Edwards v. Destefano

Filing 139

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the stated reasons (Please See Order For Further Details), Plaintiff's objections are OVERRULED, the R&R is ADOPTED in its entirety, and Defendants' Summary Judgment Motion is GRANTED. The Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 9/28/2023. (GO)

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 1 of 22 PageID #: 686
FILED 
CLERK 

9/28/2023 4:48 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
RAHEEM EDWARDS,
Plaintiff,

MEMORANDUM & ORDER
13-CV-4345 (JS)(JMW)

-againstOFFICER DESTEFANO; SERGEANT
MCNAMARA; SERGEANT O’BRIEN;
OFFICER CARPIO; CORPORAL
ANDERSON; CORPORAL SCHNEIDER; and
OFFICER PICOLLI,

Defendants.
--------------------------------X
APPEARANCES
For Plaintiff:
Raheem Edwards, pro se
06A6473
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
For Defendants:

Ian Bergstrom, Esq.
Office of the Nassau County Attorney
General Litigation & Appeals
One West Street, Suite 275g
Mineola, New York 11501

SEYBERT, District Judge:
Officer DeStefano, Sergeant McNamara, Sergeant O’Brien,
Officer Carpio, Corporal Anderson, Corporal Schneider, and Officer
Picolli (collectively “Defendants”) move pursuant to Federal Rule
of Civil Procedure (“Rule”) 56 for summary judgment (the “Motion”).
(See ECF No. 113.)
(the

“R&R”),

By Report & Recommendation dated July 14, 2023

Magistrate

Judge

James W.

recommended Defendants’ Motion be granted.
at 8-18.)

Wicks (“Judge

Wicks”)

(See R&R, ECF No. 131,

Raheem Edwards (“Plaintiff”) filed timely objections to

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 2 of 22 PageID #: 687

the

R&R.

(See

ECF

No.

134.)

For

the

following

reasons,

Plaintiff’s objections to the R&R are OVERRULED, and the R&R is
ADOPTED in its entirety.
BACKGROUND
The Court adopts the relevant factual background stated
by Judge Wicks in his R&R, finding the R&R accurately summarizes
the relevant facts pertinent to this case, which are incorporated
herein. 1

(See id. at 2-5.)

Similarly, the Court adopts Judge

Wicks’ recitation of the relevant procedural history, which is
also incorporated herein.

(Id. at 5-6.)

See Sali v. Zwanger &

Pesiri Radiology Grp., LLP, No. 19-CV-0275, 2022 WL 819178, at *1
(E.D.N.Y.

Mar.

18,

2022)

(“Because

neither

Plaintiff

nor

Defendants challenge the Magistrate Judge’s recitation of the
facts, and the Court finds no clear error in that recitation, the
Court

incorporates

Background’

the

sections

of

‘Factual
the

Background’

Magistrate

Recommendation into this Order.”)

and

Judge’s

‘Procedural
Report

and

For the readers’ convenience,

the Court reiterates the following.
I.

Facts
“Plaintiff

was

an

inmate

at

the

Nassau

Correctional Center (“NCC”) in East Meadow, New York.”
2.)

County
(R&R at

Plaintiff alleges that on April 19, 2013, while waiting in

Judge Wicks’ summation of the relevant factual background was
derived from the parties’ respective Rule 56.1 Statements.
1

Page 2 of 22

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line to be let outside for recreation, an altercation ensued
resulting in Defendants allegedly punching Plaintiff in the face,
head, back, and side.

(Id. at 2-3.)

was sprayed with pepper spray.

(Id.)

Plaintiff also alleges he
Additionally, Plaintiff

complains he was further denied medical treatment by the Defendants
after the physical confrontation, and that he was “denied showers,
phone

calls

[hygiene]

and

toiletries”;

similarly,

Plaintiff

asserts his “property was destroyed by [the] officers.”
3.)

(Id. at

“Plaintiff was transferred from the NCC to a different

facility on April 26, 2013.”

(Id.)

“The Department of the Nassau County Sherriff and the
NCC promulgated an ‘Inmate Handbook[,]’” which “became effective
as of April 1, 2010.”

(Id.)

Of import, the Inmate Handbook “sets

forth an overview of the ‘Grievance Procedure’ applicable to the
NCC.” (Id. at 4.) Plaintiff received a copy of the Inmate Handbook
during his incarceration at NCC.

(Id.)

The parties dispute

“whether Plaintiff exhibited any behavior that may have caused or
contributed

to

the

excessive

force

or

property

loss

issues . . . and whether Plaintiff submitted any grievances during
his incarceration at NCC.”
II.

(Id.)

Procedural History
On August 29, 2022, Defendants filed their Motion.

(See

Motion; see also Support Memo, ECF No. 113-9, attached to Motion.)
Plaintiff opposed Defendants’ Motion.
Page 3 of 22

(See Opp’n, ECF No. 122.)

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 4 of 22 PageID #: 689

On April 27, 2023, this Court referred Defendants’ Motion to Judge
Wicks for a report and recommendation.
Order Referring Mot.)
recommending

(See Apr. 27, 2023 Elec.

Judge Wicks issued his R&R on July 14, 2023,

Defendants’

Motion

be

granted.

(R&R

at

18.)

Plaintiff was advised objections to the R&R “must be filed with
the Clerk of the Court within fourteen (14) days of service of”
the R&R.
time.

(Id.)

Plaintiff failed to file objections within this

Nevertheless, the Court sua sponte extended the time for

Plaintiff to file objections to August 22, 2023.
2023

Elec.

objections

Order.)
to

the

On
R&R,

August
(see

4,

2023,

Obj.,

ECF

Defendants responded on August 8, 2023.

(See Aug. 1,

Plaintiff
No.

filed

134.),

to

his

which

(See Response, ECF No.

135.)
III. Judge Wicks’ R&R
In the R&R, after summarizing the material facts and
procedural history of the action, Judge Wicks identified the rules
governing summary judgment, together with the special solicitude
rules courts generally extend to pro se litigants opposing such
motions.

(See R&R at 6-8.)

A. Exhaustion of Administrative Remedies
Next, Judge Wicks identified, “Defendants’ motion for
summary judgment [was] premised on Plaintiff’s failure to exhaust
his

administrative

remedies,”

and

such

[Plaintiff’s] claims barred by the” PLRA.
Page 4 of 22

failure

“render[ed]

(Id. at 8.) Judge Wicks

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 5 of 22 PageID #: 690

noted Plaintiff’s claims arose pursuant to Section 1983, and, after
detailing the legal elements required to properly plead a Section
1983 claim, highlighted, “[p]ursuant to the PLRA, prisoners cannot
bring an action under Section 1983 or any federal law ‘until such
administrative remedies as are available are exhausted.’”
(quoting

42

U.S.C.

§ 1997e(a)).)

Moreover,

Judge

(Id.
Wicks

highlighted “the PLRA establishes a mandatory exhaustion regime
that forecloses judicial discretion over an unexhausted claim.”
(Id. at 9 (citing Senear v. Mininni, No. 21-CV-11131, 2023 WL
4422805, at *2 (S.D.N.Y. July 10, 2023)).)

The R&R notes the

PLRA’s exhaustion requirement “‘applies to all inmate suits about
prison life,’” including those which “‘allege excessive force.’”
(Id. (quoting Angulo v. Nassau County, 89 F. Supp. 3d 541, 549
(E.D.N.Y.

2015)).)

Compliance

with

the

PLRA’s

exhaustion

requirement requires prisoners to “utilize the State’s grievance
procedures, regardless of whether the relief sought is offered
through those procedures.”

(Id.)

To determine whether a prisoner

has complied with the PLRA, the R&R states “courts ‘look at the
state prison procedures and the prisoner’s grievance to determine
whether the prisoner has complied with those procedures.’”
Since

administrative

exhaustion

is

an

(Id.)

affirmative

defense, Judge Wicks next outlined the “defendant bears the burden
of establishing a plaintiff’s failure to exhaust administrative
remedies.”

(Id. (citing Hubbs v. Suffolk County Sherriff’s Dep’t,
Page 5 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 6 of 22 PageID #: 691

788 F.3d 54, 59 (2d Cir. 2015)).)

To meet this burden, a defendant

must “point[] to legally sufficient source[s] such as statutes,
regulations, or grievance procedures, that a grievance process
exists and applies to the underlying dispute.”

(Id.)

However,

the R&R further recognizes “[e]ven where a defendant meets this
burden,

‘administrative

remedies

may

nonetheless

be

deemed

unavailable if the plaintiff can demonstrate that other factors—
for example, threats from correction officers—rendered a nominally
available procedure unavailable as a matter of fact.’”

(Id. at 9-

10.)
Next, Judge Wicks determined “[t]he threshold question
of exhaustion under the PLRA is for the court to decide, even if
there exist disputed issues of fact.”

(Id. (citing Messa v. Goord,

652 F.3d 305, 309 (2d Cir. 2011)).)

Consequently, turning to

Defendants’ Motion, Judge Wicks found Plaintiff was familiar with,
and received, the Inmate Handbook during his incarceration which
detailed “numerous ways a prisoner [could] report the use of
excessive force, outline[d] the general grievance procedure, and
explain[ed] the appeals process.”

(Id. at 10.)

Specifically,

Judge Wicks stated the Inmate Handbook detailed the following
grievance procedure:
[t]he Grievance Procedure dictates that an
inmate must fill out a grievance form within
five (5) days of the act or occurrence leading
to the grievance and within five (5) business
days of receipt of a grievance, the Grievance
Page 6 of 22

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Coordinator will issue a written finding. If
the inmate does not agree with the decision,
the Inmate Handbook details the process for
the inmate to appeal, first to the Chief
Administrative Officer, then to the New York
State Commission of Correction’s Citizens
Policy and Complaint Review Council.
The
Inmate Handbook also explicitly states that an
inmate may file a grievance if the inmate
believes the corrections staff have used
excessive force.
(Id. (quoting Trotman v. Sposato, No. 18-CV-2711, 2021 U.S. Dist.
LEXIS 259052, at *15 (E.D.N.Y. Aug. 24, 2021).)

The R&R explains

that Plaintiff claims he exhausted his administrative remedies by
filing two grievances, but Defendants argue there was no record of
any such submissions, relying upon the Declaration of Investigator
Sergeant Harden (“Harden”) for this proposition.

(Id. at 11.)

In

resolving this question, Judge Wicks concluded Plaintiff failed to
follow the grievance procedure.

(Id.)

1. Plaintiff’s Purported Grievances
In determining Plaintiff failed to submit a procedurally
proper

grievance,

Judge

Wicks

credited

Harden’s

Declaration

finding it “reflects that Plaintiff ‘did not submit grievances to
the Nassau County Correctional Center challenging the alleged
excessive force involving the [County],’ property loss, and other
conditions
complaint.”

of

confinement

referenced

throughout

Plaintiff’s

(Id. (citing Harden Decl., ECF No. 113-7, attached to

Motion; Defs’. R. 56.1 Stmt., ECF No. 113-1, ¶ 21, attached to
Motion).)
Page 7 of 22

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The

R&R

also

highlights

several

inconsistencies

in

Plaintiff’s claim that he filed written grievances on April 20,
and April 23.

Specifically, the R&R notes, “[t]he ‘Chronological

Order of Events’ portion of Plaintiff’s complaint . . . only notes
that he submitted a grievance on April 22, 2023.”

(Id. at 11-12.)

Conversely,

Opposition

the

R&R

highlights

Plaintiff’s

to

Defendants’ Motion “mentions that he placed the grievances ‘in the
box on April 22, 2013, and April 25, 2013.” (Id. at 12.) Likewise,
the R&R emphasizes that during his deposition, when asked whether
he submitted a grievance with respect to the alleged incidents,
Plaintiff “only referenced one grievance written on April 20,
2013.”

(Id. (citing Edwards Dep. Tr., ECF No. 113-8, at 31:21-

33:20, attached to Motion).)
Additionally,

Judge

Wicks

pointed

out

“the

one

handwritten grievance provided by Plaintiff is dated April 20,
2023” and “appears to be a scanned copy of a paper addressed to
the ‘Grievance Office’ about ‘Assault, Loss of Property.’”
(quoting

Opp’n

at

14).)

Judge

Wicks

stated

(Id.
“this

letter . . . notes not only the excessive force incident but also
the loss of his property, which he writes he learned about from
one of the officers.”

(Id.)

Judge Wicks reiterated, Plaintiff’s

claims in his letter are at odds with Plaintiff’s Chronology of
Events which states Plaintiff did not discover his property loss
until April 26, 2023, which was his date of discharge.
Page 8 of 22

(Id.)

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Furthermore, the R&R emphasizes Plaintiff failed to provide or
allege he had received a “‘grievance receipt,’ which according to
the Inmate Handbook is ‘issued for each grievance received by the
Grievance Unit[.]’” (Id. (quoting Inmate Handbook, ECF No. 113-6,
at 5, attached to Motion).)
Plaintiff next argued Judge Wicks should not credit
Investigator Sergeant Harden’s Declaration because Harden did “not
have

actual

knowledge

of whether

a

grievance was

submitted”;

instead, “any asserted knowledge [was] only based on reviewing a
system that tracks grievances that the NCC staff file and log.”
(Id. at 13.)

Such a system was prone to error and manipulation,

according to Plaintiff.

(Id.)

The R&R concluded Plaintiff’s

arguments in this regard were unavailing.

(Id.)

Specifically,

Judge Wicks emphasized “a presumption of regularity attaches to
state agency action.”

(Id. (citing United States v. Armstrong,

517 U.S. 456, 464 (1996) (further citation omitted)).))

Further,

Judge Wicks found Plaintiff’s arguments to be “conclusory” and “an
attempt

to

create

doubt

as

to

NCC’s

filing

system”

without

providing evidence of “an actual error, manipulation, conspiracy
or scheme that caused Plaintiff’s grievances to not [be] filed.”
(Id. at 14.)

Page 9 of 22

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2. Procedural Defects
Finally,

the

R&R

assumed

arguendo

“that

Plaintiff’s

handwritten letter [was] authentic and was submitted on April 20,
2013,”

yet

nevertheless

procedurally

defective,

concluded

and

thus,

that

“the

letter

was

Plaintiff . . . nonetheless

failed to exhaust his administrative remedies.”

(Id. at 14.)

In

support of this finding, Judge Wicks cited Second Circuit precedent
establishing “a handwritten complaint that does not use the form
fails to comply with the facility’s procedural rules and thus such
filing does not properly exhaust that inmate’s remedies.”
15

(quoting

Anderson

v.

Spizziota,

No.

11-CV-5663,

(Id. at
2016

WL

11480707, at *8 (E.D.N.Y. Feb. 12, 2016) (collecting cases), report
and recommendation adopted, 2016 WL 1275044 (E.D.N.Y. Mar. 31,
2016)).)
B. Unavailability of Administrative Remedies
Having
administrative

determined

remedies,

Plaintiff

Judge

Wicks

Plaintiff’s failure could be excused.

failed
next

to

exhaust

determined

The R&R provides:

[a]n administrative remedy is considered
unavailable when (1) it functions as a ‘dead
end’
because
officers
are
unable
or
consistently refuse to provide relief to
inmates, (2) it is so opaque as to be unusable
because despite its existence ‘no ordinary
prisoner can discern or navigate it,’ or
(3) ‘when
prison
administrators
thwart
inmates’ from utilizing remedies through
‘machination,
misrepresentation,
or
intimidation.’
Page 10 of 22

his

whether

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 11 of 22 PageID #: 696

(Id. at 16 (quoting Ross v. Blake, 578 U.S. 632, 633 (2016)).)
Likewise, the R&R emphasized, “[t]he relevant inquiry is whether
the grievance procedure was available to Plaintiff had he properly
filed a grievance form.”

(Id. (emphasis in original).)

Judge

Wicks concluded “the procedure was available to Plaintiff for
several reasons.”
incident

took

(Id.)

place

First, the R&R points out “[t]he alleged

on

April

19,

2013[,]

and

discharged seven days later on April 26, 2013.”

Plaintiff

(Id.)

was

Since the

Inmate Handbook provides that a response will be provided within
five business days, had Plaintiff promptly and properly filed a
grievance, “he presumably would have received a response to his
grievance

before

facility.”

being

(Id.)

discharged

and

transferred

to

another

Similarly, the R&R notes, even if Plaintiff

received no response within the allotted period, he could have
appealed. (Id.) Second, Judge Wicks found the grievance procedure
could not be characterized “as so opaque or unusable that no
ordinary prisoner could discern or navigate it where Plaintiff
himself alleges to have navigated and utilized it to file a
grievance.”

(Id.

at

Plaintiff’s

argument

17.)

that

Finally,

he was

Judge

denied

Wicks

determined

writing supplies

and

grievance forms was “immaterial if Plaintiff’s own account of
events is deemed true[,]” since Plaintiff alleges he was able to
borrow writing supplies from another inmate and that he filed a
Page 11 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 12 of 22 PageID #: 697

written grievance on April 20. 2

Likewise, to the extent Plaintiff

made conclusory and speculatory allegations of a conspiracy to
deliberately prevent him from taking advantage of the grievance
process,

Judge

Wicks

determined

such

allegations

were

“insufficient without more to create an issue of fact regarding
the availability of the grievance process.”

(Id.)

DISCUSSION
I.

Legal Standard
The Court adopts the “Legal Standard” stated by Judge

Wicks in his R&R, (see id. at 6-8), finding the R&R accurately
summarized the relevant law pertaining to summary judgment.

The

Court

its

adds

the

following

legal

principles

applicable

to

analysis of Plaintiff’s objections to the R&R.
A. R&R
A district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).
The

district

however,

judge

where

a

must
party

evaluate
“makes

proper
only

objections

conclusory

or

de

novo;

general

On the issue of grievance forms, the R&R further emphasized
Plaintiff “provides no explanation, let alone evidence” to support
his assertion that Defendants denied him access to grievance forms.
(R&R at 17.) Indeed, as noted by the R&R, Plaintiff offers no
explanation why he was unable to obtain grievance forms for himself
either from the law library or during inmate council meetings -two locations the Inmate Handbook outlines where grievance forms
are kept. (Id.)
2

Page 12 of 22

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objections, or simply reiterates [the] original arguments, the
Court reviews the Report and Recommendation only for clear error.”
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)
(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1
(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3).
not

review

the

findings

objection has been made.
II.

and

conclusions

to

The Court need

which

no

proper

Thomas v. Arn, 474 U.S. 140, 150 (1985).

Analysis
Plaintiff raises five objections to Judge Wicks’ R&R.

First, Plaintiff argues Judge Wicks’ determination he failed to
exhaust

his

administrative

remedies

improperly

attacked

Plaintiff’s credibility, something which cannot be decided on
summary judgment.

(Obj. at 4.)

Second, Plaintiff contends he

complained orally to staff about the excessive force and property
loss

claims

during

his

disciplinary

hearing,

and

this

was

permissible pursuant to the procedures outlined in the Inmate
Handbook.

(Id.

inconsistencies”

at

6.)

highlighted

Third,

Plaintiff

in

R&R

the

asserts

regarding

“[t]he

Plaintiff’s

purported grievances “can be contributed to human error and an
honest mistake in recollection.” (Id.) Likewise, Plaintiff faults
the R&R for finding Sergeant Harden’s affidavit was entitled to a
“presumption of regularity.”

(Id. at 9-11.)

Fourth, Plaintiff

objects to the R&R’s determination his handwritten grievance was
procedurally defective because it was not written on a formal
Page 13 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 14 of 22 PageID #: 699

grievance form.
filed

his

(Id. at 11-12.)

grievance

dated

Finally, Plaintiff maintains he

April

20

on

April

22,

2013,

but

regardless, given the allotted response time of five days, and
since he was discharged on April 26, there was no way for him to
“have appealed any, if negative, response on April 27, 2013[,] or
beyond.”

(Id. at 12-13.)

Plaintiff avers then, that his transfer

rendered any grievance process “a ‘dead end’ where no relief could
be sought.”

(Id. at 13.)

Turning to Plaintiff’s objections, the Court finds them
to be general and “mere reiterations of the arguments in [the]
original papers that were fully considered, and rejected, by” the
Magistrate Judge.

Out of the Blue Wholesale, LLC v. Pac. Am. Fish

Co., Inc., No. 19-CV-0254, 2020 WL 7488072, at *2 (E.D.N.Y. Dec.
21, 2020) (quoting Rizzi v. Hilton Domestic Operating Co., Inc.,
No. 19-CV-1127, 2020 WL 6243713, at *2 (E.D.N.Y. Oct. 23, 2020)
(collecting cases)). Thus, the Court reviews Judge Wicks’ analysis
for clear error only. 3
A. Whether Plaintiff Exhausted his Administrative Remedies
Was a Threshold Issue for the Court to Determine Based Upon
the Record Evidence
“Questions of fact with respect to whether an inmate has
exhausted or is capable of exhausting administrative remedies are

Even if the Court were to engage in a de novo review of
Plaintiff’s objections, for the reasons discussed herein, the
result would be the same.
3

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to be decided by the court and not the jury.”

Osborn v. Williams,

792 F. App’x 88, 90 (2d Cir. 2019) (citing Messa, 652 F.3d at 309);
see

also

Messa,

652

F.3d

at

309

(“Matters

of

judicial

administration often require district judges to decide factual
disputes that are not bound up with the merits of the underlying
dispute.

In such cases, the Seventh Amendment is not violated.”).

Only where “resolution of the exhaustion question at the summary
judgment stage would run perilously close to resolving disputed
issues

of

material

facts

on

the

Plaintiff’s . . . substantive

claim” do courts in this Circuit permit jury determination of the
exhaustion issue.

Sanchez v. Nassau County, No. 17-CV-7335, 2023

WL 2457855, at *21 (E.D.N.Y. Mar. 11, 2023); see also Rickett v.
Orsino, No. 10-CV-5152, 2013 WL 1176059, at *23 (S.D.N.Y. Feb. 20,
2013),

report

and

recommendation

adopted,

2013

WL

1155354

(S.D.N.Y. Mar. 21, 2013) (finding the court could not decide the
exhaustion-related factual issues in the case since “the facts
pertaining to Plaintiff’s exhaustion excuses are intertwined with
the merits of his underlying claims” such that, “for the Court to
make a determination as to whether Plaintiff’s failure to exhaust
should be excused, the Court would necessarily have to determine
whether Plaintiff was assaulted and whether he faced retaliation
when he sought to file a grievance”).
Here, it was not clearly erroneous for Judge Wicks to
decide Plaintiff failed to exhaust his administrative remedies.
Page 15 of 22

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Plaintiff pled, and argued, he filed two grievances, the analysis
of Plaintiff’s allegations on the exhaustion-related issues were
extraneous from the merits of Plaintiff’s excessive force and
property

loss

claims

and

simply

required

review

of

whether

Plaintiff had complied with the procedural rules outlined in the
Inmate Handbook.

Likewise, in so determining, Judge Wicks was

required to consider all the record evidence.

See Brooks v.

Mullen, No. 14-CV-6690, 2020 WL 6158614, at *5 (W.D.N.Y. Oct. 21,
2020)

(“In

exhaustion

evaluating
requirement

whether
or

Plaintiff

whether

that

complied

exhaustion

with

the

requirement

should be excused, the Court must determine issues of [] law and
credibility.” (emphasis added)); see also Brown v. Dubois, No.
15-CV-1515, 2018 WL 2078823, at *5 (N.D.N.Y. Apr. 10, 2018) (“It
is for the Court to determine issues of law and credibility in
deciding

whether

an

inmate

has

complied

with

the

exhaustion

requirements of the [PLRA].”). In making his findings, Judge Wicks
analyzed:

(1) inconsistencies

between

Plaintiff’s

deposition

testimony and his Chronology of Events; (2) Plaintiff’s failure to
produce evidence of a grievance receipt; (3) Plaintiff’s failure
to provide a copy of any formal grievance; and (4) competing
testimonial evidence from Hayden, whose review of NCC’s records
revealed

Plaintiff

incarceration.

failed

to

file

any

grievances

during

his

Plaintiff’s failure to provide evidence refuting

Harden’s sworn declaration that NCC had no record of any grievances
Page 16 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 17 of 22 PageID #: 702

was

sufficient

administrative

to

find

remedies.

Plaintiff
See

failed

Whittington

to
v.

exhaust

his

Ponte,

No.

16-CV-1152, 2020 WL 2750372, at *7 (S.D.N.Y. May 27, 2020) (“Where
a plaintiff provides no evidence that a grievance was actually
filed, while defendant supplies evidence of searches of files and
databases

that

allegations

failed

are

to turn

insufficient

up

that grievance,

to

satisfy

the

plaintiff’s
exhaustion

requirement.” (quoting Anderson, 2016 WL 11480707, at *17)).
B. Failure to File a Grievance on the Formal Grievance Form
Rendered Plaintiff’s Handwritten Letter Procedurally
Defective and his Alleged Oral Complaints Were Equally
Insufficient
Similarly, Judge Wicks’ determination that Plaintiff’s
handwritten letter was procedurally defective, and thus, could not
excuse Plaintiff’s failure to file a formal grievance was not
clearly erroneous.

Indeed, and as cited by Judge Wicks, “[s]ince

the NCCC procedures expressly require use of the grievance form
without exception, filing a handwritten complaint that does not
use the form fails to comply with the facility’s procedural rules
and thus such filing does not properly exhaust that inmate’s
remedies.”

Anderson, 2016 WL 11480707, at *8 (emphasis added)

(collecting cases). 4
Plaintiff’s argument that his April 20 Letter was sufficient in
place of a formal grievance is misplaced in that it cites to
N.Y.C.R.R. § 701.5(a)(1) for the proposition that if a grievance
form is unavailable “a complaint may be submitted on plain paper.”
(Obj. at 11.) See Abney v. County of Nassau, 237 F. Supp. 2d 278,
4

Page 17 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 18 of 22 PageID #: 703

Likewise, “the law is well-settled that informal means
of communicating and pursuing a grievance, even with senior prison
officials, are not sufficient under the PLRA.”

Coley v. Garland,

No. 19-CV-0382, 2023 WL 346242, at *6 (N.D.N.Y. Jan. 20, 2023)
(quoting Timmons v. Schriro, No. 14-CV-6606, 2015 WL 3901637, at
*3 (S.D.N.Y. June 23, 2015)).

Thus, to the extent Plaintiff argues

his alleged oral disclosure of the excessive force incident and
property

loss

claims

Plaintiff is mistaken.

obviated

his

need

to

file

a

grievance,

See Thomas v. Delaney, No. 17-CV-1023,

2019 WL 4247807, at *11 (N.D.N.Y. Aug. 13, 2019) (“The mere
utterance of [] claims during the course of a disciplinary hearing
does not obviate the requirement that [an inmate] file a grievance
setting forth a claim which is based upon the same or closely
related facts.” (quoting Bennett v. Fischer, No. 09-CV-1236, 2010
WL

5525368,

at

*6

(N.D.N.Y.

Aug.

17,

2010)

(alterations

in

original))).
283 (E.D.N.Y. 2002) (finding New York State Procedure was
inapplicable where the Nassau County Inmate Handbook provided the
procedure which governed issues related to plaintiff’s exhaustion
of NCC’s grievance procedures; moreover, determining “[i]n view of
the fact that Nassau County has chosen to fashion its own grievance
procedure (which it is free to do) it [was] disingenuous for
Defendants to argue that a single provision of a different
procedure should be grafted on to the Nassau County procedure when
it [suited] the [Defendants’] litigation position”); see also
Walker v. County of Nassau, No. 15-CV-4794, 2016 WL 11481725, at
*4 n.2 (Aug. 8, 2016) (“the grievance procedure in place at the
NCCC is separate from the grievance procedure implemented by the
New
York
State
Department
of
Correction
and
Community
Supervision.”).
Page 18 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 19 of 22 PageID #: 704

C. Plaintiff’s Transfer Did Not Prevent Him from Accessing
NCC’s Grievance Process; so, his Failure to Exhaust is Not
Excused
The exhaustion requirement in the PLRA “hinges on the
‘availab[ility]’ of administrative remedies.”
642.

As

remedies,

such,
but

“[a]n

need

inmate, . . . must

not

exhaust

unavailable

Ross, 578 U.S. at
exhaust

available

ones.”

Id.

An

administrative procedure will be treated as unavailable where:
(1) “it operates as a simple dead end—with officers unable or
consistently
inmates”;

unwilling

(2) it

is

to

“so

provide

opaque

any

that

relief

it

to

becomes,

aggrieved
practically

speaking, incapable of use”; or (3) prison administrators “thwart
inmates

from

taking

advantage

of a

grievance process

machination, misrepresentation, or intimidation.”

through

Williams v.

Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (internal citations
omitted).

“[M]any courts have found that where a plaintiff had an

opportunity

to

meaningfully

pursue

the

grievance

while

incarcerated at the facility where the grievance arose, the failure
to exhaust those remedies was not excused by the plaintiff’s
transfer to a different facility.”

Hartry v. County of Suffolk,

755 F. Supp. 2d 422, 433 (E.D.N.Y. 2010).

“The rationale for not

granting an exception to administrative exhaustion in these cases
was that a plaintiff should not be ‘rewarded’ for failing to
participate

in

[the]

grievance
Page 19 of 22

procedure

before

being

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 20 of 22 PageID #: 705

transferred.”

Id. (citing Santiago v. Meinsen, 89 F. Supp. 2d

435, 441 (S.D.N.Y. 2000)).
Contrary

to

Plaintiff’s

objections,

Judge

Wicks’

determination that Plaintiff should not be excused from his failure
to exhaust his administrative remedies due to his transfer was not
clearly erroneous. 5
April 19, 2013.

Indeed, the alleged incident took place on

The Inmate Handbook provides a grievance must be

filed “within five (5) days of the date of the act or occurrence
leading to the grievance.”

Plaintiff was not transferred from NCC

until April 26, 2013, after the time to file a procedurally proper
grievance had elapsed.

Plaintiff had sufficient time to avail

himself of NCC’s grievance procedure and, based upon the record
evidence,

failed

to

do

so. 6

Courts

have

found,

under

circumstances, failure to exhaust should not be excused.

such

See Miles

Judge Wicks previously determined Plaintiff’s contention
regarding the unavailability of grievance forms was conclusory and
unsupported by any evidence. (See R&R at 17.) Finding no contrary
evidence, upon its own review, the Court likewise agrees with the
Magistrate Judge that Plaintiff should not be excused from his
failure to exhaust on these grounds.
5

The Court likewise finds Plaintiff’s argument, that the grievance
procedure was a “dead end” because he could not have appealed a
hypothetical negative response before being transferred is
unavailing. The first step of the grievance process was available
to Plaintiff, and he had time to avail himself of it prior to his
transfer; Plaintiff failed to do so. To argue after the fact that
the process was unavailable to him because he could not have
appealed a negative response is purely speculative, and, if the
Court agreed, would only serve to reward Plaintiff for skipping
the first step in the grievance procedure.

6

Page 20 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 21 of 22 PageID #: 706

v.

County

of

Broome,

No.

04-CV-1147,

2006

WL

561247,

at

*6

(N.D.N.Y. Mar. 6, 2006) (“Plaintiff was not transferred out of the
BCCF until after he had the opportunity to file a grievance.
Because Plaintiff did not timely file a grievance before his
transfer and he had the opportunity to do so, he failed to exhaust
his administrative remedies”);

accord Louis-Charles v. Baker, No.

16-CV-1417,

at

2018

WL

5728054,

*5

(N.D.N.Y.

July

30,

2018)

(finding “plaintiff had sufficient time to file a grievance at
JCCF

regarding

[a]

July

27,

2016[,]

incident

prior

to

his

transfer,” where such transfer took place on August 4, 2016, and
the grievance procedure provided plaintiff five days to file a
grievance);

cf Hartry, 755 F. Supp. at 433 (finding, where Inmate

Handbook permitted an inmate to file a grievance within five days
of the incident aggrieved, inmate’s transfer within two days of
the incident deprived him of “a meaningful opportunity to pursue
[his] administrative remedy while at the SCCF”).
To the extent not explicitly addressed, the Court has
considered the remainder of Plaintiff’s arguments and finds them
to be without merit.

Finding no error -- clear or otherwise -- in

Judge Wicks’ R&R, Plaintiff’s objections are OVERRULED in their
entirety.

Page 21 of 22

Case 2:13-cv-04345-JS-JMW Document 139 Filed 09/28/23 Page 22 of 22 PageID #: 707

CONCLUSION
For

the

stated

reasons,

Plaintiff’s

objections

are

OVERRULED, the R&R is ADOPTED in its entirety, and Defendants’
Summary Judgment Motion is GRANTED.

The Clerk of the Court is

directed to mark this case CLOSED.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: September 28, 2023
Central Islip, New York

Page 22 of 22