Cisco v. Stallone et al

Filing 68

DECISION AND ORDER: It is hereby ORDERED, that the Report-Recommendation (Dkt. No. 66 ) is APPROVED and ADOPTED as to the merits of Plaintiff's Eighth Amendment claims but REJECTED as to exhaustion; and it is further ORDERED, that Defendants& #039; Summary Judgment Motion (Dkt. No. 50 ) is GRANTED on the basis that Plaintiff has failed to raise a triable issue of fact on the merits of his claims; and it is further ORDERED, that the Clerk shall close this action; and it is further ORDER ED, that the Clerk serve a copy of this Decision and Order on all parties in accordance with the Local Rules. Signed by Senior Judge Lawrence E. Kahn on March 12, 2020. (Copy served via regular and certified mail, parcel no. 7014 1200 0001 3023 4884)(rep)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HENRY I. CISCO,
Plaintiff,
-against-

9:17-CV-0347 (LEK/DJS)

GERARD JONES, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
Pro se plaintiff Henry Cisco has sued defendants Gerard Jones, Mary McClellan, and

Justin Allen (collectively, “Defendants”)—all of whom are employees of New York State’s
Department of Corrections and Community Supervision (“DOCCS”)—under 42 U.S.C. § 1983.
Dkt. No. 30 (“Second Amended Complaint”). Plaintiff alleges that Defendants violated his
Eighth Amendment rights by failing to protect him from second-hand smoke while he was
imprisoned at Cayuga Correctional Facility (“Cayuga”). Id. Defendants moved for summary
judgment under Federal Rule of Civil Procedure 56, Dkt. No 50 (“Summary Judgment Motion”),
which Plaintiff opposed, Dkt. No. 61 (“Opposition”).
Now before the Court is a report-recommendation filed by the Honorable Daniel J.
Stewart, United States Magistrate Judge, recommending that the Court grant Defendants’
Summary Judgment Motion because Plaintiff failed to exhaust his administrative remedies or,
alternatively, because Plaintiff failed to raise a triable issue of fact on the merits of his Eighth
Amendment claims. Dkt. No. 66 (“Report-Recommendation”). Plaintiff has objected to the
Report-Recommendation. Dkt. No. 67 (“Objections”). For the following reasons, the Court

rejects Judge Stewart’s exhaustion recommendation but adopts his recommendation as to the
merits of Plaintiff’s claims and, thus, grants Defendants’ Summary Judgment Motion.
II.

BACKGROUND
A. Factual Background
Though the Report-Recommendation details the factual background of this case, R. & R.

at 2–3, the Court briefly summarizes the relevant facts.
Plaintiff was imprisoned at Cayuga for slightly more than three years, from October 2014
to December 2017. Id. at 2. Though smoking indoors was prohibited at Cayuga, inmates
regularly smoked in the bathroom of Plaintiff’s housing unit. Id. Because of this, during his three
years at Cayuga, Plaintiff was consistently exposed to second-hand smoke when he used the
bathroom. Id. In November 2015, Plaintiff filed a grievance complaining about his exposure to
second-hand smoke and proposing several remedial measures to address the problem. Id.
However, apparently little was done to address Plaintiff’s concerns. See Sec. Am. Compl.
Over a year-and-a-half later, in July 2017, Jones arrived at Cayuga to serve as
Superintendent. R. & R. at 2–3. McClellan arrived a few months later, in September 2017, to
serve as Deputy Superintendent. Id. at 3. Allen began working at Cayuga as a Correction Officer
in 2012, but was posted outside in the yard until September 2017 when he began taking
occasional shifts in Plaintiff’s housing unit. Id.
In October 2017, because Plaintiff was still being exposed to second-hand smoke, he
mailed a letter to Jones and McClellan asking them to implement the anti-smoking measures he
had proposed in his earlier 2015 grievance. Id. He also showed Allen a copy of his grievance
sometime after Allen began working in Plaintiff’s housing unit. Id.

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Based on these events, Plaintiff alleges that Defendants violated his Eighth Amendment
rights by failing to protect him from the harmful effects of second-hand smoke. See Sec. Am.
Compl.
B. Defendants’ Summary Judgment Motion and Judge Stewart’s ReportRecommendation
Defendants moved for summary judgment on the grounds that: (1) Plaintiff failed to
exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. §
1997e (“PLRA”); (2) Plaintiff failed to raise a triable issue of fact as to the merits of his Eighth
Amendment failure-to-protect claim; (3) Plaintiff could not show that Defendants had been
personally involved in the alleged constitutional deprivation; and (4) Defendants were entitled to
qualified immunity. Dkt. No. 50-13 (“Defendants’ SJ Memorandum”).
In the Report-Recommendation, Judge Stewart found that Plaintiff had not exhausted his
administrative remedies and that, even if he had, his claim failed on the merits.1 R. & R. at 5–19.
On either of these alternative bases, Judge Stewart recommended dismissal of Plaintiff’s suit. Id.
at 10–19.
C. Plaintiff’s Objections
Plaintiff purports to object to the Report-Recommendation “in its entirety.” Objs. at 1.
However, he appears only to attack Judge Stewart’s recommendation as to exhaustion, stating
that he “preserved his right to sue on the merits” because he “appealed” his grievance “on or
about May/June 2016.” Id. Plaintiff continues, “The Fed. R. Civ. Procedure do[] not state [that]
repetitious grievances [must] be filed.” Id. Notably, Plaintiff’s Objections contain no argument,

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Because either of these alternative holdings disposed of Plaintiff’s claims, Judge
Stewart declined to address Defendants’ personal involvement and qualified immunity
arguments. See R. & R. at 19 n.3.
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assertion, or mention of Judge Stewart’s recommendation that the Eighth Amendment claims
cannot survive summary judgment on the merits.
III.

STANDARD OF REVIEW
A. Review of a Report-Recommendation
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). 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).
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 review that
aspect of a report-recommendation only for clear error.” Sheffer v. Fleury, No. 18-CV-1180,
2019 WL 4463672, at *2 (N.D.N.Y. Sept. 18, 2019) (Kahn, J.); see also Machicote v. Ercole,
No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s
objections to a Report and Recommendation must be specific and clearly aimed at particular
findings in the magistrate’s proposal . . . .”). “A [district] judge . . . may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.” § 636(b).
B. Summary Judgment
A court may grant a motion for summary judgment if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law,”
and a dispute is “‘genuine’ . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of
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fact could find in favor of the nonmoving party should summary judgment be granted.”). “The
party seeking summary judgment bears the burden of informing the 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 issue of material fact.” Doe v. Patrick, No. 17-CV-846,
2020 WL 529840, at *6 (N.D.N.Y. Feb. 3, 2020) (Kahn, J.) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “Similarly, a party is entitled to summary judgment when the nonmoving
party has failed ‘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.’” Id. at *6 (quoting Celotex, 477 U.S. at
322).
In attempting to repel 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. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). 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.’”
Kampfer v. Argotsinger, No. 18-CV-7, 2020 WL 906274, at *4 (N.D.N.Y. Feb. 25, 2020) (Kahn,
J.) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)).
IV.

DISCUSSION
A. Judge Stewart’s Merits Recommendation
Though Plaintiff claims to object to the Report-Recommendation “in its entirety,”

nothing in his Objections addresses Judge Stewart’s recommendation that Plaintiff has failed to
raise a triable issue of fact on the merits of his Eighth Amendment claims. See Objs. Therefore,
the Court reviews this portion of the Report-Recommendation only for clear error. See Petersen
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v. Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012) (stating that de novo review of a reportrecommendation only results from “specific” objections and that, where objections are “general”
or a portion of the report-recommendation is unobjected to, “the Court subjects that portion of
the report-recommendation to only a clear error review”) (emphasis in original). The Court finds
no clear error in this portion of the Report-Recommendation, and therefore approves and adopts
Judge Stewart’s recommendation that the Court grant summary judgment to Defendants on the
merits.
B. Judge Stewart’s Exhaustion Recommendation
Plaintiff objects to Judge Stewart’s alternative holding that Plaintiff failed to exhaust his
administrative remedies as to Jones, McClellan, and Allen, asserting that he fully appealed his
grievance and “[t]he Fed. R. Civ. Procedure do[] not state repetitious grievances be filed.” Objs.
at 1. Because Judge Stewart’s merits recommendation alone resolves Defendants’ Summary
Judgment Motion, the Court need not reach the exhaustion recommendation nor Plaintiff’s
objection to it. Nevertheless, for the sake of clarity and completeness, the Court rejects the
exhaustion recommendation.
First, some background. The PLRA requires an inmate to exhaust all of her or his
administrative remedies before bringing a lawsuit about prison conditions under § 1983. See 42
U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA’s
exhaustion requirement applies to all inmate suits about prison life.”); Ross v. Blake, 136 S. Ct.
1850, 1856 (2016) (exhaustion in cases covered by the PLRA is mandatory); Woodford v. Ngo,
548 U.S. 81, 94 (2006) (exhaustion must be “proper,” which means using all steps of an agency’s
administrative process). Defendants argued that Plaintiff had failed to satisfy the PLRA’s
exhaustion requirement because he filed his sole grievance about second-hand smoke in 2015,
“when Defendant Jones and McClellan were not yet employed at Cayuga[] and before Defendant
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Allen had ever worked in [Plaintiff’s] housing unit.” R. &. R. at 7 (citing Defs.’ SJ Mem. at 3).
Judge Stewart agreed, stating that “[a] grievance [] must place defendants on notice of what,
substantively is claimed in order to permit a proper investigation,” id. at 8 (quoting Messa v.
Woods, No. 07-CV-306, 2009 WL 3076120, at *7 (N.D.N.Y. Sept. 23, 2009)), and finding that
“Plaintiff’s grievance about [second-hand smoke] in 2015 could not have put Defendants on
notice as to Plaintiff’s claim that these Defendants were not sufficiently enforcing the policy
prohibiting indoor smoking,” id.
Judge Stewart was undoubtedly correct when he stated that, to properly exhaust
administrative remedies, a grievance must generally put a defendant on notice of the basis for the
plaintiff’s claims. See Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (“The PLRA’s
exhaustion requirement is designed to ‘afford [] corrections officials time and opportunity to
address complaints internally before allowing the initiation of a federal case.’” (quoting Porter v.
Nussle, 534 U.S. 516, 524–25 (2002))). For this reason, the general rule when an inmate “asserts
claims based upon events that occurred after the inmate filed [her or] his administrative
grievance” is that the inmate must “separately grieve the later-occurring incidents” so as to put
the defendants on notice and give them time to address the inmate’s concern. See Alster v.
Fischer, No. 09-CV-6510, 2017 WL 3085842, at *9 (W.D.N.Y. July 20, 2017); see also, Reeder
v. Uhler, No. 16-CV-1161, 2019 WL 5197560, at *6 (N.D.N.Y. Sept. 10, 2019) (“Grievances
filed in April and June 2015 . . . do not [exhaust] . . . conduct that is not alleged to have occurred
until November 2015.”), report and recommendation adopted by No. 16-CV-1161, 2019 WL
4686351 (N.D.N.Y. Sept. 26, 2019).
However, the Second Circuit has crafted an exception to this rule for cases “in which a
prior grievance identifies a specific and continuing complaint that ultimately becomes the basis
for a lawsuit.” Johnson v. Killian, 680 F.3d 234, 239 (2d Cir. 2012); see also Telesford v.
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Wenderlich, No. 16-CV-6130, 2018 WL 4853667, at *7 (W.D.N.Y. Oct. 5, 2018) (stating that
Johnson exception applies where grieved incident and later-occurring incidents involve the
“same problem”). As more fully explained by another court in this circuit:
In Johnson, the Second Circuit held that [an inmate-plaintiff] had exhausted
his administrative remedies when he filed, and exhausted, a grievance in
2005 challenging the facility’s prayer polices. Id. at 236–37. After Johnson
filed his grievance, the facility ceased enforcing the relevant policy. Id. at
237. In 2007, a new warden was appointed, and the challenged policy was
reimplemented and consistently enforced. Id. Plaintiff filed a complaint
without exhausting his administrative remedies regarding the reimplementation of the challenged policy. Id. The court held that plaintiff
sufficiently complied with the exhaustion requirement by challenging the
identical policy in 2005, notwithstanding a “different set of circumstances”
in 2007. Id. at 238–39. The court held that “the issue that Johnson would
have raised in 2007—the inadequacy of the spaces and times allotted for
congregational prayer—was identical to the issue he exhausted in 2005.”
Id. at 239.
White v. Williams, No. 12-CV-1892, 2016 WL 1237712, at *7 (N.D.N.Y. Jan. 11, 2016), report
and recommendation adopted by No. 12-CV-1892, 2016 WL 1239263 (N.D.N.Y. Mar. 29,
2016). Such an exception comports with the PLRA’s notice rationale, see Messa, 2009 WL
3076120, at *7, because the earlier “grievance provide[s] the prison administration with notice
of, and an opportunity to resolve[] the . . . problem,” Johnson, 680 F.3d at 238 (emphasis added),
even if the individual officials have changed and do not personally have notice,2 see id. at 237–
38 (2005 grievance satisfied exhaustion requirement as to Warden who was appointed in 2007).
Here, the conduct that formed the basis of Plaintiff’s suit was sufficiently similar to the
conduct described in Plaintiff’s 2015 grievance to fall within the Johnson exception. In his 2015
grievance, Plaintiff complained that inadequate enforcement of Cayuga’s indoor smoking ban

2

A court, however, would still need to determine whether the individual officials were
personally involved in the incident resulting in the plaintiff’s claim. See Cantey v. Martuscello,
No. 17-CV-284, 2020 WL 1030646, at *4 (N.D.N.Y. Mar. 3, 2020) (“[P]ersonal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §
1983.”) (Kahn, J.) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
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exposed him to second-hand smoke when he used the bathroom in his housing unit. See Sec.
Am. Compl., Ex. E (“2015 Grievance”). In this lawsuit, Plaintiff complains that inadequate
enforcement of Cayuga’s indoor smoking ban continues to expose him to second-hand smoke
when he uses the same bathroom in the same housing unit. See Sec. Am. Compl. Therefore,
Plaintiff’s “prior grievance identifie[d] a specific and continuing complaint that . . . bec[a]me[]
the basis for [this] lawsuit,” see Johnson, 680 F.3d at 239, and satisfied the PLRA’s exhaustion
requirement. The Court thus rejects the Report-Recommendation’s exhaustion holding.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 66) is APPROVED and

ADOPTED as to the merits of Plaintiff’s Eighth Amendment claims but REJECTED as to
exhaustion; and it is further
ORDERED, that Defendants’ Summary Judgment Motion (Dkt. No. 50) is GRANTED
on the basis that Plaintiff has failed to raise a triable issue of fact on the merits of his claims; and
it is further
ORDERED, that the Clerk shall close this action; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 12, 2020
Albany, New York

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