# Brown v. Phipps

> District Court, S.D. New York · August 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10334226

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10334226

## How later opinions describe it (automated extraction)

- explaining “that summary judgment is appropriate only when . . . law supports the moving party”
- explaining that summary judgment is appropriate when “the law so favors the moving party that entry of judgment in favor of the movant . . . is proper”
- explaining that the mere fact that a litigant is pro se “does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment” (internal quotation marks omitted)

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MELVIN BROWN,
MEMORANDUM OPINION
Plaintiff,
AND ORDER

-against-
19-CV-04356 (PMH)
SGT PHIPPS, et al.,

Defendants.
PHILIP M. HALPERN, United States District Judge:
Melvin Brown (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action
under 42 U.S.C. § 1983 against Sergeant Phipps, Inmate Grievance Program (“IGP”) Supervisor
R. Barnofsky, and Correction Officers A. Pierce, Melnick, O’Connor, Erlwein, Johnson, and J.
Gonzalez (collectively, “Defendants”), for violating his rights under the Constitution. (Doc. 1,
“Compl.”). Plaintiff asserts claims for excessive force, failure to protect, and deliberate
indifference to Plaintiff’s serious medical needs.
Defendants filed a motion for summary judgment under Federal Rule of Civil Procedure
56 on October 2, 2020. (Doc. 58; Docs. 59, 64, “Def. Br.”).1 Plaintiff opposed the motion on
October 16, 2020. (Doc. 66, “Opp.”). The motion was briefed fully with the filing of Defendants’
reply memorandum of law in further support of their motion to dismiss on October 30, 2020 (Doc.
67, “Reply Br.”).
For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED.

1 Defendants filed a Memorandum of Law in Support of the Motion for Summary Judgment on October 2,
2020 (Doc. 59) and an Amended Memorandum of Law on October 4, 2020 (Doc. 64). The only difference
between the documents is the non-substantive addition of a Tables of Contents.
BACKGROUND
The facts recited herein are drawn from the Complaint,2 Defendants’ Rule 56.1 Statement
(Doc. 62, “Def. 56.1 Stmt.”), Plaintiff’s affirmation in opposition3 (see Opp.), the Declaration of
Janice Powers (Doc. 61, “Powers Decl.”) together with the exhibits annexed thereto, and the
Declaration of Rachel Seguin (Doc. 60, “Seguin Decl.”) together with the exhibit annexed thereto.

The Court has also considered documents electronically filed in this action though not annexed to
this motion; in particular, a letter from Plaintiff to Judge Briccetti4 dated September 30, 2019 with
attachments concerning a grievance filed by Plaintiff concerning the incident that is the subject of
this action. (Doc. 39).
On or about November 28, 2018, at Woodbourne Correctional Facility (“Woodbourne”),
Defendant Gonzalez observed Plaintiff pick up a cylinder-shaped item resembling a can and place
it in his pocket. (Compl. at 4, 8; Def. 56.1 Stmt. ¶¶ 18-19). Defendant Gonzalez advised Defendant
Barnofsky what she had observed. (Def. 56.1 Stmt. ¶ 20). Defendant Barnofsky called Defendant
O’Connor advising him of the call from Defendant Gonzalez, and that Plaintiff was possibly in
possession of contraband. (Id. ¶ 23). Defendant O’Connor stopped Plaintiff to pat frisk him. (Id.

¶ 25; Compl. at 4).

2 Citations to page numbers of documents filed by Plaintiff correspond to the pagination generated by ECF.

3 Plaintiff did not submit his own Rule 56.1 Statement or respond to Defendants’ 56.1 Statement. “While
pro se litigants are . . . not excused from meeting the requirements of Local Rule 56.1 . . . where a pro se
plaintiff fails to submit a proper Rule 56.1 Statement in opposition to a summary judgment motion, the
Court retains some discretion to consider the substance of the plaintiff’s arguments, where actually
supported by evidentiary submissions.” Wiggins v. Griffin, No. 18-CV-07559, 2021 WL 706720, at *1 n.1
(S.D.N.Y. Feb. 22, 2021) (internal quotation marks omitted). While Plaintiff’s affirmation in opposition
does not address Defendants’ Rule 56.1 Statement, the Court, in its discretion, will consider the submission
as opposition to Defendants’ Rule 56.1 Statement. Brooks v. Westchester Cty. Jail, No. 19-CV-10901, 2021
WL 3292229, at *1 (S.D.N.Y. Aug. 2, 2021).

4 This case proceeded before Judge Briccetti prior to its reassignment to this Court on March 17, 2020.
Following the pat frisk, during the processing and examination of Plaintiff’s property by
Defendant Melnick, Plaintiff became argumentative and lunged forward at Defendant O’Connor.
(Def. 56.1 Stmt. ¶ 26). Plaintiff and Defendant O’Connor fell to the floor, and Plaintiff attempted
to strike Defendant O’Connor. (Id. ¶¶ 29, 31). A number of correction officers were present at the

scene for various reasons and intervened in the struggle between Plaintiff and Defendant
O’Connor. Defendant Erlwein, who observed the pat frisk and events following thereafter, grabbed
Plaintiff’s right arm so that mechanical restraints could be applied. (Id. ¶¶ 28-29, 33). Defendant
Johnson, who passing through the area, observed Plaintiff struggling with officers, intervened by
holding Plaintiff’s upper torso down while assisting Defendant Erlwein in bringing Plaintiff’s right
arm behind his back. (Id. ¶¶ 30, 33). Defendant Melnick grabbed Plaintiff’s lower extremities,
rolled Plaintiff to his side to allow Defendant O’Connor to escape from under Plaintiff, and pushed
Plaintiff face down towards the floor so mechanical restraints could be applied behind Plaintiff’s
back. (Id. ¶¶ 35-36). Defendant Pierce grabbed Plaintiff’s arm and ultimately placed Plaintiff’s
wrists into a mechanical restraint while other officers held Plaintiff’s upper body and arms. (Id. ¶

32).
Defendant Phipps, as area Sergeant, arrived at the scene after Plaintiff had been restrained
and escorted Plaintiff to the medical clinic with two officers. (Id. ¶¶ 38-39). Plaintiff maintains
that when Defendant Phipps arrived, he told the officers to pick Plaintiff up, pushed Plaintiff’s
head into the wall three times while the other officers hit Plaintiff’s head, arms, and left side with
an object, and continued to punch and kick Plaintiff on the way to—and inside the—elevator.
(Compl. at 5, 8; Opp. at 3, 5). Plaintiff alleges that he was then denied medical care. (Compl. at
9). Medical records indicate that Plaintiff was examined at Woodbourne by nurse Rosemarie
Escalera. (Powers Decl. Ex. I). Plaintiff was transferred to Eastern Correctional Facility
(“Eastern”) that same day. (Def. 56.1 Stmt. ¶ 49).
Plaintiff stresses that he was not found to be in possession of contraband. (Opp. at 3, 5, 6).
Thus, he argues, the physical altercation was precipitated by false reporting of possession of

contraband which, in turn, was the result of retaliation for Plaintiff’s prior suit against Correction
Officers Dubois and Padgett (who are not defendants in this action) that arose when Plaintiff was
at Eastern. (Id. at 6-7; see Brown v. DuBois, No. 15-CV-01515 (N.D.N.Y.)).
Plaintiff alleged affirmatively in the Complaint, and contends in his opposition, that prior
to commencing this action, he “wrote [his] grievance out and sent it in at Eastern” and did not
receive any response thereto. (Compl. at 2; Opp. at 1, 7). Although not mentioned in the Complaint,
Plaintiff wrote to the Court in connection with earlier motion practice contending that he appealed
“to the office in Albany” and annexed to that letter copies of documents concerning the grievance
filed while he was at Eastern. (Doc. 39). Plaintiff states in his opposition that while he was
incarcerated at Upstate Correctional Facility (“Upstate”), he “appeal[ed] to the CORC in

accordance to [sic] the Directive” and has not received any response. (Opp. at 9). Defendants now
move for summary judgment contending, inter alia, that Plaintiff failed to exhaust his
administrative remedies prior to bringing suit.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, a “court shall grant summary judgment if 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). “A fact is ‘material’ if it ‘might affect the
outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, 442 F.
Supp. 3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). “‘Factual disputes that are irrelevant or unnecessary’ are not material and thus cannot
preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-05486, 2013 WL 1681261, at *1
(S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The Court’s duty, when

determining whether summary judgment is appropriate, “is not to resolve disputed issues of fact
but to assess whether there are any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins.
Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court’s function is not to determine the truth or
weigh the evidence; the task is material issue spotting, not material issue determining. Therefore,
“where there is an absence of sufficient proof as to one essential element of a claim, any factual
disputes with respect to other elements of the claim are immaterial . . . .” Bellotto v. Cty. of Orange,
248 F. App’x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir.
2006)). Claims simply cannot proceed in the absence of sufficient proof as to an essential element.
“It is the movant’s burden to show that no genuine factual dispute exists,” Vermont Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970)), and a court must “resolve all ambiguities and draw all
reasonable inferences in the non-movant’s favor.” Id. (citing Giannullo v. City of New York, 322
F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come
forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp.
3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). The non-movant cannot defeat a summary judgment motion by relying on “mere
speculation or conjecture as to the true nature of the facts . . . .” Id. (quoting Knight v. U.S. Fire
Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any evidence from which a
reasonable inference could be drawn in favor of the opposing party on the issue on which summary
judgment is sought, summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec.
Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).
Should there be no genuine issue of material fact, the movant must establish also its
“entitlement to judgment as a matter of law.” In re Davis New York Venture Fund Fee Litig., 805

F. App’x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found. Capital Partners LLC, 920 F.3d 134,
140 (2d Cir. 2019)). Stated simply, the movant must establish that the law favors the judgment
sought. Gonzalez v. Rutherford Corp., 881 F. Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that
summary judgment is appropriate only when . . . law supports the moving party”); Linares v. City
of White Plains, 773 F. Supp. 559, 560 (S.D.N.Y. 1991) (explaining that summary judgment is
appropriate when “the law so favors the moving party that entry of judgment in favor of the movant
. . . is proper”).
The Court is, of course, mindful that “[p]ro se litigants are afforded a special solicitude,”
which includes reading their filings “to raise the strongest arguments they suggest.” Mortimer v.
City of New York, No. 15-CV-07186, 2018 WL 1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal

quotation marks omitted). “It is through this lens of leniency towards pro se litigants that this Court
must consider a defendant’s motion for summary judgment against a pro se plaintiff.” Adams v.
George, No. 18-CV-02630, 2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8, 2020). This status does
not, however, excuse a pro se litigant from making the showing required to defeat summary
judgment; he or she must offer more than “bald assertions, completely unsupported by evidence”
to overcome the motion. Wisdom v. Loiodice, No. 17-CV-04837, 2020 WL 4431590, at *4
(S.D.N.Y. July 31, 2020); see also Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)
(explaining that the mere fact that a litigant is pro se “does not relieve plaintiff of his duty to meet
the requirements necessary to defeat a motion for summary judgment” (internal quotation marks
omitted)); Ross v. Koenigsmann, No. 14-CV-01321, 2017 WL 9511096, at *1 (N.D.N.Y. Aug. 16,
2017), adopted sub nom. Ross v. Mannava, 2017 WL 4338883 (N.D.N.Y. Sept. 29, 2017).
ANALYSIS
I. Failure to Exhaust Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o 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.” 42 U.S.C. § 1997e(a). This provision “applies to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes,” Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534
U.S. 516, 532 (2002)), and it is “‘mandatory’: [a]n inmate ‘shall’ bring ‘no action’ (or said more
conversationally, may not bring any action) absent exhaustion of available administrative
remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation omitted). “Moreover, the PLRA
‘requires proper exhaustion, which means using all steps that the prison grievance system holds

out.’” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y.
July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)). This “means that
‘prisoners must complete the administrative review process in accordance with the applicable
procedural rules—rules that are defined not by the PLRA, but by the prison grievance process
itself.’” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6,
2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)).
As an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), Plaintiff was required to follow a three-step process to fully
and completely exhaust the grievance process. See generally Amador v. Andrews, 655 F.3d 89, 96-
97 (2d Cir. 2011) (outlining DOCCS’ three-step grievance process). First, a grievance must be
submitted to the Inmate Grievance Resolution Committee (“IGRC”), a facility-level body
consisting of inmates and facility staff members. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.4,
701.5(a)-(b). Second, should the inmate be dissatisfied with the conclusion reached by the IGRC,

he may appeal that decision to the superintendent of the facility within seven calendar days of
receiving the IGRC’s determination. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)(1). Finally,
if the superintendent’s conclusions are unfavorable, the inmate may appeal that decision to the
Central Office Review Committee (“CORC”) within seven calendar days of receiving the
superintendent’s determination. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(1)(i). Grievances
concerning misconduct by staff are subject to an expedited administrative review in which they
are immediately referred to the superintendent of the facility. N.Y. Comp. Codes R. & Regs. tit. 7,
§ 701.8. Such grievances must also be exhausted through a final appeal to CORC. Davis v. Grant,
No. 15-CV-05359, 2019 WL 498277, at *7 (S.D.N.Y. Feb. 8, 2019). Only after completing all
three steps may an inmate initiate suit. Id.

While incarcerated at Eastern, Plaintiff filed a grievance on December 10, 2018 concerning
the incident at Woodbourne. (Doc. 39 at 2; Powers Decl. Ex. L, 11:21-24). Plaintiff’s grievance
was subject to expedited review under § 701.8 and, as such, was passed directly to the
superintendent for investigation. (Doc. 39 at 2-3). Plaintiff did not receive any response to his
grievance and was still pending a superintendent response as of February 8, 2019. (Id. at 3).
Plaintiff was notified that the superintendent has twenty-five days to respond and that if it is beyond
that time period Plaintiff may contact the IGP Supervisor to appeal to the next level. (Id.). Plaintiff
maintains that he appealed “to the office in Albany” (id. at 1), “in accordance to [sic] the
Directive,” and has not received a response (Opp. at 9). Plaintiff contends that Upstate should have
a log book containing entries for his outgoing legal mail and that whether his appeal was mailed
and received is “on the facility it’s not on [his] part.” (Id. at 4). When asked at his deposition how
he appealed to CORC, Plaintiff stated: “I wrote it out and I sent it with a copy of my grievance and
I sent it up to Albany.” (Powers Decl. Ex. L at 16:4-8). Plaintiff further testified that he followed

up “[b]y asking this grievance [sic] where I was to find out about the answer to my grievance. Mr.
Black [grievance supervisor at Woodbourne] kept telling the grievance guy at Upstate they still
investigating. . . .” (id. at 16:13-17:4). Plaintiff does not specify where in Albany he sent his
grievance and fails to provide any other details concerning the purported appeal to CORC.
Defendants submitted a declaration from Rachael Seguin, the Assistant Director of the IGP
for DOCCS. (Doc. 60). Seguin, in her declaration, states that she is the custodian of records for
CORC and CORC maintains a database containing records of appeals of grievances received,
heard, and decided by CORC since the 1990s. Seguin’s declaration further states that she
conducted a search of DOCCS records for appeals received by CORC for Plaintiff, and annexes
as Exhibit A a copy of the computer printout from the CORC database reflecting the results of that

search. (Id. at 6-7). Seguin concludes that Exhibit A to her declaration reveals that no appeal exists
relating to the November 2018 incident or the grievance filed December 10, 2018. The exhibit
reflects that Plaintiff appealed five grievances to CORC from two different correctional facilities
but none in the relevant timeframe.
Here, “Plaintiff’s ‘self-serving’ and ‘incomplete’ testimony that he sent an appeal to
‘Albany’ is insufficient to create a genuine dispute of fact, particularly in light of Defendants’
evidence that no grievance was ever sent to the CORC.” Khudan v. Lee, No. 12-CV-08147, 2016
WL 4735364, at *5 (S.D.N.Y. Sept. 8, 2016) (Sullivan, J.); see also Lozada v. Delta Airlines, Inc.,
No. 13-CV-07388, 2014 WL 2738529, at *5 (S.D.N.Y. June 17, 2014) (“[plaintiff’s] self-serving,
incomplete, and inconsistent recollection is not sufficient to create a genuine dispute of fact in light
of [defendant’s] documented evidence”); Deebs v. Alstom Transp., Inc., 346 Fed. App’x 654, 656-
57 (2d Cir. 2009) (plaintiffs’ “own self-serving testimony” insufficient to defeat summary
judgment in the face of documentary evidence adduced during discovery cited by defendants).

There can be no dispute that Plaintiff was required to file an appeal with the CORC, even
if he never received a decision on the grievance. Mims v. Yehl, No. 13-CV-06405, 2014 WL
4715883, at *6 (W.D.N.Y. Sept. 22, 2014). Indeed, Plaintiff was aware of the exhaustion
requirement (Opp. at 1 (“Question is did I exhaust my administrative remedies, yes I did . . . I[]
appeal[ed] to the CORC in accordance to [sic] the Directive”)); and a lawsuit commenced by
Plaintiff in the Northern District of New York was recently dismissed on exhaustion grounds (see
Brown v. DuBois, No. 15-CV-01515 (N.D.N.Y. May 2, 2018) (Doc. 82)). Although there are
situations in which an inmate’s failure to exhaust administrative remedies may be excused when
the remedies are unavailable, see Thompson v. Booth, No. 16-CV-03477, 2021 WL 918708, at *7
(S.D.N.Y. Mar. 10, 2021), there is simply no basis to excuse Plaintiff’s failure to exhaust his

administrative remedies in this case. Plaintiff successfully used the IGP and appealed five
grievances to CORC since he has been in DOCCS custody. (Seguin Decl. Ex. A). Plaintiff does
not allege that anyone or anything prevented him from filing an appeal related to the November
2018 incident and December 10, 2018 grievance. See Ross, 136 S. Ct. at 1859-60.
“Instead, Plaintiff’s bare assertions that he submitted his [appeal] but never received a
response fall squarely into the category of assertions that courts in the Second Circuit have found
do not excuse the exhaustion requirement.” Davis v. Grant, No. 15-CV-05359, 2019 WL 498277,
at *8 (S.D.N.Y. Feb. 8, 2019). Plaintiff’s unsupported statements, considered in light of the
evidence Defendants have submitted showing there is no record of Plaintiff filing an appeal
regarding the November 2018 incident, and evidence that Plaintiff has successfully used the IGP
and exhausted remedies on five prior occasions, are simply insufficient to establish a genuine issue
of material fact. Id.; see also Khudan, 2016 WL 4735364, at *5; Veloz v. New York, 339 F. Supp.
2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 Fed. App’x 39 (2d Cir. 2006).
Under these circumstances, Plaintiffs claims under 42 U.S.C. § 1983 against Defendants
are dismissed in light of Plaintiffs failure to exhaust his administrative remedies under the PLRA.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED and
Plaintiff's Complaint is dismissed with prejudice.”
The Clerk of the Court is respectfully directed to terminate the motion sequence pending
at Doc. 58, mail a copy of this Memorandum Opinion and Order to Plaintiff, and close this case.

SO ORDERED:
Dated: White Plains, New York
August 12, 2021 ( J ]
PHILIP M. HALPERN
United States District Judge

Given the conclusions reached herein, the Court need not and does not address Defendants’ remaining
arguments for summary judgment.
11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10334226. Public record. Not legal advice.