United States District Court, N.D. New York
DANIEL MASAS, Plaintiff, pro se.
JOSHUA L. FARRELL, Ass't Att'y Gen., for the Defendants.
ANDREW T. BAXTER, Magistrate Judge.
In this civil rights action, plaintiff claims that, in 2013, two correction officers ("COs") of the New York State Department of Correctional and Community Services ("DOCCS") violated plaintiff's federal constitutional rights during his confinement at Mid-State Correctional Facility ("Mid-state"). In particular, the amended complaint alleges that defendants Conte and Kochan harassed and threatened plaintiff if he would not shave his beard, contrary to plaintiff's Muslim faith; that CO Kochan grazed plaintiff on the back of his head while trying to knock off plaintiff's kufi; and that CO Conte delayed plaintiff's medical treatment for an inflamed appendix for approximately two and a half hours. (Am. Compl., Dkt. No. 19).
Presently before the court is the defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt. No. 44), to which plaintiff did not respond. This matter was referred for Report and Recommendation on October 6, 2014 by Chief U.S. District Judge Gary L. Sharpe, pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c).
For the reasons set forth below, this court recommends that defendants' summary judgment motion be granted. Plaintiff's 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.
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 non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin v. Goord, 467 F.3d at 272.
To be sufficient to create a "factual issue, " in the context of a summary judgment motion, an allegation in an affidavit or verified complaint must not be conclusory or overly general. Smith v. Woods, 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006). Even where a complaint or affidavit contains specific assertions, the allegations "may still be deemed conclusory if [they are] (1) largely unsubstantiated by any other direct evidence' and (2) so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.'" Id., 2006 WL 1133247, at *3 & n.11 (quoting Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) ("While it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, '... and thus whether there are any "genuine" issues of material fact, without making some assessment of the plaintiff's account.")).
II. Exhaustion of Administrative Remedies
As noted above, plaintiff has interpreted his amended complaint to state two civil rights claims-that, in April 2013, the defendants threatened to assault plaintiff if he would not shave his beard, contrary to his Muslim religious beliefs,  and that defendant Conte delayed plaintiff's medical care for his appendix in the summer of 2013. (Pl.'s Dep. Tr. at 9-17). Based on the record discussed below, the court concludes that no reasonable fact finder could conclude that the plaintiff filed and/or appealed grievances relating ...