Bradshaw v. Piccolo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JAY BRADSHAW,

Plaintiff, DECISION AND ORDER

v.

6:20-CV-06106 EAW

PAUL PICCOLO, et al.,

Defendants.

INTRODUCTION

Pro se plaintiff Jay Bradshaw1 (“Plaintiff”) commenced this action pursuant to 42

U.S.C. § 1983 asserting claims that arose while he was incarcerated at Southport

Correctional Facility (“Southport”). (Dkt. 20). Presently before the Court is a motion for

summary judgment filed by defendants Clifton Adriance (“Defendant Adriance”),

Christopher Clark (“Defendant Clark”), Adam Dolaway (“Defendant Dolaway”), Farmer

(“Defendant Farmer”), Paul Furney (“Defendant Furney”), Paul Piccolo (“Defendant

Piccolo”), and James Taylor (“Defendant Taylor”) (collectively “Defendants”) (Dkt. 135)

and a motion to strike Plaintiff’s unauthorized sur-reply (Dkt. 142).

For the following reasons, Defendants’ motion for summary judgment is granted,

and the motion to strike is denied.

1 Plaintiff has commenced many other lawsuits in this Court. See Bradshaw v.

Annucci, et al., 6:21-cv-06604 EAW (W.D.N.Y. Sept. 27, 2021); Bradshaw v. Piccolo, et

al., 6:21-cv-06050 EAW (W.D.N.Y. Jan. 19, 2021); Bradshaw v. Annucci, et al., 6:20-cv-

06548 EAW (W.D.N.Y. July 28, 2020); Bradshaw v. Piccolo et al., 6:20-cv-06368 EAW

(W.D.N.Y. July 21, 2020); Bradshaw v. Annucci, et al., 6:20-cv-06083 EAW (W.D.N.Y.

Feb. 6, 2020).

BACKGROUND

I. Factual Background

The following facts are taken from Defendants’ Local Rule 56 Statement of Facts

(Dkt. 135-1), Plaintiff’s response thereto (Dkt. 139-2), Plaintiff’s second amended

complaint (Dkt. 20),2 and the declarations submitted by the parties (Dkt. 135-3; Dkt. 135-

4; Dkt. 135-5; Dkt. 135-6; Dkt. 135-7; Dkt. 135-8; Dkt. 135-9; Dkt. 135-10; Dkt. 135-11;

Dkt. 139-1; Dkt. 140-1). The Court has noted relevant factual disputes.

Plaintiff is an inmate in the custody of the New York State Department of

Corrections and Community Supervision (“DOCCS”) who was previously housed at

Southport. (Dkt. 135-1 at ¶ 1; Dkt. 139-2 at ¶ 1; see Dkt. 20 at ¶¶ 2-5). From November

4, 2013, to May 23, 2022, Plaintiff filed 110 grievances, the relevant ones the Court has

summarized below. (Dkt. 135-11 at 345-49; Dkt. 135-9 at 6-10).

2 Because Plaintiff’s second amended complaint is verified (see Dkt. 20 at 6), the

Court may rely on it for factual details. “A plaintiff’s verified complaint is to be treated as

an affidavit.” Zielinksi v. Annucci, No. 9:17-CV-1087 (GTS/CFH), 2020 WL 7074845, at

*7 (N.D.N.Y. Nov. 12, 2020) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)

(“A verified complaint is to be treated as an affidavit . . . and therefore will be considered

in determining whether material issues of fact exist. . . .”)); see also Brandon v. Kinter, 938

F.3d 21, 27 n.5 (2d Cir. 2019) (“Brandon’s Amended Complaint was sworn under penalty

of perjury. Therefore, his allegations in the complaint can be considered as evidence for

summary judgment purposes.”).

A. The Grievances

Each of the grievances described below was appealed to the Central Office Review

Committee (“CORC”) except for a letter addressed to the IGRC Office. (Dkt. 135-9 at 2,

6; Dkt. 135-11 at 345).

On or about October 25, 2019, Plaintiff filed a grievance regarding excessive force.

(Dkt. 135-11 at 353). Plaintiff alleged that three correction officers not named as

defendants herein pushed Plaintiff into his cell, threatened him, and placed him in a choke

hold. (Id.). On or about November 11, 2019, Plaintiff alleged excessive force against two

other non-defendant correction officers. (Id. at 372).

On or about November 29, 2019, Plaintiff filed a grievance concerning Defendant

Taylor threatening him and stating he will have Plaintiff “scream like a b**ch.” (Id. at

389). On or about December 8, 2019, Plaintiff again alleged that Defendant Taylor

threatened him, by stating that he is “going to continue this game” and taking Plaintiff’s

law library slip. (Id. at 390). Plaintiff alleged that Defendant Taylor was retaliating against

him for reporting previous assaults. (Id. at 389-90).

On or about December 16, 2019, Plaintiff filed a grievance that a non-defendant

correction officer pushed him in the back while he was standing in his cell and waiting for

medical. (Id. at 437). The officer then stated he will “tell medical you want to see them.”

(Id.). Plaintiff also alleged in this grievance that he “was recently assaulted on December

5, 2019 by the heavy-set yard officer who took me out of the cell for a cell search, and on

December 9, 2019 by the escort officer who escorted me to the Third Floor level three.”

(Id.).

There is also evidence in the record of a letter addressed to the IGRC Office dated

February 6, 2020, wherein Plaintiff alleges retaliation, threats and harassment, and

excessive force. (Dkt. 45 at 114-15). This letter tracks the allegations Plaintiff makes in

his complaint based on events from January 18, 2020 (described below), but the names in

the letter to the IGRC Office are redacted. (See id.).

B. Plaintiff’s Allegations and Testimony

On October 21, 2019, Plaintiff claims that he was assaulted by “yard escort officers

who removed him from [his] cell to conduct a search.” (Dkt. 20 at ¶ 6). Then, on

November 5, 2019, Plaintiff claims he was assaulted by another officer. (Id. at ¶ 7). On

November 28, 2019, Plaintiff claims that Defendant Taylor threatened him and urged

Plaintiff to enter the yard because Defendant Taylor believed other yard officers would

attack Plaintiff. (Id. at ¶ 8).

Plaintiff claims that on December 5, 2019, Defendant Clark, who was the yard escort

officer along with Defendant Furney, assaulted Plaintiff when Plaintiff was removed for a

cell search. (Id. at ¶ 9). Plaintiff stated in his deposition that Defendant Clark was the

“heavyset yard officer” Plaintiff referred to in his grievance dated December 16, 2019.

(See Dkt. 135-11 at 44-46). Plaintiff alleges that on December 8, 2019, Defendant Taylor

“threatened” Plaintiff by bringing up his November 28, 2019 grievance and stating that he

was “going to continue this game.” (Dkt. 20 at ¶ 10). Plaintiff concedes that Defendant

Taylor never used force against him. (See Dkt. 135-11 at 65).

Plaintiff alleges that he filed grievances related to each of these assaults and threats,

but Defendant Piccolo denied or ignored the grievances. (Dkt. 20 at ¶¶ 6-9).

Plaintiff alleges that on January 18, 2020, Defendant Clark and Defendant Furney

“mockingly” told Plaintiff he was “up for a search.” (Id. at ¶ 13). Plaintiff was tightly

handcuffed behind his back. (Id. at ¶ 14). Defendant Clark said to Plaintiff “Oh, you wrote

a grievance that I assaulted you.” (Id.). Defendant Clark then “pounced” on Plaintiff’s

head and pushed him onto his bed. (Id. at ¶ 15). According to Plaintiff, Defendant Clark

and Defendant Furney “repeatedly pounded on Plaintiff’s back for two to three minutes.”

(Id.).

Plaintiff was then escorted to the shower, placed in leg shackles, and hit in the head

by Defendant Adriance. (Id. at ¶ 16). Defendant Adriance raised Plaintiff’s arms in the

air, twisting and pulling, resulting in extreme pain for Plaintiff for 30 minutes. (Id.). As a

result of these assaults, Plaintiff suffered “an abrasion to his ear, severe back pain . . . ,

numbness, abrasions and cuts on his wrists, and a broken pinky finger.” (Id. at ¶ 18).

Following these assaults, Defendant Piccolo deprived Plaintiff of outdoor recreation

until March 9, 2020, and Plaintiff was denied visits on January 18 and 19, 2020. (Id. at

¶ 19).

On January 22, 2020, Defendant Dolaway told Plaintiff he will feel “worse pain.”

(Id. at ¶ 20). Plaintiff acknowledged that Defendant Dolaway never used force against

him. (Dkt. 135-11 at 59-60). Plaintiff also alleged that Defendant Farmer vowed to break

Plaintiff’s legs on January 30, 2020 (Dkt. 20 at ¶ 21), but Plaintiff acknowledged that

Defendant Farmer never used force against him. (Dkt. 135-11 at 68-69).

II. Procedural Background

Plaintiff originally filed his complaint in the United States District Court for the

Northern District of New York. (Dkt. 1). By Decision and Order filed February 18, 2020,

the case was transferred to this District. (Dkt. 6).

Following the transfer, this Court granted Plaintiff’s motion for leave to proceed in

forma pauperis. (Dkt. 19). Plaintiff then filed a second amended complaint on November

29, 2021. (Dkt. 20). The Court screened Plaintiff’s second amended complaint pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, and held that the following claims were

sufficient to survive initial review and proceed to service:

e Retaliation claims against Defendants Taylor, Clark, Furney, Farmer, and Adriance;

e Excessive force claims against Defendants Clark, Furney, and Adriance;

e Threats and harassment claims against Defendants Taylor, Clark, Farmer, and

Dolaway;

e A failure to protect claim based on the alleged assaults against Defendant Piccolo;

and

e A deliberate indifference claim to Plaintiff’s serious medical needs related only to

Plaintiff’s alleged numbness and back pain against Defendant Piccolo.

(Dkt. 21 at 8-9).

On May 20, 2024, Defendants filed the pending motion for summary judgment.

(Dkt. 135). Plaintiff filed his response papers on June 26, 2024. (Dkt. 139). Defendants

replied on July 9, 2024 (Dkt. 140) and Plaintiff filed a sur-reply shortly thereafter (Dkt.

141).

-6-

In response, Defendants filed a motion to strike Plaintiff’s sur-reply on July 29,

2024. (Dkt. 142). Plaintiff responded on August 19, 2024. (Dkt. 143).

DISCUSSION

I. Motion to Strike

“Because a decision on the motion to strike may affect [a party’s] ability to prevail

on summary judgment, it is appropriate to consider a motion to strike prior to a motion for

summary judgment.” Vista Food Exch., Inc. v. Comercial De Alimentos Sanchez S de R L

de C.V., 627 F. Supp. 3d 408, 415 (S.D.N.Y. 2022) (quoting Pugliese v. Verizon N.Y., Inc.,

No. 05-CV-4005 (KMK), 2008 WL 2882092, at *5 (S.D.N.Y. July 9, 2008)). Accordingly,

the Court will consider Defendants’ motion to strike before turning to the motion for

summary judgment.

Defendants seek to strike Plaintiff’s filing at Docket 141 as an unauthorized sur-

reply. (Dkt. 142). Plaintiff requests the Court consider his sur-reply as “it clearly set[s]

out how the grievance process was unavailable.” (Dkt. 143 at 1).

“The general principle is that supplemental filings require leave of the court.” Neary

v. Weichert, 489 F. Supp. 3d 55, 62 (E.D.N.Y. 2020). But “[d]istrict courts have discretion

to decide whether to strike or permit a litigant’s sur-reply.” Id.

This District’s Local Rules of Civil Procedure state that “[a]bsent permission of the

Judge hearing the motion, sur-reply papers are not permitted.” Loc. R. Civ. P. 7(a)(6).

Ultimately “whether to permit the filing of a sur-reply is entirely within the Court’s

discretion.” Marseet v. Rochester Inst. of Tech., No. 20-CV-7096FPG, 2022 WL 2718509,

at *1 (W.D.N.Y. July 13, 2022); see also Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73

(2d Cir. 2001) (“A district court has broad discretion to determine whether to overlook a

party’s failure to comply with local court rules.”), abrogated on other grounds by Gross v.

FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

Plaintiff has not complied with Local Rule of Civil Procedure 7(a)(6). He did not

obtain the Court’s permission prior to filing his sur-reply, nor did he offer a reason for his

failure to include the information contained in the sur-reply in his initial opposition papers.

Nonetheless, given Plaintiff’s pro se status, the Court exercises its discretion and declines

to strike the sur-reply from the docket. See, e.g., Dean v. Robinson, 656 F. Supp. 3d 400,

406 (W.D.N.Y. 2023). Instead, the Court has considered the sur-reply.

II. Motion for Summary Judgment

A. Legal Standard

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). A court should grant summary judgment if, after considering the evidence in the

light most favorable to the nonmoving party, it 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. Section 1983 Claims

“To succeed on a section 1983 claim, Plaintiff must prove two essential elements:

(1) defendants . . . acted under color of state law; and (2) as a result of their actions, Plaintiff

suffered a denial of his federal statutory or constitutional rights or privileges.” Sampson v.

City of Schenectady, 160 F. Supp. 2d 336, 342 (N.D.N.Y. 2001); see Annis v. Cnty. of

Westchester, 136 F.3d 239, 245 (2d Cir. 1998). “Section 1983 itself creates no substantive

rights; it provides only a procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Okla. City v.

Tuttle, 471 U.S. 808, 816 (1985)).

To establish liability against an official under § 1983, a plaintiff must show the

“personal involvement of defendants in alleged constitutional deprivations.” Farrell v.

Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d

Cir. 1994)). The theory of respondeat superior is not available in a § 1983 action.

Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). “Instead, a plaintiff

must . . . prove that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609,

618 (2d Cir. 2020) (internal quotation marks and citation omitted).

C. Exhaustion of Administrative Remedies

Defendants argue that they are entitled to summary judgment on Plaintiff’s claims

because Plaintiff failed to exhaust his administrative remedies. (Dkt. 135-12 at 3-11). In

response, Plaintiff argues that he attempted to exhaust his administrative remedies, but that

his grievances were not filed. (Dkt. 139-3 at 3).

The Prison Litigation Reform Act of 1995 (“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).

“[T]he 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).

“Exhaustion is mandatory—unexhausted claims may not be pursued in federal

court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). However, “[f]ailure to exhaust

administrative remedies is an affirmative defense . . . and when raised as a basis for

summary judgment, the defendant ‘bears the initial burden of establishing, by pointing to

legally sufficient sources such as statutes, regulations, or grievance procedures, that a

grievance process exists and applies to the underlying dispute.’” Deleon v. Ayers, No. 16-

CV-6848L, 2023 WL 171889, at *2 (W.D.N.Y. Jan. 12, 2023) (internal citation omitted)

(quoting Hubbs v. Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)).

To satisfy the PLRA’s exhaustion requirement, a plaintiff must demonstrate the

“proper exhaustion of administrative remedies.” 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).

In New York, proper exhaustion generally3 entails going through a three-step appeal

procedure set out in 7 N.Y.C.C.R. § 701.5. Garraway v. Smith, No. 12-CV-924S, 2020

WL 491328, at *4 (W.D.N.Y. Jan. 30, 2020). This section provides:

(1) the inmate must submit a written complaint to the Grievance Clerk within

21 calendar days of the alleged occurrence; the Grievance Clerk then submits

the complaint to the Inmate Grievance Resolution Committee (“IGRC”) for

investigation and review; (2) if the IGRC denies the grievance, the inmate

may appeal to the superintendent of the facility by filing an appeal with the

3 “DOCCS regulations except from the standard grievance procedure complaints of

‘harassment’” which allow for an expedited procedure but still ultimately involve an appeal

to CORC. Solano v. Aubin, 2023 WL 5200397, at *5 (N.D.N.Y. Aug. 14, 2023). (See Dkt.

135-9 at ¶ 7).

[Grievance Clerk]; (3) after the superintendent issues a decision, the inmate

may appeal to [CORC], which makes the final administrative determination.

Id. An inmate may only seek relief under § 1983 “[i]f all three levels of review are

exhausted.” Id.

“[I]nmates must provide enough information about the conduct of which they

complain to allow prison officials to take appropriate responsive measures.” Johnson v.

Testman, 380 F.3d 691, 697 (2d Cir. 2004). The grievance “should contain a concise,

specific description of the problem and the action requested and indicate what actions the

grievant has taken to resolve the complaint.” N.Y. Comp. Codes R. & Regs. tit. 7,

§ 701.5(a)(2). “This requirement, the Second Circuit has held, is analogous to the

requirements of notice pleading.” Solano v. Aubin, No. 9:20-CV-1378 (BKS/ML), 2023

WL 5200397, at *5 (N.D.N.Y. Aug. 14, 2023) (citing Brownell v. Krom, 446 F.3d 305, 310

(2d Cir. 2006)). But this does not mean that the grievant has to “lay out the facts, articulate

legal theories, or demand particular relief[;] [a]ll the grievance need do is object intelligibly

to some asserted shortcoming.” Id. (quoting Johnson, 380 F.3d at 697). Moreover, “a

grievance need not identify parties by name, and a grievant may substantively exhaust

administrative remedies even without explicitly naming each claim later brought in court

when the claim is closely related to allegations contained in the grievance.” Id.

In support of their argument that Plaintiff failed to exhaust his administrative

remedies, Defendants focus on Plaintiff’s failure to exhaust before the CORC—the third

step of the grievance process. Defendants attach Plaintiff’s grievances that have been

appealed to CORC. (See Dkt. 135-9 at 6-85; Dkt. 135-11 at 345-438). The grievances are

accompanied by sworn certifications establishing that the records were kept in the regular

course of business. (Dkt. 135-9 at 6; Dkt. 135-11 at 345, 426).

1. The Grievance Process was Available

Plaintiff argues the grievance process was “unavailable inasmuch as it does not

direct how to appeal an unfiled grievance, and prison administrator[s] thwart my efforts to

pursue the grievances and appeals through machination and misrepresentation.” (Dkt. 139-

3 at 3). Plaintiff states that “[b]ecause the grievances were not filed, [P]laintiff submitted

letters to Defendant Piccolo, Director Mallozzi and the Former Acting Commissioner

regarding Southport Grievance Supervisor’s refusal to file the grievance.” (Id.).

Additionally, Plaintiff suggests he commenced an Article 78 proceeding “to compel the

Southport grievance supervisors to accept and file my grievance[s] dated February 6 and

February 24, 2020.” (Id. at 2). For the reasons explained below, the Court concludes that

there is no disputed issue of material fact with respect to whether the grievance process

was available to Plaintiff—it plainly was available and, indeed, Plaintiff made repeated use

of it.

An exception from the exhaustion requirement exists only if the grievance process

is unavailable to a prisoner because

(1) it operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates[;] (2) it is so opaque that

it becomes, practically speaking, incapable of use, meaning that some

mechanism exists to provide relief, but no ordinary prisoner can discern or

navigate it; or (3) prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or

intimidation.

Smith v. Papoosha, No. 3:19CV206 (MPS), 2022 WL 35802, at *6 (D. Conn. Jan. 4, 2022)

(internal quotations omitted) (citing Ross v. Blake, 578 U.S. 632, 643-44 (2016)); see also

Williams v. Correction Officer Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016).

Plaintiff’s contention that the grievance process was unavailable because the

grievance process does not direct how to appeal a grievance—in other words, that the

grievance process is so opaque it is incapable of use—is not supported by the record. The

undisputed facts establish that Plaintiff appealed numerous grievances to CORC—

demonstrating that he was aware of how to appeal, and did appeal, grievances.

Specifically, Plaintiff appealed five grievances to CORC from October 28, 2019, to

December 26, 2019. (See Dkt. 135-11 at 350, 369, 386, 397, 416). Further, Plaintiff

appealed a grievance on January 21, 2020. (Id. at 421). This is significant as Plaintiff’s

claims range from October 21, 2019, to January 30, 2020, meaning Plaintiff was aware of

how to file grievances and successfully appealed grievances to CORC during the dates in

question.

Similarly, with respect to Plaintiff’s contention that prison administrators thwarted

his efforts to file grievances, that argument is also not supported by the record. As

discussed above, Plaintiff appealed numerous grievances to CORC. Included among these

grievances were allegations like those raised by Plaintiff in connection with the instant

complaint, including multiple allegations of assault by corrections officers—which

supports the conclusion that the grievance process was not thwarted by prison

administrators. See Kasiem v. Switz, 756 F. Supp. 2d 570, 577 (S.D.N.Y. 2010) (noting

that “[w]hen . . . the record reflects that [plaintiff] continued to file grievance after

grievance during the [ ] period of alleged unavailability, it is apparent that a reasonable

person of ordinary firmness in [plaintiff’s] position, as well as [plaintiff] himself, would

not have thought that administrative remedies were unavailable. . . .” (quotations and

citation omitted)).

Plaintiff points to certain evidence he has submitted, namely that he wrote letters

concerning the grievance procedures and filed an Article 78 proceeding, which he contends

supports his claim that the grievance procedures were unavailable to him. The Court is not

persuaded by this evidence. To the extent Plaintiff claims he wrote letters to Defendant

Piccolo, Director Mallozzi, and the Former Acting Commissioner regarding the failure of

staff to file grievances, and that these letters should satisfy the exhaustion requirement, the

law is well-settled that “complaint letters to the DOCS Commissioner or the facility

Superintendent do not satisfy the PLRA’s exhaustion requirements.” Muhammad v. Pico,

No. 02 CIV.1052 AJP, 2003 WL 21792158, at *8 (S.D.N.Y. Aug. 5, 2003). Further, both

the letters Plaintiff wrote, and the Article 78 proceeding, concern grievances written on

February 6, 2020, and February 24, 2020. (Dkt. 139-3 at 2-3). Plaintiff commenced this

action on February 13, 2020. (Dkt. 1). Accordingly, even if the Court concluded that these

letters constituted grievances, Plaintiff would not have had time prior to filing this action

to exhaust his administrative remedies. Torres v. Anderson, 674 F. Supp. 2d 394, 397

(E.D.N.Y. 2009) (“[F]ailure to exhaust prior to the commencement of a lawsuit requires

dismissal of the prisoner’s claim.”).

For those reasons, the Court concludes that the grievance process was available to

Plaintiff. Plaintiff filed numerous grievances and successfully appealed them to CORC

during the time period relevant to the complaint. Further, there is no evidence that prison

administrators attempted to thwart Plaintiff’s efforts, nor are Plaintiff’s arguments that he

filed letters and commenced an Article 78 proceeding persuasive. The Court now turns to

whether Plaintiff successfully exhausted his administrative remedies. As discussed below,

the undisputed facts establish that he did not with respect to all claims except the retaliation

and threats and harassment claims against Defendant Taylor, and the excessive force claim

against Defendant Clark.

2. Retaliation Claims Against Defendants Clark, Furney, Farmer, and

Adriance

Plaintiff claims that Defendants Clark, Furney, Farmer, and Adriance retaliated

against him. (Dkt. 20 at 5). Defendants argue that “Plaintiff failed to file a grievance

against Clark, Furney, Adriance, and Farmer regarding retaliation.” (Dkt. 135-12 at 10).

Plaintiff responds by citing to alleged grievances filed on February 6, 2020, or later, as well

as a grievance designated as “SPT-068264-19.” (Dkt. 139-3 at 2-3; see also Dkt. 141).

The evidence before the Court demonstrates that Plaintiff failed to submit a

grievance regarding retaliation by Defendants Clark, Furney, Farmer, and Adriance. In

Plaintiff’s response, he claims that he exhausted grievance “SPT-068264-19.” (Dkt. 139-

3 at 3). But there is no evidence in the record that Plaintiff appealed this grievance to

CORC successfully or that this grievance was properly filed. Grievance SPT-068264-19

is attached as an exhibit to Defendants’ motion for summary judgment. (Dkt. 135-11 at

437-38). This grievance addresses complaints related to non-defendant officers. (Id.).

This grievance was not appealed to CORC. (See id. at 426-438). Further, upon review of

the grievance log, there is no grievance titled SPT-068264-19. (See Dkt. 135-9 at 7-10).

Given that this log contains grievances appealed to CORC dated November 4, 2013, to

May 23, 2022, this supports the conclusion that Plaintiff did not properly file this grievance.

(See id.). Thus, Plaintiff cannot rely on the alleged grievance designated as SPT-068264-

19 to show exhaustion of these claims.

In terms of Plaintiff’s alleged grievance dated February 6, 2020, there is a letter to

the IGRC Office which was filed by Defendants in a Rule 26 disclosure. (Dkt. 45 at 114-

15). This letter is not stamped with a grievance number and bears no indication that it was

properly filed by Plaintiff. (Id.). The names in the letter are also redacted, so the Court is

unclear as to whether Plaintiff’s letter to the IGRC Office is about Defendants Clark,

Furney, Farmer, and Adriance. The content of the letter does appear related to the alleged

events of January 18, 2020.

But even if the Court determined that Plaintiff’s letter to the IGRC Office dated

February 6, 2020, constituted a successfully filed grievance, Plaintiff filed the instant action

on February 13, 2020 (Dkt. 1), and therefore Plaintiff would not have had time to appeal

his grievance within the seven days prior to filing this lawsuit. See, e.g., Johnson v.

Fraizer, No. 16-CV-6096 CJS, 2016 WL 7012961, at *4 (W.D.N.Y. Dec. 1, 2016)

(“[S]ince Plaintiff filed this action a mere three weeks after the events at issue, it is probable

that he simply skipped the grievance/appeal stage and came directly to Federal Court.”);

Lopez v. Cipolini, 136 F. Supp. 3d 570, 584 (S.D.N.Y. 2015) (finding that the plaintiff

failed to exhaust her administrative remedies because “at the time Plaintiff filed her

Complaint—ten days after the alleged events occurred and she filed her grievance—she

had not yet filed an appeal to the CORC”).

Plaintiff argues that he only needed to exhaust his administrative remedies prior to

November 29, 2021, when he filed his second amended complaint. (Dkt. 139-3 at 3). But

a plaintiff must exhaust administrative remedies prior to commencing litigation. Murray

v. Palmer, No. 903-CV-1010 GTS/GHL, 2010 WL 1235591, at *3 (N.D.N.Y. Mar. 31,

2010) (“Generally, if a prisoner has failed to follow each of the required three steps of the

above-described grievance procedure prior to commencing litigation, he has failed to

exhaust his administrative remedies.” (citing Ruggiero v. Cnty. of Orange, 467 F.3d 170,

175 (2d Cir. 2006)). “Subsequent exhaustion after suit is filed . . . is insufficient.”

Gizewski v. N.Y. State Dep’t of Corr. & Cmty. Supervision, 692 F. App’x 668, 670 n.3 (2d

Cir. 2017) (quoting Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001), abrogated on other

grounds by Porter v. Nussle, 534 U.S. 516 (2002)); see Burgess v. Morse, 259 F. Supp. 2d

240, 247 (W.D.N.Y. 2003) (“The law is clear that an inmate must exhaust his

administrative remedies prior to bringing a § 1983 claim in federal court.”). “[T]he filing

of an amended complaint after an unexhausted claim is brought in federal court does not

cure the infirmity.” Malouf v. Turner, 814 F. Supp. 2d 454, 463 (D.N.J. 2011) (citing

Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002)).

Plaintiff also argues that “Seguin omitted this grievance from the printout of

grievances and appeals [] as a means of manipulation to argue Plaintiff failed to exhaust

administrative remedies.” (Dkt. 139-3 at 3). Plaintiff has provided no evidence of

manipulation or obstruction. Plaintiff merely offers his own conclusory statements, which

are undermined by other evidence in the record. Rachel Seguin, Director of the

Incarcerated Grievance Program for DOCCS, in her declaration, stated under penalty of

perjury that she included “[a] copy of the printout of grievances and appeals filed by

[Plaintiff] as of July 25, 2022.” (Dkt. 135-9 at ¶ 10). Further, Plaintiff himself states that

“the CORC issued decision in early 2021,” well after Plaintiff initiated this lawsuit. (Dkt.

139-3 at 3). Even if Plaintiff successfully appealed this grievance to CORC, his appeal

was well after the time he commenced this lawsuit.

Therefore, there is no legitimate dispute that Plaintiff failed to exhaust his

administrative remedies as to his retaliation claims against Defendants Clark, Furney,

Farmer, and Adriance.

3. Threats and Harassment Claims Against Defendants Clark, Farmer,

and Dolaway

Plaintiff argues that Defendants Clark, Farmer, and Dolaway “threat[ened] and

harass[ed]” him. (Dkt. 20 at 5). Defendants claim that Plaintiff “failed to exhaust

administrative remedies regarding alleged threats and harassment claims against Clark,

Farmer and Dolaway.” (Dkt. 135-12 at 8). In response to Defendants’ argument, Plaintiff

contends the grievance supervisors failed to file his grievance. (Dkt. 139-3 at 2).

Plaintiff appears to again rely on the February 6, 2020 letter to support his claimed

exhaustion of the threats and harassment claims against Defendants Clark, Farmer, and

Dolaway. (See Dkt. 45 at 114-115). But for the same reasons provided above—namely,

that the record before the Court demonstrates that Plaintiff did not file a grievance as to

this claim; even if he did, he did not timely appeal it before filing his case in federal court;

and he otherwise failed to demonstrate any evidence of manipulation of the grievance by

prison administrators—the Court determines that Plaintiff failed to exhaust his

administrative remedies with regard to the threats and harassment claims against

Defendants Clark, Farmer, and Dolaway.

4. Excessive Force Claims Against Defendants Clark, Furney, and

Adriance

Plaintiff contends that Defendants Clark, Furney, and Adriance used excessive force

against him. (Dkt. 20 at 5). Defendants argue that “Plaintiff failed to file grievances on

any of the incidents” related to excessive force by Defendants Clark, Furney, and Adriance.

(Dkt. 135-12 at 4). Plaintiff contends the grievance supervisors failed to file his grievance

and, as to Defendant Clark, Plaintiff filed a grievance that was appealed to CORC alleging

that a heavy-set officer assaulted him. (Dkt. 139-3 at 1-2).

Plaintiff again relies on the February 6, 2020, letter in support of his claimed

exhaustion of the excessive force claims against Defendants Furney and Adriance. For the

same reasons discussed above, the Court finds that Plaintiff failed to exhaust his

administrative remedies as to the excessive force claims against Defendants Furney and

Adriance.

As to Defendant Clark, Plaintiff filed a grievance on December 16, 2019, that he

“was recently assaulted on December 5, 2019 by the heavy-set yard officer who took me

out of the cell for a cell search.” (Dkt. 135-11 at 437). Plaintiff alleges that the heavy-set

yard officer is Defendant Clark. (Dkt. 141 at 2). Here, Plaintiff has provided enough

information to alert prison officials to his claims. For example, Plaintiff specifies both the

size of the officer and that the officer was the one to remove him from his cell for a cell

search. See Matthews v. N.Y. State Dep’t of Corr., No. 9:17-CV-503 (TJM/ML), 2022 WL

823851, at *6 (N.D.N.Y. Mar. 18, 2022) (finding the plaintiff exhausted his administrative

remedies when he “provide[d] the specific date, location, and nature of the conduct

complained of”); cf. Wright v. Potter, No. 9:14-CV-01041 (DNH/TWD), 2016 WL

5219997, at *5 (N.D.N.Y. June 28, 2016), report and recommendation adopted, No. 9:14-

CV-1041 (DNH/TWD), 2016 WL 5173283 (N.D.N.Y. Sept. 21, 2016) (noting that “failure

to specifically describe any problem in his grievance concerning medical treatment after

the incident did not give the facility enough information to investigate allegations against

Defendant”). Thus, summary judgment is not warranted in favor of Defendant Clark on

the excessive force claim based on failure to exhaust administrative remedies.

5. Failure to Protect Claim and Deliberate Indifference Claim against

Defendant Piccolo

Plaintiff argues that Defendant Piccolo failed to protect him through a “lack of

medical care relating to the physical examination to determine the cause of his symptoms.”

(Dkt. 20 at 5). Defendants argue that “there were no grievances filed particularly against

Piccolo or in general regarding [Piccolo’s actions].” (Dkt. 135-12 at 8).

The Court has reviewed the record before it, including the aforementioned list of

grievances, and finds that Defendants have demonstrated as a matter of law that Plaintiff

failed to exhaust his administrative remedies with respect to his claims against Defendant

Piccolo. None of Plaintiff’s grievances appealed to CORC name Defendant Piccolo. (See

Dkt. 135-9 at 6-85; Dkt. 135-11 at 345-438). Further, none of Plaintiff’s grievances

insinuate failure to protect or deliberate indifference by Defendant Piccolo. In other words,

Plaintiff’s grievances do not put Defendants on notice that Plaintiff is asserting claims

against Defendant Piccolo. See Cisco v. Jones, No. 9:17-CV-0347 (LEK/DJS), 2020 WL

1180779, at *4 (N.D.N.Y. Mar. 12, 2020) (noting that “to properly exhaust administrative

remedies, a grievance must generally put a defendant on notice of the basis for the

plaintiff’s claims”). Defendants’ request for summary judgment as to the claims against

Defendant Piccolo is granted on the basis that Plaintiff failed to exhaust his administrative

remedies.

6. Retaliation Claim Against Defendant Taylor

Plaintiff alleges that Defendant Taylor retaliated against him. (Dkt. 20 at 5).

Defendants argue the retaliation claim against Defendant Taylor should be dismissed for

failure to exhaust administrative remedies. (Dkt. 135-12 at 6-7). The Court denies

Defendants’ request for summary judgment on this basis.

Plaintiff filed a grievance complaining that Defendant Taylor was “retaliat[ing]”

against him for reporting previous assaults. (Dkt. 135-11 at 389-90). Specifically, in

grievances dated November 29, 2019, and December 8, 2019, Plaintiff alleges that

Defendant Taylor refused to place his mail in a mailbox, refused to return the mail to him,

then stated he would make Plaintiff “scream like a b**ch.” (Id.). Plaintiff then argues that

Defendant Taylor appeared at his cell and mentioned the grievance, stating he was “going

to continue this game.” (Id. at 390). Even though Defendants contend that the dates of

Plaintiff’s complaint and grievance do not align by one day (Dkt. 135-12 at 6-7),

Defendants have failed to demonstrate that this information was inadequate to allow prison

officials to understand the issue and take appropriate remedial measures.

7. Threats and Harassment Claim Against Defendant Taylor

Plaintiff claims that Defendant Taylor engaged in threatening and harassing

behavior. (Dkt. 20 at ¶ 10). Defendants argue that Plaintiff failed to exhaust his

administrative remedies because “Plaintiff failed to file a grievance [stating that] this

specific allegation occurred on December 8, 2019.” (Dkt. 135-12 at 7). The Court

disagrees.

In a grievance appealed to CORC, Plaintiff noted that Taylor came to his cell and

threatened and harassed him by stating he would make Plaintiff “scream like a b**ch” and

was “going to continue this game.” (Dkt. 135-11 at 389-90). In other words, Plaintiff’s

grievance specifies the identity of Defendant Taylor, as well as the specific conduct at issue

and what he specifically said to Plaintiff. Given this information, the Court finds that the

lack of an exact date as to when this conduct allegedly occurred does not render the

grievance unexhausted. Defendants have failed to show how the lack of any specific date

in the grievance failed to put them on notice.

For all these reasons, Defendants’ request for summary judgment based on failure

to exhaust is granted as to: (1) the retaliation claims against Defendants Clark, Furney,

Farmer, and Adriance; (2) the threats and harassment claims against Defendants Clark,

Farmer, and Dolaway; (3) the excessive force claims against Defendants Furney and

Adriance; and (4) the failure to protect and deliberate indifference claims against

Defendant Piccolo. However, Defendants’ request for summary judgment based on failure

to exhaust is denied as to: (1) the excessive force claim against Defendant Clark; (2) the

retaliation claim against Defendant Taylor; and (3) the threats and harassment claim against

Defendant Taylor.

D. The Merits

1. The Excessive Force Claim Against Defendant Clark

The Court now turns to Defendants’ arguments regarding the merits of Plaintiff’s

remaining claims. Defendants state that summary judgment should be granted as to the

excessive force claim against Defendant Clark.

In order for an Eighth Amendment excessive force claim to survive a motion for

summary judgment, the evidence, viewed in the light most favorable to the non-moving

party, must go “beyond a mere dispute over the reasonableness of a particular use of force

or the existence of arguably superior alternatives,” and instead “support a reliable inference

of wantonness in the infliction of pain. . . .” Whitley v. Albers, 475 U.S. 312, 322 (1986).

“‘[S]ome degree of injury is ordinarily required to state a claim’ of excessive use of force

in violation of the Eighth Amendment.” Taylor v. N.Y. Dep’t of Corr., No. 10 CIV. 3819

(JPO), 2012 WL 2469856, at *4 (S.D.N.Y. June 27, 2012) (quoting United States v. Walsh,

194 F.3d 37, 50 (2d Cir. 1999)). Accordingly, “a de minimis use of force will rarely suffice

to state a constitutional claim.” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).

Indeed, “[t]he extent of injury suffered by an inmate is one factor that may suggest ‘whether

the use of force could plausibly have been thought necessary’ in a particular situation.”

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 7

(1992)).

However, “an inmate ‘need not prove “significant injury” to make out an excessive

force claim.’” Banks v. Cnty. of Westchester, 168 F. Supp. 3d 682, 688 (S.D.N.Y. 2016)

(quoting Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir. 1999)). “[T]he core judicial inquiry

is that set out in Whitley: whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7.

Factors to consider in determining whether prison officials unnecessarily and wantonly

inflicted pain include: (1) the extent of the injury suffered; (2) the need for the application

of force; (3) the relationship between the need and the amount of force used; (4) the threat

reasonably perceived by the responsible officials; and (5) any efforts made to temper the

severity of a forceful response. Romano, 998 F.2d at 105 (citing Hudson, 503 U.S. at 7).

Defendants argue that Plaintiff’s excessive force claim against Defendant Clark

“should be dismissed for lack of personal involvement.” (Dkt. 135-12 at 12). Specifically,

Defendants point to Plaintiff’s grievance, which does not identify the name of the officer.

(Id.). Defendants also state that Plaintiff “testified that as a result of alleged assault on

December 5, 2019, he did not sustain any injuries.” (Id.).

In his complaint, Plaintiff alleges that “[o]n December 5, 2019, plaintiff was

assaulted by defendant Clark, who was the yard escort officer along with defendant Furney,

when plaintiff was taken out the cell for a cell search.” (Dkt. 20 at ¶ 9). Plaintiff states in

his grievance that he was assaulted by “the heavy-set yard officer who took me out of the

cell for a cell search.” (Dkt. 135-11 at 437). In his response to Defendants’ motion for

summary judgment, Plaintiff again asserts that “Clark assaulted plaintiff by pushing and

pulling [him] backward out of the cell when tak[ing him] out for a cell search.” (Dkt. 139-

3 at 1). Additionally, Plaintiff states that the “‘heavy set’ officer who took me out the cell

for a search” is Defendant Clark. (Id.). At his deposition, Plaintiff stated that Defendant

Clark partially entered his cell and pushed him and “yanked” him. (Dkt. 135-11 at 84-86).

Plaintiff alleges that “Clark pat frisk me once I step out of the cell.” (Id. at 87). Plaintiff

testified that he did not suffer injuries because of this incident. (Id. at 88).

Defendant Clark denies being involved in any cell search of Plaintiff on the date in

question. (Dkt. 135-4 at ¶¶ 3-4). While it seems unlikely that a jury would conclude that

Defendant Clark was personally involved—based on the evidence that he was not even

working in the area on the date in question—on this record, the Court concludes that

Plaintiff’s claims to the contrary present an issue of fact.

Nonetheless, Plaintiff’s excessive force claim fails because the undisputed facts

establish that any use of force was de minimis. Specifically, Plaintiff alleges that he was

pushed, yanked, and pulled backwards out of the cell when removed for a cell search. But

Plaintiff testified that he did not suffer injuries and nothing in Plaintiff’s recitations of the

events indicates that Defendant Clark’s use of force was excessive. See Kornegay v. New

York, 677 F. Supp. 2d 653, 660 (W.D.N.Y. 2010) (finding that “the force used against

plaintiff was no more than de minimis” when the plaintiff fell to the ground after the

defendant shoved him); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 471 (S.D.N.Y. 1998)

(finding that during a pat frisk, “although kicking an inmate’s ankles and feet cannot be

condoned, this use of force is de minimis and insufficient to rise to the level of a

constitutional violation”); Candelaria v. Coughlin, 787 F. Supp. 368, 374 (S.D.N.Y. 1992),

aff’d, 979 F.2d 845 (2d Cir. 1992) (holding that there was no excessive force where the

plaintiff did not allege repeated grabbing of the throat or any resulting physical injury).

Because no reasonable jury could conclude that Plaintiff’s Eighth Amendment rights were

violated by Defendant Clark, he is entitled to summary judgment on this claim.

2. The Retaliation Claim Against Taylor

Defendants argue that they are entitled to summary judgment on Plaintiff’s

retaliation claim against Defendant Taylor. (Dkt. 135-12 at 14-16).

It is well settled that prison officials may not retaliate against prisoners for

exercising their constitutional rights. See generally Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274, 283-84 (1977). To make out a § 1983 retaliation claim, “a prisoner

must show that ‘(1) that the speech or conduct at issue was protected, (2) that the defendant

took adverse action against the plaintiff, and (3) that there was a causal connection between

the protected speech and the adverse action.’” Espinal, 558 F.3d at 128 (quoting Gill v.

Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)).

“[T]he filing of prison grievances is a constitutionally protected activity[.]” Davis

v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003). But “[o]nly retaliatory conduct that would

deter a similarly situated individual of ordinary firmness from exercising his or her

constitutional rights constitutes an adverse action for a claim of retaliation.” Id. at 353

(citation omitted). “Insulting or disrespectful comments directed at an inmate generally do

not rise to this level.” Id.

Defendants contend that “the alleged acts of retaliation were no more than de

minimis and would not have deterred an inmate of ordinary firmness.” (Dkt. 135-12 at

16). Defendants point to Plaintiff’s complaint, which alleges that “Taylor appeared at

Plaintiff’s cell and spoke about Plaintiff’s grievance dated November 29, 2019, and said

that ‘I am going to continue this game’ and left.” (Id. at 15-16). Defendants also point to

the fact that Plaintiff testified that Defendant Taylor did not use force against Plaintiff. (Id.

at 16).

In his complaint, Plaintiff alleges that Defendant Taylor, in retaliation for Plaintiff’s

filing of a grievance on November 28, 2019, against Defendant Taylor for telling Plaintiff

“I will have you scream like a bitch,” retaliated against Plaintiff by stating that he would

“continue this game.” (Dkt. 20 at ¶¶ 8, 10). In his testimony, Plaintiff states that he

suffered “no physical injuries” because of Defendant Taylor. (Dkt. 135-11 at 90). Further,

Plaintiff testified that Defendant Taylor would come to “harass me and make comments

about me and things like that.” (Id. at 78-79). But Plaintiff, in his complaint, testimony,

response, and sur-reply, does not allege that his speech was chilled. In fact, the evidence

suggests that Plaintiff continued to file grievances, including the filing of a grievance

against Defendant Taylor for his statement that he would “continue this game.” See

Pledger v. Hudson, No. 99 CIV.2167LTSTHK, 2005 WL 736228, at *4 (S.D.N.Y. Mar.

31, 2005) (“Second Circuit decisions can be read to indicate that a showing of actual

chilling of First Amendment-protected conduct is both necessary and, combined with a

showing of motivation of a governmental official to punish exercise of the protected

interest, sufficient, to make out a retaliation claim.”). Plaintiff has pointed to no evidence

that disputes Defendants’ assertions that the alleged retaliation did not rise to the level of a

constitutional violation. Plaintiff merely points to insulting or disrespectful comments by

Defendant Taylor, but on the record before the Court, no rational jury could find in

Plaintiff’s favor on his retaliation claim against Defendant Taylor. Thus, Defendants are

entitled to summary judgment on this claim.

3. The Threats and Harassment Claim Against Defendant Taylor

Defendants argue that they are entitled to summary judgment on Plaintiff’s threats

and harassment claim against Defendant Taylor because “Plaintiff fails to state a claim

upon which relief may be granted.” (Dkt. 135-12 at 13).

A claim of threats and harassment alone, without allegations of accompanying

injury or use of force, is insufficient to state an Eighth Amendment claim. See Purcell v.

Coughlin, 790 F.2d 263, 265 (2d Cir. 1996) (per curiam) (“The claim that a prison guard

called [plaintiff] names . . . did not allege any appreciable injury and was properly

dismissed.”); Aziz Zarif Shabazz, 994 F. Supp. at 474 (“[V]erbal harassment or profanity

alone, unaccompanied by any injury no matter how inappropriate, unprofessional, or

reprehensible it might seem does not constitute the violation of any federally protected

right and therefore is not actionable under . . . § 1983.” (internal quotations and citation

omitted)).

Defendants argue that Plaintiff does not allege any injury or use of force. (Dkt. 135-

12 at 13). Defendants point to Plaintiff’s “claims that on November 28, 2019, Defendant

Taylor threatened Plaintiff.” (Id.).

In his complaint, Plaintiff states only that Defendant Taylor threatened him twice,

stating that “I will have you scream like a bitch” and that he would “continue this game.”

(Dkt. 20 at ¶¶ 8, 10). Plaintiff never alleges in his grievances that Defendant Taylor used

force or caused injury, nor does he file a grievance suggesting that Defendant Taylor used

force or caused injury. (See Dkt. 135-11 at 389-90). Further, Plaintiff testified that he had

“no physical injuries” from his interactions with Defendant Taylor, just the “mental effect

of him putting me in danger.” (/d. at 90); see Aniades v. N.Y. State Div. of Parole, No. 21

CIV. 5975 (CM), 2023 WL 4421877, at *8 (S.D.N.Y. July 10, 2023) (“Plaintiffs fear that

he might be assaulted, without more, is ‘not an objectively serious enough injury to support

a claim for damages [under the Eighth Amendment].’” (quoting Bolton v. Goord, 992 F.

Supp. 604, 627 (S.D.N.Y. 1998))). Plaintiff does not claim Defendant Taylor caused him

injury in either his response to Defendants’ motion for summary judgment or sur-reply. In

fact, Plaintiff does not respond to Defendants’ argument that Plaintiff does not allege any

injury or use of force. (See Dkt. 139; Dkt. 141). For these reasons, the motion for summary

judgment as to the threats and harassment claim against Defendant Taylor is granted.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 135) is

granted, and their motion to strike (Dkt. 142) is denied. Any of the claims dismissed for

failure to exhaust are dismissed without prejudice. The Clerk of Court is directed to enter

judgment in favor of Defendants and to close this ca

SO ORDERED. (J

l ag IELN\ Lp

ELIZABETH J WOLROBH

ieFItidge

United States District Court

Dated: March 24, 2025

Rochester, New York

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