# Animashaun v. Toohill

> District Court, N.D. New York · March 18, 2025

URL: https://www.frixlaw.com/law-library/cases/10825852

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 18, 2025
- **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/10825852

## How later opinions describe it (automated extraction)

- observing that an affirmative defense "normally must be pled in a timely manner or it may be waived"
- holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts"
- stating that the mandatory language of Section 1997e(a) forecloses judicial discretion to craft exceptions to the requirement

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DAMILOLA ANIMASHAUN,
Plaintiff,
vs. 9:21-CV-372
(MAD/TWD)
J.J. TOOHILL, Corrections Officer; C.O.
TOURVILLE; C.O. DAVEY; C.O. PATRICK; Z.
HOLMES, Corrections Officer; and W.
HOFFNAGLE, Corrections Officer,
Defendants.
____________________________________________
APPEARANCES: OF COUNSEL:
MCCARTER & ENGLISH GREGORY J. MASCITTI, ESQ.
250 West 55th Street, 13th Floor
New York, New York 10019
Attorneys for Plaintiff
OFFICE OF THE NEW YORK BRIAN W. MATULA, AAG
STATE ATTORNEY GENERAL JAMES D. TAYLOR, AAG
The Capitol
Litigation Bureau
Albany, New York 12224-0341
Attorneys for Defendants
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On April 1, 2021, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983. See Dkt.
No. 1. In his second amended complaint, Plaintiff alleges that Defendants used excessive force
and failed to intervene in violation of the Eighth Amendment to the United States Constitution,
stemming from an incident that occurred on April 9, 2018, while Plaintiff was housed at Upstate
Correctional Facility ("Upstate C.F."). See Dkt. No. 21.
Trial is scheduled to commence on March 24, 2025. Currently before the Court is
Defendants' second motion for summary judgment. See Dkt. No. 98.1
II. BACKGROUND
Plaintiff's only remaining claims in this case pertain to Eighth Amendment excessive force
and failure to intervene claims arising out of conduct alleged to have occurred on April 9, 2018.
See Dkt. No. 98-1 at ¶ 2. Plaintiff was housed at Upstate Correctional Facility from March 29,
2018, through August 16, 2018. See id. at ¶ 3.

Upstate Correctional Facility had an incarcerated individual grievance program for the
submission of incarcerated individual grievances during the time that Plaintiff was housed at
Upstate Correctional Facility. See id. at ¶ 4. Plaintiff did not file any grievance concerning the
April 9, 2018 incident, or concerning any other matter while he was incarcerated at Upstate
Correctional Facility. See id. at ¶ 5.
Plaintiff was housed at Mid-State Correctional Facility from April 2, 2019, through
September 12, 2019. See id. at ¶ 6. Mid-State Correctional Facility had an incarcerated
individual grievance program for the submission of incarcerated individual grievances during the
time that Plaintiff was housed at Mid-State Correctional Facility. See id. at ¶ 7. Plaintiff

submitted a grievance dated May 30, 2019, which was filed with the Mid-State Correctional
Facility grievance office on June 17, 2019, and marked and identified as "MS-24057-19." Id. at ¶
8. Grievance MS-24057-19 claimed that while housed at Mid-State Correctional Facility, he had
not seen a medical specialist concerning his arm and requested as follows: "Please see why I have

1 On January 23, 2023, Defendants moved for summary judgment and argued that
Plaintiff's claims failed on the merits. The Court granted this motion in part. Notably, however,
Defendants did not argue that Plaintiff failed to exhaust his administrative remedies, which is the
subject of their second motion for summary judgment.
2
not seen a specialist." Id. at ¶ 9. Plaintiff submitted an appeal in connection with MS-24057-19 to
the Mid-State Superintendent. See id. at ¶ 10. On July 17, 2019, the Mid-State Superintendent
issued a determination denying that appeal. See id. at ¶ 11. Plaintiff did not appeal the
Superintendent's determination of MS-24057-19 to DOCCS's Central Office Review Committee
("CORC"). See id. at ¶ 12.
On August 14, 2019, Plaintiff submitted another grievance, which was submitted with the
Mid-State grievance office on August 29, 2019, and marked an identified as "MS-242192-19." Id.

at ¶ 13. Grievance MS-242192-19 claimed that while housed at Mid-State Correctional Facility,
Plaintiff was not receiving the physical therapy to which he claimed entitlement and challenged
assertions by Mid-State Correctional Facility staff that he had refused to attend physical therapy
appointments. See id. at ¶ 14. Plaintiff requested "can you provide the physical therapy that the
doctor provided by prescription to [me] and which I did not receive yet." Id. Plaintiff appealed
MS-242192-19 to the Mid-State Superintendent, and then to the CORC. See id. at ¶ 15.
III. DISCUSSION
A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36–37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56 (c), (e)).

3
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of New York., 322

F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the
motion for summary judgment "would derogate the truth-finding functions of the judicial process
by substituting convenience for facts").
"Assessments of credibility and choices between conflicting versions of the events are
matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York, 426
F.3d 549, 553–54 (2d Cir. 2005) (quotation omitted). "However, '[t]he mere existence of a
scintilla of evidence in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff." Id. (quoting Anderson, 477
U.S. at 252 (emphasis and alterations in original)). "To defeat summary judgment, therefore,

nonmoving parties 'must do more than simply show that there is some metaphysical doubt as to
the material facts,' ... and they 'may not rely on conclusory allegations or unsubstantiated
speculation.'" Id. (quotations omitted).
B. Exhaustion of Administrative Remedies
1. 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

4
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 cases covered by Section 1997e(a) is mandatory. Id. at 524; see
also Ross v. Blake, 578 U.S. 632, 638 (2016) (stating that the mandatory language of Section

1997e(a) forecloses judicial discretion to craft exceptions to the requirement). Furthermore,
Section 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 (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. See Toussaint
v. Rumsey, No. 9:23-cv-974, 2024 WL 3649918, *3 (N.D.N.Y. June 5, 2024) (citation omitted).
In New York, the administrative remedies consist of a three-step Incarcerated Grievance
Program ("IGP"). First, a grievance is submitted to the Incarcerated Grievance Resolution
Committee ("IGRC"), a committee comprised of both inmates and facility employees. See N.Y.

Comp. Codes R. & Regs. tit. 7, § 701.5(b). An inmate must submit a grievance "within 21
calendar days of an alleged occurrence." Id. at § 701.5(a)(1). An inmate may request an
extension of the time limit within forty-five days of the date of the alleged occurrence. See id. at
§ 701.6(g). The IGRC reviews and investigates the formal complaint and then issues a written
determination. See id. 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. See id. at §
701.5(c). Finally, upon appeal of the superintendent's decision, the Central Office Review

5
Committee ("CORC") makes the final administrative determination. See id. at § 701.5(d). Only
upon exhaustion of all three levels of review may a prisoner seek relief in federal court. See
Bridgeforth v. Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter, 534
U.S. at 524).
"A plaintiff must exhaust his administrative remedies before filing his initial complaint in
federal court." Lopez v. Cipolini, 136 F. Supp. 3d 570, 582 (S.D.N.Y. 2015); see also Barrett v.
Ballard, No. 9:23-cv-113, 2024 WL 4627511, *3 (N.D.N.Y. Oct. 4, 2024) (citations omitted).

"'When a prisoner does not properly exhaust his administrative remedies before filing suit, the
action must be dismissed.'" Barrett, 2024 WL 4627511, at *3 (quotation omitted). "'[W]here a
plaintiff's grievance has not been appealed to and decided by the highest body in the
administrative process, the plaintiff cannot be said to have exhausted his administrative remedies
and his claims are thus properly dismissed by a court.'" Id. (quotation omitted).
Here, as discussed above, the undisputed facts clearly demonstrate that Plaintiff failed to
exhaust the DOCCS administrative process. Specifically, the record before the Court indicates
that Upstate Correctional Facility had a grievance program during the relevant time period and
Plaintiff failed to file any grievances while housed at Upstate Correctional Facility. See Dkt. No.

105-1 at ¶¶ 4-5.
Plaintiff claims in opposition to the motion that he should be deemed to have exhausted
his administrative remedies by filing grievances in May and August of 2019. See Dkt. No. 105 at
10-12. The Court disagrees. As Defendants note, Plaintiff admits that the first of these two
grievances was not filed until June 17, 2019 (grievance "MS-24057-19"). See Dkt. No. 105-1 at
¶¶ 9-12. The filing of this grievance took place 434 days after the incident and 413 days after his
deadline to grieve the April 9, 2018 incident – it was therefore untimely and does not constitute

6
"proper" exhaustion. See Burrell v. Zurek, No. 9:17-CV-0906, 2019 WL 5197519, *15
(N.D.N.Y. June 21, 2019) (holding that "[a] grievance which is denied as untimely does not
satisfy the PLRA's exhaustion requirements"); Adams v. Ohara, No. 9:16-CV-0527, 2019 WL
652409, *7 (N.D.N.Y. Feb. 15, 2019) (collecting cases). Moreover, Plaintiff has admitted that the
May 30, 2019 grievance was not appealed to the CORC. See Dkt. No. 105-1 at ¶ 8. As such, this
grievance was both untimely and not appealed through the IGP's three-step process; and,
therefore, does not satisfy Plaintiff's exhaustion requirement. See Feliz v. Johnson, No. 9:17-cv-

1294, 2019 WL 5197216, *4 (N.D.N.Y. June 6, 2019) (holding that "if a plaintiff fails to follow
each of the required steps of the IGP, including receipt of a decision from CORC, prior to
commencing litigation, he has failed to exhaust his administrative remedies as required under the
PLRA") (citations omitted).
Putting aside the fact that grievance MS-24057-19 was untimely and not appealed to
CORC, Plaintiff contends that this grievance sufficiently informed prison officials of his
grievance because Plaintiff references the April 9, 2018 use-of-force incident as being the cause
of his injury. See Dkt. No. 105 at 11; see also Dkt. No. 105-3 at 6. While it is true that Plaintiff
references the use-of-force incident in this grievance, when read in its entirety, the grievance

makes clear that he is complaining about the lack of medical care he is receiving at Mid-State
Correctional Facility, not about the use-of-force incident that occurred while Plaintiff was housed
at Upstate Correctional Facility. Rather, the April 9, 2018 incident was mentioned to provide
context as to why Plaintiff needed the medical treatment he was seeking. See Dkt. No. 105-3 at 6.
Indeed, the only requested relief Plaintiff seeks in this grievance is for the IGC to determine why
he has not been permitted to see a "specialist" for the injuries he sustained. See id. As such,
grievance MS-24057-19, which was filed 434 days after the April 9, 2018 incident at Upstate

7
Correctional Facility, while Plaintiff was housed at Mid-State Correctional Facility, was
insufficient to satisfy his exhaustion requirement.
Plaintiff also argues that grievance MS-24192-19 submitted on August 14, 2019, which
referred to grievance MS-24057-19, "also should have prompted officials to investigate the
excessive force incident that occurred on April 9, 2018." Dkt. No. 105 at 11-12. Plaintiff notes
that this grievance was responded to and was "not rejected for being untimely or otherwise
procedurally improper." Id. at 12. Again, although it is true that Plaintiff references grievance

MS-24057-19 in his August 14, 2019 grievance, he does so to make clear that this is not the first
time that he has sought additional medical treatment that he was allegedly not receiving at Mid-
State Correctional Facility. See Dkt. No. 105-3 at 11-12. Grievance MS-24192-19 does not in
any way attempt to grieve the underlying use-of-force incident that occurred at Upstate
Correctional Facility, but instead simply complains about the medical treatment he is receiving at
Mid-State Correctional Facility. See id.
"The PLRA's exhaustion requirement is designed to 'afford[ ] corrections officials time
and opportunity to address complaints internally before allowing the initiation of a federal case.'"
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Porter, 534 U.S. at 524-25). "As

such, it is not dissimilar to the rules of notice pleading, which prescribe that a complaint 'must
contain allegations sufficient to alert the defendants to the nature of the claim and to allow them
to defend against it.'" Id. (quotation omitted). "Thus, ... if prison regulations do not prescribe any
particular content for inmate grievances, 'a grievance suffices if it alerts the prison to the nature of
the wrong for which redress is sought. As in a notice pleading system, 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. (quotation omitted).

8
Here, grievances MS-24057-19 and MS-24192-19 were undoubtedly sufficient to place
officials at Mid-State Correctional Facility that Plaintiff believed he was receiving inadequate
medical care for injuries he had previously sustained. These grievances did not, however, alert
prison officials at Mid-State that Plaintiff was attempting to seek redress for the alleged use of
excessive force at Upstate on April 9, 2018. Both the content of the grievances and the relief he
was seeking made clear that Plaintiff was complaining about his medical treatment while housed
at Mid-State and nothing else.

Based on the foregoing, the Court finds that Plaintiff has failed to exhaust his
administrative remedies as to the April 9, 2018 use-of-force incident. Accordingly, this action
may proceed only if Plaintiff's failure to exhaust administrative remedies may be excused.
2. Excusing Plaintiff's Failure to Exhaust
A prisoner's failure to exhaust administrative remedies may nonetheless be excused if
remedies were unavailable to the inmate. Ross, 578 U.S. at 642. As the Supreme Court stated in
Ross, "[a]n inmate ... must exhaust available remedies, but need not exhaust unavailable ones." Id.
The Court provided three potential circumstances in which administrative remedies may be
unavailable: (1) where the administrative procedure technically exists but operates as a "dead end

– with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2)
where the administrative scheme is "so opaque that it becomes, practically speaking, incapable of
use"; and (3) where prison administrators "thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation." Id. at 643-44. The plaintiff
bears the burden of establishing that the grievance procedures were unavailable within the
meaning of Ross. See Barrett, 2024 WL 4627511, at *4 (citation omitted).

9
In the present matter, the Court finds that Plaintiff has failed to establish that
administrative remedies were unavailable to him. In fact, the only argument Plaintiff makes on
this issue states as follows: "to the extent the Court determines that grievances MS-24057-19 and
MS-242191-19 did not suffice to satisfy the exhaustion requirement, the existence of special
circumstances that justify Plaintiff's failure to exhaust precludes summary judgment.
Specifically, Plaintiff reasonably believed that his reference to the excessive force incident
sufficed to satisfy the exhaustion requirement." Dkt. No. 105 at 12. In support of this argument,

Plaintiff cites to Hilbert v. Fischer, No. 12-cv-3843, 2013 WL 4774731 (S.D.N.Y. Sept. 5, 2013),
which in turn relied on Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). Prior to Ross, courts
in the Second Circuit utilized a three-part framework established in Hemphill to determine
whether the failure of an inmate to exhaust administrative remedies could be excused. See
Hemphill, 380 F.3d at 386. The first part involved an assessment whether administrative
remedies were in fact available to the plaintiff; the second part instructed courts to consider
whether defendants forfeited the affirmative defense of exhaustion by failing to preserve it or
should be estopped from raising it because their own actions inhibited the plaintiff's ability to
exhaust administrative remedies; and the third part directed courts to determine whether special

circumstances existed that justified a plaintiff's failure to exhaust remedies that were available and
not subject to estoppel. See id. at 686-91; see also Williams v. Corrections Officer Priatno, 829
F.3d 118, 122 (2d Cir. 2016) (explaining the three-part framework set forth in Hemphill).
In Ross, however, the Supreme Court addressed and rejected the Hemphill framework.
Specifically, the Supreme Court held that, aside from the "significant" textual qualifier that "the
remedies must indeed be 'available' to the prisoner," there are "no limits on an inmate's obligation
to exhaust – irrespective of any 'special circumstances.'" Ross, 578 U.S. at 639. The Court

10
stressed "the mandatory nature of [the PLRA's] exhaustion regime," noting that the text of the
PLRA and its legislative history refute the existence of a "special circumstances" exception to the
statute's exhaustion requirement. See id. at 639-41. As such, following Ross, an inmate is only
excused from the exhaustion requirement when administrative remedies are "unavailable," as set
forth above. See Williams, 829 F.3d at 122.
Based on this law, it is clear that Plaintiff's "reasonable misunderstanding" of an otherwise
available grievance procedure is not sufficient to excuse exhaustion. Plaintiff has failed to argue

or put forth any evidence demonstrating that the IGP operated as a "dead end," that the IGP is "so
opaque" that it was incapable of use, or that he was thwarted by prison officials from taking
advantage of the grievance process. See Ross, 578 U.S. at 643-44.
Accordingly, the Court finds that Plaintiff has failed to establish that the grievance
procedures were unavailable to him and that he was therefore excused from exhausting
administrative remedies.
3. Waiver and Estoppel
Plaintiff argues that Defendants have either waived, or should be estopped from asserting,
the failure to exhaust defense. See Dkt. No. 105 at 7-10. Plaintiff notes that Defendants waited

nearly four years, until the eve of trial, to raise this argument, despite the fact that Plaintiff's
grievance history was readily available to them. See id. at 8. Plaintiff further notes that
Defendants failed to raise this issue in their first motion for summary judgment, which was filed
before the dispositive motion deadline. See id. While the Court shares Plaintiff's frustration in
Defendants' failure to raise this issue earlier in this litigation, it nonetheless finds that Defendants
have not waived the defense of failure to exhaust.

11
Under Rule 8(c) of the Federal Rules of Civil Procedure, "[i]n responding to a pleading, a
party must affirmatively state any ... affirmative defense." And under Rule 12(h), a party waives
any defense listed in Rule 12(b)(2)-(5) "by failing to assert [such a defense] in a pre-answer
motion to dismiss or the first responsive pleading." Panzella v. Cty. of Nassau, No. 13-CV-5640,
2015 WL 224967, *3 (E.D.N.Y. Jan. 15, 2015).
The Second Circuit has previously ruled that the language in Rule 8(c) is "mandatory,"
and that failure to plead an affirmative defense "bars its invocation at later stages of the

litigation." Doubleday & Co., Inc. v. Curtis, 763 F.2d 495, 503 (2d Cir. 1985). More recently, the
Second Circuit has announced a more lenient standard. See, e.g., Curry v. City of Syracuse, 316
F.3d 324, 330-31 (2d Cir. 2003) (observing that an affirmative defense "normally must be pled in
a timely manner or it may be waived"); Am. Fed. Grp. v. Rothenberg, 136 F.3d 897, 910 (2d Cir.
1998) ("Waiver by failure to plead is indeed the general rule, but it is a rule not applied
automatically and as a practical matter there are numerous exceptions to it") (internal quotation
marks omitted). If a defendant omits an affirmative defense from his answer or first responsive
pleading, a district court may nevertheless decline to deem the defense waived if the plaintiff had
notice and an opportunity to respond. See Jones v. Bryant Park Mkt. Events, LLC, 658 Fed.

Appx. 621, 624 (2d Cir. 2016) (citing Curry, 316 F.3d at 330-31).
Here, it is undisputed that Defendants raised the affirmative defense of failure to exhaust
in their answer. See Dkt. No. 43 at ¶ 18 ("Plaintiff did not properly exhaust his administrative
remedies prior to commencing this action and therefore this action is subject to dismissal under
the Prison Litigation Reform Act of 1995"). As such, Defendants have complied with Rule 8(c).
In Villante v. VanDyke, 93 Fed. Appx. 307 (2d Cir. 2004), the Second Circuit considered
an appeal of the district court's consideration of a second summary judgment motion that was

12
filed after the expiration of the court's deadline for dispositive motions. See id. at 310. The
plaintiff argued (1) the defendants waived their exhaustion defense by not raising the defense in
their initial motion for summary judgment; and (2) that the court abused it discretion in allowing
the defendants to move for summary judgment on the ground of failure to exhaust after the
deadline for motions had passed. See id. The Second Circuit rejected both arguments. See id.
As to the first argument, the Second Circuit wrote as follows:
[The plaintiff] first argues that [the defendants] waived the defense
of failure to exhaust by failing to include it in their first motion for
summary judgment. We have held that failure to exhaust
administrative remedies is an affirmative defense to be raised and
proven by a defendant. See Jenkins v. Haubert, 179 F.3d 19,
182929 (2d Cir. 1999). Generally, defendants are deemed to have
waived the defense if they fail to raise it. See Travellers Int'l., A.G.
v. Trans World Airlines, Inc., 41 F.3d 1570, 1580 (2d Cir. 1994).
We have, however, never required defendants who have properly
pled the defense in their answer to also file a motion for summary
judgment on exhaustion grounds in order to preserve the defense.
Indeed, Federal Rule of Civil Procedure 8(c) requires only that an
affirmative defense be included in a responsive pleading, such as an
answer, not that it be the subject of a pretrial motion, and [the
plaintiff] has pointed to no case suggesting otherwise. Fed. R. Civ.
P. 8(c). Here, the answer stated, "Plaintiff has failed to exhaust
administrative remedies." [The plaintiff] has not identified any case
law establishing that this language was insufficient to assert the
defense of failure to exhaust administrative remedies under the
PLRA. Accordingly, we conclude that [the defendants], having
raised the exhaustion defense in their answer, did not waive the
defense by failing to include it in their first motion for summary
judgment.
Id. at 308-09.
As to the second argument, the Second Circuit considered whether the district court was
permitted to consider a claim of exhaustion in the form of a second motion for summary judgment
despite the passing of the dispositive motion deadline. See id. at 309. The Second Circuit noted
that a district court may modify its scheduling order "'upon a showing of good cause.'" Id.
13
(quoting Fed. R. Civ. P. 16(b)). The court found that the decision to permit amendment of the
dispositive motion deadline rests within the discretion of the district court and should be granted
when "the interests of justice make such a course desirable." Id. at 310 (citations omitted). The
Second Circuit concluded that the district court did not abuse its discretion in permitting the
second motion for summary judgment and noted that the defendants would have been permitted
to raise this defense at trial, which would have resulted in judgment being entered in the
defendants' favor. See id.

The facts in Villante are remarkably similar to the present matter. Here, although
Defendants did not raise the issue of exhaustion in their initial motion for summary judgment,
they asserted it as an affirmative defense in their answer. While the more prudent course of
action would have been for Defendants to raise this issue in their initial motion, their failure to do
so is not fatal to their defense. Plaintiff has been on notice of this affirmative defense since the
beginning of this litigation and has not been prejudiced.2 If this case were to proceed to trial,
Defendants could raise this issue, which would be dispositive of Plaintiff's remaining claims. In
permitting Defendants to bring this second motion for summary judgment, the Court implicitly
determined that it was in the interests of justice; a finding that it now states explicitly in this

Memorandum-Decision and Order. Although it clearly would have been preferable for all parties
involved for this issue to have been raised at an earlier point in this litigation, the Court agrees

2 Contrary to Plaintiff's assertion, the delay in moving for summary judgment on this issue
did not prejudice him by preventing him from taking any "further action to address any grievance-
related issues pending the trial in this action." Dkt. No. 105 at 10. As Defendants note, the
defense of exhaustion concerns whether or not, at the time Plaintiff commenced this action, he
fully exhausted his administrative remedies. Plaintiff could not have cured his failure to exhaust
since he commenced this action nearly three years after the April 9, 2018 use-of-force incident,
and the time for filing a grievance related to that incident, or to seek an extension of time to do so,
had long since expired.
14
with Defendants that this affirmative defense has not been waived. See Villante, 93 Fed. Appx. at
308-10; see also Dawson v. Archambeau, No. 21-1307, 2022 WL 16748511, *3 (10th Cir. Nov. 7,
2022) (holding that the defendant did not waive his non-exhaustion defense by failing to raise it
in his first motion for summary judgment where the affirmative defense was included in his
answer) (citations omitted); Drippe v. Gototweski, 434 Fed. Appx. 79, 81 (3d Cir. 2011)
(concluding that the defendant did not waive his exhaustion defense "by failing to raise it in a
timely motion for summary judgment"); Perez v. Arnone, No. 3:12-cv-1591, 2018 WL 3596747,

*5-6 (D. Conn. July 26, 2018) (finding that exhaustion defense was not waived when it was not
raised in the initial motion for summary judgment).
Accordingly, the Court finds that Defendants have not waived their non-exhaustion
defense.3 Since Plaintiff failed to exhaust administrative remedies that were available to him, the
Court grants Defendants' second motion for summary judgment.
C. Final Thoughts
Plaintiff commenced this action on April 1, 2021, and subsequently amended his
complaint on August 30, 2021. See Dkt. Nos. 1, 11. In his amended complaint, Plaintiff asserted
claims arising from his confinement at both Upstate Correctional Facility and Mid-State

3 Plaintiff also argues that Defendants should be estopped from asserting this affirmative
defense because he was led to believe that this defense would not be asserted and has suffered
prejudice as a result. See Dkt. No. 105 at 9. As Defendants note, following the Supreme Court's
decision in Ross, the concept of "estoppel" is determined within the availability analysis. For
example, an officer's actions or threats to discourage an individual from filing a claim may be
relevant to whether the administrative process was truly "available" to the plaintiff. See Burrell v.
Nelson, No. 9:22-cv-702, 2023 WL 4373288, *3 (N.D.N.Y. June 13, 2023) (holding that "[t]he
court in Ross referred to 'availability' as a 'textual exception' to mandatory exhaustion, and
'estoppel' has become one of the three factors in determining availability") (quoting Ross, 578
U.S. at 642). Here, Plaintiff has not alleged that any named Defendant or any other DOCCS
employee took any action that would have rendered the administrative process unavailable to
him. As such, Defendants are not estopped from raising this defense.
15
Correctional Facility. Following this Court's initial review of the amended complaint, only the
claims related to the April 9, 2018 incident at Upstate Correctional Facility survived. See Dkt.
No. 20.
On January 23, 2023, Defendants moved for summary judgment on Plaintiff's remaining
claims, arguing that Plaintiff failed to meet the subjective prong to support an Eighth Amendment
claim, that certain Defendants were not personally involved in the alleged Eighth Amendment
violations, and that the named Defendants were otherwise entitled to summary judgment. See

Dkt. No. 54-1. In total, that motion was comprised of 349 pages. In a June 22, 2023 Order and
Report-Recommendation, Magistrate Judge Dancks recommended that the Court grant in part and
deny in part Defendants' motion for summary judgment, which this Court adopted on September
19, 2023. See Dkt. Nos. 61 & 72.
Thereafter, on January 22, 2024, the remaining Defendants moved to dismiss this action
for lack of prosecution. See Dkt. No. 78-1. Defendants argued that dismissal was appropriate
because on August 1, 2023, Plaintiff was released from DOCCS' custody and transferred to
Jessup Correctional Institution in Jessup, Maryland, where he is serving a twenty-three year
sentence for a second-degree rape conviction. See id. at 4. On August 16, 2024, the Court denied

Defendants' motion, finding that Plaintiff was still actively participating in this litigation and that
he could testify remotely at trial. See Dkt. No. 84.
These motions and prior decisions by the Court represent a mere fraction of the time that
has been wasted on this matter because of the Attorney General's failure to address the issue of
exhaustion of administrative remedies earlier in this litigation. If this were the first time that this
Court was forced to address the issue of exhaustion on an expedited basis with a trial date

16
looming, no further discussion would be necessary. This is an issue, however, that has arisen
time and again and has left the Court entirely flummoxed why this continues to happen.
In this case, the fact that exhaustion was not raised at the earliest possible moment is
particularly baffling. Following initial review, the only remaining claims in this action related to
the April 9, 2018 incident at Upstate Correctional Facility. However, as the present motion made
abundantly clear, Plaintiff filed NOT A SINGLE grievance while housed at that facility. The
next grievance that Plaintiff filed that was arguably related to this matter was filed 434 days after

April 9, 2018, while Plaintiff was housed at Mid-State Correctional Facility. Even if Plaintiff had
worded that grievance to make clear that he was attempting to grieve the April 9, 2018 incident
(which he did not), it should have been abundantly clear that the grievance was untimely and that
the time to seek an extension of time for such a grievance had long since expired. Only if
Plaintiff could plausibly demonstrate that administrative remedies were unavailable to him, would
this case survive a motion seeking dismissal for failure to exhaust. For reasons unknown, no such
motion was made until four-years after this case was commenced and not until the eve of trial.
This Court has on countless occasions granted the Attorney General's Office permission to
engage in limited discovery on the issue of exhaustion. Sometimes granting such limited

discovery will result in an early dismissal of a case, while other times the case will survive and an
adjudication on the merits will be necessary. While the Attorney General's Office is obviously
aware that this practice is available to it, it is also obvious that there is no clear directive
regarding when such limited discovery should be pursued. If there was such a directive (or one
that is communicated to the AAGs representing corrections officers in cases governed by the
PLRA), this Court would not be so regularly presented with PLRA exhaustion issues on the eve
of trial.

17
The Supreme Court has stated that the purpose of the PLRA was to reduce the quantity
and improve the quality of prisoner suits and, "to this purpose, Congress afforded corrections
officials time and opportunity to address complaints internally before allowing the initiation of a
federal case." Porter v. Nussle, 534 U.S. 516, 524-25 (2002). To further this purpose, the PLRA
also provides for early judicial screening of prisoner complaints and prohibits prisoners from
proceeding IFP if they have accumulated three strikes. While the courts are perfectly suited to
conduct initial reviews and determine whether a prisoner has accumulated three strikes without

assistance, administrative exhaustion is an affirmative defense that must be raised by the
defendant. The sanction of dismissal for failure to exhaust can only be realized if those who
represent prison officials in court are diligent in making sure that exhaustion has occurred.
Moreover, the benefits of dismissal for failure to exhaust are not realized when the issue is first
raised on the eve of trial.
Because this issue has continued unabated for many years, the Court is directing the
Attorney General's Office to provide a copy of this Memorandum-Decision and Order to all
attorneys who represent prison officials in Section 1983 matters in federal court. Upon
distribution of this Memorandum-Decision and Order, a supervisor from the Attorney General's

Office shall file a declaration in this matter certifying that this directive has been complied with.
In the future, the Court may reconsider whether to permit such motions on the eve of trial or,
alternatively, whether other sanctions should be considered, such as the reimbursement of costs
and expenses to assigned pro bono counsel.4

4 The Court is aware that there have been five different AAGs assigned to this case, and
that Mr. Matula filed his notice of appearance in this case on January 27, 2025, after all pre-trial
deadlines had expired and a trial date had already been set. See Dkt. No. 94. This issue should
have been addressed years ago, long before Mr. Matula was assigned this case for trial purposes.
(continued...)
18
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, the Court hereby
ORDERS that Defendants’ second motion for summary judgment (Dkt. No. 98) is
GRANTED; and the Court further
ORDERS that the Attorney General's Office shall distribute a copy of this Memorandum-
Decision and Order to all attorneys in its office who represent prison officials in Section 1983
matters in federal court; and the Court further
ORDERS that upon the distribution of this Memorandum-Decision and Order, a
supervisor from the Attorney General's Office shall file a declaration in this matter certifying that
this directive has been complied with; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants’ favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.”
IT ISSO ORDERED.
4 Oa
De Mak Lak Diigiks aL D
U.S. District Judge

4(.. continued)

° The Court expresses its gratitude to pro bono counsel for their work on this matter. Pro
bono trial counsel are hereby relieved from any further representation in this matter.
19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10825852. Public record. Not legal advice.