Opinion
9:14-cv-1042 (TJM/TWD)
11-04-2016
PHILLIP E.K. BRYANT, Plaintiff, v. LT. WHITMORE, et al., Defendants.
APPEARANCES: PHILLIP E.K. BRYANT Plaintiff, pro se 13-B-2470 Marcy Correctional Facility P.O. Box 3600 Marcy, NY 13403 HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants The Capitol Albany, New York 12224 OF COUNSEL: MICHAEL G. McCARTIN, ESQ. Assistant Attorney General
APPEARANCES: PHILLIP E.K. BRYANT
Plaintiff, pro se
13-B-2470
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403 HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: MICHAEL G. McCARTIN, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
This civil rights action, commenced by pro se Plaintiff Phillip E.K. Bryant pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3(c). Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), claims he was subjected to excessive force on May 15, 2014, at the Marcy Correctional Facility. (See generally Dkt. No. 21.) Plaintiff's second amended complaint, which is the operative pleading in this case, was filed on April 14, 2015, naming Superintendent Thomas ("Thomas"), Lieutenant Whitmore ("Whitmore"), and Corrections Officers Bauer ("Bauer"), Fischer ("Fischer"), and John Doe ("John Doe") as Defendants. (Dkt. No. 21.) As set forth more fully below, Whitmore is the only Defendant to have appeared in this action, as Bauer and Fisher were not served, and the claim against Thomas was sua sponte dismissed.
Presently before the Court is Whitmore's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 54.) Whitmore argues Plaintiff failed to exhaust his administrative remedies prior to filing this action, and therefore, the action must be dismissed. (Dkt. No. 54-7 at 4-10.) Plaintiff has opposed the motion. (Dkt. No. 57.) Whitmore has not submitted a reply. For the reasons that follow, the Court recommends granting Whitmore's motion for summary judgment.
Page references to documents identified by docket number are to the page number assigned by the Court's CM/ECF electronic docketing system.
I. BACKGROUND AND PROCEDURAL HISTORY
According to Plaintiff, on May 15, 2014, while Plaintiff was exiting the school building at Marcy Correctional Facility, Whitmore grabbed Plaintiff by the neck, and slammed Plaintiff's head against the wall three or four times. (Dkt. No. 21 at 4; Dkt. No. 21-1 at 1-2.) Next, Whitmore, Bauer, Fischer, and John Doe punched Plaintiff several times in the back and side. (Dkt. No. 21 at 4.) Thereafter, while escorting Plaintiff to a van, Fischer slammed Plaintiff's head into a wall and threw him on the floor. Id. Fischer then placed his knee into Plaintiff's back, thereby pushing Plaintiff's head to the floor. Id. Plaintiff suffered injuries to his head and leg, and "coughed up blood." (Dkt. No. 21-1 at 3.) Plaintiff also experienced five seizures after the assault. Id.
Plaintiff's claim for excessive force in violation of the Eighth Amendment against Whitmore, Bauer, Fischer, and John Doe survived sua sponte review. (Dkt. No. 23.) However, Plaintiff's claim against Superintendent Thomas was dismissed without prejudice for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. Id. at 4-5.
On May 21, 2015, the Clerk issued a summons for Whitmore, Bauer, and Fischer to the United States Marshal for service. (Dkt. No. 24.) Whitmore's acknowledgment of service and answer were filed on June 4, 2015, and August 7, 2015, respectively. (Dkt. Nos. 26 and 33.) However, the summons was returned as unexecuted as to Bauer and Fischer. (Dkt. No. 32.) The Clerk reissued a summons to Bauer and Fischer on August 19, 2015, which was again returned as unexecuted on October 5, 2015. (Dk. Nos. 36, 43, 44.) By Text Order entered on October 13, 2015, the Court advised Plaintiff the U.S. Marshals had been unable to effect service on Bauer and Fischer. (Text Entry 10/13/2015.) Plaintiff was mailed two blank USM-285 forms with instructions to complete the forms, adding any additional information pertaining to Bauer and Fischer. (Dkt. No. 47.) The Clerk re-issued a third summons to Bauer and Fischer on May 2, 2016. (Dkt. No. 58.) To date, service has not been effected on Bauer and Fischer, nor has John Doe's identity been ascertained.
Plaintiff was deposed at the Great Meadow Correctional Facility on October 30, 2015. (Dkt. No. 54-3.) However, Plaintiff testified he was only assaulted by Whitmore, Bauer, and Fischer on May 15, 2014, and that no other corrections officer subjected him to excessive force on the date of the alleged incident. (Dkt. No. 54-3 at 83 ("Q: Is there anybody else that injured you in any way on that day? A: No. No.").)
Whitmore has now moved for summary judgment based upon Plaintiff's failure to exhaust his administrative remedies, seeking dismissal of Plaintiff's second amended complaint in it entirety for failure to exhaust administrative remedies. (Dkt. No. 54.) Plaintiff has opposed the motion. (Dkt. No. 57.) Whitmore has not filed a reply.
II. APPLICABLE LEGAL STANDARD
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations . . . of [the plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. 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). A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted).
In Jeffreys v. City of New York, the Second Circuit reminded 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." 426 F.3d 549, 554 (2d Cir. 2005) (emphasis in original). To defeat summary judgment, nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, 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). 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 obliged 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, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
The Court will provide Plaintiff with copies of unpublished decisions in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76, 76 (2d Cir. 2009) (per curium).
III. PLAINTIFF'S FAILURE TO COMPLY WITH L.R. 7.1(a)(3)
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro 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). Plaintiff has failed to respond to Whitmore's Statement of Material Facts as required under L.R. 7.1(a)(3). (Dkt. No. 57.) His response does not mirror Whitmore's Statement of Material Facts, nor does it specifically admit or deny the statements therein and cite references to evidence in the record supporting or refuting Whitmore's statements. Id. Where a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." But see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Whitmore has complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to the summary judgment motion. (Dkt. Nos. 54-1.)
However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may, in its discretion, opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted).
In deference to Plaintiff's pro se status, the Court has opted to review the entire record in this case. Moreover, because the operative pleading is verified, the Court will treat it as an affidavit in opposition to Whitmore's motion for summary judgment. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). However, Plaintiff's opposition (Dkt. No. 57) is unsworn, and unsworn statements are generally inadmissible in opposition to a motion for summary judgment. See, e.g., Witzenburg v. Jurgens, No. CV-05-4827 (SJF)(AKT), 2009 WL 1033395, at *11 (E.D.N.Y. Apr. 14, 2009) (unsworn declarations are inadmissible for purposes of Rule 56 and cannot be considered by the court in deciding the motion for summary judgment).
Even so, on summary judgment motions involving pro se plaintiffs, courts have been known to consider unsworn submissions in opposition. See, e.g., Hamm v. Hatcher, No. 05 Civ. 503(ER), 2013 WL 71770, at *7 (S.D.N.Y. Jan. 7, 2013) (to afford pro se plaintiff special solicitude, the court considered unsworn statements in his opposition papers but only to the extent based on personal knowledge or supported by other admissible evidence in the record, on the assumption that if the allegations were sufficient to raise an issue of fact, plaintiff would be given the opportunity to submit an affidavit properly attesting to the allegations); Robles v. Khahaifa, No. 09CV718 (HBS), 2012 WL 2401574, at *7 (W.D.N.Y. June 25, 2012) (same). However, the Court's review has revealed that Plaintiff's submissions contain very little in the way of admissible evidence.
IV. ANALYSIS
A. Legal Standard for Exhaustion
Under the Prison Litigation Reform Act of 1996 ("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). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
In New York State prisons, DOCCS has a well-established three-step Inmate Grievance Program ("IGP"). N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013). Generally, the DOCCS IGP involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. § 701.5(a). A representative of the facility's Inmate Grievance Resolution Committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance and issues a written decision within two working days of the conclusion of the hearing. Id. §§ 701.5(b)(2), (3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the central office review committee ("CORC") for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(i).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii). If a prisoner has failed to properly follow each of the applicable steps, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies and is barred from commencing a federal lawsuit. Woodford, 548 U.S. at 93.
Because failure to exhaust is an affirmative defense, the defendant bears the burden of showing by a preponderance of the evidence that the plaintiff has failed to exhaust administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 9:09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).
Whitmore preserved the exhaustion defense by asserting it in his answer. (Dkt. No. 33 at 2.)
A prisoner's failure to exhaust may nonetheless be excused if administrative remedies were "unavailable" to him. As the Supreme Court recently clarified, "[a]n inmate . . . must exhaust available remedies, but need not exhaust unavailable ones." Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1858 (2016). To guide courts in this analysis, the Supreme Court identified "three kinds of circumstances" in which an administrative remedy, "although officially on the books," is not "available." Id. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. Whether a plaintiff has exhausted his administrative remedies is a question of law to be decided by the court as a matter of law. See Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999).
B. Exhaustion Analysis
Here, Whitmore argues Plaintiff has failed to exhaust his administrative remedies. (Dkt. No. 54-7 at 4-9.) The Court agrees.
As alleged in Plaintiff's verified pleading, Plaintiff was subjected to excessive force on May 15, 2004. (Dkt. No. 21 at 2.) Thereafter, Plaintiff filed two grievances, which were "dismissed both times, contrary to lack of evidence." (Dkt. No. 21 at 2.) Further, although Plaintiff wrote a letter to Superintendent Thomas regarding the incident, he did not receive a response from Thomas. Id. at 3.
At his deposition, Plaintiff testified he took no other steps other than to file a grievance with the IGRC and write a letter to Superintendent Thomas:
Q: All right. So once you filed a grievance with the IGRC, did you take any other steps . . . [a]nything beyond that, any other steps?(Dkt. No. 54-3 at 114-16.)
A: No.
***
Q: It sounds like the only step that you took was to file with the IGRC, at Marcy?
A: Yes.
Q: And then there were no steps beyond that?
A: Yes.
Q: That's correct?
A: Yes. I mean, after that, like I said, I wrote Mr. Thomas [at Marcy Correctional Facility]. He never responded back to me. So, I mean, I ended up - I ended up filing - I believe I - yes, I'm positive. I filed another grievance after he didn't respond to me. Because I'm thinking I did. I filed another grievance. Because I'm thinking, you supposed to be the boss of these people. If something is going on, you're the boss, I'm coming to you. So you can defecate [sic] these problems, you know."
Plaintiff also testified that he wrote letters to the Attorney General and the Inspector General. (Dkt. No. 54-3 at 97-98, 108-10.) However, it is well settled that writing letters to prison officials, or other officials, is insufficient to properly exhaust administrative remedies. See Macias v. Zenk, 495 F.3d 37, 44-45 (2d Cir. 2007) (informal steps putting officials on "notice" are insufficient to exhaust administrative remedies); Gizewski v. New York State Dep't of Corr. & Cmty. Supervision, No. 9:14-CV-124(GTS/DJS), 2016 WL 3661434, at *14 (N.D.N.Y. July 5, 2016) (notice through informal channels is insufficient to properly exhaust administrative remedies). --------
Plaintiff also testified that Defendants were not the cause of his grievances not being processed at the facility level:
Q: Was Lieutenant Whitmore, Officer Bauer or Officer Fischer the cause of [the grievances] not getting processed?
A: I can't say precisely they are.
Q: Do you have any information that would suggest that?
A: No, I don't. Other than just hearing, like, little rumors how other things have happened with other people concerning grievances and stuff like that. Or how two of the people that
worked at the grievance place, they work mainly for the COs on his stuff like that, instated of they do for the grievance of the inmates. So other than, that's just he said. I don't know how true it is and stuff like that.Id. at 107-08.
Q: Other than that hearsay you're mentioning, you don't have any personal knowledge whatsoever that Lieutenant Whitmore, Officer Fischer or Officer Bauer were involved in your grievances not getting processed at Marcy [Correctional Facility]; is that fair to say?
A: No, I don't.
Q: Is that fair to say?
A: Yes, it is. I know I filed them, but for some reason something happened to them.
Here, even assuming Plaintiff filed such grievances with the IGRC, and even assuming he received no response from Superintendent Thomas, Plaintiff was required to complete step three of the DOCCS IGP as well - appealing to CORC if the superintendent had adversely disposed of his grievance or failed to timely respond. See N.Y. Comp. Codes R. & Regs., tit. 7, §§ 701.5(c)-(d), 701.6(g); Heyliger v. Bebler, 624 F. App'x 780, 782 (2d Cir. 2015) (noting that if a decision maker fails to timely respond to a grievance under the DOCCS IGP, the inmate must appeal to the next step in order to properly exhaust); Warren v. Bealey, No. 9:12-CV-1318 (TJM/RFT), 2014 WL 4715863, at *9 n.8 (N.D.N.Y. Sept. 22, 2014) ("in the event that the IGRC or superintendent . . . do not respond to an initial grievance within the time prescribed, it remains the prisoner's responsibility to file an appeal with CORC) (collecting cases).
Plaintiff testified, however, that he did not recall filing an appeal to CORC:
Q: Have you ever heard of CORC? Do you know what that is?
A: That name sounds familiar.
Q: All right. Did you ever file anything with CORC involving the May 15, 2014, incident?
A: The name - what did it specifically stand for?
Q: Central office review committee?
A: Somebody told me about that, but I'm not sure if I ever wrote them. That's why I said the name sounds familiar. Somebody told me about that, but I'm not sure if I wrote them or not.(Dkt. No. 54-3 at 116-17.)
Q: Okay, but you don't remember doing that for sure?
A: I don't think so. I don't think so.
Karen Bellamy, Director of the DOCCS IGP, submitted a declaration in support of Whitmore's motion for summary judgment in which she stated that she conducted a diligent search of CORC's database of records, and found that Plaintiff has never filed a grievance appeal to CORC regarding the alleged May 15, 2014, incident. (Dkt. No. 54-4 at ¶¶ 1-2) Attached as Exhibit A to Bellamy's declaration is a computer printout from CORC showing that Plaintiff has never filed a grievance appeal to CORC. (Dkt. No. 54-5.) Accordingly, Bellamy declares Plaintiff has not filed a grievance appeal with CORC related to any issue connected to allegedly being assaulted by staff at Marcy Correctional Facility on May 14, 2014. (Dkt. No. 54-4 at ¶ 4.)
In light of the above, the Court finds Whitmore has "adequately supported the affirmative defense of failure to exhaust." See, e.g., Bennett v. Onua, No. 09-cv-7227 (SAS), 2010 WL 2159199, at *3 (S.D.N.Y. May 26, 2010) (finding that defendants discharged their initial burden on summary judgment by producing affidavits that a search of prison records indicated that no grievances were ever filed).
Accordingly, Plaintiff has failed to exhaust his administrative remedies regarding the alleged May 15, 2014, use of excessive force at Marcy Correctional Facility. See Woodford, (548 U.S. at 90) (holding the PLRA required "proper exhaustion" - "using all steps that the agency holds out, and doing so properly that the agency addressed the issues on the merits").
Plaintiff's failure to exhaust, however, does not end the Court's review because an inmate need only exhaust "available" administrative remedies. See Ross, 136 S. Ct. at 1858. In this case, however, Plaintiff has made no claim or offered any evidence that the DOCCS IGP was not "available" to him. (See Dkt. Nos. 21 and 57.) In opposition to Whitmore's motion for summary judgment, Plaintiff succinctly summarized his attempt to exhaust his administrative remedies:
I filed a grievance and wrote [Superintendent] Thomas. Nothing emerged from the grievance or the letter to the superintendent. I was assaulted by the three officers and thrown in the box where I suffered five [grand mal seizures]. Time passed then I filed the lawsuit.(Dkt. No. 57 at 1.)
However, as discussed above, "in the event that the IGRC or superintendent . . . do not respond to an initial grievance within the period prescribed, it remains the prisoner's responsibility to file an appeal with CORC." Warren, 2014 WL 4715863, at *9 n.8. Indeed, "[o]nly upon exhaustion of these three levels may a prisoner seek relief pursuant to § 1983 in federal court." Id. at *9 (citations omitted).
Furthermore, there is no evidence in the record showing that the DOCCS IGP operated as a "simple dead end" in this case. Plaintiff has asserted no claim that DOCCS IGP was "so opaque" it was incapable of use, and the record is devoid of evidence that Defendants "thwarted" Plaintiff "from taking advantage of a grievance process through machination, misrepresentation, or intimidation." See Ross, 136 S. Ct. at 1860.
Based upon the foregoing, the Court recommends granting Whitmore's motion for summary judgment.
C. Dismissal of Action
Where a claim is dismissed for failure to exhaust administrative remedies, dismissal without prejudice is appropriate if the time permitted for pursuing administrative remedies has not expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004). However, if a prisoner has failed to exhaust available administrative remedies and the time in which to exhaust has expired, it is proper for the court to dismiss the complaint with prejudice because any attempt to exhaust would be futile. Id. at 86; see Hilbert v. Fischer, No. 12 Civ. 3843(ER), 2013 WL 4774731, at *7 (S.D.N.Y. Sept. 4, 2013) (collecting cases). In this case, the time for Plaintiff to exhaust the alleged May 15, 2014, excessive force claims has long since expired.
Based upon the foregoing, the Court recommends dismissing Plaintiff's May 15, 2014, excessive force claim against Whitmore with prejudice for failure to exhaust available administrative remedies. For the same reasons, the Court also recommends dismissing the May 15, 2014, excessive force claim against unserved Defendants Fischer, Bauer, and John Doe with prejudice. See, e.g., Brown v. Eagen, No. 9:08-CV-0009 (TJM/DRH), 2009 WL 815724, at *15 n.11 (N.D.N.Y. Mar. 26, 2009) (dismissing § 1983 action against unserved defendants where all of the plaintiff's claims has been dismissed in their entirety); Nance v. Hazell, No. 02-CV-3525 (FB), 2005 WL 859268, at *1 (E.D.N.Y. Apr. 15, 2005) (same).
ACCORDINGLY, it is hereby
RECOMMENDED that Defendant Whitmore's motion for summary judgment (Dkt. No. 54) be GRANTED, and it is further
RECOMMENDED that Plaintiff's second amended complaint (Dkt. No. 21) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, 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 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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: November 4, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge