# Murray v. Noeth

> District Court, W.D. New York · September 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10365390

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 26, 2022
- **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/10365390

## How later opinions describe it (automated extraction)

- affirming summary judgment where plaintiff argued remedies were unavailable based on generalized fear and learning of beating of another inmate

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________

WILLIE MURRAY,

Plaintiff,
DECISION AND ORDER
-v-
6:19-CV-6342 EAW
JOSEPH NOETH, et al.,

Defendants.
___________________________________
INTRODUCTION
Pro se plaintiff Willie Murray (“Plaintiff”) was an inmate formerly incarcerated at
the Attica Correctional Facility (“Attica”). He filed this action seeking relief under
42 U.S.C. § 1983. (Dkt. 1). Plaintiff alleges that his constitutional rights were violated by
correctional and medical staff while housed at Attica.
Presently before the Court is a motion for summary judgment filed by defendants
Dr. D. Williams (“Williams”), Correction Officer B. Hembrook (“Hembrook”),
Superintendent Joseph Noeth (“Noeth”), and Correction Sergeant P. Carroll (“Carroll”)
(collectively “Moving Defendants”). (Dkt. 41). For the reasons set forth below, the motion
for summary judgment is denied.
BACKGROUND
I. Factual Background
The following facts are taken from Moving Defendants’ statement of undisputed

facts (Dkt. 41-1) and the exhibits submitted by the parties. Unless otherwise noted, the
facts set forth below are undisputed.
Between February and mid-April 2019, Plaintiff filed 15 grievances and appealed
three to the Central Office Review Committee (“CORC”). (Dkt. 41-1 at ¶ 1). Of the three
grievances that were appealed to CORC, two were consolidated by the Department of

Corrections and Community Supervision (“DOCCS”) (Grievances A-74874-19 and A-
74947-19) and dealt with allegations that Plaintiff’s legal mail was confiscated. (Id. at
¶¶ 2-3). Of the Moving Defendants, only Hembrook is mentioned in the latter of those
grievances, and namely Plaintiff alleges that on March 14, 2019, Correction Officer T.
Foster (“Foster”) confiscated legal materials from Plaintiff and provided them to

Hembrook for review. (Id. at ¶ 3). The third grievance that was appealed to CORC—
Grievance A-75196-19—pertained to an allegation of verbal harassment against a non-
defendant correction officer. (Id. at ¶ 4).
In addition, Plaintiff submitted grievance 74984-19, which alleges that on March
14, 2019, Plaintiff was sexually assaulted and subsequently denied medical attention. (Id.

at ¶ 5). Plaintiff contends that he was sexually assaulted by Correction Officer Miles
Erickson (“Erickson”) who placed an object up Plaintiff’s rectum. (Dkt. 44 at 9). Pursuant
to DOCCS directives established pursuant to the Prison Rape Elimination Act (“PREA”),
34 U.S.C. § 30301, et seq., this grievance was deemed exhausted when it was filed. (Id.).
In grievance 74984-19, Plaintiff did not explicitly allege the failure to intervene on the part
of correction staff, nor did he describe any assault other than one instance of sexual assault,
nor did he allege that he was improperly subjected to a chemical spray. (Id. ¶ 6). Plaintiff

subsequently submitted a letter indicating that the alleged sexual assault occurred on March
15, 2019. (Id. at ¶ 7). On March 21, 2019, Noeth informed Plaintiff that the “Central
Office” had canceled his trip to the outside hospital. (Id. at ¶ 8). The grievance and
subsequent letter did not allege that Noeth or Williams were involved in the cancellation.
(Id. at ¶ 9). Plaintiff was seen by a nurse on March 14, 2019, and by Williams on March

15, but the medical records do not document any observed injuries. (Id. at ¶ 10). However,
neither performed a rectal exam. (Id.).
Plaintiff contends that he was harassed by non-defendant Sergeant Guzdek who
refused to file various grievances that he submitted. (Dkt. 44 at 4-5, 8).
II. Procedural Background

Plaintiff commenced the instant action on May 7, 2019, accompanied by a motion
for leave to proceed in forma pauperis. (Dkt. 1; Dkt. 2). On April 24, 2020, the Court
screened the complaint, granted Plaintiff’s motion to proceed in forma pauperis, and
granted him leave to file an amended complaint. (Dkt. 12). On May 6, 2020, the John Doe
defendant named in the complaint was identified as Erickson. (Dkt. 13). On June 2, 2020,

Plaintiff filed an amended complaint. (Dkt. 14). The Court screened the amended
complaint, permitting only claims against Moving Defendants, Erickson, and Foster to
proceed. (Dkt. 19). Neither Erickson nor Foster has been served with the summons or
amended complaint. (See Dkt. 31; Dkt. 46).
On November 29, 2021, the Court issued a Decision and Order that denied without
prejudice Plaintiff’s motion for the appointment of counsel, denied Moving Defendants’
motion for a hearing on the issue of administrative exhaustion, and granted Plaintiff’s

motion for service on Erickson and Foster. (Dkt. 39).
On December 20, 2021, Moving Defendants filed the instant motion for summary
judgment in lieu of an answer (Dkt. 41), and three days later their counsel filed a declaration
to authenticate the exhibits submitted in support of the motion (Dkt. 43). Plaintiff filed
opposition papers on January 24, 2022 (Dkt. 44), and Moving Defendants filed reply papers

on February 10, 2022. (Dkt. 47; Dkt. 48).
DISCUSSION
I. Legal Standards
A. Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “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). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the Court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact. . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the
moving party has met its burden, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d

Cir. 2011)). Specifically, the non-moving party “must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654
F.3d at 358. Indeed, “the 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 v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).
B. Administrative Exhaustion
Pursuant to the Prison Litigation Reform Act (“PLRA”), “[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).
To satisfy that requirement, prisoners in New York must ordinarily follow a
three-step [DOCCS] grievance process. The first step in that process is the
filing of a grievance with the Inmate Grievance Resolution Committee.
Next, the inmate may appeal an adverse decision to the prison
superintendent. Finally, the inmate may appeal the superintendent’s decision
to [CORC]. In general, it is only upon completion of all three levels of
review that a prisoner may seek relief in federal court under § 1983.

Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (citations omitted); see also
Tillman v. Phillips, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5233308, at *3 (N.D.N.Y.
Nov. 10, 2021) (“Courts in [ ]this Circuit have long recognized [DOCCS’ three-step]
procedure as an ‘available’ remedy for purposes of the PLRA.” (quoting Hall v. Cnty. of
Saratoga, No. 10-CV-1120 (NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6,
2013)), adopted, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5768393 (N.D.N.Y. Dec. 6,
2021). “[T]he PLRA requires ‘proper exhaustion,’ which ‘means using all steps that the
agency holds out, and doing so properly (so that the agency addresses the issues on the
merits).’” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (quoting

Woodford v. Ngo, 548 U.S. 81, 90 (2006)). “Compliance with prison grievance procedures
. . . is all that is required by the PLRA to ‘properly exhaust.’” Jones v. Bock, 549 U.S. 199,
218 (2007). As such, “[t]he 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).

“Exhaustion is mandatory—unexhausted claims may not be pursued in federal
court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011); see also Ross v. Blake, 578
U.S. 632, 639 (2016) (“mandatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.”). “However, a prisoner need not
specifically plead or demonstrate exhaustion in the complaint because failure to exhaust

administrative remedies is an affirmative defense under the PLRA, not a pleading
requirement.” Rucker v. Giffen, 997 F.3d 88, 92 (2d Cir. 2021) (citations and internal
quotation marks omitted).
An exception from the exhaustion requirement exists only if the process is

unavailable. As explained by the Court of Appeals for the Second Circuit:
First, an administrative remedy may be unavailable when “it operates as a
simple dead end—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates.” Second, “an administrative scheme might
be so opaque that it becomes, practically speaking, incapable of use.” In
other words, “some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it.” Third, an administrative remedy may be
unavailable “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or
intimidation.”

Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (quoting Ross, 578 U.S. at 643-
44).
II. Analysis
To the extent Moving Defendants argue that Plaintiff’s grievance concerning the
sexual assault did not sufficiently place them on notice of the claims currently pursued by
Plaintiff with respect to the denial of medical care (Dkt. 41-4 at 8), the Court disagrees.
A grievance must “contain a concise, specific description of the problem and the
action requested.” Amador v. Andrews, 655 F. 3d 89, 96 (2d Cir. 2011) (citing 7 NYCRR
§ 701.7(a)(1)(i) (1998) now codified as amended at 7 NYCRR § 705(a)(2)(2021)).
Notably, “a review of a prison grievance is ‘liberal,’ and ‘a claim may be exhausted when
it is closely related to, but not explicitly mentioned in an exhausted grievance[.]’” Reynolds
v. Stone, 9:20-CV-00686, 2021 WL 3271805, at *9 (N.D.N.Y. May 4, 2021) (quoting
Blackhawk v. Hughes, 20-CV-0241, 2021 WL 862257, at *10 (N.D.N.Y. Jan. 19, 2021)
(internal quotations omitted), adopted, 2021 WL 752838 (N.D.N.Y. Feb. 26, 2021)),
adopted, 2021 WL 3269053 (N.D.N.Y. July 30, 2021). Although “[i]t is ‘appropriate to
afford pro se inmates a liberal grievance pleading standard, the grievance may not be so

vague as to preclude prison officials from taking appropriate measures to resolve the
complaint internally.’” Id. (citing Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)).
Plaintiff submitted a grievance, numbered 74984-19, related to both the alleged
sexual assault and the alleged denial of medical care, which Moving Defendants appear to
have submitted along with their motion. (Dkt. 41-3 at 52). The purported grievance alleges

that Plaintiff was sexually assaulted on March 14, 2019, and was subsequently “denied
medical attention.” (Id.). Plaintiff requested removal from the facility and medical
attention. (Id.).
The Court notes that although Plaintiff does not name Williams or Noeth in the
grievance at issue, this is not required. “[A] New York state prisoner is not required to

name responsible parties in a grievance in order to exhaust administrative remedies.”
Espinal, 558 F.3d at 125. The Court looks to “the state prison procedures and the prisoner’s
grievance to determine whether the prisoner has complied with those procedures.” Id. at
124. Addressing whether an inmate must specifically name a defendant in a grievance for
exhaustion purposes, the Second Circuit determined that the relevant regulation governing

the Inmate Grievance Procedure in effect from 1999 to 2000 did not require that a grievance
specifically name an official in order to later bring suit against that official in federal court.
Id. at 125 (citing 7 N.Y. Comp. Codes R. & Regs (“NYCRR”) § 701.1 et seq.). The
regulation at issue in that case was superseded in 2006. Id. Because there are only “minor
differences” between the provision at issue in Espinal and the provision now in effect, the
Second Circuit’s analysis in that case “is equally applicable” to the regulation that went
into effect into 2006. Id. The relevant section governing the contents of a grievance has

not changed since it went into effect in 2006. Compare 7 NYCRR § 701.5(a)(2) (2006)
with 7 NYCRR § 701.5(a)(2) (2021). Accordingly, an inmate need not specifically name
a defendant in a grievance for the purpose of administrative exhaustion under the
regulations currently in effect.
The Court acknowledges that Plaintiff’s letter submitted in connection with the OSI

investigation contained a date differing from that stated in grievance 74984-19 and that the
letter did not mention Williams. The Court similarly acknowledges the argument by
Moving Defendants that because OSI’s investigation into the grievance determined that
Dr. Morley, located in DOCCS headquarters in Albany, NY, canceled Plaintiff’s trip to an
outside hospital, grievance 74984-19 was not understood as asserting claims against Noeth

or Williams. (Dkt. 47-1 at 6).
However, these points raise issues of fact that cannot be resolved at this stage of the
proceedings, and to the extent that any ambiguity remains as to whether Plaintiff’s
grievance provided sufficient notice to the facility of his claims, “the Court must view all
facts ‘in the light most favorable’ to the non-moving party and resolve all ambiguities and

draw all permissible factual inferences in favor of the party against whom summary
judgment is sought.” Madelaine Chocolate Novelties v. Great N. Ins. Co., 399 F. Supp. 3d
3, 8 (E.D.N.Y. 2019) (citing Tolan v. Cotton, 572 U.S. 650, 660-61 (2014)).
With respect to those claims where Plaintiff concedes that he did not exhaust his
grievance by filing an appeal with CORC (Dkt. 44 at 1-5), Plaintiff contends that
administrative remedies were not available to him. Plaintiff argues that Guzdek failed to

file the grievances Plaintiff submitted and Guzdek, along with other officers, harassed
Plaintiff in retaliation for filing grievances. (Id. at 1-2). Moving Defendants argue that
Plaintiff’s continued filing of grievances belies Plaintiff’s claim that he feared reprisal for
filing grievances. (Dkt. 47 at 1-3).
The Second Circuit has instructed that a “generalized fear of retaliation [] is

insufficient as a matter of law to support a finding that the grievance process was
unavailable in order to overcome her failure to exhaust administrative remedies under the
PLRA.” Lucente v. Cnty. Of Suffolk, 980 F.3d 284, 312 (2d Cir. 2020) (affirming summary
judgment where plaintiff argued remedies were unavailable based on generalized fear and
learning of beating of another inmate). Even if an inmate alleges more than a generalized

fear of reprisal, when an inmate continuously files grievances notwithstanding ongoing
alleged harassment or retaliation, courts have been reluctant to find that administrative
remedies were unavailable. See Aikens v. Jones, No. 12 CIV. 1023 PGG, 2015 WL
1262158, at *6 (S.D.N.Y. Mar. 19, 2015) (collecting cases). However, Plaintiff has not
solely alleged a generalized fear of reprisal in this case. He has also asserted that Guzdek

refused to file his grievances and appeals. While Moving Defendants have cited to a
number of cases in which courts have found that an inmate must support a claim that his
grievance was lost or destroyed with evidence (see Dkt. 47-1 at 3-4), those cases were
either not decided in the context of a motion for summary judgment filed in lieu an answer,
or involved allegations far more general than those at issue here.
Again, at this stage of the proceedings and with no discovery having been

conducted, it would not be appropriate to resolve this issue just based on the papers.
“Indeed, ‘[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.’” Irving v. Philips, No.
15-CV-6413-FPG, 2017 WL 85427, at *1 (W.D.N.Y. Jan. 10, 2017) (quoting Hellstrom v.
U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000)). Thus, the Court concludes

that Plaintiff’s contentions that he did not exhaust because the remedies were not available
to him cannot be resolved on summary judgment at this juncture.
CONCLUSION
For the foregoing reasons, Moving Defendants motion for summary judgment (Dkt.
41) is denied.

SO ORDERED.

ELIZABETH A. WOLFORD
Chief Judge
United States District Court

DATED: September 26, 2022
Rochester, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365390. Public record. Not legal advice.