Bailey v. Weckesser et al

Filing 26

DECISION AND ORDER granting in part and denying in part 16 Motion for Summary Judgment. The Motion is GRANTED to the extent that the retaliation claim against CO Hodkinson is DISMISSED WITHOUT PREJUDICE for failure to exhaust. CO Hodkinson is th erefore terminated as a defendant in this action. The Motion is DENIED as to the retaliation claim against CO Weckesser, which may proceed. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/23/20. (BJJ) A copy of this NEF and Order will be mailed to pro se Plaintiff.-CLERK TO FOLLOW UP- The Clerk of Court is directed to modify the caption to remove CO Hodkinson as a defendant.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RALIK BAILEY,
Plaintiff,
v.
CORRECTION OFFICER J. WECKESSER,
Five Points C.F.; CORRECTION OFFICER
T. HODKINSON, Five Points C.F.; DEPUTY
SUPR. of SEC. R. C. CONENY, Five Points
C.F.; DIRECTOR D. VENETTOZZI,
Director of Special Housing/Inmate
Disciplinary Program, N.Y.S. Department of
Corrections and Community Supervision,

Case # 18-cv-06292-FPG
DECISION AND ORDER

Defendants.

INTRODUCTION
Ralik Bailey (“Bailey” or “Plaintiff”) is an inmate in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”), currently confined at Marcy
Correctional Facility. Acting pro se, Bailey commenced the instant action pursuant to 42 U.S.C. §
1983 (“Section 1983”) by filing a Complaint (ECF No. 1) on April 6, 2018, alleging constitutional
violations based on events that occurred while he was housed at Five Points Correctional Facility
(“Five Points”). Defendants have moved for partial summary judgment in lieu of an answer (ECF
No. 16), arguing that Bailey has failed to exhaust his administrative remedies with respect to the
claims raised against Correction Officer J. Weckesser (“CO Weckesser”) and Correction Officer
T. Hodkinson (“CO Hodkinson”). For the reasons set forth below, Defendants’ Motion is
GRANTED IN PART and DENIED IN PART.

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BACKGROUND
As relevant to the instant partial summary judgment motion, the Complaint alleges that on
April 15, 2015, CO Weckesser filed a false misbehavior report against Bailey in retaliation for
filing grievances. See Complaint (“Compl.”), ECF No. 1 ¶¶ 14-20. That day, Bailey and his
cellmate were ordered out of their cell by CO Hodkinson and another correction officer who is not
a defendant for a cell search. About ten minutes into the search, CO Weckesser came over and
“accosted” Bailey about the grievances he filed. When Bailey did not respond, CO Weckesser
became irate and threatened to have Bailey “set-up.” Id.
CO Hodkinson said to CO Weckesser, “Here’s the grievance this [expletive] wrote on you
right here,” 1 and “here’s some [expletive] with Sergeant Haff’s name on it.” Id. ¶ 16. Bailey
requested the presence of the area supervisor to which CO Weckesser responded, “You want to
write [expletive] and see the Sergeant? I’ll show you how to write and you can see the Sergeant
from the box.” Id. ¶ 17. CO Weckesser then handcuffed Bailey and brought him to the Special
Housing Unit (“SHU”). Id. ¶ 18.
On April 16, 2015, Bailey was served with a misbehavior report (“MBR”) in which CO
Weckesser charged him with several disciplinary rule violations (102.10 Threats, 106.10 Direct
Order, 104.13 Creating a Disturbance, 107.10 Interference, and 107.11 Verbal Harassment). Id. ¶¶
19, 22.
The same day, April 16, 2015, Bailey filed an Inmate Grievance Complaint asserting that
he
has been being harassed by C.O. J. Weckesser from which [he] filed grievances
‘FPT-30058-15’ and another ‘dated 3-19-15’. However, this officer continues to
harass [him] and has now went [sic] as far as to falsify a misbehavior report on
[him], claiming [he] threatened [Weckesser] amongst other things on 4-15-15.
1

The grievance referenced in this comment was one Bailey filed on March 19, 2015, which also was against CO
Weckesser. See Compl. ¶ 13. This grievance is not at issue on this motion, however.

2

Inmate Grievance Complaint dated 4/16/15 (“Weckesser Grievance”), Declaration of Hillel
Deutsch, ECF No. 16-4 (“Deutsch Decl.”), Ex. A at 7. 2
Bailey filed an Inmate Grievance Complaint on April 22, 2015, against CO Visnesky, who
is not a defendant in this action. See Inmate Grievance Complaint dated 4/22/15 (“Visnesky
Grievance”), Deutsch Decl., Ex. A at 5-6. This grievance was consolidated with the April 16, 2015
grievance under Grievance No. FPT-30196-15. See Deutsch Decl. ¶ 5; Declaration of Rachael
Seguin, ECF No. 16-3 (“Seguin Decl.”) ¶¶ 2-3. Following an investigation, which Bailey claims
did not actually happen, the Superintendent of Five Points denied Grievance No. FPT-30196-15.
See Case History and Record, Deutsch Decl., Ex. A at 4; Superintendent Response, id. at 8. The
Central Office Review Committee (“CORC”) denied Bailey’s appeal of the Superintendent’s
Response. See CORC Decision, id. at 1.
Defendants 3 filed their Motion for Summary Judgment on July 2, 2019 (ECF No. 16), along
with a Statement of Undisputed Facts (ECF No. 16-1), Local Rule 56.2 Statement with Exhibit A
(ECF No. 16-2), Seguin Decl. (ECF No. 16-3), Deutsch Decl. with Exhibit A (ECF No. 16-4), and
Memorandum of Law (“Defts.’ Mem.”) (ECF No. 16-5). Bailey filed two Motions for Extension
of Time to File Response/Reply (ECF Nos. 18 & 20). The Court (Telesca, D.J.) granted both
requests. See ECF Nos. 19 & 21. However, Bailey never filed a response or reply, despite being
warned that his failure to do so may result in dismissal of this action in whole or in part. The case
was transferred to the undersigned on March 10, 2010. See ECF No. 25.

2

Exhibit A to the Deutsch Declaration is not numbered, and CM/ECF did not assign page numbers when it was filed.
The Court has assigned page numbers beginning with the first page after the page that has “Exhibit A” on it.

3

The affidavit of service for CO Weckesser was returned as unexecuted. ECF No. 17.

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DISCUSSION
I.

Legal Principles Applicable to Summary Judgment Motions
Rule 56(a) of the Federal Rules of Civil Procedure states that “the court shall grant

summary judgment” if the moving party “shows that there is no genuine issue as to any material
fact and that [it] is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (“[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient 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.”). “Where the moving
party demonstrates ‘the absence of a genuine issue of material fact,’” Brown v. Eli Lilly & Co.,
654 F.3d 347, 358 (2d Cir. 2011) (quoting Celotex Corp., 477 U.S. at 323), “the opposing party
must come forward with specific evidence demonstrating the existence of a genuine dispute of
material fact.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48 (1986) (emphases in original). “Only disputes over
facts that might affect the outcome of the suit under the governing law” are “material.” Id. at 248.
A dispute about a material fact is “genuine” “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Rule 56(b) provides that a party may file a motion for summary judgment “at any time until
30 days after the close of all discovery.” Fed. R. Civ. P. 56(b) (emphasis supplied). “Hence, an
answer is not a prerequisite to the consideration of a motion for summary judgment.” HS Res., Inc.
v. Wingate, 327 F.3d 432, 440 (5th Cir. 2003) (interpreting former Rule 56(a) which stated that a

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summary judgment may be made “at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for summary judgment”).
In general, “[o]nly in the rarest of cases may summary judgment be granted against a
plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S. Dep’t
of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000). Nevertheless, the Second Circuit has found no
error in granting summary judgment prior to discovery where the plaintiff failed to file an affidavit
setting forth the essential facts he or she sought to discover. Id. (citing former Fed. R. Civ. P. 56(f),
now Fed. R. Civ. P. 56(d)). In addition, district courts in this Circuit have routinely granted motions
for summary judgment where “the facts regarding [a prisoner’s] efforts at exhaustion [of
administrative remedies] are not disputed, and it does not appear that any amount of discovery
would change the outcome of” the motion. Parra v. Wright, No. 11-CV-6270 CJS, 2013 WL
6669235, at *7 (W.D.N.Y. Dec. 18, 2013); accord, e.g., Allah v. Ryan, No. 14-CV-6029L, -- F.
Supp.3d --, 2020 WL 476675, at *3 (W.D.N.Y. Jan. 30, 2020); Omaro v. Annucci, 68 F. Supp. 3d
359, 362 (W.D.N.Y. 2014) (“An inmate’s failure to exhaust administrative remedies is properly
considered on a motion for summary judgment made in lieu of an answer.”) (citation omitted).
II.

Defendants’ Motion for Partial Summary Judgment
A.

Overview

Defendants argue that Bailey did not properly exhaust his claim of retaliation against CO
Weckesser because the grievance he filed concerning the incident on April 15, 2015 did not include
any allegations of retaliation but instead grieved only a claim of harassment. Defendants also
contend that Bailey failed to exhaust his claim of retaliation against CO Hodkinson because the
grievance he filed concerning the April 15, 2015 incident did not mention CO Hodkinson at all.
Therefore, Defendants argue, the First Amendment retaliation claims against CO Weckesser and

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CO Hodkinson should be dismissed based on Bailey’s failure to exhaust administrative remedies.
Bailey did not respond to Defendants’ exhaustion argument. Nor did he seek the Court’s assistance
in obtaining discovery via Rule 56(d). The Court, having reviewed the record, finds that there are
no genuine issues of material fact regarding exhaustion. Accordingly, the question before the Court
is simply whether Defendants are “entitled to a judgment as a matter of law” based on the
undisputed facts. See Fed. R. Civ. P. 56(a).
B.

Applicable Legal Principles

The Prison Litigation Reform Act of 1995 (“PLRA”) requires that prior to commencing
litigation, a prisoner must exhaust all available administrative remedies. 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.”). The PLRA’s exhaustion
requirement applies to “all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Dismissal [for failure to exhaust] is without
prejudice[.]” Kasiem v. Switz, 756 F. Supp. 2d 570, 575 (S.D.N.Y. 2010) (citing Brown v. Napoli,
687 F. Supp. 2d 295, 298 (W.D.N.Y. 2009); Chisholm v. New York City Dep’t of Corr., No. 08
Civ. 8795(SAS), 2009 WL 2033085, at *3 (S.D.N.Y. July 13, 2009)).
“The exhaustion inquiry . . . requires that [the Court] look at the state prison procedures
and the prisoner’s grievance to determine whether the prisoner has complied with those
procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (citing Jones v. Bock, 549 U.S.
199, 218 (2007) (other citation omitted). In New York, compliance with the exhaustion
requirement means that state prisoners generally must complete all three steps of the grievance

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and appeal procedure outlined in the Inmate Grievance Program, codified at N.Y. Comp. Codes
R. & Regs., tit. 7, § 701.1 et seq., most recently amended effective July 1, 2006. See, e.g., Collins
v. Goord, 438 F. Supp.2d 399, 410-11 (S.D.N.Y. 2006) (“As a general matter, only after pursuing
all three steps has an inmate ‘exhausted’ his claim.”) (citing Woodford v. Ngo, 126 S. Ct. 2378,
2387-89 (2006) (holding that PLRA requires inmates to “properly” exhaust administrative
remedies before filing suit in federal court)).
First, the inmate files a complaint with the facility clerk, which is then reviewed by the
IGRC. See N.Y. Comp. Codes R. & Regs., tit. 7, § 701.5(a), (b). Second, the inmate may appeal
an adverse decision by the IGRC to the facility superintendent. Id. § 701.5(c). Third, the inmate
may appeal the superintendent’s decision to the CORC. Id. § 701.5(d). “‘Like grievances’ may be
consolidated at the option of the IGP supervisor or IGRC and assigned one grievance calendar
number.” Id. § 701.5(a)(3).
“Consistent with PLRA objectives, [the Second Circuit] ha[s] held that ‘inmates must
provide enough information about the conduct of which they complain to allow prison officials to
take appropriate responsive measures.’” Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)
(quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)). Drawing “an analogy between
the contents of an administrative grievance and notice pleading,” id., the Second Circuit has stated
that “the grievant need not lay out the facts, articulate legal theories, or demand particular relief.
All the grievance need do is object intelligibly to some asserted shortcoming.” Id. (quoting
Johnson, 380 F.3d at 697 and Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)) (internal
quotation marks omitted). Pro se inmates are afforded “a liberal grievance pleading standard,” but
“the grievance may not be so vague as to preclude prison officials from taking appropriate
measures to resolve the complaint internally.” Id. (citing Johnson, 380 F.3d at 697).

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C.

The Claim Against CO Weckesser Is Exhausted

The Weckesser Grievance and the Visnesky Grievance were consolidated as “like
grievances” into Grievance FPT-30196-15. See Email from Chris VanBergen dated 6/19/15
(stating that “[t]his case has two ‘like’ grievances in it, one on CO Wecknesser [sic] and the other
on CO Visnesky”), Deutsch Decl., Ex. A at 23-24. Defendants do not dispute that Bailey pursued
Grievance FPT-30196-15 through all three levels of administrative review available to him. See
Case History and Record, Deutsch Decl., Ex. A at 4.
Defendants reason that because the Weckesser Grievance “makes no reference to any
statement by [CO] Weckesser” about a retaliatory motive, and it does not “accuse” CO Weckesser
of “‘accosting’ him over grievances,” Bailey did not sufficiently put prison officials on notice that
he was asserting a retaliation claim against CO Weckesser. Defts.’ Mem. at 5. Defendants
characterize the Weckesser Grievance as simply alleging that the false misbehavior report was part
of a pattern of harassment. Id. In addition, Defendants assert, the Weckesser Grievance was not
viewed by the investigating officials as alleging a retaliation claim; nor was it investigated as such.
Id. (citing Seguin Decl. ¶ 5). The Court finds Defendants’ argument unavailing.
As an initial matter, the Second Circuit has clearly stated that an inmate’s grievance “need
not lay out the facts, articulate legal theories, or demand particular relief[,]” Johnson, 380 F.3d at
697, to comply with the exhaustion requirement. Defendants cite no legal authority for their
assertion that Bailey’s grievance was deficient because it did not attribute to CO Weckesser a
specific statement articulating a retaliatory motive. Indeed, “direct evidence of retaliatory motive.
. . is ‘rarely available’ in cases alleging unlawful retaliation,” Allah v. Poole, 506 F. Supp. 2d 174,
185 (W.D.N.Y. 2007) (quoting Meyer v. Bd. of Cnty. Comm’rs of Harper Cnty., Okla., 482 F.3d

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1232, 1244 (10th Cir. 2007) (internal citations omitted), and “is not necessarily required[.]”
Id. (citing Bennett v. Goord, 343 F.3d 133, 139 (2d Cir. 2003)).
Defendants’ contention that the Weckesser Grievance and the Visnesky Grievance (which
they concede exhausted a retaliation claim) are entirely dissimilar is belied by the fact that the
Inmate Grievance Program Supervisor treated them as “like grievances” and consolidated them
into one. Like the Weckesser Grievance, the Visnesky Grievance does not mention the words
retaliation or retaliatory. Instead, it states that CO Visnesky “made mention of [his] filing of
grievances on officers and threaten[ed] [his] physical well-being.” Visnesky Grievance, Deutsch
Decl., Ex. A at. 5.
The Weckesser Grievance states that Bailey
has been being harassed by C.O. J. Weckesser from which [he] filed grievances
‘FPT-30058-15’ and another ‘dated 3-19-15’. However, this officer continues to
harass [him] and has now went [sic] as far as to falsify a misbehavior report on
[him], claiming [he] threatened [Weckesser] amongst other things on 4-15-15.
Fairly read, this grievance suggests that as a result of Bailey filing grievances against CO
Weckesser about harassment, CO Weckesser escalated his harassing behavior by filing a false
misbehavior report against Bailey. The grievance thus implies a causal connection between
Bailey’s filing of grievances against CO Weckesser—a constitutionally protected activity—and
the officer’s filing of a false misbehavior report against Bailey—an adverse action. 4 Accordingly,
the description in the Weckesser Grievance “provide[d] enough information about the conduct of
which [he] complain[s] to allow prison officials to take appropriate responsive measures[,]”
Johnson, 380 F.3d at 697; see Varela v. Demmon, 491 F. Supp. 2d 442, 448 (S.D.N.Y. 2007)
(“With respect to the assault, Varela’s grievance does not use the word ‘retaliation’ in describing
4

See generally Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (stating that a prisoner asserting a retaliation
claim must show “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action”)
(citation omitted).

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what occurred. But, fairly read, it does suggest that the assault occurred in response to Varela’s
prior complaint to Demmon’s supervisors. The grievance states that Demmon said, on the day
before the assault: ‘Since you like to cry to my superiors, I’m going to show you who the real boss
around here is. Your time will come soon.’ The grievance then details the assault. This description
obviously suggests that Demmon instigated the assault in response to Varela’s complaints.”)
(internal and other citations omitted).
In that regard, the Court notes that there is nothing in the documents Defendants submitted
to substantiate their insistence that the Visnesky Grievance was investigated differently from the
Weckesser Grievance because the former alleged retaliation. The investigation into both
grievances essentially consisted of obtaining a statement from the correction officer involved. The
Case History and Record summarizing the investigation into the consolidated grievances and what
happened at each level of administrative review does not mention the words retaliation or
retaliatory. See Case History and Record, Deutsch Decl., Ex. A. at 4.
For the foregoing reasons, the Court finds that the Weckesser Grievance satisfied the
exhaustion requirement as to the retaliation claim against CO Weckesser. The Court will deny
Defendants’ motion for summary judgment on the retaliation claim against CO Weckesser.
D.

The Claim Against CO Hodkinson Is Unexhausted

The Court turns next to the question of whether the Weckesser Grievance exhausted a
retaliation claim against CO Hodkinson. Defendants argue that because the grievance “failed to
mention Officer Hodkinson at all,” the retaliation claim against him is unexhausted. Defts.’ Mem.
at 6. The Supreme Court has held that “nothing in the [PLRA] imposes a ‘name all defendants’
requirement. . . .” Jones, 549 U.S. at 217. Instead, the Court must look to the grievance procedure
promulgated by the state in question. See id. at 218 (“Compliance with prison grievance procedures

10

. . . is all that is required by the PLRA to ‘properly exhaust.’ The level of detail necessary in a
grievance to comply with the grievance procedures will vary from system to system and claim to
claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion. As [Michigan]’s procedures make no mention of naming particular officials, the Sixth
Circuit’s rule imposing such a prerequisite to proper exhaustion is unwarranted.” (quoting another
source)). Thus, “exhaustion is not per se inadequate simply because an individual later sued was
not named in the grievances.” Id. at 219.
“Like the prison grievance policy reviewed in Jones v. Bock, New York’s ‘procedures
make no mention of naming particular officials . . . [as] a prerequisite to proper exhaustion.’”
Varela, 491 F. Supp. 2d at 449 (quoting Jones, 549 U.S. at 218). “All that is necessary is that the
grievance contain a ‘concise, specific description of the problem.’” Id. (quoting N.Y. Comp. Codes
R. & Regs., tit. 7, § 701.5(a)(2)). In Varela, the prison officials argued that the plaintiff had not
exhausted his claim against the three officers alleged to have committed an assault because their
names were not contained in the grievance. The grievance described the assault but did not name
the officers, instead referring only to “[t]he officers escorting [Varela]” and “an officer which was
posted on building 2 gate.” Id. (quotation to record omitted). Noting that the prison officials did
not dispute that the officers were in fact the guards “escorting [the plaintiff]” and the guard at
“building 2 gate,” the district court found that Varela’s grievance complied with New York’s
exhaustion procedure and denied the defendants’ motion for summary judgment. Id.
Here, in contrast, the Weckesser Grievance does not hint at the fact that more than one
correction officer was involved in the April 15, 2015 incident. It therefore did not “provide enough
information . . . to allow prison officials to take appropriate responsive measures[,]” Johnson, 380
F.3d at 697, such as interviewing CO Hodkinson. Accordingly, the Court finds that the Weckesser

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Grievance did not sufficiently exhaust a retaliation claim against CO Hodkinson. The Court will
grant Defendants’ motion for summary judgment dismissing the retaliation claim against CO
Hodkinson. Because CO Hodkinson was only named in connection with the retaliation claim, the
Court will dismiss him as a defendant from this case.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 16) is
GRANTED IN PART and DENIED IN PART. The Motion is GRANTED to the extent that the
retaliation claim against CO Hodkinson is DISMISSED WITHOUT PREJUDICE for failure to
exhaust. CO Hodkinson is therefore terminated as a defendant in this action. The Clerk of Court
is directed to modify the caption to remove CO Hodkinson as a defendant. The Motion is DENIED
as to the retaliation claim against CO Weckesser, which may proceed.
IT IS SO ORDERED.
Dated: March 23, 2020
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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