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Omaro v. Annucci

United States District Court, W.D. New York

November 13, 2014

DERRICK R. OMARO, 92A0608, Plaintiff,
v.
ANTHONY ANNUCCI, Commissioner N.Y.S. Department of Corrections & Community Supervision; VERNON J. FONDA, Deputy Commissioner/Inspector General N.Y.S. Department of Corrections & Community Supervision; MARK L. BRADT, Superintendent Attica Correctional Facility; WILLIAM HUGHES, Deputy Superintendent Attica Correctional FACILITY; J. CHISHOLM, Inmate Grievance Supervisor Attica Correctional Facility; and K. SHEARING, Correctional Officer Attica Correctional Facility, Defendants

Derrick R. Omaro, Plaintiff, Pro se, Comstock, NY.

For Anthony Annucci, Commissioner N.Y.S. Department of Corrections & Community Supervision, Vernon J. Fonda, Deputy Commissioner/Inspector General N.Y.S. Department of Corrections & Community Supervision, Mark L. Bradt, Superintendent Attica Correctional Facility, William Hughes, Deputy Superintendent Attica Correctional Facility, J. Chisholm, Inmate Grievance Supervisor Attica Correctional Facility, K. Shearing, Correctional Officer Attica Correctional Facility, Defendants: Hillel David Deutsch, LEAD ATTORNEY, N.Y.S. Attorney General's Office, Department of Law, Rochester, NY.

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DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

INTRODUCTION

Plaintiff Derrick O. Omaro (" Plaintiff') is an inmate in the custody of the State of

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New York who is currently confined in the Attica Correctional Facility. Plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983 on August 19, 2013. (Dkt. 1). Plaintiff alleges that on or about July 10, 2013, defendant K. Shearing engaged in sexual misconduct during the course of an improper pat-frisk, and that she removed privileged legal mail from Plaintiff's cell. ( Id. at 6).

Defendants have moved for summary judgment in lieu of an answer, arguing that Plaintiff has failed to exhaust his administrative remedies with respect to the claims raised in the complaint. (Dkt. 9). For the reasons set forth below, Defendants' motion is granted.

BACKGROUND

Plaintiff is an inmate currently confined in the Attica Correctional Facility (" Attica" ). He claims that on or about July 10, 2013, Defendant K. Shearing (" C.O. Shearing" ), a female correctional officer at Attica, ordered him to step out of his cell while he was wearing only undergarments. (Dkt. 11 at 10). Plaintiff claims that C.O. Shearing performed a pat-frisk on him despite the presence of a male correctional officer. ( Id.). According to Plaintiff, he protested the pat-frisk on the ground that he is a Muslim and was participating in a fasting period during which he was prohibited from having contact with women. ( Id. at 10-11). Plaintiff claims that C.O. Shearing sexually assaulted him during the course of the pat-frisk. ( Id. at 11). According to Plaintiff, after C.O. Shearing completed the pat-frisk, she removed certain legal documents from his cell. (Dkt. 1 at 3).

Plaintiff states that he reported this alleged sexual assault by " immediately writing a detailed report" to defendants Anthony Annuci, Vernon J. Fonda, Mark L. Bradt, William Hughes, and J. Chisholm. (Dkt. 11 at 11). Plaintiff further states that he filed grievances related to the July 10, 2013, incident. ( Id.).

In support of their motion for summary judgment, Defendants submit the declaration of Jeffery Hale, the Assistant Director of the Inmate Grievance Program for the New York State Department of Corrections and Community Supervision (" DOCCS" ). (Dkt. 9-5). Assistant Director Hale states that he is the custodian of records maintained by the Central Office Review Committee (" CORC" ), the body that renders the final administrative decisions under DOCCS' Inmate Grievance Program pursuant to 7 N.Y.C.R.R. § § 701 et seq. ( Id. at ¶ 2). Assistant Director Hale submits documentation showing that although Plaintiff has appealed nearly 100 grievances to CORC since 1992, including at least four claims that he was improperly pat-frisked and at least one claim that he was sexually assaulted by staff, he did not appeal any complaints related to the July 10, 2013, incident to CORC. ( Id. at 6-9).

Plaintiff does not claim that he appealed a grievance related to the July 10, 2013, incident to CORC. Instead, he claims: (1) that he notified the Inmate Grievance Resolution Committee (" IGRC" ) " of his desire to appeal the decision" on his grievances and that " the IGRC failed to [continue] the grievance process" (Dkt. 14 at 1); and (2) that he was not required to grieve his allegations of sexual assault as a result of the Prison Rape Elimination Act of 2003, 42 U.S.C. § § 15601 et seq., and DOCCS' Directive 4028A. ( Id. at 3).

Plaintiff commenced this lawsuit on August 19, 2013. (Dkt. 1). On January 1, 2014, Defendants moved for summary judgment in lieu of an answer, arguing that Plaintiff failed to exhaust his administrative remedies prior to commencing this action and has failed to allege personal involvement in the alleged deprivation of

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his rights by defendants Anthony Annuci, Vernon J. Fonda, Mark L. Bradt, William Hughes, and J. Chisholm. (Dkt. 9). On January 23, 2014, Plaintiff filed a motion for an extension of his time to respond to Defendants' motion for summary judgment. (Dkt. 10). On January 27, 2014, Plaintiff filed papers in opposition to Defendants' motion for summary judgment. (Dkt. 11).

This case was transferred to the undersigned on February 5, 2014. (Dkt. 12). Defendants filed a reply declaration on February 10, 2014, (Dkt. 13), and Plaintiff filed a sur-reply declaration on February 26, 2013 (Dkt. 14)[1].

DISCUSSION

I. Legal Standard


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