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Grant v. Kopp

United States District Court, N.D. New York

May 17, 2018

BRANDON GRANT, Plaintiff,
v.
KOPP, Correction Officer, Shawangunk Correctional Facility, Defendant.

          FOR PLAINTIFF: BRANDON GRANT, Pro se

          FOR DEFENDANT: BARBARA D. UNDERWOOD Acting New York State Attorney General

          HELENA O. PEDERSON, ESQ. Assistant Attorney General

          REPORT AND RECOMMENDATION

          DAVID E. PEEBLES, U.S. MAGISTRATE JUDGE.

         This is a civil rights action brought by pro se plaintiff Brandon Grant, a New York State prison inmate, pursuant to 42 U.S.C. § 1983. Although his complaint asserted additional claims against other individuals, the only remaining cause of action is an Eighth Amendment excessive force claim asserted against D. Kopp, a corrections officer at the facility in which plaintiff was confined at the relevant times.

         In response to plaintiff's complaint, defendant has moved for its dismissal, arguing that, on its face, the complaint demonstrates that Grant failed to fully exhaust available administrative remedies before commencing suit. For the reasons set forth below, I recommend that defendant's motion be denied.

         I. BACKGROUND[1]

         Plaintiff is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 1. While he is currently confined elsewhere, at the times relevant to the claims set forth in his complaint, plaintiff was designated to the Shawangunk Correctional Facility ("Shawangunk"), located in Wallkill, New York. Id.

         The sequence of events giving rise to plaintiff's claim against defendant Kopp was set in motion on August 6, 2017, when plaintiff slipped and fell in a special housing unit shower. Dkt. No. 1 at 6-7. As a result of the fall plaintiff was knocked unconscious, and non-medical personnel at the facility "dragged" him out of the shower. Id. After being administered four shots of "Narcain" by medical personnel based upon their belief that plaintiff had overdosed on heroin, Grant was transferred to a local hospital via ambulance for x-rays and was returned later in the day to the prison. Id. at 6-8.

         On August 7, 2017, while confined in the Shawangunk infirmary, plaintiff awoke and pressed a call button in an attempt to alert an officer. Dkt. No. 1 at 8. When defendant Kopp arrived shortly thereafter, the officer referred to plaintiff as a drug user, charged at him, and kicked his right foot, causing Grant's orthopedic boot, which had been secured to his right foot as treatment for a fracture, to fall off and slide across the room. Id. Defendant Kopp threatened plaintiff with additional violence if he again pressed the call button. Id.

         II. PROCEDURAL HISTORY

         Plaintiff commenced this action on November 8, 2017. Dkt. No. 1. Plaintiff's complaint was accompanied by an application for leave to proceed in the action in forma pauperis ("IFP"). Id. Dkt. No. 2.

         On December 8, 2017, Senior District Judge Gary L. Sharpe issued a decision in which he granted plaintiff's IFP application and, following an initial review of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A, dismissed all of plaintiff's causes of action, with the exception of the excessive force claim asserted against defendant Kopp.[2] Dkt. No. 8 at 12-13.

         Defendant Kopp filed a motion to dismiss plaintiff's remaining claim for failure to state a claim upon which relief may be granted on February 16, 2018. Dkt. No. 19. In his motion, defendant argues that plaintiff's complaint makes it clear that plaintiff did not complete the applicable grievance process and, therefore, failed to exhaust the available administrative remedies. Dkt. No. 19-1 at 4-8. Plaintiff has since responded in opposition to defendant's motion, Dkt. No. 21, which is now fully briefed and ripe for determination and has been referred to me for the issuance of ...


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