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Case 9:14-cv-01042-TJM-TWD Document 60 Filed 11/04/16 Page 1 of 132 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ PHILLIP E.K. BRYANT, Plaintiff, 9:14-cv-1042 v. (TJM/TWD) LT. WHITMORE, et al., Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: PHILLIP E.K. BRYANT Plaintiff, pro se 13-B-2470 Marcy Correctional Facility P.O. Box 3600 Marcy, NY 13403 HON. ERIC T. SCHNEIDERMAN MICHAEL G. McCARTIN, ESQ. Attorney General of the State of New York Assistant Attorney General Attorney for Defendants The Capitol Albany, New York 12224 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”), Case 9:14-cv-01042-TJM-TWD Document 60 Filed 11/04/16 Page 2 of 132 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 4-10.1) 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. 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 1 Page references to documents identified by docket number are to the page number assigned by the Court’s CM/ECF electronic docketing system. 2 Case 9:14-cv-01042-TJM-TWD Document 60 Filed 11/04/16 Page 3 of 132 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.2 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 2 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.”).) 3 Case 9:14-cv-01042-TJM-TWD Document 60 Filed 11/04/16 Page 4 of 132 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). 4 Case 9:14-cv-01042-TJM-TWD Document 60 Filed 11/04/16 Page 5 of 132 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, 19993) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). 3 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). 5 Case 9:14-cv-01042-TJM-TWD Document 60 Filed 11/04/16 Page 6 of 132 III. PLAINTIFF’S FAILURE TO COMPLY WITH L.R.

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