Woodward v. Doe 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

SHAWN WOODWARD,

Plaintiff,

-V- 9:18-CV-083

(DNH/DJS)

J. GORI, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

SHAWN WOODWARD

Plaintiff, Pro Se

Atlantic City, New Jersey 08401

“| HON. LETITIA JAMES RACHAEL OUIMET, ESQ.

Attorney General of the State of New York

Attorney for Defendants

The Capitol

Albany, New York 12224

DANIEL J. STEWART

United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER’

Pro se Plaintiff brings this civil rights action, pursuant to 42 U.S.C. § 1983,

alleging that Defendants violated his constitutional rights while he was at Greene

Correctional Facility. See Dkt. No. 1, Compl.; Dkt. No. 84, Third Am. Compl. Pursuant

1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and

N.D.N.Y.L.R. 72.3(c).

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to Federal Rule of Civil Procedure 56, Defendants Gori, Bidwell, and Juliano filed a

Motion for Summary Judgment seeking dismissal of Plaintiff's Third Amended

Complaint. Dkt. No. 147-1, Defs.’ Mem. of Law at pp. 1-2. Defendants Geleta and Cituk

do not join in the Motion. See generally Defs.’ Mem. of Law. Because Plaintiff consents

to dismissal of his First Amendment claims, Dkt. No. 152, Pl.’s Resp. at pp. 2-3,the Court

will address only the merits of Defendants’ Motion with regard to Plaintiff's Eighth

Amendment claim against the moving Defendants. For the reasons below, the Court

recommends Defendants’ Motion be GRANTED.

I. BACKGROUND

On May 12, 2017, Plaintiff arrived at Greene Correctional Facility (“GCF”). Third

Am. Compl. at ¢ 4. He was transferred to GCF in anticipation of his appearance at a

mediation session in the Northern District of New York. Third Am. Compl. at 1-4.

Plaintiff, a practicing Muslim, “brought with him a prayer rug to perform his five (5)

obligatory prayers and a copy of the translated Qur’an.” Third Am. Compl. at 911. When

Plaintiff got to GCF’s property room to collect his prayer items, he alleges that Defendant

«| Gori gave him only socks, boxers, and a t-shirt. Third Am. Compl. at § 6. In retaliation

for Plaintiff verbally complaining about his missing property, Defendant Gori allegedly

choked and punched Plaintiff in the presence of Defendants Geleta and Cituk who did not

intervene. Third Am. Compl. at 7-8. In 2019, Plaintiff was again transferred to GCF.

Third Am. Compl. at 16. Plaintiff maintains that upon arrival, Defendants Bidwell and

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Juliano confronted him about a subsequent lawsuit he had filed against Defendant Gori

concerning the earlier incident. Third Am. Compl. at 417. The confrontation allegedly

resulted in Defendants Bidwell and Juliano physically assaulting Plaintiff. Third Am.

Compl. at § 17. As a result of these events, Plaintiff asserted (1) First Amendment free

exercise and retaliation claims against Defendant Gori; (2) First Amendment retaliation

claims against Defendants Bidwell and Juliano; (3) Eighth Amendment claims against

Defendants Gori, Geleta, and Cituk regarding the May 2017 incident’; and (4) an Eighth

Amendment claim against Defendants Bidwell and Juliano for the July 2019 incident.

Third Am. Compl. at [¥ 21-24.

Il. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only where “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 moving party bears the burden to demonstrate through “pleadings,

depositions, answers to interrogatories, and admissions on file, together with . □ .

affidavits, if any,” that there is no genuine issue of material fact. F.D..C. v. Giammettei,

134 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). To defeat a motion for summary judgment, the non-movant must set out specific

facts showing that a genuine issue exists and cannot rest merely on allegations or denials

2 Summary judgment is not sought as to this incident. 3

of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin,

344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not

sufficient to defeat a motion for summary judgment when the moving party has set out a

documentary case.’’).

When considering a motion for summary judgment, the court must resolve all

ambiguities and draw all reasonable inferences in favor of the non-movant. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “[T]he trial court’s task at the summary

judgment motion stage of the litigation is carefully limited to discerning whether there

are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short,

is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v.

Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

Furthermore, where a party is proceeding pro se, the court must “read [their] supporting

papers liberally, and... interpret them to raise the strongest arguments that they suggest.”

Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nonetheless, summary judgment is

appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to

«| find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

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I. DISCUSSION

The moving Defendants seek summary judgment on the following grounds: (1)

Plaintiff cannot establish his First Amendment claims and (2) failure to exhaust

administrative remedies.? Defs.’ Mem. of Law at pp. 1-2. Plaintiff explicitly consented

to dismissal of his First Amendment free exercise and retaliation claims. Pl.’s Resp. at p.

2. His response to the Motion notes specifically:

By this letter Plaintiff will agree to summary judgment in favor of

defendants, but ONLY as to the following claims:

First Amendment retaliation claims against Defendants Gori, Juliano,

and Bidwell.

First Amendment free exercise claims against Gori.

Td.

Given this express consent to dismissal of these claims, the Court recommends

that summary judgment be granted to Defendants on all of Plaintiff's First Amendment

claims. See, e.g., In re Towers Fin. Corp. Noteholders Litig., 996 F. Supp. 266, 271

(S.D.N.Y. 1998). Remaining is Plaintiff's Eighth Amendment excessive force claim

«| against Defendants Bidwell and Juliano.

3 The Defendants also make passing reference to their entitlement to qualified immunity without further elaboration.

Defs.’ Mem. of Law at p. 2. Because Defendants failed actually argue this issue, the Court will not consider it.

A. Exhaustion of Administrative Remedies

Bidwell and Juliano move for summary judgment on Plaintiff's excessive force

claim regarding the alleged incident in July 2019 on the ground that Plaintiff failed to

exhaust his administrative remedies before filing this lawsuit. Defs.” Mem. of Law at pp.

8 & 10. As detailed below, the Court recommends granting summary judgment on this

ground.

I. Exhaustion Procedure

The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, 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). The Supreme Court has held that “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) (citation omitted). Exhaustion in prisoner

covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake, 578 U.S. 632, 638

(2016) (stating that the mandatory language of § 1997e(a) forecloses judicial discretion

to craft exceptions to the requirement). Furthermore, § 1997e(a) requires “proper

exhaustion,” which means using all steps of the administrative process and complying

with “deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 93

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(2006). The defendant bears the burden of proving that the administrative remedies

available to the plaintiff were not exhausted prior to the initiation of a civil action.

Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).

In New York, the administrative remedies consist of a three-step Inmate Grievance

Program (“IGP”). First, a grievance is submitted to the Inmate Grievance Resolution

Committee (“IGRC’”), a committee comprised of both inmates and facility employees.

N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(b). An inmate must submit a grievance

“within 21 calendar days of the alleged occurrence.” J/d. at § 701.5(a). An inmate may

request an extension of the time limit within forty-five days of the date of the alleged

occurrence. /d. at § 701.6(g). The IGRC reviews and investigates the formal complaint

and then issues a written determination. Jd. at § 701.5(b). Second, upon appeal of the

IGRC decision, the superintendent of the facility reviews the IGRC’s determination and

issues a decision. /d. at § 701.5(c). Finally, upon appeal of the superintendent’s decision,

the Central Office Review Committee (““CORC”) makes the final administrative

determination. /d. at § 701.5(d). Only upon exhaustion of all three levels of review may

prisoner seek relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp. 2d 238, 239

(W.D.N.Y. 2010) (citing Porter v. Nussle, 534 U.S. at 524); see also Neal v. Goord, 267

F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S.

516.

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2. The Record

Plaintiff's excessive force claims are subject to PLRA’s exhaustion requirement.

See, e.g., O’Connor v. Featherston, 2002 WL 818085, at *1 (S.D.N.Y. Apr. 29, 2002)

(“[T]here is no longer an excessive force exception to the PLRA’s exhaustion

requirement.”). The record establishes that Plaintiff did not properly grieve the claim

through the IGP.

On August 19, 2019, Plaintiff filed a grievance concerning his Eighth Amendment

excessive force claims against Defendants Bidwell and Juliano. Dkt. No. 147-15, Wilcox

Decl. at § 21 & Ex. C. On November 19, 2019, the Superintendent’s response denying

the grievance was sent to Plaintiff. Wilcox Decl. at 23. Plaintiff never appealed the

Superintendent’s decision. Wilcox Decl. 4 25. Nor did he request an extension of time

to submit an appeal. Wilcox Decl. § 26. The search of CORC records revealed that

Plaintiff had appealed a total of seventy-five grievances to CORC, including a grievance

regarding the May 2017 incident at issue in this case, none of which concerned the alleged

incident with Defendants Bidwell and Juliano. Dkt. No. 147-14, Seguin Decl. at 44 14,

& 20, Ex. A. Plaintiff offers no explanation for his failure to appeal. See generally

Pl.’s Resp. In fact, he does not mention exhaustion of remedies at all. See id.

3. Whether Plaintiff's Failure to Exhaust Administrative Remedies May be Excused

A prisoner’s failure to exhaust administrative remedies may be excused if remedies

were unavailable to the inmate. Ross v. Blake, 578 U.S. at 642. As the Supreme Court

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stated in Ross, “[a]n inmate . . . must exhaust available remedies, but need not exhaust

unavailable ones.” /d. An administrative remedy is unavailable when (1) “it operates as

a simple dead end—with officers unable or consistently unwilling to provide any relief to

agerieved inmates; (2) it is so opaque that it becomes, practically speaking, incapable of

use; or (3) prison administrators thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or intimidation.” Williams v. Corr.

Officer Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (internal quotations and alterations

omitted). Plaintiff bears the burden of establishing that the grievance procedures were

unavailable. Martin v. Wyckoff, 2018 WL 7356771, at *5 (N.D.N.Y. Oct. 16, 2018),

report and recommendation adopted, 2019 WL 689081 (N.D.N.Y. Feb. 19, 2019).

The record establishes that none of the exceptions above are applicable here. As

mentioned above, Plaintiff does not rebut or even mention Defendants’ failure to exhaust

argument. See Pl.’s Resp. This alone warrants dismissal for noncompliance with the

PLRA’s exhaustion requirements. See White v. Williams, 2016 WL 4006461, at *5

(N.D.N.Y. June 22, 2016), report and recommendation adopted, 2016 WL 4005849

(N.D.N.Y. July 25, 2016). Plaintiff is also no novice when it comes to filing grievances.

He has filed seventy-five grievances since 2003. Seguin Decl. at § 14 & Ex. A. “This

shows that Plaintiff did not view the filing of grievances as a dead end. It also

demonstrates that he clearly understood DOCCS’ inmate grievance policy and could

navigate it when he wished to pursue a grievance. As such, the first two exceptions

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identified under Ross are not applicable here.” Walker v. Ball, 2018 WL 1415212, at *5

(N.D.N.Y. Feb. 16, 2018), report and recommendation adopted, 2018 WL 1406632

(N.D.N.Y. Mar. 20, 2018).

Nor has Plaintiff raised any triable question of fact as to the applicability of the

third Ross exception. Plaintiff has not provided the Court with a copy of any grievance,

grievance decision, or grievance appeal. He has not offered any allegation that he

properly exhausted his claims or justification for failing to do so. Given that conclusory

claims of proper exhaustion are routinely subject to dismissal, the complete absence of

any argument regarding exhaustion here certainly warrants dismissal of Plaintiffs claims.

See, e.g., Gibbs v. Gadway, 2019 WL 5191506, at *5 (N.D.N.Y. Oct. 15, 2019), report

and recommendation adopted, 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (conclusory

claim subject to dismissal where copies of grievances allegedly filed were not submitted

as evidence) (citing cases); Blake v. Porlier, 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4,

2019), report and recommendation adopted, 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020)

(same).

wn For these reasons, the Court recommends that the Defendants’ Motion for

Summary Judgment be granted. Should this recommendation be adopted, Plaintiff's only

remaining claims are for Eighth Amendment excessive force against Defendant Gori and

Eighth Amendment failure to intervene against Defendants Geleta and Cituk dating to

May 2017.

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IV. CONCLUSION

WHEREFORE, it is hereby

RECOMMENDED, that Defendants’ Motion for Summary Judgment (Dkt. No.

147) be GRANTED, and it is

ORDERED, that the Clerk of the Court serve a copy of this Report-

Recommendation and Order upon the parties to this action.

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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)* days within

which to file written objections to the foregoing report. Such objections shall be filed

with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN

FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.

Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,

892 F.2d 15, 16 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIv. P. 72 &

6(a).

Date: August 15, 2024

Albany, New York

US-Magistrate Judge

4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the

fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and

file objections. FED. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal

holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.

FED. R. CIV. P. 6(a)(1)(C).

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