United States District Court, N.D. New York
DAMILOLA ANIMASHAUN, Plaintiff, pro se
KONSTANDINOS D. LERIS, Asst. Attorney General for Defendant
T. BAXTER, UNITED STATES MAGISTRATE JUDGE
matter has been referred to me for Report and Recommendation,
pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y.
72.3(c). This action was originally filed by plaintiff in the
Western District of New York on January 25, 2017. (Dkt. No.
1). Defendant's motion to transfer the case to the
Northern District of New York was granted on August 14, 2018,
and the case was transferred on September 18, 2018. (Dkt.
Nos. 25, 26). Plaintiff's motion for “default
judgment” was denied on October 29, 2018, and a
Mandatory Pretrial Discovery and Scheduling Order was issued
by this court on November 8, 2018. (Dkt. Nos. 29, 30).
Plaintiff's motion for reconsideration was denied on
January 28, 2019. (Dkt. No. 34).
before this court is the defendant's motion for summary
judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 36).
Plaintiff has responded in opposition to the motion, and
defendant has replied. (Dkt. Nos. 38, 39). On September 3,
2019, this court accepted plaintiff's
“sur-reply” and has considered the arguments
therein. (Dkt. Nos. 41, 42). For the following reasons, this
court agrees with defendant and will recommend dismissal of
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).
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, 467
F.3d at 272.
complaint, plaintiff alleges that on August 18, 2016, he was
incarcerated in C-Block at Auburn Correctional Facility.
(Complaint (“Compl.”) at 5). Plaintiff states
that defendant Regner was “upset” because
plaintiff was incarcerated for a crime that defendant Regner
“disliked.” Plaintiff states that defendant
Regner came to plaintiff's cell at approximately 2:00
a.m. and “spat multiple times on [him].”
(Id.) Defendant Regner then left, but came back
shortly thereafter and threw an “unknown
substance” on plaintiff which immediately irritated
plaintiff's skin, causing itching, burning, reddening,
discoloration, and a rash. (Id.)
states that he is asserting “Failure to Protect,
” which this court has interpreted as an Eighth
Amendment excessive force/cruel and unusual punishment claim.
Plaintiff seeks ninety million dollars in damages for his
recitation of the events of August 18, 2016 is very different
than plaintiff's description. Defendant Regner states
that he was working the overnight shift, assigned to C-Block,
and at approximately 2:05 a.m., during one of his rounds of
the block, defendant Regner noticed that plaintiff had a
blanket hanging from his cell gate which was obstructing the
view into plaintiff's cell. (Regner Decl. ¶ 6) (Dkt.
No. 36-10). It is against facility rules to obstruct
visibility into an inmate's cell, room, or cube.
Defendant Regner gave plaintiff a direct order to remove the
blanket. (Id.) However, plaintiff refused to do so.
(Id.) After plaintiff refused to remove the blanket,
defendant Regner removed the blanket himself by grasping it
from outside plaintiff's cell. (Regner Decl. ¶ 7).
As defendant Regner took the blanket down, plaintiff threw
the contents of a lotion bottle on defendant
Regner. (Id.) The substance covered parts
of defendant Regner's upper body, lower body, and
result of plaintiff's conduct, defendant wrote a
misbehavior report against the plaintiff. The misbehavior
report described the incident and charged plaintiff with six
rule violations, including refusing a direct order,
disorderly conduct, obstructing the visibility into his cell,
and assault. (Regner Decl. ¶ 8 & Ex. A). The
misbehavior report indicates that plaintiff was taken to the
Special Housing Unit (“SHU”) as a result of the
incident. (Regner Decl. Ex. A) (Dkt. No. 36-11). Defendant
Regner asserts that he did not verbally harass or physically
assault plaintiff in any way, nor did he ever throw any type
of substance on plaintiff. (Regner Decl. ¶ 10).
Exhaustion of Administrative Remedies
Prison Litigation Reform Act, (“PLRA”), 42 U.S.C.
§1997e(a), requires an inmate to exhaust all available
administrative remedies prior to bringing a federal civil
rights action. The exhaustion requirement applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and regardless of the
subject matter of the claim. See Giano v. Goord, 380
F.3d 670, 675-76 (2d Cir. 2004), abrogated on other grounds
by Ross v. Blake, 380 F.3d. 670 (2004) (citing
Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates
must exhaust their administrative remedies even if they are
seeking only money damages that are not available in prison
administrative proceedings. Id. at 675.
failure to exhaust is an affirmative defense that must be
raised by the defendants. Jones v. Bock, 549 U.S.
199, 216 (2007); Johnson v. Testman, 380 F.3d 691,
695 (2d Cir. 2004). As an affirmative defense, it is the
defendants' burden to establish that plaintiff failed to
meet the exhaustion requirements. See, e.g., Key v.
Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009)
Supreme Court has held that in order to properly exhaust an
inmate's administrative remedies, the inmate must
complete the administrative review process in accordance with
the applicable state rules. Jones, 549 U.S. at
218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)).
In Woodford, the Court held that
“proper” exhaustion means that the inmate must
complete the administrative review process in accordance with
the applicable procedural rules, including deadlines, as a
prerequisite to bringing suit in federal court. 548 U.S. at
grievance procedure in New York is a three-tiered process.
The inmate must first file a grievance with the Inmate
Grievance Resolution Committee (“IGRC”). N.Y.
Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1)
and (b). An adverse decision of the IGRC may be appealed to
the Superintendent of the Facility. Id. §
701.5(c). Adverse decisions at the Superintendent's level
may be appealed to the Central Office Review Committee
(“CORC”). Id. § 701.5(d). The court
also notes that the regulations governing the Inmate
Grievance Program encourage the inmate to “resolve
his/her complaints through the guidance and counseling unit,
the program area directly affected, or other existing
channels (informal or formal) prior to submitting a
grievance.” Id. § 701.3(a) (Inmate's
Responsibility). There is also a special section for
complaints of harassment. Id. § 701.8.
Complaints of harassment are handled by an expedited
procedure which provides that such grievances are forwarded
directly to the Superintendent of the facility, after which
the inmate must appeal any negative determination to the
CORC. Id. §§ 701.8(h) & (i), 701.5.
recently, the Second Circuit utilized a three-part inquiry to
determine whether an inmate had properly exhausted his
administrative remedies. See Brownell v. Krom, 446
F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State
of New York, 380 F.3d 680, 686 (2d Cir. 2004). The
Hemphill inquiry asked (1) whether the
administrative remedies were available to the inmate; (2)
whether defendants' own actions inhibiting exhaustion
estops them from raising the defense; and (3) whether
“special circumstances” justify the inmate's
failure to comply with the exhaustion requirement.
Supreme Court has now made clear that courts may not excuse a
prisoner's failure to exhaust because of “special
circumstances.” Ross v. Blake, __ U.S. __, 136
S.Ct. 1850, 1857 (June 6, 2016). “‘[M]andatory
exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial
discretion.'” Riles v. Buchanan, 656
Fed.Appx. 577, 580 (2d Cir. 2016) (quoting Ross, __
U.S. at __, 136 S.Ct. at 1857). Although Ross has
eliminated the “special circumstances” exception,
the other two factors in Hemphill - availability and
estoppel - are still valid. The court in Ross
referred to “availability” as a “textual
exception” to mandatory exhaustion, and
“estoppel” has become one of the three factors in
determining availability. Ross, __ U.S. at __, 136
S.Ct. at 1858. Courts evaluating whether an inmate has
exhausted his or her administrative remedies must focus on
whether those remedies were “available” to the
inmate. Id; see also Riles, 2016 WL 4572321 at *2.
Defendants bear the burden of proving the affirmative defense
of failure to exhaust. Williams v. Priatno, 829 F.3d
118, 122 (2d Cir. 2016).
argues that plaintiff failed to exhaust his administrative
remedies because he never filed a grievance regarding the
alleged “assault, ” notwithstanding his prior
knowledge and use of the grievance process. Defendant
supports his argument with a declaration from Cheryl
Parmiter, the IGP Supervisor at Auburn. (Parmiter Decl.
¶ 1) (Dkt. No. 36-3). IGP Supervisor Parmiter states
that plaintiff successfully attended Auburn's orientation
program, wherein inmates are introduced to grievance
procedures and how to use them at Auburn, including how the
grievance program may be accessed by inmates incarcerated in
a Special Housing Unit (“SHU”). (Parmiter Decl.
¶¶ 6, 11 & Ex. A).
Supervisor Parmiter also states that she reviewed
plaintiff's grievance files, and that plaintiff never
filed a grievance related to the claim that he was assaulted
by defendant Regner on August 18, 2016 at Auburn. (Parmiter
Decl. ¶ 15). However, on August 25, 2016, plaintiff
filed a grievance - AUB-69938-16 - in which he complained
that his property was not given to him when he was brought to
SHU on August 18, 2016, after defendant Regner issued the
misbehavior report. (Parmiter Decl. ¶ 16 & Ex. D). A
review of the grievance shows that it is coherent, detailed,
and expresses great concern for his property. (Parmiter Decl.
Ex. D). In fact, plaintiff went to great lengths to list each
item of missing property, together with the cost of each
item. (Ex. D at 1-3). Plaintiff also claimed that the officer
who packed the property, C.O. Thomas, “purposely
discarded everything that was of value to me.”
(Id. at 4). There is no mention of the alleged
assault or the incident which was the reason that plaintiff
was brought to SHU on August 18, 2016. The IGRC investigated
plaintiff's allegations and sent the findings to
plaintiff on September 1, 2016. (Id. at 5-6).
has also filed the declaration of Rachael Seguin, the
Assistant Director of the IGP for the New York State
Department of Corrections and Community Supervision
(“DOCCS”). (Seguin Decl.) (Dkt. No. 36-6).
Assistant Director Seguin is the custodian of the records
maintained by the CORC. (Seguin Decl. ¶ 3). Her records
reflect that plaintiff was incarcerated at Auburn from March
16, 2015 until September 22, 2016. (Seguin Decl. ¶ 14).
Assistant Director Seguin's records show that, from 2015
until the date of Seguin's declaration, the plaintiff
appealed a total of four grievances to the CORC, including
two grievances that plaintiff filed at Auburn prior to the
August 18, 2016 incident. (Seguin Decl. ¶ 14 & Ex.
Director Seguin's Exhibit A shows that, on October 10,
2015, while incarcerated at Auburn, plaintiff filed a
grievance complaining about disciplinary policies, and that
on June 1, 2016, plaintiff filed a grievance complaining
about a search and seizure. (Seguin Decl. Ex. A at 2). Each
of these grievances was appealed to the CORC. On December 27,
2016, after plaintiff was moved to Southport Correctional
Facility, he filed a grievance related to religion, and on
September 26, 2017, plaintiff filed a grievance relating to
“staff conduct.” (Id.) Each of these
grievances was appealed to the CORC. However, there are no
appeals of any grievances relating to the alleged assault by