The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ANDREW GAYOT,
Plaintiff, DECISION AND ORDER
v.
6:21-CV-06689 EAW
C.O. NICHOLAS SUED, et al.,
Defendants.
___________________________________
INTRODUCTION
Pro se plaintiff Andrew Gayot (“Plaintiff”)1 commenced this action pursuant to 42
U.S.C. § 1983 asserting claims that arose while he was incarcerated at Five Points
Correctional Facility (“Five Points”). (Dkt. 1). Pending before the Court is a renewed
motion for summary judgment for failure to exhaust administrative remedies filed by
defendants C.O. Nicholas Sued (“Sued”), C.O. Matthew Petrosino (“Petrosino”), C.O.
Jonathan Raymond (“Raymond”), and Sgt. Patrick Riley (“Riley”) (collectively,
“Defendants”). (Dkt. 38).
1 Plaintiff’s address of record is the Auburn Correctional Facility (Dkt. 26), but
according to the inmate lookup database maintained by the New York State Department of
Corrections and Community Supervision, Plaintiff is currently housed at the Elmira
Correctional Facility, 1879 Davis Street, P.O. Box 500, Elmira, New York 14901-0500.
See Incarcerated Lookup, NY DOCCS, https://nysdoccslookup.doccs.ny.gov (last visited
Sept. 12, 2026). Thus, it appears that Plaintiff has failed to comply with Local R. Civ. P.
5.2(d). Plaintiff is cautioned that the failure to update his address in compliance with
this Local Rule may result in dismissal of this action with prejudice. That said, the Court
will excuse Plaintiff’s noncompliance in this instance, and directs the Clerk of Court to
update Plaintiff’s address to the Elmira Correctional Facility at the noted address.
For the following reasons, the Court finds that disputed issues of material fact
prevent resolution of this issue based on the papers, and an evidentiary hearing must be
conducted pursuant to Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011).
BACKGROUND
I. Factual Background
The factual background regarding the nature of Plaintiff’s claims is set forth in detail
in the Court’s May 16, 2025 Decision and Order (Dkt. 33), familiarity with which is
assumed for purposes of the instant Decision and Order. In sum, Plaintiff alleges claims
for excessive force and failure to intervene regarding an incident at Five Points on July 28,
2021, against Defendants.
The following facts, which pertain to the exhaustion of administrative remedies, are
taken from Defendants’ Rule 56 Statement of Undisputed Facts (Dkt. 38-4), Plaintiff’s
Response to Defendants’ Statement of Material Facts (Dkt. 44 at 1-6), and the declarations
and exhibits submitted by the parties. The Court has noted the relevant factual disputes.
New York State Department of Corrections and Community Supervision
(“DOCCS”) has a three-step grievance process for incarcerated individuals set forth in 7
N.Y.C.R.R. § 701.1 et seq. (Dkt. 38-4 at ¶ 7; Dkt. 44 at ¶ 7). Plaintiff’s allegations in this
matter are subject to the grievance procedures set forth by DOCCS. (Dkt. 38-4 at ¶ 8; Dkt.
44 at ¶ 8). Plaintiff has been trained on the grievance process and educated on how to file
and appeal a grievance at Five Points. (Dkt. 38-4 at ¶ 9; Dkt. 44 at ¶ 9). Plaintiff filed
numerous grievances while incarcerated at Five Points. (Dkt. 38-4 at ¶ 10; Dkt. 44 at ¶ 10).
In approximately September of 2021, Mandi Shultz, the Inmate Grievance Program
Supervisor at Five Points, was informed by the Superintendent of Five Points that Plaintiff
inquired about the status of a grievance he filed. (Dkt. 38-4 at ¶ 11; Dkt. 38-7 at ¶ 14; Dkt.
44 at ¶ 11). Specifically, Schultz “learned that Mr. Gayot claimed he submitted a grievance
by asking Corrections Officer (‘C.O.’) Loewke to post his grievance to the facility by
placing it into the mail for him.” (Dkt. 38-4 at ¶ 12; Dkt. 44 at ¶ 12). Schultz confirmed
with C.O. Loewke that Plaintiff had presented him with an envelope to mail, the contents
of which C.O. Loewke was unaware (Dkt. 38-4 at ¶ 13; Dkt. 38-7 at ¶ 16), though Plaintiff
contends that he informed C.O. Loewke of its contents (Dkt. 44 at ¶ 13). C.O. Loewke
signed a statement confirming his receipt of an envelope from Plaintiff. (Dkt. 1-1 at 13).
Schultz states that the grievance office did not receive any correspondence from Plaintiff
regarding a July 2021 incident (Dkt. 38-4 at ¶ 14), but Plaintiff contends that this is
impossible (Dkt. 44 at ¶ 14).
On September 14, 2021, Schultz contacted Plaintiff by letter and informed him that
there were no grievances on file for him. (Dkt. 38-4 at ¶ 15). In the letter, Schultz stated,
“I spoke with CO Loewke and he does remember submitting it, however it was not received
by the grievance office.” (Dkt. 38-9 at 2). Schultz advised Plaintiff that if he wished for
the incident to be investigated, he should submit an original copy of the grievance, but
Plaintiff contends that there is no obligation for inmates to keep copies of submitted
grievances. (Dkt. 38-9 at 2; Dkt. 44 at ¶ 15). Schultz did not hear back from Plaintiff,
which Plaintiff explains is because he suspected that Schultz’s request was a form of
intentional manipulation of the grievance process. (Dkt. 38-4 at ¶ 16; Dkt. 44 at ¶ 16).
There is also no record at the Central Office Review Committee (“CORC”) of any appeal
by Plaintiff arising from the incident. (Dkt. 38-4 at ¶ 20; Dkt. 44 at ¶ 20).
II. Procedural Background
Defendants initially filed a motion for summary judgment on November 6, 2024,
arguing that Defendants were entitled to judgment because Plaintiff failed to exhaust his
administrative remedies. (Dkt. 29). Plaintiff did not respond to the motion for summary
judgment. On May 16, 2025, the Court denied the motion, concluding that Defendants
failed to submit evidence in admissible form sufficient to sustain their burden at summary
judgment. (Dkt. 33).
At a status conference on October 2, 2025, the Court granted Defendants’ oral
motion to file a successive motion for summary judgment. (Dkt. 35). On October 23,
2025, Defendants filed the instant renewed motion for summary judgment. (Dkt. 38). On
November 10, 2025, Plaintiff filed his opposition to the motion. (Dkt. 44). Defendants did
not submit a reply.
DISCUSSION
I. Summary Judgment 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). The 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).
II. Exhaustion of Administrative Remedies
Defendants’ sole argument in their renewed motion is that Plaintiff failed to exhaust
his administrative remedies.
Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[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).
To satisfy this requirement, prisoners in New York must ordinarily follow a
three-step [DOCCS] grievance process. The first step in that process is the
filing of a grievance with the Inmate Grievance Resolution Committee.
Next, the inmate may appeal an adverse decision to the prison
superintendent. Finally, the inmate may appeal the superintendent’s decision
to [CORC]. In general, it is only upon completion of all three levels of
review that a prisoner may seek relief in federal court under § 1983.
Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (citations omitted); see also
Tillman v. Phillips, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5233308, at *3 (N.D.N.Y.
Nov. 10, 2021) (“Courts in [ ]this Circuit have long recognized [DOCCS’ three-step]
procedure as an ‘available’ remedy for purposes of the PLRA.”) (quoting Hall v. Cnty. of
Saratoga, No. 10-CV-1120 (NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6,
2013)), adopted, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5768393 (N.D.N.Y. Dec. 6,
2021). “[T]he PLRA requires ‘proper exhaustion,’ which ‘means using all steps that the
agency holds out, and doing so properly (so that the agency addresses the issues on the
merits).’” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (quoting
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).
“Exhaustion is mandatory—unexhausted claims may not be pursued in federal
court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011); see also Ross v. Blake, 578
U.S. 632, 639 (2016) (“mandatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.”). “However, a prisoner need not
specifically plead or demonstrate exhaustion in the complaint because failure to exhaust
administrative remedies is an affirmative defense under the PLRA, not a pleading
requirement.” Rucker v. Giffen, 997 F.3d 88, 92 (2d Cir. 2021) (citations and internal
quotation marks omitted).
An exception from the exhaustion requirement exists where the grievance process
is unavailable. As explained by the Court of Appeals for the Second Circuit:
First, an administrative remedy may be unavailable when “it operates as a
simple dead end—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates.” Second, “an administrative scheme might
be so opaque that it becomes, practically speaking, incapable of use.” In
other words, “some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it.” Third, an administrative remedy may be
unavailable “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or
intimidation.”
Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (quoting Ross, 578 U.S. at 643-
44).
The Court has carefully reviewed the parties’ submissions in this case and concludes
that the issue of whether Plaintiff exhausted his administrative remedies and/or whether
the exception to that requirement is applicable cannot be resolved on the papers. Viewing
the facts in the light most favorable to Plaintiff, Plaintiff has raised genuine factual
questions as to the processing of the grievance that he contends was provided to C.O.
Loewke. That C.O. Loewke confirmed that Plaintiff supplied an envelope to him on or
about the time in question serves to corroborate Plaintiff’s version of events, as does
Plaintiff’s follow-up inquiry regarding the status of his grievance. Thus, Plaintiff’s
allegations go beyond a wholly speculative or conclusory claim. Nimmons v. Warden, No.
21-CV-05169 (LDH), 2025 WL 2782486, at *4 (E.D.N.Y. Sept. 30, 2025) (“[A]
conclusory claim that a grievance was lost or ignored is insufficient to overcome
exhaustion requirements.”). The fact that Defendants have no record of the grievance does
not definitively resolve the question. See Fann v. Graham, No. 915CV1339 (DNH)(CFH),
2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) (“Viewing the facts in the light most
favorable to plaintiff, the record suggests that plaintiff’s grievances were submitted, but
were unfiled and unanswered, creating an issue of fact as to whether the grievance process
was available and whether plaintiff attempted to exhaust his administrative remedies. . .
.”), report and recommendation adopted, 2018 WL 1399340 (N.D.N.Y. Mar. 19, 2018);
Thaxton v. Simmons, No. 10-CV-1318, 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013)
(“[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on
April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance
that was lost or tampered with by [d]efendants. Such credibility assessments are to be
resolved by a trier of fact.”). Moreover, whether an exception to exhaustion applies
necessarily depends, at least in part, on resolution of the factual issues concerning
Plaintiff’s alleged attempt to deliver his grievance to C.O. Loewke, and it further depends
on resolution of factual issues concerning Schultz’s communications to Plaintiff (including
the apparent requirement that he provide a copy of the original grievance).
Accordingly, at this juncture, the Court is unable to conclude as a matter of law that
the grievance process was available to Plaintiff. Thus, pursuant to Messa v. Goord, 652
F.3d 305, 309 (2d Cir. 2011), an evidentiary hearing must be held. Hudson v. Kirkey, No.
920CV0581 (LEK/DJS), 2021 WL 1966721, at *4 (N.D.N.Y. May 17, 2021)
(“Accordingly, [Defendant] has failed to demonstrate the absence of a material factual
dispute as to whether the grievance process was ‘unavailable’ due to the machinations or
misrepresentations of prison officials who inhibited the filing of Plaintiff’s submissions. .
. . In order to determine whether Plaintiff properly exhausted administrative remedies, the
Court must hold a hearing, at which a fact-finder can assess the credibility of witnesses and
the relative weight of the evidence the parties present.”). The matter is referred to United
States Magistrate Judge Colleen D. Holland pursuant to 28 U.S.C. § 636(b)(1)(B) for
purposes of conducting the exhaustion hearing and issuing a report and recommendation
concerning the same.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 38) is
denied without prejudice. The Court concludes that disputed issues of fact prevent
resolution on the papers of the issue concerning Plaintiff's exhaustion of remedies under
the PLRA. Therefore, the Court refers the issue to Magistrate Judge Holland to conduct a
hearing and issue a report and recommendation concerning the same, pursuant to 28 U.S.C.
§ 636(b)(1)(B).
SO ORDERED.
ELIZABETH 4 WOMEORD
ief Stidge
United States District Court
Dated: September 14, 2026
Rochester, New York
-10-