United States District Court, N.D. New York
HAMLETT Plaintiff pro se
ERIC T. SCHNEIDERMAN Attorney General of the State of New
York Attorney for Defendants
E. VALDER, ESQ. Assistant Attorney General
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE
pro se civil rights action commenced pursuant to 42
U.S.C. § 1983 by Plaintiff John Hamlet, an inmate in the
custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), has been
referred for Report and Recommendation by the Hon. Gary L.
Sharpe, Senior U.S. District Judge, pursuant to 28 U.S.C.
§ 636(b) and Northern District of New York Local Rule
filed his complaint in this pro se § 1983
action alleging retaliation in violation of his First
Amendment rights and excessive force in violation of his
rights under the Eighth Amendment, together with a motion for
leave to proceed in forma pauperis (“IFP
Application”), on August 24, 2017. (Dkt. Nos. 1, 2.) In
a Decision and Order filed October 11, 2017, Judge Sharpe
granted Plaintiff's IFP Application, and upon initial
review of the complaint in accordance with 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Judge Sharpe
dismissed Plaintiff's retaliation claims. (Dkt. No. 11 at
Plaintiff's excessive force claim survived initial
matter is now before the Court on the motion of remaining
Defendants Clinton Correctional Facility
(“Clinton”) Sergeant Patrick Stotler
(“Stotler”), and Clinton Corrections Officers
Joseph Collins (“Collins”) and John Doe, for
summary judgment pursuant to Federal Rule of Civil Procedure
56. (Dkt. No. 16.) Defendants seek summary judgment on the
ground that Plaintiff failed to exhaust available
administrative remedies before commencing the action. See
Id. Plaintiff has responded in opposition to the motion
claiming that administrative exhaustion was unavailable to
him and Defendants have filed reply papers. (Dkt. Nos. 20,
reasons explained below, the Court recommends that
Defendants' motion for summary judgment on exhaustion
grounds be denied.
Alleged Use of Excessive Force
alleges that on the morning of September 10, 2014, while he
was housed at Clinton, he was stopped by multiple officers
while on his way to an Inmate Liaison Committee meeting as a
representative of C-Block. (Dkt. No. 1 at 4.) Plaintiff
claims to have been pat frisked and taken back to C-Block
where he was placed in the shower area. Id.
Plaintiff was thereafter placed in front of his cell while it
was searched by Officer Stickney. (Dkt. No. 1 at 4.) Stickney
came out of the cell with a weapon, which Plaintiff claims
was planted, in his hand and called Defendant Stotler.
Id. Stotler and Defendant Collins then escorted
Plaintiff to the Clinic First Floor room to strip frisk him.
Id. Defendant Doe, who identified himself to
Plaintiff as “D. White-Cracker, ” joined the
frisk and all three of them allegedly assaulted Plaintiff.
Id. Plaintiff claims that Collins punched him in the
back in the area of his left kidney as Plaintiff was facing
the wall with his legs spread and his hands on the wall,
causing Plaintiff to defecate. Id. at 5. Stotler,
Collins, and Doe punched Plaintiff in the back of the head.
Id. Plaintiff was then taken down to the floor with
his arms and legs and torso twisted in different directions
by Stotler and Collins. Id. Plaintiff was then
kicked, punched, and hit with a night stick multiple times by
Doe and was kicked and punched by Stotler and Collins while
Collins straddled him bending his wrist and fingers, twisting
his ankle, and exposing his rib area to be hit by Doe.
was lifted to his feet and Stotler left the room.
Id. With feces on his backside, Plaintiff was told
to strip and squat while the officers laughed. Id.
Stotler returned with clean underwear and Plaintiff was
permitted to clean himself. Id. Plaintiff was told
to sit in the “boss chair” and was then choked,
leaving him with a sore throat and jaw. Id. Collins
threatened that if Plaintiff told the nurse anything they
would kill him. Id.
was then taken to E-Block and placed in a cell for ten
minutes before being taken to the Special Housing Unit
(“SHU”). Id. According to Plaintiff, he
sustained a lump on his head behind his ear and broken left
rib in addition to the sore throat during the alleged assault
by Defendants. Id.
complaint, Plaintiff alleges he filed numerous grievances at
Clinton after the alleged assault and sent complaints to the
Clinton Superintendent. (Dkt. No. 1 at 6.) In his affidavit
in opposition to Defendants' motion, Plaintiff states
that he wrote his first of two grievances regarding the
assault and lack of medical treatment on September 10, 2014,
the day of the assault. (Dkt. No. 20-2 at 1.) The September
10, 2014, grievance, which is annexed to Plaintiff's
affidavit in opposition, complained about the planting of a
weapon in his cell and the subsequent assault by the
“escorting Sergeant, Officer Collins, and another
Unknown Named Officer.” Id. at 4. Plaintiff
also complained of being denied medical care despite likely
having broken ribs and suffering from dizzy spells.
Id. Plaintiff asked that he be moved for his safety
and be provided a camcorder, that he be given medical
treatment, and that the officers be punished. Id.
Plaintiff stated he wanted to file criminal charges against
Defendants. Id. The grievance indicates copies were
sent to Richard Langone, Esq., Clinton Superintendent
Racette, and DOCCS Commissioner Anthony Annucci. Id.
second grievance, dated September 19, 2014, was more detailed
regarding the retaliatory reasons for the alleged assault,
the assault itself, injuries sustained by Plaintiff, and the
lack of medical care for his injuries. Id. at 7. The
grievance indicates that copies were sent to the New York
State Commission of Correction and the Clinton County
Sheriff's Office. Id. at 9. Plaintiff states in
his affidavit that he gave the grievances to the corrections
officers on rounds to pick up mail in SHU unit 14 where he
was housed following the alleged assault, as was the
procedure at Clinton. Id. at 1.
was transferred from Clinton to Southport Correctional
Facility (“Southport”) on September 30, 2014.
(Dkt. Nos. 16-5 at 3; 16-9 at 3.) A week later, on October 7,
2014, Plaintiff was transferred from Southport to Five Points
Correctional Facility (“Five Points”). (Dkt. Nos.
16-9 at 3; 16-7 at 3.) On October, 24, 2014, while housed at
Five Points, Plaintiff wrote to the Clinton Inmate Grievance
Program (“IGP”) supervisor requesting a number
for his September 10, 2014, grievance. (Dkt. No. 23-2 at 4.)
Plaintiff wrote in the letter that he had filed a grievance
with the IGP regarding the September 10, 2014, assault and
had sent the Superintendent a copy. Id. He noted in
the letter that an investigation had been started by the
Inspector General but that he had not received a number for
the grievance he filed. Id. Plaintiff copied Richard
Langone, Esq., on the letter. Id.
October 30, 2014, memorandum, Clinton IGP Supervisor
Christine Gregory (“Gregory”) wrote “[t]he
last grievance on file for DIN# 08A0598 for the year 2014 was
filed on 7/9/14. There is no grievance on file for you
concerning an incident of 9/10/14.” Id. at 6.
Plaintiff responded to Gregory's memorandum on November
11, 2014. Id. at 8. Plaintiff wrote that he had
filed many more grievances since July 9, 2014, and he