Russell v. Young et al

Filing 41

DECISION AND ORDER granting 34 Motion for Partial Summary Judgment. ORDERED that Defendants' motion for partial summary judgment [ECF No. 34] is granted as to Russell's claims against defendants J. Thompson and A. Annucci; and it is furtherORDERED that the Clerk of Court terminate J. Thompson and A. Annucci as parties to this action.Signed by Hon. Charles J. Siragusa on 5/24/21. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DA’SHAWN RUSSELL, 13B0551,
-vs-

Plaintiff,

YOUNG, ARMSTRONG, WURSTER, DEWALD,
SGT. PUNDT, P. GREIS, J. THOMPSON, & A. ANNUCCI,

DECISION AND ORDER
18-CV-6209 (CJS)

Defendants.
Plaintiff Da’Shawn Russell (“Russell”) filed a complaint pursuant to 42 U.S.C. § 1983
“alleging excessive use of force and denial of medical care in violation of the Eighth
Amendment to the United States Constitution and confinement in (SHU) in violation of
the Due Process Clause of the Fourteenth Amendment to the Constitution.” Compl., Mar.
12, 2018, ECF No. 1. Defendants Young, Armstrong, Wurster, Dewald and Sgt. Pundt are
corrections officers of the New York State Department of Corrections and Community
Supervision (“DOCCS”) working at Collins Correctional Facility (“CCF”). Compl. at ¶ 4.
Defendant P. Greis is the Deputy of Security at CCF, Defendant J. Thompson is
Superintendent of CCF, and Defendant A. Annucci is the acting Commissioner of DOCCS.
Comp. at ¶ 5–6.

Fact discovery was completed by the parties on March 2, 2020, and the matter is
now before the Court on Defendants’ motion for partial summary judgment. 1 ECF Nos.
30, 34. In particular, Defendants argue that Russell has failed to show that he exhausted
administrative remedies with respect to defendants Thompson and Annucci, and
consequently that the claims against them should be dismissed. Pl. Mem. of Law, 2, May
1, 2020, ECF No. 34-3. Alternatively, Defendants maintain that Russell’s allegations
against defendants Thompson and Annucci should be dismissed for failure to allege their
personal involvement in the offensive conduct. Pl. Mem. of Law at 4.
For the reasons stated below, Defendants’ motion for partial summary judgment
[ECF No. 34] is granted, Russell’s claims against defendants Thompson and Annucci are
dismissed, and the Clerk is directed to terminate J. Thompson and A. Annucci as
defendants in this action.
BACKGROUND
The basis for Russell’s § 1983 claims of excessive use of force and violation of due
process is an incident that occurred on June 27, 2015 in which defendants Corrections
Officers Young, Armstrong, Wurster, Dewald, and Sgt. Pundt were involved in a use of
force to restrain Russell. That incident led to the filing of a misbehavior report in which

Under Irby v. New York City Transportation Authority, 262 F.3d 412 (2d Cir. 2001), unless the opposing
party has already provided the pro se litigant with the requisite notice, the court is obligated to inform
him that failure to respond to a motion for summary judgment may result in the grant of judgment for
the party seeking summary judgment and dismissal of the case. The Court notes in the instant action that,
although Russell filed his complaint pro se, in the interim he retained counsel. Notice, Mar. 13, 2019, ECF
No. 23. Hence, an Irby notice is not necessary.
1

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Russell was charged with violent conduct, violation of a direct order, and violation of frisk
procedures. Pl. Mem. of Law (Ex. A), 1, May 21, 2020, ECF No. 35-1.
A hearing on Russell’s misbehavior report was held beginning on July 2, 2015 and
ending on July 8, 2015, after which defendant P. Greis, Deputy Superintendent of Security
at CCF, found Russell to be guilty of all charges. Pl. Mem. of Law (Ex. A) at 6. Russell
appealed the decision on several grounds, including the following:
I pled not guilty before [Greis], and told my side of the story. He adjourned
[the hearing] until 7/6/15 . . . On 7/6/15, Sgt. Pundt told a story. Then I
question Pundt. When ask about the cut over my eye? He said “when he
went down it happen.” I object to that for a few reasons. But [Greis] stop
me and said I can only question the witness and no objections?? On 7/7/15
. . . CO Young told a story. Then I question Young. Young was asked about
the cut over my eye? He said “It happen when he went down.” Then I said
“what about this 3 inch deep cut under my chin?” Young stutter his words,
and said, “He know nothing about that!” Then Greis says to Young “He got
it when he went down right.” Then Young says “Yes when he went down.” I
tried to object but Greis stop me! Dept. Greis lead the witness by giving him
an answer to the question ask. That was highly prejudicial to my hearing . .
. . The 14th Amendment to the U.S. Constitution, states that no person shall
be deprived of “liberty” without “due process of law.” In 1974, the Supreme
Court, in a case called Wulff v. McDon[ald] . . . interpreted this provision to
mean that an inmate may not be subject to a prison disciplinary hearing at
which good time can be taken without at least minimum requirements of
“due process.” Under state and federal constitution an inmate is entitled to
an impartial, unbiased hearing officer. By Greis helping Young answer a
question he has no answer for, made him partial and biased to my hearing.
Which violated my “due process” . . . .
Pl. Mem. of Law (Ex. A.) at 7. Thereafter, D. Venettozzi, DOCCS Director of Special
Housing/Inmate Disciplinary Program sent Russell a letter stating, “[o]n behalf of the
Commissioner and in response to your recent letter of appeal, please be advised that your

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Superintendent’s Hearing of July 8, 2015, has been reviewed and affirmed on August 25,
2015.” Pl. Mem. of Law (Ex. A) at 13.
In addition to the appeal of his misbehavior report, Russell filed three grievances
related to the June 27, 2015 incident. Def. Rule 56 Statement, ¶ 2, May 1, 2020, ECF No.
34-1. The first grievance was filed on July 7, 2015, and alleged physical assault. Def. Rule
56 Statement (Ex. A), 7, May 1, 2020, ECF No. 34-2. The Inmate Grievance Response
Committee (“IGRC”) passed the grievance through to the superintendent for
investigation, and on August 18, 2015, the superintendent denied the grievance because
Russell had provided no witnesses, and the corrections officers involved had all filed
written statements denying wrong-doing. Id. Russell appealed the superintendent’s
determination, noting the extent of his injuries. Id. On November 18, 2015, the Inmate
Grievance Program Central Office Review Committee (“CORC”) upheld the
superintendent’s decision. Def. Rule 56 Statement (Ex. A) at 5.
Russell filed the second grievance on July 17, 2015, while the first grievance was
still pending. The grievance stated:
Dep. P. Greis violated my 8th and 14th amendments of the U.S. constitution
(Failure to protect & equal protection) state and federal . . . . He failed as
security to protect me from further harm from officers who assaulted &
battered me. And officers even though I’m in the [Special Housing Unit], still
continue to come by my door and threaten me. This is highly prejudicial to
my 14th of the U.S. constitution (equal protection of the law) . . . .
Def. Rule 56 Statement (Ex. B), 46, May 1, 2020, ECF No. 34-2. Notwithstanding the IGRC’s
recommendation on July 24, 2015 that a hearing be held, the Superintendent denied
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Russell’s grievance on July 29, 2015, noting that Russell’s “allegations were investigated
properly by security staff.” Id. On September 9, 2015, CORC upheld the Superintendent’s
decision, noting that Greis “properly responded to [Russell]’s letters . . . after initiating an
in-house investigation.” Def. Rule 56 Statement (Ex. B) at 44.
Russell filed the third grievance on August 25, 2015. Def. Rule 56 Statement (Ex.
C), 65, May 1, 2020, ECF No. 34-2. Russell noted that since the date of the use of force on
June 27, 2015, he had been “experiencing extreme headaches,” and “becoming dizzy and
seeing spots before my eyes, and . . . vomiting.” Id. Therefore, he requested “to receive
the proper medical attention.” Id. The IGRC recommendation was that Russell “follow
proper sick call procedures to address any further concerns,” and on September 24, 2015
the Superintendent found that Russell had received appropriate medical care and that he
would continue to receive appropriate medical care. Id. On November 18, 2015, CORC
upheld the Superintendent’s decision, stating that it “has not been presented with
sufficient evidence of improper medical care or malfeasance by staff,” and advised Russell
to “address medical concerns via sick call.” Def. Rule 56 Statement (Ex. C) at 63.
On March 12, 2018, Russell filed the instant action, alleging violations of his rights
under the Eighth and Fourteenth Amendments of the United States Constitution, and
New York state law. Compl. at ¶ 45–48. On May 1, 2020, Defendants filed the motion for
partial summary judgment presently before the Court for the limited purpose of seeking
dismissal of A. Annucci and J. Thompson as defendants in this case.

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SUMMARY JUDGMENT STANDARD
It is well-settled that summary judgment may not be granted unless “the movant
shows that 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). See also Leon v. Murphy, 988 F.2d
303, 308 (2d Cir. 1993) (stating that summary judgment is only appropriate where, “after
drawing all reasonable inferences in favor of the party against whom summary judgment
is sought, no reasonable trier of fact could find in favor of the non-moving party.”). A party
moving for summary judgment bears the burden of establishing that no genuine issue of
material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Moreover,
“[a] party asserting that a fact . . . cannot be genuinely disputed must support that
assertion by . . . citing to particular parts of materials in the record . . . .” Fed. R. Civ. P.
56(c)(1).
Once the movant meets its burden, the burden shifts to the non-moving party to
demonstrate “specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must
present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at
249. The non-movant cannot oppose a properly-supported summary judgment motion
with bald assertions that are not supported by the record. See Bickerstaff v. Vassar Coll.,
196 F.3d 435, 452 (2d Cir. 1999), as amended on denial of reh'g (Dec. 22, 1999). Rather,
the non-movant must support its assertion that a fact is genuinely disputed by citing to

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particular parts of the record, or showing that the materials cited by the movant are
inadmissible or do not establish the absence of a genuine dispute. Fed. R. Civ. P. 56(c)(1).
Courts must view the underlying facts contained in affidavits, attached exhibits, and
depositions, in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369
U.S. 654, 655 (1962).
DISCUSSION
Two of Russell’s § 1983 claims involve defendants Thompson and Annucci. Russell
maintains that both Thompson and Annucci failed to take action to curb a known pattern
of physical abuse of CCF inmates by several corrections officers, which constituted a
violation of Russell’s Eighth Amendment rights. Compl. at ¶ 47. In addition, Russell argues
that by upholding the disciplinary decision against him on his rule violations, Annucci had
denied him due process of law in violation of the Fourteenth Amendment.
The legal principles applicable to claims filed pursuant to 42 U.S.C. § 1983 are well
settled. First, before “a prisoner confined in any jail, prison, or other correctional facility”
may file a § 1983 claim, he must exhaust “such administrative remedies as are available.”
42 U.S.C. § 1997e(a). Following the exhaustion of administrative remedies, in order to
establish individual liability under § 1983, a prisoner plaintiff must show (a) that the
defendant is a “person” acting “under the color of state law,” and (b) that the defendant
caused the plaintiff to be deprived of a constitutional right. See, e.g., Monroe v. Pape, 365
U.S. 167, 181 (1961). Additionally, “[i]n this Circuit personal involvement of defendants in

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alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977).
Defendants’ instant motion for partial summary judgment presents two
arguments. First, Defendants argue that Russell has failed to show that he exhausted his
administrative remedies with respect to defendants Thompson and Annucci, and thus
that the claims against Thompson and Annucci should be dismissed. In addition,
Defendants maintain that Russell has failed to allege Thompson’s and Annucci’s personal
involvement in the offensive conduct, and thus that the claims against Thompson and
Annucci should be dismissed.
Exhaustion of Administrative Remedies
In New York State, administrative remedies for most inmate grievances consist of
a three-step grievance and appeal procedure. First, within 21 calendar days of an alleged
occurrence, the grievant must submit a grievance in writing to the Inmate Grievance
Resolution Committee (“IGRC”) at the facility for investigation and review. N.Y. Comp.
Codes R. & Regs. tit. 7, § 701.5(a)–(b). Notably, the New York inmate grievance regulations
require that the written grievance “contain a concise, specific, description of the
problem,” but the regulations “do not state that a prisoner's grievance must name the
responsible party.” Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009) (citing, inter alia,
Jones v. Bock, 549 U.S. 199, 218 (2007)). Next, if the grievant is dissatisfied with the IGRC’s
determination, or if the IGRC is unable to reach a determination, the grievant may appeal

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to the facility’s superintendent. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)(1). Finally,
if the grievant is still dissatisfied, he must appeal to the Inmate Grievance Program’s
Central Office Review Committee (“CORC”). N.Y. Comp. Codes R. & Regs. tit. 7, §
701.5(d)(1). Alternatively, where an inmate's federal claims arise directly out of a
disciplinary or administrative segregation hearing (e.g., that he was denied due process
during the hearing), he need not initiate a separate grievance and appeal process but may
“exhaust[] his administrative remedies by presenting his objections in the administrative
appeals process . . . .” Rosales v. Bennett, 297 F. Supp.2d 637, 639 (W.D.N.Y. 2004)
(quoting Flanagan v. Maly, 99 Civ. 12336, 2002 WL 122921 at *2 (S.D.N.Y. Jan.29, 2002))
(internal quotation marks omitted).
The Court finds that in the present case, Russell has shown that he has exhausted
his administrative remedies. With respect to his claims that defendants Thompson and
Annucci failed to take any action to curb the physical abuse of inmates by several
corrections officers in violation of his Eighth Amendment rights, the Court notes that
Russell’s second grievance, filed on July 15, 2015, did state that defendant Greis, “failed
as security to protect me from further harm from officers who assaulted & battered me.
And officers even though I’m in the [Special Housing Unit], still continue to come by my
door and threaten me . . . .” Def. Rule 56 Statement (Ex. B) at 46. As indicated above, New
York grievance procedures require only a description of the problem, and not that all
defendants be identified by name. See also Zappulla v. Annucci, 636 F. App'x 824, 825 (2d

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Cir. 2016) (citing Espinal, 558 F.3d at 127; Jones, 549 U.S. at 218). Here, “by giving the
state an opportunity to correct any errors and avoiding premature litigation” on claims
that his Eighth Amendment rights were being violated, Russell satisfied the intent behind
the exhaustion requirement. See Read v. Calabrese, No. 9:11-CV-459 GLS/DEP, 2013 WL
5506344, at *10 n.6 (N.D.N.Y. Aug. 29, 2013) (quoting Flanagan, 2002 WL 122921, at *2).
With respect to his due process claims against defendant Annucci, the Court notes
that Russell exhausted his administrative remedies by alleging that defendant Greis, by
helping defendant Young answer a question during his disciplinary hearing, was acting as
a partial and biased hearing officer in violation of his Fourteenth Amendment rights. Pl.
Mem. of Law (Ex. A) at 7. Notwithstanding Defendants’ argument that “there is no record
of the alleged grievance,” Russell’s appeal of the superintendent’s decision to the DOCCS
Commissioner was sufficient to exhaust his administrative remedies for his claim that
arose from a disciplinary hearing. See Rosales, 297 F. Supp.2d at 639. Although the record
is not crystal clear with respect to Russell’s appeal, his submission of both his “Appeal
Form to Commissioner” (Pl. Mem. of Law (Ex. A) at 7) and of the letter from D. Venettozzi
informing him that his “Superintendent’s Hearing of July 8, 2015 was reviewed and
affirmed on August 25, 2015” (Pl. Mem. of Law (Ex. B-4) at 13) was sufficient to create an
inference in Russell’s favor at this stage of the proceedings.

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Defendants’ Personal Involvement
Nevertheless, Russell has failed to show that defendants Thompson and Annucci
were personally involved in any actions that led to the violations of Russell’s Eighth and
Fourteenth Amendment rights. “[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.”
Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991). Moreover, “there is no
respondeat superior liability in § 1983 cases.” Green v. Bauvi, 46 F.3d 189, 194 (2d
Cir.1995) (citing Monell v. New York City Dep't of Social Serv., 436 U.S. 658, 691 (1978)).
Indeed, as the Second Circuit has recently pointed out, in Ashcroft v. Iqbal, 556 U.S. 662
(2009), the Supreme Court held that a plaintiff may not rely on a special test for
supervisory liability, but instead “‘must plead that each Government-official defendant,
through the official's own individual actions, has violated the Constitution.’” Tangreti v.
Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676).
In the present case, Russell’s allegations against Thompson and Annucci do not
satisfy the requirements of Rule 56(c)(1) of the Federal Rules of Civil Procedure, which
require that the non-movant support his assertions by citing to “particular parts of the
record.” For instance, in his opposition papers Russell attempts to demonstrate Annucci’s
“deliberate indifference” to physical abuse by corrections officers by noting that the letter
from D. Venettozzi affirming the superintendent’s determination of Russell’s disciplinary
appeal was written “on behalf of the Commissioner,” and on letterhead listing Annucci as

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the acting DOCCS commissioner. Pl. Mem. of Law at 2; Pl. Mem. of Law (Ex. B-4) at 13.
Russell suggests that this letter is sufficient to raise a question of fact regarding Annucci’s
knowledge of Russell’s case. Further, with respect to Thompson’s involvement in the
violation of Russell’s Eighth Amendment rights, Russell notes that, as Superintendent of
CCF, Thompson is copied on many of the documents regarding Russell’s grievances, and
asks “[w]hether it is plausible to believe that the Facility’s head officer was unaware of
the allegations against the [Corrections Officers] under his command . . . [?]” The Court
finds these allegations insufficient to demonstrate defendants Annucci’s or Thompson’s
personal involvement in the alleged Eighth Amendment violations. See, e.g., Tangreti, 983
F.3d at 618–620 (“The deliberate-indifference standard ‘require[es] a showing that the
official was subjectively aware of the risk,’ [Farmer v. Brennan, 511 U.S. 825, 829 (1994)]
and that showing has not been made.”)
Neither are Russell’s papers sufficient to demonstrate defendant Annucci’s
personal involvement in the purported denial of Russell’s Fourteenth Amendment due
process rights. After a review of the record, the Court is satisfied that Annucci, the DOCCS
Commissioner, was not sufficiently involved in the alleged denial of due process to subject
him to personal liability. Russell has presented no evidence to suggest that Annucci
participated directly in any of the hearings throughout the grievance process, participated
in any reviews of Russell’s disciplinary appeal, or had reason to suspect that there had
been any wrongdoing. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). The mere

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fact that Annucci was in a high position of authority is an insufficient basis for the
imposition of personal liability on Russell’s Fourteenth Amendment claim. Id.
CONCLUSION
Consistent with the foregoing, it is hereby
ORDERED that Defendants’ motion for partial summary judgment [ECF No. 34] is
granted as to Russell’s claims against defendants J. Thompson and A. Annucci; and it is
further
ORDERED that the Clerk of Court terminate J. Thompson and A. Annucci as parties
to this action.
SO ORDERED.
DATED:

May 24, 2021
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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