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McRae v. Employees of Doccs C.O.'S J. Cordero

United States District Court, S.D. New York

July 26, 2018

JAMES MCRAE, Plaintiff,

          OPINION & ORDER


         Plaintiff James McRae ("Plaintiff') commenced this pro se action under 42 U.S.C. § 1983[1] on May 29, 2015, based on an incident that occurred during his incarceration at Sing Sing Correctional Facility. (See Complaint ("Compl."), ECF No. 2.) Plaintiff alleges that Correctional Officers J. Cordero ("Cordero"), M. DeJesus ("DeJesus") and V. Smith ("Smith") (collectively, "Defendants")[2] used excessive force in violation of the Eighth Amendment's ban on cruel and unusual punishment. (See Compl. at 4.)[3] Currently before the Court is Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 for failure to exhaust administrative remedies. (ECF No. 44.) For the following reasons, Defendants' Motion is DENIED.

         I. BACKGROUND

         The following facts are drawn from the Complaint and its attachments, the parties' submissions, and the record.

         a. The July 7th Incident

         On July 7, 2014, Plaintiff enjoyed a visit from his brother while incarcerated at Sing Sing Correctional Facility (“Sing Sing”). (Compl. at 4; Compl., Ex. B, Inmate Misbehavior Report (“Misbehavior Report”) 1, ECF No. 2.) While in the designated visiting area, Defendant DeJesus observed Plaintiff's brother hand Plaintiff what appeared to be a white or beige ball. (Id., Ex. C, Mem. to Sgt. Kasper from M. DeJesus (“DeJesus Mem”) 3, ECF No. 2.) Plaintiff then placed the ball in his left pocket. (Id.) Defendant DeJesus notified Defendants Smith and Cordero, and the latter two attempted to remove Plaintiff from the visiting area. (Id.)

         Defendant Cordero then instructed Plaintiff to place his hands on the wall in preparation for a frisk search, but Plaintiff instead placed his hand in his left pocket and began struggling with the Correction Officers. (See id., Ex. C, Mem. to J. McMorrow, Lieutenant, from J. Cordero, Correction Officer (“Cordero Mem.”) 1, ECF No. 2.) In response, Cordero took Plaintiff to the ground and attempted to secure his arm to no avail. (Id.) Plaintiff subsequently place an unidentified object in his mouth. (Id.) Defendant Cordero then choked Plaintiff until he lost consciousness, resulting in broken blood vessels in Plaintiff's left eye. (See Compl. at 4; see also Cordero Mem. 1.) After Plaintiff regained consciousness, Defendants Cordero and Smith were able to regain control by forcing Plaintiff's wrists into the small of his back and applying mechanical restraints. (Cordero Mem. at 1; Compl. Ex. C., Mem. to E. Kasper, Sergeant from V. Smith, Correction Officer (“Smith Mem.”) 2, ECF No. 2.) Defendants allegedly further beat Plaintiff in the “strip/frisk” area just outside the visiting room. (Compl. at 4.)

         b. Misbehavior Report and Hearing

         On July 10, 2014, Correction Officer Taylor served Plaintiff with a misbehavior report in connection with the July 7 incident. (Misbehavior Report 1.) The report charged Plaintiff with violations of facility rules 100.11, Assault on Staff, 104.11, Violent Conduct, 106.10, Refusing a Direct Order, 114.10, Smuggling, 115.10, Violation of Search Procedures, and 180.10, Facility Visiting Violation. (Id.) The charges required a Tier III Hearing, which was held on or about July 23, 2014. (See Compl., Ex. B, Superintendent Hearing Disposition (“Superintendent Disposition”) 1, ECF No. 2.) The hearing officer found Plaintiff guilty of every charge except 100.11, Assault on Staff. (Id. at 2.) Additionally, the hearing officer found Plaintiff guilty of violating Rule 113.24, Drug Use, after his urine sample tested positive for THC-50 Cannabinoids. (Id. at 1-2.) The hearing officer sentenced Plaintiff to two months in the Solitary Housing Unit (“SHU”) and loss of other privileges during that time. (Id. at 2.)

         c. Grievance

         Plaintiff alleges that he filed a grievance regarding the July 7 Incident on July 25, 2014, while housed in the SHU (Compl., Ex. A, Inmate Grievance Complaint (“Aug. 9 Letter”) at 1, ECF No. 2; See Decl. of Neil Shevlin in Supp. of Def. Mot. (“Shevlin Decl.”), Ex. A, Deposition of James McRae (“McRae Dep.”) at 68:18-23, ECF No. 46.) After not receiving a response from the Inmate Grievance Resolution Committee (“IGRC”), Plaintiff filed a letter[4] on August 9, 2014 inquiring about the status of his July 25 Grievance. (Aug. 9 Letter at 1.) In a memorandum dated August 21, 2014, Inmate Grievance Program (“IGP”) Supervisor Quandera Quick informed Plaintiff that there was no record of his July 25th Grievance. (Compl., Ex. A., Mem. to McRae, J, from Q. Quick, IGP Supervisor (“August 21 Mem.”) 1, ECF No. 2.) It is unclear whether Plaintiff actually received Supervisor Quick's correspondence on August 21, 2014. (Def. Mem. in Supp. of Mot. to Dismiss (“Def. Mem.”) 4-5, ECF No. 44.) Plaintiff allegedly attempted to appeal his grievance but the “IGRC Sup[ervisor]” stated his Office never received the grievance. (Compl. at 6.) He did not attempt to file another grievance following Supervisor Quick's Response. (McRae Dep. 72:1-8.)


         A “court shall grant summary judgment if 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). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Benn v. Kissane, 510 Fed.Appx. 34, 36 (2d Cir. 2013) (summ. order).

         Summary judgment is appropriate where a party who bears the burden of proof at trial “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323 (internal quotation marks omitted).

         In deciding a motion for summary judgment, the Court must “constru[e] the evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotation marks omitted). However, the nonmoving party “may not rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Further, “[s]tatements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).

         Typically, a “nonmoving party's failure to respond to a [Local Civil] Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (citing Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998)). “This general rule applies equally” to cases involving a pro se nonmoving party who has been provided adequate notice of the consequences of failing to properly respond to a summary judgment motion. Pierre-Antoine v. City of N.Y., No. 04-cv-6987 (GEL), 2006 WL 1292076, at *3 (S.D.N.Y. May 9, 2006); see Gilliam v. Trustees of Sheet Metal Workers' Nat'l Pension Fund, No. 03-cv-7421 (KMK), 2005 WL 1026330, at *1 n.2 (S.D.N.Y. May 3, 2005). Nonetheless, the Court “may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement, ” Holtz v. ...

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