United States District Court, N.D. New York
DOWLING Plaintiff pro se
OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for
Defendants DAVID ROSENBERG, AAG
D'Agostino, U.S. District Judge:
commenced this action pursuant to 42 U.S.C. § 1983,
asserting a claim arising from his incarceration at Greene
Correctional Facility ("Greene C.F.") while in the
custody of the Department of Corrections and Community
Supervision ("DOCCS"). See Dkt. No. 11 at
1. In his amended complaint, Plaintiff alleges that
Defendants violated his civil rights by filing a false report
against him and confining him to the Special Housing Unit
("SHU") for his attempt to seek redress through a
superior officer and grievance in violation of the First
Amendment of the United States Constitution. See
Dkt. No. 11. On February 1, 2018, Defendants filed a motion
to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). See Dkt. No. 22.
August 3, 2018 Report-Recommendation and Order, Magistrate
Judge Stewart recommended that the Court deny the motion as
to Plaintiffs First Amendment retaliation claim against
Defendants Schleicher and Barkman, because Plaintiff pled
sufficient facts to state a claim. See Dkt. No. 28.
On September 18, 2018, the Court adopted Magistrate Judge
Stewart's Report-Recommendation and Order. See
Dkt. No. 31.
pending before the Court is the remaining Defendants'
motion for summary judgment. See Dkt. No. 40. In
their motion, Defendants seek summary judgment on both the
merits of Plaintiff s First Amendment claim and on the ground
that he failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act
("PLRA"). See Id. Plaintiff has not
responded to the pending motion.
December 20, 2019 Report-Recommendation and Order, Magistrate
Judge Stewart recommended that the Court grant
Defendants' motion in its entirety. See Dkt. No.
43. In his decision, Magistrate Judge Stewart first found
that no dispute of material fact exists as to the lack of a
causal connection between Plaintiffs protected activity and
the alleged adverse action. See Id. at 7-9.
Additionally, Magistrate Judge Stewart found that dismissal
was also appropriate under the PLRA because Plaintiff failed
to properly grieve his claims against the remaining
Defendants and that administrative remedies were available to
Plaintiff. See Id. at 11-14. Neither party objected
to Magistrate Judge Stewart's Report-Recommendation and
may grant a motion for summary judgment only if it determines
that there is no genuine issue of material fact to be tried
and that the facts as to which there is no such issue warrant
judgment for the movant as a matter of law. See Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994)
(citations omitted). When analyzing a summary judgment
motion, the court "'cannot try issues of fact; it
can only determine whether there are issues to be
tried.'" Id. at 36-37 (quotation and other
citation omitted). Moreover, it is well-settled that a party
opposing a motion for summary judgment may not simply rely on
the assertions in its pleadings. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P.
assessing the record to determine whether any such issues of
material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986))
(other citations omitted). Where the non-movant either does
not respond to the motion or fails to dispute the
movant's statement of material facts, the court may not
rely solely on the moving party's Rule 56.1 statement;
rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5
(2d Cir. 2003) (holding that not verifying in the record the
assertions in the motion for summary judgment "would
derogate the truth-finding functions of the judicial process
by substituting convenience for facts").
a pro se case, the court must view the submissions
by a more lenient standard than that accorded to 'formal
pleadings drafted by lawyers.'" Govan v.
Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007)
(quoting Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972)) (other citations omitted).
The Second Circuit has held that the court is obligated to
"'make reasonable allowances to protect pro
se litigants'" from inadvertently
forfeiting legal rights merely because they lack a legal
education. Govan v. Campbell, 289 F.Supp.2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)). "This liberal standard, however,
does not excuse a pro se litigant from following the
procedural formalities of summary judgment."
Id. at 295 (citing Showers v. Eastmond, 00
CIV. 3725, 2001 WL 527484, *1 (S.D.N.Y. May 16, 2001)).
Specifically, "a pro se party's 'bald
assertion,' completely unsupported by evidence" is
not sufficient to overcome a motion for summary
judgment." Lee v. Coughlin, 902 F.Supp. 424,
429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923
F.2d 18, 21 (2d Cir. 1991)).
party files specific objections to a magistrate judge's
report-recommendation and order, the district court
"make[s] a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1)(c). However, when a party files
"[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge," the court reviews those
recommendations for clear error. O'Diah v.
Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y.
Mar. 16, 2011) (citations and footnote omitted). After the
appropriate review, "the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. §
present matter, the Court finds that Magistrate Judge Stewart
correctly determined that the Court should grant
Defendants' unopposed motion for summary judgment. As
Magistrate Judge Stewart noted, the protected activity at
issue, i.e., Plaintiffs grievance, was by Plaintiffs
own admission not lodged against either Defendant and accused
neither of any wrongdoing. See Dkt. No. 40-5 at
67-68, 71-72. Moreover, both Defendants indicated that they
were unaware of the grievance at any time prior to the
issuance of the misbehavior report. See Dkt. No.
40-6 at ¶ 7; Dkt. No. 40-9 at ¶ 8. As such,
Magistrate Judge Stewart correctly determined that the
undisputed facts demonstrate that there was no causal
connection between the protected activity and the alleged
Magistrate Judge Stewart also correctly found, in the
alternative, that Plaintiff failed to properly exhaust his
available administrative remedies. At his deposition,
Plaintiff admitted that he did not file a formal grievance
regarding his claim, but instead wrote a letter to a Deputy
Superintendent at Greene C.F. See Dkt. No. 40-5 at
100-02. Plaintiff further admitted at his deposition that he
received no response to the letter he allegedly mailed and
that he "never followed up with grievance."
Id. at 102, 104. Plaintiffs informal letter to
correctional officials is not a substitute for a formal
grievance. See Macias v. Zenk, 495 F.3d 37, 43 (2d
Cir. 2007). Magistrate Judge Stewart also correctly
determined that, given Plaintiffs failure to oppose the
motion for summary judgment, no basis appears in the record
for concluding that DOCCS' grievance procedure was
unavailable to him. Accordingly, the Court grants
Defendants' motion for summary judgment.
carefully reviewed Magistrate Judge Stewart's
Report-Recommendation and Order, Defendants' submissions
and the applicable law, and ...