–7. In particular, Judge
Stewart found that the record could be read to show that Plaintiff submitted a grievance that was never filed. Id. at 6. Judge
Stewart also stated that Defendants failed to provide affirmative evidence to establish that no grievance was filed. Id. However,
Judge Stewart recommended granting summary judgment on the rest of Plaintiff's allegations because (1) Plaintiff failed to
identify the Doe Defendants; (2) Plaintiff conceded that a certain physical force incident did not occur; and (3) Plaintiff's medical
indifference claim remained unexhausted. Id. at 7–8.
III. STANDARD OF REVIEW
Within fourteen days after being served with a copy [of the Magistrate Judge's report and recommendation], any party may
serve and file written objections to such proposed findings and recommendations as provided by rules of the court.” 28 U.S.C.
§ 636(b)(1)(C); see also L.R. 72.1. If objections are timely filed, a court “shall make 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). De
novo review “does not require the Court to conduct a new hearing; rather, it mandates that the Court give fresh consideration
to those issues to which specific objections have been made.” A.V. by Versace, Inc. v. Gianni Versace, S.p.A., 191 F. Supp.
2d 404, 406 (S.D.N.Y. 2002).
*2 However, if no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an
argument made to the magistrate judge, a district court need only review that aspect of a report-recommendation for clear error.
See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009) (“The district court may adopt those portions of a
report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face
of the record.”); New York City Dist. Couns. of Carpenters Pension Fund v. Forde, 341 F. Supp. 3d 334, 336 (S.D.N.Y. 2018)
(“When a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review
the [report and recommendation] strictly for clear error.” (quoting Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485,
487 (S.D.N.Y. 2009))). Clear error “is present when upon review of the entire record, the court is left with the definite and firm
conviction that a mistake has been committed.” Rivera v. Federal Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y. 2019).
Additionally, a district court will ordinarily refuse to consider an argument that could have been, but was not, presented to the
magistrate judge in the first instance. See Hubbard v. Kelley, 752 F. Supp. 2d 311, 312–13 (W.D.N.Y. 2009) (“In this circuit, it
is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and
recommendation that could have been raised before the magistrate but were not.”).
Rule 56 of the Federal Rules of Civil Procedure 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 part.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude summary judgment,
“summary judgment will not lie 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 the 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In attempting to defeat a motion for summary judgment 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,” Matsushita Elec. Indus. Co.
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v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party may not rely on mere
conclusory allegations, speculation or conjecture, see Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020), and must present
more than a mere “scintilla of evidence” supporting its claims, Anderson, 477 U.S. at 252, 106 S.Ct. 2505. At the same time, a
court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, see Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and must “eschew credibility assessments[,]”
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.
1996)). Thus, a court's duty in reviewing a motion for summary judgment is “carefully limited” to finding genuine disputes of
fact, “not to deciding them.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
IV. DISCUSSION
Objections were timely filed with respect to the Report-Recommendation. See Docket. Defendants contend that Judge Stewart
erred because he overlooked evidence showing that Plaintiff failed to exhaust his administrative remedies by not undertaking
reasonable efforts to appeal his grievance to the superintendent level. Obj. at 2. Before addressing these arguments, the Court
will discuss the relevant provisions of the PLRA and the grievance process in New York State prisons.
*3 The PLRA provides: “No action shall be brought with respect to prison conditions under section 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). “[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.” Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983,
152 L.Ed.2d 12 (2002)). “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81,
93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). In other words, “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.” Killian, 680 F.3d at 238 (quoting Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)).
Nevertheless, the PLRA “contains its own textual exception to mandatory exhaustion. Under § 1997e(a), the exhaustion
requirement hinges on the availab[ility] of administrative remedies.” Ross v. Blake, 578 U.S. 632, 642, 136 S.Ct. 1850, 195
L.Ed.2d 117 (2016) (quotations omitted). The Supreme Court has identified three scenarios in which an administrative procedure
may be deemed unavailable for purposes of PLRA exhaustion. 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, 136 S.Ct. 1850 (citations omitted). Second, “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. at 643–644, 136 S.Ct. 1850. Finally, “the same is true when
prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.” Id. at 644, 136 S.Ct. 1850.
In New York State:
DOCCS has a well-established three-step Inmate Grievance Program (“IGP”). N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5
(2013). Generally, the DOCCS IGP involves the following procedure for the filing of grievances. First, an inmate must
file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. 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, the full IGRC conducts
a hearing within sixteen calendar days of receipt of the grievance and issues a written decision within two working days of
the conclusion of the hearing. Id. §§ 701.5(b)(2), (3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of
the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide
policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal.
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Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the central office review
committee (“CORC”) for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(i).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. §
701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Bryant v. Whitmore, No. 14-CV-1042, 2016 WL 7188127, at *4 (N.D.N.Y. Nov. 4, 2016), report and recommendation adopted,
Bryant v. Thomas, 2016 WL 7187349 (N.D.N.Y. Dec. 9, 2016).
*4 Moreover, the Second Circuit has held that factual disputes concerning exhaustion under the PLRA must be determined
by courts rather than juries. See Messa, 652 F.3d at 308–09 (“[Plaintiff] argues that, unlike other aspects of exhaustion, which
he concedes are properly resolved by the court, determining whether an inmate asserts a valid excuse for non-exhaustion is a
task for the jury. We are not persuaded.”). Likewise, exhaustion is an affirmative defense, and the burden of proof at all times,
remains on the defendant. See Ferguson v. Mason, No. 19-CV-927, 2021 WL 862070, at *3 (N.D.N.Y. Jan. 7, 2021), report and
recommendation adopted, 2021 WL 531968 (N.D.N.Y. Feb. 12, 2021).
Here, Defendants object to Judge Stewart's conclusion that: “Defendant has not come forward with affirmative evidence on this
Motion to establish that no grievance was filed. It is unclear why, if such evidence existed, it was not presented by Defendant.”
R. & R. at 6–7. Defendants argue that Judge Stewart erred because they contend that they have provided evidence showing
that Plaintiff never filed grievances; they reference the evidence filed in their first motion for summary judgment to support
this assertion. Obj. at 2–3. Defendants rely on Local Rule 7.1(b) which provides: “Documents that are on file with the Court in
the same action should not be attached as exhibits to the motion papers, but rather should reference to the appropriate docket
number.” Obj. at 3 (citing L.R. 7.1(b)).
The Court agrees with Defendants that they have provided evidence for purposes of this motion. They need not re-file the same
evidence pursuant to Local Rule 7.1(b). See Dkt. Nos 17-4; 17-8; 17-10. Nevertheless, the Court agrees with Judge Stewart's
conclusion. As this Court has stated in a previous order, “this dispute essentially boils down to a clash of sworn statements.”
Hudson v. Kirkey, No. 20-CV-0581, 2021 WL 1966721, at *4 (N.D.N.Y. May 17, 2021) (Kahn, J.). Similar to the facts of
the May 2021 Order, Plaintiff testified that he submitted multiple grievances that were never filed, Dkt. No. 49-1 (“Plaintiff's
Deposition”) at 110–12, while “Kirkey submitted sworn statements from inmate grievance program supervisors indicating that
a review of their records revealed that no grievance was filed.” Hudson, 2021 WL 1966721, at *4. However, the Court cannot
resolve the action in favor of Defendants because the Court is not convinced that Defendants have satisfied their burden of
proof. As this Court noted: “To the extent that these statements are in contradiction, the Court cannot resolve this contradiction
at the summary judgment stage, because this Court is prohibited from making credibility determinations.” Id. As another court
in this District explained:
[T]he 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. However, once a defendant has produced
reliable evidence that such remedies were generally available, and the plaintiff nevertheless filed 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. As a result, practically speaking, while the burden on this affirmative
defense remains all times on the defendant, the plaintiff may sometimes have to adduce evidence in order
to defeat it.
Coleman v. Nolan, No. 15-CV-40, 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018) (internal citations and quotations omitted).
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*5 Moreover, the framework described above “does not require a greater evidentiary showing from Plaintiff than would
otherwise be required during summary judgment.” Hudson, 2021 WL 1966721, at *4 (citations omitted). “A presumption's only
effect is to require the party contesting it to produce enough evidence substantiating the presumed fact's absence to withstand a
motion for summary judgment.” Id. Thus, as this Court explained, “once Kirkey introduced evidence that there was a functional
grievance system [via Dkt. No. 17], Plaintiff could not have survived summary judgment by simply pointing to Kirkey's failure
to introduce evidence that this process was specifically available to Plaintiff. Rather in order to make the presumption of
availability ‘vanish,’ Plaintiff had to produce competent evidence supporting unavailability.” Id. (citing McLean v. LaClair, No.
19-CV-1227, 2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021)).
Like the Court found in the May 2021 Order, Plaintiff has submitted evidence supporting unavailability of administrative
remedies. Plaintiff testified that he attempted to submit grievances twice, Pl.’s Dep. at 110–12, and then testified that after he
inquired with prison officials about his grievances he was told, “you waited too many days to file again.” Id. at 112. As a result,
drawing all inferences in favor of Plaintiff, the record shows that he attempted to file his grievance twice and when he followed
up, he was told he could not re-file because he “waited too many days to file again....” Id. And because “a sworn statement
[or deposition] based upon personal knowledge is sufficient when opposed only by a movant's conflicting sworn statement ...
Plaintiff's evidence is sufficient” to defeat summary judgment at this stage in the litigation. Hudson, 2021 WL 1966721, at *4
(citations omitted).
Likewise, “the ... statements from each side are not necessarily inconsistent. Since the Court is required to draw reasonable
inferences in Plaintiff's favor, the Court must infer that the grievance was never filed because prison authorities did not file it,
not because Plaintiff did not submit it.” Id. (citations omitted). See also Zulu v. Barnhart, No. 16-CV-1408, 2019 WL 2997226,
at *13, (N.D.N.Y. Apr. 22, 2019) report and recommendation adopted, No. 16-CV-1408, 2019 WL 2150628, (N.D.N.Y. May
17, 2019) (“Defendants’ evidence is largely consistent with plaintiff's claim that ... the timely grievances that he attempted to
submit while confined to the SHU at Marcy were not filed. The absence of any official records of plaintiff's initial attempts to
grieve the incident comports with plaintiff's assertions that once he handed a grievance through the feed-up hatch in the SHU,
it was out of his possession and it was not filed.”).
Accordingly, Kirkey has failed to carry his burden of proof that no disputes of material fact exist regarding whether the grievance
process was available to Plaintiff due to potential “machinations or misrepresentations of prison officials who inhibited the
filing of Plaintiff's submissions.” McLean, 2021 WL 671650, at *9. Thus, “[i]n order to determine whether Plaintiff properly
exhausted administrative remedies, the Court must hold a hearing, at which a fact-finder can assess the credibility of witnesses
and the relative weight of the evidence and parties presented.” Hudson, 2021 WL 1966721, at 4. 1 See also McLean v. LaClair,
No. 10-CV-1227, 2021 WL 671650, at *9 (N.D.N.Y. Feb. 22, 2021) (Kahn, J.) (ordering an exhaustion hearing on a similar
PLRA affirmative defense to assess the credibility of witnesses and evidence). As a result, holding an exhaustion hearing
pursuant to Messa v. Goord before Judge Stewart is the most appropriate action.
1 Kirkey also argues that Plaintiff never filed an appeal, and thus failed to exhaust his remedies. See Mot. at 7. However,
Kirkey already made this argument to Judge Stewart. Mot. at 9. Thus, the Court will not relitigate this argument de novo.
See Forde, 341 F. Supp. 3d at 346 (“When a party makes only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the [report and recommendation] strictly for clear error.”) (emphasis added).
Even assuming arguendo that the Court reviewed this portion de novo, the Court has already found that Kirkey failed to
demonstrate an absence of material fact regarding whether administrative remedies were available. Gill v. Frawley, No.
02-CV-1380, 2006 WL 1742738, 2006 U.S. Dist. LEXIS 101694 at *44 (N.D.N.Y. May 9, 2006) (noting that “[s]ome
courts have suggested that an inmate has exercised a reasonable effort to exhaust his administrative remedies when he
has tried to properly file a grievance and that grievance has been lost or destroyed by a prison official,” and collecting
cases). As a result, an exhaustion hearing is required. See Woodward v. Lytle, No. 16-CV-1174, 2019 WL 2527342, at *
1 (N.D.N.Y. May 24, 2019), report and recommendation adopted, 2019 WL 2524756 (N.D.N. Y June 19, 2019) (opting
to issue a decision on exhaustion subsequent to a hearing).
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*6 Neither party filed objections to the remaining portions of the Report-Recommendation when they were due pursuant to Fed.
R. Civ. P. 6(d) and 6(a)(1)(C). See generally Docket. Consequently, the Court reviews the rest of the Report-Recommendation for
clear error and finds none. Therefore, the Court adopts the Report-Recommendation with the modification regarding exhaustion.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 55) is APPROVED and ADOPTED with the modification that
Magistrate Judge Stewart resolve the exhaustion issues concerning Plaintiff's excessive force claim against Kirkey through a
hearing; and it is further
ORDERED, that Defendants’ motion for summary judgment (Dkt. No. 49) is GRANTED in part and DENIED in part; and
it is further
ORDERED, that Defendants’ motion for summary judgment (Dkt. No. 49) is GRANTED with respect to all claims against
the unidentified John Doe and Jane Doe defendants; and it is further
ORDERED, that the Clerk terminate the John Doe and Jane Doe Defendants from this action; and it is further
ORDERED, that Defendant's motion for summary judgment (Dkt. No. 49) is DENIED with respect to Plaintiff's Eighth
Amendment excessive force claim against Kirkey; and it is further
ORDERED, that this matter is REFERRED BACK to Magistrate Judge Stewart to facilitate resolution of the genuine disputes
of material fact surrounding Plaintiff's exhaustion of his administrative remedies, including holding an exhaustion hearing
concerning his excessive force claim against Kirkey; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local
Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2324988
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Jackson v. Jackson, Not Reported in Fed. Supp. (2021)
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© 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
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).
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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 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
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. 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”).
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.).
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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 “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
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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
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 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
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.
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 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
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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
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.
CONCLUSION
Based upon the foregoing, the motion for summary judgment is GRANTED.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 981849
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Sorrentino v. Annucci, Slip Copy (2025)
2025 WL 1033687
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2025 WL 1033687
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bernard J. SORRENTINO, Plaintiff,
v.
ANNUCCI, et al., Defendants.
9:23-cv-00582 (LEK/TWD)
|
Signed February 13, 2025
Attorneys and Law Firms
BERNARD J. SORRENTINO, 03-B-0299, Plaintiff, pro se, Wallkill Correctional Facility, Route 208 Box G, Wallkill, NY
12589.
ALEXANDRA L. GALUS, ESQ., Assistant Attorney General, ATTORNEY GENERAL FOR THE STATE OF NEW YORK,
Attorney for Defendants, 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 Honorable Lawrence E. Kahn, Senior United States
District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Bernard J. Sorrentino (“Plaintiff”), an individual
being held 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 asserting claims arising from his incarceration at Eastern Correctional Facility (“Eastern
C.F.”). See Dkt. No. 12. 1 Following review of the amended complaint for sufficiency in accordance with 28 U.S.C. § 1915A,
the following claims survived sua sponte review and required a response: (1) Plaintiff's First Amendment retaliation claim
against Correction Officer Tierney (“Tierney”); and (2) Plaintiff's Fourteenth Amendment due process claims against Tierney
and Hearing Officer Morrow (“Morrow”) (together “Defendants”). See Dkt. No. 13.
1 Citations to the parties’ submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing
system. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively
numbered paragraphs.
Currently before the Court is Defendants’ motion seeking dismissal of Plaintiff's First Amendment retaliation claim against
Tierney. 2 See Dkt. No. 25. This motion was filed in lieu of an answer, seeking summary judgement for failure to exhaust
administrative remedies, 3 or, in the alternative, dismissal for failure to state a claim upon which relief may be granted. See Dkt.
No. 25-5. Plaintiff has filed a response. See Dkt. Nos. 33, 34. For the reasons set forth below, the undersigned recommends
Defendants’ motion be denied.
2 Defendants do not seek dismissal of Plaintiff's Fourteenth Amendment procedural due process claims. See Dkt. No. 25-5
at 3 n.1. Defendants filed an answer responding to Plaintiff's Fourteenth Amendment due process claims on April 24,
2024. See Dkt. No. 27. On May 7, 2024, the undersigned granted Defendants’ request for a stay of the discovery deadline.
See Dkt. No. 30. After the District Court renders a decision on the instant motion, a Mandatory Pretrial Discovery and
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Scheduling Order will be issued outlining the terms of discovery and requiring the parties to exchange certain mandatory
disclosures. See id.
3 Defendants’ submission includes a Notice of Motion, Dkt. No. 25, Attorney Declaration, Dkt. No. 25-1, Anthony Black
Declaration with Exhibits, Dkt. No. 25-2, Rachel Seguin Declaration with Exhibits, Dkt. No. 25-3, Local Rule 56.1(a)
Statement of Material Facts, Dkt. No. 25-4, Memorandum of Law, Dkt. No. 25-5, and Declaration of Service, Dkt. No.
25-6.
II. BACKGROUND
The following facts are set forth as alleged by Plaintiff in the amended complaint. See Dkt. No. 12. On February 18, 2020,
Tierney issued Plaintiff a misbehavior report, which falsely accused Plaintiff of stating he would like to “marry” Corrections
Officer Vauricka and “could kill her.” Id. at 3. 4 Based on this statement, Tierney charged Plaintiff with “stalking, violent
conduct and making a threat.” Id.
4 Plaintiff's states, “I did not make this statement. The offending statement was meant to superficially mimic my crime,
which involved causing my wife's death while blacked-out because of marital problems ....” Dkt. No. 12 at 3.
*2 Prior to Plaintiff's receipt of the misbehavior report, he filed “environmental Complaints related to unchecked smoking”
in his housing area and the burning of “Muslim oils ... to cover up the odor of smoke from cigarettes and drugs.” Id. at 4.
Plaintiff also submitted a complaint to DOCCS officials based on “items being taken out of [his] cell without authorization,”
which resulted in a payment from “Albany” for the loss of property.” Id. at 5. The payment “implicated” officers from Plaintiff's
housing unit, including Tierney, in the wrongdoing. Id. at 4-5.
DOCCS afforded Plaintiff a disciplinary hearing based on the misbehavior report, which was conducted by Morrow. 5 Id. at
3-4. Plaintiff's disciplinary hearing concluded on February 28, 2020, with Morrow finding Plaintiff guilty of all charges in the
misbehavior report and sentencing him to seventy days of confinement in the special housing unit (“SHU”). Id. at 3. Plaintiff
appealed this disciplinary sentence to the Superintendent of Eastern C.F., who “dismissed the stalking and violent conduct
charges and reduced the SHU time to 50 days” on March 20, 2020. Id.
5 The Court previously provided a detailed summary of Plaintiff's Fourteenth Amendment due process claims against
Tierney and Morrow on initial review. See Dkt. No. 13 at 1-4. Because Defendants only seek dismissal of Plaintiff's
First Amendment retaliation claim against Tierney, the Court does not recount Plaintiff's Fourteenth Amendment due
process claims here.
III. STANDARD OF REVIEW
A. Summary Judgment
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.
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
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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).
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).
The court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614,
619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between
conflicting versions of the events are matters for the jury, not for the court on summary judgment.”).
*3 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).
“ ‘Although a motion for summary judgment may be filed at any time until 30 days after the close of all discovery, Fed. R. Civ.
P. 56(b), summary judgment is generally not appropriate until after some discovery has occurred.’ ... ‘[O]nly in the rarest of
cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.’ ”
Johnson v. Owens, No. 9:20-CV-0982 (LEK/CFH), 2022 WL 958127, at *3 (N.D.N.Y. Mar. 30, 2022) (alterations in original)
(quoting Houston v. Sheahan, No. 13-CV-6594, 2016 WL 554849, at *1 (W.D.N.Y. Feb. 10, 2016), and then quoting Hellstrom
v. U.S. Dep't of Veterans Affs., 201 F.3d 94, 97 (2d Cir. 2000) (other citations omitted)).
B. Motion to Dismiss
On a Federal Rule of Civil Procedure 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). The motion tests the legal sufficiency of the complaint and whether it conforms
to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must “contain 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)).
Determining whether a complaint states a plausible claim for relief ... requires the reviewing court to
draw on its judicial experience and common sense ... [W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
shown—that the pleader is entitled to relief.
Iqbal, 556 U.S. at 679 (internal quotations and citations omitted). “Factual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a
claim that is plausible on its face.” Twombly, 550 at 570. While Rule 8(a)(2) “does not require detailed factual allegations, ... it
demands more than an unadorned, the-defendant-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation
marks omitted). A complaint which “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’ ” does not suffice.
Id. (citation omitted).
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint
as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.
1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint
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is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
*4 In considering a Rule 12(b)(6) motion, “the court considers the complaint, any written documents attached to them, and any
matter of which the court can take judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old Navy, LLC,
647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted). Moreover, “the mandate to read the papers of
pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss
as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual allegations are consistent
with the allegations of the plaintiff's complaint.” Robles v. Bleau, No. 9:07-CV-0464, 2008 WL 4693153, at *6 (N.D.N.Y. Oct.
22, 2008); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (where a pro se plaintiff is faced with a motion to
dismiss, a court may consider materials outside of the complaint “to the extent they are consistent with the allegations in the
complaint.”), vacated in part on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004).
IV. DISCUSSION
Defendants seek dismissal of Plaintiff's First Amendment retaliation claim against Tierney on two grounds: (1) failure to exhaust
administrative remedies pursuant to Federal Rule of Civil Procedure 56(a); and (2) failure to state a claim upon which relief
may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 25-2.
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement “applies to all inmate
suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To properly exhaust his administrative remedies, a
prisoner must complete the administrative review process in accord with the applicable state procedural rules. Jones v. Bock,
549 U.S. 199, 218-19 (2007).
In New York, the administrative remedies consist of a three-step Incarcerated Grievance Program (“IGP”). See 7 N.Y.C.R.R.
§ 701 et seq. First, an inmate must first file a grievance with the facility's IGP clerk within twenty-one days of the alleged
occurrence. Id. § 701.5(a). The Incarcerated Grievance Resolution Committee (“IGRC”) reviews and investigates the grievance
and then issues a written determination. Id. § 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. § 701.5(c). Third, 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. Toussaint v. Rumsey, No. 9:23-CV-974
(LEK/DJS), 2024 WL 3649918, at *3 (N.D.N.Y. June 5, 2024) (citation omitted), report and recommendation adopted sub nom.
Toussaint v. Doe #1, 2024 WL 3371074 (N.D.N.Y. July 10, 2024).
An expedited procedure exists for grievances regarding alleged harassment, this procedure also requires that the grievant receive
a response from CORC in order to exhaust. 7 N.Y.C.R.R. § 701.8. Upon receipt, the IGP directly forwards the grievance to
the superintendent upon filing by the close of business day, who has twenty-five calendar days to render a response. Id. If an
incarcerated individual disagrees with the superintendent's response, they must still appeal the decision to CORC to exhaust their
administrative remedies. Id. § 701.8(h). If an incarcerated individual fails to receive a response to an expedited grievance from
the superintendent within twenty-five 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. Id. § 701.8(g). 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).
*5 Nevertheless, under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross v. Blake, 578 U.S.
632, 638 (2016). The Supreme Court has identified three examples of unavailable administrative procedures: (1) those that
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“operate[ ] as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates;
(2) those that are “so opaque that [they] become[ ], practically speaking, incapable of use,” where “some mechanism exists to
provide relief, but no ordinary prisoner can discern or navigate it;” and (3) those where “prison administrators thwart inmates
from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44.
Exhaustion of administrative remedies is an affirmative defense. Thus, the defendant bears the burden of proof. See Jones,
549 U.S. at 216. The defendant discharges his or her initial burden by “demonstrating that a grievance process exists” and that
the plaintiff failed to utilize the grievance procedure. White v. Velie, 709 F. App'x 35, 38 (2d Cir. 2017) (summary order). The
burden then shifts to the plaintiff, who must show that “other factors ... rendered a nominally available procedure unavailable
as a matter of fact.” Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (citation omitted).
1. Defendants’ Statement of Material Facts
Local Rule 56.1 requires a party moving for summary judgment to file and serve a Statement of Material Facts. See L.R. 56.1(a).
“The Statement of Material Facts shall set forth, in numbered paragraphs, a short and concise statement of each material fact
about which the moving party contends there exists no genuine issue.” Id. The opposing party is required to file a response to
the Statement of Material Facts “admitting and/or denying each of the movant's assertions in matching numbered paragraphs.”
L.R. 56.1(b). “The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.” Id. (emphasis in original).
In accordance with Rule 56.1(a), Defendants filed and served a Statement of Material Facts. See Dkt. No. 25-4. Although
Plaintiff filed a response to Defendants’ motion, he failed to respond to Defendants’ Statement of Facts. See Dkt. Nos. 33, 34.
Where, as in this case, a party has failed to respond to the movant's Statement of Material Facts in the manner required under
Local Rule 56.1(b), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as
true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro
se, has been specifically advised of the possible consequences of failing to respond to the motion. 6 See Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996).
6 Plaintiff was served with the requisite notice. See Dkt. Nos. 25, 26.
Therefore, the Court will deem properly supported facts stated in Defendants’ Statement of Material Facts, Dkt. No. 25-4, as
true for the purposes of this motion. 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 Ruotolo v. Figueroa, No. 1:22-CV-169 (LEK/DJS), 2025 WL
276010, at *1 (N.D.N.Y. Jan. 23, 2025) (same).
2. Analysis
“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).
*6 In support of their motion for summary judgment in lieu of an answer, Defendants submit sworn declarations from Eastern
C.F. IGP Supervisor Anthony Black and Director of the IGP for DOCCS Rachel Seguin, which describe DOCCS’ administrative
exhaustion process. See Dkt. Nos. 25-2, 25-3. As detailed therein, at all relevant times, incarcerated individuals at Eastern C.F.,
were provided with full access to the IGP. Dkt. Nos. 25-2 at ¶ 18, 25-3 at ¶ 11. Plaintiff's claim that a false misbehavior report
was issued against him in retaliation for prior complaints is the proper subject for a grievance. Dkt. Nos. 25-2 at ¶ 16, 25-3 at
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¶ 10. DOCCS records maintained at Eastern C.F. and CORC show Plaintiff did not file a grievance related to his retaliation
claim, nor was a grievance related to his retaliation claim appealed to CORC. Dkt. No. 23-2 at ¶ 19; 23-3 at ¶ 13. With these
submissions, Defendants have satisfied their initial burden of demonstrating that a grievance procedure existed, and Plaintiff
failed to exhaust administrative remedies related to the allegedly false misbehavior report issued on February 18, 2020, by
Tierney. See Hubbs, 788 F.3d at 59; see also Bennett v. Onua, No. 09 Civ. 7227, 2010 WL 2159199, at *3 (S.D.N.Y. May 26,
2010) (finding that the defendants “adequately supported the affirmative defense of failure to exhaust” where “a search of the
grievance log records ... did not reveal any record of a grievance” filed by the plaintiff).
Because Defendants have met their initial burden, the burden shifts to Plaintiff to show that the administrative remedies were
unavailable to him. See Hubbs, 788 F.3d at 59. In his sworn affidavit submitted in opposition to Defendants’ motion, Plaintiff
avers, he “complained” to Black “about false misbehavior report written by officer Tierney.” Dkt. No. 33 at 14. He further
claims, “After I was taken to SHU and before my hearing I wrote Mr. Black, I told him about the false misbehavior report
written on me. He attached a note stating it is in the hands of the administration. All my correspondences are missing that I
had with Mr. Black.” Id. at 5.
Liberally construed and drawing all reasonable inferences in Plaintiff's favor, Plaintiff appears to raise an issue regarding the
availability of his administrative remedies. But “at this stage of the proceedings and with no discovery having been conducted,
it would not be appropriate to resolve this issue just based on the papers.” Murray v. Noeth, No. 6:19-CV-6342, 2022 WL
4467691, at *5 (W.D.N.Y. Sept. 26, 2022); see also Johnson v. Owens, No. 9:20-CV-0982 (LEK/CFH), 2022 WL 958127, at
*4 (N.D.N.Y. Mar. 30, 2022) (“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.”) (collecting cases). 7
7 See, e.g., Young-Flynn v. Wright, No. 05-CV-1488, 2007 WL 241332, at *13 (S.D.N.Y. Jan. 26, 2007) (finding summary
judgement premature even where the “Court ha[d] some doubt that Plaintiff's only described efforts toward exhaustion
could ultimately be found sufficient to overcome the exhaustion requirement’ because discovery had not yet been
conducted”); Blackhawk v. Hughes, No. 9:20-CV-0241 (LEK/TWD), 2021 WL 862257, at *4 (N.D.N.Y. Jan. 19, 2021)
(denying motion for summary judgement and noting that while exhaustion of administrative remedies is a question
of law, and hence appropriate for consideration on a motion for summary judgement in lieu of an answer, “[o]nly in
the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity
to conduct discovery”) (quoting Hellstrom, 201 F.3d at 97), report and recommendation adopted, 2021 WL 752838
(N.D.N.Y. Feb. 26, 2021).
Accordingly, it is recommended that Defendants’ motion for summary judgment seeking dismissal of Plaintiff's First
Amendment retaliation claim against Tierney for failure to exhaust administrative remedies be denied without prejudice. 8
8 While the District Court could order an exhaustion hearing, see Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011),
doing so here without the benefit of discovery would not be the most efficient manner in which to resolve the factual
disputes presented here. Indeed, Defendants’ counsel appears to recognize as much and “requests an opportunity to
depose Plaintiff on the limited issue of exhaustion followed by an evidentiary hearing pursuant to Messa v. Goord, 652
F.3d 305 (2d Cir. 2011).” Dkt. No. 25-1 at ¶ 4. However, as noted above, a Mandatory Pretrial Discovery and Scheduling
Order will be issued in due course, and Defendants will have the opportunity to renew their exhaustion argument by
dispositive motion or an exhaustion hearing at a later date.
B. First Amendment Retaliation
*7 Pursuant to Federal Rule of Procedural 12(b)(6), Defendants move to dismiss Plaintiff's First Amendment retaliation claim
against Tierney. See Dkt. No. 25-5 at 12-14. Plaintiff opposes the motion. See Dkt. No. 33, 34.
Courts must approach claims of retaliation “ ‘with skepticism and particular care’ because ‘virtually any adverse action taken
against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be
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characterized as a constitutionally proscribed retaliatory act.’ ” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting
Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002)). To state a plausible claim, a plaintiff asserting a First Amendment retaliation claim must advance “non-conclusory”
allegations establishing “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against
the Plaintiff, and (3) that there was a causal connection between the protected speech [or conduct] and the adverse action.” Id.
(quoting Dawes, 239 F.3d at 492).
Here, Defendants contend “Plaintiff has not established a causal connection between his protected conduct and the alleged
adverse action. 9 Id. at 12. “To plead a causal connection between protected speech and adverse actions, a plaintiff must show that
‘the protected conduct was a substantial or motivating factor in the prison officials’ decision to take action against the plaintiff.’
” Miller v. Annucci, No. 9:19-CV-30 (LEK/ATB), 2019 WL 11276705, at *5 (N.D.N.Y. Dec. 16, 2019) (quoting Ciaprazi v.
Goord, No. 9:02-CV-915 (GLS), 2005 WL 3531464, at *6 (N.D.N.Y. Dec. 22, 2005)); accord Dorsey v. Fisher, 468 F. App'x
25, 27 (2d Cir. 2012). When evaluating whether a causal connection exists, a court may consider “(1) the temporal proximity
between the protected activity and the alleged retaliatory act; (2) the inmate's prior good disciplinary record; (3) vindication
at a hearing on the matter; and (4) statements by the defendant concerning his motivation.” Miller, 2019 WL 11276705, at *5
(quoting Vega v. Artus, 610 F. Supp. 2d 185, 207 (N.D.N.Y. 2009) (other citation omitted)).
9 For purposes of this motion only, Defendants “will assume Plaintiff has established the first two prongs of his First
Amendment retaliation claim against Defendant [Tierney], and therefore, only the third prong will be addressed in this
motion.” Dkt. No. 25-5 at 12 n.2.
As detailed above, Plaintiff alleges Tierney issued him a false misbehavior report in retaliation for previous complaints he had
made about unchecked smoking and “items being taken out of [his] cell without authorization,” which resulted in a payment
from “Albany” for the loss of property. Dkt. No. 12 at 4-5. Plaintiff claims the payment “implicated” officers from Plaintiff's
housing unit, including Tierney, in the wrongdoing because Tierney “ran West Wing at Eastern Correctional Facility most
nights.” Id. at 4.
Defendants argue “[t]hese conclusory allegations ... are not enough to establish a causal connection between” the protected
conduct and the adverse action. Dkt. No. 25-5 at 14. Specifically, Defendants contend there are no allegations in the amended
complaint that “Tierney was the Correction Officer that the Plaintiff had complained to, or that Defendant Tierney was named
in these complaints.” Id. at 13. Defendants further note “it is difficult to establish one defendant's retaliation for complaints
against another defendant.” Dkt. No. 25-5 at 15 (collecting cases). While Defendants cite a number of cases to support their
position, all are distinguishable or inapposite.
*8 Drawing all inferences in Plaintiff's favor, the undersigned finds Plaintiff has satisfied the causation prong. First, Plaintiff
alleges the February 18, 2020, misbehavior report followed close in time to Plaintiff complaints based on “items being taken
out of [his] cell without authorization,” which resulted in a payment from “Albany.” 10 Dkt. No. 12 at 4; see Dkt. Nos. 33 at 19
(indicating claim was approved on February 11, 2020), see also Dkt. No. 33-1 at 14 (“just a few days before the [misbehavior]
report was written [Plaintiff] received a settlement for a pair of new sneakers”). See Fabrizio v. Rielly, No. 9:20-CV-0011 (GTS/
ML), 2022 WL 18402299, at *10 (N.D.N.Y. Dec. 15, 2022) (“The Second Circuit has held that the passage of ‘only six months’
is sufficient to support an inference of a causal connection.”) (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)).
Second, Plaintiff claims he has “no violence on [his] record,” and two out of the three charges were “dropped.” Id.; see Miller,
supra, 2019 WL 11276705, at *5 (factors include “the inmate's prior good disciplinary record” and “vindication at a hearing
on the matter”).
10 “Although there is significant case law to support the contention that temporal proximity alone is insufficient to
survive a motion for summary judgment, the same is not true at the motion to dismiss stage.” Hendricks v. Mallozzi,
No. 9:20-CV-1035 (MAD/ML), 2022 WL 1129887, at *5 (N.D.N.Y. Jan. 14, 2022) (citations omitted), report and
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recommendation adopted, 2022 WL 856885 (N.D.N.Y. Mar. 23, 2022). In any event, as discussed here, Plaintiff alleges
more than mere temporal proximity from which a causal connection could be inferred. See Dkt. No. 33 at 33 at 36-37.
Based on the aforementioned, at this early stage of the litigation, even viewing the allegations “with skepticism and particular
care,” it is at least “plausible” that Plaintiff was issued the misbehavior report in retaliation for his protected conduct. Thus, the
undersigned recommends denying Defendants’ motion to dismiss Plaintiff First Amendment claim against Tierney.
V. CONCLUSION
After carefully reviewing the record, the parties’ submissions, and the applicable law, and for the reasons stated herein, it is
hereby
RECOMMENDED that Defendants’ motion, Dkt. No. 25, be DENIED; and it is further
RECOMMENDED that Plaintiff's First Amendment retaliation claim against Tierney, in addition to Plaintiff's Fourteenth
Amendment due process claim against Tierney and Morrow, proceed to discovery; 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. 11 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.
11 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).
IT IS SO ORDERED.
All Citations
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bernard J. SORRENTINO, Plaintiff,
v.
TIERNEY and Morrow, 1 Defendants.
1 The Clerk is directed to update the case caption to reflect that the only remaining defendants are Tierney and Morrow.
9:23-CV-582 (LEK/TWD)
|
Signed March 18, 2025
Attorneys and Law Firms
Bernard J. Sorrentino, Wallkill, NY, Pro Se.
Alexandra L. Galus, NYS Office of the Attorney General, Albany, NY, for Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Bernard J. Sorrentino brings this pro se action pursuant to 42 U.S.C. § 1983 against, inter alia, Defendant
Tierney asserting violations of his constitutional rights. Dkt. No. 1. Tierney filed a motion for summary judgment and partial
motion to dismiss, arguing that Plaintiff failed to exhaust his administrative remedies and failed to state a claim. Dkt. No. 25
(“Motion”). On February 13, 2025, the Honorable Thérèse Wiley Dancks, United States Magistrate Judge, issued a report and
recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), recommending the Motion be denied. Dkt. No. 35
(“Report and Recommendation”).
No party has filed objections to the Report and Recommendation. For the reasons that follow, the Court adopts the Report and
Recommendation in its entirety.
II. BACKGROUND
The Court assumes familiarity with the factual background detailed in the Report and Recommendation. See R. & R. at 2–3.
In her analysis, Judge Dancks first recommended denying Defendant's Motion seeking dismissal of Plaintiff's First Amendment
retaliation claim for failure to exhaust administrative remedies. Id. at 12. While Defendant “satisfied [his] initial burden of
demonstrating that a grievance procedure existed, and Plaintiff failed to exhaust administrative remedies,” id. at 11, Judge
Dancks found that “Plaintiff appears to raise an issue regarding the availability of his administrative remedies,” id. at 12. Judge
Dancks noted that discovery was necessary to provide Plaintiff with the opportunity to support his exhaustion theory. Id.
Next, Judge Dancks recommended denying Defendant's Motion seeking dismissal of Plaintiff's First Amendment retaliation
claim for failure to state a claim. Id. at 15. While Defendant argued that Plaintiff did not establish a causal connection between
his “complaints” and the filing of the misbehavior report, Judge Dancks found that Plaintiff satisfied the causation prong. Id. at
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14. As Judge Dancks noted, “[f]irst, Plaintiff alleges the [ ] misbehavior report followed close in time to Plaintiff[’s] complaints.”
Id. Second, Plaintiff had no violence on his record and two charges against him were “dropped.” Id. Judge Dancks stated that
both of these factors support a finding of causation at the motion to dismiss stage. Id.
Judge Dancks thus recommended the Motion be denied in its entirety. Id. at 16.
III. LEGAL STANDARD
“Within fourteen days after being served with a copy [of the Magistrate Judge's report and recommendation], any party may serve
and file written objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)
(1)(C); see also L.R. 72.1. However, if no objections are made, a district court need only review a report and recommendation
for clear error. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009) (“The district court may adopt those
portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent
from the face of the record.”). Clear error “is present when upon review of the entire record, the court is left with the definite
and firm conviction that a mistake has been committed.” Rivera v. Fed. Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y.
2019) (cleaned up). Upon review, a court “may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
IV. DISCUSSION
*2 No party objected to the Report and Recommendation within fourteen days after being served with a copy of it. Accordingly,
the Court reviews the Report and Recommendation for clear error. See DiPilato, 662 F. Supp. 2d at 339. Having found none,
the Court approves and adopts the Report and Recommendation in its entirety.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No. 35, is APPROVED and ADOPTED in its entirety; and it is
further
ORDERED, that the motion for summary judgment and partial motion to dismiss, Dkt. No. 25, is DENIED; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local
Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 841475
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United States District Court, N.D. New York.
Brandon EAddTWDBROWN, Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, et al., Defendants.
9:24-cv-1474 (DNH/TWD)
|
Signed November 24, 2025
Attorneys and Law Firms
BRANDON BROWN, Plaintiff, pro se, 22-R-0276, Mohawk Correctional Facility, P.O. Box 8451, Rome, NY 13440.
ERIN P. MEAD, ESQ., NEW YORK STATE ATTORNEY GENERAL, Attorney for Defendant, 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 was referred for a report and recommendation by the Hon. David N. Hurd, United States District Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Brandon Brown (“Plaintiff”) commenced this action pursuant to 42
U.S.C. § 1983 while in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”).
See generally, Dkt. No. 1. 1 Currently before the Court is a motion for summary judgment, filed by Defendant Imam Fakhr
(“Defendant”). See generally, Dkt. No 18. For the reasons set forth below, the undersigned recommends the Defendant's motion
be denied.
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.
II. BACKGROUND
Plaintiff commenced this action by filing a complaint on December 5, 2024, while incarcerated at Mohawk Correctional Facility.
See generally, Dkt. No. 1. By Decision and Order dated February 26, 2025, the Hon. David N. Hurd, United States District Judge,
granted Plaintiff's application to proceed in forma pauperis and found Plaintiff's (1) Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) claim against the Defendant in his official capacity; (2) First Amendment free exercise claim against
Defendant in his individual capacity; (3) First Amendment retaliation claim against Defendant in his individual capacity; and
(4) Fourteenth Amendment equal protection claims against Defendant in his individual capacity survived sua sponte review
and required a response. See Dkt. No. 8 at 15.
On June 10, 2025, Defendant filed a pre-answer motion for summary judgment and/or to dismiss. Dkt. No. 18. Defendant argues
Plaintiff failed to exhaust his administrative remedies before commencing this action, therefore, dismissal of the complaint
is warranted under Rules 56 and/or 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 18-9 at 7-14. A notice of
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the consequences of failing to respond to a summary judgment motion was sent to Plaintiff's address at Mohawk Correctional
Facility. Dkt. No. 19.
On June 16, 2025, Plaintiff filed a letter requesting an extension, Dkt. No. 21, which was granted by Text Order, Dkt. No. 22. The
June 17, 2025, Text Order extending Plaintiff's response deadline to July 31, 2025, was subsequently returned as undeliverable,
Dkt. No. 23. Plaintiff has not filed a response to Defendant's motion or sought an additional extension of time to do so. See
generally, Docket. Additionally, Plaintiff has not filed a change of address. Id. Defendant submitted a reply in further support
of the motion for summary judgment. Dkt. No. 27.
III. LEGAL STANDARD
A. Summary Judgment
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.
*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).
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.”). 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).
B. 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
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are exhausted.” 42 U.S.C. § 1997e(a). “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).
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). Furthermore, “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).
*3 DOCCS has a well-established Inmate Grievance Program (“IGP”), set forth in 7 N.Y.C.R.R. § 701 et seq.
Generally, the DOCCS IGP involves the following procedure for the filing of grievances. First, an
inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged
occurrence. [7 N.Y.C.R.R.] § 701.5(a). A representative of the facility's 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, the full IGRC conducts a hearing within
sixteen calendar days of receipt of the grievance and issues a written decision within two working days of
the conclusion of the hearing. Id. §§ 701.5(b)(2), (3). Second, a grievant may appeal the IGRC decision
to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. §
701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue),
the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's
appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to
the central office review committee (“CORC”) for a decision under the process applicable to the third
step. Id. § 701.5(c)(3)(i). Third, a grievant may appeal to CORC within seven working days of receipt of
the superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Hudson v. Kirkey, No. 9:20-CV-00581 (LEK/DJS), 2023 WL 2324988, at *3 (N.D.N.Y. Mar. 2, 2023) (additional citation
omitted); see also Jackson v. Jackson, No. 16-CV-8516 (PMH), 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021) (explaining,
“when a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint
to bypass IGRC review and proceed before the Superintendent in the first instance.”) (citing 7 N.Y.C.R.R. § 701.8).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory
exhaustion.” Ross, 578 U.S. at 642. Specifically, the exhaustion requirement contained in § 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:
[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
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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.
*4 Id. at 643-44. In these situations, exhaustion is not required. Additionally, the Second Circuit has observed “the three
circumstances discussed in Ross do not appear to be exhaustive ....” Williams v. Correction Officer Priatno, 829 F.3d 118, 124
n.2 (2d Cir. 2016).
IV. ANALYSIS
The facts giving rise to Plaintiff's constitutional claims occurred from the time Plaintiff arrived at Mohawk Correctional Facility
in January of 2023, and were alleged to be “ongoing” at the time he filed his complaint on December 5, 2024. See Dkt. No. 1
at 7. In support of the instant motion for summary judgment, Defendant asserts IGP records demonstrate Plaintiff filed three
grievances concerning the allegations in his complaint: (1) grievance number MHK-0018-23, filed February 15, 2023; (2)
grievance number MHK-0143-23, filed October 25, 2023; and (3) grievance number MHK-0017-25, filed January 29, 2025.
Dkt. No. 18-2 at 5; see also Dkt. No. 18-9 at 12; Dkt. No. 18-4. 2 Defendant further avers: (1) Plaintiff did not appeal the
IGRC's response to grievance MHK-0018-23 to the facility's superintendent; (2) Plaintiff did not appeal the IGRC's dismissal
of grievance MHK-0143-23 to the IGRC supervisor or file a second grievance to contest the dismissal; and (3) grievance
MHK-0017-25 was filed over a month after Plaintiff commenced this action. See Dkt. No. 18-9 at 12-13; Dkt. No. 18-2 at 5-6.
Therefore, Defendant argues “Plaintiff either failed to fully exhaust or failed to submit grievances prior to commencement of
this action,” and dismissal for failure to exhaust as required by the PLRA is appropriate. Dkt. No. 18-9 at 14.
2 More specifically, Defendant asserts IGP records indicate Plaintiff filed seven grievances while housed at Mohawk
Correctional Facility, “but only three with respect to religious services ....” Dkt. No. 18-9 at 12.
However, it is well established that “[o]nly 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); see also, e.g., Sorrentino v. Annucci, No. 9:23-CV-00582 (LEK/TWD), 2025 WL 1033687, at *3 (N.D.N.Y. Feb.
13, 2025), report and recommendation adopted sub nom., Sorrentino v. Tierney, No. 9:23-CV-582 (LEK/TWD), 2025 WL
841475 (N.D.N.Y. Mar. 18, 2025). As a result, denial of a pre-answer motion for summary judgment on exhaustion grounds is
appropriate where issues remain as to the availability of administrative remedies during the relevant period. See, e.g., Hardee
v. Thomas, No. 9:23-CV-1142 (LEK/TWD), 2025 WL 777268, at *5 (N.D.N.Y. Feb. 13, 2025) (recommending denial of pre-
answer motion for summary judgment on the basis of exhaustion where the record was “incomplete as to the availability of
administrative remedies” at the correctional facilities where the Plaintiff was housed following the subject incident), report
and recommendation adopted, 2025 WL 773577 (N.D.N.Y. Mar. 11, 2025); Adams v. Berkman, No. 9:24-CV-0873 (MAD/
TWD), 2025 WL 2548797, at *6 (N.D.N.Y. July 11, 2025) (recommending denial of pre-answer motion for summary judgment
where the record was, “incomplete as to the availability of Plaintiff's administrative remedies following the alleged ... incident.
There are certainly issues that call for further factual development.”), report and recommendation adopted, 2025 WL 2318706
(N.D.N.Y. Aug. 12, 2025).
*5 Such is the case here given Plaintiff's statements regarding grievances in his complaint. See generally, Dkt. No. 1 at
5-6. Specifically, Plaintiff stated in his complaint that “Over the last 22 months I have written dozens of Grievances most go
unanswered.” Id. at 5 (emphasis added). Plaintiff's allegations contradict the IGP records submitted by the Defendant indicating
Plaintiff had submitted two grievances regarding his religious rights prior to commencing this action. See Dkt. No. 18-9 at
12-13; Dkt. No. 18-2 at 5-6. Next, Plaintiff has alleged “on October 15th the Imam stooped as low as to remove our Grievances
from the pile on the desk and continues his under handed tactics.” Dkt. No. 1 at 5. This allegation raises a question of fact as
to whether Plaintiff was thwarted from utilizing the grievance process. See generally, Ross, 578 U.S. at 643-44. Furthermore,
in the December, 2024, complaint, Plaintiff reported he had grieved the denial of service and congregation that had occurred
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on October 7, 2024, yet the IGP records submitted by Defendant indicate no religious grievances were filed by Plaintiff from
October 25, 2023, until after this action had commenced. Compare Dkt. No. 1 at 5-6, with Dkt. No. 18-2 at 5-6.
Additionally, 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).
Here, given Plaintiff's allegation that Defendant Imam interfered with the exhaustion process by “remov[ing] ... Grievances
from the pile,” Dkt. No. 1 at 5, and that he was subjected to “an effort to suppress, lose, and otherwise ignore [his] grievances,”
Dkt. No. 1 at 6, it appears the exhaustion issue may be intertwined with the merits of Plaintiff's constitutional claims protected
by the Seventh Amendment.
In sum, Plaintiff's complaint contains allegations regarding the IGP at Mohawk Correctional Facility which raise questions
of fact as to the availability of administrative remedies precluding summary judgment relief at this juncture. Accordingly, the
undersigned recommends Defendant's motion be denied. In so recommending, the undersigned recognizes Plaintiff has not
provided any evidence substantiating his efforts to file grievances as reported in the complaint. Nevertheless, because Plaintiff
has not been afforded the opportunity to conduct discovery, dismissal is not appropriate. See, e.g., Adams, 2025 WL 2548797,
at *6 (N.D.N.Y. July 11, 2025) (recognizing the plaintiff had “not provided any further evidence substantiating his efforts to
file these supposed grievances,” but recommending denial of the defendant's dispositive motion because “unlike the case at bar,
those cases [granting summary judgment where the plaintiff had not provided evidence substantiating efforts to comply with
the grievance process] were decided after discovery.”) (emphasis in original).
V. PLAINTIFF'S FAILURE TO UPDATE HIS ADDRESS
As the Court noted above, mail to the Plaintiff at the address the Court has on file has been returned to the Court as undeliverable.
See Dkt. Nos. 23, 26. Per a review of the DOCCS Incarcerated Lookup, it appears Plaintiff was released to Parole on June 18,
2025. See www.nysdoccslookup.doccs.ny.gov for Brandon Brown, DIN: 22R0276, last visited 11/24/2025; see also Dkt. No.
21. To date, however, Plaintiff has not notified the Court of his change of address as he is required to do. See Dkt. No. 8 at
16-17; Dkt. Nos. 22, 25; N.D.N.Y. L.R. 10.1(c)(2) and 41.2(b). As such, Plaintiff is directed to notify the Court of his new
address by December 19, 2025. Failure to do may result in dismissal of this action for failure to prosecute and failure to follow
Court orders and directives.
VI. CONCLUSION
Accordingly, it is hereby
RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 18) be DENIED; and it is further
ORDERED that Plaintiff must notify the Court of his current address by December 19, 2025, or this matter may be sua sponte
dismissed for failure to prosecute and failure to follow Court orders and directives; and it is further
*6 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. 3 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.
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3 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).
IT IS SO ORDERED.
All Citations
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United States District Court, N.D. New York.
Brandon BROWN, Plaintiff,
v.
FAKHR, Defendant.
9:24-CV-1474 (DNH/TWD)
|
Signed December 22, 2025
Attorneys and Law Firms
Brandon Brown, Rome, NY, Pro Se.
Erin P. Mead, Office of the Attorney General, Albany, NY, for Defendant.
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On December 5, 2024, pro se plaintiff Brandon Brown (“plaintiff”) filed this 42 U.S.C. § 1983 action alleging that
defendants violated his rights under the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”). Dkt. No. 1. Because plaintiff had failed to pay the filing fee or move for leave to proceed in forma pauperis (“IFP
Application”), the Court initially directed the Clerk to administratively close the file. Dkt. No. 2.
However, plaintiff later filed an IFP Application, Dkt. Nos. 4, 7, the case was reopened, Dkt. No. 5, and, after an initial review
of plaintiff's pleading, defendant Imam Fakhr was directed to answer certain claims alleged in the complaint. Dkt. No. 8. In
lieu of an answer, defendant filed a motion for summary judgment and/or to dismiss. Dkt. No. 18. Plaintiff was warned of the
consequences of failing to respond to that motion. Dkt. No. 19. But after the Court extended the deadline in which to respond
(at plaintiff's request), Dkt. No. 25, other mailings to plaintiff were returned as undeliverable, Dkt. Nos. 23, 26.
On November 24, 2025, after the motion deadlines expired without any further word from plaintiff, U.S. Magistrate Judge
Thérèse Wiley Dancks advised by Report & Recommendation (“R&R”) that defendant's motion be denied. Dkt. No. 28.
Importantly, however, the R&R ordered plaintiff to notify the Court of his current mailing address by December 19, 2025. Id.
If he failed to do so, the R&R warned plaintiff that “this matter may be sua sponte dismissed for failure to prosecute and failure
to follow Court orders and directives.” Id.
Plaintiff has not lodged objections to the R&R. The time period in which to do so has expired. Nor has he communicated
with the Court or attempted to update his mailing address, which he is required to keep current under the Local Rules. Judge
Dancks repeatedly attempted to warn plaintiff that his failure to keep his address current would result in sanctions, including
the dismissal of this action. Dkt. Nos. 22, 25, 28.
Under Rule 41 of the Federal Rules of Civil Procedure, a trial court may dismiss an action “[i]f the plaintiff fails to prosecute
or to comply with these rules or a court order.” FED. R. CIV. P. 41(b); Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006)
(explaining that “these rules” includes the Federal Rules and a district's local rules of practice). Although the Rule itself speaks
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about a defendant's motion to dismiss, it is “unquestioned that Rule 41(b) also gives the district court authority to dismiss a
plaintiff's case sua sponte for failure to prosecute.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).
Of course, the outright dismissal of a case is a “harsh remedy to be utilized only in extreme situations,” U.S. ex rel. Drake v.
Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004), and courts should be particularly hesitant to dismiss a pro se litigant's case
for simple procedural deficiencies, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
*2 Even so, the authority to dismiss an action that a litigant—even a pro se one—has failed to prosecute “is vital to the efficient
administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts.” Lyell
Theatre Corp. v. Loews Corp., 683 F.3d 37, 42 (2d Cir. 1982). To determine whether dismissal instead of some lesser sanction
is warranted, a district court must weigh:
(1) whether the plaintiff “caused a delay of significant duration”;
(2) whether the plaintiff was “given notice that further delay would result in dismissal”;
(3) whether the defendant was “likely to be prejudiced by further delay”;
(4) whether dismissal would balance “the need to alleviate court calendar congestion ... against [the] plaintiff's right to an
opportunity for a day in court”; and
(5) whether lesser sanctions would be effective.
Drake, 375 F.3d at 254. “No single factor is generally dispositive.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014)
(per curiam).
Measured against this general legal standard, this action must be sua sponte dismissed. First off, plaintiff has caused a significant
delay. He has failed to communicate with the Court since at least June 16, 2025. Dkt. No. 21. Judge Dancks extended the
response deadline for the pending motion and repeatedly ordered plaintiff to update his address. This delay, which amounts to
over four months and is now approaching six, is “presumptive evidence of lack of prosecution,” N.D.N.Y. L.R. 41.2(a), and
courts regularly find that this factor weighs in favor of dismissal where the delay stretches beyond five or six months, Sessoms
ex rel. V.C. v. Comm'r of Soc. Sec., 2022 WL 511646, at *1 (E.D.N.Y. Feb. 21, 2022) (collecting cases).
Second, plaintiff has been given ample notice and warning that continued delay would result in dismissal. Judge Dancks
repeatedly ordered plaintiff to bring his address current. These orders were served at the address plaintiff left on file with the
Court. Although these mailings bounced back, Dkt. Nos. 23, 26, this Court specifically instructed plaintiff at the outset of this
action that he was “required to promptly notify, in writing, the Clerk's Office and all parties or their counsel of any change” in
his address and cautioned plaintiff that “failure to do so may result in the dismissal of this action.” Dkt. No. 8.
Notably, the warning from this Court did not bounce back. But even if, in light of these repeated mailings, plaintiff still did
not receive actual notice of the filings instructing him to update his address, the “responsibility for that miscommunication lies
with [him].” Sessoms, 2022 WL 511646, at *2.
Third, defendant is likely to be prejudiced by any further delay, which has already stretched well into a sixth month. Courts
generally presume that the defendant is likely to suffer prejudice when, as here, plaintiff has caused an “unreasonable delay.”
LeSane, 239 F.3d at 209; Lyell Theatre Corp., 682 F.2d at 43 (“Prejudice to defendants resulting from unreasonable delay may
be presumed.”).
Fourth, the need to alleviate calendar congestion and move cases toward trial outweighs plaintiff's right to receive a further
chance to be heard in this case. Fifth and finally, lesser sanctions would be effective. Plaintiff has been granted IFP status, which
means he almost certainly cannot afford any kind of monetary sanction (conditional, nominal, or otherwise).
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*3 More importantly, plaintiff has been unresponsive in this matter since at least June. He has not responded to any of the
Court's orders, instructions, or directives. There is no indication under these circumstances that a lesser sanction than dismissal
(a sanction that would necessarily come in the form of a further order) would prompt a different outcome (or even be received
in light of plaintiff's ongoing failure). See, e.g., Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2008).
Accordingly, even accounting for plaintiff's pro se status, the relevant factors weigh strongly in favor of dismissal with prejudice
for a failure to prosecute.
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 28) is ACCEPTED;
2. Defendant's motion for summary judgment (Dkt. No. 18) is DENIED; and
3. Plaintiff's complaint is DISMISSED for failure to prosecute.
The Clerk of the Court is directed to terminate the pending motions, enter a judgment accordingly, and close the file.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 3706693
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2025 WL 777268
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Stanley HARDEE, Plaintiff,
v.
Correctional Officer J. THOMAS, et al., Defendants.
9:23-cv-1142 (LEK/TWD)
|
Signed February 13, 2025
Attorneys and Law Firms
STANLEY HARDEE, Plaintiff, pro se, 13-A-0433, Otisville Correctional Facility, Box 8, Otisville, NY 10963.
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 Honorable Lawrence E. Kahn, Senior United
States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Stanley Hardee (“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 alleging, while he was incarcerated at Eastern Correctional
Facility (“Eastern CF”), Defendants Correctional Officer Jeffrey Thomas, John Doe #1, and John Doe #2, violated his Eighth
Amendment Rights. See generally, Dkt. No. 1. 1 Currently before the Court is Defendant Thomas’ motion for summary
judgment. Dkt. No. 22. For the reasons set forth below, the undersigned recommends Defendant Thomas’ motion be denied
without prejudice.
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.
II. BACKGROUND
Plaintiff commenced this action by filing his complaint, along with an application to proceed in forma pauperis (“IFP”), with the
U.S. District Court for the Southern District of New York on August 30, 2023. See Dkt. Nos. 1, 3. On August 31, 2023, the Hon.
Laura Taylor Swain, Chief United States District Judge, transferred the action to this District. See Dkt. No. 4. By Order dated
November 27, 2023, Judge Kahn granted Plaintiff's IFP application and found Plaintiff's: (1) “Eighth Amendment excessive
force and failure-to-intervene claims against Defendants Thomas, John Doe #1, and John Doe #2,” and (2) “medical indifference
claims against Defendants Thomas, John Doe #1, and John Doe #2,” arising from an incident occurring on November 4, 2022,
were sufficient to survive initial review. Dkt. No. 9 at 13.
Counsel subsequently appeared on behalf of Defendant Thomas. Dkt. No. 19. On May 31, 2024, Defendant Thomas filed a
motion for summary judgment, alleging Plaintiff failed to exhaust his administrative remedies before commencing this action.
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See generally, Dkt. No. 22. Defendant asserted Plaintiff: (1) was housed at Eastern CF from before the November 4, 2022,
incident, “until November 28, 2022;” (2) “did not file any facility-level grievances at Eastern between the time period of
November and December of 2022;” and (3) “did not file any grievances related to claims in this action against Defendant
Thomas.” Dkt. No. 22-1 at 2 (emphasis added).
On June 27, 2024, Plaintiff filed his response in opposition to Defendant Thomas’ motion. See generally, Dkt. No. 28. In his
sworn affidavit included therein, Plaintiff asserted, following the November 4, 2022, incident, he “woke up in Eastern CF's
Infirmary” and “asked for grievance forms multiple times, and did not receive any.” Id. at 17-18. Once he was able to obtain a
pen and paper, Plaintiff “wrote out a grievance on plain paper, because staff refused to give me a grievance form” and “handed
the grievance to a correction officer, within 7 days of the incident.” Id. at 18. Plaintiff was moved from Eastern CF to Adirondack
Correctional Facility (“Adirondack CF”) on November 28, 2022, and,
*2 While at Adirondack CF, I asked multiple staff members about my pending grievance complaining
about being assaulted by DOCCS staff. I was told that no grievance was pending. I was directed to write
a new grievance at Adirondack CF. I wrote a new grievance, gave it to a correction officer, and within a
few days a Sergeant interviewed me about my assault complaint.
Id. The Superintendent subsequently issued a decision on Plaintiff's grievance and provided him “2 original appeal forms to fill
out. Which I did. I put 1 original copy of the appeal in the mailbox, and saved an original copy for myself.” Id. at 18-19.
Plaintiff included the copy of the appeal form he saved as an exhibit in his response. See id. at 20. The attached document contains
a grievance number of “ADK-0091-22,” filed “12/7/2022,” and states, in part, “the grievant's allegations are unsubstantiated and
there is no evidence of staff malfeasance.” Id. The grievance response document appears to have been signed by the facility's
Superintendent and dated “01/03/2023.” Id. In the portion of the form designated “appeal statement,” it appears Plaintiff printed
“I wish to Appeal the Decision,” signed the document, and indicated a date of “12/8/2022.” Id. Plaintiff further affirmed he
“waited over 8 months for C.O.R.C. to make a final decision on my grievance,” 2 but ultimately did not receive a decision prior
to commencing this action. Id. at 19.
2 “C.O.R.C.” appears to refer to the Central Office Review Committee.
Defendant Thomas submitted a reply on July 8, 2024. See generally, Dkt. No. 31. In the letter in further support of his motion
for summary judgment, the Defendant avers, “[w]hile it is true that Plaintiff filed a grievance at Adirondack after the twenty-
one days to file a grievance expired, it was only accepted because Plaintiff told Adirondack's IGPS that he attempted to file
the grievance at Eastern, but was unsuccessful.” 3 Id. at 1. Defendant asserts “Adirondack's Superintendent issued a response
on January 3, 2023 .... [and,] Plaintiff did not appeal the response, despite his claim that he did.” Id. at 2. The Defendant
further argues “Plaintiff's purported ‘appeal,’ submitted as Exhibit 2 in his opposition papers, is dated December 8, 2022 –
the day after the grievance was filed, and approximately one month before the Superintendent's response that was purportedly
appealed was issued,” therefore, “the Court should disregard Plaintiff's claim that he appealed his grievance to CORC, and that
his administrative remedies were unavailable to him.” Id. (emphasis in original, citation omitted).
3 “IGPS” refers to the Incarcerated Grievance Program Supervisor. See Dkt. No. 31 at 1.
The Defendant also submitted with his reply a declaration from Erin Kulzer, who began serving as Acting Incarcerated Grievance
Program Supervisor at Adirondack Correctional Facility in June of 2023. See generally, Dkt. No. 31-1. Kulzer affirmed “a
review of the records maintained in the regular course of business by DOCCS indicates that, on December 7, 2022, Plaintiff
filed a grievance related to his claims in this action at Adirondack,” which was assigned “grievance number ADK-0091-22,” and
“processed as normal.” Id. at 3. “A copy of the grievance packet” was included in Kulzer's declaration. See id. at 6-21. Kulzer
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asserts “[f]ollowing the completion of the investigation, the Superintendent's office issued a response to Plaintiff's grievance on
January 3, 2023,” which was “mailed to Plaintiff at Clinton Correctional Facility,” where he was housed as of that date. Id. at 3.
Kulzer states, by the language contained on the appeal form, “Plaintiff was advised that he needed to return the executed appeal
statement to Adirondack, the facility where the grievance was filed. Had he done so, a copy of the appeal statement would have
appeared in our records. It does not.” Id. at 4. Therefore, “[b]ased upon my review of the file, Plaintiff did not appeal a facility-
level grievance determination to CORC related to any of the above-mentioned issues connected to the claims in this action.” Id.
III. LEGAL STANDARD
A. Summary Judgment
*3 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.
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.”).
B. 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
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are exhausted.” 42 U.S.C. § 1997e(a). “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).
*4 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). Furthermore, “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 Program (“IGP”), set forth in 7 N.Y.C.R.R. § 701 et seq.
Generally, the DOCCS IGP involves the following procedure for the filing of grievances. First, an
inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged
occurrence. [7 N.Y.C.R.R.] § 701.5(a). A representative of the facility's 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, the full IGRC conducts a hearing within
sixteen calendar days of receipt of the grievance and issues a written decision within two working days of
the conclusion of the hearing. Id. §§ 701.5(b)(2), (3). Second, a grievant may appeal the IGRC decision
to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. §
701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue),
the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's
appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to
the central office review committee (“CORC”) for a decision under the process applicable to the third
step. Id. § 701.5(c)(3)(i). Third, a grievant may appeal to CORC within seven working days of receipt of
the superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Hudson v. Kirkey, No. 9:20-CV-00581 (LEK/DJS), 2023 WL 2324988, at *3 (N.D.N.Y. Mar. 2, 2023) (additional citation
omitted); see also Torres v. Carry, 672 F. Supp. 2d 338, 344 (S.D.N.Y. 2009) (explaining exhaustion of the grievance procedure
only occurs after CORC has rendered its decision).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory
exhaustion.” Ross, 578 U.S. at 642. Specifically, the exhaustion requirement contained in § 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:
[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,
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practically speaking, incapable of use .... And finally, ... when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or intimidation.
*5 Id. at 643-44. In these situations, exhaustion is not required. Additionally, the Second Circuit has observed “the three
circumstances discussed in Ross do not appear to be exhaustive ....” Williams v. Correction Officer Priatno, 829 F.3d 118, 124
n.2 (2d Cir. 2016).
IV. ANALYSIS
“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 administrative remedies at the various DOCCS facilities where Plaintiff
was housed following the alleged Eastern CF incident. Because this record “could be made clearer following full discovery ...
denial of the Motion at this time is appropriate.” Smith v. Jaynes, No. 9:18-CV-1107 (DNH/DJS), 2020 WL 1149856, at *4
(N.D.N.Y. Feb. 4, 2020), report and recommendation adopted, 2020 WL 1140665 (N.D.N.Y. Mar. 9, 2020).
Plaintiff's assertions regarding his attempts to submit both his initial grievance and the appeal of the Adirondack CF
Superintendent's denial of his alleged second grievance present distinct questions of fact that should not be resolved at this
juncture. See, e.g., Tillman v. Phillips, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5233308, at *9 (N.D.N.Y. Nov. 10, 2021)
(explaining, even “[w]here a defendant correctly notes that a plaintiff's versions of events are not completely consistent, this
Court, at the summary judgment stage, will not weigh in on the factual dispute or make credibility determinations .... Therefore,
as the exhaustion determination hinges on the question of plaintiff's credibility ... summary judgment is not warranted ....”)
(internal quotations and citations omitted), report and recommendation adopted, 2021 WL 5768393 (N.D.N.Y. Dec. 6, 2021).
“While the Court has the ability to order an exhaustion hearing, ... 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) (citing Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011)), report and
recommendation adopted, 2024 WL 4986160 (N.D.N.Y. Dec. 5, 2024); see also, e.g., Smith, 2020 WL 1149856, at *4.
Accordingly, the undersigned recommends Defendant Thomas’ motion be denied as premature. See, e.g., Smith, 2020 WL
1149856, at *4; Croney, 2024 WL 5294279, at *4.
V. CONCLUSION
After carefully reviewing the record, the parties’ submissions, and the applicable law, and for the reasons stated herein, it is
hereby
RECOMMENDED that Defendant Thomas’ motion for summary judgment (Dkt. No. 22) be DENIED without prejudice to
renew after discovery has been conducted; 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.
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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).
*6 IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 777268
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2025 WL 773577
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Stanley HARDEE, Plaintiff,
v.
Correctional Officer J. THOMAS, et al., Defendants.
9:23-CV-1142 (LEK/TWD)
|
Signed March 11, 2025
Attorneys and Law Firms
Stanley Hardee, Otisville, NY, Pro Se.
Olivia R. Cox, Anthony Huntley, Nicholas W. Dorando, Office of the Attorney General, Albany, NY, for Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Stanley Hardee brings this pro se action pursuant to 42 U.S.C. § 1983 against Defendant Correctional Officer J.
Thomas and two John Does, alleging that Defendants violated his constitutional rights. Dkt. No. 1. Defendant Thomas filed
a motion for summary judgment, arguing that Plaintiff failed to exhaust his available administrative remedies. Dkt. No. 22
(“Motion”). On February 13, 2025, the Honorable Thérèse Wiley Dancks, United States Magistrate Judge, issued a report and
recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), recommending the Motion be denied. Dkt. No. 35
(“Report and Recommendation”).
No party has filed objections to the Report and Recommendation. For the reasons that follow, the Court adopts the Report and
Recommendation in its entirety.
II. BACKGROUND
The Court assumes familiarity with the factual background detailed in the Report and Recommendation. See R. & R. at 2–5.
In her analysis, Judge Dancks noted that summary judgment should rarely be granted against a plaintiff before they have an
opportunity to conduct discovery. Id. at 9 (quoting Hellstrom v. U.S. Dep't of Veterans Affairs., 201 F.3d 94, 97 (2d Cir. 2000)).
Judge Dancks stated that “the record is, at best, incomplete as to the availability of administrative remedies at the various DOCCS
facilities where Plaintiff was housed.” Id. As such, Judge Dancks found that “Plaintiff's assertions regarding his attempts to
submit both his initial grievance and the appeal ... present distinct questions of fact that should not be resolved at this juncture.”
Id. at 10. Judge Dancks thus recommended the Motion be denied and the case proceed to discovery. Id. at 11.
III. LEGAL STANDARD
“Within fourteen days after being served with a copy [of the Magistrate Judge's report and recommendation], any party may serve
and file written objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)
(1)(C); see also L.R. 72.1. However, if no objections are made, a district court need only review a report and recommendation
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for clear error. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009) (“The district court may adopt those
portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent
from the face of the record.”). Clear error “is present when upon review of the entire record, the court is left with the definite
and firm conviction that a mistake has been committed.” Rivera v. Fed. Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y.
2019) (cleaned up). Upon review, a court “may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
IV. DISCUSSION
No party objected to the Report and Recommendation within fourteen days after being served with a copy of it. Accordingly,
the Court reviews the Report and Recommendation for clear error. See DiPilato, 662 F. Supp. 2d at 339. Having found none,
the Court approves and adopts the Report and Recommendation in its entirety.
V. CONCLUSION
*2 Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No. 35, is APPROVED and ADOPTED in its entirety; and it is
further
ORDERED, that the Motion for summary judgment, Dkt. No. 22, is DENIED; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local
Rules.
IT IS SO ORDERED.
All Citations
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James A. ADAMS, Plaintiff,
v.
C.O. M. BERKMAN, et al., Defendants.
9:24-cv-0873 (MAD/TWD)
|
Signed July 11, 2025
Attorneys and Law Firms
JAMES A. ADAMS, Plaintiff, pro se, 20-B-1052, Sing Sing Correctional Facility, 354 Hunter Street, Ossining, NY 10562.
CHI-HSIN E. ENGELHART, ESQ., NEW YORK STATE ATTORNEY GENERAL, Counsel for Defendants, NYS Office of
The Attorney General, State Capitol, Albany, NY 12224.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
*1 This matter was referred for a report and recommendation by the Honorable Mae A. D'Agostino, United States District
Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently before the Court is Defendants’ motion for summary
judgment, in lieu of an answer, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. No. 18. For the reasons set
forth below, the undersigned recommends Defendants’ motion be denied without prejudice.
II. BACKGROUND 1
1 Citations to the parties’ submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing
system. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively
numbered paragraphs. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the
original and errors in spelling, punctuation, and grammar have not been corrected.
Pro se plaintiff James A. Adams (“Plaintiff”), an incarcerated individual in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”), brings this civil rights action pursuant to 28 U.S.C. § 1983 asserting
allegations of wrongdoing that occurred while he was housed at the Franklin Correctional Facility (“Franklin”). Dkt. No. 1. The
following facts are set forth as alleged by Plaintiff in his complaint.
On December 29, 2022, at approximately 7:35 a.m., Plaintiff “entered the messhall for breakfast[.]” Id. at 4. While Plaintiff was
waiting in line, he questioned the incarcerated individual serving cereal about whether he was serving half or whole “scoop[s.]”
Id. Plaintiff was then approached by a civilian cook (not a party) who told Plaintiff he was “lucky” she was not serving breakfast
because she would have given him less food. Id. Plaintiff “told [the civilian cook] like whatever” and walked to his table to sit. Id.
As Plaintiff was preparing to sit, defendants Corrections Officer Berkman, Corrections Officer Buckley, Corrections Officer
John Doe #1, and Corrections Officer John Doe #2 approached and told Plaintiff to leave the messhall. Id. As Plaintiff was
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exiting the messhall, he was told to place his hands on the wall. Id. After Plaintiff complied with the directive, the four corrections
officials “punch[ed]” him in the face, “pulled [him] to the ground and kicked and stomp[ed]” him on the knee. Id.
The Court reviewed the complaint in accordance with 28 U.S.C. §§ 1915 and 1915A and found Plaintiff's Eighth Amendment
excessive force and failure to intervene claims against defendants Berkman, Buckley, John Doe #1, and John Doe #2 survived
initial review and required a response. Dkt. No. 11 at 6-7, 10-11. Counsel subsequently appeared on behalf of defendants Michael
Berkman and Patrick Buckley (“Defendants”). Dkt. No. 21.
On November 25, 2024, Defendants filed a motion for summary judgment in lieu of an answer. Dkt. No. 24. Defendants have
submitted a memorandum of law alleging Plaintiff failed to exhaust his administrative remedies before commencing this action,
Dkt. No. 24-5, a Local Rule 56.1(a) statement, Dkt. No. 24-4, and supporting exhibits, Dkt. Nos. 24-2, 24-3. In response to
Defendants’ motion, Plaintiff submitted a memorandum of law with exhibits. Dkt. No. 30. Defendants filed a reply. Dkt. No. 31.
*2 In support of their motion, Defendants submit sworn declarations from Rachel Seguin, the Director of the Incarcerated
Grievance Program (“IGP”) for DOCCS, Dkt. No. 24-2, and Donna Wilcox, the Supervisor of the IGP at Franklin, Dkt. No.
24-3, which describe DOCCS’ administrative exhaustion process.
As detailed therein, at all relevant times, incarcerated individuals at Franklin were provided with full access to the IGP. Dkt.
Nos. 24-2 at ¶ 11, 24-3 at ¶ 19. Plaintiff's claims that Defendants used excessive force on him are the proper subject for a
grievance. Dkt. Nos. 24-2 at ¶ 10, 24-3 at ¶ 18. DOCCS records maintained at Franklin and the Central Office Review Committee
(“CORC”) show Plaintiff did not file a grievance as to any incident of excessive force which took place on December 29, 2022,
nor was a grievance appealed to CORC. Dkt. No. 24-2 at ¶ 13, 24-3 at ¶ 23. Thus, Defendants contend summary judgment is
warranted and Plaintiff's Eighth Amendment excessive force and failure to intervene claims are subject to dismissal for failure
to exhaust administrative remedies before commencing this action. Dkt. Nos. 24-2 at ¶ 15, 24-3 at ¶ 26, 24-5 at 5-9.
In his opposition submission, Plaintiff appears to raise two arguments. See generally Dkt. No. 31. Plaintiff argues administrative
remedies were not available to him because on January 4, 2023, while housed in the SHU at Franklin, Plaintiff filed two
grievances “but did not get a response.” Id. at 2, 4. Plaintiff also maintains he exhausted the administrative remedies that were
“available” to him because after not hearing back, he followed the “second step” and appealed to the superintendent on January
12, 2023, and then “followed up” and “appealed” to CORC. Id. at 4, 5, 11. He “also appealed the grievance at Franklin” and
“at the Upstate Correctional Facility” (“Upstate”). Id. at 4. On February 14, 2023, after not hearing back again, Plaintiff wrote
a letter to CORC appealing the Superintendent's Response. Id. at 4, 6-7. Plaintiff attaches a “copy of his appeals that he sent to
the (CORC) along with his complaint that was also sent to (CORC) that was mailed on 2-14-23.” Id. at 5, see id. at 6-7. Plaintiff
eventually received correspondence from CORC that on March 17, 2023, the Superintendent's Hearing of January 12, 2023,
was affirmed. Id. at 4, 10. The Superintendent's Hearing of February 2, 2023, at Upstate was affirmed on April 7, 2023. Id. at 9.
In their reply, Defendants argue Plaintiff conflates an appeal of his purported grievance with an appeal of his disciplinary
disposition. Dkt. No. 31 at 3. Defendants reason a “plain reading” of the evidence Plaintiff contends purports to demonstrate
his appeal of the alleged grievance was instead an appeal of the Superintendent's Hearing conducted on January 12, 2023, at
Franklin related to the December 29, 2022, incident. Id. at 3-5; see Dkt. No. 30 at 9, 11. Defendants maintain “[s]uch submission
not only establishes that Plaintiff was able to appeal administrative proceedings inside the facility but also shows that, rather than
being unable to appeal an alleged grievance, Plaintiff simply did it wrong. And Plaintiff's mistaken belief as to how to appeal a
grievance does not relinquish the statutory requirement that he properly exhaust his administrative remedies.” Dkt. No. 31 at 5.
*3 Moreover, to the extent Plaintiff claims the “grievance wasn't available to him when he filed a grievance at the Franklin
Corr Facility,” Dkt. No. 30 at 4, Defendants note “such claim is internally inconsistent with his claims of actual appeals and
wholly conclusory without any ‘documentary evidence’ or ‘minimal corroborative details.’ ” Dkt. No. 31 at 6. Accordingly,
Defendants argue summary judgment should be granted because Plaintiff failed to properly exhaust his administrative remedies
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before commencing this action and, therefore, Plaintiff's Eighth Amendment excessive force and failure to intervene claims
should be dismissed with prejudice. Id.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(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, 106 S.Ct. 2505; 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, 106 S.Ct. 2548.
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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “Conclusory allegations, conjecture and speculation ... are insufficient to create a
genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
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, 106 S.Ct. 2505). 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).
*4 In applying the summary judgment standard, the court should not weigh evidence or assess the credibility of witnesses.
Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)
(“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court
on summary judgment.”).
IV. DISCUSSION
A. 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). 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
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excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Incarcerated
individuals 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, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016).
Furthermore, “the PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct.
2378, 165 L.Ed.2d 368 (2006). In order to properly exhaust his or her administrative remedies, an incarcerated individual must
complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. 199, 218-19,
127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (citing Woodford, 548 U.S. at 81, 126 S.Ct. 2378).
DOCCS has a well-established three-step administrative review process, set forth in 7 N.Y.C.R.R. § 701 et seq.
Generally, the DOCCS IGP involves the following procedure for the filing of grievances. First,
an [incarcerated individual] must file a complaint with the facility's IGP clerk within twenty-one
calendar days of the alleged occurrence. [7 N.Y.C.R.R.] § 701.5(a). A representative of the facility's
[Incarcerated] 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,
the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance and issues
a written decision within two working days of the conclusion of the hearing. Id. §§ 701.5(b)(2),
(3). Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven
calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves
an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a
written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii).
Grievances regarding DOCCS-wide policy issues are forwarded directly to [CORC] for a decision
under the process applicable to the third step. Id. § 701.5(c)(3)(i). Third, a grievant may appeal to
CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)
(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id.
§ 701.5(d)(3)(ii).
*5 Hudson v. Kirkey, No. 9:20-CV-00581 (LEK/DJS), 2023 WL 2324988, at *3 (N.D.N.Y. Mar. 2, 2023) (additional citation
omitted). “If all three of these levels of review are exhausted, then the prisoner may seek relief in federal court pursuant to
section 1983.” Johnson v. Mason, No. 9:22-cv-590 (MAD/CFH), 2024 WL 396679, at *3 (N.D.N.Y. Feb. 2, 2024) (citation
omitted); see also Animashaun v. Toohill, No. 9:21-CV-372 (MAD/TWD), 2025 WL 843771, at *3 (N.D.N.Y. Mar. 18, 2025)
(“Only upon exhaustion of all three levels of review may a prisoner seek relief in federal court.”) (citations omitted); see also
Torres v. Carry, 672 F. Supp. 2d 338, 344 (S.D.N.Y. 2009) (explaining exhaustion of the grievance procedure only occurs after
CORC has rendered its decision).
“There is an expedited procedure for grievances that allege ‘employee harassment,’ that is ‘employee misconduct meant to
annoy, intimate or harm an inmate.’ ” Bradshaw v. Fletcher, No. 9:19-CV-00428 (BKS/TWD), 2021 WL 248236, at *2
(N.D.N.Y. Jan. 26, 2021) (quoting 7 N.Y.C.R.R. §§ 701.8, 701.2(e)). “When the grievance clerk identifies a harassment
grievance, the clerk must forward the grievance to the superintendent on the same day that the grievance was filed.” Williams v.
Correction Officer Priatno, 829 F.3d 118, 119-20 (2d Cir. 2016) (quoting 7 N.Y.C.R.R. § 701.8(b)). Although “such grievances
are forwarded directly to the prison superintendent, bypassing the IGRC review” they still must first be submitted as a grievance
to the grievance clerk. Bradshaw, 2021 WL 248236, at *2 (citing 7 N.Y.C.R.R. § 701.8(b)(c)). The superintendent has twenty-
five days from receipt of the grievance to render a decision, and that decision may be appealed to CORC within seven days
of the receipt of the decision. 7 N.Y.C.R.R. §§ 701.8(f), (h); see also Jackson v. Moore, No. 9:21-CV-1001 (GTS/ATB), 2023
WL 4710869, at *3 (N.D.N.Y. Apr. 14, 2023) (“Complaints of harassment are handled by an expedited procedure which
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provides that such grievances are forwarded directly to the Superintendent of the facility, after which the inmate must appeal any
negative determination to the CORC.”) (citation omitted). Completing the administrative appeal process satisfies the exhaustion
requirement. See Bradshaw, 2021 WL 248236, at *2.
“A plaintiff must exhaust his administrative remedies before filing his initial complaint in federal court.” Lopez v. Cipolini, 136
F. Supp. 3d 570, 582 (S.D.N.Y. 2015); see also Bowie v. Woodruff, No. 9:18-CV-0266 (BKS/ML), 2019 WL 7606078, at *5
(N.D.N.Y. Sept. 20, 2019), report-recommendation adopted, 2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019). “When a prisoner
does not properly exhaust his administrative remedies before filing suit, the action must be dismissed.” Mateo v. Alexander,
No. 08 Civ. 8797, 2010 WL 431718, at *3 (S.D.N.Y. Feb. 9, 2010).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory
exhaustion.” Ross, 578 U.S. at 642, 136 S.Ct. 1850. 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:
*6 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials
may promise) it operates as a simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates .... Next, an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use .... And finally, ... when prison administrators thwart
inmates from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.
Id. at 643-44. In these situations, exhaustion is not required. Additionally, the Second Circuit has observed “the three
circumstances discussed in Ross do not appear to be exhaustive ....” Williams, 829 F.3d at 124 n.2. Whether remedies are
available is “an objective [test]: that is, would a similarly situated individual of ordinary firmness have deemed them available.”
Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311-12 (2d Cir. 2020) (citation omitted).
The failure to exhaust administrative remedies is an affirmative defense. Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59
(2d Cir. 2015) (explaining that defendants bear the burden of proof, but plaintiffs can overcome a showing of non-exhaustion
by putting on their own evidence). Thus, a defendant must first show that a grievance process governs the dispute at issue and
that a plaintiff has failed to exhaust it. Id. In response, a plaintiff can show either exhaustion or unavailability as outlined in
Ross and its progeny. See Booker v. Flint, No. 9:22-CV-600 (AJB/DJS), 2025 WL 1663999, at *3 (N.D.N.Y. June 12, 2025).
B. Analysis
“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 December 29,
2022, incident. There are certainly issues that call for further factual development. Because this record “could be made clearer
following full discovery ... denial of the Motion at this time is appropriate.” Smith v. Jaynes, No. 9:18-CV-1107 (DNH/DJS),
2020 WL 1149856, at *4 (N.D.N.Y. Feb. 4, 2020), report-recommendation adopted, 2020 WL 1140665 (N.D.N.Y. Mar. 9, 2020).
Liberally construed and drawing all reasonable inferences in the non-moving party's favor, Plaintiff's opposition suggests he
submitted two grievances on January 4, 2023, while housed in the SHU at Franklin but the grievances were unfiled and
unanswered. 2 Dkt. No. 4 at 2, 4-5. The Second Circuit has held that when a grievance goes unfiled and unanswered, “the process
to appeal ... is prohibitively opaque such that no inmate could actually make use of it.” Williams, 829 F.3d at 126. The Court
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recognizes Plaintiff has not provided any further evidence substantiating his efforts to file these supposed grievances. 3 In some
instances, as Defendants argue, courts have found such allegations are insufficient to overcome a properly supported motion for
summary judgment. See Dkt. No. 31 at 6 (collecting cases). But unlike the case at bar, those cases were decided after discovery.
2 See McLean v. LaClair, No. 9:19-CV-1227 (LEK/ATB), 2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021) (“Since
the Court is required to draw reasonable inferences in Plaintiff's favor, the Court must infer that the grievance was
never filed because prison authorities did not file it, not because Plaintiff did not submit it.”); Fann v. Graham, No.
15-CV-1339 (DNH/CFH), 2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) (“Viewing the facts in the light most
favorable to plaintiff, the record suggests that plaintiff's grievances were submitted, but were unfiled and unanswered,
creating an issue of fact as to whether the grievance process was available and whether plaintiff attempted to exhaust his
administrative remedies[.]”), report-recommendation adopted, 2018 WL 1399340 (N.D.N.Y. Mar. 19, 2018); Thaxton v.
Simmons, No. 10-CV-1318, 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question of fact exists as to whether
[p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a
timely grievance that was lost or tampered with by [d]efendants. Such credibility assessments are to be resolved by a
trier of fact.”); see also Woodward v. Lytle, No. 9:16-CV-1174 (NAM/DEP), 2018 WL 4643036, at *4-5 (N.D.N.Y. Sept.
27, 2018) (finding an issue of fact as to the availability of the grievance process where plaintiff drafted and submitted
a grievance that was never filed or answered) (collecting cases).
3 Indeed, as Defendants points out, the evidence Plaintiff has submitted strongly suggests Plaintiff appealed the
disciplinary proceeding related to the alleged December 29, 2022, incident. Dkt. Nos. 30 at 6-11, 31 at 4-5. “Though
a disciplinary appeal is sufficient to exhaust a claim that [the p]laintiff was deprived of due process at a disciplinary
hearing, ‘allegations of staff misconduct related to the incidents giving rise to the discipline must be grieved.’ ” Barker
v. Smith, No. 16-CV-76, 2017 WL 3701495, at *3 (S.D.N.Y. Aug. 25, 2017) (quoting Scott v. Gardner, 287 F. Supp.
2d 477, 489 (S.D.N.Y. 2003)).
*7 “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); 4 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).
4 See, e.g., Young-Flynn v. Wright, No. 05-CV-1488, 2007 WL 241332, at *13 (S.D.N.Y. Jan. 26, 2007) (finding summary
judgement premature even where the “Court ha[d] some doubt that Plaintiff's only described efforts toward exhaustion
could ultimately be found sufficient to overcome the exhaustion requirement’ because discovery had not yet been
conducted”); see also Tillman v. Phillips, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5233308, at *9 (N.D.N.Y. Nov.
10, 2021) (explaining, even “[w]here a defendant correctly notes that a plaintiff's versions of events are not completely
consistent, this Court, at the summary judgment stage, will not weigh in on the factual dispute or make credibility
determinations .... Therefore, as the exhaustion determination hinges on the question of plaintiff's credibility ... summary
judgment is not warranted ....”) (internal quotations and citations omitted), report-recommendation adopted, 2021 WL
5768393 (N.D.N.Y. Dec. 6, 2021).
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. Nos. 24-5 at 9, 31 at 7. 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-
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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). 5
5 Recently, the Supreme Court held “that parties are entitled to a jury trial on PLRA exhaustion when that issue is
intertwined with the merits of a claim protected by the Seventh Amendment.” Perttu v. Richards, 605 U.S. 460, 145
S. Ct. 1793, 1800, 222 L.Ed.2d 108 (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.
Accordingly, the undersigned recommends Defendants’ motion for summary judgment be denied without prejudice. See, e.g.,
Smith, 2020 WL 1149856, at *4; Croney, 2024 WL 5294279, at *4.
V. CONCLUSION
After carefully reviewing the record, the parties’ submissions, and the applicable law, and for the reasons stated herein, it is
hereby
RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 24) be DENIED without prejudice and with
leave to renew after discovery has been conducted; 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).
*8 Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing
report. 6 Such objections shall be filed with the Clerk of 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.
6 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-
Recommendation and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that
prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2548797
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James A. ADAMS, Plaintiff,
v.
Michael BERKMAN, Patrick Buckley, John Doe #1, and John Doe #2, Defendants.
9:24-CV-873 (MAD/TWD)
|
Signed August 12, 2025
Attorneys and Law Firms
JAMES A. ADAMS, 20-B-1052, Sing Sing Correctional Facility, 354 Hunter Street, Ossining, New York 10562, Pro se Plaintiff.
CHI-HSIN E. ENGLEHART, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, The Capitol, Albany,
New York 12224, Attorney for Defendants.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Plaintiff filed a pro se complaint in the United States District Court for the Southern District of New York on June 12, 2024,
alleging that Defendants Michael Berkman, Patrick Buckley, and two other corrections officers used excessive force against
Plaintiff and failed to intervene in that use of force while he was incarcerated at Franklin Correctional Facility (“Franklin C.F.”).
See Dkt. No. 1. The case was transferred to this Court on July 12, 2024. See Dkt. No. 4. Plaintiff moved to proceed in forma
pauperis. See Dkt. Nos. 6, 7, 9, 12.
On August 21, 2024, Magistrate Judge Therese Wiley Dancks issued a Decision and Order granting Plaintiff's motion to proceed
in forma pauperis and permitting his Eighth Amendment excessive force and failure-to-intervene claims to proceed. See Dkt.
No. 11. On October 31, 2024, counsel for the named Defendants appeared in the action. See Dkt. No. 21.
On November 25, 2024, Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure,
arguing that Plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act (“PLRA”).
See Dkt. No. 24. Magistrate Judge Dancks stayed Defendants’ answer deadline pending resolution of the motion. See Dkt. No.
25. Plaintiff responded in opposition to the motion, see Dkt. No. 30, and Defendants replied. See Dkt. No. 31.
On July 11, 2025, Magistrate Judge Dancks issued a Report-Recommendation and Order recommending that Defendants’
motion be denied without prejudice and with leave to renew after discovery has been conducted. See Dkt. No. 33. Both parties
filed objections. See Dkt. Nos. 34, 35.
When a party files specific objections to a magistrate judge's report-recommendation, the district court makes 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). However, when a party files “[g]eneral or conclusory objections or objections which merely recite the
same arguments [that he presented] to the magistrate judge,” the court reviews those recommendations for clear error. O'Diah v.
Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). “When performing
such a ‘clear error’ review, ‘the court need only satisfy itself that there is no clear error on the face of the record in order to
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accept the recommendation.’ ” Taylor v. Astrue, 32 F. Supp. 3d 253, 261 (N.D.N.Y. 2012) (quotation and footnote omitted).
After the appropriate review, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
As Plaintiff is proceeding pro se, the Court must review his filings under a more lenient standard. See Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2003). The Court must “make reasonable allowances to protect pro se litigants from inadvertent
forfeiture of important rights because of their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus, “[a]
document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’ ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)). “Although the court has the duty to show liberality towards pro se litigants, ... there is a
responsibility on the court to determine that a claim has some arguable basis in law before permitting a plaintiff to proceed with
an action in forma pauperis.” Moreman v. Douglas, 848 F. Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted).
*2 In a single paragraph, Plaintiff objects to Magistrate Judge Dancks’ recommendation that Defendants’ motion for summary
judgment be dismissed without prejudice and with leave to renew. See Dkt. No. 35. Plaintiff argues the motion should be denied
with prejudice. See id. Plaintiff's objection is wholly conclusory and will be reviewed for clear error. Defendants, however,
raise specific objections to Magistrate Judge Dancks’ Report-Recommendation and Order such that the issues they raise will
be reviewed de novo. See Dkt. No. 34.
Having reviewed the July 11, 2025, Report-Recommendation and Order, the parties’ filings, and the applicable law, the Court
agrees with Magistrate Judge Dancks that Defendants’ motion for summary judgment must be denied without prejudice and
leave to renew.
Magistrate Judge Dancks thoroughly set forth the factual background, legal standard, and statutory framework applicable to
Defendants’ motion. See Dkt. No. 33 at 2-11. Neither party objects to Magistrate Judge Dancks’ recitation of the law and the
facts, the Court finds no clear error in that recitation, and the Court assumes the parties’ familiarity with the same. See Dkt.
Nos. 34, 35.
As to Magistrate Judge Dancks’ conclusion, the Court entirely agrees that Defendants’ motion for summary judgment must
be denied without prejudice and with leave to renew. The Court agrees with Magistrate Judge Dancks that “[v]iewing the
facts in the light most favorable to [P]laintiff, the record suggests that [P]laintiff's grievances were submitted, but were unfiled
and unanswered, creating an issue of fact as to whether the grievance process was available[.]” Fann v. Graham, No. 9:15-
CV-1339, 2018 WL 1399331, *6 (N.D.N.Y. Jan. 11, 2018); see also Dkt. No. 33 at 11-12. Magistrate Judge Dancks also correctly
concluded that it would not be appropriate to order an exhaustion hearing at this time because the parties have not conducted
any discovery. See Dkt. No. 33 at 11-13; see also Hellstrom v. U.S. Dep't of Veterans Affs., 201 F.3d 94, 97 (2d Cir. 2000) (“Only
in the rarest of case may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct
discovery”); Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011); Croney v. Medbury, No. 9:23-CV-1449, 2024 WL 5294279, *4
(N.D.N.Y. Nov. 12, 2024); Hardee v. Thomas, No. 9:23-CV-1142, 2025 WL 777268, *5 (N.D.N.Y. Feb. 13, 2025).
Plaintiff did not discuss the exhaustion of his administrative remedies in his complaint; rather, he only discussed the alleged
December 29, 2022, assault at Franklin C.F. which is the basis for his constitutional claims. See Dkt. No. 1. Defendants did
not answer the complaint and, therefore, did not raise a non-exhaustion affirmative defense. Instead, they moved for summary
judgment on non-exhaustion grounds. See Dkt. No. 24. Defendants submitted a declaration from the Director of the Incarcerated
Grievance Program (the “Director”), wherein the Director attested that Plaintiff did not appeal any grievances related to the
alleged December 29, 2022, assault. See Dkt. No. 24-2. The Director also declared that “Plaintiff has not previously appealed
any grievances to” the Central Office Review Committee (“CORC”). Id. at ¶ 14. Defendants likewise provided the Court with a
declaration from an employee at Franklin C.F. who stated that Plaintiff did not file any grievances related to the alleged assault.
See Dkt. No. 24-3.
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In his response to Defendants’ summary judgment motion, Plaintiff stated he “filed two grievances [a]t the Franklin Correctional
Facility and [n]ever got[ ] a response.” Dkt. No. 30 at 2. Plaintiff explained that he filed a grievance at Franklin C.F. while he
was housed in the Special Housing Unit (“SHU”) and appealed to the Superintendent on January 12, 2023, when he did not
receive a response. See id. at 4. He asserts he “also appealed the Superintendent[’s] response at the Upstate Correctional Facility
[(“Upstate C.F.”)] on February 2, 2023.” Id. Later in his response, Plaintiff specifies that he filed an initial grievance on January
4, 2023. See id. at 5. He states he mailed his “appeals” to CORC on February 14, 2023. Id.
*3 Plaintiff attached to his response a handwritten letter to CORC at Upstate C.F., dated February 14, 2023, wherein he
discusses the alleged assault at Franklin C.F. on December 29, 2022. See id. at 6. In the letter, Plaintiff states, “I grievance [sic]
this issue at Franklin Correctional Facility. I filed two grievance [sic] at Franklin Corr. and I didn't get no [sic] response back.
I also appeal [sic] to the Superintendent at the Franklin Corr. Facility and I haven't gotten a response back.” Id. at 7. Plaintiff
provided the Court with a copy of two decisions reviewing Superintendent's hearings, see id. at 9-10, and an appeal concerning
a Superintendent's hearing. See id. at 11.
Defendants object to Magistrate Judge Dancks’ conclusion that this information provided by Plaintiff is sufficient to deny
Defendants’ summary judgment motion. See Dkt. No. 34. Defendants argue there is “no dispute that a grievance was never filed
or appealed to CORC concerning the alleged excessive force incident on December 29, 2022.” Id. at 5. Defendants contend
that despite Plaintiff being given notice and an opportunity to respond regarding exhaustion, “[c]onspicuously missing from the
additional evidence submitted by Plaintiff are any copies of the grievances he allegedly filed on January 4, 2023, at Franklin
Correctional Facility, or regulation-compliant grievance appeals.” Id. at 7. They argue that Plaintiff's response “plainly shows
that he conflated the grievance process with the administrative appeal of his disciplinary hearings, and he did not properly file
a grievance regarding the allegations in this case.” Id. at 8. Defendants fault Plaintiff for not having “any copies of paperwork
associated with the grievance program at all.” Id. at 9. Alternatively, Defendants argue that if the Court disagrees with them and
denies their motion, then discovery should be limited to only the exhaustion issue and a hearing should be held. See id. at 10.
“Although failure to exhaust administrative remedies is an affirmative defense and inmates are not required to specially plead or
demonstrate exhaustion in their complaints, ... [d]ismissal for failure to exhaust is appropriate when on the face of the complaint,
it is clear that a plaintiff did not exhaust administrative remedies[.]” Blackwood v. Westchester Cnty., No. 23-CV-1297, 2024 WL
4290251, *4 (S.D.N.Y. Sept. 25, 2024), appeal dismissed (Dec. 2, 2024) (quoting Valde-Cruz v. Russo, No. 20-CV-9240, 2024
WL 809903, *5 (S.D.N.Y. Feb. 27, 2024)) (additional quotations and quotation marks omitted); see also Donohue v. Manetti by
Armor Corr. Health Servs., No. 2:15-CV-636, 2025 WL 974347, *9 (E.D.N.Y. Mar. 31, 2025) (“The Second Circuit has held
that the defense of failure to exhaust available administrative remedies is an affirmative defense that is waivable, specifically
under the PLRA”) (citing Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004)).
“[W]here ... nonexhaustion is not clear from the face of the complaint, a defendant's motion to dismiss should be converted
to one for summary judgment limited to the narrow issue of exhaustion ... or whether exhaustion might be, in very limited
circumstances, excused.” Blackwood, 2024 WL 4290251, at *6 (quoting Hall v. Annucci, No. 19-CV-5521, 2021 WL 4392526,
*10 (S.D.N.Y. Sept. 24, 2021)) (additional quotations and quotation marks omitted). “[I]n the context of exhaustion under the
PLRA, courts usually insist upon limited discovery before converting a 12(b)(6) motion into a motion for summary judgment.”
Id. “ ‘Discovery is not necessary, however, when the facts regarding plaintiff's efforts at exhaustion are not disputed, and it does
not appear that any amount of discovery would change the outcome.’ ” Id. (quoting Gottesfeld v. Anderson, No. 18-CV-10836,
2020 WL 1082590, *7 (S.D.N.Y. Mar. 6, 2020)).
*4 Nevertheless, “ ‘[s]ince summary judgment is a drastic device, it should not be granted when there are major factual
contentions in dispute. This is particularly so when ... one party has yet to exercise its opportunities for pretrial discovery.’ ”
Johnson v. Mason, No. 9:22-CV-590, 2024 WL 396679, *6 (N.D.N.Y. Feb. 2, 2024) (quoting Nat'l Life Ins. Co. v. Solomon,
529 F.2d 59, 61 (2d Cir. 1975)) (citations and quotation marks omitted). “ ‘[S]ummary judgment should only be granted if after
discovery, the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to
which [it] has the burden of proof.’ ” Id. (quoting Ass'n of Car Wash Owners Inc. v. City of New York, 911 F.3d 74, 83 (2d Cir.
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2018)) (additional quotation omitted). “ ‘The nonmoving party must have “had the opportunity to discover information that is
essential to his opposition” to the motion for summary judgment.’ ” Id. (quoting Trebor Sportswear Co. v. The Ltd. Stores, Inc.,
865 F.2d 506, 511 (2d Cir. 1989)) (additional quotation and quotation marks omitted).
In their summary judgment motion, Defendants did not argue that “on the face of the complaint, it is clear that a plaintiff did
not exhaust administrative remedies[.]” Blackwood, 2024 WL 4290251, at *4 (quotation and quotation marks omitted); see
also Dkt. No. 24-5. Defendants argued in their reply that Plaintiff's response to their motion was “wholly conclusory without
any ‘documentary evidence’ or ‘minimal corroborative details.’ ” Dkt. No. 31 at 6 (citations omitted). However, without an
opportunity to conduct limited discovery, it is generally more difficult for a pro se plaintiff to submit sufficient evidence to
rebut a counseled motion.
In their objections, Defendants assert “[e]ither Plaintiff deliberately failed to attach them, or he could not do so because he
did not have such copies. Likewise, further discovery would not change the fact that there are no grievances or appeals on file
related to Plaintiff's claim of excessive force on December 29, 2022.” Dkt. No. 34 at 9. Defendants have not presented any case
law which stands for the proposition that a genuine dispute of fact will only be raised if a plaintiff files copies of his purported
grievance(s). See id. at 8-9.
Defendants are correct “that a district court may issue a ‘sua sponte dismissal of [a prisoner's] complaint for failure to exhaust
his administrative remedies’—even ‘before [the] defendants were served’—as long as it provides the [incarcerated individual]
‘notice and an opportunity to respond.’ ” Moore v. Booth, 122 F.4th 61, 68-69 (2d Cir. 2024) (quoting Mojias v. Johnson, 351
F.3d 606, 608-11, n.1 (2d Cir. 2003)); see also Dkt. No. 34 at 4. However, the Second Circuit has found a dispute of fact where
“the plaintiff alleged that, while housed in the SHU, he drafted a grievance that he delivered to a correction officer to forward
to the grievance office on his behalf,” “the plaintiff was transferred to a different facility,” and “the plaintiff in Williams also
supported his allegation of unavailability ‘by providing the court with the date he filed the grievance, the procedure for how
he filed it, and the timeline for roughly when [ ] subsequent follow-up conversations occurred.’ ” Smith v. Dodge, No. 9:18-
CV-1066, 2022 WL 19771697, *9 (N.D.N.Y. Jan. 19, 2022) (quotation omitted); see Williams v. Corr. Officer Priatno, 829
F.3d 118, 120-21 (2d Cir. 2016).
Here, Plaintiff responded to Defendants’ motion with a copy of an appeal he submitted to CORC which referenced two prior
grievances he filed while housed in the SHU. See Dkt. No. 30 at 6-7. This directly conflicts with Defendants’ motion which
contains affidavits attesting that Plaintiff has never filed a single appeal with CORC. See Dkt. No. 24-2 at ¶ 14. This creates a
genuine dispute as to whether Plaintiff filed any grievances or appeals concerning the alleged assault.
*5 Both Magistrate Judge Dancks and Defendants note that Plaintiff's reference to, and exhibit regarding, Superintendent's
hearings, are irrelevant to the grievance procedure. See Dkt. No. 33 at 4; Dkt. No. 34 at 8. This Court agrees. See Labounty
v. Johnson, 253 F. Supp. 2d 496, 501 (W.D.N.Y. 2003) (“An appeal from a disciplinary hearing does not satisfy the grievance
exhaustion requirement for an Eighth Amendment claim, even if the hearing is based on the same set of facts underlying the
grievance”) (collecting cases). However, Plaintiff's statements in his response, claiming that he filed grievances concerning the
alleged assault, and his attached appeal to CORC stating that he filed grievances, is enough for Plaintiff, as a pro se incarcerated
individual, to raise a genuine dispute as to whether he exhausted available administrative remedies.
It is also noteworthy that Plaintiff stated in his response that he was in the SHU at the time he purportedly filed his grievances
at Franklin C.F. See Dkt. No. 30 at 4. “The court recognizes that an inmate-plaintiff's ability to process his grievances are
curtailed to some extent while confined to the SHU.” Simpson v. Price, No. 9:19-CV-1413, 2021 WL 7367083, *9 (N.D.N.Y.
Dec. 29, 2021) (citing Rodriguez v. Cross, No. 15-CV-1079, 2017 WL 2791063, *7 (N.D.N.Y. May 9, 2017)). Defendants do
not acknowledge this. See Dkt. Nos. 24-5, 34.
Based on the foregoing, the Court concludes that Plaintiff has raised a genuine dispute that forecloses Defendants’ summary
judgment motion at this juncture. None of this is to say that Defendants cannot be successful on their exhaustion argument. As
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Magistrate Judge Dancks stated, “Plaintiff has not provided [ ] further evidence substantiating his efforts to file these supposed
grievances.... In some instances, as Defendants argue, courts have found such allegations are insufficient to overcome a properly
supported motion for summary judgment.” Dkt. No. 33 at 12 (citation and footnote omitted). However, “those cases were
decided after discovery.” Id.
The Court recognizes Defendants’ efforts to comply with its previous guidance “that exhaustion issues be ‘raised at the earliest
possible moment,’ ” Dkt. No. 34 at 5 (quoting Animashaun v. Toohill, No. 9:21-CV-372, 2025 WL 843771, *8 (N.D.N.Y. Mar.
18, 2025)), but the Second Circuit has instructed that “ ‘summary judgment [should] be refused where the nonmoving party has
not had the opportunity to discover information that is essential to his opposition.’ ” Elliott v. Cartagena, 84 F.4th 481, 493 (2d
Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). As Defendants acknowledge, it is common
practice in district courts across the Second Circuit to permit parties to conduct limited discovery on the issue of exhaustion in
cases filed by incarcerated individuals. See Dkt. No. 34 at 10; see, e.g., Allah v. Switz, No. 14-CV-5970, 2017 WL 519269, *5
(S.D.N.Y. Feb. 8, 2017); Jones v. Sposato, No. 16-CV-5121, 2017 WL 4023135, *6 (E.D.N.Y. Aug. 22, 2017); Sweet v. Wende
Corr. Facility, 253 F. Supp. 2d 492, 496 (W.D.N.Y. 2003). Therefore, it might be more efficient for the parties and the Court,
and fairer to pro se litigants, if an affirmative exhaustion defense is raised first in an answer, followed by a prompt request to
conduct limited discovery on the exhaustion issue prior to moving for summary judgment.
In this case, the Court agrees with Magistrate Judge Dancks that the pro se Plaintiff has raised a dispute sufficient to deny
Defendants’ summary judgment motion, but that leave to renew after discovery is warranted. Plaintiff's argument that his “claims
of exhaustion and unavailability are substantiated and” the motion should be denied with prejudice is incorrect. Dkt. No. 35
at 1. Plaintiff has submitted enough information to raise a question about whether administrative remedies were available to
him and whether he exhausted those remedies. He has not, however, established as a matter of law, that he did exhaust his
administrative remedies.
*6 Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks’ Report-Recommendation and Order (Dkt. No. 33) is ADOPTED in its entirety; and
the Court further
ORDERS that Defendants’ motion for summary judgment (Dkt. No. 24) is DENIED with leave to renew; and the Court further
ORDERS that the case be referred to Magistrate Judge Dancks to reset Defendants’ answer deadline and facilitate the
completion of discovery on the limited issue of exhaustion; and the Court further
ORDERS that, at such time as discovery on the exhaustion issue has been completed, Defendants shall request permission
from Magistrate Judge Dancks to file a renewed motion for summary judgment and/or to hold an exhaustion hearing; and the
Court further
ORDERS 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 2318706
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United States District Court, N.D. New York.
Anthony HAWN, Plaintiff,
v.
Bryon WILLIAMS and Sgt. Slate, Defendants.
9:24-CV-1137 (AJB/TWD)
|
Signed August 22, 2025
Attorneys and Law Firms
ANTHONY HAWN, Plaintiff, Pro Se, 23-B-3253, Mid-State Correctional Facility, P.O. Box 2500, Marcy, NY 13403.
ALEXANDRA L. GALUS, ESQ., Assistant Attorney General, HON. LETITIA JAMES, New York State Attorney General,
Attorneys for Defendants, 300 South State Street, Suite 300, Syracuse, NY 13202.
ORDER ON REPORT & RECOMMENDATION
Anthony J. Brindisi, United States District Judge:
*1 On September 19, 2024, pro se plaintiff Anthony Hawn (“plaintiff”), an individual in the custody of the New York State
Department of Corrections and Community Supervision, filed this 42 U.S.C. § 1983 action alleging that defendants Williams
and Slate violated his civil rights during two use-of-force incidents at Mid-State Correctional Facility. Dkt. No. 1. Along with
his complaint, plaintiff also moved for leave to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 2, 3.
On October 21, 2024, U.S. District Judge Mae A. D'Agostino granted plaintiff's IFP Application and, after conducting an initial
review of the pleading, determined that plaintiff's § 1983 Eighth Amendment claims alleging excessive force and/or failure-to-
intervene against defendants Williams and Slate required a response. Dkt. No. 7. The matter was reassigned to this Court for
all further proceedings. Dkt. No. 17. In lieu of an answer, defendants moved for summary judgment based on plaintiff's alleged
failure to exhaust his available administrative remedies. Dkt. No. 18; Dkt. Nos. 21, 22 (briefing).
On July 10, 2025, U.S. Magistrate Judge Thérèse Wiley Dancks advised by Report & Recommendation (“R&R”) that
defendants’ motion for summary judgment be denied without prejudice to renew after discovery. 1 Dkt. No. 23. There, Judge
Dancks found that defendants had satisfied their burden of demonstrating the existence of a grievance procedure at Mid-
State and had shown that plaintiff had failed to utilize those procedures. Id. However, Judge Dancks concluded that plaintiff's
“sworn statement”—in which he claimed he did not file any grievance because he feared retaliation from defendants—“raised
a sufficient question of material fact as to whether administrative remedies were available to him.” Id.
1 Likewise, Judge Dancks rejected as premature defendants’ request for an evidentiary hearing on exhaustion in lieu of
discovery. Dkt. No. 23.
Defendants have lodged objections. 2 Dkt. No. 27. There, defendants contend that Judge Dancks's recommendations were
inconsistent with Second Circuit precedent, which encourages early resolution of the exhaustion defense. See id. (collecting
cases). According to defendants, even assuming plaintiff failed to file a grievance out of fear of retaliation, “this is not a question
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of fact that warrants the full scope of discovery” because “it would not affect the outcome – Plaintiff failed to properly exhaust
his claims.” Id.
2 The docket report reflects that plaintiff has lodged objections, too, but a review of his filing indicates it is a request to
add as a named defendant one of the previously unidentified officers who allegedly used excessive force against him at
Mid-State. Dkt. No. 24. That request is denied without prejudice at this time, but plaintiff may renew that request before
Judge Dancks following the issuance of this Order.
Upon de novo review, Judge Dancks's R&R is accepted and will be adopted. See 28 U.S.C. § 636(b)(1)(C). Although exhaustion
is “mandatory,” it is excused where administrative remedies are deemed “unavailable.” Ross v. Blake, 578 U.S. 632, 639 (2016).
As relevant here, exhaustion is “unavailable” when “prison administrators thwart inmates from taking advantage of the grievance
process through machination, misrepresentation, or intimidation.” Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (quoting
Ross, 578 U.S. at 643–44). And while most circuits—including the Second Circuit—have endorsed the notion that the exhaustion
defense can be resolved without a jury's involvement, Messa v. Goord, 652 F.3d 305, 308–10 (2d Cir. 2011) (per curiam), the
Supreme Court recently narrowed the scope of that non-jury rule in a case called Perttu v. Richards, 605 U.S. 460 (2025).
*2 In Perttu, the prisoner-plaintiff filed a § 1983 action against a corrections official “for violating his constitutional rights,
including his First Amendment right to file grievances.” 605 U.S. at 464. The plaintiff alleged that he had “tried to file grievance
forms” about the defendant-official's alleged abuse but claimed that the defendant “destroyed them and threatened to kill him if
he filed more.” Id. The Court held that a prisoner-plaintiff has a Seventh Amendment right to a jury trial on the exhaustion issue
whenever it is “intertwined with the merits” of his substantive claim for relief. Id. (concluding that § 1983 First Amendment
claim and exhaustion issues were intertwined “because both depend on whether [the defendant] did in fact destroy [the plaintiff's]
grievances and retaliate against him”).
To be sure, Perttu represents a change in this area of law. The holding upsets, at least in some measure, the general practice in
the lower courts of trying to resolve exhaustion questions in evidentiary hearings. But its precise impact is yet to be understood.
For instance, a few trial courts have already applied Perttu narrowly. See, e.g., Hill v. Tisch, 2025 WL 1871142, at *8 (E.D.N.Y.
July 7, 2025) (collecting cases). However, the holding might be understood to cover a situation where, as here, a plaintiff avers
that his § 1983 claim(s) were left unexhausted because the defendant-official(s) threatened him with retaliation if he tried to
grieve them. 3 See id.
3 Judge Dancks opined that this fact pattern might well be distinguishable from Perttu. Dkt. No. 23 at 13 n.3.
At the very least, the application of Perttu’s “intertwine[ment]” rule would benefit from some discovery to better frame whether
the question of exhaustion in this case can be separated from the merits of plaintiff's claims. See, e.g., Hubbert v. Monroe
County Sheriff's Dep't, 2025 WL 2157982, at *3 (W.D.N.Y. July 30, 2025) (leaving open possibility of hearing on exhaustion
but cautioning defendants about the change in the governing law). Accordingly, Judge Dancks's R&R is accepted and will be
adopted.
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 23) is ACCEPTED;
2. Defendants’ motion for summary judgment (Dkt. No. 18) is DENIED; and
3. Defendants shall file and serve an answer on or before September 5, 2025.
The Clerk of the Court is directed to terminate the pending motions and set an answer deadline.
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IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2424309
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KeyCite Blue-Striped Flag
Appeal Filed by Sparks v. Holland, 2nd Cir., October 30, 2025
2025 WL 2781551
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Yusuf SPARKS, Plaintiff,
v.
Jason HOLLAND, et al., Defendants.
9:19-CV-1269 (AJB/MJK)
|
Signed September 30, 2025
Attorneys and Law Firms
Poupa Jenny Marashi, New York, NY, for Plaintiff.
Kaitlin N. Vigars, New York State Office of the Attorney General, Albany, NY, for Defendants.
DECISION and ORDER
Anthony J. Brindisi, United States District Judge:
I. INTRODUCTION
*1 On October 15, 2019, Yusuf Sparks (“plaintiff”) filed this action under 42 U.S.C. § 1983 alleging that more than two
dozen named and unnamed prison officials violated his constitutional rights while he was incarcerated at Clinton Correctional
Facility (“Clinton C.F.”), a facility under the control of the New York Department of Corrections and Community Supervision
(“DOCCS”). He amended his complaint first in December 2019, and then again—while incarcerated in a different facility on
an unrelated matter—in June 2020. Plaintiff's claims focused on events that took place in October 2016 and October 2018.
In October 2016, a corrections officer responding to an altercation between plaintiff and two other inmates claimed to have found
a weapon on plaintiff's person, which plaintiff claimed was planted. After receiving medical attention, plaintiff was the subject
of two misbehavior reports. Plaintiff was found guilty at a hearing, which he complains was constitutionally inadequate, and
subject to consequences including disciplinary confinement. While in disciplinary confinement, plaintiff improperly received
certain medication on one occasion. Although plaintiff was alerted to the error, he ingested the medication anyway. As a result,
plaintiff received another misbehavior report.
The events of October 2018, which took place after plaintiff had been transferred away from, and then returned to, Clinton C.F.,
also arose from a purported altercation between plaintiff and two other inmates. Prison officials claimed plaintiff had punched
his co-combatants and refused orders to stop fighting; plaintiff alleged, among other things, that he was subject to excessive
force during the prison officials’ response.
At all relevant times, Clinton C.F. had a three-step procedure for inmates to pursue grievances in the ordinary course, and
pursuant to the Prison Litigation Reform Act (“PLRA”) and DOCCS protocols, completing all three steps is required to
“exhaust” complaints. Clinton C.F. inmates received training on how to use the procedure upon orientation, and further
information was available on an ongoing basis, upon request, from multiple prison sources. Plaintiff has acknowledged the
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grievance procedure. Indeed, he has used it, including its appeals provisions, multiple times. But he did not do so in connection
with either of the incidents complained of in his operative complaint.
Before the Court are defendants’ motion for summary judgment and plaintiff's cross-motion for partial summary judgment. The
motions have been fully briefed and will be decided based on the parties’ submissions without oral argument.
II. BACKGROUND
Unless otherwise specified, the following facts are undisputed and derive from the parties’ statements of material facts. See
Dkt. Nos. 91-1 (defendants’ statement of material facts, “DSMF”) & 100-1 (plaintiff's statement of material facts, “PSMF”). 1
1 Where applicable, citations to the record correspond to CM/ECF pagination.
From June to December 2016, and again beginning in October 2018, plaintiff was incarcerated at Clinton C.F., a DOCCS prison.
DSMF ¶¶ 1, 6, 57, 59.
*2 Clinton C.F. offers inmates DOCCS's standard three-step grievance procedure to bring complaints about the facility, in
the ordinary course, to officials’ attention. See DSMF ¶¶ 67, 72. Detailed information about the grievance procedure is made
available to Clinton C.F. inmates—including those confined in special housing units—in various formats, including through
the law library and the grievance office, instruction during facility orientation, and upon request. See id. ¶¶ 69–71. In essence,
the standard procedure entails submitting to the facility's inmate grievance resolution committee a written complaint within
twenty-one days of an incident, appealing any adverse decision of the committee to the facility superintendent in writing within
seven days, and appealing any adverse decision of the facility superintendent to the central office review committee in writing
within seven days. See id. ¶ 72.
Plaintiff acknowledges the grievance procedure. E.g., PSMF ¶¶ 67, 69, 77. Indeed, it is undisputed that he utilized it, at least in
part, on multiple occasions. See Dkt. No. 91-3 ¶ 17 & Exh. B (indicating plaintiff filed and appealed three unrelated grievances,
including two in 2014 and one in 2017); Dkt. No. 91-4 ¶ 14 (indicating plaintiff filed, but failed to appeal completely, a grievance
related to this action). Nevertheless, plaintiff claims that he could not access the grievance procedure in connection with the
events described below. See PSMF ¶¶ 67, 69, 77.
In April 2016, ahead of a potential facility transfer, plaintiff's former defense attorney wrote to the then-commissioner of DOCCS
to express concerns about plaintiff's safety if he were to be moved to Clinton C.F. PSMF ¶ 5. Plaintiff was nevertheless transferred
to Clinton C.F. and, based on his past conduct, placed in disciplinary confinement upon arrival. Id. ¶¶ 6, 8.
Throughout his early time at Clinton C.F., plaintiff and his former defense attorney repeatedly expressed concerns about his
safety to, and sought protection from, officials at the facility. See PSMF ¶ 9; DSMF ¶¶ 9, 12. But, for reasons that the parties
dispute, plaintiff repeatedly declined to be placed in protective custody after being released into the general population at Clinton
C.F. See PSMF ¶ 13; DSMF ¶¶ 13, 14.
On October 18, 2016, plaintiff was involved in an altercation with two other inmates at Clinton C.F. DSMF ¶ 19. Defendant
Clancy responded, handcuffed plaintiff, and performed a pat/frisk. Id. ¶¶ 20, 21. He found a weapon, which plaintiff maintains
was planted, and thereafter took plaintiff to receive medical care. PSMF ¶¶ 21–23. Plaintiff eventually received further medical
attention at a local hospital. DSMF ¶ 26.
Thereafter, based on the altercation and the weapon that Clancy claimed to have found in plaintiff's pocket afterwards, plaintiff
was the subject of two misbehavior reports, charging him first with violating rules concerning weapon possession, smuggling,
and possession of an altered item; and second with violating rules concerning violent conduct, creating a disturbance, fighting,
and refusing a direct order. DSMF ¶¶ 27, 28.
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Plaintiff received a hearing on the two misbehavior reports before defendant French. DSMF ¶ 29. Before the hearing, which
lasted multiple days, plaintiff was notified of the charges against him, and during the hearing he was provided with an assistant
with whom he could, and did, consult. Id. ¶¶ 30–32. Although plaintiff was not permitted to have an attorney represent him
during the hearing, he was allowed to, and did, consult with an attorney outside the hearing. Id. ¶¶ 34, 35. During the hearing,
plaintiff was given various DOCCS records, as well as the opportunity to question multiple witnesses, including corrections
officials and the other inmates involved, although he did not ultimately question all of them. See id. ¶¶ 37–39, 41.
At some point during the hearing, plaintiff complained of mental health-related issues, and the hearing was temporarily
adjourned. DSMF ¶ 44. It resumed after the hearing officer took confidential testimony from the Office of Mental Health. Id.
¶ 45. When the hearing ultimately concluded, defendant French adjudicated plaintiff guilty of the charged rule violations. Id. ¶
47. As a result, plaintiff received 450 days of disciplinary confinement and lost various technology and recreation privileges.
Id. ¶ 48.
*3 Afterwards, while plaintiff was in disciplinary confinement, defendant Kim gave him a medication that was not prescribed
to him, an action defendants assert was inadvertent, and attempted to withdraw it. DSMF ¶¶ 50, 51. But, according to defendants,
plaintiff attempted to maintain control over the medication by force and ultimately ingested it. Id. ¶ 52. Plaintiff largely disputes
defendants’ retelling of this event, but he admits to ingesting the improperly dispensed medication. PSMF ¶¶ 50–52. He
thereafter received another misbehavior report charging him with violating rules concerning, among other things, unauthorized
medication and interfering with an employee. Id. ¶ 55.
Despite knowing of Clinton C.F.’s three-step grievance procedure outlined above, plaintiff did not pursue a formal grievance
in connection with the October 2016 events. See DSMF ¶ 78; PSMF ¶ 78. Instead, he sought outside action from the Office of
Special Investigation, claiming that he was unable to properly grieve those events. See PSMF ¶ 78.
In December 2016, plaintiff was transferred to a different DOCCS facility. DSMF ¶ 57. He was moved back to Clinton C.F.
in October 2018. Id. ¶ 59.
Upon his return to Clinton C.F., on October 27, 2018, plaintiff was involved in another altercation with two other inmates,
during which officials allege plaintiff punched the other inmates on their upper bodies and refused orders to stop fighting. See
DSMF ¶¶ 60–62. Defendant Holland responded and used pepper spray to break up the fight. Id. ¶ 63.
Plaintiff was then brought to the Clinton C.F. hospital to receive medical attention, and staff observed that he sustained injuries
during the fight. DSMF ¶¶ 64, 65. Afterwards, a non-party corrections official escorted plaintiff to keeplock. Id. ¶ 66.
On November 5, 2018, plaintiff filed a grievance which claimed that defendant Holland had slapped him in the face and included
other information pertaining to the events of October 2016. DSMF ¶ 79. That grievance was assigned grievance number CL
74742-18. Id. ¶ 80. However, the then-superintendent of Clinton C.F. investigated and denied plaintiff's claims. Id. ¶ 81. Plaintiff
never pursued the final step of the three-step process for this grievance, i.e., appealing to the central office review committee.
Id. ¶ 82.
Nevertheless, on October 15, 2019, plaintiff filed this action against various prison officials, including Holland, Snow, Martin,
Clancy, Barber, Ducan, French, Kim, LeClair, Kirkpatrick, Stickney, Marlow, Stotler, and Does 1 through 20, alleging violations
of his First, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Dkt. No. 1 (“Compl.”). The thrust of the original
complaint was that, during the October 2016 and October 2018 incidents, the prison officials assaulted plaintiff, planted a
weapon on him, deprived him of due process in the resulting disciplinary proceedings, and failed to properly address his mental
health concerns. Id. at 2–3. At the time of filing, plaintiff had been transferred from Clinton C.F., but remained under DOCCS
supervision while incarcerated at Sing Sing Correctional Facility. Id. at 4.
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Early litigation in this case was somewhat convoluted. Although the Court will not recount every development here, the
highlights are as follows. Plaintiff filed the first of two amended complaints on December 26, 2019. Dkt. No. 5. The case was
thereafter reassigned from Magistrate Judge Christian F. Hummel to Magistrate Judge Andrew T. Baxter on January 28, 2020.
Dkt. No. 10. Both before and after reassignment, defendants requested and received multiple extensions for their response. See,
e.g., Dkt. Nos. 8, 11, 16, 19–22.
In June 2020, defendants filed a motion to dismiss for failure to state a claim. Dkt. No. 23. Later the same month, before the
parties received a ruling, plaintiff filed the second of two amended complaints. Dkt. No. 28 (“SAC”). Following additional
extensions, see Dkt. Nos. 31 & 35, defendants filed an answer on September 30, 2020, Dkt. No. 36.
*4 A long—and itself somewhat convoluted—discovery process followed. See, e.g., Dkt. Nos. 38 (original case management
plan, filed October 14, 2020), 48 (protective order regarding the exchange of confidential materials, filed October 21, 2021),
56 (letter motion requesting withdrawal of motion to compel, filed February 14, 2022), 64 (order resetting discovery deadlines
to June 30, 2023); 70 (same, to November 30, 2023).
On November 16, 2023, plaintiff was denied permission to further amend the complaint. Dkt. No. 77. The case was then
reassigned again, first from Magistrate Judge Baxter to Magistrate Judge Mitchell J. Katz, on January 5, 2024, Dkt. No. 80, and
then from District Judge Mae A. D'Agostino to this Court on January 13, 2025, Dkt. No. 90.
On January 27, 2025, defendants moved for summary judgment. Dkt. No. 91. Plaintiff filed a cross-motion for partial summary
judgment, as well as opposition papers, respectively, on March 11 and 12, 2025. Dkt. Nos. 99 & 100. On April 7, 2025,
Defendants filed papers supporting their motion and opposing plaintiff's cross-motion. Dkt. No. 105. Plaintiff, in turn, opposed
that submission on April 28, 2025. Dkt. No. 106.
III. LEGAL STANDARD
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). An issue of fact is material for purposes of this
inquiry if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
In assessing whether any genuine disputes of material fact remain, “a court must resolve any ambiguities and draw all inferences
from the facts in a light most favorable to the nonmoving party.” Ward v. Stewart, 286 F. Supp. 3d 321, 327 (N.D.N.Y. 2017)
(citation omitted). Summary judgment is inappropriate where a “review of the record reveals sufficient evidence for a rational
trier of fact to find in the [non-movant's] favor.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).
“Where, as here, the parties have cross-moved for summary judgment, a reviewing court must evaluate each party's motion
on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under
consideration.” United States v. Bedi, 453 F. Supp. 3d 563, 570 (N.D.N.Y. 2020) (cleaned up). “In undertaking this analysis, it
bears noting that a district court is not required to grant judgment as a matter of law for one side or the other.” Id.
IV. DISCUSSION
A. Exhaustion under the PLRA
The PLRA requires inmates to exhaust all available administrative remedies before suing prison officials in federal court. 42
U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner in any jail, prison, or other correctional facility until such administrative remedies as are available
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are exhausted.”); Amador v. Andrews, 665 F.3d 89, 96 (2d Cir. 2011) (“Exhaustion is mandatory—unexhausted claims may not
be pursued in federal court.”). 2
2 The Second Circuit has held that district courts can resolve the exhaustion issue without involving juries. Messa v.
Goord, 652 F.3d 305, 308–10 (2d Cir. 2011) (per curiam). The Supreme Court recently narrowed the scope of this
non-jury rule in cases—unlike this one—where the exhaustion issue is “intertwined with the merits” of a substantive
claim. Perttu v. Richards, 605 U.S. 460, 464 (2025). In Perttu, the prisoner-plaintiff had filed a § 1983 action against a
corrections official “for violating his constitutional rights, including his First Amendment right to file grievances,” by
interfering with his grievance forms and threatening physical violence if the plaintiff were to file additional forms. Id.
The Supreme Court held that the Seventh Amendment guarantees the right to a jury trial on the exhaustion issue such
cases, since “both [the exhaustion issues and the § 1983 First Amendment claim] depend[ed] on whether [the defendant]
did in fact destroy [the plaintiff's] grievances and retaliate against him.” Id. While Perttu alters the legal landscape, its
precise impact is not yet understood, and some courts have already applied it narrowly. See, e.g., Hill v. Tisch, 2025
WL 1871142, *8 (E.D.N.Y. July 7, 2025) (collecting cases). Here, though, plaintiff's claims do not directly relate to his
ability to access Clinton C.F.’s grievance procedure, and the record establishes that he both was aware of, and in fact
utilized (if incompletely), the procedure on multiple occasions. Thus, Perttu does not appear to apply to this case, and
the Court proceeds with its analysis of exhaustion.
*5 Exhaustion is required for essentially all manner of confinement-related claims. See Porter v. Nussle, 534 U.S. 516, 532
(2002) (“[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.”).
Prison systems decide what constitutes exhaustion within their facilities. Jones v. Bock, 549 U.S. 199, 218 (2007) (“[I]t is the
prison's requirements ... that define the boundaries of proper exhaustion.”); Taylor v. N.Y. City Dep't of Corr., 849 F. App'x 5,
7 (2d Cir. 2021) (summary order). Therefore, DOCCS's internal procedures, which typically entail the three steps recounted in
greater detail below, govern most inmate complaints in its facilities. 7 N.Y.C.C.R. § 701.5; see also Bradshaw v. Piccolo, 2025
WL 890415, *5 (W.D.N.Y. Mar. 24, 2025) (describing DOCCS's three-tiered process for typical inmate grievances).
Turning now to the parties’ submissions, defendants argue that the PLRA precludes plaintiff's claims because he failed to exhaust
the administrative remedies available to him as an inmate at Clinton C.F. See Def. Mem. at 10 (“Defendants are entitled to
summary judgment because plaintiff failed to exhaust administrative remedies[.]” (capitalization omitted)).
In response, plaintiff offers an array of unavailing arguments, which the Court will address in turn. First, plaintiff claims, as he
had been released from DOCCS custody before filing the operative complaint, the PLRA does not apply here. See Pl. Opp. at
18–19. Second, he argues that defendants forfeited the non-exhaustion defense by failing to plead it with appropriate specificity.
Id. at 19–20. Third, he complains that the timing of defendants’ non-exhaustion defense works undue prejudice on him. Id. at
20–22. Fourth, he contends that administrative remedies were unavailable to him as a matter of law. Id. at 22–24. And fifth, he
maintains that he did exhaust administrative remedies by pursuing alternative relief. Id. at 24–26.
For the following reasons, plaintiff's efforts to sidestep the exhaustion requirement fail, defendants’ motion must be granted,
and plaintiff's cross-motion must be denied.
i. Applicability
Plaintiff tries to evade the exhaustion requirement entirely by arguing that the PLRA does not apply to his claims in this case,
since he had been released from DOCCS custody when he filed the operative pleading, i.e., the SAC. See Pl. Opp. at 18–19.
In response, defendants argue that, first, plaintiff was in fact being held in pretrial confinement upon filing the SAC, Def. Reply
at 6–7, and that, in any event, the time relevant to this analysis is when a plaintiff files an initial complaint, at which point
plaintiff remained in DOCCS custody, not when a plaintiff files a subsequent pleading, id. at 7.
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In support of plaintiff's argument, he leans primarily on Sanchez v. Nassau County, 662 F. Supp. 3d 369 (E.D.N.Y. 2023). See
Pl. Opp. at 10. But that case does not aid him.
In Sanchez, the Eastern District of New York relied on Jones v. Cuomo, 2 F.4th 22, 26 (2d Cir. 2021) (holding that a psychiatric
detainee was not a “prisoner” under the PLRA), discussed in greater below, to conclude that a plaintiff who had been released
from custody by the time he filed the operative pleading was not a “prisoner” for PLRA purposes. 662 F. Supp. 3d at 393.
*6 In broadening Jones, the Sanchez court drew heavily on extra-circuit authority while conceding that “[t]he Second Circuit
has not yet decided ... whether the PLRA's exhaustion requirement applies when a plaintiff was a prisoner at the time of the
filing of the original complaint, but is no longer a prisoner when an amended complaint is filed.” See 662 F. Supp. 3d at 393–
96. But in surveying decisions closer to home, the court noted that “[t]he few courts in [the Second] Circuit to address the issue
have yielded opposite conclusions.” Id. at 397 (collecting Eastern District cases).
As an initial matter, “[a] decision of a federal district court judge is not binding precedent in either a different judicial district,
the same judicial district, or even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 710 n.7 (2020)
(quoting 18 J. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 134.02[1][d], 134–36 (3d ed. 2011) (quotations omitted)).
Of the Northern District cases to acknowledge Sanchez, none have addressed—let alone agreed with—its extension of Jones;
all three referred to it, in footnotes, for unrelated reasons. See Morrell v. Sampson, 2024 WL 4278647, *6 n.5 (N.D.N.Y. Sept.
24, 2024) (articulating failure-to-protect and failure-to-intervene standards); Murray v. Cnty. of Albany, 2025 WL 904515, *11
n.4 (N.D.N.Y. Mar. 25, 2025) (declining to reach qualified immunity where disputed facts remained on summary judgment
motion); Donald v. Leonard, 2025 WL 2582802, *4 n.2 (N.D.N.Y. Sept. 8, 2025) (describing magistrate judge's citation in
considering whether judge or jury should decide availability).
Regardless, and especially pertinent here, in Sanchez the Eastern District expressly found the defendants’ citation to Berry v.
Kerik, 366 F.3d 85 (2d Cir. 2004), unsuitable. 662 F. Supp. 3d at 401. In Berry, the plaintiff had filed an action concerning a
since-completed term of custody under § 1983 while incarcerated on suspicion of committing new offenses. 336 F.3d at 86–
87. Based on his returned-to-custody status, the Second Circuit held that the plaintiff was a “prisoner” for PLRA purposes. Id.
Accordingly, in Sanchez the Eastern District held that Berry did not control precisely because the Sanchez plaintiff “was not
incarcerated when he filed the operative ... complaint.” Id. (emphasis in original). The same is not true in this case.
Here, plaintiff was incarcerated upon filing both the original complaint and the operative pleading. See, e.g., Dkt. Nos. 1
(complaint filed October 15, 2019) & PSMF ¶ 238 (“Mr. Sparks was released from DOCCS custody on December 19, 2019.”);
Dkt. Nos. 28 (SAC filed June 22, 2020) & 99-10 at 5 (referring to plaintiff's “more than two years in pretrial confinement,” dating
backwards from March 21, 2022). 3 Accordingly, whatever one makes of Sanchez, it does not advance plaintiff's argument that
the PLRA does not apply to his claims.
3 The Court acknowledges plaintiff's argument, in his memorandum supporting his cross-motion for partial summary
judgment, that defendants have “improperly assert[ed]” that plaintiff's papers prove his custodial status at the time
of filing. Dkt. No. 106 at 4. Plaintiff contends that including a copy of his state court appeal, People v. Sparks, 232
A.D.3d 168 (1st Dep't 2024), in his submissions does not establish whether he was in custody on June 22, 2020, since,
according to plaintiff, “Sparks does not specify Plaintiff's custody status” on that date. Id. But considering the appellate
court's explicit reference to plaintiff's status, appended to plaintiff's submission and quoted in part above, the Court finds
plaintiff's argument entirely unpersuasive. See Sparks, 232 A.D.3d at 171 (“On March 21, 2022, after more than two
years in pretrial confinement, Mr. Sparks pleaded guilty to third degree robbery.”); accord Dkt. No. 99-10 (exact same).
Although the Court is not generally in the business of performing complex calculations sua sponte, it is prepared to take
judicial notice that, looking backwards from March 21, 2022, a greater-than-two-year period would encompass June
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22, 2020, the SAC's filing date. Thus, plaintiff has not established a genuine factual dispute about his custodial status
when he filed the operative pleading.
*7 On the contrary, the precedent in our circuit establishes that the PLRA, and therefore the exhaustion requirement, applies,
whether because plaintiff was incarcerated upon filing the original complaint or because plaintiff was incarcerated upon filing
the operative pleading.
Consider Jones v. Cuomo, which the Eastern District broadened in Sanchez, 622 F. Supp. 3d at 393, but which defendants cite
for its own holding, see Def. Reply at 6. In Jones, the Second Circuit concluded that a plaintiff who brought an action under
§ 1983 while confined in a psychiatric facility pursuant to New York's Mental Hygiene Law was not a “prisoner” for PLRA
purposes. 2 F.4th at 25. The court relied on a prior panel's reading of the PLRA's text—which held that “[t]he natural reading ... is
that, to fall within the definition of ‘prisoner,’ the individual in question must be currently detained as a result of an accusation,
conviction, or sentence for a criminal offense”—to distinguish the Jones plaintiff's status as a psychiatric detainee. See id. 25–
26 (quoting Gibson, 692 F.3d at 202) (alterations in Jones)).
So, although the panel in Jones discussed the timing of a plaintiff's filing to the extent that it reflected his custodial status, the
core of its analysis was to draw a line between “individuals detained pursuant to an accusation or conviction of a violation of
a criminal statute,” to whose claims the PLRA applies, and individuals in civil or psychiatric confinement, like the plaintiff
there, to whose claims the PLRA does not apply. Id. at 25–26 (quoting Jackson v. Johnson, 475 F.3d 261, 267 (5th Cir. 2007)
(alteration omitted)).
Here, plaintiff falls within the former category. Since he was serving a custodial sentence following conviction when he filed
the original complaint, incarcerated pending a separate criminal trial when he filed the SAC, and at neither time in civil or
psychiatric confinement, the authority supports defendants. See Def. Reply at 6–7 (citing, among other cases, Jones, 2 F.4th at
26). Thus, the PLRA and its exhaustion requirement apply to plaintiff's claims.
ii. Pleading Requirements
Next, plaintiff argues that the Court should not permit defendants to argue non-exhaustion because they failed to plead this
affirmative defense with the requisite specificity. Pl. Opp. at 19–20.
As a general matter, “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense[.]”
FED. R. CIV. P. 8(c)(1). Non-exhaustion under the PLRA is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2017);
Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015). The Second Circuit has previously held that a defendant's
failure to raise and prove non-exhaustion waives the defense. Villante v. VanDyke, 93 F. App'x 307, 308 (2d Cir. 2004) (summary
order).
While “the Second Circuit has not decided whether Iqbal-Twombly’s heightened pleading standard applies to affirmative
defenses,” the Northern District has in other cases “ ‘require[d] defendants to include enough language to provide plaintiff[s]
with “fair notice” of defenses, in line with the prevailing pleading standard in the Second Circuit[.]’ ” United States v. Grimmel
Indus., LLC, 2018 WL 3730856, *2 (N.D.N.Y. Aug. 6, 2018) (quoting Thornton v. Cnty. of Albany, 2016 WL 5793714, *5
(N.D.N.Y. Oct. 4, 2016)). Thus, in their response, defendants must have put plaintiff on “fair notice” that they would argue that
he failed to exhaust his administrative remedies under the PLRA.
*8 Defendants did so here. In their answer, alongside other intended affirmative defenses, defendants included the following
language: “To the extent [p]laintiff failed to exhaust available administrative remedies, the [SAC] is barred, at least in part.”
Dkt. No. 36 at 11 (emphasis added). 4 As defendants point out, Def. Reply at 9, the Second Circuit has held sufficient to raise
exhaustion as an affirmative defense all-but-identical language in a responsive pleading, Villante, 93 F. App'x at 309 (holding
an answer asserting that “[p]laintiff has failed to exhaust administrative remedies” adequately raised the defense and thus did
not effectuate a waiver). Defendants’ language therefore constitutes appropriate notice.
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4 The Court further observes that, elsewhere in plaintiff's opposition to summary judgment, he cites this paragraph of
defendants’ answer in acknowledgment of the fact that “exhaustion was already listed” as an affirmative defense. Pl.
Opp. at 21.
Plaintiff attempts to analogize Thornton to argue that defendants’ answer was inadequate. See Pl. Opp. at 19–20. But this
citation misses the mark. While the Thornton defendants also sought to argue non-exhaustion after failing to explicitly refer
to the PLRA in their answer, the language held insufficient there, that “[p]laintiff's claims are barred by his failure to satisfy
conditions precedent to suit,” was far less specific than what defendants have included here. See 2016 WL 5793714, at *5
(internal quotations omitted). Further, by observing that the Thornton defendants in other cases “routinely raise[d] failure to
comply with the PLRA or failure to exhaust administrative remedies as individual affirmative defenses,” the court suggested
that language directly mirroring defendants’ here would have sufficed. 5 Id. (emphasis added).
5 This is to say nothing of the Thornton court's use of the disjunctive “or” to separate “failure to comply with the PLRA”
and “failure to exhaust administrative remedies,” which suggests that defendants need not explicitly invoke the PLRA
to adequately notify plaintiffs of the non-exhaustion defense. See 2016 WL 5793714, at *5. In any event, as defendants
highlight, Def. Reply at 9–10, their answer directly references the statute elsewhere, including just three paragraphs after
the purportedly inadequate language, Dkt. No. 36 at 11–12 (“Pursuant to Section 807 of the Prison Litigation Reform Act
of 1995, any compensatory damages to be awarded [p]laintiff herein shall be paid directly to satisfy any such outstanding
orders until paid in full.”); cf. Pl. Opp. at 20 (“Defendants here do not mention the PLRA in the exhaustion portion of
their answer, or even cite the statute in their answer at all.”).
Against this backdrop, plaintiff's assertion that the answer is inadequate cannot succeed. Defendants adequately notified plaintiff
of their intention to argue non-exhaustion under the PLRA. Accordingly, they did not waive this affirmative defense.
iii. Prejudice
Continuing down a similar path, plaintiff offers a variety of arguments seeking to bar defendants from arguing non-exhaustion
for quasi-equitable reasons. See Pl. Opp. at 20–21 (claiming, among other things, that defendants’ counsel achieves dismissal of
between fifty and sixty percent of unrelated inmate litigation due to “PLRA-related technicalities,” and that, here, defendants’
“fail[ure] to move on this affirmative defense for over 5 years” cost plaintiff “tens of thousands of dollars of litigation costs
[and] over seven hundred hours of law firm time”).
While this section of plaintiff's briefing is no model of clarity, his contentions appear to boil down to the following: allowing
defendants to pursue a non-exhaustion defense after the case has been pending for several years, and after discovery has
concluded, would improperly prejudice him. See generally Pl. Opp. at 21. Indeed, citing defendants’ purported reticence to
develop discovery about exhaustion before plaintiff's deposition, plaintiff goes as far as to suggest that defendants “led [p]laintiff
to believe ... that [d]efendants were in agreement that the PLRA did not apply.” Id.
*9 But the Court cannot square these claims with plaintiff's own submissions. As detailed above, the Court has already
concluded—and plaintiff seems to recognize, if counterintuitively—that defendants indeed raised non-exhaustion in their
answer. See Dkt. No. 36 at 11 (“To the extent [p]laintiff failed to exhaust available administrative remedies, the [SAC] is barred,
at least in part.”); accord Pl. Opp. at 21 (noting “exhaustion was ... listed” among other affirmative defenses in defendants’
response to the operative pleading).
Regardless, as defendants highlight, Def. Reply at 10–11, plaintiff's request to strike this affirmative defense is untimely, see
FED. R. CIV. P. 12(f). A court may strike a defense from an answer either on its own accord or on a motion served “within
21 days.” Id. Defendants filed their answer on September 30, 2020, Dkt. 36, and plaintiff raised this issue for the first time far
outside the three-week window, on March 12, 2025, see Pl. Opp. at 20–22.
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Since plaintiff put forward this argument more than four years after defendants filed an answer, it is untimely under Rule 12(f)
(2). And since it is difficult to grasp how plaintiff could be improperly prejudiced by a duly noticed non-exhaustion defense,
the Court declines to use its power under Rule 12(f)(1) to strike, sua sponte, what is otherwise a properly raised defense.
iv. Administrative Remedies’ Availability
Moving on to the parties’ substantive arguments under the PLRA, plaintiff contends that, if the PLRA does apply to his claims,
administrative remedies were unavailable to him while he was incarcerated at Clinton C.F. Pl. Opp. at 22. To that end, plaintiff
argues first that defendants have failed to establish that “a functional [grievance] process” existed at the relevant times and
locations, and second that the standard grievance process at Clinton C.F. was unavailable to plaintiff due to his housing status
and prison officials’ intimidation. Id. at 22–24.
Defendants dispute each point. First, they argue that facts in the record, and specifically the declarations of Donna Wilcox and
Rachael Seguin, establish “that there was a functioning grievance program at Clinton [C.F.] during the time that [p]laintiff was
incarcerated there, and that this grievance program was available to all incarcerated individuals,” including those, like plaintiff,
incarcerated in the facility's special housing unit. Def. Reply at 13. And they stress that the PLRA applies to all incarcerated
people, regardless of any claimed “special circumstances.” Def. Reply at 15 (quoting Ross v. Blake, 578 U.S. 632, 639 (2016)).
Second, defendants strenuously dispute that the grievance process was unavailable to plaintiff and point out that, as to at least
the October 2018 incident, plaintiff appears to have abandoned such arguments. Def. Reply at 16–18.
a. Existence of Administrative Remedies
Even viewed in the light most favorable to plaintiff, the record establishes that there was a functioning grievance process
at Clinton C.F. In a sworn declaration, Seguin, the director of the incarcerated grievance program at DOCCS, outlined the
grievance process at Clinton C.F. and other DOCCS sites. See generally Dkt. No. 91-3 (“Seguin Decl.”). Seguin described
a three-step process in which, first, inmates “must file a complaint with [the inmate grievance resolution committee] within
[twenty-one] calendar days of an alleged incident at the individual facility where the incarcerated individual is housed,” after
which the committee has sixteen calendar days to respond; second, inmates “may appeal [a committee recommendation] to the
[s]uperintendent of the facility within [seven] days after receipt,” after which the superintendent has twenty calendar days to
respond; and third, inmates “may appeal the [superintendent's] decision to [the central office review committee] within [seven]
calendar days after receipt.” Seguin Decl. ¶ 7.
*10 All submissions must be in writing and submitted in the first instance to the inmate grievance resolution committee at
the facility where the grieving inmate is housed. See Seguin Decl. ¶ 7. Separate, expedited procedures are made available for
complaints regarding “harassment or misconduct by DOCCS employees.” Id. ¶ 9.
Wilcox's sworn declaration largely repeats the same information. See generally Dkt. No. 91-4 (“Wilcox Decl.”). Wilcox was the
incarcerated grievance program supervisor at Clinton C.F. upon giving her declaration. Id. ¶ 1. In her declaration, she outlined
precisely the same three-step grievance procedure as Seguin. See id. ¶¶ 7–10.
A review of the available record confirms that plaintiff does not actually challenge the existence of this process at Clinton
C.F. during the relevant period. Instead, he contends that it was unavailable to him. See, e.g., PSMF ¶¶ 67 (denying the claim
that “[t]here is a fully functioning grievance procedure available to inmates at Clinton [C.F.],” apparently because “[p]laintiff
was unable to access it” (emphasis added)); 69 (denying the claim that “[t]he written policies and procedures concerning the
[incarcerated grievance program] are widely distributed and readily accessible to incarcerated individuals,” due to a dispute
over “accessibility in SHU and under mental distress”); 70 (“assert[ing] SHU confinement and mental state effectively barred
access” to the DOCCS directive outlining grievance procedure at Clinton C.F.); 71 (conceding that plaintiff received training on
utilizing Clinton C.F.’s grievance procedure but “disput[ing] effective instruction given [plaintiff's] SHU status and coercion”).
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Setting aside for now arguments about availability, plaintiff does not meaningfully contest, and therefore has not created
a genuine dispute regarding, the fact that the three-step grievance process at Clinton C.F. existed. Indeed, he concedes his
awareness of it. See, e.g., PSMF ¶ 77 (“admit[ing] familiarity [with the grievance process] but den[ying] ability to freely use
it due to coercion and confinement” (emphasis added)). 6
6 On the other hand, in plaintiff's statement of material facts, he repeatedly declines to admit or deny defendants’
descriptions of the three-step grievance process on account of his “lack[ing] independent knowledge of DOCCS
grievance procedures,” e.g., PSMF ¶¶ 68 (concerning DOCCS Policy Directive No. 4040), 72 (concerning N.Y.C.R.R. §
701.5), 73 & 74 (concerning expedited procedure for grievances concerning harassment). By their own terms, however,
these responses are not denials. And, particularly when considered alongside plaintiff's admitted familiarity with the
grievance process, they do not create genuine, material factual disputes.
Thus, an administrative remedy entailing the three-step procedure that Seguin and Wilcox outlined was in place at Clinton C.F.,
and plaintiff was aware of it. Seguin Decl. ¶ 18; Wilcox Decl. ¶¶ 7–10; PSMF ¶ 77. The record reveals no genuine, material
disputes about these facts.
b. Availability
The next question is whether the three-step grievance process was available to plaintiff. For the reasons given below, both the
available record, even viewed in the light most favorable to plaintiff, and the law in the Second Circuit establish that it was.
Broadly speaking, the Supreme Court has recognized three exceptions to the exhaustion requirement, all of which focus on the
“availab[ility] of administrative remedies.” Ross, 578 U.S. at 642. An inmate's failure to exhaust may be excused when: (1) the
applicable grievance procedures “operat[e] as a simple dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates”; (2) the procedures “[are] so opaque that [they] become[ ], practically speaking, incapable of use”; or
(3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” See id. at 643–44.
*11 Availability is “an objective [test]: that is, would a similarly situated individual of ordinary firmness have deemed
[administrative remedies] available.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311–12 (2d Cir. 2020) (citation omitted).
1. Opacity
Here, the parties’ arguments primarily concern Ross’s exception for undue opacity, so the Court first considers whether the
grievance process was “so opaque” as to be essentially useless. 578 U.S. at 642; see Pl. Opp. at 24 & Def. Reply at 16. It was not.
Plaintiff leans on Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), to support his claim that, because he was housed in Clinton
C.F.’s special housing unit following the October 2016 incident, the facility's three-step grievance process was unavailable
to him. Pl. Opp. at 24. But that case does not stand for the proposition that inmates in special housing units generally face
unduly opaque grievance procedures. In Priatno, the panel evaluated procedures which provided that inmates in special housing
units could file grievances by giving complaints to corrections officers, who were then supposed to forward the complaints to
grievance clerks, but which were silent about what inmates were to do if corrections officers never forwarded their complaints to
grievance clerks. 829 F.3d at 124. The panel ultimately concluded that those procedures—not all procedures involving special
housing units—were too opaque and thus unavailable. Id.
But, as detailed above, the record shows that the procedures in Priatno were not the procedures in place at Clinton C.F. Indeed,
Clinton C.F. made available, and plaintiff was aware of, a three-step grievance procedure in which inmates, including those in
the special housing unit, were to first submit complaints directly to the inmate grievance resolution committee within twenty-
one days, appeal adverse decisions within seven days to the facility's superintendent, and finally appeal any further adverse
decisions within seven days to the central office review committee. See Seguin Decl. ¶ 7, Wilcox Decl. ¶¶ 7–10; PSMF ¶ 77.
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Even crediting all of plaintiff's factual contentions, these procedures cannot be considered unduly opaque under Ross or Priatno,
notwithstanding plaintiff's special-housing-unit status. 7
7 For example, plaintiff testified that inmates in Clinton C.F.’s special housing unit were to file grievances through officers
who picked up inmates’ mail. PSMF ¶ 87. According to plaintiff, the officers would then share the grievances among
themselves, and as a result officers would threaten the grieving inmates. See id. ¶¶ 84–85. Plaintiff further testified, “I
don't think it made it to the superintendent because of the interception that was going on in between the hands of the
grievance was going to, I sent grievances outside of their facility.” Id. ¶ 86. But accepting these claims does not create
a factual dispute about the following key facts: plaintiff was aware of Clinton C.F.’s grievance procedure, he utilized it
at least in part (i.e., by submitting a grievance in the first instance, before being threatened), and he pursued alternative
remedies (i.e., by “send[ing] grievances outside of their facility”).
*12 More damaging still to plaintiff's arguments about unavailability, the Second Circuit has held that an inmate's prior use, or
even mere knowledge, of a grievance procedure is evidence that it is “available.” See Hall v. Annucci, 2023 WL 7212156, *2 (2d
Cir. Nov. 2, 2023) (summary order) (concluding that an inmate's having “previously used [procedure] to file several grievances”
indicated procedure “was not a dead end nor too opaque for an ordinary prisoner to navigate”); Taylor v. N.Y. City Dep't of
Corr., 849 F. App'x 5, 8 (2d Cir. 2021) (summary order) (holding testimony showing inmate “was familiar with [administrative]
procedures,” but “just chose not to follow them,” did not render procedures unavailable).
Here, the record establishes that plaintiff knew about Clinton C.F.’s three-step procedure. In her declaration, Seguin stated that
she aware that this action involved two incidents, one in October 2016 and one in October 2018, involving plaintiff when he was
housed at Clinton C.F. Seguin Decl. ¶ 13. After describing the incidents as she understood them, Seguin stated that they “are
the proper subject for a grievance under DOCCS grievance procedures” as described above. Id. ¶ 14. A records check Seguin
performed showed that plaintiff never appealed any grievances related to the claims at issue in this case, as exhaustion would
have required. Id. ¶ 17. But he did appeal two grievances filed in December 2014, before his claims in this case arose, and a
third in 2017, which was also unrelated. Id.; see also Seguin Decl., Exh. B.
Like Seguin, Wilcox also ran a records check for plaintiff's grievances. Wilcox Decl. ¶ 14. She found just one grievance
pertaining to this action, submitted in November 2018, which plaintiff had failed to pursue through the entire three-step process,
including both appeals. Id. ¶¶ 15–19 (noting, among other things, that “[f]ollowing an investigation, this grievance was denied
and [p]laintiff did not pursue further appeal to [the central office review committee]”).
Beyond plaintiff's previous and incomplete uses of the procedure, Wilcox further noted that the New York code sections spelling
out the three-step grievance procedure at Clinton C.F. were available to all inmates, including those in the special housing unit,
through the facility's law library. Id. ¶¶ 4, 5. And Wilcox stated that all incarcerated individuals at Clinton C.F. receive trainings
on “the process for filing and appealing grievances” at the facility. Id. ¶ 6.
Furthermore, as discussed above, plaintiff has admitted to being aware of the procedure, even as he contests that he should have
been required to pursue it to completion. Yet as a legal matter, plaintiff has conceded both existence and availability:
Defendants’ Statement: [Plaintiff] did not file any grievances related to the incidents that occurred in October 2016 and
did not appeal any such grievances to [the central office review committee].
Plaintiff's Response: Admitted in part, denied in part. In fact, he filed an OSI investigation, alerting officials that he was
unable to get his grievances in.
Defendants’ Statement: Plaintiff filed a grievance on November 5, 2018, alleging that Defendant Holland slapped him
in the face and making various other allegations that are at issue in this litigation, including allegations related to what
transpired in October 2016.
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Plaintiff's Response: Admitted.
...
Defendants’ Statement: This grievance was investigated by non-party then-Superintendent Earl Bell and denied.
Plaintiff's Response: Admitted.
Defendants’ Statement: Plaintiff did not appeal this grievance to [the central office review committee].
*13 Plaintiff's Response: Admitted in part, denied in part. Plaintiff admits to not appealing to [the central office review
committee], but denies this bars his claims.
PSMF ¶¶ 78, 79, 81, 82 (emphases added, citations to record omitted).
The record therefore shows that the three-step grievance procedure at Clinton C.F. was not only clear enough to use, but also
that plaintiff was aware of it, that he had utilized it in prior and unrelated instances, and that he did not pursue all three steps in
complaints related to this action. While different circumstances certainly could have supported a different conclusion, plaintiff
has failed to identify any facts in the record that would do so here. Accordingly, the procedure was not unavailable under the
exception for opacity.
2. “Machination, Misrepresentation, or Intimidation”
Plaintiff also gestures toward Ross’s third exception, unavailability due to “machination, misrepresentation, or intimidation,”
578 U.S. at 644, arguing that “staff intimidation” constituted “ ‘machination’ and ‘intimidation’ [which] thwart[ed] access” to
the grievance procedure at Clinton C.F., Pl. Opp. at 24. But even taking as true all of plaintiff's factual contentions on this issue,
this argument fails as a matter of law.
The Second Circuit has indeed suggested that “fears related to threats or intimidation [from prison officials] in connection with
the grievance process itself” may render an administrative remedy unavailable. Lucente, 980 F.3d at 312. Accordingly, in some
scenarios, “knowledge of threats or violence ... by prison officials could plausibly constitute intimidation that would satisfy the
objective standard where that conduct was based upon a grievance or complaint ... or could reasonably be viewed ... as an attempt
to silence that inmate or others.” Id. at 313. But whether such circumstances were present here is beyond genuine factual dispute.
That is because, even if plaintiff were subject to such intimidation, the parties do not dispute that it did not deter plaintiff from
initiating the grievance process. For example, plaintiff noted that confinement in the special housing unit after the October 2016
incident, combined with his claim that “[Clinton C.F.] staff ‘[would not] let [plaintiff] put in grievances’ ” together constituted
“physical and procedural barriers to accessing the grievance process at Clinton [C.F.].” PSMF ¶ 113. But in the very next
paragraph, plaintiff admitted to “ ‘putting [in] complaints’ ” and “ ‘fil[ing] a grievance and claim’ ” around the same time, and
then—not before, but after doing so—receiving threats from prison staff. Id. ¶ 114. Accordingly, the record does not establish
a dispute of fact over whether prison officials’ conduct deterred plaintiff or rendered the grievance process unavailable to him
in connection with the relevant events.
Additionally, as detailed above, plaintiff elsewhere admitted that he declined to pursue the three-step grievance process
whatsoever for the October 2016 incident, electing to pursue an outside remedy from the Office of Special Investigations instead,
and that he started, but did not complete, the three-step grievance process in connection with the November 2018 incident.
PSMF ¶¶ 78, 79, 81, 82.
*14 As to the former incident, while the Second Circuit has held that some “concurrent administrative investigation[s]” may
bar submission of a grievance, merely electing to pursue a different remedy, for example by complaining to the Inspector
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General's Office, generally will not render a remedy unavailable. Kearney v. Gebo, 713 F. App'x 39, 42 (2d Cir. 2017) (summary
order). 8 And as to the latter, without a nonconclusory factual basis on which to conclude otherwise, completing the first step
establishes that the grievance process was available to plaintiff. See Hall, 2023 WL 7212156, at *2. Therefore, the record does
not indicate that the administrative remedies at Clinton C.F. were unavailable to plaintiff due to prison officials’ “machination,
misrepresentation, or intimidation.”
8 Defendants appropriately cite Kearney, among other cases, in observing that “[i]t is well settled that an incarcerated
individual must use the established grievance process and cannot exhaust his administrative remedies by other
processes.” Def. Reply at 19.
v. Exhaustion
For completeness's sake, the Court considers separately whether plaintiff exhausted the administrative remedies available to
him at Clinton C.F. As suggested elsewhere in this order, the record plainly shows that he did not, and no genuine, material
dispute exists as to this fact.
For his part, plaintiff argues that he “exhausted available remedies through OSI,” apparently referring to a separate process
through the Office of Special Investigations. Pl. Opp. at 24 (emphasis added, capitalization omitted). But pursuing outside or
otherwise alternative remedies, particularly when prisons’ remedies are available, does not satisfy the PLRA. Kearney, 713 F.
App'x at 42 (holding pursuing outside remedies is generally not exhaustion); Jones, 549 U.S. at 218 (holding prison systems
determine what constitutes exhaustion).
In this legal context, plaintiff's own version of events essentially closes the door on his exhaustion argument. See PSMF ¶¶ 78
(admitting to pursuing an Office of Special Investigations remedy instead of filing grievances at Clinton C.F.), 79 (admitting
to filing a grievance pertaining to the October 2016 incident), 81 (admitting the Clinton C.F. superintendent denied relief as
to the same grievance), 82 (admitting to failing to appeal the Clinton C.F. superintendent's denial of the same grievance to the
central office review committee).
In summary, the record shows that plaintiff did not exhaust his administrative remedies.
B. Remaining Arguments and Defenses
Beyond their disagreements concerning the PLRA, the parties offer a litany of arguments and defenses about the substantive
claims in this case. See generally Pl. Opp.; Def. Reply; Pl. Reply. But, when applicable, the PLRA bars any non-exhausted
claims from federal court. 42 U.S.C. § 1997e(a); see Amador, 665 F.3d at 96. Thus, the Court need not reach these arguments.
Further, plaintiff has expressly abandoned his Eighth Amendment excessive force claims against Stotler and Barber pertaining
to the 2018 incident; as well as his Eighth Amendment deliberate indifference claim against Holland. Pl. Opp. at 40 (“Plaintiff
concedes to dismissing claims against Stotler and Barber for the 2018 excessive force incident.”; “Plaintiff concedes to
dismissing [the Eighth Amendment deliberate indifference] claim against Defendant Holland.”).
For the remaining claims, however, a § 1983 action is unavailable to plaintiff in this case.
V. CONCLUSION
As to the remaining claims in this case, even accepting plaintiff's nonconclusory version of the salient events as true and drawing
all reasonable inferences in his favor, no rational juror could find that a reasonable person in plaintiff's position would have
believed the administrative remedies at Clinton C.F. unavailable. Therefore, plaintiff cannot pursue such claims in a § 1983
action against prison officials. Accordingly, defendants’ motion for summary judgment must be granted, and plaintiff's cross-
motion for summary judgment must be denied.
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*15 Therefore, it is
ORDERED that
1. Defendants’ motion for summary judgment (Dkt. No. 91) is GRANTED;
2. Plaintiff's cross-motion for summary judgment (Dkt. No. 99) is DENIED; and
3. Plaintiff's operative complaint (Dkt. No. 28) is DISMISSED.
The Clerk of the Court is directed to terminate the pending motion, enter a judgment accordingly, and close the file.
IT IS SO ORDERED.
All Citations
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