DeLee v. Rossi et al

Filing 48

REPORT AND RECOMMENDATIONS / DECISION AND ORDER. Defendants' Motion to Dismiss (Dkt. 26), should be GRANTED, with Defendants' Motion to Vacate (Dkt. 38), and Plaintiff's Motion for Default Judgement (Dkt. 43), DISMISSED as moot and the Clerk of Court should be directed to close the file. Signed by Hon. Leslie G. Foschio on 8/21/2019. (SDW) (Copy of Report and Recommendation/Decision and Order mailed to pro se Plaintiff at Franklin Correctional Facility) (Main Document 48 replaced on 8/21/2019) (SDW).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
MAURICE LARRY DeLEE,
Plaintiff,
v.

REPORT 
and
RECOMMENDATION
----------------------------DECISION
and
ORDER

MR. RUSSO, et al.,
17-CV-00448A(F)
Defendants.
______________________________________
APPEARANCES:

MAURICE LARRY DeLEE, Pro se
07-B-0369
Franklin Correctional Facility
Box 10
Malone, New York 12953-0010
LETITIA JAMES
NEW YORK STATE ATTORNEY GENERAL
Attorney for Defendant
HILLEL DAVID DEUTSCH
Assistant New York Attorney General, of Counsel
144 Exchange Boulevard
Rochester, New York 14614

JURISDICTION
On March 7, 2018, Hon. Richard J. Arcara referred this case to the undersigned
for all pretrial matters including preparation of a report and recommendation on
dispositive motions. The matter is presently before the court on Defendants’ motions to
dismiss, filed November 16, 2018 (Dkt. 26), and to vacate the entry of default as against
Defendant Roache, filed December 13, 2018 (Dkt. 38), and on Plaintiff’s motion for
default judgment as to Defendant Roache, filed December 26, 2018 (Dkt. 43).1

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Although Defendants’ motion to dismiss and Plaintiff’s motion for default judgment are dispositive,
whereas Defendants’ motion to vacate the entry of default is nondispositive, all three motions are

BACKGROUND and FACTS2
On May 22, 2017, Plaintiff Maurice Larry DeLee (“Plaintiff”), proceeding pro se,
commenced this action alleging Defendants, all employees of New York State
Department of Corrections and Community Supervision (“DOCCS”), violated Plaintiff’s
civil rights. On August 10, 2017, Plaintiff filed an Amended Complaint (Dkt. 5). In an
Order filed October 25, 2017, District Judge Richard J. Arcara dismissed several claims
and defendants, leaving claims that while housed at Gowanda Correctional Facility
(“Gowanda”) awaiting trial in an unrelated matter, Plaintiff was subjected to retaliatory
threats on February 25 and 25, 2017, Amended Complaint ¶¶ 32-34, and use of force
on March 1, 2017, id. ¶¶ 38-41, by Defendants Correctional Officer (“C.O.”) Mr. Roache
(“Roache”), C.O. Mr. Gates (“Gates”), C.O. Mr. Mattyis (“Mattyis”), C.O. Sergeant F.
Deleaney (“Deleaney”), and C.O. Joseph Rogers (“Rogers”) (together, “Defendants”). It
is undisputed that on March 7, 2017, after being transferred to Cayuga Correctional
Facility (“Cayuga”) following the trial, Plaintiff filed an inmate grievance (“IG # CAY18109-17” or “the IG”), with Cayuga Inmate Grievance Resolution Committee (“IGRC”),
pertaining to the alleged threats and use of force. Because the IG alleged staff
misconduct, the IGRC did not act on it, but passed the IG through to Cayuga’s
Superintendent. On April 14, 2017, before receiving a response from Cayuga’s
Superintendent, Plaintiff filed an appeal with the Central Officer Review Committee
(“CORC”). While the matter remained pending before CORC, Plaintiff, on May 22,
2017, commenced the instant action. On May 23, 2017, the Superintendent denied the

addressed in this combined Report and Recommendation/Decision and Order, in the interest of judicial
economy.
2
The Facts are taken from the pleadings and motion papers filed in this action.

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IG. A hearing on the IG was held before the CORC on June 3, 2018, following which
the Superintendent’s decision was upheld on June 13, 2018.
On November 16, 2018, Defendants moved to dismiss the action for failure to
exhaust administrative remedies (Dkt. 26) (“Defendants’ Motion to Dismiss”), attaching
in support a Memorandum of Law (Dkt. 26-1) (“Defendants’ Memorandum”). In
opposition, Plaintiff filed on November 29, 2018, Plaintiff’s Reply Affidavit (Dkt. 30)
(“Plaintiff’s Response”), attaching exhibits. On December 7, 2018, Defendants filed in
further support the Reply Memorandum of Law (Dkt. 35) (“Defendants’ Reply”).
Meanwhile, on December 6, 2018, Plaintiff requested the Clerk of Court enter
default against Defendants Deleaney, Gates, Mattyis, Roache, Rogers, and John Doe
defendants 1, 2 and 3. (Dkt. 34). On December 10, 2018, default was entered as
against Roache for failure to appear or otherwise defend, but not as against Defendants
Deleaney, Gates and Mattyis who had filed a motion to dismiss, or as to Defendant
Rogers, or the John Doe Defendants for whom no proof of service had been filed. On
December 13, 2018, Defendant Roache moved to vacate the entry of default as against
him (Dkt. 38) (“Motion to Vacate”), attaching the Declaration of Assistant Attorney
General (“AG”) Hillel Deutsch (Dkt. 38-1) (“Deutsch Declaration”), and a Memorandum
of Law (Dkt. 38-2) (“Memorandum – Motion to Vacate”). In opposition to the Motion to
Vacate, Plaintiff filed on December 26, 2018, a motion for a default judgment as against
Defendant Roache (Dkt. 43) (“Motion for Default Judgment”), and Plaintiff’s Opposition
in Reply to Defendants Declaration of Deutsch and Memorandum of Law (Dkt. 44)
(“Plaintiff’s Memorandum”).
Oral argument was deemed unnecessary.

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Based on the following, Defendants’ Motion to Dismiss should be GRANTED and
Defendants’ Motion to Vacate and Plaintiff’s Motion for Default Judgment DISMISSED
as moot, with the Clerk of Court directed to close the file.

DISCUSSION
Defendants move to dismiss the Amended Complaint based on Plaintiff’s failure
to exhaust administrative remedies prior to commencing this action. In particular,
Defendants maintain that because Plaintiff failed to follow the established procedures,
Plaintiff failed to fully comply with administrative remedies as required, such that Plaintiff
cannot state a claim for relief and requiring dismissal of the Amended Complaint.
Defendants’ Memorandum at 1-5. In opposition, Plaintiff maintains that he exhausted
administrative remedies after commencing the action. Plaintiff’s Response at 2-4.
Alternatively, Plaintiff maintains that he was not required to exhaust because not all
administrative remedies were available to him because he felt threatened and, thus,
exhausted via such alternate means as writing letters and verbally complaining. Id. at
4-5. There is no merit to Plaintiff’s arguments.
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought
with respect to prison conditions under section 1983 ..., or any other [f]ederal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA requires
“proper exhaustion,” meaning exhaustion in “compliance with an agency’s deadlines
and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “Failure
to exhaust administrative remedies is an affirmative defense under the PLRA, not a

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pleading requirement.” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (citing
cases).
As relevant here, DOCCS’s regulations outline the procedures that apply to the
Inmate Grievance Program (“IGP”) at DOCCS correctional facilities. The first step of
the grievance process begins with the filing of a complaint with the grievance clerk
within 21 days of an alleged incident. N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit. 7, §
701.5(a)(1) (“§ 701__”). Upon filing, the grievance clerk numbers and logs the
grievances. Id. § 701.5(a)(2). The grievance then generally is subjected to three levels
of review. Williams, 829 F.3d at 119–20.
The first review is by the inmate grievance resolution committee (“IGRC”); the
second review is by the correctional facility superintendent; and the third review is by
the central office review committee (“CORC”). Williams, 829 F.3d at 119 (citing §§
701.1(c), 701.5). With regard, however, to “harassment grievances,” i.e., those
involving “employee misconduct meant to annoy, intimidate or harm an inmate,” id. at
119-20 (citing § 701.2(e)) such grievances “are subject to expedited first-level review by
the facility superintendent.” Id. (citing § 701.8.). Upon identifying an harassment
grievance as such, the grievance clerk must forward the grievance to the correctional
facility superintendent on the same day that the grievance is filed. Id. (citing §
701.8(b)). “If the grievance presents a bona fide harassment issue, then the
superintendent must initiate an investigation, render a decision on the grievance, and
inform the inmate of the decision within 25 days of receipt of the grievance.” Id. (citing §
701.8(d), (f)). “If the superintendent fails to respond within the required 25 calendar day
time limit the grievant may appeal his/her grievance to CORC.” Id. (citing § 701.8(g);

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and § 701.6(g)(2) (stating generally that matters not decided within designated time
limits “may be appealed to the next step”). Further, if an inmate is transferred to
another facility while a grievance is pending, a response to the grievance shall be
mailed to the inmate at the new facility, id. (citing § 701.6(h)(1)), in which case “[i]f the
grievant wishes to appeal, he or she must mail the signed appeal form back to the IGP
supervisor at the facility where the grievance was originally filed within seven calendar
days after receipt.” Id. (citing § 701.6(h)(2)). “If an inmate wishes to file a new grievance
about an incident that occurred prior to a transfer, he must file the grievance in the
facility where he is currently housed, ‘even if it pertains to another facility.’” Id. (citing §
701.5(a)(1)).
Significantly, in the instant case, Plaintiff admits he did not follow DOCCS’s
established procedures. Plaintiff’s Response at 2-5. Rather, Plaintiff maintains he
continued to pursue administrative remedies after commencing this action. Id. at 2-4.
It is settled, however, that exhaustion of a claim after the complaint has already been
filed in federal court does not save the claim from dismissal. Neal v. Goord, 267 F.3d
116, 122 (2d Cir. 2001), abrogated in part on other grounds by Porter v. Nussle, 534
U.S. 516 (2002). Accordingly, even assuming, arguendo, Plaintiff properly considered
his IG as alleging harassment, and that such self-categorization supported Plaintiff’s
filing directly with the Superintendent despite § 701.8(b)’s provision that such decision is
for the Grievance Clerk, Plaintiff still failed to await the decision of the Superintendent
before filing his appeal to CORC, and also filed the instant action more than one year
prior to receiving CORC’s decision. Accordingly, that Plaintiff may have completed all

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required levels of administrative review after commencing this action does not preclude
dismissal for failure to exhaust.
Nor is there any merit to Plaintiff’s vague assertion that he was unable to follow
the procedures out of fear for his safety or confusion as to how to properly exhaust,
relying on caselaw exempting inmates from the administrative exhaustion requirement
when administrative remedies are unavailable. Plaintiff’s Response at 2-4. An
administrative procedure is unavailable when (1) “‘it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved inmates’”;
(2) it is “‘so opaque that it becomes, practically speaking, incapable of use’”; or (3)
“‘prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.’” Williams, 829 F.3d at 123–24
(quoting Ross, 136 S.Ct. at 1859–60). Even if Plaintiff’s arguments asserted in
opposition to summary judgment could establish that the administrative remedies were
unavailable, such belated arguments made for the first time in opposing dismissal are
insufficient. See LionKingzula v. Jayne, 714 Fed.Appx. 80, 82 (2d Cir. Mar. 13, 2018)
(affirming grant of summary judgment where, prior to filing papers in opposition to
summary judgment, the record was devoid of any indicating the plaintiff had otherwise
exhausted administrative remedies). Accordingly, Plaintiff’s belated and self-serving
assertions are insufficient to avoid dismissal for failure to timely exhaust administrative
remedies.
The dismissal of the Amended Complaint based on Plaintiff’s failure to exhaust
administrative remedies renders the remaining motions, including Defendants’ Motion to
Vacate and Plaintiff’s Motion for Default Judgment moot.

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CONCLUSION
Based on the foregoing, Defendants’ Motion to Dismiss (Dkt. 26), should be
GRANTED, with Defendants’ Motion to Vacate (Dkt. 38), and Plaintiff’s Motion for
Default Judgement (Dkt. 43), DISMISSED as moot and the Clerk of Court should be
directed to close the file.
SO ORDERED, as to Defendants’
Motion to Vacate,
/s/ Leslie G. Foschio 
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

Respectfully submitted, as to Defendants’ Motion
to Dismiss and Plaintiff’s Motion for Default
Judgment,
/s/ Leslie G. Foschio  
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

August 21, 2019
Buffalo, New York

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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio  
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

August 21, 2019
Buffalo, New York

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