The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
AKO K. BURRELL,
Plaintiff,
-against- 9:17-CV-0906 (LEK/TWD)
LISA ZUREK, et al.,
Defendants.
DECISION AND ORDER
I. INTRODUCTION
Pro se plaintiff Ako Burrell filed this 42 U.S.C. § 1983 action alleging that his
constitutional rights were violated while he was in pretrial custody at Oneida County
Correctional Facility (“Oneida CCF”). This Court reviewed the sufficiency of Plaintiff’s
Complaint, Dkt. No. 1 (“Complaint”), pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A) and
ordered that the following claims survived initial review: (1) Fourteenth Amendment excessive
force, sexual abuse, and failure to intervene against Defendants Lieutenant Jack Breen, Deputy
Dustin Lewis, and Deputy Jeffrey Jones; (2) First Amendment claims against Defendants Captain
Lisa Zurek, Sergeant Clayton Smith, Lewis, and Jones stemming from denial of Plaintiff’s access
to newspapers and other reading material; (3) Fourteenth Amendment due process claims relating
to Plaintiff’s L-2 classification against Defendant Deputy Todd Woodland; and (4) First
Amendment retaliation claims against Defendants Breen, Lewis, and Deputy Christopher
Getchell. Dkt. No. 10 (“November 2, 2017 Order”).
The parties conducted discovery and Defendants have now moved for Summary
Judgment. Dkt. Nos. 41 (“Summary Judgment Motion”); 45 (“Response”); 46 (“Reply”); 47
(“Supplemental Response”). The Honorable Thérèse Wiley Dancks, United States Magistrate
Judge, issued a Report-Recommendation and Order, recommending Defendants’ Motion for
Summary Judgment be granted in part and denied in part. Dkt. No. 50 (“Report-
Recommendation”). Defendants timely filed objections to the Magistrate Judge’s Report-
Recommendation. Dkt. No. 51 (“Objections”). For the reasons that follow, the Court approves
and adopts the Report-Recommendation.
II. RELEVANT BACKGROUND
The facts and allegations in this case were detailed in the November 2, 2017 Order and
the Report-Recommendation, familiarity with which is assumed.
A. Magistrate Judge Dancks’s Report-Recommendation
Magistrate Judge Dancks recommends granting summary judgment on: (1) the Fourteenth
Amendment due process claims relating to Plaintiff’s L-2 classification against Woodland; (2)
the First Amendment retaliation claims against Breen, Lewis, and Getchell; and (3) all claims
against Defendants in their official capacities. She recommends denying summary judgment on:
(1) the Fourteenth Amendment excessive force, sexual abuse, and failure to intervene claims
against Breen, Lewis, and Jones based on failure to exhaust administrative remedies; (2) the First
Amendment denial of access to newspapers and other reading material claims against Zurek,
Smith, Lewis, and Jones; and (3) the affirmative defense of qualified immunity raised by Zurek,
Smith, Lewis, and Jones. She further recommended that Court conduct a hearing on the
administrative exhaustion issue or refer the hearing to her to conduct. R & R at 33–34.
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B. Defendants’ Objection to the Report-Recommendation
Defendants raise three objections to the Report-Recommendation: (1) Breen, Lewis, and
Jones should have been granted summary judgment on Fourteenth Amendment excessive force,
sexual abuse, and failure to intervene claims because Plaintiff failed to exhaust administrative
remedies; (2) Zurek, Smith, Lewis, and Jones should have been granted summary judgment on
the First Amendment claim based on denial of access to newspapers and other reading materials
because this limitation had a legitimate penological basis; and (3) Zurek, Smith, Lewis, and
Jones should have been granted summary judgment on qualified immunity grounds because it
was objectively reasonable for them to believe the limitation on reading materials was
constitutional. Objs.
Ii. LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If objections are
timely filed, a court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b). However, if no objections are made, or if an objection is general, conclusory,
perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court
need review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No.
11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp.
2d 301, 306-07 (N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of
N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014). “A [district] Judge ... may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” §
636(b).
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “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.” Celotex Corp. v. Catrett, 477
US. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
IV. ANALYSIS
After carful review of the papers and Magistrate Judge Dancks’s Report-
Recommendation, the Court finds no clear error in the unobjected-to portions of the Report-
Recommendation. And after reviewing de novo the portions of the Report-Recommendation to
which Defendants object, the Court finds no error. Magistrate Judge Danck’s employed the
proper legal standards, accurately recited the facts alleged, and correctly applies the law to those
facts. As a result, the Court accepts and adopts the Report-Recommendation for the reasons
stated therein.’ The Court adds the following discussion of Defendants’ three objections.
A. Exhaustion of Fourteenth Amendment claims against Breen, Jones, and Lewis
On the issue of Plaintiff's Fourteenth Amendment claims, there is no dispute that Plaintiff
was required to exhaust his administrative remedies, 42 U.S.C. § 1997e(a), that Plaintiff was
required to file a formal grievance within five days of the incident complained about in order
exhaust those remedies, Dkt. 41-4, Exhibit 1 (“Oneida County Sheriff’s Office Policy”) at 11,’
' As noted below, the while the Court reaches the same conclusion as the R & R on the
issue of qualified immunity, its differs in its reasoning.
> The cited page numbers for documents refer to those generated by the Court’s
electronic filing system (“CM/ECF”).
and that Plaintiff did not timely file a formal grievance. R & R at 18; Objs. at 2. Rather, the
dispute hinges on whether Oneida CCF staff members prevented Plaintiff from timely filing a
formal grievance. See Ross v. Blake, 136 S. Ct. 1850, 1858, 1860 (2016) (“Under § 1997e(a), the
exhaustion requirement hinges on the “availab[ility]” of administrative remedies.” A remedy is
unavailable and thus exhaustion is not required “when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or
intimidation.”).
The alleged incidents giving rise to the excessive force, sexual abuse, and failure to
intervene claims took place on March 30 and April 1, 2017. Plaintiff claims that after he filed
informal complaints on April 2, 2017, grievance coordinator Robert Carollo was supposed to
provide him with formal grievance forms but failed to do so. Pl.’s Resp. at 6. While Defendants
do not provide evidence directly contradicting this claim, they counter that an April 7, 2017
Incident Report, No. 17-0678, documents that Plaintiff “improperly assigned his own numbers”
to some grievances that he had submitted to Carollo. Objs. at 2; Dkt. No. 45-1 at 182 (“Incident
Report, No. 17-0678”). Defendants state that after Plaintiff was informed he needed to re-file
those grievances, Plaintiff did not “mak[e] any complaints of having been hindered in the
process” and “waited a month, until May 6, 2017, when he filed additional Complaints regarding
the same incidents.” Id. However, as the incident report itself notes, Plaintiff apparently stated
that Carollo was “a liar and that he didn’t get the complaint forms.” Incident Report, No. 17-
0678. Thus, while Defendants claim Plaintiff is “using unsupported averments, to manufacture
an issue of fact,” Objs. at 4, the evidence suggests Plaintiff had at least raised the issue of not
being provided the formal grievance forms at the time.
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Defendants’ suggest that “the fact that Plaintiff was thoroughly versed in grievance
procedures, having filed 178 of them” indicates that Plaintiff alone was responsible for his failure
to file a formal timely grievance in this case. Objs. at 2 n.2; SJ Mot. at 7 n.2. But this does not
necessarily weaken Plaintiff’s claims—his extensive history of filing grievances could also
suggest that, absent interference, he was aware of the five day rule and capable of complying
with it.
The R & R found that this dispute creates a genuine issue of material fact about whether
Plaintiff’s effort to administratively exhaust his claim was thwarted. R & R at 19. The Court
agrees. See Ortiz v. Annucci, No. 17-CV-3620, 2019 WL 1438006, at *8 (S.D.N.Y. Mar. 29,
2019) (“If, in fact, Plaintiff timely attempted to file his grievance by handing it to an officer while
in SHU and that officer failed to file the grievance, Plaintiff’s avenues for pursuing the grievance
would be unavailable . . . excusing him from any further exhaustion requirements.”). However,
as the burden is on Plaintiff to show unavailability of the grievance procedure, Jenkins v.
Cordero, No. 17-CV-1592, 2019 WL 2121655, at *3 (S.D.N.Y. May 15, 2019) (citing Mojias v.
Johnson, 351 F.3d 606, 610 (2d Cir. 2003)), and there remains “confusion regarding whether the
[grievance process] was available to Plaintiff,” R & R at 19, the Court also agrees that a hearing
on the exhaustion issue would be beneficial, and refers the hearing Judge Dancks to conduct.
B. First Amendment Claims again Zurek, Smith, Lewis, and Jones for denial of
access to reading materials
Defendants argue that denying Plaintiff all reading materials except a Bible, Koran, or
holy book on account of his L-2 Classification did not violate the First Amendment because it
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was “based on legitimate penological interests.” Objs. at 4. The R & R correctly assessed
whether this was a “reasonable” limitation on Plaintiff's First Amendment rights by applying
Turner v. Safley, 482 U.S. 78, 89-91 (1987). See Young v. Scott, No. 16-CV-44, 2017 WL
3662443, at *6 (M.D. Fla. Aug. 24, 2017), reconsideration denied, No. 16-CV-44, 2018 WL
1805147 (M.D. Fla. Apr. 17, 2018) (applying Turner factors to First Amendment claim raised by
pre-trial detainee); Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (same). Under Turner,
the Court assesses four factors to determine whether a regulation is reasonable: 1) whether “there
is a valid, rational connection between the prison regulation and the legitimate governmental
interest put forward to justify it”; 2) “whether there are alternative means of exercising the right
that remain open to prison inmates”; 3) “the impact accommodation of the asserted constitutional
right will have on guards and other inmates”; and 4) whether there is “an alternative that fully
accommodates the prisoner’s rights at de minimis cost to valid penological interests.” Turner 482
U.S. at 89-91 (internal quotations omitted).
With respect to the first and fourth factors, Defendants state “there was a clear
relationship to a legitimate government interest in the good order of the Facility” and “‘it is
difficult to imagine a less onerous alternative means in the circumstances for the Correction
Facility to have acted in relation to Plaintiff.” Objs. at 7. But Defendants are unable to
> As detailed in the R & R, L-2 classification was for inmates “reclassified ‘due to their
propensity towards facility violence and/or repeated non-compliance with facility rules and
regulations’ .. . Inmates on L2 status were, among other things, restricted to one hour of
recreation a day or one and a half hours five days a week, limited to non-contact visits at special
times, allowed limited telephone calls and commissary privileges, and allowed no books other
than the Bible, Koran, or Holy book.” R & R at 5. Plaintiff was placed on L-2 status on
December 26, 2016, after an incident in which he injured a guard. See Dkt. No. 41-4 at 56
(“Incident Report’). The classification was abolished in August 2017 after the Citizen’s Policy
and Complaint Review Council (“CPCRC”) determined that the restrictions violated New York
Regulations. See Dkt. No. 41-4 at 121-22 (“CPCRC Letter”).
substantiate these conclusory claims. Their Objection asserts that the regulations “were intended
to give inmates who were determined . . . to be prone to conduct inimical to good order, an
incentive to correct their behavior,” Id. at 6, but the only citation for this is the Affidavit of
Deputy Woodland, which merely states that the L-2 classification was “intended to ensure the
safety and good order of the Facility” and makes no direct claims about how limiting reading
materials promotes good behavior. Dkt. No. 41-5 (“Woodland Affidavit”) ¶ 16. Defendants’
reliance on Beard v. Banks, 548 U.S. 521 (2006), which upheld limitations on the most
uncooperative prisoners’ access to reading materials on the grounds that such limitations could
incentivize good behavior, is misplaced. In that case, the defendants “articulated connections
between newspapers and magazines, the deprivation of virtually the last privilege left to an
inmate, and a significant incentive to improve behavior.”4 Id. at 531–32. Here, in contrast, as the
Report-Recommendation correctly notes, Defendants “failed to identify specific legitimate
penological interests for the ban.” R & R at 22. Further, despite the Beard defendants’
acknowledgment that they were depriving prisoners of “virtually the last privilege left,” the
regulations were still more generous than the L-2 regulations at issue here, as they allowed for
“legal and personal correspondence, religious and legal materials, two library books, and writing
paper.” Id. at 526.
The second factor also favors Plaintiff because there was no apparent alternative means
for Plaintiff to exercise his First Amendment rights. While Defendants state that Plaintiff could
have modified his behavior and been reclassified during the monthly classification review,
4 The Beard court further noted that “[t]he undisputed facts statement added that the
Policy encourages progress and discourages backsliding by level 1 inmates. These statements
point to evidence that the regulations serve the function identified.” Beard v. Banks, 548 U.S.
521, 522 (2006).
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Plaintiff states that Woodland told him “you have 19 felonies, you might never come off this
status.” Compl. ¶ 59. Finally, on the third factor, Defendants’ assertion that “allowing Plaintiff to
escape any consequences of having injured an officer could well have an undesirable ‘ripple
effect’ on the behavior of other inmates” is unpersuasive as it provides no explanation for why
anything short of a blanket deprivation on reading materials would be “allowing Plaintiff to
escape any consequences.” Objs. at 7.
Thus, while Courts “must accord substantial deference to the professional judgment of
prison administrators,” Overton v. Bazzetta, 539 U.S. 126, 132 (2003), Defendants’ failure to
articulate any specific justification means this case follows the “general rule” that “[a]bsolute
bans on inmate access to newspapers and magazines . . . violate the First Amendment because
they are an ‘exaggerated response’ to legitimate penological needs.” Nelson v. Hjorth, No. 18-
CV-88, 2018 WL 2050571, at *6 (D. Neb. May 2, 2018) (quoting Mann v. Smith, 796 F.2d 79,
82 (5th Cir. 1986)).
C. Qualified Immunity for First Amendment claims against Defendants Zurek,
Smith, Lewis, and Jones
Defendants’ Objections raises only one ground on which they are entitled to qualified
immunity: “it was objectively reasonable for them to believe” that “the limitations imposed by L-
2 status were indeed proper penologically-based restrictions” because the L-2 classification “had
remained in place and operation unquestioned for over 20 years.” Objs. at 8. Defendants do not,
however, cite any cases to back the assertion that because a policy has been in effect for a long
time, it is objectively reasonable to believe it is constitutional. And the Second Circuit has held a
defendant’s actions can be objectively unreasonable even if that defendant was following a
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policy. See Sorensen v. City of New York, 42 F. App’x 507, 510–11 (2d Cir. 2002) (affirming
denial of qualified immunity and rejecting defendants’ argument “that they were simply low-
level employees following orders and that it was objectively reasonable for them to believe that a
policy promulgated by the City was constitutional . . . immunity has been granted [in such cases]
only when the orders were facially valid . . . The strip-search policy at issue here, however, had
twice been declared unconstitutional by this court, and so was not facially valid.”)5,6 Thus,
Defendants are not entitled to qualified immunity at this time.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 50) is APPROVED and
ADOPTED in its entirety, except that Defendants’ assertion they are entitled to qualified
immunity is denied because they have not shown that their compliance with a longstanding
policy was objectively reasonable; and it is further
5 Defendants do not object to the Report-Recommendation’s finding that a detainee’s
First Amendment right of access to reading material is “clearly established.” R & R at 23–24
(citing Turner 482 U.S. at 89–90; Beard 548 U.S. at 535). The Court notes that because “public
officials are held to constructive knowledge of the law, the issue here is not whether a reasonable
person would have known what the law was, but simply whether the law was clearly
established.” Sorensen 42 F. App’x at 510.
6 The R & R found that Defendants were not entitled to qualified immunity in part
because there was a need for more fact finding about whether Zurek denied reading materials to
punish Plaintiff’s filing of a sexual abuse claim. R & R at 24 n.9. The Court notes that because it
is denying summary judgment based on qualified immunity on the grounds that Defendants have
not shown that their reliance on a longstanding policy is per se objectively reasonable, the Court
does not rely on the Report-Recommendations reasoning on the issue of qualified immunity. Not
relying the ambiguity of Zurek’s motivations does not, of course, preclude additional fact finding
on the issue should it be relevant.
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ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 41) on all claims
asserted against them in their official capacities is GRANTED; and it is further
ORDERED, that Defendants Woodland and Getchell’s Motion for Summary Judgment
is GRANTED; and it is further
ORDERED, that Defendants Breen and Lewis’s Motion for Summary Judgment on
Plaintiff’s First Amendment retaliation claims is GRANTED; and it is further
ORDERED, that Defendants’ Motion for Summary Judgment is DENIED with respect
to Plaintiff’s Fourteenth Amendment claims for excessive force, sexual abuse, and failure to
intervene against Defendants Breen, Jones, and Lewis; and it is further
ORDERED, that Defendants’ Motion for Summary Judgment is DENIED with respect
to Plaintiff’s First Amendment claims for denial of access to reading material against Defendants
Zurek, Smith, Lewis, and Jones; and it is further
ORDERED, that Defendants Motion for Summary Judgement is DENIED with respect
to Defendants Zurek, Smith, Lewis, and Jones’s assertion of qualified immunity, without
prejudice to reconsideration of the issue of qualified immunity at trial; and it is further
ORDERED, that Judge Dancks recommendation that a hearing be conducted on the issue
of exhaustion is GRANTED and REFERRED to Judge Dancks to conduct; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on all parties in
accordance with the Local Rules.
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IT IS SO ORDERED.
DATED: August 27, 2019
Albany, New York
Lawrénee E. Kahn
U.S. District Judge
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