Allen v. Annucci et al

Filing 68

DECISION AND ORDER: ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 65 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for summary judgment (Dkt. No. 57 ) is GRANTED in part and DENIED in part, such that all of Plaintiffs claims be DISMISSED except the following claims, which shall SURVIVE Defendants' motion: (1) Plaintiff's Eighth Amendment sexual assault claim against DEFENDANTS GIFFORD, GILMORE, and MANNA, arising fro m the incidents of July 30, 2014; (2) Plaintiff's Eighth Amendment failure-to-intervene claim against DEFENDANTS GIFFORD, GILMORE, and MANNA, arising from the incidents of July 30, 2014; (3) Plaintiff's Fourth Amendment unreasonable search claim against DEFENDANTS GIFFORD, GILMORE, and MANNA, arising from the incidents of July 30, 2014; (4) Plaintiff's First Amendment retaliation claim asserted against DEFENDANTS GIFFORD, GILMORE, and MANNA, arising from the incidents of July 30, 2014. ORDERED, that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointment of counsel for an appeal is granted. ORDERED that upo n assignment of Pro Bono Counsel, a pretrial conference with counsel will be scheduled in this action, at which time the Court will schedule a date for trial. The parties are directed to appear at that pretrial conference with settlement authority. Signed by Chief Judge Glenn T. Suddaby on 12/1/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MICHAEL J. ALLEN,
Plaintiff,
v.

9:16-CV-0047
(GTS/ATB)

H. GRAHAM, Super., Auburn Corr. Fac.; CHUTTEY,
Capt., Auburn Corr. Fac.; LT. JOSEPH VASILE,
Hearing Officer, Auburn Corr. Fac., f/k/a Lieutenant
Vasite; THEODORE CONNORS, Sgt., Auburn Corr.
Fac., f/k/a Connor; GIFFORD, Corr. Officer, Auburn
Corr. Fac., f/k/a Greffin; MANNA, Corr. Sgt., Auburn
Corr. Fac., f/k/a Mannon; CORNELL, Corr. Officer,
Auburn Corr. Fac.; STEINBERG, Corr. Officer. Auburn
Corr. Fac.; ZIRBEL, Corr. Officer, Auburn Corr. Fac.
f/k/a Zeke; D. VENETTOZZI, Director of S.H.U.; and
GILMORE, Corr. Officer, Auburn Corr. Fac.,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

MICHAEL J. ALLEN, 91-A-4771
Plaintiff, Pro Se
Attica Correctional Facility
Box 149
Attica, New York 14011
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
GLENN T. SUDDABY, Chief United States District Judge

AIMEE M. PAQUETTE, ESQ.

DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Michael J.
Allen (“Plaintiff”) against the eleven above-captioned employees of the New York State
Department of Corrections and Community Supervision (“Defendants”), are (1) United States
Magistrate Judge Andrew T. Baxter’s Report-Recommendation recommending that Defendants’
motion for summary judgment be granted in part and denied in part, and (2) Plaintiff’s
Objections to the Report-Recommendation. (Dkt. Nos. 65, 67.) For the reasons set for the
below, the Report-Recommendation is accepted and adopted in its entirety.
I.

RELEVANT BACKGROUND
A.

Magistrate Judge Baxter’s Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Baxter rendered the
following six findings of fact and conclusions of law: (1) to the extent that Defendants argue that
Plaintiff’s claims should be dismissed for failure to exhaust his available administrative, the
Court should reject that argument with regard to all of those claims (due to the presence of
admissible record evidence creating a genuine dispute of material fact) except for Plaintiff’s
claims related to the incident of November 24, 2014, and the disciplinary hearing of December 9,
2014, which should be dismissed for failure to exhaust; (2) both Plaintiff’s Eighth Amendment
excessive force claim against Defendant Gifford and his First Amendment retaliation claim
against Defendants Gifford and Chuttey arising from the pat-frisk and cell-search incident of
July 25, 2014, should be dismissed for failure to establish a claim; (3) with regard to Plaintiff’s
claims rising from the pat-frisk and strip-frisk of July 30, 2014, his Eighth Amendment sexual
assault claim, his Eighth Amendment failure-to-intervene claim, his Fourth Amendment

2

unreasonable-search claim, and his First Amendment retaliation claim against Defendants
Gifford, Manna, and Gilmore, should remain pending in this action, but his Eighth Amendment
excessive force against Defendant Gifford and his First Amendment retaliation claim against
Defendant Chuttey should be dismissed for failure to establish a claim; (4) Plaintiff’s Eighth
Amendment excessive force and sexual assault claims against Defendant Gilmore and his Eighth
Amendment failure-to-intervene claim against Defendant Zirbel arising from the pat-frisk of
October 7, 2014, should be dismissed for failure to establish a claim; (5) Plaintiff’s Fourteenth
Amendment due process claims against Defendants Vasile, Graham, and Venettozzi arising from
Plaintiff’s disciplinary hearing and subsequent confinement in a Special Housing Unit (“SHU”)
should be dismissed for failure to establish a claim; and (6) Plaintiff’s supervisory liability
claims Defendant Graham regarding the sole remaining claims in this action (i.e., those arising
from the incidents of July 30, 2014) should be dismissed for failure to establish his personal
involvement in those incidents. (Dkt. No. 65, at Parts IV-VI.)
B.

Plaintiff’s Objections to the Report-Recommendation

Generally, in his Objections, Plaintiff asserts four arguments. (Dkt. No. 67.)
First, with regard to Magistrate Judge Baxter’s recommendation that the Court dismiss
Plaintiff’s claims related to the incident of November 24, 2014, and the disciplinary hearing of
December 9, 2014, for failure to exhaust, Plaintiff argues that Magistrate Judge Baxter erred by
failing to inquire into whether administrative remedies were available to Plaintiff with regard to
those incidents, which they were not for the following reasons: (a) despite the fact that he
prematurely sent Auburn Correctional Facility Inmate Grievance Program (“IGP”) Supervisor
Cheryl Parmiter an appeal regarding his grievance on December 24, 2014 (i.e., before Defendant

3

Graham’s response to his grievance was due on January 2, 2015), the Auburn Correctional
Facility IGP sent him a letter indicating it had received (and was thus processing) his appeal on
January 5, 2015, thus rendering the appeal timely; (b) despite the foregoing fact, the Auburn
Correctional Facility IGP failed to forward the appeal to the Central Office Review Committee
(“CORC”); (c) to make matters worse, due to his transfer to Upstate Correctional Facility on
January 16, 2015, Plaintiff did not receive Defendant Graham’s (belated) denial of January 7,
2015, until February 19, 2015; (d) although Plaintiff received a reply from Department of
Corrections and Community Supervision (“DOCCS”) Inmate Grievance Program (“IGP”)
Director Karen Bellamy on February 20, 2015, that reply was intentionally backdated as having
been sent on January 8, 2015 (i.e., when Plaintiff was still at Auburn Correctional Facility), but
addressed to Plaintiff at Upstate Correctional Facility (which he did not leave for until January
16, 2015), indicating it was fraudulent; (e) on February 23, 2015, Plaintiff timely appealed
Defendant Graham’s denial by sending a letter to IGP Supervisor Parmiter, as instructed by IGP
Director Bellamy, a copy of which was received by Acting Commissioner Anthony Annucci, but
never responded to by Ms. Parmiter; and (f) on April 25, 2015, Plaintiff again attempted to
appeal Defendant Graham’s denial by sending a letter to IGP Director Bellamy, who also refused
to respond to the letter. (Id.)
Second, with regard to Magistrate Judge Baxter’s recommendation that the Court dismiss
Plaintiff’s Fourteenth Amendment due process claim against Defendant Vasile, Plaintiff argues
that Magistrate Judge Baxter erred by failing to address (a) the relevancy of the requested
testimony of an investigator in the Inspector General’s Office at the hearing, despite the fact that
he was not present during the incident in question, (b) the lack of assistance of Defendant Vasile

4

(as the hearing officer) in identifying and locating the investigator, and (c) whether Defendant
Vasile’s denial of Plaintiff’s request was alternatively supported by the fact that the testimony
would have been unduly hazardous to institutional safety or correctional goals. (Id.)
Third, with regard to Magistrate Judge Baxter’s recommendation that the Court dismiss
Plaintiff’s claims against Defendant Gilmore and Zirbel arising from the pat-frisk of October 7,
2014, Plaintiff argues that Magistrate Judge Baxter erred by (a) recommending the dismissal of
Plaintiff’s Eighth Amendment sexual assault claim against Defendant Gilmore in light of the
sexual comments made by Gilmore (as well as Plaintiff’s Eighth Amendment failure-tointervene claim against Defendant Zirbel), and (b) failing address Plaintiff’s First Amendment
retaliation claim against Defendant Gilmore arising from the incident. (Id.)
Fourth, and finally, with regard to Magistrate Judge Baxter's recommendation that the
Court dismiss Plaintiff's supervisory liability claims Defendant Graham (i.e., arising from the
incidents of July 30, 2014), Plaintiff argues that Magistrate Judge Baxter erred by failing to
apply or even mention the “deliberate indifference” avenue of supervisory liability to Plaintiff’s
claims against Defendant Graham (especially his failure-to-intervene claim). (Id.)
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

5

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
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,

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.”).
6

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).
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

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.).
7

order to accept the recommendation.” Id.4
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 reviewing the relevant papers herein, including Magistrate Judge Baxter’s

thorough Report-Recommendation, the Court can find no clear error in the parts of the ReportRecommendation to which Plaintiff did not specifically object: Magistrate Judge Baxter
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. As a result, those portions of the Report-Recommendation are accepted and adopted
for the reasons stated therein.
With regard to those parts of the Report-Recommendation to which Plaintiff did
specifically object, the Court can find no error in the parts of the Report-Recommendation
challenged by any of Plaintiff’s four objections.
Before discussing Plaintiff’s four objections, the Court finds that a preliminary
observation is appropriate: although various portions of the Report-Recommendation
recommend that claims be dismissed “for failure to state a claim,” and although a failure to state
a claim under Fed. R. Civ. P. 12(b)(6) may support a grant of a motion for summary judgment
under Fed. R. Civ. 56, the Court does not construe any of the above-referenced portions of the

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).
8

Report-Recommendation as being based a failure-to-state-a-claim analysis (which, of course, is
restricted to the four corners of a complaint) but based on a failure-to-establish-a-claim analysis
(i.e., an analysis of whether the non-movant has adduced admissible record evidence to avoid the
entry of summary judgment against the non-movant). See Schwartz v. Compagnise General
Transatlantique, 405 F.2d 270, 273-74 (2d Cir. 1968) (“Where appropriate, a trial judge may
dismiss for failure to state a cause of action upon motion for summary judgment.”); Katz v.
Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) (“This Court finds that . . . a conversion [of a Rule
56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with
or without notice to the parties.”).
Turning to Plaintiff’s four objections, with regard to the first objection (i.e., concerning
exhaustion of administrative remedies), the Court finds that this objection relies on an incorrect
assertion that the Auburn Correctional Facility Inmate Grievance Resolution Committee’s
(“IGRC”) act of sending him on January 5, 2015, a copy of his appeal dated December 23, 2014,
stamped “Received” as of December 29, 2014, in some way states or reasonably suggests
(especially to an experienced grievant such as Plaintiff, who should know better) that the IGRC
was therefore “processing” his premature appeal. (Dkt. No. 63, Attach. 3, at 119 [Plf.’s Ex. 23].)
Indeed, Plaintiff’s argument (which is bereft of a citation to admissible record evidence
establishing that the IGRC sent him a cover letter dated anytime after January 2, 2015, when
Defendant Graham’s decision was due) hinges on the unsupported assertion that a premature
administrative appeal must be held in abeyance pending the issuance of the decision from which
the appeal is taken.

9

Nor does Plaintiff’s first objection successfully rely on DOCCS IGP Director Karen
Bellamy’s purportedly “fraudulent” letter of January 8, 2015. For the sake of brevity, the Court
will set aside the possibility that Director Bellamy knew on January 8 that Plaintiff would soon
be transferred to Upstate Correctional Facility, or the possibility a prior version of the letter was
addressed and mailed to Plaintiff at Auburn Correctional Facility and, after being returned to the
IGP due to Plaintiff’s transit to Upstate Correctional Facility, was revised so as to insert a new
address but retain the original date. (Dkt. No. 63, Attach. 3, at 121 [Plf.’s Ex. 25].) The Court
will also set aside the conspicuous omission from Plaintiff’s affidavit that the copy of Defendant
Graham’s denial of January 7, 2015, which he received on February 20, 2015, was the first copy
of that letter that he had seen between January 7, 2015, and February 20, 2015. (Dkt. No. 63,
Attach. 1, at ¶ 47 [Plf.’s Affid.].) More important is the fact that, after Defendant Graham’s
denial was not received by Plaintiff on January 2, 2015, the deadline for Plaintiff’s appeal
immediately started running. 7 N.Y.C.R.R. § 701.8(g) (“If the superintendent fails to respond
within the required 25 calendar day time limit the grievant may appeal his/her grievance to
CORC.”); cf. 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be
appealed to the next step.”); see also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *2
& n.4 (N.D.N.Y. March 31, 2010) [collecting cases]. The fact that Plaintiff subsequently
received an untimely decision does not somehow exempt him from this rule: he could have, and
should have, filed an appeal after January 2, 2015.
With regard to Plaintiff’s second objection (i.e., concerning Plaintiff’s Fourteenth
Amendment due process claim against Defendant Vasile), the Court finds that this objection
consists simply of a reiteration of an argument previously asserted in his underlying opposition

10

memorandum of law. (Compare Dkt. No. 67, at “Second Objection” [Plf.’s Obj.] with Dkt. No.
63, Attach. 1, at 19-20 [attaching pages “16” and “17” of Plf.’s Opp’n Memo. of Law].) As a
result, the portion of the Report-Recommendation challenged by Plaintiff’s second objection is
entitled to only a clear-error review, which it easily survives.
In the alternative, this portion of the Report-Recommendation survives a de novo review.
In particular, Plaintiff’s second objection presumes that the investigator from the Inspector
General’s Office would have testified at Plaintiff’s disciplinary hearing that, during his
investigation, the investigator determined that Defendants Chuttey, Manna, Gilmore and/or
Gifford actually took wrongful actions against Plaintiff, and that they did so because of one or
more complaints made by Plaintiff to the Inspector General’s Office. The record contains no
admissible evidence that the investigator actually would have so testified. (See, e.g., Dkt. No.
63, at ¶ 58 [Plf.’s Affid., assuming without explanation that investigator would have offered such
testimony]; accord, Dkt. No. 57, Attach. 9, at 23-25, 138-39 [attaching pages “17,” “18,” 19,”
“132” and “133” of Discip. Hrg. Tr.].) The mere evidentiary value of the investigator’s hearing
testimony might have been to support the temporal proximity between Plaintiff’s complaint to
the Inspector General’s Office and the adverse action purportedly taken against him. However,
temporal proximity is just one factor in determining whether protected speech caused adverse
action (for purposes of a retaliation claim). Moreover, Plaintiff had a full and fair opportunity at
his disciplinary hearing to testify that he had complained to the Inspector General’s Office before
the adverse action taken against him; and, even if that testimony had been corroborated by that
of an investigator from the Inspector General’s Office, the hearing officer was free to find that
the charges against Plaintiff were not caused by his complaint but by his own wrongful conduct.

11

Finally, 16 other witnesses had already testified at the hearing. For all of these reasons, the
Court has trouble finding that the denial by Defendant Vasile was not “logically related to
preventing undue hazards to . . . correctional goals,” see Ponte v. Real, 471 U.S. 491, 497 (1986)
(internal quotation marks omitted), specifically, preventing disciplinary hearings from exceeding
reasonable limits through the introduction of testimony from “witnesses” whose possess little, if
any, personal knowledge of relevant facts.
With regard to Plaintiff’s third objection (i.e., concerning Plaintiff’s claims against
Defendant Gilmore and Zirbel arising from the pat-frisk of October 7, 2014), the Court finds that
this objection conveniently glosses over the fact that the alleged sexual assault by Defendant
Gilmore occurred during an isolated pat-frisk as Plaintiff was moving between cell blocks (i.e., a
time that pat-frisks generally serve a penological purpose). Moreover, the nature of the alleged
sexual assault is distinguishable from the one that allegedly occurred during the strip search of
Plaintiff on July 30, 2014. More specifically, at most, Plaintiff has established that, during the
pat-frisk on October 7, 2007, Defendant Gilmore made a few callous and/or offensive remarks
while caressing Plaintiff’s chest and repeatedly groping Plaintiff’s genitals and buttocks.5
Numerous district courts in the Second Circuit have found similar such physical conduct to not
rise to the level of an Eighth Amendment violation.6 This has been the case even when

5

(Dkt. No. 63, at ¶ 21, 23, 25 [Plf.’s Affid.]; Dkt. No. 63, Attach. 3, at 70 [Plf.’s
Ex. 12, attaching grievance]; Dkt. No. 57, Attach. 4, at 45-49 [Plf.’s Depo. Tr.]; Dkt. No. 1, at ¶¶
44-47 [Plf.’s Verified Compl.]; Dkt. No. 63, Attach. 3, at 68-69 [Plf.’s Ex. 11, attaching Rodney
Bailey’s Affidavit]).
6

See, e.g., Caldwell v. Crossett, 09-CV-0576, 2010 WL 2346337, at *1, 3
(N.D.N.Y. May 24, 2010) (Treece, M.J.) (dismissing Eighth Amendment sexual-assault claim
based incident in which defendant grabbed plaintiff's testicles during a pat-frisk, exchanged
words with plaintiff, and then grabbed plaintiff’s testicles again, before plaintiff attended a visit),
12

defendants made inappropriate remarks during the pat-frisk.7 Simply stated, while the conduct
Plaintiff describes is unprofessional, it does not violate the Eighth Amendment.
Furthermore, the Court finds that, based on the evidence in the record, such a solitary patfrisk (even when accompanied by callous and/or offensive remarks) does not even rise to the

adopted by 2010 WL 2346330 (N.D.N.Y. June 9, 2010) (Kahn, J.); Garcia v. Watts, 08-CV7778, 2009 WL 2777085, at *1, 7 (S.D.N.Y. Sept. 1, 2009) (dismissing Eighth Amendment
sexual-assault claim based on two episodes of sexual contact, including incident in which
defendant grabbed plaintiff's buttocks during a pat-down before plaintiff entered a counselor’s
office); Young v. Poff, 04-CV-0320, 2006 WL 1455482, at *4 (W.D.N.Y. May 22, 2006)
(dismissing Eighth Amendment sexual-assault claim based on incident in which defendant
groped plaintiff during a pat-frisk); Moncrieffe v. Witbeck, 97-CV-0253, 2000 WL 949457, at *1,
6 (N.D.N.Y. June 29, 2000) (Mordue, J.) (dismissing Eighth Amendment sexual-assault claim
based on incident in which defendant felt plaintiff’s genitals and rear during a pat-frisk, and
another incident in which a second defendant repeatedly felt plaintiff’s genitals during a patfrisk); Williams v. Keane, 95-CV-0379, 1997 WL 527677, at *1, 11 (S.D.N.Y. Aug. 25, 1997)
(dismissing Eighth Amendment sexual-assault claim based on incident in which defendant
fondled plaintiff's chest, reached inside plaintiff’s pants, and felt plaintiff’s testicles during a
pat-frisk after a metal detector was set off as plaintiff left the mess hall); Friedman v. Young, 702
F. Supp. 433, 434, 436 (S.D.N.Y. 1988) (dismissing Eighth Amendment sexual-assault claim
based on incident in which defendant fondled plaintiff’s genitals and anus during a pat-down
before plaintiff left his cell).
7

See, e.g., Amaker v. Fischer, 10-CV-0977, 2014 WL 8663246, at *3 (W.D.N.Y.
Aug. 27, 2014) (recommending the dismissal of Eighth Amendment sexual-assault claim based
on a pat-frisk in which defendant “rub[bed] plaintiff's penis, fondl[ed] and squeez[ed] plaintiff's
buttocks and [ran] his index finger across plaintiff's anus,” while making inappropriate remarks
to plaintiff), adopted by 2015 WL 1822541 (W.D.N.Y. Apr. 22, 2015); Sharpe v. Taylor,
05-CV-1003, 2009 WL 1743987 at *10 (N.D.N.Y. March 26, 2009) (Suddaby, J.) (dismissing
Eighth Amendment sexual-assault claim based on allegations that defendant sexually harassed
plaintiff and fondled plaintiff's anus while plaintiff was being processed into the SHU); Allan v.
Woods, 05-CV-1280, 2008 WL 724240, at *9 & n.8 (N.D.N.Y. March 17, 2008) (Mordue, C.J.)
(rejecting Eighth Amendment sexual-assault claim based on incident in which defendant
allegedly “fondled plaintiff during a pat frisk and complimented plaintiff’s genitals”); Davis v.
Castleberry, 364 F. Supp. 2d 319, 320-22 (W.D.N.Y. 2005) (dismissing Eighth Amendment
sexual-assault claim based on incident in which defendant grabbed plaintiff’s penis while
making a callous remark during a pat-frisk before plaintiff entered the exercise yard); Montero v.
Crusie, 153 F. Supp. 2d 368, 373, 375 (S.D.N.Y. 2001) (dismissing Eighth Amendment
sexual-assault claim based on several incidents in which defendant squeezed plaintiff's genitalia
during pat-frisks, and offered plaintiff privileges in exchange for sexual favors).
13

level of adverse action for purposes of a First Amendment retaliation claim. See Amaker v.
Fischer, 10-CV-0977, 2014 WL 8663246, at *3 (W.D.N.Y. Aug. 27, 2014) (recommending the
dismissal of First Amendment retaliation claim for lack of adverse action where defendant
allegedly sexually assaulted plaintiff during a pat-frisk by “rubbing plaintiff's penis, fondling and
squeezing plaintiff's buttocks and running his index finger across plaintiff's anus,” while
defendant criticized plaintiff for writing grievances), adopted by 2015 WL 1822541 (W.D.N.Y.
Apr. 22, 2015).
Finally, with regard to Plaintiff’s fourth objection (i.e., concerning the personal
involvement of Defendant Graham), this objection presumably refers to the fifth avenue of
supervisory liability, namely, the exhibition of deliberate indifference to the rights of an inmate
by failing to act on information indicating that the violation was occurring. Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Regardless
of whether or not this is Plaintiff’s intent, he is incorrect that Magistrate Judge Baxter failed to
apply the correct standard. Plaintiff has failed to point to admissible record evidence
establishing that Defendant Graham received information indicating the occurrence of the
incidents of July 30, 2014, either before they occurred or as they were occurring. In any event,
Defendant Graham announced staff measures to enforce relevant pat-frisk policies and
encouraged inmates to file grievances when corrections officers violated those policies.
For all of these reasons, the Court adopts the Report-Recommendation in its entirety.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 65) is
ACCEPTED and ADOPTED in its entirety; and it is further

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ORDERED that Defendants’ motion for summary judgment (Dkt. No. 57) is
GRANTED in part and DENIED in part, such that all of Plaintiff’s claims be DISMISSED
except the following claims, which shall SURVIVE Defendants’ motion:
(1) Plaintiff’s Eighth Amendment sexual assault claim against DEFENDANTS
GIFFORD, GILMORE, and MANNA, arising from the incidents of July 30, 2014;
(2) Plaintiff’s Eighth Amendment failure-to-intervene claim against
DEFENDANTS GIFFORD, GILMORE, and MANNA, arising from the incidents of
July 30, 2014;
(3) Plaintiff’s Fourth Amendment unreasonable search claim against
DEFENDANTS GIFFORD, GILMORE, and MANNA, arising from the incidents of
July 30, 2014;
(4) Plaintiff’s First Amendment retaliation claim asserted against
DEFENDANTS GIFFORD, GILMORE, and MANNA, arising from the incidents of
July 30, 2014; and it is further
ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial
only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for
appointment of counsel for an appeal is granted; and it is further
ORDERED that upon assignment of Pro Bono Counsel, a pretrial conference with
counsel will be scheduled in this action, at which time the Court will schedule a date for trial.
The parties are directed to appear at that pretrial conference with settlement authority.
Dated: December 1, 2017
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge
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