Burrell v. Durkin

Full title: AKO K. BURRELL, Plaintiff, v. CHARLIE DURKIN, Lieutenant, Clinton Corr…

Court: United States District Court, N.D. New York

Date published: Mar 28, 2024

9:22-CV-0102 (BKS/ML) (N.D.N.Y. Mar. 28, 2024)

Opinion

9:22-CV-0102 (BKS/ML)

03-28-2024

AKO K. BURRELL, Plaintiff, v. CHARLIE DURKIN, Lieutenant, Clinton Corr. Facility; KING, Sergeant, Clinton Corr. Facility; D. LASHWAY, Correctional Officer, Clinton Corr. Facility; DEVINS, Correctional Officer, Clinton Corr. Facility; MARY BETH GILLEN, Nurse, Clinton Corr. Facility, formerly known as Mary Beth; and KELLY, Correctional Officer, Clinton Corr. Facility, Defendants.

AKO K. BURRELL Pro Se Plaintiff Attica Correctional Facility LETITIA A. JAMES Assistant Attorney General Counsel for Defendants NICHOLAS W. DORANDO, ESQ. MATTHEW P. REED, ESQ. Assistant Attorneys General

MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE

AKO K. BURRELL

Pro Se Plaintiff

Attica Correctional Facility

LETITIA A. JAMES

Assistant Attorney General

Counsel for Defendants

NICHOLAS W. DORANDO, ESQ.

MATTHEW P. REED, ESQ.

Assistant Attorneys General

REPORT AND RECOMMENDATION

MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE

Currently before the Court, in this civil rights action filed by Ako K. Burrell (“Plaintiff”) against defendants Charlie Durkin, King, D. Lashway, Devins, Mary Beth Gillen, and Kelly (collectively “Defendants”) who are-or were at the relevant time-employed at Clinton Correctional Facility (“Clinton”), are Plaintiff's motion for summary judgment pursuant to Fed.R.Civ.P. 56 and Defendants' cross motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. Nos. 65, 68.) For the reasons set forth below, I recommend that Plaintiff's motion for summary judgment be denied and Defendants' motion for summary judgment be granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

At this procedural posture, Plaintiff asserts the following ten claims: (1) one claim of excessive force against Defendant Kelly in violation of the Eighth Amendment and 42 U.S.C. § 1983 related to an unjustified cavity search on September 21, 2021; (2) one claim of excessive force against Defendant Lashway in violation of the Eighth Amendment and 42 U.S.C. § 1983 related to an unnecessarily aggressive cavity search on October 5, 2021; (3) one claim of excessive force against Defendant Lashway in violation of the Eighth Amendment and 42 U.S.C. § 1983 related to placing his elbow on Plaintiff's throat; (4) one claim of excessive force against Defendant Durkin in violation of the Eighth Amendment and 42 U.S.C. § 1983 related to slapping Plaintiff and grabbing Plaintiff's butt on October 5, 2021; (5) one claim of excessive force against Defendant Devins in violation of the Eighth Amendment and 42 U.S.C. § 1983 related to squeezing Plaintiff's testicles; (6) one claim of retaliation against Defendant Durkin in violation of the First Amendment and 42 U.S.C. § 1983 related to filing a false misbehavior report in response to Plaintiff's PREA¹ complaint; (7) one claim of retaliation against Defendant Lashway in violation of the First Amendment and 42 U.S.C. § 1983 related to placing his elbow on Plaintiff's throat in response to Plaintiff's PREA complaint against Defendant Durkin; (8) one claim of retaliation against Defendant Gillen in violation of the First Amendment and 42 U.S.C. § 1983 related to denying medical treatment in response to Plaintiff's PREA complaint against Defendant Durkin; (9) one claim of deliberate medical indifference against Defendant King in violation of the Eighth Amendment and 42 U.S.C. § 1983 related to his refusal to file a report and telling medical that Plaintiff was playing games after Plaintiff fell off a stretcher; and (10) one claim of deliberate medical indifference against Defendant Durkin in violation of the Eighth Amendment and 42 U.S.C. § 1983 related to his order that Plaintiff be denied medical attention and refusal to file a report after Plaintiff fell off a stretcher. (Dkt. Nos. 1, 4.)

1 Although undefined by the parties, the Court presumes that the parties are referring to the Prison Rape Elimination Act of 2003, § 2 et seq., 42 U.S.C. § 15601 et seq.

B. Plaintiff's Statement of Undisputed Material Facts

Unless otherwise noted, the following facts were asserted and supported by Plaintiff in his Statement of Material Facts and not denied by Defendants in their response. (Compare Dkt. No. 65, Attach. 1 [Pl.'s Statement of Material Facts], with Dkt. No. 68, Attach. 1 [Defs.' Resp.].)

1. Plaintiff was incarcerated at Clinton on or about September 28, 2021.

2. Plaintiff was in the recreation area of D-block of Clinton on a date in September 2021.

3. On a date in September 2021, Defendant Kelly escorted Plaintiff from the recreation area, back to his cell, to the tier office.

4. Sometime in September 2021, Plaintiff reported an injury and sought medical care from Defendant Gillen.

5. On September 28, 2021, Dr. D'Amico was notified that Plaintiff alleged that an officer stuck his fingers up Plaintiff's rectum and that Plaintiff wished to file a complaint pursuant to the Prison Rape Elimination Act.

6. Plaintiff was issued a misbehavior report by Defendant Durkin. The misbehavior report mentioned that Plaintiff complained of chest pain.

7. On October 5, 2021, Plaintiff interacted with Defendant Durkin near the tier office.

8. Plaintiff sought medical attention after the interaction with Defendant Durkin.

9. Defendant Durkin ordered Plaintiff to be transported to the medical unit on a stretcher.

10. Plaintiff complied and was transported by stretcher to the medical unit.

11. Defendant Lashway was present when Plaintiff was on the stretcher.

12. Defendant King was present when Plaintiff was on the stretcher.

13. Defendant Gillen was aware of Plaintiff's reported PREA complaints.

14. Plaintiff was referred to the Office of Mental Health (“OMH”).

15. Plaintiff received a misbehavior report written by Defendant Durkin for NY DOCCS violations 106.10, 107.11, 104.12, 107.20, and 104.13.

16. Upon Plaintiff's admission to OMH he was strip searched. Defendant Devin was present for the strip search.

17. Plaintiff was admitted to OMH cell OBS #12.

18. Plaintiff submitted sick call request forms in April 2022-after the commencement of this action-that related to, inter alia, injuries he allegedly sustained on October 5, 2021.

19. Plaintiff was found guilty of the charges in the misbehavior report issued by Defendant Durkin. Plaintiff was sanctioned to time in the Special Housing Unit (“SHU”) and loss of privileges.

20. Plaintiff appealed the disposition of the misbehavior report issued by Defendant Durkin, and that appeal was denied.

21. Defendant Durkin admits to filing a misbehavior report against Plaintiff.

C. Defendants' Statement of Undisputed Material Facts

Unless otherwise noted, the following facts were asserted and supported by Defendants in their Statement of Material Facts and not denied by Plaintiff in a response. (Compare Dkt. No.

68, Attach. 1 [Defs.' Statement of Material Facts], with Dkt. No. 71 [Pl.'s Resp.].)

1. On September 21, 2021, Plaintiff was under keeplock confinement pending the outcome of a tier hearing on a misbehavior report that was issued on or about September 2, 2021.²

2 Although Plaintiff denies this fact as asserted, he fails to cite to any portion of the record to dispute it. As a result, the undersigned deems this fact admitted. N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed [movant's] statement of material facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a][3] statement that “offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations”); Jamison v. Metz, 865 F.Supp.2d 204, 207 n.1 (N.D.N.Y. 2011) (Suddaby, J.) (“[W]herever [the Pro Se] Plaintiff has [willfully] failed to cite record evidence in support of his denials of properly supported facts . . . the Court has deemed such facts admitted to the extent that they are not clearly in dispute.”), rev'd in part on other grounds, 541 Fed.Appx. 15, 17-19 (2d Cir. 2013).

2. On the morning of September 21, 2021, Plaintiff was taken from the recreational yard by-among others-Defendant Kelly, to take him to a hearing on the misbehavior report of September 2, 2021.³

3 See, supra, note 2.

3. When Plaintiff was removed from the recreational yard, he was placed in a waist chain and handcuffs.⁴

4 See, supra, note 2.

4. Plaintiff was taken to his cell in D-block, four gallery and was given time to change out of his sweatshirt and sweatpants to his state green jumpsuit and allowed to gather his legal materials, then was placed into mechanical restraints and taken to the tier office.

5. In the tier office, Plaintiff complained of chest pains. Plaintiff was taken to the infirmary where he was evaluated by Defendant Gillen.⁵

5 Plaintiff denies this fact and asserts that “there is no date of when this occurred.” Based on the context, it is clear that this fact relates to the incident alleged to have occurred on September 21, 2021.

6. Plaintiff denied having chest pain to Defendant Gillen but complained of having cold-like symptoms.⁶

6 See, supra, note 5.

7. Defendant Gillen assessed Plaintiff's vital data and gave Plaintiff allergy medications and cough syrup for his alleged cold symptoms.⁷

7 See, supra, note 5.

8. On September 28, 2021, Plaintiff was seen at approximately 11:25 a.m., by Nurse Bordeau for a complaint of sexual abuse at the hands of an unnamed correction officer, which was alleged to have happened at approximately 10:00 a.m., that day.⁸

8 See, supra, note 2.

9. On September 28, 2021, Defendant Gillen submitted an email to the Assistant Deputy Superintendent PREA Compliance Manager.

10. On September 28, 2021, Plaintiff was medically examined by Dr. D'Amico, where Plaintiff exhibited no signs of trauma. Dr. D'Amico noted the same and determined Plaintiff's sexual abuse complaint to not be credible.⁹

9 See, supra, note 2.

11. On October 5, 2021, Plaintiff was in the tier office hallway, which is monitored by cameras.¹⁰

10 See, supra, note 2.

12. The camera footage captured by the tier office hallway depicts an interaction between Defendant Durkin and Plaintiff.

13. At approximately 9:15 a.m., following Defendant Durkin's repeated instructions to remain quiet and Plaintiff's continued disobedience of those instructions, Defendant Durkin removed Plaintiff's legal documents temporarily. Plaintiff began complaining of chest pains, stated that he wished to report a PREA, and claimed that he had just been sexually assaulted.¹¹

11 See, supra, note 2.

14. Within approximately five minutes of Plaintiff's complaint of chest pains, a stretcher was brought to the tier office by four incarcerated individuals employed as porters and Defendants King and Lashway.¹²

12 See, supra, note 2. In addition, Plaintiff appears to add additional assertions to attempt to place this fact in context (Dkt. No. 71 at 5, ¶ 26 [asserting that the four porters “were not trained to utilize a stretcher, my care, my custody, & control was not there (sic) responsibility.”]), which is improper. As a result, the undersigned deems this fact admitted. See Maioriello v. New York State Office for People With Developmental Disabilities, 272 F.Supp.3d 307, 311 (N.D.N.Y. 2017) (Suddaby, C.J.) (“[T]hroughout Plaintiff's Rule 7.1 Response, she ‘admits' many of the facts asserted by Defendants in their Rule 7.1 Statement but then includes additional facts and/or legal argument in those responses....Where this occurs, the Court will deem those facts admitted and disregard the additional factual assertions and/or argument that Plaintiff provides in her responses.”); Baity v. Kralik, 51 F.Supp.3d 414, 417 (S.D.N.Y. 2014) (holding that plaintiff's response to defendant's Rule 56.1 Statement failed to comply with the rule because “counsel neither admits nor denies a particular fact, but instead responds with equivocal statements such as: ‘Admit, but defendant omits the balance of plaintiff's testimony'”); Goldstick v. The Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1 Statement, in part, because plaintiff added “argumentative and often lengthy narrative in almost every case the object of which is to ‘spin' the impact of the admissions plaintiff has been compelled to make”).

15. Defendant Durkin instructed that Plaintiff be taken to medical to be checked out before being taken to the Behavioral Health Unit (“BHU”).¹³

13 See, supra, note 2.

16. Defendant Durkin ordered Plaintiff onto the stretcher. Plaintiff then got onto the stretcher under his own power, was secured to the stretcher with straps, and was removed from the tier hallway.¹⁴

14 Plaintiff fails to explicitly confirm or deny this fact. (Dkt. No. 71 at 5, ¶ 28.) However, based on the commentary that Plaintiff included in his response, he appears to admit the fact. (Id.) As a result, the undersigned deems it admitted.

17. Plaintiff was taken up a single flight of steps by the porters, and was transferred to a gurney while escorted by Defendants Lashway and King. Defendant Durkin did not accompany Plaintiff to medical.¹⁵

15 See, supra, note 2.

18. Plaintiff was taken to medical, where he was evaluated.¹⁶

16 See, supra, notes 2, 12.

19. While in the medical area, Plaintiff stated that he wanted to kill himself, and was taken to the OMH area by Defendant Lashway.¹⁷

17 See, supra, notes 2, 12.

20. Plaintiff was also referred to the BHU by Defendant Durkin.¹⁸

18 See, supra, note 2.

21. On October 7, 2021, Plaintiff was admitted to OMH, and was brought to the OMH Frisk area at 11:45 a.m.¹⁹

19 See, supra, notes 2, 12.

22. Pursuant to OMH and DOCCS policy, Plaintiff was subject to a strip frisk and was thereafter changed into an OMH smock and slippers.²⁰

20 Plaintiff's response to Defendants' Statement of Material Facts appears to omit a response to this asserted fact. (Dkt. No. 71 at 6, ¶¶ 50-51.) However, Plaintiff's response to the next asserted fact admits that he was “given a smock & slippers.” (Dkt. No. 71 at 6, ¶ 51.)

23. A strip frisk of Plaintiff was conducted in the presence of Correction Sergeant Scott, Correction Officer Ashline, and Defendant Devins.²¹

21 See, supra, note 2.

24. At the conclusion of the search, C.O. Ashline noted that no contraband had been found, and marked that no force had been used on a form 1140SHU.²²

22 See, supra, note 2. Plaintiff asserts that he was not given the Dkt. No. 68, Attach. 3 at 5. (Dkt. No. 71 at 6, ¶ 54.) However, Plaintiff failed to submit an affidavit or declaration showing that, for specified reasons, he cannot present facts essential to justify his opposition pursuant to Rule 56(d) of the Fed. R. Civ. P.

25. According to medical records, medical staff saw Plaintiff on several occasions throughout the remainder of Plaintiff's time at Clinton, which ended in April of 2022.²³

23 See, supra, note 2.

26. Defendant Gillen responded to numerous sick call slips.²⁴

24 See, supra, note 2.

27. Plaintiff received X-Ray imaging on or about October 26, 2021, relative to complaints of a broken foot.²⁵

25 See, supra, note 2. In addition, Plaintiff appears to admit this fact acknowledging that “he did receive a X-ray.” (Dkt. No. 71 at 7, ¶ 57.)

28. Defendant Durkin issued a misbehavior report to Plaintiff for failure to obey a direct order, providing false information, harassment, creating a disturbance, and demonstration, regarding the events of October 5, 2021.

29. Following a hearing on the misbehavior report, Plaintiff was found guilty of all charges, except demonstration.

30. Upon an appeal by Plaintiff, the hearing was upheld.²⁶

26 Plaintiff's response to Defendants' Statement of Material Facts appears to omit a response to this asserted fact. (Dkt. No. 71 at 7, ¶¶ 59-60.)

31. At all relevant times, Clinton's grievance system was fully functioning and available for incarcerated individuals.²⁷

27 See, supra, note 2.

32. Individuals incarcerated at Clinton have access to the Central Office Review Committee (“CORC”) to appeal facility-level grievance determinations.

33. As of June 2023, Plaintiff had used the grievance appeals system in excess of one hundred times.²⁸

28 See, supra, note 2. Plaintiff states that he “has no proof of one hundred appeals filed.” (Dkt. No. 71 at 8, ¶ 62.) However, Defendants cite to admissible evidence in the record to support the fact asserted. (Dkt. No. 68, Attach. 1 at 10, ¶ 64 [citing Dkt. No. 68, Attach. 13 at 42-49.)

34. With respect to the relevant time period and allegations in this action, Plaintiff filed the following two grievances at Clinton: (1) Grievance CL-0883-21 entitled “Fell Off Stretcher/No Treatment,” and (2) Grievance CL-0882-21 entitled “Grievances not filed.”²⁹

29 See, supra, note 2.

35. Plaintiff also filed an additional grievance, which was given number CL-0881-21 alleging “a sexual assault by Lt. Durkin & Sgt Mason. D. Lashway,” as well as grieving that “Lt. Durkin forcing [him] to be carried on a stretcher.” Pursuant to Department policy, in such cases, the sexual assault components are treated separately, and were given PREA Log numbers 21- 0056 and 0057, and the remaining contention related to Defendant Durkin was addressed in grievances CL-0882-21 and CL-0883-21.³⁰

30 See, supra, note 2.

36. Plaintiff did not file other grievances relative to the allegations in this matter at Clinton.³¹

31 See, supra, note 2.

37. To date, CORC has not received grievances relative to: (1) an unnecessarily rough body cavity search on September 21, 2021 by Defendant Kelly; (2) an unnecessarily rough body cavity search on October 5, 2021 by Defendant Lashway; (3) Defendant Devins squeezing Plaintiffs testicles; (4) Defendant Durkin filing a false Inmate Misbehavior Report; (4) Defendant Lashway assaulting Plaintiff by placing his elbow on Plaintiffs throat; (5) Defendant King's conduct in refusing to report an incident; and (6) Defendant Durkin ordering staff to deny Plaintiff medical attention or failing to report an incident.³²

32 See, supra, note 2.

D. Parties' Briefing on the Motions for Summary Judgment

1. Plaintiff's Memorandum of Law

Generally, in support of his motion for summary judgment, Plaintiff argues that his declaration and the declarations of Defendants, Defendants' interrogatories, Defendants' answer, and Defendants' declarations are contradictory and “there is clearly a genuine issue of fact.” (Dkt. No. 65, Attach. 3 at 2-3.) Plaintiff argues that the factual disputes are material and directly relate to whether the actions of Defendants were malicious and sadistic. (Id. at 3.) Plaintiff argues that “[a] reasonable jury could find for the Plaintiff based on the facts in the Plaintiff's declaration, & summary judgment must therefore be denied.” (Id.)

2. Defendants' Opposition and Cross-Motion for Summary Judgment

Generally, in opposition to Plaintiff's motion for summary judgment and in support of their cross-motion for summary judgment, Defendants assert the following four arguments: (1) Plaintiff is not entitled to summary judgment, (2) Plaintiff failed to exhaust his administrative remedies before commending this action; (3) Plaintiff's claims must be dismissed on their merits; and (4) in the alternative, Defendants are entitled to dismissal of Plaintiff's claims based on the doctrine of qualified immunity. (See generally Dkt. No. 68, Attach. 2.)

More specifically, Defendants assert that Plaintiff argues that material questions of fact exist in this matter and, incongruously, that he is entitled to summary judgment. (Dkt. No. 68, Attach. 2 at 5.) As a result, Defendants argue that Plaintiff's motion lacks the condition precedent for summary judgment pursuant to Fed.R.Civ.P. 56, and must be denied. (Id.)

Moreover, Defendants assert that Plaintiff filed two grievances at Clinton but did not exhaust his administrative remedies with respect to (1) a body cavity search on September 21, 2021, by Defendant Kelly; (2) a body cavity search on October 5, 2021, by Defendant Lashway; (3) Defendant Devins squeezing Plaintiff's testicles; (4) Defendant Durkin filing a false inmate misbehavior report; (5) Defendant Lashway assaulting Plaintiff by placing his elbow on Plaintiff's throat; (6) Defendant King's conduct in refusing to report a use of force incident; and (7) Defendant Durkin ordering staff to deny Plaintiff medical attention or failing to report an incident. (Dkt. No. 68, Attach. 2 at 5-9.) Thus, Defendants argue that Plaintiff failed to exhaust his administrative remedies and his claims related to those allegations must be dismissed. (Id.)

Third, Defendants argue that Plaintiff's claims must be dismissed on their merits. (Dkt. No. 68, Attach. 2 at 9-23.) With respect to Plaintiff's excessive force claims, Defendants argue that the Second Circuit precedent in Jeffreys v. City of New York-which directs that summary judgment may be awarded when (1) there is nothing in the record to support allegations of excessive force, aside from the plaintiff's own contradictory and incomplete testimony, even after drawing all inferences in the light most favorable to the plaintiff, and (2) the court determines that “no reasonable person” could credit his testimony-is applicable here. (Id. at 917.) More specifically, Defendants assert that Plaintiff's allegations regarding the interaction with (1) Defendant Durkin on October 5, 2021, (a) the Complaint, Plaintiff's deposition testimony, and Plaintiff's summary judgment moving papers, offer differing versions of the alleged interaction, (b) the video of the interaction contradicts Plaintiff's allegations, and (c) the medical records do not support Plaintiff's allegations (id. at 10-12); (2) Defendant Kelly (a) Plaintiff solely relies on his own testimony but his allegations of the event have changed as to date, location, actors, and intensity throughout this litigation, (b) instead, the overwhelming proof shows that (i) on September 21, 2021, he was escorted by-among others-Defendant Kelly to a hearing regarding a misbehavior report dated September 2, 2021, (ii) in the tier office he complained of chest pains and was taken to the infirmary where he was evaluated by Defendant Gillen, and (iii) Plaintiff did not complain of a sexual assault on September 21, 2021, and when Plaintiff did complain of sexual assault on September 28, 2021, a physical examination by Dr. D'Amico determined Plaintiff's claims to not be credible (id. at 12-14); (3) Defendant Lashway (a) Plaintiff's allegations are inconsistent with his deposition testimony, which reflected an unsupported escalation of the claims, and (b) the objective proof does not support Plaintiff's claims in that, (i) Plaintiff's medical records demonstrate that there was no bruising or scratching at Plaintiff's neck, and (ii) Defendant Lashway was not present for Plaintiff's OMH admission strip frisk (id. at 14-16); and (4) Defendant Devins the evidence is clear that his only involvement in Plaintiff's OMH strip search was observational (id. at 16-17). Defendants argue that Plaintiff's retaliation claims must fail with respect to (1) Defendant Durkin because Plaintiff was issued a misbehavior report for an incident that was captured on video, which was upheld by the hearing officer and on appeal, and would have been issued even in the absence of Plaintiff's expressed intent to file a PREA complaint (Dkt. No. 68, Attach. 2 at 18-19); (2) Defendant Lashway because there is no causal nexus between the alleged retaliatory act (Defendant Lashway's application of force) and Plaintiff's speech (id. 19); and (3) Defendant Gillen because Plaintiff's medical records show that he was repeatedly seen by medical providers throughout his time in Clinton and there is thus, no evidence that a retaliatory act occurred (id. at 20). Further, Defendants argue that Plaintiff's deliberate medical indifference claims must fail with respect to (1) Defendant Durkin because (a) Plaintiff's medical records demonstrate that he did not suffer any injury at or around the time of his alleged fall from a stretcher, and (b) Plaintiff was evaluated at the infirmary after his alleged fall; (2) Defendant King because (a) there is no objective evidence that Plaintiff suffered any injury and subsequent medical evaluations showed no signs of injury, and (b) Plaintiff's medical record shows that he was repeatedly seen by medical providers throughout his time at Clinton. (Dkt. No. 68, Attach. 2 at 20-23.)

Fourth, in the alternative, Defendants argue that they are entitled to dismissal of Plaintiff's claims based on the doctrine of qualified immunity. (Id. at 23-24.)

3. Plaintiff's Reply in Support of His Motion for Summary Judgment and Response in Opposition to Defendants' Cross Motion for Summary Judgment

Generally, in further support of his motion for summary judgment, and in opposition to Defendants' cross-motion for summary judgment, Plaintiff asserts the following four arguments: (1) Plaintiff is entitled to summary judgment; (2) Plaintiff exhausted his administrative remedies with respect to all of his claims; (3) Plaintiff's claims must be granted on their merits; and (4) Defendants are not entitled to dismissal based on the doctrine of qualified immunity. (See generally Dkt. No. 71, Attach. 1 at 4-12.)

More specifically, Plaintiff first argues that Defendants admitted and conceded “practically all the facts [and] characterizations asserted by Plaintiff in support of his motion.” (Dkt. No. 71, Attach. 1 at 5.) Plaintiff argues that because “material questions of fact exist in this matter . . . he is . . . entitled to summary judgment.” (Id.)

Second, Plaintiff argues that during his time at Clinton, he filed grievances, appealed to the Clinton Superintendent, and appealed to CORC, on the following issues: (1) a body cavity search on September 21, 2021, by Defendant Kelly; (2) a body cavity search on October 5, 2021; (3) Defendant Devins squeezing Plaintiff's testicles; (4) Defendant Durkin filing a false misbehavior report; (5) Defendant Lashway assaulting Plaintiff by placing his elbow on Plaintiff's throat; (6) Defendant King's conduct refusing to report a use of force incident; and (7) Defendant Durkin ordering staff to deny Plaintiff medical attention or failing to report an incident. (Dkt. No. 71, Attach. 1 at 6.) Plaintiff argues that his grievances were opened and destroyed due to there being no grievance lockbox available for him to use. (Id.) Plaintiff argues that the IGRC was not processing his grievances. (Id.)

Third, Plaintiff argues that, on the merits, his claims must be granted. (Dkt. No. 71, Attach. 1 at 7-11.) More specifically, Plaintiff argues that, with respect to his excessive force claims against (1) Defendant Durkin, he was assaulted on October 5, 2021, in the tier office and the video was a reflection of the second time that Defendant Durkin approached him; (2) Defendant Kelly, he was assaulted on September 21, 2021, in the D-block recreation area; during the assault Defendant Kelly pushed Plaintiff into the wall, conducted a pat frisk, and inserted his fingers into Plaintiff's rectum; (3) Defendant Lashway, (a) on October 5, 2021, Defendant Lashway shoved his elbow into Plaintiff's throat causing injuries that still exist to present date, and (b) on October 7, 2023,³³ Defendant Lashway threatened Plaintiff to plead guilty “to a Tier III or be killed,” and (4) Defendant Devins, squeezed Plaintiff's testicles after Plaintiff was “admitted to OBS.” (Dkt. No. 71, Attach. 1 at 7-9.) Plaintiff argues that, with respect to his retaliation claims (1) Plaintiff reported a PREA and Defendant Durkin placed him in SHU in retaliation, which is an adverse action; (2) Defendant Lashway assaulted Plaintiff on the stretcher for reporting a PREA against Defendant Durkin; (3) Defendant Gillen denied Plaintiff medical care and gave Plaintiff “an ultimatum to drop the PREAs.” (Id. at 9.) Plaintiff argues that, with respect to his deliberate medical indifference claims, those claims survive because (1) Defendant Durkin assaulted Plaintiff causing a ruptured blood vessel, swollen face, and fractured nose; (2) Plaintiff's fall from the stretcher was witnessed and acknowledged by Defendant Lashway in his interrogatory answers (that Attorney Durando refused to provide); (3) Plaintiff was not examined by a qualified nurse-to assist him in response to his injuries; (4) Defendant King witnessed Plaintiff's fall off the stretcher and attack by Defendant Lashway, but worked with Defendant Lashway to send Plaintiff to the SHU pursuant to Defendant Durkin's orders; and (5) Plaintiff was seen by Dr. D'Amico on September 9, 2021, but was never seen by a nurse or doctor for nerve damage to his neck, vision impairments, concussion, nose bleeds, chronic headaches, immobility-inability to stand for extended periods, no feeling in left hand, fractured foot, and no feeling in right foot. (Id. at 10-11.)

33 The undersigned presumes that Plaintiff's recitation of this date was in error and that he intended to say this incident happened on October 7, 2021.

Fourth, Plaintiff argues that Defendants have clearly deviated from the reasonable execution and discharge of their duties by assaulting him, placing him in the SHU, denying him medical care, and retaliating against him for reporting RPEA, and thus, are not entitled to dismissal of his claims pursuant to the doctrine of qualified immunity. (Id. at 11-12.)

II. RELEVANT LEGAL STANDARDS

A. Standard Governing A Motion For Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).³⁴ As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.

34 As a result, “[c]onclusory 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) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than 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, 585-86 (1986).

In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).

Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding Pro Se.³⁵ (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)³⁶ As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.³⁷

35 Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).

36 Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).

37 Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).

Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.

For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement³⁸-even when the non-movant was proceeding Pro Se.³⁹

38 Among other things, Local Rule 56.1 (previously Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.

39 Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).

Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3).⁴⁰ Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).

40 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).

B. Standard Governing Exhaustion of Administrative Remedies

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); see also Ross v. Blake, 136 S.Ct. 1850, 1854-55 (2016) (“The [PLRA] mandates that an inmate exhaust ‘such administrative remedies as are available' before bringing suit to challenge prison conditions.”). “[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). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).

The PLRA requires “proper exhaustion,” which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates “‘using all steps that the [government] agency holds out, and doing so properly'” (quoting Woodford, 548 U.S. at 90)). In New York State prisons, DOCCS has a well-established three-step incarcerated grievance program (“IGP”), in which, (1) the inmate must file a grievance with the Inmate Grievance Resolution Committee (“IGRC”) within twenty-one days of the alleged occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the superintendent of the facility within seven days after receipt of the IGRC's response, and (3) the inmate must then appeal an adverse decision by the superintendent to the CORC within seven days after receipt of the superintendent's response. 7 N.Y.C.R.R. § 701.5; McGee v. McGready, 16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018).

“[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance.” Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021); see 7 N.Y.C.R.R. § 701.8. Under the expedited procedure, the Superintendent has twenty-five days to respond to the grievance. 7 N.Y.C.R.R. § 701.8. If the Superintendent fails to respond within twenty-five days, the inmate may appeal directly to CORC. Id. § 701.8(g). If the Superintendent does respond, the inmate has seven days from receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g). Whether or not the Superintendent timely responds, the procedure to appeal a determination of the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the inmate grievance clerk.” Id. § 701.8(g)-(h).⁴¹ Inmates who have been transferred to a different facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2).

41 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. 7 N.Y.C.R.R. § 701.5(d)(1)(i).

“CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the inmate does not receive such confirmation within forty-five days, he ‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.'” Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022) (quoting 7 N.Y.C.R.R. § 701.5(d)(3)(i)). The IGP requires CORC to respond to an appeal within thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii). If CORC has received an appeal and fails to rule within those thirty days, the inmate is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020).

While the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory exhaustion.” Ross, 136 S.Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that “are available” must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S.Ct. at 1858 (“[T]he exhaustion requirement hinges on the availability of administrative remedies[.]”) (quotation marks and citations omitted). In the PLRA context, the Supreme Court has determined that “availability” means that “an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of.” Ross, 136 S.Ct. at 1859 (quotation marks and citations omitted).

The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. 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. In Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that “the three circumstances discussed in Ross do not appear to be exhaustive[.]” The illustrations of unavailability in Ross nonetheless guide the Court's inquiry. Mena v. City of New York, 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).

Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216. The plaintiff must then establish the IGP grievance procedure was unavailable to him under Ross. Id.

C. Standard Governing Excessive Force Claims

The Eighth Amendment protects prisoners from “cruel and unusual punishment” at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). This includes punishments that “involve the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). The Eighth Amendment's prohibition against cruel and unusual punishment encompasses the use of excessive force against an inmate, who must prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's actions violated “contemporary standards of decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotations omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).

Although “a de minimis use of force will rarely suffice to state a constitutional claim,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993), the malicious use of force to cause harm constitutes an Eighth Amendment violation per se because in such an instance “contemporary standards of decency are always violated.” Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). The key inquiry into a claim of excessive force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).

“To determine whether a defendant acted maliciously, several factors should be examined including, ‘the extent of the injury and the mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.'” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (quoting Romano, 998 F.2d at 105).

D. Standard Governing Retaliation Claims

“To prevail on a First Amendment retaliation claim, an inmate must establish (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected conduct and the adverse action.” Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (cleaned up). As the Second Circuit has repeatedly cautioned, “[c]ourts properly approach prisoner retaliation claims ‘with skepticism and particular care,' because ‘virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act.'” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)); see also Phelps v. Kapnolas, 308 F.3d 180, 187 n.6 (2d Cir. 2002).

“[A]dverse action” for the purposes of a retaliation claim has been defined as “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights . . . [o]therwise the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Davis, 320 F.3d at 353 (citing Dawes, 239 F.3d at 493).

To establish a causal connection between protected activities and the adverse action, the court may consider a number of factors, including “(1) the outcome of any hearing concerning the allegedly retaliatory charges; (2) the inmate's prior disciplinary record; (3) any statements made by the defendant concerning his motivation; and[] (4) the temporal proximity between the protected activity and the defendant's adverse action.” Williams v. Muller, 98-CV-5204, 2001 WL 936297, at *3 (S.D.N.Y. Aug. 17, 2001) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) abrogated, in part, on other grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)). However, with respect to temporal proximity at the summary judgment stage, the Second Circuit has “consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim.” Washington v. Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017).

E. Legal Standard Governing Deliberate Indifference to Serious Medical Needs Under the Eighth Amendment

“A prison official's ‘deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 25 (1993)). Within that framework, “[t]he Cruel and Unusual Punishments Clause of the Eighth Amendment imposes a duty upon prison officials to ensure that inmates receive adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006); accord, Estelle v. Gamble, 429 U.S. 97, 103 (1976). However, “[b]ecause society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.'” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle, 429 U.S. at 103-04). In this context, a prison official violates the Eighth Amendment only when two requirements are satisfied. Farmer, 511 U.S. at 834.

1. Objective Requirement-Serious Medical Needs

“The first requirement is objective: the alleged deprivation of adequate medical care must be ‘sufficiently serious.'” Salahuddin, 467 F.3d at 279 (citation and internal quotation marks omitted); accord, Farmer, 511 U.S. at 834. Evaluation of the objective prong involves two inquiries: (1) “whether the prisoner was actually deprived of adequate medical care,” and (2) “whether the inadequacy in medical care is sufficiently serious.” Salahuddin, 467 F.3d at 27980.

With regard to the first inquiry, because a prison official need only provide “reasonable care,” one who acts reasonably in response to an inmate's health risk “cannot be found liable under the Cruel and Unusual Punishments clause.” Id. at 279-80 (quoting Farmer, 511 U.S. at 847). “The word ‘adequate' reflects the reality that ‘[p]rison officials are not obligated to provide inmates with whatever care the inmates desire.'” Banks v. Annucci, 48 F.Supp.3d 394, 408-09 (N.D.N.Y. 2014) (Hurd, J.) (quoting Jones v. Westchester Cnty. Dept. of Corrs. Med. Dept., 557 F.Supp.2d 408, 413 (S.D.N.Y. 2008)).

With regard to the second inquiry, determining whether the alleged inadequacy was “sufficiently serious” involves an examination of “how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin, 467 F.3d at 280 (citation omitted). If the unreasonable medical care alleged was a “failure to provide any treatment” for the inmate's medical condition, courts examine whether the condition itself is sufficiently serious. Id.; see also Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003) (“There is no need to distinguish between a prisoner's underlying ‘serious medical condition' and the circumstances of his ‘serious medical need' when the prisoner alleges that prison officials have failed to provide general treatment for his medical condition.”) (footnote omitted). “Factors relevant to the seriousness of a medical condition include whether ‘a reasonable doctor or patient would find [it] important and worthy of comment,' whether the condition ‘significantly affects an individual's daily activities,' and whether it causes ‘chronic and substantial pain.'” Salahuddin, 467 F.3d at 280 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); accord, Rodriguez v. Manenti, 606 Fed.Appx. 25, 26 (2d Cir. 2015) (summary order); Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (“Objectively, the alleged deprivation must be ‘sufficiently serious,' in the sense that ‘a condition of urgency, one that may produce death, degeneration, or extreme pain' exists.”) (citation omitted). “A finding of a serious medical need ‘is necessarily contextual and fact-specific,' and thus ‘must be tailored to the specific circumstances of each case.'” Shenk v. Cattaraugus Cnty., 305 Fed.Appx. 751, 753 (2d Cir. 2009) (summary order) (quoting Smith, 316 F.3d at 185).

However, “[i]n cases where the inadequacy is in the medical treatment given,” as opposed to a complete absence of treatment, “the seriousness inquiry is narrower.” Salahuddin, 467 F.3d at 280. “For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry ‘focus[es] on the challenged delay or interruption in treatment rather than' [the inmate's medical condition].” Id. (quoting Smith, 316 F.3d at 185). “In other words, the Court asks ‘whether, from an objective standpoint, the temporary deprivation was sufficiently harmful to establish a constitutional violation.'” Kidkarndee v. Koenigsmann, 12-CV-0502, 2014 WL 1239319, at *14 (N.D.N.Y. Mar. 25, 2014) (Suddaby, J., adopting Report-Recommendation of Hummel, M.J.) (quoting Frank v. Cnty. of Ontario, 884 F.Supp.2d 11, 19 (W.D.N.Y. 2012)).

2. Subjective Requirement-Deliberate Indifference

“The second requirement for an Eighth Amendment violation is subjective: the charged official must act with a sufficiently culpable state of mind.” Salahuddin, 467 F.3d at 280. “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106; accord, Daniels v. Williams, 474 U.S. 327, 331-33 (1986) (explaining that “injuries inflicted by governmental negligence are not addressed by the United States Constitution”).

“[D]eliberate indifference [for purposes of an Eighth Amendment claim] describes a state of mind more blameworthy than negligence,” Farmer, 511 U.S. at 835, equivalent to “subjective recklessness, as the term is used in criminal law.” Salahuddin, 467 F.3d at 280; Smith, 316 F.3d at 184. “This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.” Salahuddin, 467 F.3d at 280; accord, Farmer, 511 U.S. at 837-38 (“An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis.”). Because this inquiry is subjective, “[p]rison officials may . . . introduce proof that they were not so aware, such as testimony that ‘they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.'” Salahuddin, 467 F.3d at 280 (quoting Farmer, 511 U.S. at 844). However, “evidence that the risk was obvious or otherwise must have been known to a defendant is sufficient to permit a jury to conclude that the defendant was actually aware of it.” Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003). “Whether a course of treatment was the product of sound medical judgment, negligence, or deliberate indifference depends on the facts of the case.” Chance, 143 F.3d at 703.

III. ANALYSIS

A. Whether Plaintiff Is Entitled to Summary Judgment

After carefully considering the matter, for the reasons set forth in Defendants' memorandum of law (Dkt. No. 68, Attach. 2 at 5), I recommend that Plaintiff's motion for summary judgment (Dkt. No. 65) be denied. Plaintiff argues that issues of fact remain for trial. As a result, Plaintiff- as the movant-failed to establish that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477 U.S. at 247.

B. Whether Defendants Are Entitled to Summary Judgment

After carefully considering the matter, the undersigned answers this question in the affirmative, in part, and in the negative, in part.

1. Exhaustion

As set forth in Defendants' memorandum of law and supporting declarations, Plaintiff failed to exhaust his administrative remedies by appealing to CORC the following eight claims: (1) excessive force against Defendant Kelly related to the cavity search on September 21, 2021; (2) excessive force against Defendant Lashway related to the unnecessarily rough cavity search; (3) excessive force against Defendant Lashway for his elbow placement on Plaintiff's throat after Plaintiff fell off the stretcher on October 5, 2021; (4) excessive force against Defendant Devins for squeezing Plaintiff's testicles; (5) retaliation against Defendant Durkin related to the filing of a false misbehavior report on October 5, 2021; (6) retaliation against Defendant Lashway for his elbow placement on Plaintiff's throat; (7) deliberate medical indifference against Defendant King for refusing to report an incident after watching Plaintiff fall off the stretcher on October 5, 2021; and (8) deliberate medical indifference against Defendant Durkin for ordering staff to deny Plaintiff medical attention and failing to report an unusual incident after Plaintiff fell off the stretcher on October 5, 2021.⁴² (Dkt. No. 68, Attach. 2 at 5-9; Dkt. No. 68, Attach. 13.) Although Plaintiff argued that he filed “grievances and appeals to the Clinton IGP, Superintendent, & C.O.R.C.” regarding those eight claims, Plaintiff fails to present evidence in admissible format to establish a genuine dispute of material fact for trial that he exhausted his administrative remedies. (Dkt. No. 71, Attach. 1 at 6.)

42 Consequently, Defendants' argument regarding Plaintiff's failure to exhaust his administrative remedies does not apply to the following two claims: (1) excessive force claim against Defendant Durkin for slapping Plaintiff's butt on October 5, 2021, before his disciplinary hearing; and (2) retaliation claim against Defendant Gillen for denying medical treatment in response to Plaintiff's PREA complaint. (Compare Dkt. No. 4 at 11-28 [outlining which of Plaintiff's claims survived sua sponte review of the Complaint pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A(b)], with Dkt. No. 68, Attach. 2 at 8-9 [Defendants' memorandum of law outlining which of Plaintiff's claims have not been properly exhausted].)

Instead, Plaintiff stated under penalty of perjury that he filed his grievances “addressed to IGRC” then “filed his grievances to C.O.R.C., the Attorney General, NYS Police ....[and] filed a complaint to the Prisoner Legal Service[.]” (Dkt. No. 71, Attach. 1 at 17; see Dkt. No. 71, Attach. 1 at 77 [Plaintiff's purported appeal dated October 18, 2021, addressed to Rachel Seguin “And any other party who represent the C.O.R.C. in the matter of appeals”]; Dkt. No. 71, Attach. 1 at 83 [Plaintiff's letter dated October 8, 2021, addressed to the New York State Department of Law]; Dkt. No. 71, Attach. 1 at 85 [Plaintiff's letter dated October 21, 2021, addressed to the New York State Police].) However, mailing an appeal directly to CORC does not result in proper exhaustion of administrative remedies. See Fox v. Gifford, 20-CV-0797, 2023 WL 4210870, at *9 (N.D.N.Y. Feb. 16, 2023) (Lovric, M.J.) (citing Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *5 (S.D.N.Y. July 28, 2022) (holding that “[n]othing in the record indicates that Plaintiff followed [the proper] procedure; rather, it appears he tried to mail his appeal directly to CORC, and CORC never received the document....Accordingly, Plaintiff failed to properly follow the grievance procedure and has failed to exhaust his administrative remedies.”)) (noting that “if Plaintiff had mailed the appeal solely to CORC, he would not have properly exhausted his administrative remedies.”), report and recommendation adopted by 2023 WL 2403742 (N.D.N.Y. Mar. 8, 2023) (Sharpe, J.); Valverde v. Folks, 19-CV-8080, 2022 WL 836310, at *6 (S.D.N.Y. Mar. 21, 2022) (“Plaintiff did not properly comply with [the] prison grievance procedural rules. Plaintiff . . . mailed his appeal statement directly to CORC. However, to appeal a decision denying a grievance, an inmate must submit the appeal, not directly to CORC, but to the grievance supervisor of the facility where the grievance was originally filed for forwarding to that facility's grievance clerk.”); Wilkinson v. Banks, 02-CV-0361, 2007 WL 2693636, at *6 (W.D.N.Y. Sept. 10, 2007) (“[N]o dispute exists that [the Pro Se plaintiff] did not follow correct procedure in attempting to appeal that grievance to CORC. He did not file his appeal with the Inmate Grievance Clerk as required by the regulations, but rather mailed it directly to CORC.”).

Moreover, Plaintiff's claim that he informed other government officials of his grievances, does not excuse his failure to exhaust. Indeed, it is well-settled that “[s]uch correspondence does not satisfy exhaustion and falls outside of the grievance procedures.” Rodriguez v. Cross, 15-CV-1079, 2017 WL 2791063, at *4 (N.D.N.Y. May 9, 2017) (Hummel, M.J.) (collecting cases), report and recommendation adopted by 2017 WL 2790530 (N.D.N.Y. June 27, 2017) (Suddaby, C.J.); see Geer v. Champan, 15-CV-0952, 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26, 2016) (Baxter, M.J.) (“It is well-settled that writing letters to prison officials, or other officials, is insufficient to properly exhaust administrative remedies.”), report and recommendation adopted by 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016) (Sharpe, J.).

Similarly, to the extent Plaintiff claims his grievances were not answered, that does not excuse his failure to exhaust. As set forth above in Part II.B. of this Order and ReportRecommendation, “a prisoner must proceed through all three levels of the IGP to satisfy the PLRA's exhaustion requirement.” Cohen, 2017 WL 3311244, at *6. “Thus, where a prisoner files a grievance, and the IGRC does not respond, the inmate must nevertheless exhaust his appeals to the facility superintendent and the CORC.” Hernandez v. Coffey, 99-CV-11615, 2003 WL 22241431, at *4 (S.D.N.Y. Sept. 29, 2003); see also Muhammad v. Corr. Officer Douglas, 15-CV-0935, 2016 WL 3082657, at *4 (S.D.N.Y. May 26, 2016) (“Compliance requires an inmate to appeal properly to the CORC, even if the inmate receives no response from the IGRC at the first step of exhaustion.”); Arce v. Keane, 01-CV-2648, 2004 WL 439428, at *2 (S.D.N.Y. Mar. 9, 2004) (“An inmate's failure to appeal a grievance is not excused because he has received no response to his initial grievance.”). Only after an inmate has properly exhausted all three levels of review, may an inmate seek relief pursuant to Section 1983. Torres v. Carry, 672 F.Supp.2d 338, 344 (S.D.N.Y. 2009).

To the extent that Plaintiff's opposition is construed as arguing that the administrative remedies were not “available” to him, I find that argument unpersuasive for four reasons. First, Plaintiff successfully filed a grievance with the inmate grievance office, which indicates that the procedure was “available” to him. (Dkt. No. 71 at 8, ¶ 63); see Cohen, 2017 WL 3311244, at *6 (holding that where the plaintiff claimed he “turned in grievances to the IG Office” that “indicates that the procedure was ‘available' to him.”). Second, Plaintiff appears to assert that because a lockbox was not provided in the Clinton SHU pursuant to Directive 4040, the entire grievance process was unavailable to him. (Dkt. No. 71, Attach. 1 at 6-7.) However, Directive 4040 does not mandate the use of lockboxes and instead permissibly reads, “[w]here available, SHU inmates shall use centrally located IGP deposit boxes to send grievance forms and IGP correspondence to the IGP office.” (Dkt. No. 71, Attach. 1 at 61.) Third, Plaintiff acknowledges that he “filed his grievances to C.O.R.C.” (Dkt. No. 71, Attach. 1 at 17, ¶ 13), which reflects improper compliance with exhaustion requirements as opposed to the process being unavailable to him. Fourth, “courts in this Circuit have granted summary judgment for failure to exhaust administrative remedies, even for a prisoner confined to a SHU or whose ability to directly file a grievance or make a copy may be limited, when the plaintiff provided no documentation or minimal corroborative details.” Jackson v. Moore, 21-CV-1001, 2023 WL 4710869, at *6-7 (N.D.N.Y. Apr. 14, 2023) (Baxter, M.J.) (citing Sankara v. Montgomery, 16-CV-0885, 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018) (Dancks, M.J.) (“Plaintiff's conclusory allegations that the DOCCS IGP was unavailable to him [while confined to the SHU] were insufficient to withstand summary judgment,” where the plaintiff “provided no evidence that he actually did write grievances; when they were written; the content of the grievances . . . the officers named in the grievance(s) . . .; the specific steps taken by Plaintiff to provide them to an officer to send to the grievance office; and any specific follow up with the grievance office[.]”), report and recommendation adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018) (Scullin, J.); Simpson v. Price, 19-CV-1413, 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (Baxter, M.J.) (in the absence of any documentary evidence to corroborate plaintiff's alleged attempt to file a grievance from the SHU, the court concludes that plaintiff's completely unsupported, unclear, and vague implication that the grievance was not properly processed does not suffice to avoid summary judgment), report and recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb. 4, 2022) (D'Agostino, J.); Ozzborn v. Cornell, 17-CV-1039, 2021 WL 2227829, at *5 (N.D.N.Y. June 2, 2021) (Baxter, M.J.) (Plaintiff claimed that he filed a grievance from the SHU by leaving a plain envelope addressed to the grievance committee for the mail personnel to collect; but, because he never received a response, he presumed that the grievance was never submitted. Because plaintiff never followed up on his grievance and successfully filed numerous other grievances in the recent past, he has failed to demonstrate that his administrative remedies were unavailable to him)), report and recommendation adopted by, 2023 WL 4711091 (July 24, 2023) (Suddaby, J.).

As a result, I recommend that Defendants' motion for summary judgment (Dkt. No. 68) seeking dismissal of some of Plaintiff's claims for failure to exhaust his administrative remedies, be granted.⁴³

43 As set forth above in note 42, to the extent that the Court adopts this recommendation, the following two claims would remain: (1) excessive force claim against Defendant Durkin for slapping Plaintiff's butt on October 5, 2021, before his disciplinary hearing; and (2) retaliation claim against Defendant Gillen for denying medical treatment in response to Plaintiff's PREA complaint.

2. Merits

a. Excessive Force

i. Defendant Durkin

For the reasons set forth in Defendants' memorandum of law, I recommend that Plaintiff's excessive force claim against Defendant Durkin be dismissed on the merits. (Dkt. No. 68, Attach. 2 at 10-12.) The following is intended to supplement, not supplant, those reasons.

Although in his unsworn memorandum of law in response to Defendants' cross motion for summary judgment Plaintiff stated that the video of his interaction with Defendant Durkin (Dkt. No. 68, Attach. 14) was “manipulated to depict a narrative to create & conform a defense,” Plaintiff fails to submit any admissible proof to support this assertion and create a genuine dispute of material fact for trial. (Dkt. No. 71, Attach. 1 at 8.) Instead, Plaintiff's sworn affidavit merely states in a conclusory fashion that he was “assaulted” by Defendant Durkin. (Dkt. No. 71, Attach. 1 at 16.) Moreover, Plaintiff testified during his deposition that although his memory of the interaction with Defendant Durkin is “great” and “beautiful, . . . the video [of the alleged assault] is going to be immaculate.” (Dkt. No. 68, Attach. 6 at 66.) However, as identified by Defendants, the video of the interaction between Plaintiff and Defendant Durkin refutes Plaintiff's claims. (Dkt. No. 68, Attach. 2 at 10-12.)

As set forth by Defendants, the three requirements of Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) are met here and “no reasonable person” could credit Plaintiff's version of the events. (Id.) As a result, I recommend that Defendants' motion for summary judgment of Plaintiff's excessive force claim against Defendant Durkin be dismissed on the merits.

ii. Defendant Kelly

In the alternative, if Plaintiff's excessive force claim against Defendant Kelly is not dismissed for Plaintiff's failure to exhaust administrative remedies as set forth above in Part III.B.1. of this Report and Recommendation, I recommend that it be dismissed on the merits for the reasons set forth in Defendants' memorandum of law.⁴⁴ (Dkt. No. 68, Attach. 2 at 12-14.) Of note, the undersigned emphasizes Defendants' contention that a jury, at trial, would be required to believe changes in the date, location, people involved, and intensity of the attack currently alleged by Plaintiff, which differ substantially from those alleged in the Complaint. (Id.) In addition, the undersigned notes that Plaintiff asserts in his opposition to Defendants' exhaustion argument that he exhausted claims regarding a “body cavity search September 21, 2021 by C.O. Kelly.” (Dkt. No. 71, Attach. 1 at 6.) However, Plaintiff simultaneously attempts to argue that the incident with Defendant Kelly occurred on September 28, 2021. (Dkt. No. 65, Attach. 1 at 1.)

44 However, the undersigned rejects Defendants' arguments that, if Plaintiff's excessive force claims against Defendants Lashway and Devins survive their failure to exhaust administrative remedies arguments, that they should be dismissed on the merits. (Dkt. No. 68, Attach. 2 at 14-17.) Although Defendants highlight several inconsistencies between Plaintiff's testimony and (1) the medical records, and (2) an affidavit from Correction Officer Ashline swearing that Defendant Lashway was not present and Defendant Devins was merely an observer during the OMH admission search on October 7, 2021 (Dkt. No. 68, Attach. 2 at 1416), the undersigned concludes that after drawing all reasonable inferences in the light most favorable to Plaintiff, a reasonable person could credit Plaintiff's testimony. Defendants did not submit video evidence of the incidents with Defendants Lashway and Devins. (See generally Dkt. No. 68.) Moreover, Plaintiff's allegations have not changed the date, location, and involved actors. In deciding a motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir. 2012). “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'” Barrows v. Seneca Foods Corp., 512 Fed.Appx. 115, 117 (2d Cir. 2013) (quoting Redd v. New York Div. of Parole, 678 F.3d 116, 174 (2d Cir. 2012)).

b. Retaliation

i. Defendant Durkin

In the alternative, if Plaintiff's retaliation claim against Defendant Durkin is not dismissed for Plaintiff's failure to exhaust administrative remedies as set forth above in Part III.B.1. of this Report and Recommendation, I recommend that it be dismissed on the merits for the reasons set forth in Defendants' memorandum of law. (Dkt. No. 68, Attach. 2 at 18-19.) The following is intended to supplement, not supplant, those reasons.

“[I]t is well-settled that, even where plaintiff can make a showing of retaliatory motive, the defendant may be entitled to summary judgment if she can show that the alleged retaliatory action would have occurred even without the improper motivation.” Stevens v. Duquette, 20-CV-0853, 2022 WL 2292975, at *8 (N.D.N.Y. Apr. 19, 2022) (Baxter, M.J.) (citing Greer v. Mehiel, 805 Fed.Appx. 25, 29 (2d Cir. 2020)), report-recommendation adopted by, 2022 WL 2292047 (N.D.N.Y. June 24, 2022) (Sannes, J.). The defendant bears the burden of making the showing that she would have taken exactly the same action in the absence of an improper motive. Greer, 805 Fed.Appx. at 29 (citing Scott v. Coughlin, 344 F.3d 282, 288 (2d Cir. 2003)).

Here, Plaintiff's retaliation claim against Defendant Durkin is further subject to dismissal because Defendant Durkin had a non-retaliatory basis for filing a misbehavior report and would have taken the same action even if he had known of Plaintiff's PREA complaint. (Dkt. No. 68, Attach. 7 at ¶ 21.) More specifically, the video of the interaction between Plaintiff and Defendant Durkin reveals that Plaintiff committed some “‘if not all, of the prohibited conduct charged in the misbehavior report.'” Flynn v. Ward, 15-CV-1028, 2018 WL 3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.) (quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)), report and recommendation adopted by, 2018 WL 3193201 (N.D.N.Y. June 28, 2018) (Sharpe, J.). I find that Plaintiff would have been subjected to discipline for violating facility policy and a direct order, whether or not Defendant Durkin harbored a retaliatory motive. See Woods v. Chadwick, 21-CV-0662, 2023 WL 2864805, at *5 (N.D.N.Y. Jan. 30, 2023) (Baxter, M.J.) (recommending that summary judgment be granted where the plaintiff acknowledged that he violated established rules and procedures but claimed that he was issued a misbehavior report in retaliation for protected conduct), report and recommendation adopted by, 2023 WL 2568890 (N.D.N.Y. Mar. 20, 2023) (Suddaby, J.); Logan v. Graham, 18-CV-0291, 2019 WL 8015209, at *14 (N.D.N.Y. Nov. 26, 2019) (Lovric, M.J.) (citing Flynn, 2018 WL 3195095, at *12; Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998) (concluding that the plaintiff's admission of the underlying conduct established a “proper, non-retaliatory reason[] for filing the misbehavior report.”)) (holding that “Defendants have established a non-retaliatory reason for the filing of the misbehavior report” where the plaintiff admitted that he committed prohibited conduct charged in the misbehavior report), report and recommendation adopted by, 2020 WL 871197 (N.D.N.Y. Feb. 21, 2020) (Hurd, J.).

As a result, I recommend that, in the alternative, Defendants' motion for summary judgment be granted with respect to Plaintiff's retaliation claim against Defendant Durkin for the alleged filing of a misbehavior report in retaliation for Plaintiff's PREA complaint.

ii. Defendant Lashway

In the alternative, if Plaintiff's retaliation claim against Defendant Lashway is not dismissed for Plaintiff's failure to exhaust administrative remedies as set forth above in Part III.B.1. of this Report and Recommendation, I recommend that it be dismissed on the merits for the reasons set forth in Defendants' memorandum of law. (Dkt. No. 68, Attach. 2 at 19.) The following is intended to supplement, not supplant, those reasons.

“[I]t is difficult to establish one defendant's retaliation for complaints against another defendant.” Hare v. Hayden, 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009)).

Here, Plaintiff argues in his unsworn response memorandum of law that Defendant Lashway “assaulted Plaintiff on the stretcher for reporting a PREA against [Defendant] Durkin, as he stated.” (Dkt. No. 71, Attach. 1 at 9.) However, Plaintiff fails to identify any admissible evidence in the record establishing why Defendant Lashway would “assault” Plaintiff on Defendant Durkin's behalf, beyond Plaintiff's conclusory assertion in his unsworn memorandum of law. See Hill v. Chalanor, 128 Fed.Appx. 187, 189 (2d Cir. 2005) (holding that the plaintiff's claim of a causal connection between defendant “Oliver's threats and the alleged actions of the other defendants in connection with Hill's medical care is wholly unsupported.”) Flynn v. Ward, 15-CV-1028, 2018 WL 3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.) (recommending dismissal of retaliation claims where “[t]he record lacks any evidence establishing why Alsante would file a false misbehavior report against Flynn, on Wellenstein's behalf, beyond Flynn's conclusory allegations.”). Without more, the evidence does not present a genuine issue of material fact for a jury to resolve. Flynn, 2018 WL 3195095; see Wright, 554 F.3d at 274 (dismissing retaliation claim against a correction officer when the only alleged basis for retaliation was a complaint about an incident involving another correction officer); Alicea v. Maly, 12-CV-0203, 2015 WL 4326114, at *14-15 (N.D.N.Y. July 14, 2015) (D'Agostino, J.) (dismissing retaliation claim which alleged that Correction Officer Trinidad retaliated against the plaintiff for protected actions he took with respect to Correction Officer Freeman, where the plaintiff alleged a close personal friendship between Trinidad and Freeman and the record was “devoid of any specifics, but replete with conclusions”); Roseboro v. Gillespie, 791 F.Supp.2d 353, 369 (S.D.N.Y. 2011) (plaintiff failed to provide any basis to believe that a correction counselor would retaliate for a grievance that she was not personally named in); Ciaprai v. Goord, 02-CV-0915, 2005 WL 3531464, at *9 (N.D.N.Y. Dec. 22, 2005) (Sharpe, J.) (entering summary judgment on retaliation claim where the plaintiff cited only past grievances filed against correction officers other than the officer who disciplined the plaintiff).

Moreover, the identity of the speaker Plaintiff refers to is unclear when Plaintiff contends that the assault occurred “for reporting a PREA against [Defendant] Durkin, as he stated.” (Dkt. No. 71, Attach. 1 at 9 [emphasis added].) It is also unclear what the unidentified speaker allegedly said. The Complaint alleges that Defendant Lashway “placed his forearm and elbow on [Plaintiff's] throat and stated ‘Shut up, pussy.'” (Dkt. No. 1 at 8, ¶ 46.) Plaintiff testified during his deposition that Defendant Lashway called him “racial slurs” while applying pressure to Plaintiff's throat. (Dkt. No. 68, Attach. 6 at 87-88.) Although the Court does not condone either of these alleged slurs, neither suggests a causal connection between the alleged act and Plaintiff's protected conduct in filing a PREA complaint against Defendant Durkin.⁴⁵

45 Although not asserted by Plaintiff, to the extent that Plaintiff relied on the temporal proximity between his protected conduct and the alleged adverse action by Defendant Lashway, the Second Circuit has consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim.” Washington v. Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017); see also Thomas v. Waugh, 13-CV-0321, 2015 WL 5750945, at *4 (N.D.N.Y. Sept. 30, 2015) (D'Agostino, J. adopting Report-Recommendation on de novo review) (citing Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)) (“temporal proximity alone is insufficient to establish an inference of retaliation.”).

As a result, I recommend that, in the alternative, Defendants' motion for summary judgment be granted with respect to Plaintiff's retaliation claim against Defendant Lashway for the placing of his elbow on Plaintiff's throat in retaliation for Plaintiff's PREA complaint against Defendant Durkin.

iii. Defendant Gillen

After carefully considering the matter, I recommend that Defendants' motion for summary judgment on Plaintiff's retaliation claim against Defendant Gillen be denied.⁴⁶

46 The parties appear to agree that Plaintiff's PREA complaint was protected speech and that the refusal to provide medical attention can constitute an adverse action. See Jusino v. Gallagher, 21-CV-0689, 2022 WL 2078159, at *8 (D. Conn. June 9, 2022) (citing Abreu v. Lipka, 778 Fed.Appx. 28, 33 (2d Cir. 2019) (“[W]itholding of medication could constitute sufficiently adverse actions that would deter a prisoner of ordinary firmness from exercising his rights.”) (cleaned up)) (“[A] failure to provide medical care can constitute adverse action for purposes of First Amendment retaliation.”); Hayes v. Dahkle, 16-CV-1368, 2018 WL 7356343, at *14 (N.D.N.Y. Dec. 11, 2018) (Hummel, M.J.) (citing Gill v. Piplypchak, 389 F.2d 379, 384 (2d Cir. 2004)) (holding that “plaintiff has satisfied the first prong of the test as he has engaged in a protected activity” by the filing of a PREA complaint), rev'd in part on other grounds, 976 F.3d 259 (2d Cir. 2020).

Contrary to Defendants' contention that the “only support for this claim are several sick call slips from . . . two months following the filing of this Action,” Plaintiff's deposition testimony supports his claim. Although difficult to follow, drawing all reasonable inferences in Plaintiff's favor-as the Court must at this juncture-Plaintiff appeared to testify that Defendant Gillen declined to provide Plaintiff with a complete medical evaluation because of his pending PREA complaint. (Dkt. No. 68, Attach. 6 at 51-53.) Plaintiff testified that Defendant Durkin- the person against whom the PREA complaint was filed-urged Defendant Gillen to refuse to medically treat Plaintiff because of the pending PREA complaint and that Defendant Gillen “ultimately made the choice out of her mouth that no, [Plaintiff] would not be” medically evaluated. (Id. at 52.) This sworn deposition testimony is sufficient to establish an issue of fact for trial regarding the causal connection between Plaintiff's protected speech (the PREA complaint against Defendant Durkin) and Defendant Gillen's adverse action (refusal to provide medical treatment).

As a result, I recommend that Defendants' motion for summary judgment on Plaintiff's retaliation claim against Defendant Gillen be denied.⁴⁷

47 Further, I reject Defendants' arguments that if Plaintiff's deliberate indifference claims against Defendants King and Durkin are not dismissed for failure to exhaust his administrative remedies, they should be dismissed on the merits. (Dkt. No. 68, Attach. 2 at 20-23.) There are issues of fact that remain for trial with respect to the merits of Plaintiff's deliberate indifference claims. Although Defendants assert that the medical records do not demonstrate any injuries around the time of Plaintiff's alleged fall from a stretcher on October 5, 2021, a reasonable juror could credit Plaintiff's version of events that the medical providers refused to treat his injuries and he was never seen by a LPN or doctor for the injuries that Defendants Durkin and King were aware of. As a result, to the extent that the Court does not dismiss Plaintiff's medical indifference claims against Defendants King and Durkin for failure to exhaust administrative remedies, I recommend that those claims survive Defendants' motion for summary judgment.

3. Qualified Immunity

Qualified immunity shields government employees from liability under Section 1983 in two circumstances: “(1) their conduct did not violate clearly established rights of which a reasonable person would have known, or (2) it was objectively reasonable to believe that their acts did not violate these clearly established rights.” Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir. 2010) (internal quotation marks, alteration, and citations omitted). “A right is clearly established when the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011) (internal quotation marks, alterations, and citation omitted).

Qualified immunity attaches if “officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context.” Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (internal quotation marks and citation omitted). In essence, the doctrine of qualified immunity provides protection to “all but the plainly incompetent or those who knowingly violate the law.” Dancy, 843 F.3d at 106 (citation omitted).

I reject Defendants' arguments that they are protected from liability as a matter of law by the doctrine of qualified immunity. Defendants appear to merely repeat arguments from elsewhere in their brief without meaningfully applying the law to the facts of the case. (Dkt. No. 68, Attach. 2 at 23-24 [arguing that “[i]nsofar as the Defendants have not deviated from the reasonable execution and discharge of their duties, as set forth above, Defendants are entitled to summary judgment based upon the doctrine of qualified immunity.”].) Therefore, the undersigned recommends that “[t]he Court . . . deline[] to consider at this time whether [Defendants] are protected by qualified immunity.” Osorio v. Westchester Cnty., 18-CV-5629, 2019 WL 3958443, at *1 n.2 (S.D.N.Y. Aug. 21, 2019).

Moreover, Defendants have not identified any ambiguity in the applicable legal standard. cf. Deskovic v. City of Peekskill, 894 F.Supp.2d 443, 467 (S.D.N.Y. 2012) (denying a qualified immunity application where the defendant “ha[d] not identified any changes in the legal standards”).

As a result, the undersigned rejects Defendants' qualified immunity argument and recommends that the Court deny their motion insofar as it seeks to dismiss Plaintiff's claims based on the doctrine of qualified immunity.

ACCORDINGLY, it is respectfully

RECOMMENDED that Plaintiff's motion for summary judgment (Dkt. No. 65) pursuant to Fed.R.Civ.P. 56, be DENIED ; and it is further respectfully

RECOMMENDED that Defendants' cross-motion for summary judgment (Dkt. No. 68) be GRANTED to the extent that it sought dismissal of (1) the following eight claims for failure to exhaust administrative remedies: (a) excessive force against Defendant Kelly,⁴⁸ (b) excessive force against Defendant Lashway related to an unnecessarily aggressive cavity search, (c) excessive force claim against Defendant Lashway related to placing his elbow on Plaintiff's throat, (d) excessive force against Defendant Devins, (e) retaliation claim against Defendant Durkin,⁴⁹ (f) retaliation claim against Defendant Lashway,⁵⁰ (g) medical indifference claim against Defendant King, and (h) medical indifference claim against Defendant Durkin; and (2) Plaintiff's excessive force claim against Defendant Durkin based on the merits; and be DENIED to the extent that it sought dismissal of Plaintiff's retaliation claim against Defendant Gillen; and it is further

48 In the alternative, it is recommended that Plaintiff's excessive force claim against Defendant Kelly be dismissed on the merits.

49 In the alternative, it is recommended that Plaintiff's retaliation claim against Defendant Durkin be dismissed on the merits.

50 In the alternative, it is recommended that Plaintiff's retaliation claim against Defendant Lashway be dismissed on the merits.

ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.⁵¹

51 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report.⁵² 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, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.

52 If you are proceeding Pro Se and 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 that 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).