United States District Court, S.D. New York
Ceara Ossining, NY Pro Se Plaintiff
Bradley Gordon Wilson, Esq. Frederick Hongyee Wen, Esq.
Attorney General of the State of New York New York, NY
Counsel for Defendant
OPINION & ORDER
KENNETH M. KARAS, District Judge
Ceara (“Plaintiff”) brought the instant pro se
Action pursuant to 42 U.S.C. § 1983 against New York
State Department of Corrections and Community Supervision
Joseph Deacon (“Deacon” or
“Defendant”), alleging that Defendant subjected
Plaintiff to excessive force when Defendant pushed Plaintiff
down several stairs, and then threatened Plaintiff to deter
him from filing a grievance about the incident, in violation
of his rights under the Eighth and Fourteenth Amendments of
the United States Constitution. (See Am. Compl.
(Dkt. No. 7).) Before the Court is Defendant's Motion For
Summary Judgment pursuant to Federal Rule of Civil Procedure
56. (See Notice of Mot. for Summ. J. (Dkt. No. 44).)
The Motion advances only the arguments that Plaintiff's
Action is time-barred and that Plaintiff failed to exhaust
his administrative remedies. For the following reasons,
Defendant's Motion is granted.
arrived at Downstate Correctional Facility
(“Downstate”) on August 13, 2010 and was placed
in D Block in Complex 1. (See Def.'s Statement
Pursuant to Local Rule 56.1 (“Def.'s 56.1”)
¶¶ 1, 2 (Dkt. No. 48); Pl.'s Opposing Statement
Pursuant to Local Rule 56.1 (“Pl.'s 56.1”)
¶ 1 (Dkt. No. 51).) Plaintiff stayed in D Block until he
was transferred to Elmira Correctional Facility
(“Elmira”) on or around September 24, 2010.
(See Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶
Defendant was a regular block officer on D Block in Complex 1
when Plaintiff lived in D Block. (See Def.'s
56.1 ¶ 3; Pl.'s 56.1 ¶ 3.) As the block
officer, Defendant would normally walk around and check cells
on D Block. (See Def.'s 56.1 ¶ 3; Pl.'s
56.1 ¶ 3.) Defendant's brother also regularly worked
as an officer on D Block. (Dep. of Rafael Ceara (Nov. 20,
2015) (“Pl.'s Dep.”) 27-28 (Dkt. No. 45-1).)
September 5, 2010, Plaintiff either fell, (Def.'s 56.1
¶ 4), or was pushed by Defendant, (Pl.'s 56.1 ¶
4), down a set of stairs. This disagreement is immaterial for
purposes of this Motion. After the incident, Plaintiff went
to the medical unit and filled out an Inmate Injury Report,
in which he stated that “C.O. Deagon pushed me down the
stairs with extreme force.” (See Def.'s
56.1 ¶ 4; Pl.'s 56.1 ¶ 4; Pl.'s Ex. N-1
(Dkt. No. 53-12).) The next day, Plaintiff wrote to Ada
Perez, the Superintendent of Downstate (“Perez”),
and stated that “Officer Deagan” pushed him down
the stairs. (See Def.'s 56.1 ¶ 5; Pl.'s
56.1 ¶ 5; Pl.'s Ex. E-1 (Dkt. No. 53-5).)
September 9, 2010, Plaintiff filed a grievance relating to
the September 5 incident, which stated that “C.O[.]
Deagan” pushed him down the stairs. (See
Def.'s 56.1 ¶ 6; Pl.'s Ex. D-2 (Dkt. No. 53-4).)
On September 17, 2010, Plaintiff drafted an Inmate Grievance
Complaint, which stated that “officers” threw
Plaintiff down several flights of stairs and, in the
subsequent days, threatened his life and well-being.
(See Def.'s 56.1 ¶ 8; Pl.'s 56.1 ¶
8; Pl.'s Ex. D-3 (Dkt. No. 53-4).) The grievance
complaint read at the top: “Note: this is my second
grievance on this matter.” (Pl.'s 56.1 ¶ 6;
Pl.'s Ex. D-3.) Plaintiff averred that he wrote this
second grievance because he “had not heard [anything]
or receive[d] any response from [the] first grievance [filed]
8 day[s] prior.” (Pl.'s 56.1 ¶ 8.) On or about
September 27, 2010, Lieutenant McKeon (“McKeon”)
interviewed Plaintiff regarding Plaintiff's grievance.
(Def.'s 56.1 ¶ 9; Pl.'s 56.1 ¶ 9; Pl.'s
October 5, 2010, Perez decided Plaintiff's grievance.
(Pl.'s Ex. A-3 (Dkt. No. 53-1).) The decision stated that
the “[i]nvestigation reveals no evidence to support
[Plaintiff's] allegations of staff misconduct.”
(Id.) The decision also included a form appeal
statement. (Id.) It is undisputed that Plaintiff did not
appeal Perez's decision to the Central Office Review
Committee (“CORC”). (Def.'s 56.1 ¶ 11;
Pl.'s 56.1 ¶ 11.) However, Plaintiff avers that he never
received Perez's decision or any appeal form. (Pl.'s
56.1 ¶¶ 11, 13.)
October 28, 2010, Plaintiff met with Investigator Todd
(“Todd”) from the Department of Corrections and
Community Supervision Inspector General's Office, and
Plaintiff told Todd that Defendant pushed him down the
stairs. (See Def.'s 56.1 ¶ 7; Pl.'s
56.1 ¶ 7.) Todd's notes contain multiple references
to “C.O. Deagan.” (See Pl.'s Ex. H-1
(Dkt. No. 53-7).) The notes indicate that Defendant's
brother also works in the same area at Downstate and that
Defendant is the “taller” of the two brothers.
around July 25, 2012, Plaintiff sent a letter to Karen
Bellamy (“Bellamy”), Director of the Inmate
Grievance Program (“IGP”). (Def.'s 56.1
¶ 12; Pl.'s 56.1 ¶ 12; Pl.'s Ex. B-2 (Dkt.
No. 53-2).) The letter referred to Plaintiff's
grievance related to the September 5 incident and stated
“I would like a response by CORC on behalf of such
grievance. I had never gotten a response on such grievance
and it was never brought up.” (Pl.'s Ex. B-2.) On
September 14, 2012, Jeffrey Hale (“Hale”),
Assistant Director of IGP, responded to Plaintiff's
letter and told Plaintiff that his grievance “was
answered by the Superintendent on September 10, 2010 and
[Plaintiff] did not appeal.” (Def.'s 56.1 ¶
13; Pl.'s 56.1 ¶ 13; Pl.'s Ex. B-1 (Dkt. No.
53-2); Pl.'s Ex. D-3.) Hale avers that he recently
reviewed CORC records to determine whether Plaintiff appealed
the relevant grievance to CORC and the records demonstrate
that Plaintiff “did not appeal to CORC any grievances
that he filed while at Downstate Correctional Facility,
” including the grievance at issue here. (Decl. of
Jeffery Hale (“Hale Decl.”) ¶¶ 4-5, 7
(Dkt. No. 46).)
filed his original Complaint on August 22, 2013.
(See Compl. (Dkt. No. 2).) The original Complaint
named “Correctional Officer John Doe which [sic] worked
at Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5,
2010 on [sic] the 7 a[.]m[.] [to] 3 p[.]m[.] shift in
D-Block, Complex 1” as the defendant. (Id. at
1.) Directly below the information provided about the
defendant, Plaintiff stated that he “wrote to [the]
Inspector General for [the] full names and have had no
respon[s]e.” (Id.) In parenthesis, the
Complaint notes “C.O. Deagan, [h]e has [an] old[er]
brother by [the] same name.” (Id.) As
“Defendant No. 1, ” Plaintiff listed “John
Doe (C[.]O. Deagan younger brother).” (Id.)
September 5, 2013, the Court issued an Order pursuant to
Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997),
directing the New York State Attorney General (the
“Attorney General”) to ascertain the identity and
address of the John Doe Defendant that Plaintiff named in the
original Complaint within 60 days. (See Order of
Service (Dkt. No. 5).) The Order provided that
“Plaintiff must file an amended complaint naming the
John Doe Defendant” within 30 days of receiving
information about the defendant from the Attorney General.
(Id. at 2.) In response, the Attorney General
notified the Court and Plaintiff by letter dated October 25,
2013, that “Officer John Haag and Officer Joseph Deacon
were on duty during the 7:00 a.m. to 3:00 p.m. shift on
September 5, 2010.” (Letter from Richard W. Brewster,
Esq., to the Court (Oct. 25, 2013) (Dkt. No. 6).) Plaintiff
then filed the Amended Complaint on November 22, 2013,
substituting “Joseph Deacon, D.O.C.C.S., Officer”
for “Correctional Officer John Doe.” (Am. Compl.
filed a Motion To Dismiss, which was fully briefed on
September 19, 2014, and sought to dismiss the Complaint on
timeliness grounds only. (Dkt. Nos. 17-20.) On November 25,
2014, the Court issued an Opinion and Order denying
Defendant's motion. (See Op. & Order
(“Opinion”) (Dkt. No. 21).) The Court found that
Plaintiff sufficiently alleged that his Amended Complaint,
filed after the statute of limitations had run, related back
to the filing of the original Complaint under Federal Rule of
Civil Procedure 15(c)(1)(A). (Id. at 17.)
filed the instant Motion For Summary Judgment, (Notice of
Mot. for Summ. J.), and accompanying memorandum of law on
February 5, 2016, (see Mem. of Law in Supp. of
Def.'s Mot. for Summ. J. (“Def.'s Mem.”)
(Dkt. No. 49)). Plaintiff submitted a memorandum of law in
opposition to the Motion on April 5, 2016. (See Mem.
of Law in Supp. of Pl.'s Opposing [sic] Def.'s Mot.
for Summ. J. (“Pl.'s Opp'n”) (Dkt. No.
53).) Defendant filed his reply on April 19, 2016.
(See Reply Mem. of Law in Supp. of Def.'s Mot.
for Summ. J. (“Def.'s Reply”) (Dkt. No. 56).)
Pursuant to an Order issued August 8, 2016, the Court
requested supplemental briefing on the issue of whether
Plaintiff's Amended Complaint should relate back to his
original Complaint under Federal Rule of Civil Procedure
15(c)(1)(C). (See Dkt. No. 60.) Defendant filed a
supplemental memorandum of law on August 26, 2016,
(see Suppl. Mem. of Law in Supp. of Def.'s Mot.
for Summ. J. (“Def.'s Suppl. Mem.”) (Dkt. No.
61)), and Plaintiff filed his supplemental response on
September 28, 2016, (see Mem. of Law in Supp. of
Pl.'s Suppl. Briefing (“Pl.'s Suppl.
Mem.”) (Dkt. No. 67)).
Standard of Review
judgment is appropriate where the movant shows 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); see also Psihoyos v. John
Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.
2014) (same). “In determining whether summary judgment
is appropriate, ” a court must “construe the
facts in the light most favorable to the non-moving party and
. . . resolve all ambiguities and draw all reasonable
inferences against the movant.” Brod v. Omya,
Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal
quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16
F.Supp.3d 294, 314 (S.D.N.Y. 2014) (same). Additionally,
“[i]t is the movant's burden to show that no
genuine factual dispute exists.” Vt. Teddy Bear Co.
v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004);
see also Aurora Commercial Corp. v. Approved Funding
Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y.
Apr. 9, 2014) (same). “However, when the burden of
proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of
evidence to go to the trier of fact on an essential element
of the nonmovant's claim, ” in which case
“the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for
trial in order to avoid summary judgment.” CILP
Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d
114, 123 (2d Cir. 2013) (alterations and internal quotation
marks omitted). Further, “[t]o survive a [summary
judgment] motion . . ., [a nonmovant] need[s] to create more
than a ‘metaphysical' possibility that his
allegations were correct; he need[s] to ‘come forward
with specific facts showing that there is a genuine issue for
trial, '” Wrobel v. County of Erie, 692
F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)), and “cannot rely on the
mere allegations or denials contained in the pleadings,
” Walker v. City of New York, No. 11-CV-2941,
2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal
quotation marks omitted) (citing, inter alia, Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009)).
a motion for summary judgment, a fact is material if it might
affect the outcome of the suit under the governing
law.” Royal Crown Day Care LLC v. Dep't of
Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir.
2014) (internal quotation marks omitted). At summary
judgment, “[t]he role of the court is not to resolve
disputed issues of fact but to assess whether there are any
factual issues to be tried.” Brod, 653 F.3d at
164 (internal quotation marks omitted); see also In re
Methyl Tertiary Butyl Ether Prods. Liab. Litig., MDL No.
1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3,
2014) (same). Thus, a court's goal should be “to
isolate and dispose of factually unsupported claims.”
Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386
F.3d 485, 495 (2d Cir. 2004) (internal quotation marks
omitted) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986)). Finally, the Second Circuit has
instructed that when a court considers a motion for summary
judgment, “special solicitude” should be afforded
a pro se litigant, see Graham v. Lewinski, 848 F.2d
342, 344 (2d Cir. 1988); Mercado v. Div. of N.Y. State
Police, No. 96-CV-235, 2001 WL 563741, at *7 (S.D.N.Y.
May 24, 2001) (same), and a court should construe “the
submissions of a pro se litigant . . . liberally” and
interpret them “to raise the strongest arguments that
they suggest, ” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics and
internal quotation marks omitted).
Exhaustion of Administrative Remedies
Prison Litigation Reform Act (“PLRA”), provides
that “[n]o action shall be brought with respect to
prison conditions under [§] 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). The exhaustion
requirement applies to all personal incidents while in
prison. Porter v. Nussle, 534 U.S. 516, 532 (2002)
(holding exhaustion is required for “all inmate suits
about prison life, whether they involve general circumstances
or particular episodes”); see also Johnson v.
Killian, 680 F.3d 234, 238 (2d Cir. 2012) (same), and
includes actions for monetary damages despite the fact that
monetary damages are not available as an administrative
remedy, Booth v. Churner, 532 U.S. 731, 741 (2001)
(holding exhaustion is required “regardless of the
relief offered through administrative procedures”).
Moreover, the PLRA mandates “‘proper
exhaustion'-that is, ‘using all steps that the
agency holds out, and doing so properly, ' . . . .
[which] entails . . . ‘completing the administrative
review process in accordance with the applicable procedural
rules.'” Amador v. Andrews, 655 F.3d 89,
96 (2d Cir. 2011) (quoting Woodford v. Ngo, 548 U.S.
81, 88, 90 (2006) (alteration omitted)). Finally, the PLRA
applies even to a plaintiff who is not currently
incarcerated, provided that he had been incarcerated when he
brought his initial suit. See Berry v. Kerik, 366
F.3d 85, 87 (2d Cir. 2004) (“Because [the ...