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Butler v. Lewis

United States District Court, E.D. New York

April 11, 2014


Plaintiff proceeds pro se.

Defendants are represented by Jason Bassett and Richard T. Dunne of the Suffolk County Department of Law, Hauppauge, NY.


JOSEPH F. BIANCO, District Judge.

Pro se plaintiff Keith Terrell Butler ("Butler" or "plaintiff') brings this action against defendants Sheriff Vincent F. DeMarco ("DeMarco"), Sgt. Louis Viscusi (s/h/a Sgt. Lewis V.) ("Viscusi"), Thomas Sharkey ("Sharkey"), Rena Walker (s/h/a Dr. Reena Walker) ("Walker"), and C.O. Investigator Peter Cherouvis (s/h/a Security Officer Sirusso) ("Cherouvis") (collectively, "defendants"), alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff claims that, while he was incarcerated at the Suffolk County Correctional Facility ("SCCF"), Viscusi and Sharkey assaulted him on September 9, 2011; Cherouvis threatened plaintiff after the alleged assault; Walker refused to document that plaintiff was injured during the alleged assault; and the conditions at SCCF are unsanitary.

Defendants move for summary judgment, arguing that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and that he has no evidence with which to sustain his allegations against DeMarco, Cherouvis, and Walker. For the following reasons, the Court concludes that plaintiff failed to exhaust his administrative remedies, and that there are no grounds for excusing that failure.[1] Accordingly, the Court grants the defendants' motion for summary judgment.

I. Background

A. Factual Background

The following facts are taken from the parties' depositions, declarations, exhibits, and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the nonmoving party. See, e.g., Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005). Unless otherwise noted, where a party's Rule 56.1 statement is cited, that fact is undisputed or the opposing party has not pointed to any evidence in the record to contradict it.

1. The Alleged Assault

Plaintiff entered SCCF on August 24, 2011, and was transferred to the Downstate Correctional Facility on November 8, 2011. (Def. 56.1 ¶ 1.) The complaint revolves around an incident on September 9, 2011. (Amended Complaint, at IV.)

According to a letter from Viscusi to Internal Affairs ("IA"), on September 9, 2011, Butler allegedly said that "he couldn't live in the 3 S/E tier and he was relocated to the E 2/N tier without incident [that day]. There was an incident that took place on 09/10/11 that involved inmate Butler, incident report was filed." (Viscusi Internal Affairs Letter, Butler Opp. Ex. 5.) Plaintiff claimed that he was beaten up during the move on September 9. (Interview Notes, Butler Opp. Ex. 6.) According to an Incident Report from September 10, 2011, on that day, a tied-up sheet was obstructing Sharkey's view of Butler's cell. (Incident Report, Butler Opp. Ex. 2.) Butler refused to comply with Sharkey's initial orders to take the sheet down, but he eventually took it down. ( Id. ) As Sharkey walked away, Butler yelled, "Suck my dick." ( Id. ) Sharkey reported this to Viscusi, who ordered Butler to come to the sally port. ( Id. ) Butler refused. ( Id. ) Lieutenant Sammartino then assembled an extraction team to relocate Butler to disciplinary housing. ( Id. ) According to Sammartino, the move was videotaped, and Butler was relocated without incident. ( Id. )

According to an IA Case Status Report from February 9, 2012, Butler claimed that he received a scratch behind his left ear, a bruise to the upper right thigh, and back pain on September 9. (Internal Affairs Case Status Report, Butler Opp. Ex. 12.) Investigators found no record of any incident. ( Id. ) Butler was seen by medical personnel on September 9, but IA concluded that the medical records "suggest the ecchymosis [on the thigh] is an older resolving injury and the back pain is a continuous issue." ( Id. )

2. Grievance Procedure

SCCF has a three-tiered formal grievance procedure, which is detailed in the SCCF Inmate Rules and Regulations Booklet (the "Inmate Handbook"). (See Inmate Handbook, Declaration of Jason Bassett ("Bassett Decl.") Ex. C.) Each inmate receives a copy of the Handbook upon entering the facility. ( See Affidavit of Matthew Bogert ("Bogert Aff.") ¶3, Bassett Decl. Ex. A.) Plaintiff received the Inmate Handbook on August 24, 2011. ...

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