Hubbs v. County of Suffolk et al

Filing 37

MEMORANDUM & ORDER granting 32 Motion for Summary Judgment; Defendants' motion for summary judgment due to Plaintiff's failure to exhaust his administrative remedies is GRANTED, and Plaintiff's claims are DISMISSED WITHOUT PR EJUDICE. If exhaustion remains a possibility, Plaintiff may re-file his complaint upon exhaustion. The Clerk of the Court is directed to enter judgment accordingly and the mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 6/9/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
GREGORY HUBBS,
Plaintiff,

MEMORANDUM & ORDER
11-CV-6353(JS)(WDW)

-againstCOUNTY OF SUFFOLK, SUFFOLK COUNTY
SHERIFF’S DEPARTMENT, SERGEANT
ANDREW WALTHER #S-63, DEPUTY
SHERIFF KEITH MORAN #480, DEPUTY
SHERIFF THOMAS GUYDISH #490,
DEPUTY SHERIFF ALLISON ZACCINO
#418, and JOHN DOE DEPUTY SHERIFF
OFFICERS 1-2,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Leo Glickman, Esq.
Stoll, Glickman & Bellina, LLP
475 Atlantic Avenue, Floor 3
Brooklyn, NY 11217
For Defendants
Suffolk County
Sheriff’s Dep’t
& John Does:

No appearances.

Remaining
Defendants:

Brian C. Mitchell, Esq.
Suffolk County Dep’t of Law-County Attorney
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Currently

pending

before

the

Court

is

defendants

County of Suffolk (the “County”), Deputy Sheriff Sergeant Andrew
Walther,

Deputy

Guydish,

and

Sheriff

Deputy

Keith

Sheriff

Moran,

Allison

Deputy
Zaccino’s

Sheriff

Thomas

(collectively,

“Defendants”) motion for summary judgment dismissing the Amended
Complaint by plaintiff Gregory Hubbs (“Plaintiff”).

For the

following reasons, Defendants’ motion is GRANTED.
BACKGROUND 1
The case involves events that occurred on November 10,
2009.

(Defs.’ 56.1 Stmt., Docket Entry 32-2, ¶ 1.)

Plaintiff

alleges that he began a conversation with an individual named
Anthony Oddone while housed in a holding cell in the custody of
the Suffolk County Sheriff’s Department.
Entry

14,

¶¶

17-18.)

Plaintiff

(Am. Compl., Docket

apparently

had

a

friendly

conversation with Mr. Oddone, who Plaintiff later learned was
accused

of

murdering

an

off-duty

Department Correction Officer.

Suffolk

County

(Am. Compl. ¶ 19.)

Sheriff’s
Plaintiff

asserts that, after that conversation, Defendants subjected him
to excessive force.
Although

(Defs.’ 56.1 Stmt. ¶ 1.)
Plaintiff

filed

a

grievance

seeking

reimbursement for property that was lost on November 10, 2009
after he was taken to the hospital, Plaintiff did not file a
grievance relating to the use of force.
¶¶ 2-3.)
Desir,

(Defs.’ 56.1 Stmt.

However, a witness to the alleged assault, Natalie
informed

Plaintiff’s

mother,

1

Lillian

Hubbs,

of

the

The following facts are drawn from the parties’ Local Rule 56.1
Statement (“56.1 Stmt.”) and Counterstatement (“56.1
Counterstmt.”) and the exhibits attached thereto and submitted
therewith.
2

incident.

(Pl.’s 56.1 Counterstmt., Docket Entry 33, ¶ 11.)

Ms. Hubbs then called Plaintiff’s criminal attorney, Christopher
Cassar.

(Pl.’s 56.1 Counterstmt. ¶ 12.)

Ms. Hubbs also called

the Suffolk County Correction Department at Yaphank Correctional
Facility.

(Pl.’s 56.1 Counterstmt. ¶ 13.)

According to Ms.

Hubbs, she was told to lodge her complaint with the internal
affairs

office

at

the

Counterstmt. ¶ 13.)

Sheriff’s

Department.

(Pl.’s

56.1

She followed up with a subsequent phone

call on November 17, 2009.

(Pl.’s 56.1 Counterstmt. ¶ 17.)

On

November 11 or 12, 2009, Mr. Cassar also faxed and sent a letter
to

the

Suffolk

investigation.

County

Sherriff’s

Office

requesting

an

(Pl.’s 56.1 Counterstmt. ¶¶ 14, 16.)

Plaintiff
November 11, 2009.

was

seen

for

a

medical

evaluation

(Pl.’s 56.1 Counterstmt. ¶ 16.)

on

An Internal

Affairs investigation was conducted; investigators interviewed
Plaintiff,

Ms.

Desir,

and

others;

and

personnel

Plaintiff’s medical records and other documents.
Counterstmt. ¶¶ 20-22.)
page

report

and

the

reviewed

(Pl.’s 56.1

The investigation resulted in a five-

investigation

was

closed.

(Pl.’s

56.1

Counterstmt. ¶ 22.)
Plaintiff

now

raises

claims

pursuant

to

42

U.S.C.

§ 1983 (“Section 1983”) for, inter alia, violation of his due
process rights under the Fourteenth Amendment and violation of

3

his Eighth Amendment right to be free from cruel and unusual
punishment.
DISCUSSION
Defendants

seek

Plaintiff’s

claims

exhaust

administrative

his

are

summary

barred

judgment,

because

remedies

as

arguing

Plaintiff
required

that

failed

and

that

to
he

cannot recover against the County because he lacks evidence of a
municipal policy or custom.

The Court will first address the

applicable legal standard before turning to Defendants’ motion
and the parties’ arguments more specifically.
I.

Legal Standard
Summary judgment is only appropriate where the moving

party can demonstrate that there is “no genuine dispute as to
any material fact” and that the moving party is entitled to
judgment

as

a

matter

of

law.

FED. R. CIV. P.

56(a).

In

considering this question, the Court considers “the pleadings,
depositions, answers to interrogatories and admissions on file,
together with any other firsthand information including but not
limited to affidavits.”

Nnebe v. Daus, 644 F.3d 147, 156 (2d

Cir. 2011) (citation omitted); see also FED. R. CIV. P. 56(c).
“In assessing the record to determine whether there is a genuine
issue to be tried . . . the court is required to resolve all
ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought.”
4

McLee v.

Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).

The burden of

proving that there is no genuine issue of material fact rests
with the moving party.

Gallo v. Prudential Residential Servs.,

L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. &
Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)).
burden

is

met,

the

non-moving

party

must

“come

Once that

forward

with

specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.
1998),

to

demonstrate

that

“the

evidence

is

such

that

a

reasonable jury could return a verdict for the nonmoving party,”
Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505,
2510,

91

L.

Ed.

2d

202,

218

(1986).

“Mere

allegations or denials will not suffice.”
781 F.2d 319, 323 (2d Cir. 1986).

conclusory

Williams v. Smith,

And “unsupported allegations

do not create a material issue of fact.”

Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir. 2000), superseded by statute on
other grounds as stated in Ochei v. Coler/Goldwater Mem’l Hosp.,
450 F. Supp. 2d 275, 282 (S.D.N.Y. 2006).
II. Analysis
Defendants
are

precluded

primarily

because

he

did

assert
not

remedies prior to bringing suit.

that

exhaust

Plaintiff’s
his

claims

administrative

The Court agrees.

Under the Prison Litigation Reform Act (the “PLRA”),
an

inmate

must

exhaust

all

available

administrative

remedies

prior to commencing an action challenging the conditions of his
5

incarceration.

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 confined in
any

jail,

prison,

or

other

correctional

facility

until

such

administrative remedies as are available are exhausted.”).

The

PLRA exhaustion requirement applies to “all inmate suits about
prison

life,

whether

they

involve

general

circumstances

or

particular episodes, and whether they allege excessive force or
some other wrong.”

Porter v. Nussle, 534 U.S. 516, 532, 122 S.

Ct.

L.

983,

992,

152

Ed.

2d

12

(2002).

“Congress

enacted

§ 1997e(a) to reduce the quantity and improve the quality of
prisoner suits; to this purpose, Congress afforded corrections
officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.”

Id. at 524-

25.
The

PLRA

requires

“proper

exhaustion,”

which

“means

using all steps that the agency holds out, and doing so properly
(so

that

the

agency

addresses

the

issues

on

the

merits).”

Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175–76 (2d Cir. 2006)
(internal quotation marks omitted) (emphasis in the original)
(quoting Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378,
165

L.

Ed.

administrative

2d

368

(2006)).

remedies

Thus,

prisoners

“to
must

properly

exhaust

‘complete

the

administrative review process in accordance with the applicable
6

procedural rules,’--rules that are defined not by the PLRA, but
by the prison grievance process itself.”

Jones v. Bock, 549

U.S. 199, 218, 127 S. Ct. 910, 922, 166 L. Ed. 2d 798 (2007)
(internal citations omitted) (quoting Woodford, 548 U.S. at 88).
Here, the Suffolk County Correctional Facility has a
formal

grievance

program

Grievance Program (“IGP”).

for

inmates

known

as

the

Inmate

The Inmate Handbook specifies that,

if an inmate has a problem, he should first attempt to resolve
it with an officer assigned to the unit.
Defs.’

56.1

Stmt.

Ex.

D,

at

15.)

If

a

(Inmate Handbook,
resolution

is

not

reached, the inmate may request a grievance form, which will
then be forwarded to the Sergeant assigned to the housing unit
upon completion.

(Inmate Handbook at 15.)

If the issue still

is not resolved, the Housing Sergeant will forward the grievance
to the Grievance Coordinator, who will conduct an investigation.
(Inmate Handbook at 16.)

The Handbook then goes on to detail

the appeal process thereafter.

(Inmate Handbook at 16.)

“An

inmate must file a grievance within (5) five days of the date of
the act or occurrence giving rise to the grievance.”
Handbook at 15.)

(Inmate

Just below the explanation of the procedures,

the Inmate Handbook notes: “THE FOLLOWING DECISIONS WILL NOT BE
SUBJECT OF A GRIEVANCE AND THEREFORE MAY NOT BE APPEALED TO THE
WARDEN OR THE CITIZENS POLICY AND COMPLAINT REVIEW COUNCIL . . .

7

Issues that are outside the Warden’s control.”

(Inmate Handbook

at 16 (emphasis in original).)
Plaintiff does not dispute that he failed to comply
with the grievance procedures available at the Suffolk County
Correctional Facility.
“[W]hile

the

PLRA’s

This does not end the inquiry, however.
exhaustion

certain caveats apply.”

requirement

is

‘mandatory,’

Giano v. Goord, 380 F.3d 670, 675 (2d

Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 524, 122 S.
Ct. 983, 152 L. Ed. 2d 12 (2002)).

In Hemphill v. New York, 380

F.3d 680, 686 (2d Cir. 2004), the Second Circuit held that a
“three-part inquiry is appropriate in cases where a prisoner
plaintiff plausibly seeks to counter defendants’ contention that
the

prisoner

has

failed

to

exhaust

available

remedies as required by the PLRA.”
determine

“whether

First, the court should

administrative

‘available’ to the prisoner.”

administrative

remedies

were

in

fact

Id. (quoting Abney v. McGinnis,

380 F.3d 663, 667-69 (2d Cir. 2004)).

Second, the court should

ask “whether the defendants may have forfeited the affirmative
defense of non-exhaustion by failing to raise or preserve it” or
“whether

the

defendants’

own

actions

inhibiting

the

inmate’s

exhaustion of remedies may estop one or more of the defendants
from raising the plaintiff’s failure to exhaust as a defense.”
Id. (citing Johnson v. Testman, 380 F.3d 691, 695-96 (2d Cir.
2004)).

Third,

the

court

“should
8

consider

whether

‘special

circumstances’
prisoner’s

have

been

failure

requirements.’”

to

plausibly

comply

alleged

with

that

justify

administrative

‘the

procedural

Id. (quoting Giano, 380 F.3d at 689-91).

Plaintiff asserts that his failure to exhaust should
be excused.
A.

The Court will address each basis in turn.

Whether Administrative Remedies Were Available to
Plaintiff
Plaintiff

maintains

Correctional

Facility’s

available

him

to

that

the

administrative

because

he

was

Suffolk

remedies

assaulted

County

were

outside

not

of

jurisdiction.

(Pl.’s Opp. Br., Docket Entry 33-3, at 9.)

specifically,

he

its

claims

that,

because

he

was

More

assaulted

by

Suffolk County Deputy Sheriffs inside the courthouse, even if he
had

grieved

it,

it

would

have

been

referred

County Sheriff’s Office Internal Affairs.
9.)

to

the

Suffolk

(Pl.’s Opp. Br. at

Defendants counter that the administrative remedies were

available to him and that Plaintiff’s failure to grieve cannot
be excused due to his mere speculation that his grievance would
have been denied.

(Def.’s Br., Docket Entry 32-4, at 8-9.)

The

Court agrees with Defendants.
Initially, Defendants proffer admissible evidence in
the form of an affidavit from the Grievance Coordinator at the
Suffolk

County

Correctional

Docket Entry 32-12.)

Facility.

(See

Rosenblatt

Craig Rosenblatt affirmed that

9

Aff.,

[a]ny grievance filed by an inmate within
five (5) days of the act or occurrence
giving rise to the grievance, concerning an
act or occurrence that took place while the
inmate was detained in the County Court
Holding facility would be accepted by the
grievance coordinator and a determination
would be made regarding what action should
be taken to resolve and rectify the matter.
(Rosenblatt Aff. ¶ 10.)
“The test for deciding the availability of grievance
procedures is an objective one: that is, the court asks whether
‘a

similarly

situated

individual

have deemed them available.”
CV-9254,

2013

WL

1209567,

of

ordinary

firmness’

would

White v. Dep’t of Corr., No. 11at

*3

(S.D.N.Y.

Mar.

21,

2013)

(quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)).
Here, while the Inmate Handbook does reference issues outside of
the warden’s control, that portion relates to appeals, not to
commencement of the grievance process, and there is nothing to
suggest that a similarly situated individual would have deemed
the

incident

to

be

outside

the

warden’s

control.

(Inmate

Handbook at 16.)
Moreover, although Plaintiff takes issue with the fact
that Mr. Rosenblatt was not disclosed in the parties’ Joint PreTrial

Order

(Pl.’s

Opp.

Br.

at

10

n.2),

Plaintiff

proffers

merely speculation to suggest that his grievance would not have

10

been accepted or would have been futile. 2

This is insufficient.

See Magassouba v. Cross, No. 08-CV-4560, 2010 WL 1047662, at *10
(S.D.N.Y. Mar. 2, 2010) (“An inmate’s perception, based on past
experience,
does

not

that

relieve

the

grievance

an

inmate

of

process
the

will

be

exhaustion

unsuccessful,
requirement.”)

(collecting cases), adopted by 2010 WL 4908670 (S.D.N.Y. Nov.
30, 2010); cf. Harris v. NYC Dep’t of Corr. & The Inst. Mental
Health Unit (St. Barnabas), No. 00-CV-7164, 2001 WL 845448, at
*4 (S.D.N.Y. July 25, 2001) (“Such an assertion [that remedies
were unavailable], with no support, in light of the elaborate
statutory grievance scheme, is simply insufficient to overcome
the motion to dismiss.”).
B.

Whether Defendants Have Forfeited the Defense of NonExhaustion
Even if the grievance process was available, Plaintiff

maintains that he should be excused from non-exhaustion because
Defendants

forfeited

their

affirmative

defense

by

responding

affirmatively and conducting an internal investigation without
raising any deficiencies in the “form, content or timeliness of
Mr. Cassar’s [or] Ms. Hubbs’ complaint prior to litigation.”
(Pl.’s Opp. Br. at 14.)

The Court disagrees.

2

While information Plaintiff received from his mother, or maybe
even other detainees, may have led to Plaintiff’s belief that
administrative remedies were not available to him, there is no
evidence to suggest that this was anything other than
Plaintiff’s belief.
11

First, even where officials are aware of the problem
or

issue,

the

plaintiff

administrative remedies.
CV-5198,

2012

WL

must

still

formally

exhaust

See Williams v. Suffolk Cnty., No. 11-

6727160,

at

*4

(E.D.N.Y.

Dec.

28,

2012)

(finding that the plaintiff’s complaint to Internal Affairs did
not constitute proper exhaustion).
both

Plaintiff’s

mother

and

While it is undisputed that

his

criminal

attorney

made

complaints to the Internal Affairs Section of the Suffolk County
Sheriff’s Office and that an investigation was conducted, this
means only that officials may have been aware of the alleged
assault

on

complaint,

Plaintiff.
however,

Awareness

does

procedural requirements.

the

substance

equate

not

of

to

of

compliance

a

with

See Macias v. Zenk, 495 F.3d 37, 43

(2d Cir. 2007); Hill v. Tisch, No. 02-CV-3901, 2009 WL 3698380,
at *8 (E.D.N.Y. Oct. 30, 2009); Toomer v. Cnty. of Nassau, No.
07-CV-1495, 2009 WL 1269946, at *9 (E.D.N.Y. May 5, 2009).
Second,

the

internal

investigation

is

separate

and

apart from the grievance process and cannot excuse compliance
with grievance procedures.

There is nothing to suggest that

Defendants, or anyone else, stated that the investigation would
substitute for the grievance procedures or at all refused to
allow Plaintiff to exhaust.

See Toomer, 2009 WL 1269946, at *7

(“Plaintiff’s conclusory assertion that he was led to believe
his

Complaint

was

not

[a]

grievable
12

issue

because

[it

was]

reported

to

and

investigated

by

[the]

Sheriff’s

Bureau

of

Investigation, without any specific allegations or evidence of
how defendants led plaintiff to incorrectly believe such, is
insufficient

. . . .”

(internal

quotation

omitted)).

At

Plaintiff

argues

best,

marks

that,

and

when

citation

his

mother

called about the assault, she was told to talk with Internal
Affairs.

This is not the type of scenario sufficient to find

that the defendants were estopped from raising non-exhaustion.
See, e.g., Bailey v. Fortier, No. 09-CV-0742, 2012 WL 6935254,
at *7 (N.D.N.Y. Oct. 4, 2012) (concluding that the defendant
would

not

refused

be

to

estopped

provide

because,

the

even

plaintiff

with

where

other

necessary

officials
forms

and

cooperation, the defendant did not participate in such refusal),
adopted by 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013); Hargrove v.
Riley, No. 04-CV-4587, 2007 WL 389003, at *9 (E.D.N.Y. Jan. 31,
2007) (“[D]efendants have not threatened [plaintiff] or engaged
in other conduct preventing him from exhausting the available
administrative remedies.”).
Plaintiff cites to cases in which the grievance was
untimely,

but

officials

merits of the complaint.
circumstance[s],

nonetheless

addressed

the

(Pl.’s Opp. Br. at 14-15.)

‘[c]ourts

of

this

circuit

have

substantive
“In these
found

that

prison officials may not raise a non-exhaustion defense based on
the

alleged

untimeliness

of

a
13

prisoner’s

filing

where

they

accepted that filing and considered it on the merits.’”

Howard

v. Bhatti, No. 08-CV-2645, 2010 WL 5067574, at *4 (E.D.N.Y. Dec.
6, 2010) (quoting Tyree v. Zenk, No. 05-CV-2998, 2007 WL 527918
(E.D.N.Y. Feb. 14, 2007)).

Here, however, there was no untimely

grievance, but rather no grievance at all.
C.

Whether Special Circumstances Exist
Finally,

should

be

Plaintiff

excused

asserts

because

that

special

his

non-exhaustion

circumstances

exist.

Specifically, he maintains that he reasonably believed that the
Suffolk County Correctional Facility’s administrative remedies
were

not

available.

(Pl.’s

Opp.

Br.

at

12.)

The

Court

disagrees.
“[A]mong
‘special’

include

the

circumstances

those

where

that

a

may

be

plaintiff’s

considered
reasonable

interpretation of applicable regulations regarding the grievance
process differs from that of prison officials and leads him or
her to conclude that the dispute is not grievable.”
2009 WL 1269946, at *8.

Toomer,

Plaintiff relies, in part, upon his

alleged understanding that the issues he sought to grieve were
outside of the warden’s control.

(See Pl.’s Opp. Br. at 13

(referring to his “reasonable interpretation of the grievance
procedures”).)

However,

Plaintiff’s

deposition

testimony

demonstrates that he did not interpret the grievance procedure

14

at all at the relevant time.

(Pl.’s Dep., Defs.’ 56.1 Stmt. Ex.

C, at 50.)
Moreover, Plaintiff also cites to information from his
mother that she was told to lodge a complaint with Internal
Affairs

and

reasonably

to

the

believed

actual

investigation

administrative

remedies

to

show

were

that

he

unavailable.

As already stated, though, the Internal Affairs investigation
was

independent

of

the

grievance

procedure

and

this

case

contains virtually no similarity to those in which courts have
found special circumstances.

See Brownell v. Krom, 446 F.3d

305, 313 (2d Cir. 2006) (finding special circumstances where
prison official refused to investigate and, after the plaintiff
conducted

his

own

investigation,

reasonably

believed

that

he

could not raise the new facts in administrative proceedings);
contra Rodriguez v. Mount Vernon Hosp., No. 09-CV-5691, 2010 WL
3825736, at *18 (S.D.N.Y. Sept. 7, 2010) (“[Plaintiff’s] writing
a letter to Dr. Wright instead of filing a formal grievance and
his allegedly being told that it would be futile to appeal his
grievance

do

not

excuse

or

preclude

him

from

exhausting

administrative remedies.”), adopted by 2010 WL 3825715 (S.D.N.Y.
Sept. 30, 2010).
In addition, Plaintiff filed a grievance regarding his
alleged

lost

property.

(Defs.’

56.1

Stmt.

¶

2.)

This

demonstrates that Plaintiff had at least some concept that the
15

grievance
Toomer,

procedures

2009

WL

may

have

1269946,

at

been
*8

available

(finding

a

to

lack

him.
of

See

special

circumstances where the plaintiff had filed a prior grievance).
Thus, the Court finds that Plaintiff failed to exhaust
his administrative remedies, as required, and that his failure
is not excused.
D.

Dismissal With Prejudice
The only remaining issue, then, is whether this case

should be dismissed with or without prejudice.
prisoner’s

failure

to

exhaust

his

Generally, a

administrative

requires dismissal of the action without prejudice.
v.

Melindez,

199

F.3d

108,

111-12

(2d

Cir.

when

judgment.”

the

issue

is

decided

on

a

See Snider

1998);

Reilly, 324 F. Supp. 2d 361, 366 (E.D.N.Y. 2004).
even

remedies

motion

Davis

v.

“This is so
for

summary

Mateo v. Corebine, No. 09-CV-4811, 2010 WL 3629515,

at *7 (S.D.N.Y. Sept. 17, 2010).
There

are,

however,

situations

where

dismissal

with

prejudice is appropriate, such as where the prisoner has been
transferred to another correctional facility or administrative
remedies are no longer available.

See Davis, 324 F. Supp. 2d at

366; see also Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2003).
Here, although it is likely that Plaintiff has been transferred,
the parties have not addressed this issue and the record is
incomplete

in

this

regard.

Thus,
16

given

the

general

rule,

Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE.
event

that

plaintiff

has

exhausted

or

does

“In the

exhaust

his

administrative remedies fully [if possible], he may refile his
complaint and reinstitute his suit.”

Mateo, 2010 WL 3629515, at

*7.
The Court also notes that this is a full dismissal of
the action.

Although the Suffolk County Sheriff’s Department

has not appeared in the action, it is not a suable entity and
claims against it are duplicative of those against the County.
See

Hayes

(S.D.N.Y.

v.

Cnty.

2012)

of

(finding

Sullivan,
that

the

853

F.

Supp.

Sullivan

2d

County

400,

438

Sheriff’s

Department is not a suable entity); Melendez v. Nassau Cnty.,
No. 10-CV-2516, 2010 WL 3748743, at *5 (E.D.N.Y. Sept. 17, 2010)
(finding that the Nassau County Sheriff’s Department Division of
Correction is not a suable entity); Barreto v. Suffolk Cnty.,
No. 10-CV-0028 (JS)(AKT), 2010 WL 301949, at *2 (E.D.N.Y. Jan.
20, 2010) (finding that the Suffolk County Sheriff’s Department
is not a suable entity).

Moreover, given that the Court has

found a lack of exhaustion for individual liability, liability
against the County cannot stand.

See Daly v. Ragona, No. 11-CV-

3836, 2013 WL 3428185, at *10 (E.D.N.Y. July 9, 2013) (declining
to impose liability against the County where claims against the
individual County defendants could not stand).

17

CONCLUSION
Defendants’

motion

for

summary

judgment

due

to

Plaintiff’s failure to exhaust his administrative remedies is
GRANTED, and Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE.
If exhaustion remains a possibility, Plaintiff may re-file his
complaint upon exhaustion.

The Clerk of the Court is directed

to enter judgment accordingly and the mark this matter CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

June 9, 2014
Central Islip, NY

18