McCray v. The City of Albany New York, et al
DECISION AND ORDER: The Court adopts Judge Scott's Report and Recommendation 112 in part. The Plaintiff's motion for summary judgment 93 is denied. Defendants Roshia and Ayers' motion for summary judgment 95 is granted as to t he Plaintiff's claims regarding the April 21, 2011 and August 31, 2011 incidents. The Court defers decision on the Defendants' motion for summary judgment as to the March 2012 incident and remands this case to Judge Scott for further proceedings. A copy of this Decision and Order has been mailed to Terence Sandy McCray, 10-A-4316, Sing Sing Correctional Facility, 354 Hunter Street, Ossining, NY 10562. SO ORDERED. Signed by Hon. Richard J. Arcara on 4/24/17. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TERENCE SANDY McCRAY,
DECISION AND ORDER
THE CITY OF ALBANY, et al.,
Magistrate Judge Scott, to whom the Court referred this case for all pre-trial
proceedings, filed a Report and Recommendation (Docket No. 112) recommending that
the Court deny the Plaintiff’s renewed motion for summary judgment (Docket No. 93)
and grant Defendants Roshia and Ayers’s motion for summary judgment. See Docket
No. 95. The Plaintiff has filed objections to Judge Scott’s recommendation as to the
Defendants’ motion. Docket No. 119. 1 For the reasons stated below, the Court adopts
Judge Scott’s Report and Recommendation in part, defers decision on Judge Scott’s
remaining recommendation, and remands this case for further, limited proceedings.
The Court assumes familiarity with the facts of this case, which Judge Scott’s
Report and Recommendation sets forth in detail.
Before Judge Scott, the Plaintiff appeared to withdraw his motion for summary judgment because, he
claims, he had not yet had the opportunity to conduct discovery. See Docket No. 108. Other than an
isolated reference on the first page of his objections to “judgment in favor of the Plaintiff,” nothing in the
Plaintiff’s objections can reasonably be construed as an objection to Judge Scott’s recommendation to
deny the Plaintiff’s renewed motion for summary judgment. The Court therefore reviews that
recommendation for clear error. See United States v. Preston, 635 F. Supp. 2d 267, 269 (W.D.N.Y.
2009). Finding none, the Court adopts Judge Scott’s recommendation. Further, the Plaintiff’s objections
appear to appeal, or move for reconsideration of, Judge Telesca’s screening order (Docket No. 28). To
the extent that the Plaintiff seeks reconsideration of Judge Telesca’s interlocutory order, the Court
declines to entertain the Plaintiff’s motion.
In short, the Plaintiff alleges that, on three different occasions, corrections
officers grabbed and squeezed his genitals during pat frisks. First, as to the April 21,
2011 incident, Judge Scott recommends that summary judgment be granted for the
Defendants because the Plaintiff has not shown that either Defendant was responsible
for the alleged conduct.
Second, as to the August 31, 2011 incident, Judge Scott
recommends granting the Defendants’ motion for summary judgment because the
Defendant failed to exhaust his administrative remedies, as required by the Prison
Litigation Reform Act. See 28 U.S.C. § 1997e(a). And, finally, as to the March 2012
incident, Judge Scott recommends granting the Defendants’ motion for summary
judgment because, Judge Scott concluded, “[a]ccepting plaintiff’s version of events and
disregarding the [disputed] videotape [that Defendants contend shows the incident at
issue], the single instance [of alleged groping] is not sufficiently severe or serious to
constitute cruel and unusual punishment” under the Eighth Amendment. Docket No.
112 at 13.
The Plaintiff does not appear to object to Judge Scott’s recommendation as to
the first incident. The Court therefore reviews that recommendation for clear error. See
Preston, 635 F. Supp. 2d at 269 (“The district court may adopt those portions of a report
and recommendation to which no objections have been made, as long as no clear error
is apparent from the face of the record.”) After review of the record, the Court finds no
clear error and adopts Judge Scott’s recommendation.
As to the second incident, the Plaintiff argues that the Prison Rape Elimination
Act, 42 U.S.C. § 15601, et seq., excuses the need for him to exhaust his administrative
remedies. In support of his argument, the Plaintiff points to DOCCS Directive 4040
which, in its current form, contains a streamlined exhaustion requirement for an inmate
alleging an “incident of sexual abuse or sexual harassment.”
Docket No. 132-1
(DOCCS Directive 4040, § 701.3(i) (Jan. 20, 2016)). At the time of the incident of which
the Plaintiff complains, however, Directive 4040 did not contain language simplifying an
inmate’s obligation to exhaust claims of sexual assault. See Docket No. 132-1 at 5-19
(DOCCS Directive 4040 (July 12, 2006)). And, as the Court has previously held, the
language in the updated version of Directive 4040, on which the Plaintiff relies in his
objections, is not retroactive.
See Henderson v. Annucci, 14-CV-445A, 2016 WL
3031353, at *1 (W.D.N.Y. May 27, 2016), adopting Report and Recommendation, 2016
WL 3039687 (Mar. 14, 2016). The Plaintiff, then, was required to exhaust his grievance
as to the second incident before bringing this lawsuit. Because he failed to do so, the
Court adopts Judge Scott’s recommendation to grant the Defendants’ motion for
summary judgment as to the second incident.
Finally, as to the third incident, Judge Scott concluded that, viewing the facts in
the light most favorable to the Plaintiff, the conduct of which the Plaintiff complains does
not rise to the level of an Eighth Amendment violation because the third incident “is not
sufficiently severe or serious to constitute cruel and unusual punishment.” Docket No.
112 at 13. In support of this recommendation, Judge Scott pointed to the fact that the
Plaintiff’s “medical complaints following the frisk do not show sufficient injury to state a
cruel and unusual punishment claim.” Id. (citations omitted). Judge Scott also noted
that, accepting the Plaintiff’s version of events, “he waited at least two days before
seeking medical attention without stating that he was restrained from seeking help in the
intervening period.” Id. Finally, Judge Scott concluded, “Plaintiff has not shown that
movants engaged in intentional conduct aside from the appropriate penological and
security purposes search for contraband and protection of staff and other inmates.” Id.
In the alternative, Judge Scott concluded that the Defendants were entitled to qualified
As Judge Scott noted, however (Docket No. 112 at 13), the record contains two
different versions of the third incident. In his deposition, the Plaintiff described the third
incident, in relevant part, as follows:
[Defendant] Officer Rosia says, f--- him [referring to the Plaintiff], get him
over here, get the f--- on the wall, a--hole. So that’s what I did, all right, I
walked over to the wall. At that particular point of time, Officer Rosia says,
spread your legs. I spread my legs. Move back, move back, spread your
arms, move back, move back further. I did that. At that particular point of
time, officer is leaning over my shoulder, I’ll never forget it because his
breath smelled so bad, and he was whispering over my shoulder, you f--ing ni--er, you don’t f---ing like this, ni--er? And he said it several times.
I’m not responded, not one word. Then he—he didn’t even pat frisk me
. . . . He put his hands underneath my testicles and he squeezed them
and he says, you like that, you f---ing ni--er? And I didn’t say anything.
Docket No. 95-3 at 31-32 (Tr. 53:16-54:12).
The Defendants have filed a video which purports to show the events at issue in
the third incident. The Court has viewed the video and finds that the video is, in some
respects, inconsistent with the Plaintiff’s description of the third incident.
At this time, however, the Court need not, and does not, address the relevance of
the video to the merits of the Defendants’ summary judgment motion because the
Plaintiff vehemently disputes whether the video depicts him, rather than another inmate.
And the Plaintiff gives what do not appear to be unreasonable, fact-based arguments to
support his claim: he argues that the inmate in the video is wearing a red sweatshirt but
that the Plaintiff would never wear red in prison because “only gang members wear
RED in the prison system” (Docket No. 104 at 5) (emphases in original); he argues that
the video is timestamped at 7:00 a.m. but that the incident occurred at 7:00 p.m.; and,
finally, the Plaintiff claims that the inmate shown in the video is approximately 125
pounds heavier than the Plaintiff. See Docket No. 112 at 7. Judge Scott agreed that
there is an issue of fact as to whether the Plaintiff is the inmate shown in the video.
Docket No. 112 at 12. For purposes of his Report and Recommendation, Judge Scott
therefore disregarded the video. The Defendants do not appear to have addressed,
before this Court or before Judge Scott, the Plaintiff’s contentions that the video shows
a search of someone other than the Plaintiff.
Construed liberally in light of his pro se status, the Plaintiff’s objections, as well
as his response to the Defendants’ motion for summary judgment, appear to argue that
the video would be inadmissible at trial because the Defendants have not “produce[d]
evidence sufficient to support a finding that the [video] is what the [Defendants] claim it
is”—that is, a video of the March 2012 incident, and not a video of a search of another
inmate. Fed. R. Evid. 901(a). In these circumstances, Rule 56 authorizes the Court to
give the Defendants “an opportunity to properly support or address the fact” by, in this
case, showing that the video at issue is authentic within the meaning of the Rules of
Evidence and that it may, therefore, be considered as part of the Defendants’ motion for
Fed. R. Civ. P. 56(e)(1).
See also Fed. R. Civ. P. 56(e)(4)
(authorizing court to “issue any other appropriate order” when “a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of
The Court therefore defers decision on the Plaintiff’s objections to Judge Scott’s
recommendation as to the third incident. The Court remands this case to Judge Scott
for the limited purpose of addressing the Plaintiff’s contentions regarding the
authenticity of the video of the March 2012 incident. The Court leaves the scope and
nature of such proceedings to the sound discretion of Judge Scott.
Recommendation in part. The Plaintiff’s motion for summary judgment (Docket No. 93)
is denied. Defendants Roshia and Ayers’ motion for summary judgment (Docket No.
95) is granted as to the Plaintiff’s claims regarding the April 21, 2011 and August 31,
2011 incidents. The Court defers decision on the Defendants’ motion for summary
judgment as to the March 2012 incident and remands this case to Judge Scott for
Dated: April 24, 2017
Buffalo, New York
_s/Richard J. Arcara__________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?