The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAIMON ELZEY,
DECISION AND ORDER
Plaintiff,
V. 6:24-CV-06319 EAW
MONROE COUNTY, MONROE COUNTY
SHERIFF, TODD BAXTER, MONROE
COUNTY SHERIFF MEMBER DOES I-
20,
Defendants.
INTRODUCTION
Plaintiff Daimon Elzey (“Plaintiff”) filed this action asserting claims under 42
U.S.C. § 1983 and state law. (Dkt. 1). Pending before the Court is a motion to dismiss or,
in the alternative, for summary judgment filed by defendants Todd Baxter, Monroe County,
and Monroe County Sheriff (collectively, “Defendants”).! (Dkt. 18). For the reasons
below, summary judgment is granted dismissing Plaintiffs § 1983 claims for failure to
exhaust administrative remedies. The Court declines to exercise supplemental jurisdiction
over the remaining state-law claims, and thus to the extent Defendants seek dismissal of
those claims, the motion is denied as moot.
It is unclear whether Defendants are also moving to dismiss the claims as asserted
against Monroe County Sheriff Member Does 1-20. But what is clear is that those
defendants have never been served and the time to effectuate service has long since expired.
Moreover, the failure to exhaust defense is equally applicable to these defendants.
Accordingly, the Court also dismisses the claims against the Monroe County Sheriff
Member Does 1-20.
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BACKGROUND
Plaintiff commenced this action through counsel by the filing of a complaint on May
17, 2024. (Dkt. 1). In that complaint, he alleges that on or about February 22, 2023, while
housed at the Monroe County Jail, he was assaulted by other inmates and sustained serious
injuries, including a broken jaw.2 (Id. at ¶¶ 14-15). Plaintiff alleges that Defendants failed
to intervene to prevent the assault, despite their knowledge and notice of the risk to
Plaintiff, and that they were deliberately indifferent to his medical care. (Id. at ¶¶ 14, 16).
Plaintiff asserts claims under § 1983 in the first through fourth causes of action, including
claims under Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id. at ¶¶ 24-
64). Plaintiff also asserts state-law claims for negligence (fifth cause of action),
“respondeat superior”3 (sixth cause of action), and assault (seventh cause of action). (Id.
at ¶¶ 65-79).
Although initially represented by counsel, Plaintiff is now proceeding pro se. (See
Dkt. 13; Dkt. 15). Defendants filed the pending motion on October 8, 2024 (Dkt. 18), and
despite the issuance of a scheduling order expressly advising Plaintiff of the need to
respond and the ramifications of failing to do so (Dkt. 19), he never responded. In fact,
Plaintiff has taken no action here since becoming pro se.
2 Defendants have presented evidence that Plaintiff suffered a broken jaw during an
accident at a basketball game on March 14, 2023. (Dkt. 18-7 at 2; Dkt. 18-8 at 2; Dkt.18-
9 at ¶¶ 4-6). The Court need not and does not resolve this discrepancy on this motion.
3 Plaintiff confusingly asserts this claim against the “City of New York.” (Dkt. 1 at
13).
DISCUSSION
I. The Federal Claims—Defendants’ Motion for Summary Judgment
Defendants have sought summary judgment on the “narrow issue of exhaustion.”4
(Dkt. 18-16 at 14). Defendants contend that because Plaintiff failed to exhaust
administrative remedies, he may not pursue any of the federal claims asserted under § 1983.
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the Court finds that no rational jury could
find for 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
4 Defendants ask the Court to convert their motion to one for summary judgment
(Dkt. 18-16 at 15), but there is no need—Defendants expressly moved for summary
judgment and complied with the various procedural requirements for seeking the same.
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)). 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).
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).
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). Thus, “[t]he exhaustion
inquiry . . . requires that [the court] look at the state prison procedures and the prisoner’s
grievance to determine whether the prisoner has complied with those procedures.” Espinal
v. Goord, 558 F.3d 119, 124 (2d Cir. 2009).
“Exhaustion is mandatory—unexhausted claims may not be pursued in federal
court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). That said, “[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) (quoting Hubbs v. Suffolk
Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)).
In Monroe County Jail, proper exhaustion entails going through a three-step appeal
procedure. (Dkt. 18-13 at 16-17); see Scott v. Cambisi, No. 20-CV-6388MWP, 2024 WL
867102, at *5 (W.D.N.Y. Feb. 29, 2024); Hill v. Curcione, 657 F.3d 116, 124-25 (2d Cir.
2011). This procedure provides that an inmate must file a grievance within five days of
the “act or occurrence giving rise to [their] complaint.” (Dkt. 18-13 at 16); Scott, 2024 WL
867102, at *5; Hill, 657 F.3d at 124. If an inmate is not satisfied with the decision from
the grievance officer, they may appeal it to the Chief Administrative Officer within two
days of receipt of the grievance officer’s decision. (Dkt. 18-13 at 17); Scott, 2024 WL
867102, at *5; Hill, 657 F.3d at 124. “If [the inmate is] not satisfied with the Chief
Administrative Officer’s decision, [the inmate] may appeal it to [the Citizens’ Policy and
Complaint Review Council].” (Dkt. 18-13 at 17); Scott, 2024 WL 867102, at *5; Hill, 657
F.3d at 124-25.
Plaintiff alleges that the assault supporting his claims took place on or about
February 22, 2023. (Dkt. 1 at ¶ 14). In support of their motion, Defendants have submitted
the declaration of Sergeant Carolyn Derousie (“Sergeant Derousie”). (Dkt. 18-6). Sergeant
Derousie states that she currently is the “Grievance Coordinator for the Monroe County
Jail” which involves “supervising the grievance process and procedures for the Monroe
County Sheriff’s Office.” (Id. at ¶ 3). Sergeant Derousie has “access to records regarding
inmate grievances and inmate files.” (Id. at ¶ 5). Sergeant Derousie states that “Plaintiff
has not filed a Grievance or Internal Communication form related to any incident that
occurred on or about February 22, 2023.” (Id. at ¶ 14). Further, Sergeant Derousie
contends that “Plaintiff did not file a Grievance while he was held at Monroe County Jail
from December 27, 2022[,] to April 27, 2023.” (Id. at ¶ 15).
Because Defendants have met their burden to show that Plaintiff failed to exhaust
administrative remedies, and Plaintiff has come forward with no evidence disputing this
fact, the Court concludes that summary judgment is mandated for Defendants on the federal
claims because Plaintiff did not exhaust his administrative remedies under the PLRA.5
5 Generally, a dismissal for failure to exhaust under the PLRA is dismissed without
prejudice, particularly when the dismissal is based on a curable, procedural flaw. But
because Plaintiff has long since been transferred from Monroe County Jail and can no
longer cure his defect, the Court dismisses Plaintiff’s federal claims with prejudice. See
Hernandez v. Doe 1-7, 416 F. Supp. 3d 163, 166 (E.D.N.Y. 2018) (“Where an inmate can
no longer exhaust administrative remedies because he has been transferred, however, and
had ample opportunity to exhaust prior to being transferred, but failed to do so, dismissal
with prejudice is proper.”).
II. The State-Law Claims—Defendants’ Motion to Dismiss
Defendants seek dismissal of Plaintiff’s state-law claims on various grounds,
including because Plaintiff failed to file a timely notice of claim. But because the federal
claims have been dismissed, this Court must first decide whether to exercise supplemental
jurisdiction over the remaining state-law claims.
Under 28 U.S.C. § 1367(a), “in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States
Constitution.” A district court may decline to exercise supplemental jurisdiction over a
claim under many circumstances, including where “the district court has dismissed all
claims over which it has original jurisdiction[.]” Id. § 1367(c)(3). “In general, where the
federal claims are dismissed before trial, the state claims should be dismissed as well.”
Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (internal citations and
quotation marks omitted); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-
50, n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction doctrine—
judicial economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims.”).
Given the early stage of the proceedings, the fact that the remaining causes of action
involve quintessential areas of state law such as negligence and assault (and the alleged
failure to comply with state notice requirements before asserting the claims), and the fact
that Plaintiff is pro se and has failed to respond to the pending motion (or otherwise
prosecute this matter), the Court concludes that it is appropriate to decline to exercise
supplemental jurisdiction. Accordingly, Plaintiff's remaining state-law claims as asserted
in the fifth, sixth, and seventh causes of action are dismissed without prejudice because the
Court declines to exercise supplemental jurisdiction over those claims, and Defendants’
motion to dismiss those claims is denied as moot.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted in
favor of all defendants on the federal claims asserted pursuant to 42 U.S.C. § 1983 for
failure to exhaust administrative remedies. Those claims are dismissed with prejudice.
The Court declines to exercise supplemental jurisdiction over the remaining state-law
claims and therefore, those claims are dismissed without prejudice and Defendants’ motion
to dismiss the state-law claims is denied as moot. The Clerk of Court is directed to close
the case.
SO ORDERED.
ELIZABETH AAVOLFORD~
ief-tidge
United States District Court
DATED: July 8, 2025
Rochester, New York
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