Sparks v. Holland

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________

YUSUF SPARKS,

Plaintiff,

-v- 9:19-CV-1269 (AJB/MJK)

JASON HOLLAND, et al.,

Defendants.

_____________________________________

Hon. Anthony Brindisi, U.S. District Judge:

DECISION and ORDER

I. INTRODUCTION

On October 15, 2019, Yusuf Sparks (“plaintiff”) filed this action under 42 U.S.C. § 1983

alleging that more than two dozen named and unnamed prison officials violated his constitutional

rights while he was incarcerated at Clinton Correctional Facility (“Clinton C.F.”), a facility under

the control of the New York Department of Corrections and Community Supervision

(“DOCCS”). He amended his complaint first in December 2019, and then again—while

incarcerated in a different facility on an unrelated matter—in June 2020. Plaintiff’s claims

focused on events that took place in October 2016 and October 2018.

In October 2016, a corrections officer responding to an altercation between plaintiff and

two other inmates claimed to have found a weapon on plaintiff’s person, which plaintiff claimed

was planted. After receiving medical attention, plaintiff was the subject of two misbehavior

reports. Plaintiff was found guilty at a hearing, which he complains was constitutionally

inadequate, and subject to consequences including disciplinary confinement. While in

disciplinary confinement, plaintiff improperly received certain medication on one occasion.

Although plaintiff was alerted to the error, he ingested the medication anyway. As a result,

plaintiff received another misbehavior report.

The events of October 2018, which took place after plaintiff had been transferred away

from, and then returned to, Clinton C.F., also arose from a purported altercation between plaintiff

and two other inmates. Prison officials claimed plaintiff had punched his co-combatants and

refused orders to stop fighting; plaintiff alleged, among other things, that he was subject to

excessive force during the prison officials’ response.

At all relevant times, Clinton C.F. had a three-step procedure for inmates to pursue

grievances in the ordinary course, and pursuant to the Prison Litigation Reform Act (“PLRA”)

and DOCCS protocols, completing all three steps is required to “exhaust” complaints. Clinton

C.F. inmates received training on how to use the procedure upon orientation, and further

information was available on an ongoing basis, upon request, from multiple prison sources.

Plaintiff has acknowledged the grievance procedure. Indeed, he has used it, including its appeals

provisions, multiple times. But he did not do so in connection with either of the incidents

complained of in his operative complaint.

Before the Court are defendants’ motion for summary judgment and plaintiff’s cross-

motion for partial summary judgment. The motions have been fully briefed and will be decided

based on the parties’ submissions without oral argument.

II. BACKGROUND

Unless otherwise specified, the following facts are undisputed and derive from the

parties’ statements of material facts. See Dkt. Nos. 91-1 (defendants’ statement of material facts,

“DSMF”) & 100-1 (plaintiff’s statement of material facts, “PSMF”).1

From June to December 2016, and again beginning in October 2018, plaintiff was

incarcerated at Clinton C.F., a DOCCS prison. DSMF ¶¶ 1, 6, 57, 59.

Clinton C.F. offers inmates DOCCS’s standard three-step grievance procedure to bring

complaints about the facility, in the ordinary course, to officials’ attention. See DSMF ¶¶ 67, 72.

Detailed information about the grievance procedure is made available to Clinton C.F. inmates—

including those confined in special housing units—in various formats, including through the law

library and the grievance office, instruction during facility orientation, and upon request. See id.

¶¶ 69–71. In essence, the standard procedure entails submitting to the facility’s inmate grievance

resolution committee a written complaint within twenty-one days of an incident, appealing any

adverse decision of the committee to the facility superintendent in writing within seven days, and

appealing any adverse decision of the facility superintendent to the central office review

committee in writing within seven days. See id. ¶ 72.

Plaintiff acknowledges the grievance procedure. E.g., PSMF ¶¶ 67, 69, 77. Indeed, it is

undisputed that he utilized it, at least in part, on multiple occasions. See Dkt. No. 91-3 ¶ 17 &

Exh. B (indicating plaintiff filed and appealed three unrelated grievances, including two in 2014

and one in 2017); Dkt. No. 91-4 ¶ 14 (indicating plaintiff filed, but failed to appeal completely, a

1 Where applicable, citations to the record correspond to CM/ECF pagination.

grievance related to this action). Nevertheless, plaintiff claims that he could not access the

grievance procedure in connection with the events described below. See PSMF ¶¶ 67, 69, 77.

In April 2016, ahead of a potential facility transfer, plaintiff’s former defense attorney

wrote to the then-commissioner of DOCCS to express concerns about plaintiff’s safety if he were

to be moved to Clinton C.F. PSMF ¶ 5. Plaintiff was nevertheless transferred to Clinton C.F.

and, based on his past conduct, placed in disciplinary confinement upon arrival. Id. ¶¶ 6, 8.

Throughout his early time at Clinton C.F., plaintiff and his former defense attorney

repeatedly expressed concerns about his safety to, and sought protection from, officials at the

facility. See PSMF ¶ 9; DSMF ¶¶ 9, 12. But, for reasons that the parties dispute, plaintiff

repeatedly declined to be placed in protective custody after being released into the general

population at Clinton C.F. See PSMF ¶ 13; DSMF ¶¶ 13, 14.

On October 18, 2016, plaintiff was involved in an altercation with two other inmates at

Clinton C.F. DSMF ¶ 19. Defendant Clancy responded, handcuffed plaintiff, and performed a

pat/frisk. Id. ¶¶ 20, 21. He found a weapon, which plaintiff maintains was planted, and

thereafter took plaintiff to receive medical care. PSMF ¶¶ 21–23. Plaintiff eventually received

further medical attention at a local hospital. DSMF ¶ 26.

Thereafter, based on the altercation and the weapon that Clancy claimed to have found in

plaintiff’s pocket afterwards, plaintiff was the subject of two misbehavior reports, charging him

first with violating rules concerning weapon possession, smuggling, and possession of an altered

item; and second with violating rules concerning violent conduct, creating a disturbance,

fighting, and refusing a direct order. DSMF ¶¶ 27, 28.

Plaintiff received a hearing on the two misbehavior reports before defendant French.

DSMF ¶ 29. Before the hearing, which lasted multiple days, plaintiff was notified of the charges

against him, and during the hearing he was provided with an assistant with whom he could, and

did, consult. Id. ¶¶ 30–32. Although plaintiff was not permitted to have an attorney represent

him during the hearing, he was allowed to, and did, consult with an attorney outside the hearing.

Id. ¶¶ 34, 35. During the hearing, plaintiff was given various DOCCS records, as well as the

opportunity to question multiple witnesses, including corrections officials and the other inmates

involved, although he did not ultimately question all of them. See id. ¶¶ 37–39, 41.

At some point during the hearing, plaintiff complained of mental health-related issues,

and the hearing was temporarily adjourned. DSMF ¶ 44. It resumed after the hearing officer

took confidential testimony from the Office of Mental Health. Id. ¶ 45. When the hearing

ultimately concluded, defendant French adjudicated plaintiff guilty of the charged rule violations.

Id. ¶ 47. As a result, plaintiff received 450 days of disciplinary confinement and lost various

technology and recreation privileges. Id. ¶ 48.

Afterwards, while plaintiff was in disciplinary confinement, defendant Kim gave him a

medication that was not prescribed to him, an action defendants assert was inadvertent, and

attempted to withdraw it. DSMF ¶¶ 50, 51. But, according to defendants, plaintiff attempted to

maintain control over the medication by force and ultimately ingested it. Id. ¶ 52. Plaintiff

largely disputes defendants’ retelling of this event, but he admits to ingesting the improperly

dispensed medication. PSMF ¶¶ 50–52. He thereafter received another misbehavior report

charging him with violating rules concerning, among other things, unauthorized medication and

interfering with an employee. Id. ¶ 55.

Despite knowing of Clinton C.F.’s three-step grievance procedure outlined above,

plaintiff did not pursue a formal grievance in connection with the October 2016 events. See

DSMF ¶ 78; PSMF ¶ 78. Instead, he sought outside action from the Office of Special

Investigation, claiming that he was unable to properly grieve those events. See PSMF ¶ 78.

In December 2016, plaintiff was transferred to a different DOCCS facility. DSMF ¶ 57.

He was moved back to Clinton C.F. in October 2018. Id. ¶ 59.

Upon his return to Clinton C.F., on October 27, 2018, plaintiff was involved in another

altercation with two other inmates, during which officials allege plaintiff punched the other

inmates on their upper bodies and refused orders to stop fighting. See DSMF ¶¶ 60–62.

Defendant Holland responded and used pepper spray to break up the fight. Id. ¶ 63.

Plaintiff was then brought to the Clinton C.F. hospital to receive medical attention, and

staff observed that he sustained injuries during the fight. DSMF ¶¶ 64, 65. Afterwards, a non-

party corrections official escorted plaintiff to keeplock. Id. ¶ 66.

On November 5, 2018, plaintiff filed a grievance which claimed that defendant Holland

had slapped him in the face and included other information pertaining to the events of October

2016. DSMF ¶ 79. That grievance was assigned grievance number CL 74742-18. Id. ¶ 80.

However, the then-superintendent of Clinton C.F. investigated and denied plaintiff’s claims. Id.

¶ 81. Plaintiff never pursued the final step of the three-step process for this grievance, i.e.,

appealing to the central office review committee. Id. ¶ 82.

Nevertheless, on October 15, 2019, plaintiff filed this action against various prison

officials, including Holland, Snow, Martin, Clancy, Barber, Ducan, French, Kim, LeClair,

Kirkpatrick, Stickney, Marlow, Stotler, and Does 1 through 20, alleging violations of his First,

Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Dkt. No. 1 (“Compl.”). The

thrust of the original complaint was that, during the October 2016 and October 2018 incidents,

the prison officials assaulted plaintiff, planted a weapon on him, deprived him of due process in

the resulting disciplinary proceedings, and failed to properly address his mental health concerns.

Id. at 2–3. At the time of filing, plaintiff had been transferred from Clinton C.F., but remained

under DOCCS supervision while incarcerated at Sing Sing Correctional Facility. Id. at 4.

Early litigation in this case was somewhat convoluted. Although the Court will not

recount every development here, the highlights are as follows. Plaintiff filed the first of two

amended complaints on December 26, 2019. Dkt. No. 5. The case was thereafter reassigned

from Magistrate Judge Christian F. Hummel to Magistrate Judge Andrew T. Baxter on January

28, 2020. Dkt. No. 10. Both before and after reassignment, defendants requested and received

multiple extensions for their response. See, e.g., Dkt. Nos. 8, 11, 16, 19–22.

In June 2020, defendants filed a motion to dismiss for failure to state a claim. Dkt. No.

23. Later the same month, before the parties received a ruling, plaintiff filed the second of two

amended complaints. Dkt. No. 28 (“SAC”). Following additional extensions, see Dkt. Nos. 31

& 35, defendants filed an answer on September 30, 2020, Dkt. No. 36.

A long—and itself somewhat convoluted—discovery process followed. See, e.g., Dkt.

Nos. 38 (original case management plan, filed October 14, 2020), 48 (protective order regarding

the exchange of confidential materials, filed October 21, 2021), 56 (letter motion requesting

withdrawal of motion to compel, filed February 14, 2022), 64 (order resetting discovery

deadlines to June 30, 2023); 70 (same, to November 30, 2023).

On November 16, 2023, plaintiff was denied permission to further amend the complaint.

Dkt. No. 77. The case was then reassigned again, first from Magistrate Judge Baxter to

Magistrate Judge Mitchell J. Katz, on January 5, 2024, Dkt. No. 80, and then from District Judge

Mae A. D’Agostino to this Court on January 13, 2025, Dkt. No. 90.

On January 27, 2025, defendants moved for summary judgment. Dkt. No. 91. Plaintiff

filed a cross-motion for partial summary judgment, as well as opposition papers, respectively, on

March 11 and 12, 2025. Dkt. Nos. 99 & 100. On April 7, 2025, Defendants filed papers

supporting their motion and opposing plaintiff’s cross-motion. Dkt. No. 105. Plaintiff, in turn,

opposed that submission on April 28, 2025. Dkt. No. 106.

III. LEGAL STANDARD

The entry of summary judgment is warranted “if the movant shows 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). An issue of fact is material for purposes of this inquiry if it “might

affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A dispute of material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.

In assessing whether any genuine disputes of material fact remain, “a court must resolve

any ambiguities and draw all inferences from the facts in a light most favorable to the

nonmoving party.” Ward v. Stewart, 286 F. Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation

omitted). Summary judgment is inappropriate where a “review of the record reveals sufficient

evidence for a rational trier of fact to find in the [non-movant’s] favor.” Treglia v. Town of

Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).

“Where, as here, the parties have cross-moved for summary judgment, a reviewing court

must evaluate each party’s motion on its own merits, taking care in each instance to draw all

reasonable inferences against the party whose motion is under consideration.” United States v.

Bedi, 453 F. Supp. 3d 563, 570 (N.D.N.Y. 2020) (cleaned up). “In undertaking this analysis, it

bears noting that a district court is not required to grant judgment as a matter of law for one side

or the other.” Id.

IV. DISCUSSION

A. Exhaustion under the PLRA

The PLRA requires inmates to exhaust all available administrative remedies before suing

prison officials in federal court. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect

to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner in

any jail, prison, or other correctional facility until such administrative remedies as are available

are exhausted.”); Amador v. Andrews, 665 F.3d 89, 96 (2d Cir. 2011) (“Exhaustion is

mandatory—unexhausted claims may not be pursued in federal court.”).2

2 The Second Circuit has held that district courts can resolve the exhaustion issue without involving juries. Messa v.

Goord, 652 F.3d 305, 308–10 (2d Cir. 2011) (per curiam). The Supreme Court recently narrowed the scope of this

non-jury rule in cases—unlike this one—where the exhaustion issue is “intertwined with the merits” of a substantive

claim. Perttu v. Richards, 605 U.S. 460, 464 (2025). In Perttu, the prisoner-plaintiff had filed a § 1983 action

against a corrections official “for violating his constitutional rights, including his First Amendment right to file

grievances,” by interfering with his grievance forms and threatening physical violence if the plaintiff were to file

additional forms. Id. The Supreme Court held that the Seventh Amendment guarantees the right to a jury trial on

the exhaustion issue such cases, since “both [the exhaustion issues and the § 1983 First Amendment claim]

depend[ed] on whether [the defendant] did in fact destroy [the plaintiff’s] grievances and retaliate against him.” Id.

While Perttu alters the legal landscape, its precise impact is not yet understood, and some courts have already

applied it narrowly. See, e.g., Hill v. Tisch, 2025 WL 1871142, *8 (E.D.N.Y. July 7, 2025) (collecting cases). Here,

though, plaintiff’s claims do not directly relate to his ability to access Clinton C.F.’s grievance procedure, and the

record establishes that he both was aware of, and in fact utilized (if incompletely), the procedure on multiple

occasions. Thus, Perttu does not appear to apply to this case, and the Court proceeds with its analysis of exhaustion.

Exhaustion is required for essentially all manner of confinement-related claims. See

Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[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.”).

Prison systems decide what constitutes exhaustion within their facilities. Jones v. Bock,

549 U.S. 199, 218 (2007) (“[I]t is the prison’s requirements . . . that define the boundaries of

proper exhaustion.”); Taylor v. N.Y. City Dep’t of Corr., 849 F. App’x 5, 7 (2d Cir. 2021)

(summary order). Therefore, DOCCS’s internal procedures, which typically entail the three steps

recounted in greater detail below, govern most inmate complaints in its facilities. 7 N.Y.C.C.R.

§ 701.5; see also Bradshaw v. Piccolo, 2025 WL 890415, *5 (W.D.N.Y. Mar. 24, 2025)

(describing DOCCS’s three-tiered process for typical inmate grievances).

Turning now to the parties’ submissions, defendants argue that the PLRA precludes

plaintiff’s claims because he failed to exhaust the administrative remedies available to him as an

inmate at Clinton C.F. See Def. Mem. at 10 (“Defendants are entitled to summary judgment

because plaintiff failed to exhaust administrative remedies[.]” (capitalization omitted)).

In response, plaintiff offers an array of unavailing arguments, which the Court will

address in turn. First, plaintiff claims, as he had been released from DOCCS custody before

filing the operative complaint, the PLRA does not apply here. See Pl. Opp. at 18–19. Second, he

argues that defendants forfeited the non-exhaustion defense by failing to plead it with appropriate

specificity. Id. at 19–20. Third, he complains that the timing of defendants’ non-exhaustion

defense works undue prejudice on him. Id. at 20–22. Fourth, he contends that administrative

remedies were unavailable to him as a matter of law. Id. at 22–24. And fifth, he maintains that

he did exhaust administrative remedies by pursuing alternative relief. Id. at 24–26.

For the following reasons, plaintiff’s efforts to sidestep the exhaustion requirement fail,

defendants’ motion must be granted, and plaintiff’s cross-motion must be denied.

i. Applicability

Plaintiff tries to evade the exhaustion requirement entirely by arguing that the PLRA does

not apply to his claims in this case, since he had been released from DOCCS custody when he

filed the operative pleading, i.e., the SAC. See Pl. Opp. at 18–19.

In response, defendants argue that, first, plaintiff was in fact being held in pretrial

confinement upon filing the SAC, Def. Reply at 6–7, and that, in any event, the time relevant to

this analysis is when a plaintiff files an initial complaint, at which point plaintiff remained in

DOCCS custody, not when a plaintiff files a subsequent pleading, id. at 7.

In support of plaintiff’s argument, he leans primarily on Sanchez v. Nassau County, 662

F. Supp. 3d 369 (E.D.N.Y. 2023). See Pl. Opp. at 10. But that case does not aid him.

In Sanchez, the Eastern District of New York relied on Jones v. Cuomo, 2 F.4th 22, 26 (2d

Cir. 2021) (holding that a psychiatric detainee was not a “prisoner” under the PLRA), discussed

in greater below, to conclude that a plaintiff who had been released from custody by the time he

filed the operative pleading was not a “prisoner” for PLRA purposes. 662 F. Supp. 3d at 393.

In broadening Jones, the Sanchez court drew heavily on extra-circuit authority while

conceding that “[t]he Second Circuit has not yet decided . . . whether the PLRA’s exhaustion

requirement applies when a plaintiff was a prisoner at the time of the filing of the original

complaint, but is no longer a prisoner when an amended complaint is filed.” See 662 F. Supp. 3d

at 393–96. But in surveying decisions closer to home, the court noted that “[t]he few courts in

[the Second] Circuit to address the issue have yielded opposite conclusions.” Id. at 397

(collecting Eastern District cases).

As an initial matter, “[a] decision of a federal district court judge is not binding precedent

in either a different judicial district, the same judicial district, or even upon the same judge in a

different case.” Camreta v. Greene, 563 U.S. 692, 710 n.7 (2020) (quoting 18 J. MOORE ET AL.,

MOORE’S FEDERAL PRACTICE § 134.02[1][d], 134–36 (3d ed. 2011) (quotations omitted)). Of the

Northern District cases to acknowledge Sanchez, none have addressed—let alone agreed with—

its extension of Jones; all three referred to it, in footnotes, for unrelated reasons. See Morrell v.

Sampson, 2024 WL 4278647, *6 n.5 (N.D.N.Y. Sept. 24, 2024) (articulating failure-to-protect

and failure-to-intervene standards); Murray v. Cnty. of Albany, 2025 WL 904515, *11 n.4

(N.D.N.Y. Mar. 25, 2025) (declining to reach qualified immunity where disputed facts remained

on summary judgment motion); Donald v. Leonard, 2025 WL 2582802, *4 n.2 (N.D.N.Y. Sept.

8, 2025) (describing magistrate judge’s citation in considering whether judge or jury should

decide availability).

Regardless, and especially pertinent here, in Sanchez the Eastern District expressly found

the defendants’ citation to Berry v. Kerik, 366 F.3d 85 (2d Cir. 2004), unsuitable. 662 F. Supp. 3d

at 401. In Berry, the plaintiff had filed an action concerning a since-completed term of custody

under § 1983 while incarcerated on suspicion of committing new offenses. 336 F.3d at 86–87.

Based on his returned-to-custody status, the Second Circuit held that the plaintiff was a

“prisoner” for PLRA purposes. Id. Accordingly, in Sanchez the Eastern District held that Berry

did not control precisely because the Sanchez plaintiff “was not incarcerated when he filed the

operative . . . complaint.” Id. (emphasis in original). The same is not true in this case.

Here, plaintiff was incarcerated upon filing both the original complaint and the operative

pleading. See, e.g., Dkt. Nos. 1 (complaint filed October 15, 2019) & PSMF ¶ 238 (“Mr. Sparks

was released from DOCCS custody on December 19, 2019.”); Dkt. Nos. 28 (SAC filed June 22,

2020) & 99-10 at 5 (referring to plaintiff’s “more than two years in pretrial confinement,” dating

backwards from March 21, 2022).3 Accordingly, whatever one makes of Sanchez, it does not

advance plaintiff’s argument that the PLRA does not apply to his claims.

On the contrary, the precedent in our circuit establishes that the PLRA, and therefore the

exhaustion requirement, applies, whether because plaintiff was incarcerated upon filing the

original complaint or because plaintiff was incarcerated upon filing the operative pleading.

Consider Jones v. Cuomo, which the Eastern District broadened in Sanchez, 622 F. Supp.

3d at 393, but which defendants cite for its own holding, see Def. Reply at 6. In Jones, the

Second Circuit concluded that a plaintiff who brought an action under § 1983 while confined in a

psychiatric facility pursuant to New York’s Mental Hygiene Law was not a “prisoner” for PLRA

purposes. 2 F.4th at 25. The court relied on a prior panel’s reading of the PLRA’s text—which

held that “[t]he natural reading . . . is that, to fall within the definition of ‘prisoner,’ the individual

in question must be currently detained as a result of an accusation, conviction, or sentence for a

3 The Court acknowledges plaintiff’s argument, in his memorandum supporting his cross-motion for partial

summary judgment, that defendants have “improperly assert[ed]” that plaintiff’s papers prove his custodial status at

the time of filing. Dkt. No. 106 at 4. Plaintiff contends that including a copy of his state court appeal, People v.

Sparks, 232 A.D.3d 168 (1st Dep’t 2024), in his submissions does not establish whether he was in custody on June

22, 2020, since, according to plaintiff, “Sparks does not specify Plaintiff’s custody status” on that date. Id. But

considering the appellate court’s explicit reference to plaintiff’s status, appended to plaintiff’s submission and

quoted in part above, the Court finds plaintiff’s argument entirely unpersuasive. See Sparks, 232 A.D.3d at 171

(“On March 21, 2022, after more than two years in pretrial confinement, Mr. Sparks pleaded guilty to third degree

robbery.”); accord Dkt. No. 99-10 (exact same). Although the Court is not generally in the business of performing

complex calculations sua sponte, it is prepared to take judicial notice that, looking backwards from March 21, 2022,

a greater-than-two-year period would encompass June 22, 2020, the SAC’s filing date. Thus, plaintiff has not

established a genuine factual dispute about his custodial status when he filed the operative pleading.

criminal offense”—to distinguish the Jones plaintiff’s status as a psychiatric detainee. See id.

25–26 (quoting Gibson, 692 F.3d at 202) (alterations in Jones)).

So, although the panel in Jones discussed the timing of a plaintiff’s filing to the extent

that it reflected his custodial status, the core of its analysis was to draw a line between

“individuals detained pursuant to an accusation or conviction of a violation of a criminal statute,”

to whose claims the PLRA applies, and individuals in civil or psychiatric confinement, like the

plaintiff there, to whose claims the PLRA does not apply. Id. at 25–26 (quoting Jackson v.

Johnson, 475 F.3d 261, 267 (5th Cir. 2007) (alteration omitted)).

Here, plaintiff falls within the former category. Since he was serving a custodial sentence

following conviction when he filed the original complaint, incarcerated pending a separate

criminal trial when he filed the SAC, and at neither time in civil or psychiatric confinement, the

authority supports defendants. See Def. Reply at 6–7 (citing, among other cases, Jones, 2 F.4th

at 26). Thus, the PLRA and its exhaustion requirement apply to plaintiff’s claims.

ii. Pleading Requirements

Next, plaintiff argues that the Court should not permit defendants to argue non-

exhaustion because they failed to plead this affirmative defense with the requisite specificity. Pl.

Opp. at 19–20.

As a general matter, “[i]n responding to a pleading, a party must affirmatively state any

avoidance or affirmative defense[.]” FED. R. CIV. P. 8(c)(1). Non-exhaustion under the PLRA is

an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2017); Hubbs v. Suffolk Cnty. Sheriff’s

Dep’t, 788 F.3d 54, 59 (2d Cir. 2015). The Second Circuit has previously held that a defendant’s

failure to raise and prove non-exhaustion waives the defense. Villante v. VanDyke, 93 F. App’x

307, 308 (2d Cir. 2004) (summary order).

While “the Second Circuit has not decided whether Iqbal-Twombly’s heightened pleading

standard applies to affirmative defenses,” the Northern District has in other cases “‘require[d]

defendants to include enough language to provide plaintiff[s] with “fair notice” of defenses, in

line with the prevailing pleading standard in the Second Circuit[.]’” United States v. Grimmel

Indus., LLC, 2018 WL 3730856, *2 (N.D.N.Y. Aug. 6, 2018) (quoting Thornton v. Cnty. of

Albany, 2016 WL 5793714, *5 (N.D.N.Y. Oct. 4, 2016)). Thus, in their response, defendants

must have put plaintiff on “fair notice” that they would argue that he failed to exhaust his

administrative remedies under the PLRA.

Defendants did so here. In their answer, alongside other intended affirmative defenses,

defendants included the following language: “To the extent [p]laintiff failed to exhaust available

administrative remedies, the [SAC] is barred, at least in part.” Dkt. No. 36 at 11 (emphasis

added).4 As defendants point out, Def. Reply at 9, the Second Circuit has held sufficient to raise

exhaustion as an affirmative defense all-but-identical language in a responsive pleading, Villante,

93 F. App’x at 309 (holding an answer asserting that “[p]laintiff has failed to exhaust

administrative remedies” adequately raised the defense and thus did not effectuate a waiver).

Defendants’ language therefore constitutes appropriate notice.

Plaintiff attempts to analogize Thornton to argue that defendants’ answer was inadequate.

See Pl. Opp. at 19–20. But this citation misses the mark. While the Thornton defendants also

4 The Court further observes that, elsewhere in plaintiff’s opposition to summary judgment, he cites this paragraph

of defendants’ answer in acknowledgment of the fact that “exhaustion was already listed” as an affirmative defense.

Pl. Opp. at 21.

sought to argue non-exhaustion after failing to explicitly refer to the PLRA in their answer, the

language held insufficient there, that “[p]laintiff’s claims are barred by his failure to satisfy

conditions precedent to suit,” was far less specific than what defendants have included here. See

2016 WL 5793714, at *5 (internal quotations omitted). Further, by observing that the Thornton

defendants in other cases “routinely raise[d] failure to comply with the PLRA or failure to

exhaust administrative remedies as individual affirmative defenses,” the court suggested that

language directly mirroring defendants’ here would have sufficed.5 Id. (emphasis added).

Against this backdrop, plaintiff’s assertion that the answer is inadequate cannot succeed.

Defendants adequately notified plaintiff of their intention to argue non-exhaustion under the

PLRA. Accordingly, they did not waive this affirmative defense.

iii. Prejudice

Continuing down a similar path, plaintiff offers a variety of arguments seeking to bar

defendants from arguing non-exhaustion for quasi-equitable reasons. See Pl. Opp. at 20–21

(claiming, among other things, that defendants’ counsel achieves dismissal of between fifty and

sixty percent of unrelated inmate litigation due to “PLRA-related technicalities,” and that, here,

defendants’ “fail[ure] to move on this affirmative defense for over 5 years” cost plaintiff “tens of

thousands of dollars of litigation costs [and] over seven hundred hours of law firm time”).

5 This is to say nothing of the Thornton court’s use of the disjunctive “or” to separate “failure to comply with the

PLRA” and “failure to exhaust administrative remedies,” which suggests that defendants need not explicitly invoke

the PLRA to adequately notify plaintiffs of the non-exhaustion defense. See 2016 WL 5793714, at *5. In any event,

as defendants highlight, Def. Reply at 9–10, their answer directly references the statute elsewhere, including just

three paragraphs after the purportedly inadequate language, Dkt. No. 36 at 11–12 (“Pursuant to Section 807 of the

Prison Litigation Reform Act of 1995, any compensatory damages to be awarded [p]laintiff herein shall be paid

directly to satisfy any such outstanding orders until paid in full.”); cf. Pl. Opp. at 20 (“Defendants here do not

mention the PLRA in the exhaustion portion of their answer, or even cite the statute in their answer at all.”).

While this section of plaintiff’s briefing is no model of clarity, his contentions appear to

boil down to the following: allowing defendants to pursue a non-exhaustion defense after the

case has been pending for several years, and after discovery has concluded, would improperly

prejudice him. See generally Pl. Opp. at 21. Indeed, citing defendants’ purported reticence to

develop discovery about exhaustion before plaintiff’s deposition, plaintiff goes as far as to

suggest that defendants “led [p]laintiff to believe . . . that [d]efendants were in agreement that the

PLRA did not apply.” Id.

But the Court cannot square these claims with plaintiff’s own submissions. As detailed

above, the Court has already concluded—and plaintiff seems to recognize, if counterintuitively—

that defendants indeed raised non-exhaustion in their answer. See Dkt. No. 36 at 11 (“To the

extent [p]laintiff failed to exhaust available administrative remedies, the [SAC] is barred, at least

in part.”); accord Pl. Opp. at 21 (noting “exhaustion was . . . listed” among other affirmative

defenses in defendants’ response to the operative pleading).

Regardless, as defendants highlight, Def. Reply at 10–11, plaintiff’s request to strike this

affirmative defense is untimely, see FED. R. CIV. P. 12(f). A court may strike a defense from an

answer either on its own accord or on a motion served “within 21 days.” Id. Defendants filed

their answer on September 30, 2020, Dkt. 36, and plaintiff raised this issue for the first time far

outside the three-week window, on March 12, 2025, see Pl. Opp. at 20–22.

Since plaintiff put forward this argument more than four years after defendants filed an

answer, it is untimely under Rule 12(f)(2). And since it is difficult to grasp how plaintiff could

be improperly prejudiced by a duly noticed non-exhaustion defense, the Court declines to use its

power under Rule 12(f)(1) to strike, sua sponte, what is otherwise a properly raised defense.

iv. Administrative Remedies’ Availability

Moving on to the parties’ substantive arguments under the PLRA, plaintiff contends that,

if the PLRA does apply to his claims, administrative remedies were unavailable to him while he

was incarcerated at Clinton C.F. Pl. Opp. at 22. To that end, plaintiff argues first that defendants

have failed to establish that “a functional [grievance] process” existed at the relevant times and

locations, and second that the standard grievance process at Clinton C.F. was unavailable to

plaintiff due to his housing status and prison officials’ intimidation. Id. at 22–24.

Defendants dispute each point. First, they argue that facts in the record, and specifically

the declarations of Donna Wilcox and Rachael Seguin, establish “that there was a functioning

grievance program at Clinton [C.F.] during the time that [p]laintiff was incarcerated there, and

that this grievance program was available to all incarcerated individuals,” including those, like

plaintiff, incarcerated in the facility’s special housing unit. Def. Reply at 13. And they stress

that the PLRA applies to all incarcerated people, regardless of any claimed “special

circumstances.” Def. Reply at 15 (quoting Ross v. Blake, 578 U.S. 632, 639 (2016)).

Second, defendants strenuously dispute that the grievance process was unavailable to

plaintiff and point out that, as to at least the October 2018 incident, plaintiff appears to have

abandoned such arguments. Def. Reply at 16–18.

a. Existence of Administrative Remedies

Even viewed in the light most favorable to plaintiff, the record establishes that there was

a functioning grievance process at Clinton C.F. In a sworn declaration, Seguin, the director of

the incarcerated grievance program at DOCCS, outlined the grievance process at Clinton C.F.

and other DOCCS sites. See generally Dkt. No. 91-3 (“Seguin Decl.”). Seguin described a

three-step process in which, first, inmates “must file a complaint with [the inmate grievance

resolution committee] within [twenty-one] calendar days of an alleged incident at the individual

facility where the incarcerated individual is housed,” after which the committee has sixteen

calendar days to respond; second, inmates “may appeal [a committee recommendation] to the

[s]uperintendent of the facility within [seven] days after receipt,” after which the superintendent

has twenty calendar days to respond; and third, inmates “may appeal the [superintendent’s]

decision to [the central office review committee] within [seven] calendar days after receipt.”

Seguin Decl. ¶ 7.

All submissions must be in writing and submitted in the first instance to the inmate

grievance resolution committee at the facility where the grieving inmate is housed. See Seguin

Decl. ¶ 7. Separate, expedited procedures are made available for complaints regarding

“harassment or misconduct by DOCCS employees.” Id. ¶ 9.

Wilcox’s sworn declaration largely repeats the same information. See generally Dkt. No.

91-4 (“Wilcox Decl.”). Wilcox was the incarcerated grievance program supervisor at Clinton

C.F. upon giving her declaration. Id. ¶ 1. In her declaration, she outlined precisely the same

three-step grievance procedure as Seguin. See id. ¶¶ 7–10.

A review of the available record confirms that plaintiff does not actually challenge the

existence of this process at Clinton C.F. during the relevant period. Instead, he contends that it

was unavailable to him. See, e.g., PSMF ¶¶ 67 (denying the claim that “[t]here is a fully

functioning grievance procedure available to inmates at Clinton [C.F.],” apparently because

“[p]laintiff was unable to access it” (emphasis added)); 69 (denying the claim that “[t]he written

policies and procedures concerning the [incarcerated grievance program] are widely distributed

and readily accessible to incarcerated individuals,” due to a dispute over “accessibility in SHU

and under mental distress”); 70 (“assert[ing] SHU confinement and mental state effectively

barred access” to the DOCCS directive outlining grievance procedure at Clinton C.F.); 71

(conceding that plaintiff received training on utilizing Clinton C.F.’s grievance procedure but

“disput[ing] effective instruction given [plaintiff’s] SHU status and coercion”).

Setting aside for now arguments about availability, plaintiff does not meaningfully

contest, and therefore has not created a genuine dispute regarding, the fact that the three-step

grievance process at Clinton C.F. existed. Indeed, he concedes his awareness of it. See, e.g.,

PSMF ¶ 77 (“admit[ing] familiarity [with the grievance process] but den[ying] ability to freely

use it due to coercion and confinement” (emphasis added)).6

Thus, an administrative remedy entailing the three-step procedure that Seguin and Wilcox

outlined was in place at Clinton C.F., and plaintiff was aware of it. Seguin Decl. ¶ 18; Wilcox

Decl. ¶¶ 7–10; PSMF ¶ 77. The record reveals no genuine, material disputes about these facts.

b. Availability

The next question is whether the three-step grievance process was available to plaintiff.

For the reasons given below, both the available record, even viewed in the light most favorable to

plaintiff, and the law in the Second Circuit establish that it was.

Broadly speaking, the Supreme Court has recognized three exceptions to the exhaustion

requirement, all of which focus on the “availab[ility] of administrative remedies.” Ross, 578

U.S. at 642. An inmate’s failure to exhaust may be excused when: (1) the applicable grievance

6 On the other hand, in plaintiff’s statement of material facts, he repeatedly declines to admit or deny defendants’

descriptions of the three-step grievance process on account of his “lack[ing] independent knowledge of DOCCS

grievance procedures,” e.g., PSMF ¶¶ 68 (concerning DOCCS Policy Directive No. 4040), 72 (concerning

N.Y.C.R.R. § 701.5), 73 & 74 (concerning expedited procedure for grievances concerning harassment). By their

own terms, however, these responses are not denials. And, particularly when considered alongside plaintiff’s

admitted familiarity with the grievance process, they do not create genuine, material factual disputes.

procedures “operat[e] as a simple dead end—with officers unable or consistently unwilling to

provide any relief to aggrieved inmates”; (2) the procedures “[are] so opaque that [they]

become[], practically speaking, incapable of use”; or (3) “prison administrators thwart inmates

from taking advantage of a grievance process through machination, misrepresentation, or

intimidation.” See id. at 643–44.

Availability is “an objective [test]: that is, would a similarly situated individual of

ordinary firmness have deemed [administrative remedies] available.” Lucente v. Cnty. of Suffolk,

980 F.3d 284, 311–12 (2d Cir. 2020) (citation omitted).

1. Opacity

Here, the parties’ arguments primarily concern Ross’s exception for undue opacity, so the

Court first considers whether the grievance process was “so opaque” as to be essentially useless.

578 U.S. at 642; see Pl. Opp. at 24 & Def. Reply at 16. It was not.

Plaintiff leans on Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), to support his claim

that, because he was housed in Clinton C.F.’s special housing unit following the October 2016

incident, the facility’s three-step grievance process was unavailable to him. Pl. Opp. at 24. But

that case does not stand for the proposition that inmates in special housing units generally face

unduly opaque grievance procedures. In Priatno, the panel evaluated procedures which provided

that inmates in special housing units could file grievances by giving complaints to corrections

officers, who were then supposed to forward the complaints to grievance clerks, but which were

silent about what inmates were to do if corrections officers never forwarded their complaints to

grievance clerks. 829 F.3d at 124. The panel ultimately concluded that those procedures—not

all procedures involving special housing units—were too opaque and thus unavailable. Id.

But, as detailed above, the record shows that the procedures in Priatno were not the

procedures in place at Clinton C.F. Indeed, Clinton C.F. made available, and plaintiff was aware

of, a three-step grievance procedure in which inmates, including those in the special housing

unit, were to first submit complaints directly to the inmate grievance resolution committee within

twenty-one days, appeal adverse decisions within seven days to the facility’s superintendent, and

finally appeal any further adverse decisions within seven days to the central office review

committee. See Seguin Decl. ¶ 7, Wilcox Decl. ¶¶ 7–10; PSMF ¶ 77. Even crediting all of

plaintiff’s factual contentions, these procedures cannot be considered unduly opaque under Ross

or Priatno, notwithstanding plaintiff’s special-housing-unit status.7

More damaging still to plaintiff’s arguments about unavailability, the Second Circuit has

held that an inmate’s prior use, or even mere knowledge, of a grievance procedure is evidence

that it is “available.” See Hall v. Annucci, 2023 WL 7212156, *2 (2d Cir. Nov. 2, 2023)

(summary order) (concluding that an inmate’s having “previously used [procedure] to file several

grievances” indicated procedure “was not a dead end nor too opaque for an ordinary prisoner to

navigate”); Taylor v. N.Y. City Dep’t of Corr., 849 F. App’x 5, 8 (2d Cir. 2021) (summary order)

(holding testimony showing inmate “was familiar with [administrative] procedures,” but “just

chose not to follow them,” did not render procedures unavailable).

Here, the record establishes that plaintiff knew about Clinton C.F.’s three-step procedure.

In her declaration, Seguin stated that she aware that this action involved two incidents, one in

7 For example, plaintiff testified that inmates in Clinton C.F.’s special housing unit were to file grievances through

officers who picked up inmates’ mail. PSMF ¶ 87. According to plaintiff, the officers would then share the

grievances among themselves, and as a result officers would threaten the grieving inmates. See id. ¶¶ 84–85.

Plaintiff further testified, “I don’t think it made it to the superintendent because of the interception that was going on

in between the hands of the grievance was going to, I sent grievances outside of their facility.” Id. ¶ 86. But

accepting these claims does not create a factual dispute about the following key facts: plaintiff was aware of Clinton

C.F.’s grievance procedure, he utilized it at least in part (i.e., by submitting a grievance in the first instance, before

being threatened), and he pursued alternative remedies (i.e., by “send[ing] grievances outside of their facility”).

October 2016 and one in October 2018, involving plaintiff when he was housed at Clinton C.F.

Seguin Decl. ¶ 13. After describing the incidents as she understood them, Seguin stated that they

“are the proper subject for a grievance under DOCCS grievance procedures” as described above.

Id. ¶ 14. A records check Seguin performed showed that plaintiff never appealed any grievances

related to the claims at issue in this case, as exhaustion would have required. Id. ¶ 17. But he

did appeal two grievances filed in December 2014, before his claims in this case arose, and a

third in 2017, which was also unrelated. Id.; see also Seguin Decl., Exh. B.

Like Seguin, Wilcox also ran a records check for plaintiff’s grievances. Wilcox Decl.

¶ 14. She found just one grievance pertaining to this action, submitted in November 2018, which

plaintiff had failed to pursue through the entire three-step process, including both appeals. Id.

¶¶ 15–19 (noting, among other things, that “[f]ollowing an investigation, this grievance was

denied and [p]laintiff did not pursue further appeal to [the central office review committee]”).

Beyond plaintiff’s previous and incomplete uses of the procedure, Wilcox further noted

that the New York code sections spelling out the three-step grievance procedure at Clinton C.F.

were available to all inmates, including those in the special housing unit, through the facility’s

law library. Id. ¶¶ 4, 5. And Wilcox stated that all incarcerated individuals at Clinton C.F.

receive trainings on “the process for filing and appealing grievances” at the facility. Id. ¶ 6.

Furthermore, as discussed above, plaintiff has admitted to being aware of the procedure,

even as he contests that he should have been required to pursue it to completion. Yet as a legal

matter, plaintiff has conceded both existence and availability:

Defendants’ Statement: [Plaintiff] did not file any grievances

related to the incidents that occurred in October 2016 and did not

appeal any such grievances to [the central office review

committee].

Plaintiff’s Response: Admitted in part, denied in part. In fact, he

filed an OSI investigation, alerting officials that he was unable to

get his grievances in.

Defendants’ Statement: Plaintiff filed a grievance on November

5, 2018, alleging that Defendant Holland slapped him in the face

and making various other allegations that are at issue in this

litigation, including allegations related to what transpired in

October 2016.

Plaintiff’s Response: Admitted.

. . .

Defendants’ Statement: This grievance was investigated by non-

party then-Superintendent Earl Bell and denied.

Plaintiff’s Response: Admitted.

Defendants’ Statement: Plaintiff did not appeal this grievance to

[the central office review committee].

Plaintiff’s Response: Admitted in part, denied in part. Plaintiff

admits to not appealing to [the central office review committee],

but denies this bars his claims.

PSMF ¶¶ 78, 79, 81, 82 (emphases added, citations to record omitted).

The record therefore shows that the three-step grievance procedure at Clinton C.F. was

not only clear enough to use, but also that plaintiff was aware of it, that he had utilized it in prior

and unrelated instances, and that he did not pursue all three steps in complaints related to this

action. While different circumstances certainly could have supported a different conclusion,

plaintiff has failed to identify any facts in the record that would do so here. Accordingly, the

procedure was not unavailable under the exception for opacity.

2. “Machination, Misrepresentation, or Intimidation”

Plaintiff also gestures toward Ross’s third exception, unavailability due to “machination,

misrepresentation, or intimidation,” 578 U.S. at 644, arguing that “staff intimidation” constituted

“‘machination’ and ‘intimidation’ [which] thwart[ed] access” to the grievance procedure at

Clinton C.F., Pl. Opp. at 24. But even taking as true all of plaintiff’s factual contentions on this

issue, this argument fails as a matter of law.

The Second Circuit has indeed suggested that “fears related to threats or intimidation

[from prison officials] in connection with the grievance process itself” may render an

administrative remedy unavailable. Lucente, 980 F.3d at 312. Accordingly, in some scenarios,

“knowledge of threats or violence . . . by prison officials could plausibly constitute intimidation

that would satisfy the objective standard where that conduct was based upon a grievance or

complaint . . . or could reasonably be viewed . . . as an attempt to silence that inmate or others.”

Id. at 313. But whether such circumstances were present here is beyond genuine factual dispute.

That is because, even if plaintiff were subject to such intimidation, the parties do not

dispute that it did not deter plaintiff from initiating the grievance process. For example, plaintiff

noted that confinement in the special housing unit after the October 2016 incident, combined

with his claim that “[Clinton C.F.] staff ‘[would not] let [plaintiff] put in grievances’” together

constituted “physical and procedural barriers to accessing the grievance process at Clinton

[C.F.].” PSMF ¶ 113. But in the very next paragraph, plaintiff admitted to “‘putting [in]

complaints’” and “‘fil[ing] a grievance and claim’” around the same time, and then—not before,

but after doing so—receiving threats from prison staff. Id. ¶ 114. Accordingly, the record does

not establish a dispute of fact over whether prison officials’ conduct deterred plaintiff or rendered

the grievance process unavailable to him in connection with the relevant events.

Additionally, as detailed above, plaintiff elsewhere admitted that he declined to pursue

the three-step grievance process whatsoever for the October 2016 incident, electing to pursue an

outside remedy from the Office of Special Investigations instead, and that he started, but did not

complete, the three-step grievance process in connection with the November 2018 incident.

PSMF ¶¶ 78, 79, 81, 82.

As to the former incident, while the Second Circuit has held that some “concurrent

administrative investigation[s]” may bar submission of a grievance, merely electing to pursue a

different remedy, for example by complaining to the Inspector General’s Office, generally will

not render a remedy unavailable. Kearney v. Gebo, 713 F. App’x 39, 42 (2d Cir. 2017) (summary

order).8 And as to the latter, without a nonconclusory factual basis on which to conclude

otherwise, completing the first step establishes that the grievance process was available to

plaintiff. See Hall, 2023 WL 7212156, at *2. Therefore, the record does not indicate that the

administrative remedies at Clinton C.F. were unavailable to plaintiff due to prison officials’

“machination, misrepresentation, or intimidation.”

v. Exhaustion

For completeness’s sake, the Court considers separately whether plaintiff exhausted the

administrative remedies available to him at Clinton C.F. As suggested elsewhere in this order,

the record plainly shows that he did not, and no genuine, material dispute exists as to this fact.

For his part, plaintiff argues that he “exhausted available remedies through OSI,”

apparently referring to a separate process through the Office of Special Investigations. Pl. Opp.

at 24 (emphasis added, capitalization omitted). But pursuing outside or otherwise alternative

remedies, particularly when prisons’ remedies are available, does not satisfy the PLRA.

8 Defendants appropriately cite Kearney, among other cases, in observing that “[i]t is well settled that an

incarcerated individual must use the established grievance process and cannot exhaust his administrative remedies

by other processes.” Def. Reply at 19.

Kearney, 713 F. App’x at 42 (holding pursuing outside remedies is generally not exhaustion);

Jones, 549 U.S. at 218 (holding prison systems determine what constitutes exhaustion).

In this legal context, plaintiff’s own version of events essentially closes the door on his

exhaustion argument. See PSMF ¶¶ 78 (admitting to pursuing an Office of Special

Investigations remedy instead of filing grievances at Clinton C.F.), 79 (admitting to filing a

grievance pertaining to the October 2016 incident), 81 (admitting the Clinton C.F. superintendent

denied relief as to the same grievance), 82 (admitting to failing to appeal the Clinton C.F.

superintendent’s denial of the same grievance to the central office review committee).

In summary, the record shows that plaintiff did not exhaust his administrative remedies.

B. Remaining Arguments and Defenses

Beyond their disagreements concerning the PLRA, the parties offer a litany of arguments

and defenses about the substantive claims in this case. See generally Pl. Opp.; Def. Reply; Pl.

Reply. But, when applicable, the PLRA bars any non-exhausted claims from federal court. 42

U.S.C. § 1997e(a); see Amador, 665 F.3d at 96. Thus, the Court need not reach these arguments.

Further, plaintiff has expressly abandoned his Eighth Amendment excessive force claims

against Stotler and Barber pertaining to the 2018 incident; as well as his Eighth Amendment

deliberate indifference claim against Holland. Pl. Opp. at 40 (“Plaintiff concedes to dismissing

claims against Stotler and Barber for the 2018 excessive force incident.”; “Plaintiff concedes to

dismissing [the Eighth Amendment deliberate indifference] claim against Defendant Holland.”).

For the remaining claims, however, a § 1983 action is unavailable to plaintiff in this case.

V. CONCLUSION

As to the remaining claims in this case, even accepting plaintiff’s nonconclusory version

of the salient events as true and drawing all reasonable inferences in his favor, no rational juror

could find that a reasonable person in plaintiff’s position would have believed the administrative

remedies at Clinton C.F. unavailable. Therefore, plaintiff cannot pursue such claims in a § 1983

action against prison officials. Accordingly, defendants’ motion for summary judgment must be

granted, and plaintiff’s cross-motion for summary judgment must be denied.

Therefore, it is

ORDERED that

1. Defendants’ motion for summary judgment (Dkt. No. 91) is GRANTED;

2. Plaintiff’s cross-motion for summary judgment (Dkt. No. 99) is DENIED; and

3. Plaintiff’s operative complaint (Dkt. No. 28) is DISMISSED.

The Clerk of the Court is directed to terminate the pending motion, enter a judgment

accordingly, and close the file.

IT ISSO ORDERED.

Dated: September 30, 2025 □

Utica, New York. Anthony J. Brindisj

U.S. District Judg

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