Nelson v. McGrain

Filing 11

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 defendants' Motion for Summary Judgment and dismissing the complaint. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/22/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEFFREY NELSON,
DECISION AND ORDER
No. 6:12-CV-6292(MAT)

Plaintiff,
-vsCORRECTION OFFICER MARC McGRAIN,
Defendant.

I.

Introduction
Pro se plaintiff Jeffrey Nelson (“Nelson” or “Plaintiff”), an

inmate

in

the

custody

of

the

New

York

State

Department

of

Corrections and Community Supervision (“DOCCS”) commenced this
action pursuant to 42 U.S.C. § 1983 asserting that Defendant
Correction Officer Marc McGrain (“CO McGrain” or “Defendant”)
violated his constitutional rights on various occasions while he
was

housed

at

Southport

Correctional

Facility

(“Southport”).

Defendant has filed a motion for summary judgment (Dkt #7), which
Plaintiff has opposed.
II.

General Legal Principles
A. Motions to Dismiss for Failure to State a Claim
Rule 12(b)(6) allows dismissal of complaints based upon the

plaintiff’s failure “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). In order “[t]o survive a motion
to

dismiss

under

[Rule

12(b)(6)],

a

complaint

must

contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, ––– U.S.
––––, ––––, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167
L.Ed.2d 929 (2007)). In assessing a claim’s plausibility, the
district court must “assume [the] veracity” of all well-pleaded
factual allegations contained in the complaint, Iqbal, 129 S. Ct.
at 1950, and draw every reasonable inference in favor of the
plaintiff, Zinermon v. Burch, 494 U.S. 113, 118 (1990). However,
the plaintiff’s allegations must consist of more than mere labels
or a “formulaic recitation of the elements of a cause of action,”
and bare legal conclusions are “not entitled to the assumption of
truth.” Iqbal, 129 S. Ct. at 1949–50.
B.

Summary Judgment Standard

Summary

judgment

is

appropriate

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c). Initially,
the moving party must show that there is “an absence of evidence to
support the non-moving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Once the moving party has carried its burden,
the opposing party must set forth “specific facts showing that
there is a genuine issue for trial[,]” FED. R. CIV. P. 56(e), and
must introduce evidence beyond the mere pleadings to show that

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there is an issue of material fact concerning “an element essential
to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322.
A material fact is genuinely in dispute “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). The reviewing court resolves “all ambiguities and
draw[s] all inferences in favor of the nonmoving party in order to
determine how a reasonable jury would decide.” Aldrich v. Randolph
Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (citation
omitted). Thus, “[o]nly when reasonable minds could not differ as
to the import of the evidence is summary judgment proper.” Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir.) (citing Anderson, 477 U.S.
at 250–51), cert. denied, 502 U.S. 849 (1991). If, “as to the issue
on which summary judgment is sought, there is any evidence in the
record from which a reasonable inference could be drawn in favor of
the opposing party, summary judgment is improper.” Security Ins.
Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83
(2d Cir. 2004) (quotation omitted).
III. Discussion
Nelson alleges that CO McGrain violated his constitutional
rights in various ways on several different occasions, and that
these actions represent a pattern of retaliatory conduct directed

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at quelling his exercise of his First Amendment right to seek
redress of grievances.
A.

Verbal Harassment on August 29, 2011

On August 29, 20111, Plaintiff alleges that Defendant stated
to him, “Stop writing complaints on the staffs [sic]! Do you hear
me

you

deaf

retard!

Cause

I

can

make

your

stay

here

very

miserable!” Defendant then “pull[ed] his pants down and jam[med]
his buttock[s] in the feed up slot and pass[ed] gas[,]” while
stating, “[I]f you don’t hear that you will sure smell it!”
Plaintiff’s Affidavit (“Pl’s Aff.”) at 2. According to Plaintiff,
these threats “intimidated [him] with fearful panic attack of
worrying about being set up with unlawful contraband.” Id. (citing
Declaration of Assistant Attorney General Hillel Deutsch, Esq.
(“Deustch Decl.”), Exhibit (“Ex.”) B).
Verbal

harassment

does

not

rise

to

the

level

of

a

constitutional violation. See Cuoco v. Moritsugu, 222 F.3d 99, 109
(2d Cir. 2000) (noting that “rudeness and name-calling does not
rise to the level of a constitutional violation”); Purcell v.
Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (similar). Because the
verbal harassment and derogatory remarks alleged do not constitute
a

constitutional

violation,

the

verbal

harassment

claim

is

dismissed. See, e.g., Prior v. Goord, 2007 WL 2088885, at *3
(N.D.N.Y. July 19, 2007); Ebron v. Lantz, 2006 WL 18827, at *3-4
(D.Conn. Jan. 4, 2006) (citing cases).

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Plaintiff’s claim Defendant directed flatulence into his cell
must be dismissed because it does not allege any appreciable
injury. See McEachin v. McGuinnis, 357 F.3d 197, 203 n. 6 (2d Cir.
2004) (“There may be inconveniences so trivial that they are most
properly ignored . . . [thus] the time-honored maxim de minimis non
curat lex applies.”).
B.

Service of a Contaminated Meal on September 3, 2011

On September 3, 2011, Plaintiff alleges, Defendant served him
a meal that was contaminated with chewing tobacco-laden saliva.
“Although ‘[t]he Constitution does not require that sentenced
prisoners [receive] every amenity which one might find desirable,’
Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), rev’d on other
grounds sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979), the Eighth Amendment prohibition against cruel
and unusual punishment does require that prisoners be served
‘nutritionally adequate food that is prepared and served under
conditions which do not present an immediate danger to the health
and well being of the inmates who consume it.’” Robles v. Coughlin,
725 F.2d 12, 15 (2d Cir. 1983) (quoting Ramos v. Lamm, 639 F.2d
559, 571 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981)).
The service of a single contaminated meal does not amount to
an injury of constitutional proportion. Cf. Robles, 725 F.2d at 15
(finding

that

allegations

that

prison

officials

regularly

contaminated inmates’ meals with “dust, rocks, glass and human

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waste” was sufficient to withstand sua sponte dismissal by district
court).
C.

Throwing of Meal on September 4, 2011

Plaintiff complains that on September 4, 2011, Defendant
“threw [his] noon meal through the feed-up slot and walked away.”
Complaint, ¶ 10. This claim contains no allegation of any injury
and thus plainly fails to set forth a colorable constitutional
violation.
D.

Service of an Incomplete Meal on September 5, 2011

On September 5, 2011, Plaintiff alleges, Defendant served him
only hot dog buns and not the rest of his noon meal. Plaintiff
further contends the hot dog buns he received were contaminated
with H. Pylori bacteria. According to Plaintiff, after eating the
hot dog buns, he began suffering nausea and stomachaches and was
treated with Prilosec, an over-the-counter heartburn medication.
“[U]nder certain circumstances a substantial deprivation of
food may well be recognized as being of constitutional dimension.”
Robles, 725 F.2d at 15 (citations omitted). In this Circuit, courts
have held that when a correction officer deprives a prisoner of two
of the three regular meals served each day, the objective prong of
the Eighth Amendment may be met if the prison officials do not show
that the one meal served is nutritionally adequate. Beckford v.
Portuondo,

151

Cunningham

v.

F.

Supp.2d

Jones,

567

204,

213

F.2d

653,

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(N.D.N.Y.
660

(6th

2001)

(citing

Cir.

1977)).

Plaintiff’s allegation that he was served only hot dog buns at one
out of his three daily meals on a single day thus does not suffice
to state an Eighth Amendment claim.
Plaintiff’s claim that the hot dog buns were contaminated with
H. Pylori bacteria is based on pure speculation. See Livingston v.
Goord, 225 F. Supp.2d 321, 332-33 (W.D.N.Y. 2002) (granting summary
judgment to defendants regarding inmate’s claim that his meals were
drugged because “even assuming that the food was contaminated by
someone, it would . . . be speculative to conclude that these
defendants

were

the

culprits

simply

because

they

delivered

plaintiff’s food to him”), rev’d on other grounds, Livingston v.
Piskor, 153 F. App’x 769 (2d Cir. 2005).
Furthermore,

while

Plaintiff’s

grievance

regarding

this

incident does allege Defendant served him only hot dog buns, it
makes no

mention

that he

suffered

nausea, stomachache,

or a

bacterial infection. See Deutsch Decl. Because Plaintiff never
grieved the issue of bacterial contamination, he has not exhausted
his administrative remedies regarding this aspect of his claim.
See, e.g., Donahue v. Bennett, No. 02–CV–6430 CJS, 2004 WL 1875019,
at *7-8 (W.D.N.Y. Aug. 17, 2004) (where Plaintiff grieved certain
medical claims stemming from an alleged use of force, but not
others, the claims not specifically grieved were dismissed based on
the failure to exhaust administrative remedies).

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E.

Verbal Harassment on September 12, 2011

On September 12, 2011, Plaintiff asserts, Defendant approached
Plaintiff’s cell and yelled, “[N]obody believe [sic] you! It’s not
over!” Complaint, ¶ 13. Plaintiff interpreted this as a threat that
Defendant was going to frame him for possession of an unlawful
weapon. Id. Plaintiff states he grieved the incident, citing to
Southport Grievance Number 522229-11. This allegation is far too
speculative

and

conclusory

set

forth

a

constitutional

claim.

Furthermore, Plaintiff “has no constitutional right . . . to be
free from verbal harassment and threats.” Tate v. Robinson, 1998 WL
214429, at *2 (N.D.N.Y. Apr. 23, 1998).
F.

Physical and Sexual Assault on September 16, 2011

On September 16, 2011, Plaintiff alleges he sustained injuries
from having handcuffs applied too tightly. He also alleges that
Defendant forced Plaintiff to bend over while he (Defendant) pulled
Plaintiff’s

underwear

down

and

“force[d]

his

finger

into

[Plaintiff’s] anal cavity while stating, ‘stop resisting!’” Pl’s
Aff. at 5. Plaintiff states that the assault was interrupted when
another correction office called out that a sergeant was coming
back with a group of inmates. Id.
In support of this claim, Plaintiff attaches an injury report
from the date of the alleged incident, which found “no injuries
noted upon visual inspection of face, head, trunk and extremities
that are recent. [Plaintiff] [h]as three healing scratches inside

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left wrist.” Complaint, Ex. B. Plaintiff contends he filed a
grievance regarding the incident but did not receive any response,
which led him to “notify facility staffs [sic] of the incident.”
Id., ¶ 16. However, Plaintiff does not assert that he filed an
appeal to either the facility superintendent or Central Office
Review Committee (“CORC”). Id. Defendant asserts that Plaintiff has
failed to exhaust his administrative remedies with regard to this
claim.
Under the Prison Litigation Reform Act (“PLRA”), exhaustion of
administrative remedies is, in general, a mandatory precondition to
commencement of a § 1983 action. See 42 U.S.C. §1997e(a) (“No
action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”);
Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion is required
for “all inmate suits about prison life”); Booth v. Churner, 532
U.S. 731, 734 (2001) (exhaustion required before filing a Section
1983 claim for monetary damages even though monetary damages are
unavailable as an administrative remedy).
To properly exhaust a claim, a prisoner must comply with the
relevant state-provided grievance procedures. Jones v. Bock, 549
U.S. 199, 218 (2007); see also Woodford v Ngo, 548 U.S. 81 (2006)

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(PLRA requires “proper exhaustion . . . [which] demands compliance
with an agency’s deadlines and other critical procedural rules).
Here, Nelson asserts that he filed a grievance regarding the
alleged use of force and sexual abuse, but did not receive a
response. Complaint, ¶ 16. Plaintiff states he then “notified
facility staffs

[sic]

of the

incident[,]”

id.,

but

does not

indicate who he notified or how such notification was accomplished.
Furthermore,

Plaintiff

does

not

assert

that

he

notified

the

facility superintendent or the CORC, or that he made any attempt to
re-file the grievance either at Soutport or upon his transfer to
another facility. Similarly, Plaintiff does not assert that he
investigated the proper procedure to be followed when an inmate
does not file a grievance.
Sabrina

Vonhagn

(“Vonhagn”),

a

grievance

supervisor

at

Southport, found no documentation that Plaintiff ever filed any
grievance

related

to

the

alleged

September

16th

assault.

See

Declaration of Sabrina Vonhagn (“Vonhagn Decl.”). Vonhagn explains
that grievance staff at Southport make weekly rounds to determine
if any inmates have questions pertaining to grievances they may
have filed or wish to file, and any such questions are logged in
the

grievance

office’s

correspondence

file.

At

no

point

did

Plaintiff inquire into the status of the grievance he claims to
have filed, ask to re-file the grievance, or request information on
how to proceed when a grievance is not properly processed.

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It is well-settled that, when contradicted by declarations
from corrections staff, an inmate’s “unsupported allegation [in the
complaint] that he filed a grievance . . . is insufficient to
withstand a motion for summary judgment.” Ferguson v. Jones, No. 10
Civ. 817(PGG), 2011 WL 4344434, at *5 (S.D.N.Y. Sept. 12, 2011)
(quoting Santiago v. Murphy, No. 08-CV-1961(SLT), 2010 WL 2680018,
at *3 (E.D.N.Y. June 30, 2010)); see also Hicks v. Baines, 593 F.3d
159, 166 (2d Cir. 2010)(“[M]ere conclusory allegations . . . cannot
by themselves create a genuine issue of material fact where none
would otherwise exist.”); Rodriguez v. Hahn, 209 F. Supp.2d 344,
348 (S.D.N.Y. 2002) (“Proceeding pro se does not otherwise relieve
a litigant of the usual requirements of summary judgment, and a pro
se

party’s

bald

assertions

unsupported

by

evidence,

are

insufficient to overcome a motion for summary judgment.”) (internal
quotations omitted).
The

Second

Circuit

has

recognized

the

following

three

exceptions to the requirement for exhaustion of administrative
remedies: “when (1) administrative remedies are not available to
the prisoner; (2) defendants have either waived the defense of
failure to exhaust or acted in such a way as to estop them from
raising

the

defense;

or

(3)

special

circumstances,

such

as

reasonable misunderstanding of the grievance procedures, justify
the prisoners failure to comply with the exhaustion requirement.”
Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). The

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Second Circuit has held that “‘[a]lert[ing] the prison officials as
to the nature of the wrong for which redress is sought,’ . . . does
not constitute proper exhaustion.” Marias v. Zenk, 495 F.3d 37, 44
(2d Cir. 2007) (quotation omitted). “[N]otice alone is insufficient
because ‘[t]he benefits of exhaustion can be realized only if the
prison grievance system is given fair opportunity to consider the
grievance’
opportunity

and

‘[t]he

unless

.

the

.

.

system

grievance

will

complies

not

have

with

the

such

an

system’s

critical procedural rules.’” Id. (quoting Woodford, 549 U.S. at
95).
In this case, Plaintiff makes no claim administrative remedies
were unavailable to him; indeed, he affirmatively represents that
he had filed multiple grievances in the days prior to the alleged
incident. See Complaint ¶¶ 10, 11, 12, 13. Thus, the first Ruggiero
exception is inapplicable. Likewise, the second exception does not
apply, for Defendant raised the defense of non-exhaustion in a
timely matter, and the record reflects no actions which may be
construed as a waiver by Defendant or other estoppel against him.
Finally, no “special circumstances” are present which justify
Plaintiff’s failure to exhaust. Plaintiff clearly was on notice of
the requirement to appeal his grievance. First, he was informed of
the requirement in an orientation packet describing grievance
procedures

at

Southport.

See

Vonhagn

Decl.

Second,

grievance

supervisors were available on their weekly rounds to answer any

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questions Plaintiff may have had. Id. Third, information, including
the DOCCS Directive pertinent to the grievance procedure, was
available for Plaintiff to review at the law library. Id.
The grievance procedure provided by DOCCS consists of three
stages. Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)
(outlining
procedure

grievance
must

be

procedure).
exhausted

Each

before

level
an

of

inmate

the
may

grievance
commence

litigation in federal court. See Porter, 534 U.S. at 524; see also
Guarneri v. West, 782 F. Supp.2d 51, 60 (W.D.N.Y. 2011) (dismissing
for want of exhaustion inmate’s § 1983 claims; although inmate
filed three separate grievances concerning inability to attend
religious services and similar issues, and unsuccessfully appealed
them to the superintendent, he failed to take the final step of
appealing them to CORC).
Courts in this Circuit have held that an inmate who has failed
to appeal a grievance to the facility superintendent and the CORC
has failed to exhaust administrative remedies, even if he filed a
grievance

initially

and

received

no

response.

Williams

v.

Hupkowicz, No. 04-CV-51S(F), 2007 WL 1774876, at *4 (W.D.N.Y. June
18, 2007)

(“Even

assuming that

an

inmate received

no

timely

official response as contemplated by the regulations to a grievance
at any stage in the inmate grievance process, the inmate could
nevertheless appeal such grievance to the next level, and the
failure

to

do

so

constitutes

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a

failure

to

exhaust

his

administrative remedies as required under the PLRA.”) (citation
omitted); George v. Morrison-Warden, No. 06 Civ. 3188(SAS), 2007 WL
1686321, at *3 & n.55 (S.D.N.Y. June 11, 2007) (holding that, even
when an inmate files a grievance and receives no response, he must
nevertheless properly exhaust all appeals before his grievance is
considered exhausted) (citations omitted).
For

the

foregoing

reasons,

the

Court

concludes

that

Plaintiff’s claims concerning the allegedly too-tight handcuffs and
the sexual assault are unexhausted and that Plaintiff has no
justification for his failure to exhaust.
IV.

Conclusion
Defendant’s motion to dismiss (Dkt #7) is granted for the

reasons

discussed

above.

Plaintiff’s

complaint

(Dkt

#1)

is

dismissed with prejudice. The Clerk of the Court is requested to
close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

October 22, 2013
Rochester, New York

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