Opinion
9:21-cv-0135 (DNH/TWD)
02-12-2024
WELLINGTON GARCIA, Plaintiff, v. M. MCINTOSH, et al., Defendants.
WELLINGTON GARCIA Plaintiff, pro se HON. LETITIA JAMES New York State Attorney General Attorney for Defendants NOAH C. ENGELHART, ESQ. Ass't Attorney General
APPEARANCES:
WELLINGTON GARCIA Plaintiff, pro se
HON. LETITIA JAMES
New York State Attorney General Attorney for Defendants
OF COUNSEL:
NOAH C. ENGELHART, ESQ. Ass't Attorney General
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Wellington Garcia (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1983 alleging wrongdoing which occurred during his confinement at Bare Hill Correctional Facility. See Dkt. No. 12. Currently before the Court is Defendant Lawrence LaBarge's motion for summary judgment. Dkt. No. 75. For the reasons set forth below, the Court recommends the Defendant's motion be granted and Plaintiff's claims against John Doe #1, John Doe #2, John Doe #3, John Doe #4, John Doe #5, John Doe #6 be dismissed.
Although Plaintiff's first name is spelled “Welington” in previous filings, the Court uses the spelling provided in his complaint. Dkt. No. 1; Dkt. No. 12. The Clerk is directed to correct the spelling to Wellington on the docket.
Citations to docket entries will refer to the pagination generated by CM/ECF, the Court's electronic filing system, unless otherwise noted.
II. BACKGROUND
A. Factual Background
Plaintiff was in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) in March of 2019 when he was transferred to Bare Hill Correctional Facility. Dkt. No. 75-14, Transcript of Plaintiff's Deposition, at 21-22. On October 21, 2020, Plaintiff received a misbehavior report and was taken to the facility's Special Housing Unit (“SHU”). See id. at 36-38; see also, Dkt. No. 12 at 4. Plaintiff avers:
Upon entering SHU I was knocked down and beaten by corrections officers John Doe #1, John Doe #2, and John Doe #3. I was beaten and kicked in my rib cage and leg area numerous times by all of the officers. Then officer John Doe #1, threaten me by telling me “that you are lucky we do not kill your ass, you spick bastard”. . . . After the beaten, officer John Doe #2, removed the handcuffs and officer John Doe #1, ordered me to take off my socks. As soon as I did he stepped on my foot and toes and twist his boots on my feet. Officers John Doe #2 and #3just stood idly by without saying anything.Dkt. No. 12 at 4. He also testified John Doe #1 attacked him first, then John Doe #2 and John Doe #3 joined John Doe #1. Dkt. No. 75-14 at 58.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Plaintiff denied having any conversation with the officers prior to the attack, but recalled they threatened him, “screaming and saying horrible things.” Id. at 49. He explained the three officers kicked him numerous times in the ribs, stomach, and legs as he used his arms to protect his face. Id. at 52-53. The incident lasted more than a few minutes. Id. at 52.
On October 22, 2020, Plaintiff was removed from his SHU cell by John Doe #4 and John Doe #5 for a disciplinary hearing. Dkt. No. 12 at 5. Plaintiff was searched directly outside of his SHU cell prior to the hearing. Dkt. No. 75-14 at 70. Plaintiff testified John Doe #4 ordered him to place his hands on the wall and conducted a pat down, during which he grabbed Plaintiff's penis and “swiped his fingers” through Plaintiff's buttocks. Id. at 71; see also Dkt. No. 12 at 5. The other officer, John Doe #5, stood quietly on Plaintiff's left side and watched. Id. at 73-74. Additionally, John Doe #4 threatened Plaintiff, warning “if he said anything about what happened to anyone, that he will wish he did not.” Dkt. No. 12 at 5.
The disciplinary hearing was related to a misbehavior report issued on October 9, 2020, by Officer Rief, who is not a party in the instant matter. See Dkt. No. 75-14 at 36-37, 65-66, 82.
The same day, Plaintiff was removed from SHU Cell #31 and relocated to SHU Cell #27 which was “very cold” due to a broken window. Id.; see also Dkt. No. 75-14 at 77-78. He requested a blanket from John Doe #5 and John Doe #6, but was told to “stop asking for things, . . . and just deal with it, you know.” Dkt. No. 75-14 at 77. Plaintiff alleged the officers told him “to deal with it and suffer, and to stop asking for things that he knew that he was not going to get, or he will not be leaving this building alive.” Dkt. No. 12 at 5. At his deposition, he could not recall which of the officers specifically made each statement, as they were speaking “in conjunction.” Dkt. No. 75-14 at 78.
Plaintiff alleges he “was not given any food from the time period of October 21, 2020, to October 28, 2020, by any of the SHU Officers or Staff member at Bare Hill Correctional Facility.” Dkt. No. 12 at 7. Plaintiff testified, at a hearing which occurred on October 27, 2020, he was starving, beat up, weak, and had high blood pressure. Dkt. No. 75-14 at 85. He told the hearing officer, who is not a party to this action, about “the abuse, sexual assault, and beatings by the SHU officers . . . .” Dkt. No. 12 at 6; see also Dkt. No. 75-14 at 86-87.
Finally, on October 28, 2020, Sergeant LaBarge and another officer came to Plaintiff's SHU cell to take him to the infirmary. Dkt. No. 75-14 at 96-97. Defendant LaBarge ordered Plaintiff to get dressed, then placed handcuffs on his hands and ankles and, as he did so, approached Plaintiff and “said, listen, don't you say anything about what happened over here especially with the being sexually harassed, the . . . not eating, you know, the . . . food that we're not delivering to your or being . . . assaulted right here.” Id. at 98. Defendant LaBarge warned Plaintiff, “Don't say anything, or when you come back . . .” then gestured to a “can” and asked Plaintiff if he knew what the item was. Id. Plaintiff responded he knew the item was pepper spray, LaBarge agreed and stated, “When you come back, I'm going to pepper you and then you're going to get beat again. We're going to beat you again. So don't you say anything to any nurse when you go to the infirmary.” Id.; see also Dkt. No. 12 at 6 (“Plaintiff was threaten by sergeant Lagarde, to not say anything about being beaten, denied food or sexually assaulted4 by officers in SHU to the medical staff. And if he Plaintiff did that Plaintiff would be peppered-sprayed and receive an ass beaten upon his return to SHU.”).
Plaintiff testified he requested treatment for leg pain he suffered as a result of a previously suffered ankle/leg injury which was merely aggravated by the alleged October 21, 2020, assault. See Dkt. No. 75-14 at 58, 96-97.
When Plaintiff arrived at the facility doctor's office, he remained handcuffed and Defendant LaBarge remained in the room. Dkt. No. 12 at 6; Dkt. No. 75-14 at 102-03. LaBarge did not say anything to Plaintiff, rather, “He just stood there watching me.” Dkt. No. 75-14 at 103. Plaintiff told Dr. Connolly he was experiencing bleeding gums and stomach pain and the doctor send Plaintiff to Alice Hyde Medical Center due to concerns of dehydration and high blood pressure. Id. at 106.
Plaintiff was escorted to the medical center by non-party officers. Id. at 109. He told the treating doctor “the truth.” Id. at 111. Specifically, he testified “I explained to her, and listen, they are not feeding me. I'm in the SHU unit.” Id. Plaintiff was discharged from the medical center later the same day and underwent a twenty-four to forty-eight hour observation period at Franklin Correctional Facility. Id. at 113. Plaintiff testified he was never pepper sprayed or beaten after reporting what had happened to him. Id. at 118-19, 143.
Plaintiff testified he was aware of how the facility's grievance procedure worked by October of 2020. See Dkt. No. 75-14 at 24-25. He filed two grievances while he was housed at Bare Hill, the first in October of 2019, and the second in November of 2020. See id. at 26; see also Dkt. No. 76-16 at 3. In Grievance No. BRL-0185-20, dated November 17, 2020, Plaintiff reported:
From 10/21/20 to 10/28/20 while at the SHU-unit I was not fed any food. Officers walked by me with the food cart and not open my meal slot. They told me I was going to starve to death. On 10/22 a tall skinny officer wearing a mask inserted his hand inside my underwear and toch my rear private area (butt) without my consent, while doing a frisk/body search. On 10/24 I complained about a sharp stomach pain & dizziness, on 10/28 I was taken to the hospital with highblood pressure and spent 48 hours in observation in Franklyn C. I feel this treatment were unnecessary and are not part of my sentence. I wish for this incidents to be documented so it won't never happen to me in the future.Dkt. No. 75-2 at 12 (capitalization omitted); see also Dkt. No. 75-8. As explained below, because Plaintiff's grievance reported alleged sexual harassment/abuse by staff, that allegation was separated per DOCCS directive and assigned a second grievance number.
See generally, Dkt. No. 75-10 (advising Plaintiff “grievance # BRL 0184-20, dated 11/17/20, has been forwarded to the Watch Commander in accordance with Directive # 4040 § 701.3 (i) and the Department's Sexual Abuse and Sexual Harassment Reporting and Investigation Policies).
In his deposition, Plaintiff admitted the grievance did not contain details about the alleged assault by John Doe #1, John Doe #2, or John Doe #3 on October 21, 2020, nor did the grievance allege he was denied a blanket in a cell with the window open the following day. Dkt. No. 75-14 at 125. Plaintiff stated:
I just wanted to actually touch on the main things especially was this, the sexual harassment. That's what really traumatized me. You understand? So that's -- I wanted to put the important thing right here that really affected me emotionally. So I didn't even have a space. That's why I wrote the most important facts over here.Id. at 126. He repeatedly insisted there was not enough space on the grievance form for all of his allegations, explained he did not know how to annex the second page with additional details, and then suggested he did not want to write about the officers who assaulted him “because if the officers take it to [sic] the office and sees this, then they would just retaliate against me too.” See id. at 126-27.
On November 14, 2020, the facility Superintendent denied Plaintiff's grievance. Dkt. No. 75-9 at 1. The Superintendent noted Plaintiff “was interviewed on 11/23/20 by the Security Supervisor assigned to investigate his grievance. During the interview, the grievant's written complaint was reviewed. The grievant added no new information and did not identify any witnesses to substantiate his claims.” Id. The Superintendent concluded, “Upon review of his emergency room notes and his infirmary record from Franklin C.F., there is nothing indicating that the grievant was not being fed. There is no evidence to suggest that medical treatment was unnecessary or that there was any malfeasance by staff.” Id.
Plaintiff testified the conclusion that he provided “no new information” was “incorrect” because he was never given the opportunity to identify any officers or other witnesses, but was not able to provide any such information at his deposition. See Dkt. No. 75-14 at 133-34.
Plaintiff appealed the Superintendent's denial of his grievance to the Central Office Review Committee (“CORC”). See id. at 1-2. In his appeal statement, dated December 24, 2020, Plaintiff asserted:
I requested medical care the night of October 24, 2020 and it was denied . . . . Luckily I was called to the infirmary on 10/28/20. Before being escorted out I was told by a sergent named Lagarde or Langardi (to the best of my knowledge/memory) he was tall with broad shoulders, heavy set, caucasian with dark blonde hair. He said to me not to talk about the food punishment I experienced in the SHU-unit, otherwise I was going to get pepper-sprayed when I get back from the infirmary. It never happened because I didn't say anything to the infirmary staff out of fear, as the sergent was present with me in the examination room.Id. at 2 (capitalization omitted). Following a hearing on March 25, 2021, the CORC noted:
[Corrections officers] deny being unprofessional, refusing the grievant his meals or witnessing same. CORC also notes that he was seen by his provider on 10/28/20 for left ankle pain and his blood pressure and pulse were elevated at that time. He advised the provider he had been having palpitations for one week, however, he did not report that he was not being fed. It is also noted that sick call is offered in the SHU daily and he did not request to be seen at sick call. CORC has not been presented with sufficient evidence of malfeasance by staff . . . .Dkt. No. 75-17 at 3. Accordingly, CORC upheld the Superintendent's determination. Id.
B. Procedural History
Plaintiff commenced this action by filing his complaint on February 5, 2021. Dkt. No. 1. In a Decision and Order dated March 29, 2021, Judge Hurd granted Plaintiff's application to proceed in forma pauperis (“IFP”) and found various claims against John Doe #1, John Doe #2, John Doe #3, John Doe #4, John Doe #5, John Doe #6, and Lawrence LaBarge survived sua sponte review. Dkt. No. 8 at 18. Judge Hurd further ordered “Plaintiff must take reasonable steps to ascertain the identity of the ‘Doe' defendants remaining in this action through discovery, and when identified, seek to amend the complaint to add these individuals as defendants in this action pursuant to Federal Rule of Civil Procedure 15(a). Plaintiff's failure to timely serve these defendants will result in their termination from the action and dismissal of the claims asserted against them[.]” Id. at 19-20.
Plaintiff subsequently filed an amended complaint on April 30, 2021. Dkt. No. 12. On June 10, 2021, this Court found the aforementioned claims again survived initial review, as well as additional claims against John Doe #1, John Doe #2, and John Doe #3. Dkt. No. 16 at 7. The undersigned advised Plaintiff “his failure to timely name and serve the officials currently identified as ‘Doe' defendants will result in their termination from the action and dismissal of the claims asserted against them.” Id. at 6; see also id. at 7-8.
Defendant LaBarge filed a motion to dismiss the amended complaint for failure to state a claim. Dkt. No. 18. Plaintiff opposed Defendant's motion and the Defendant submitted a reply. Dkt. No. 21; Dkt. No. 24.
On November 1, 2021, this Court recommended Defendant LaBarge's motion to dismiss the claims in Plaintiff's amended complaint against him be granted. Dkt. No. 28 at 10. The undersigned further directed the Attorney General to produce information regarding the identity of the “Doe” defendants. Id. Defendant's attorney complied with the Court's order, producing documents related to the incidents alleged in the amended complaint. Dkt. No. 33; see also Dkt. Nos. 32, 34. Accordingly, the undersigned ordered Plaintiff shall have thirty days from the District Court's decision on the Report-Recommendation to file an amended complaint identifying the “Doe” defendants and again advised him “if he is unable to identify one or more of the ‘Doe' defendants . . . this action may be dismissed against the unidentified official(s) . . . .” Dkt. No. 34.
On December 15, 2021, Judge Hurd rejected the Report-Recommendation, ordered Defendant LaBarge's motion to dismiss be denied, and directed him to file a response to the amended complaint. Dkt. No. 36 at 3. Defendant LaBarge subsequently filed an answer. Dkt. No. 37. On January 7, 2022, this Court issued its Mandatory Pretrial Discovery and Scheduling Order requiring the parties to exchange certain disclosures. Dkt. No. 38. In response to a letter filed by Plaintiff advising the Court he was not able to identify “Doe” defendants, the Court directed Plaintiff to conduct additional discovery in accordance with the terms of the scheduling order. Dkt. No. 40.
Thereafter, Plaintiff filed a motion to compel seeking photographs of corrections officials which he believed would help him identify “Doe” defendants. Dkt. No. 41. Defendant LaBarge opposed Plaintiff's motion. Dkt. No. 42. On June 2, 2022, the Court denied Plaintiff's motion, reset the amended pleadings deadline, and advised Plaintiff to serve a proper discovery demand for additional disclosures. Dkt. No. 45.
Plaintiff subsequently filed a second motion to compel, again requesting photographs and other materials relevant to the identification of the “Doe” defendants. Dkt. No. 52. Defendant LaBarge opposed Plaintiff's motion. Dkt. No. 53. On August 8, 2022, the Court granted Plaintiff's motion in part, directing Defendant LaBarge to respond to the Plaintiff's request for a hearing tape, and again reset the amended pleadings deadline. Dkt. No. 55.
The amended pleadings deadline was extended for a final time to September 16, 2022. Dkt. No. 57. Plaintiff submitted a motion to amend and proposed second amended complaint for filing, dated September 16, 2022. Dkt. No. 58; Dkt. No. 58-1. Defendant LaBarge opposed Plaintiff's motion. Dkt. No. 62.
Plaintiff's proposed second amended complaint named seven individuals, in addition to LaBarge, as defendants in place of the six “Doe” defendants named in the amended complaint. Compare Dkt. No. 12, Amended Complaint, with Dkt. No. 58-1, Proposed Second Amended Complaint. However, the proposed second amended complaint did not properly identify any of the prior “Doe” defendants, rather, it listed multiple individuals as potential intended defendants for each of the claims concerning the incidents. See generally, Dkt. No. 58-1. For a more complete recitation of the pleadings, reference is made to Plaintiff's submissions.
By Text Order dated November 15, 2022, the Court stayed the dispositive motion filing deadline pending a decision on the motion to amend. Dkt. No. 66.
On December 5, 2022, the Court denied Plaintiff's motion to amend. Dkt. No. 67 at 13. The undersigned observed, ordinarily, the “Doe” defendants would be dismissed without prejudice, however, out of concern for judicial economy, the Court declined to dismiss the “Doe” defendants and re-opened discovery
[F]or the limited purpose of allowing (1) plaintiff to serve counsel for defendant LaBarge with interrogatories asking defendant LaBarge to provide the name of each Doe defendant, to the extent he is able to do so, based on a physical description of that person, and (2) counsel to produce, if he has not already, copies of log book entries that identify the names of officials who made rounds in the SHU at Bare Hill C.F. on October 21 and 22, 2020.Id. at 12. The Court directed Plaintiff to serve the interrogatories within 20 days asking Defendant LaBarge to provide the name of each “Doe” defendant based on a description in the interrogatories. Id. The Court allowed Plaintiff 90 days to file a motion to amend and proposed amended pleading. Id. Finally, Plaintiff was advised if he failed to serve interrogatories as directed or file a proper motion to amend and proposed amended pleading, his claims against the “Doe” defendants may be dismissed pursuant to Federal Rules of Civil Procedure 4(m) and 41(b), as well as Local Rule 41.2(a). Id.
On January 9, 2023, Defendant notified the Court that the log books had been produced and Plaintiff had not served interrogatories as directed. Dkt. No. 69. On January 10, 2023, since Plaintiff's deadline to serve interrogatories expired, the Court ordered discovery closed and permitted Plaintiff 30 days to file a motion to amend the complaint. Dkt. No. 71. On May 31, 2023, due to Plaintiff's failure to timely file a motion to amend and proposed amended pleading, the Court ordered the amended complaint remained the operative pleading and lifted the stay of the dispositive motion deadline. Dkt. No. 72.
On July 27, 2023, Defendant LaBarge filed a motion for summary judgment. Dkt. No. 75. Plaintiff was advised of the August 17, 2023, deadline to file a response. Dkt. No. 76. Plaintiff failed to timely file a response, therefore, on August 22, 2023, the Court sua sponte extended Plaintiff's response deadline until September 19, 2023. Dkt. No. 78. Plaintiff did not file a response.
While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
“When the opposing party fails to respond to the moving party's Rule 56.1 statement, the material facts contained in the moving party's statement are deemed admitted as a matter of law.” Antwi v. Health & Human Sys. (Ctrs.) F.E.G.S., No. 13-CV-0835, 2014 WL 4548619, at *4 (S.D.N.Y. Sept. 15, 2014); see also Genova v. County of Nassau, 851 Fed.Appx. 241, 244 (2d Cir. 2021). However, “a district court must ensure that there is support in the record for facts contained in unopposed Rule 56.1 statements before accepting those facts as true.” United States v. Abady, No. 03-CV-1683, 2004 WL 444081, at *3 (S.D.N.Y. Mar. 11, 2004) (citing Giannullo v. City of New York, 322 F.3d 139, 140-43 (2d Cir. 2003)). Moreover, a pro se plaintiff must be notified of the consequences of failing to respond to the motion. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
In this case, Plaintiff was sent a specific warning by the Court of the consequences of a failure to respond:
WARNING: If you do not submit a proper response to the defendants' statement of material facts, the Court may deem you to have admitted the defendants' factual statements. If you do not submit copies of record evidence in support of your denials, the Court may deem defendants' factual statements to be true. If you do not submit a proper response memorandum of law, the Court may deem you to have conceded the defendants' arguments. If you do not respond to this motion properly (or at all), summary judgment may be entered against you, meaning that SOME OR ALL OF YOUR CLAIMS MAY BE DISMISSED.Dkt. No. 76 at 2. Accordingly, the facts set forth in Defendants' statement pursuant to Local Rule 56.1, Dkt. No. 75-21, that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified pleading and sworn testimony will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts . . . supplemented by Plaintiff's verified complaint . . . as true.”).
III. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted if “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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by demonstrating the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 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). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment motions, “‘[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.'” Jeffreys, 426 F.3d at 554 (alteration and emphasis in original) (quoting Anderson, 477 U.S. at 252). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “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).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, that status “does not relieve [apro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks and citation omitted).
In applying the summary judgment standard, the court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”).
IV. DISCUSSION
A. Defendant LaBarge's Motion for Summary Judgment
Plaintiff's sole allegation against Defendant LaBarge is that, on October 28, 2020, the sergeant threatened him “to not say anything about being beaten, denied food or sexually assaulted4 by officers in SHU to the medical staff” because, if he did so, “Plaintiff would be peppered-sprayed and receive an ass beaten upon his return to SHU.” Dkt. No. 12 at 6 (emphasis omitted); see also Dkt. No. 75-14 at 141 (in his deposition, Plaintiff was asked, “Is there any other way other than the threats that you contend that Sergeant LaBarge violated your Eighth Amendment rights?” and answered, “No, sir.”). The sergeant also allegedly “intimidated” Plaintiff by remaining in the facility's examination room throughout Plaintiff's “entire examination . . . . ” Id. Defendant contends summary judgment should be granted because Plaintiff failed to exhaust his administrative remedies; Plaintiff failed to establish LaBarge's personal involvement in the alleged constitutional violations; and LaBarge's alleged threats, without more, do not amount to a deprivation of Plaintiff's constitutional rights. See generally, Dkt. No. 75-22 at 8-23.
Plaintiff's surviving claims against Defendant LaBarge are excessive force and conditions of confinement claims under the Eighth Amendment. See Dkt. No. 8 at 18; Dkt. No. 16 at 7.
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 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) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)), abrogated on other grounds, Ross v. Blake, 578 U.S. 632 (2016). 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.
In order to properly exhaust his administrative remedies, an inmate must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81 (2006)). DOCCS has a well-established inmate grievance process, set forth in 7 N.Y.C.R.R. § 701 et seq.
First, a grievance is submitted by the grievant to the Inmate Grievance Resolution Committee within twenty-one days of the incident. 7 N.Y.C.R.R. §§ 701.5(a)(1), 701.3(b), 701.5(b). The policy provides for a period to informally resolve the grievance, and thereafter to proceed through the various steps in the appeal process. Id. § 701.5(b)-(d). However, as relevant here, a more expedited procedure applies to “those grievances that allege employee misconduct meant to annoy, intimidate or harm an inmate.” Id. § 701.2(e); see id. § 701.58. Such a grievance is given a calendar number and recorded with all other grievances but is forwarded directly to the facility superintendent. Id. § 701.8(b). The superintendent then has twenty-five days to investigate and render a written response. Id. § 701.8(f). If the superintendent fails to render a decision within said time period, or rules against the incarcerated individual, the grievant may appeal to CORC. Id. § 701.8(g). CORC has thirty days to review each appeal and render a decision. Id. § 701.5(d)(3). Exhaustion of the grievance procedure only occurs after CORC has rendered its decision.
Additionally, “for complaints regarding sexual abuse or sexual harassment, DOCCS has established a different procedure.” Clark v. Gardner, No. 9:17-CV-0366 (DNH/TWD), 2021 WL 1200328, at *19 (N.D.N.Y. Mar. 8, 2021) (citing DOCCS Directive 4040 § 701.3(i); 7 N.Y.C.R.R. § 701.3(i)), report and recommendation adopted, 2021 WL 1198199 (N.D.N.Y. Mar. 30, 2021). Under the relevant authority, “[a]ny inmate grievance filed regarding a complaint of sexual abuse or sexual harassment . . . shall be deemed exhausted upon filing for PLRA purposes.” 7 N.Y.C.R.R. § 701.3(i).
The PLRA requires “proper exhaustion,” which means using all steps of the administrative process and complying with “deadlines and other critical procedural rules.” Woodford, 548 U.S. at 93 (2006). Moreover, exhaustion is an affirmative defense and the burden of proof, at all times, remains on the defendant. Coley v. Garland, No. 9:19-CV-0382 (LEK/ATB), 2023 WL 346242, at *4 (N.D.N.Y. Jan. 20, 2023).
Here, Plaintiff failed to properly exhaust his claims concerning Defendant LaBarge's alleged threat. Significantly, Grievance No. BRL-0185-20 made no mention of any threats or warnings not to disclose abuse by staff members, nor did it identify Sergeant LaBarge. See Dkt. No. 75-2 at 12. In his deposition, Plaintiff admitted Defendant LaBarge was not named in his November, 2020, grievance. Dkt. No. 75-14 at 128.
While the grievance did contain allegations about the October 22, 2020, search incident and the officers' refusal to provide Plaintiff meals from October 21-28, 2020, Plaintiff testified Defendant LaBarge was not present for the October 22, 2020, incident involving John Doe #4 and John Doe #5, Id. at 70, 122, nor was he one of the individuals who distributed meal trays to SHU inmates during the relevant period, Id. at 116, 121. Indeed, Plaintiff testified he never saw Defendant LaBarge in the SHU from the time of his October 21, 2020, arrival until the Defendant removed him from the cell and allegedly threatened him on October 28, 2020. Id. at 100-01.
While Plaintiff also alleged in his grievance that he “complained about a sharp stomach pain & dizziness” on October 24, 2020, Dkt. No. 75-2 at 12, he clarified the complaint was not made to LaBarge, but “to a night officer.” Dkt. No. 75-14 at 123.
While such incidents were not addressed in his grievance, to be sure, Plaintiff testified Defendant LaBarge was not present for: the October 21, 2020, incident involving John Doe #1, John Doe #2, and John Doe #3, Dkt. No. 75-14 at 58, or the October 22, 2020, incident involving John Doe #5 and John Doe #6, Dkt. No. 75-14 at 80. Additionally, LaBarge did not attend the October 27, 2020, disciplinary hearing conducted by Lieutenant Dumas, where Plaintiff claims he attempted to report the prior sexual harassment incident. Dkt. No. 75-14 at 86.
“Although it is appropriate to afford pro se inmates a liberal grievance pleading standard,” Wright v. Potter, No. 9:14-CV-1041 (DNH/TWD), 2016 WL 5219997, at *5 (N.D.N.Y. June 28, 2016) (citing Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)), report and recommendation adopted, 2016 WL 5173283 (N.D.N.Y. Sept. 21, 2016), “a prisoner must allege facts sufficient to alert corrections officials to the nature of the claim, and provide enough information about the conduct at issue to allow prison officials to take appropriate responsive measures.” Singh v. Lynch, 460 Fed.Appx. 45, 47 (2d Cir. 2012) (citing Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)) (internal quotations and citations omitted); see also, e.g., Espinal v. Goord, 558 F.3d 119, 127 (2d Cir. 2009) (to exhaust his claims against the defendants, the plaintiff “only had to provide a specific description of the problem.”) (citing 7 N.Y.C.R.R. § 701.7(a)(1)). Applying this standard, it is clear Plaintiff's November 2020, grievance did not exhaust any claim against Defendant LaBarge. See, e.g., Wright, 2016 WL 5219997, at *5 (explaining the plaintiff's grievance, which alleged a corrections officer physically assaulted him but “failed to mention [a facility nurse] by name or profession, failed to reference any medical personnel, and failed to reference receiving inadequate medical treatment” did not exhaust plaintiff's Eighth Amendment medical indifference claim against that nurse).
The first time Plaintiff alleged Defendant LaBarge threatened him was in his appeal to CORC. See Dkt. No. 75-9 at 2. However, “allegations brought up for the first time in an appeal to the CORC are not properly exhausted.” Gonzalez v. Morris, No. 9:14-CV-1438 (GLS/DEP), 2018 WL 1353101, at *3 (N.D.N.Y. Mar. 15, 2018) (citations omitted), aff'd, 824 Fed.Appx. 72 (2d Cir. 2020); see also Crichlow v. Fischer, No. 9:17-CV-0194 (TJM/TWD), 2017 WL 6466556, at *15 n.10 (N.D.N.Y. Sept. 5, 2017) (“The Court finds that inasmuch as Plaintiff claimed he was deprived of recreation and showers for the first time in his appeal statement to CORC, such claims are also unexhausted.”), report and recommendation adopted, 2017 WL 6459512 (N.D.N.Y. Dec. 18, 2017); Fox v. Labatte, No. 9:15-CV-0144 (LEK/DJS), 2016 WL 8716662, at *4 (N.D.N.Y. Mar. 11, 2016) (“Plaintiff cannot circumvent the procedures set forth by the facility by submitting a backdoor appeal to CORC by raising the issue for the first time . . . .”) (citing Woodford v. NGO, 548 U.S. at 88), report and recommendation adopted as modified, 2016 WL 1266958 (N.D.N.Y. Mar. 31, 2016).
Finally, from Plaintiff's filing and appeal of Grievance No. BRL-0185-20, it necessarily follows that the IGP was “available” to Plaintiff with respect to Defendant LaBarge's alleged October 28, 2020, threat. Therefore, this Court has no reason to believe the IGP could be deemed unavailable so as to excuse Plaintiff's failure to properly exhaust his claims against LaBarge here. See generally, Ross, 578 U.S. at 643-44.
While, in his deposition, Plaintiff suggested he did not include more details in his grievance because “If I start talking about the officers about who beat me, about the John Does right here . . . then they could just retaliate against me too.” Dkt. No. 75-14 at 127. Thus, to the extent Plaintiff could argue his fear of retaliation by the “Doe” Defendants rendered the grievance process “unavailable” to him, any such argument would be unpersuasive, especially as to Defendant LaBarge. See, e.g., Lapierre v. LaValley, No. 9:15-CV-1499 (MAD/DJS), 2019 WL 4015689, at *6 (N.D.N.Y. Aug. 26, 2019) (“Under Ross, threats or other intimidation by prison employees may render administrative remedies unavailable. . . . However, on this record such a contention is inconsistent with Plaintiff's assertions that he did properly grieve the assault, and with Plaintiff's filing of grievances after that time.”) (citations omitted), report and recommendation adopted, 2019 WL 4686415 (N.D.N.Y. Sept. 26, 2019), aff'd, 847 Fed.Appx. 47 (2d Cir. 2021); Gough v. Morris, No. 9:16-CV-1107 (GTS/DJS), 2018 WL 7199494, at *5 (N.D.N.Y. Dec. 14, 2018) (same), report and recommendation adopted, 2019 WL 416150 (N.D.N.Y. Feb. 1, 2019).
In any event, Plaintiff has failed to establish Defendant LaBarge's personal involvement in the alleged constitutional violations. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotations and citations omitted). “A plaintiff must thus allege a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
With respect to the allegations contained in Plaintiff's grievance concerning the October 22, 2020, frisk/body search incident, Plaintiff admitted Defendant LaBarge was not present. Dkt. No. 75-14 at 122. Similarly, his grievance alleged officers walked past his SHU cell without distributing meals from October 21-28, 2020, but Plaintiff testified LaBarge was not one of those officers. Id. at 121. Turning to the allegations which were not included in his grievance, Plaintiff's deposition testimony confirmed Defendant LaBarge was not one of the officers who kicked and stepped on him on October 21, 2020, nor was he present at the time of the incident. Id. at 58. His testimony also confirmed LaBarge was not involved in moving Plaintiff from SHU cell #31 to cell #27 or the subsequent refusal to provide him a blanket. Id. at 80.
Accordingly, Plaintiff has not demonstrated Defendant LaBarge's personal involvement with the allegedly unconstitutional use of force or conditions of confinement. See, e.g., Simpson v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL 7367083, at *4 (N.D.N.Y. Dec. 29, 2021) (recommending dismissal of the plaintiff's claim against a corrections officer where the plaintiff testified the officer was not involved in the incident because it was “undisputed” the officer “was not present, or otherwise involved, in the events surrounding plaintiff's allegations of excessive force . . . .”), report and recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb. 4, 2022); Burton v. Abraham, No. 5:18-CV-0150 (ATB), 2020 WL 1169295, at *12 (N.D.N.Y. Mar. 11, 2020) (granting the defendant's motion for summary judgment where the plaintiff's own testimony established, even assuming a constitutional violation occurred, the defendant was not involved). Nor can Plaintiff rely on Defendant LaBarge's role as a sergeant at the correctional facility to establish his personal involvement. See, e.g., Rasheen v. Adner, 356 F.Supp.3d 222, 233 (N.D.N.Y. 2019) (“Where, as here, the defendants are supervisory officials, a mere ‘linkage' to the unlawful conduct through ‘the prison chain of command' (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct.”).
Moreover, while courts in this circuit have found corrections officials to be personally involved in underlying unconstitutional activity where officials have attempted to cover up an unconstitutional incident, as the Defendant avers, this case is factually distinguishable. Significantly, in those cases which have found an alleged cover up sufficient to demonstrate personal involvement, the plaintiffs alleged the defendant officers drafted and submitted false reports to cover up unconstitutional activity. See Lewis, 2020 WL 1812556, at *7; Edwards, 2019 WL 1284295, at *7; Randle, 960 F.Supp.2d at 478; Gillard, 2010 WL 4905240, at *13. By contrast, here, Plaintiff does not allege Defendant LaBarge submitted materials to an authority figure which would have undermined Plaintiffs disclosure of abuse; rather, LaBarge made verbal statements to the Plaintiff himself to prevent him from reporting that misconduct occurred in the first place. See, e.g., Dkt. No. 75-14 at 141-43.
See generally, Lewis v. Hanson, No. 9:18-CV-0012 (LEK/DJS), 2020 WL 1812556 (N.D.N.Y. Apr. 9, 2020); Edwards v. Annucci, No. 7:17-CV-5018, 2019 WL 1284295 (S.D.N.Y. Mar. 20, 2019); Randle v. Alexander, 960 F.Supp.2d 457 (S.D.N.Y. 2013); Gillard v. Rovelli, No. 9:09-CV-0860 (NAM/GHL), 2010 WL 4905240 (N.D.N.Y. Sept. 29, 2010), report and recommendation adopted, 2010 WL 4945770 (N.D.N.Y. Nov. 24, 2010).
Finally, if the Court were to consider the alleged threatening statements as a separate instance of unconstitutional conduct, such activity would not give rise to an actionable § 1983 claim. “Verbal threats or harassment, unless accompanied by physical force or the present ability to effectuate the threat, are not actionable under § 1983.” Montero v. Crusie, 153 F.Supp.2d 368, 376 (S.D.N.Y. 2001) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)) (additional citations omitted); see also, Tafari v. McCarthy, 714 F.Supp.2d 317, 365 (N.D.N.Y. 2010) (“Absent physical injury, verbal threats and abuse are insufficient to support a constitutional violation.”) (citing Ramirez v. Holmes, 921 F.Supp. 204, 210 (S.D.N.Y. 1996)). Plaintiff's deposition testimony established Defendant LaBarge never beat, pepper sprayed, or made any other bodily contact with Plaintiff, even after his disclosure of the “Doe” defendants' alleged actions.
In sum, Plaintiff failed to properly exhaust his administrative remedies with respect to his claims against Defendant LaBarge as required by the PLRA; he failed to establish LaBarge's personal involvement in the alleged unconstitutional use of force and conditions of confinement; and he failed to assert facts which amount to an actionable § 1983 claim. Accordingly, the Court recommends the Defendant's motion for summary judgment be granted and the Plaintiff's claims against LaBarge be dismissed.
B. Remaining Claims Against Doe Defendants
As explained above, in both Judge Hurd's initial review of Plaintiff's complaint and this Court's review of Plaintiff's amended complaint, Plaintiff was ordered to take reasonable steps to ascertain the identity of the “Doe” defendants. See Dkt. No. 8 at 18; Dkt. No. 16 at 7-8. Plaintiff was also repeatedly advised his failure to timely identify and serve the “Doe” defendants would result in dismissal of the claims against them. See Dkt. No. 8 at 19-20; Dkt. No. 16 at 6; Dkt. No. 28 at 10. Defendant LaBarge's attorney was directed to produce, and did so produce, documents related to the incidents which are the subject of this matter. See Dkt. No. 28; Dkt. No. 33. Finally, despite Plaintiff's failure to properly identify the “Doe” defendants during the initial discovery period, discovery was re-opened for the purpose of allowing Plaintiff to take certain actions to ascertain the identity of the “Doe” defendants. See Dkt. No. 67 at 12.
Upon review of the docket maintained by the Clerk's Office, Plaintiff never identified the “Doe” Defendants as directed by the District Court. Accordingly, the Court recommends dismissing Plaintiff's claims against the “Doe” Defendants without prejudice in light of Plaintiff's failure to identify and serve them following discovery. See, e.g., Sawyer v. Prack, No. 9:14-CV-1198 (DNH/DEP), 2016 WL 5440596, at *16 (N.D.N.Y. July 29, 2016) (recommending claims against “Doe” defendants be dismissed sua sponte where the plaintiff was warned his failure to ascertain the identity of said defendants would result in dismissal of the claims against them, yet plaintiff did not appear to have taken steps to identify the unnamed defendants following the expiration of the extended deadlines for joinder and discovery), report recommendation adopted, 2016 WL 5415790 (N.D.N.Y. Sept. 28, 2016); Burns v. Trombly, 624 F.Supp.2d 185, 198 (N.D.N.Y. 2008) (dismissing claims against “Doe” defendants where the plaintiff failed to identify and submit forms permitting service of process on those unidentified defendants, for nearly two years, despite the court's reminders and the extension of discovery); Epps v. City of Schenectady, No. 1:10-CV-1101 (MAD/CFH), 2013 WL 717915, at *4 (N.D.N.Y. Feb. 27, 2013) (“All discovery is complete and thus, plaintiff's failure to identify the ‘John Doe' defendant mandates dismissal.”) (citations omitted); Johnson v. Owens, No. 9:20-CV-0982 (AMN/CFH), 2023 WL 5351017, at *10 n.18 (N.D.N.Y. Aug. 21, 2023) (“Plaintiff's failure to identify and serve the John Does when the [second amended complaint] was filed approximately two years ago is in and of itself grounds for this Court to sua sponte dismiss the Joe Does.”) (citations omitted).
V. CONCLUSION
After carefully reviewing the record, the Defendant's submissions on this motion, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 75) be GRANTED; and it is further
RECOMMENDED that Plaintiff's Eighth Amendment conditions of confinement and excessive force claims against Defendant LaBarge be DISMISSED WITH PREJUDICE; and it is further
RECOMMENDED that Plaintiff's Fourth Amendment unlawful search claim against Defendant John Doe #4, Eighth Amendment conditions of confinement claims against John Doe #1, John Doe #5, and John Doe #6, Eighth Amendment excessive force claims against John Doe #1, John Doe #2, John Doe #3, and John Doe #4, Fourteenth Amendment equal protection claim against John Doe #1, and Eighth Amendment failure to intervene claims against John Doe #2 and John Doe #3 be DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.