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Mayo v. Phillips

United States District Court, N.D. New York

January 20, 2015

MATTHEW J. MAYO, Plaintiff,
T. PHILLIPS, et al., Defendants.

MATTHEW J. MAYO, Plaintiff, pro se,

TIMOTHY P. MULVEY, Ass't Att'y Gen., for the Defendants.


ANDREW T. BAXTER, Magistrate Judge.

In this civil rights action, plaintiff alleges that, in June 2013, five employees of the New York State Department of Correctional and Community Services ("DOCCS") violated his federal constitutional rights during his confinement at Upstate Correctional Facility ("Upstate") by using excessive force against him and/or by failing to protect him from the use of force by others. (Compl., Dkt. No. 1).[1] Presently before the court is the defendants' amended motion for summary judgment pursuant to Fed.R.Civ.P. 56, filed on July 15, 2014. (Dkt. No. 29). This matter was referred for Report and Recommendation on July 15, 2014 by Senior U.S. District Judge Frederick J. Scullin, Jr., pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).

Defendants Labarge and Phillips filed and served a prior, similar summary judgment motion on June 25, 2014. (Dkt. No. 17). After the three other remaining defendants were served in the action, defense counsel requested, and received leave to file the amended summary judgment motion on behalf of all of the remaining defendants. (Dkt. Nos. 26, 28). Plaintiff prepared and submitted a response to the original summary judgment motion on or about July 7, 2014, which was received by the Clerk's Office the day after defendants' amended summary judgment motion was filed. (Dkt. No. 31). The court stated that it would consider plaintiff's response to the first summary judgment motion in connection with the amended motion, but directed plaintiff to file any further response to the amended motion by August 11, 2014. (Dkt. No. 33).[2] Plaintiff missed the original response deadline, but in October 2014 requested, and was granted an extension of time within which to respond to the amended summary judgment motion, until December 3, 2014 To date, plaintiff has not filed any further response to the defendants' amended summary judgment motion.

For the reasons set forth below, this court recommends that defendants' amended summary judgment motion be granted. Plaintiff's remaining claims should be dismissed because no rational fact finder could conclude that he exhausted his administrative remedies, as required before filing an action under 42 U.S.C. § 1983.


Plaintiff alleges that, following his transfer from Clinton Correctional Facility to Upstate on June 3, 2013, he was escorted to his cell at Upstate by defendants Southworth and LaBarge. (Compl., Dkt. No. 1 at 8-9).[3] When they arrived at the cell, plaintiff's cellmate said that, if plaintiff was put in the cell, "there [would] be a fight." (Compl. at 9). After plaintiff asked defendants Southworth and LaBarge why they were putting him in a cell with an inmate who was threatening to fight, defendant Southworth allegedly ran into plaintiff with great force, pushed him into the wall, and then "violently slammed [plaintiff] into the floor, " causing him to hit his head and face. (Compl. at 10). Defendant LaBarge punched plaintiff under his left eye. ( Id. ). A few minutes later, two other male correctional officers ran into the cell, grabbed plaintiff roughly by his ankles, hoisted him in the air and "violently" twisted his body. (Compl. at 11). Defendant Phillips then arrived and asked plaintiff if he was ready to comply with orders. ( Id. ).

Plaintiff was roughly escorted to a holding pen, where he was told to strip down to his boxers, and pictures were taken. ( Id. ).[4] During this time, defendants LaBarge and Southworth told defendants Phillips and Rendle about the threats that plaintiff's cellmate had made against plaintiff. ( Id. ). Defendant Phillips and Rendle spoke to plaintiff about the threats, but still ordered that plaintiff be returned to that cell. ( Id. ). When plaintiff arrived at the cell, his cellmate allegedly attacked him, starting a fight between them. (Compl. at 11-13). Plaintiff was issued two misbehavior reports relating to the event of June 3, 2013-one relating to his fight with his roommate and one relating to his earlier alleged resistance to being escorted to his cell. (Exs. to Compl. Dkt. No. 1-1 at 32, 38).

Plaintiff alleges that he wrote to Upstate Superintendent Rock "multiple times" about the incidents alleged in the complaint "to no avail." (Compl. at 16-17). Plaintiff also spoke to defendant Rock personally about his problems when defendant Rock was in his housing unit, but defendant Rock told plaintiff that, because plaintiff got himself into trouble with some officers, plaintiff would have to deal with it. (Compl. at 17). Defendant Rock also allegedly told plaintiff that he would stand behind his officers even if he believed that allegations brought against an inmate "are 99.9% false." ( Id. ).

Senior District Judge Scullin, construing plaintiff's complaint liberally, allowed the following claims to proceed after sua sponte review: (1) Eighth Amendment excessive force claims against defendants Southworth, LaBarge, and two unidentified correctional officers;[5] (2) Eighth Amendment failure-to-protect claims against defendants Phillips and Rendle; and (3) a supervisory claim against defendant Rock that he failed to correct staff wrongdoing after learning of it through reports. (12/11/2013 Mem.-Decision and Order at 5-6, 12-13, Dkt. No. 4). The defendants' summary judgment motion does not address the merits of the remaining claims.[6] As discussed below, defendants contend that plaintiff failed to file or perfect an administrative grievance with respect to any of these claims, and seek summary judgment on that basis.


I. Summary Judgment

Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the ...

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