Gunn v. AyalaGunn v. Ayala
- Reporters:
- ,
- Before:
- Kenneth M. Karas
Darrell Gunn
Ossining, NY
Pro Se Plaintiff
Sarande Dedushi, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendant
KENNETH M. KARAS, United States District Judge:
Darrell Gunn (“Plaintiff“) brings this Action against Edwin Ayala (“Defendant“), pursuant to
For the reasons stated herein, Defendant‘s Motion is denied.
A. Factual Background
The following facts are taken from Defendant‘s statements pursuant to Local Civil Rule 56.1. (Rule 56.1 Statement (“Def.‘s 56.1“) (Dkt. No. 39).) Additionally, where appropriate, the Court cites directly to the admissible evidence submitted by the Parties. The facts as described below are in dispute to the extent indicated.1
Plaintiff was an incarcerated individual at Green Haven at all times relevant to this Action. (Def.‘s 56.1 ¶ 1.) Plaintiff alleges he was assaulted by Defendant while at Montefiore-
At the time of the alleged assault, Plaintiff was on a hunger strike. (Def.‘s 56.1 ¶ 3.) Plaintiff was housed in the infirmary at Green Haven after the alleged assault at Montefiore-Mount Vernon Hospital until his hunger strike concluded on October 9, 2018. (Id. ¶¶ 2-4.) During his hunger strike in the infirmary, Plaintiff was placed on a one-on-one watch. (Id. ¶ 4.) While at the infirmary, he did not have access to any personal belongings including paper and writing utensils because he was on suicide watch. (Dedushi Decl. Ex. D, at 59:11-13; 60:19-25; 61:5-11 (Dkt. No. 41).)
Plaintiff did not file any grievance against Defendant for allegedly assaulting him on September 11, 2018. (Def.‘s 56.1 ¶ 27; Complaint ¶ 18; Dedushi Decl. Ex. D, at 69:23-70:2.) Plaintiff testified that while at the infirmary, he did not have access to the grievance program because, at the infirmary, there are no “IGRC reps and once you are on suicide watch you have
Plaintiff testified that Correction Officer Pollins interfered with his ability to file a grievance by confiscating Plaintiff‘s eyeglasses before the alleged incident took place on September 11, 2018. (Id. at 71:4-8; 73:5-74:2.) On February 28, 2019, Plaintiff filed a grievance regarding Pollins’ confiscation of his eyeglasses. (Dedushi Decl. Ex. A.) The grievance lists the incident date as February 8, 2019. (Id.)
Plaintiff was released from Green Haven‘s infirmary to the general population on October 9, 2018, 28 days after the alleged incident and right after his hunger strike concluded. (Def.‘s 56.1 ¶ 8; Dedushi Decl. Ex. D, at 65:17-22.) Plaintiff still had approximately 17 days to file a grievance within 45 days of the occurrence if he gave a reason as to why he was unable to file his grievanсe within the default 21-day period. Once returned to his cell, Plaintiff had access to writing utensils, paper, and the grievance program. (Dedushi Decl. Ex. D, 67:16-25.) Grievances can be submitted to the grievance clerk utilizing a Grievance Complaint Form or plain paper if that form is not available. (Stanway Decl. ¶ 10 (Dkt. No. 42).) Plaintiff has filed grievances on plain paper before. (Dedushi Decl. Ex. D, at 23:18-24.) However, Plaintiff did not file a grievance or request an extension, by filing a grievance giving a reason as to why he was unable to file his grievance within the default 21-day period, after he was released to the general population. (Id. at 69:5-22.)
Plaintiff did not file a grievance regarding the alleged incident, he claims, out of fear of retaliation from “prison guards,” who would makе sure he would “get beat up again” if he filed a grievance regarding the alleged incident. (Id. at 54:19-55:8; 62:5-20.) Plaintiff did not have
Between August 2014 and August 2019, Plaintiff filed 71 grievances. (Stanaway Decl. ¶ 15; id. at Ex. B (Dkt. No. 42).) A search of the CORC computer database for appeals received from Plaintiff as of April 29, 2022 resulted in 129 results. (Seguin Decl. Ex. B (Dkt. No. 43).)
B. Procedural History
Plaintiff filed his initial complaint on January 30, 2020. (Dkt. No. 2.) Defendant filed a Motion to Dismiss on July 13, 2021. (Dkt. No. 20.) Plaintiff filed his Opposition on July 28, 2021. (Dkt. No. 21.) Defendant filed a Reply on August 30, 2021. (Dkt. No. 22.) The Court granted in part and denied in part Defendant‘s Motion to Dismiss and the Parties were 1) ordered to conduct limited discovery on non-exhaustion of administrative remedies, and 2) instructed that the instant Motion was to address solely the issue of whether Plaintiff‘s claims should be dismissed for failure to exhaust administrative remedies. (Dkt. No. 23.)
Defendant filed the instant Motion on May 16, 2022. (See Def.‘s Mem. of Law in Supp. of Mot. for Summary Judgment (“Def.‘s Mem.“) (Dkt. No. 45).) Plaintiff submitted his Opposition on June 9, 2022. (See Mem. of Law for Reply to Mot. for Summary Judgment (“Pl.‘s Mem.“) (Dkt. No. 46).) Defendant replied on July 8, 2022. (See Reply to Mot. (“Def.‘s Reply Mem.“) (Dkt. No. 49).)
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a mаtter of law.”
“However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant‘s claim,” in which case “the non[-]moving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration, citation, and quotation marks omitted). Further, “[t]o survive a [summary judgment] motion . . ., [a non-mоvant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; [s/he] need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial,‘” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting U.S. 574” pinpoint=“586-87” court=“U.S.” date=“1986“>Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), “and cannot rely on the mere allegations or denials contained in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . .“).
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep‘t of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[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.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (сitation omitted). Thus, a court‘s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharms. Tech. Corp. v. Barr Laby‘s. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex, 477 U.S. at 323-24).
When ruling on a motion for summary judgment, a district court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits or deposition testimony to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.‘” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting
Finally, the Second Circuit has instructed that when a court considers a motion for summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham, 848 F.2d at 344; accord Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at *7 (S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics and quotation marks omitted). Moreover, “the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment.” Vt. Teddy Bear Co., 373 F.3d at 244; see also Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an examination of the legal validity of an entry of summary judgment should . . . be[ ]made in light of the opposing party‘s pro se status” (italics omitted)). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party‘s bald assertions unsupported by evidence . . . are insufficient to overcome a motion for summary judgment.” Houston, 27 F. Supp. 3d at 351 (alterations, italics, and quotation marks omitted); see also Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147, at *2 (S.D.N.Y. July 31, 2017) (same).
1. The PLRA Framework
The Prison Litigation Reform Act (“PLRA“) provides that “[n]o action shall be brought with respect to prison conditions under [§] 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
To satisfy the exhaustion requirements, a prisoner “must exhaust all levels” of DOCCS‘s “Inmate Grievance Program” (“IGP“). Little v. Mun. Corp., City of N.Y., No. 12-CV-5851, 2017 WL 1184326, at *11 (S.D.N.Y. Mar. 29, 2017). The IGP provides for a three-step grievance process. See
However, the PLRA “contains its own, textual exception to mandatory exhaustion.” Ross, 578 U.S. at 642. As the Supreme Court has explained “the exhaustion requirement hinges on the ‘availab[ility]’ of administrative remedies . . . . [A]n 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.‘” Id. (quoting Booth, 532 U.S. at 738).
2. Existence of Grievance Process
There is no dispute that a grievance procedure exists at DOCCS and at Green Haven: Plaintiff himself has used it many times before the alleged incident. (Stanaway Decl. ¶ 15; id. at Ex. B.) Green Haven maintains an inmate grievance procedure pursuant to Department of Corrections and Community Supervision (“DOCCS“) Directive 4040, and that procedure was in place while Plaintiff was housed at Green Haven in 2018. (See Stanaway Decl. ¶¶ 3, 7.) Codified in
Harassment grievances require the IGRC to give the grievance a calendar number and record it in sequence with the other grievances in the grievance clerk‘s log. (Stanaway Decl. Ex. A, at 15-16.) From there, the grievance is passed directly to the Superintendent for an initial review, and, if determined to be a harassment issue, the Superintendent will initiate an in-house investigation by higher ranking supervisory personnel into the allegations contained in the grievance. (Id.) Thereafter, if the grievant is unsatisfied with the decision rendered by the facility Superintendent, he may appeal to CORC. (Id.)
Defendant contends that incarсerated individuals on one-on-one watch can request to file a grievance by informing the sergeants, who make rounds in the area where the one-on-one watch is being conducted, that they want to file a grievance. (Lashley Decl. ¶¶ 11-14 (Dkt. No. 44).) The sergeants would then follow up with the facility‘s grievance program regarding the complaint brought to their attention by the incarcerated individual. (Id.)
However, Plaintiff testified that the grievance process does not exist for inmates in the infirmary on suicide watch because there are no IGRC representatives in the infirmary and inmates on suicide watch do not have access to paper, writing utensils, or mail. (Dedushi Decl. Ex. D, at 59:6-13; Pl.‘s Mem. 4.) Furthermore, Plaintiff testified in his deposition that he
Whether or not a grievance procedure existed in the infirmary for individuals on suicide watch, however, is not dispositive. Plaintiff was discharged back into the general population on October 9, 2018, 28 days after the alleged September 11, 2018 incident. (Def.‘s 56.1 ¶ 8.) And as discussed above, the DOCCS’ grievance program allows incarcerated individuals to file a grievance within 45 days of the alleged occurrence if the grievant requests an exception to the time limit for filing a grievance in writing, giving a reason as to why they were unable to file their grievance within the default 21-day period. Thus, Plaintiff still had approximately 17 days to file a grievance after being returned to general population. Plaintiff was aware that he could request an extension, (Dedushi Decl. Ex. D-1, at 21:7-10), and admits that he did not use the grievance procedure that existed at Green Haven regarding this incident (see Compl. ¶ 18; Dedushi Decl., Ex. D, 69:23-70:2). Accordingly, Plaintiff did not exhaust all steps of the grievance process.
3. Availability of Grievance Process
“Once [a] defendant[] ha[s] met [the] initial burden of demonstrating that a grievance process exists . . . a plaintiff bears the burden of ‘demonstrat[ing] that other factors . . . rendered a nominally available procedure unavailable as a matter of fact.‘” White v. Velie, No. 16-CV-1183, 2017 WL 4082706, at *2 (2d Cir. 2017) (quoting Hubbs v. Suffolk Cnty. Sheriff‘s Dep‘t, 788 F.3d 54, 59 (2d Cir. 2015)). In his Opposition, Plaintiff seems to advаnce two theories
a. Dead End
Plaintiff‘s Opposition contends that there is a general mistrust of the Green Haven‘s grievance program. (Pl. Mem. 4). He also contends that the IGRC representatives and the IGRC supervisors show “fraudulent behavior,” which similarly makes the process unavailable. (Id.) Plaintiff additionally states that he was “unsuccessful to file [sic] several grievance complaints and appeals were considered untimely but was never given [an] opportunity to receive or use mitigating circumstances to file grievances and appeals untimely.” (Id. at 3-4.)
To constitute an “available” remedy, a process requirеs only “the possibility of some relief.” Ross, 578 U.S. at 643 (citation and quotation marks omitted). Accordingly, a plaintiff must show that the grievance process “could not lead to a change in the challenged prison policies.” Green Haven Prison Preparative Meeting of Religious Soc‘y of Friends v. N.Y. State Dep‘t of Corr. & Cmty. Supervision, 16 F.4th 67, 82 (2d Cir. 2021), cert. denied sub nom. Green Haven Preparative Meeting v. N.Y. State Dep‘t of Corr. & Cmty. Supervision, 142 S. Ct. 2676 (2022). Indeed, the example provided by the Court in Ross as a dead end involved a scenario where a prison handbook directed inmates to submit grievances to a particular administrative office when, in practice, the office disclaimed the capacity to consider grievances. Ross, 578 U.S. at 643.
A search of the CORC computer database for appeаls received by Plaintiff as of April 29, 2022 resulted in 129 results. (Seguin Decl. Ex. B.) Furthermore, between August 2014 and August 2019, Plaintiff filed 71 grievances. (Stanaway Decl. ¶ 15; id. at Ex. B.) That Plaintiff was unsuccessful in filing several grievance complaints alone does not evidence that the grievance
Plaintiff also testified that he did not attempt getting an extension within the 45-day window because “the IGRC supervisor, Laura Stanaway, wouldn‘t give me the benefit of an extension.” (Dedushi Decl. Ex. D-1, at 64:17-25.) However, Plaintiff fails to provide evidence showing that the submission of a request for an exemption to the time limit for filing grievances operates as a dead end. Plaintiff attaches a request for an exception to the time limit for filing an appeal regarding denied grievance GH-87455-17 dated June 26, 2019 to his Opposition. (Pl.‘s Mem Ex. Q (Dkt. No. 46).) This grievance was denied on March 9, 2018. (Id.) However, an exception to the time limit for filing an appeal may not be granted more than 45 days after the date of the decision unless the late appeal asserts a failure to implement the decision. (Stanaway Decl. Ex. A at 12.) That Plaintiff may have been denied an extension that he filed past the 45-day window is not evidence that exemptions to the time limit for filing grievances are never
Furthermore, Plaintiff has filed many prior grievances, some regarding misconduct similar to that alleged here. (See Pl.‘s Mem. Ex. I (Dkt. No. 46); Seguin Decl. Ex. B.) Courts have found that such behavior demonstrates that the grievance process is not a dead end. See, e.g., Smith v. Jaynes, No. 18-CV-1107, 2022 WL 686627, at *3 (N.D.N.Y. Feb. 18, 2022) (“[A plaintiff‘s prior filing of grievances regarding parallel conduct] shows that [the] [p]laintiff did not view the filing of grievances as a dead end.“); Lapierre v. LaValley, No. 15-CV-1499, 2019 WL 4015689, at *5 (N.D.N.Y. Aug. 26, 2019) (granting summary judgment because the plaintiff‘s prior filings “show[ ] that [he] did not view the filing of grievances as a dead end” (citаtion omitted)), report and recommendation adopted, 2019 WL 4686415 (N.D.N.Y. Sept. 26, 2019), aff‘d, 847 F. App‘x 47 (2d Cir. 2021) (summary order); Gonzalez v. Coburn, No. 16-CV-6174, 2017 WL 6512859, at *6 (W.D.N.Y. Dec. 20, 2017) (holding that the plaintiff‘s decision to affirmatively participate at all three levels in the inmate grievance program demonstrates that the program was not a dead end).
i. Machination
Insofar as the confiscation of Plaintiff‘s glasses can be understood as machination, Plaintiff has not shown that the confiscation prevented him from filing grievances. Plaintiff submitted a grievance regarding the confiscation of his eyeglasses in February 2019. (Dedushi Decl. Ex. A.) In the grievance, Plaintiff requested that his eyeglasses be replaced immediately. (Id.) The Court will note that the handwriting in this grievance is larger than the handwriting in the other grievances Plaintiff has provided the Court, which may be a result of his lack of eyeglasses. (Id.; Pl.‘s Mem. Ex. B-Y.) However, his lack of eyeglasses did not prevent him from filing the grievance as he successfully submitted a grievance regarding his lack of eyeglasses. (Dedushi Decl. Ex. A; Stanaway Decl. Ex. B, at 3.) Accordingly, Plaintiff cannot show that his lack of eyeglasses made the grievance process unavailable to him.
ii. Intimidation
Plaintiff asserts that the “brotherhood culture in DOCCS creates fear to file grievance complaints.” (Pl.‘s Mem. 4-5.) Plaintiff points to a report by the Correctional Association of New York, based on surveys from 84 of 2,139 inmates at Green Haven which states that “of the inmates we interviewed, 71% reported experiencing retaliation for filing a grievance at some point and 90% described Green Haven‘s grievous system as poor.” (Id. Ex. A, at 13.)
In his Complaint, Plaintiff alleges that before Defendant began assaulting him, he told Plaintiff “Gunn writes grievances. He writes everybody up in all prisons he goes to. Everywhere he goes all he does is write grievances. That‘s all he does!” (Compl. ¶ 11.) In his deposition, Plaintiff testified that after assaulting him, Defendant told other officers “Gunn likes to write grievances, he goes and writes grievances everywhere he goes.” (Dedushi Decl. Ex. D-
Defendant argues that Plaintiff‘s “subjective general fear” that prison guards would retaliate against him is insufficient as a matter of law. (Def.‘s Mem. 11.) Indeed, a general fear of retaliation is insufficient to render the grievance program an unavailable remedy. See Little, 2017 WL 1184326, at *12 (“[A]llegations of generalized fear are insufficient to excuse [the plaintiff‘s] failure to exhaust.“); Contino v. City of N.Y., No. 11-CV-8537, 2013 WL 4015816, at *6 (S.D.N.Y. Aug. 7, 2013) (“[Plaintiff‘s] conclusory assertion that he feаred retaliation if he completed the grievance process is insufficient to excuse his obligation to exhaust the administrative grievance process.“); Brown v. Napoli, 687 F. Supp. 2d 295, 297 (W.D.N.Y. 2009) (“[G]eneralized fear of retaliation is insufficient to excuse his failure to file a grievance concerning these matters.“); Harrison v. Stallone, No. 06-CV-902, 2007 WL 2789473, at *5 (N.D.N.Y. Sept. 24, 2007) (“[A] general fear of retaliation is not sufficient to excuse the exhaustion requirement.” (emphasis in original) (citation and quotation marks omitted)).
On the other hand, “[p]rior cases have held that verbal and physical threats of retaliation, [and] physical assault” can prevent prisoners from availing themselves of grievance procedures.
The Court recognizes that in Decolines, Larry, and McCullough, the plaintiffs had alleged beatings in response to a particular grievance or informal complaint that they had
Accordingly, in light of Lucente, that Plaintiff has not alleged he was beaten in response to a particular grievance does not distinguish this case from Decolines, Larry, and McCullough to Plaintiff‘s detriment. Here, the alleged physical assault combined with the subsequent comments regarding Plaintiff‘s previous filing of grievances, if true, are not “wholly unrelated to the grievance process.” Lucente, 980 F.3d at 313. In fact, Defendants’ alleged statements “Gunn likes to write grievances, he goes and writes grievances everywhere he goes,” (Dedushi Decl. Ex. D-1, at 48:25-49:5), are similar to some of the statements in Decolines, where the court denied summary judgment, in part, because the plaintiff alleged that one of the officers said “you like writing grievances” prior to an assault, 2021 WL 4947118, at *3-4.
Furthermore, after the incident in September 2018, the record reveals that Plaintiff only filed three more grievances: two in 2019 and one in 2020. (Seguin Decl. Ex. B.) The record shows that in 2016, Plaintiff filed 41 grievances and in 2017 he filed 14. (Id.) Construing the record evidence in the light most favorable to Plaintiff, this reduction in grievances could be interpreted as a response to the alleged intimidation.
Accordingly, this Court cannot determine as a matter of law that a person of ordinary firmness would not have been deterred from using the grievance process after experiencing the alleged assault.
The question of exhaustion is generally determined by the court prior to trial even if the underlying material facts are in dispute, as “the Seventh Amendment does not guarantee a jury trial on factual disputes regarding administrative exhaustion under the PLRA.” Messa v. Goord, 652 F.3d 305, 310 (2d Cir. 2011). The Messa court stressed, however, that “the factual disputes relating to exhaustion [we]re not intertwined with the merits of [the plaintiff‘s] underlying . . . claim.” Id. at 309. Judicial resolution of the exhaustion question therefore did not interfere with the plaintiff‘s Seventh Amendment right to have a jury resolve the merits of the ultimate dispute. Id.
Although the Second Circuit has not expressly held that a jury must resolve factual disputes regarding exhaustion when the underlying facts are entangled with those that underlie a plaintiff‘s substantive claims, at least three lower court decisions have so concluded. See Stephens v. Venetozzi, No. 13-CV-5779, 2020 WL 7629124, at *3 (S.D.N.Y. Dec. 21, 2020) (“Here, the factual issues underlying the availability of administrative remedies are plainly intertwined with [the] [p]laintiff‘s substantive claim of excessive force. To determine whether the grievance procedure was available to [the] [p]laintiff, the [c]ourt would necessarily have to determine whether to credit his testimony that he was assaulted on September 20 in retaliation for his previous grievances—i.e., the ultimate factual issue underlying his claim for excessive force.“); Daum v. Doe, No. 13-CV-88, 2016 WL 3411558, at *2 (W.D.N.Y. June 22, 2016) (“[A] jury should find the facts that will determine the exhaustion issue because the factual issues relating to exhaustion are intertwined with the merits of [the plaintiff‘s] underlying excessive force claim.” (alteration in original) (docket citation and quotation marks omitted)); Rickett v. Orsino, No. 10-CV-5152, 2013 WL 1176059, at *23 (S.D.N.Y. Feb. 20, 2013) (“In this case, . . .
III. Conclusion
For the foregoing reasons, Defendant‘s Motion is denied. The Court will hold a status conference on May 3, 2023 at 11:30 AM. The Clerk of the Court is respectfully requested to terminate the pending motion at Dkt. No. 38.
SO ORDERED.
Dated: March 28, 2023
White Plains, New York
KENNETH M. KARAS
United States District Judge
Notes
Here, Defendant filed and served its statement pursuant to Rule 56.1, (see Def.‘s 56.1), in addition to the requisite statement notifying Plaintiff of the potential consequences of not responding to the Motion as required by Local Rule 56.2, (See Not. to Pro Se Litigant (Dkt. No. 40)). Despite this notice, Plaintiff failed to submit a response to Defendant‘s 56.1 Statement of Facts. (See generally Dkt.) Accordingly, the Court may conclude that the facts in Defendant‘s 56.1 Statement are uncontested and admissible. See Brandever, 2014 WL 1053774, at *3 (concluding that because the pro se plaintiff did not submit a Rule 56.1 statement in response to the defendant‘s statement of facts, “there [were] no material issues of fact“); Anand v. N.Y. State Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29, 2013) (same).
Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988), the Court will “in its discretion opt to conduct an assiduous review of the record” when deciding the instant Motion, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). See also Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund-Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y. 2014) (“Although [the] plaintiffs did not file a Rule 56.1 statement, the Court has independently reviewed the record to ensure that there is uncontroverted evidence to support the paragraphs referenced in [the] defendants’ Rule 56.1.“); Pagan v. Corr. Med. Servs., No. 11-CV-1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept. 27, 2013) (explaining thаt “[the] [c]ourt ha[d] considered the [motions for summary judgment] in light of the entirety of the record to afford [the pro se] [p]laintiff the special solicitude to which he [was] entitled” where the plaintiff failed to submit a Rule 56.1 response); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872, 2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013) (italics omitted) (“[W]here a pro se plaintiff fails to submit a proper . . . Rule 56.1 statement in opposition to a summary judgment motion, the [c]ourt retains some discretion to consider the substance of the plaintiff‘s arguments, where actually supported by evidentiary submissions.” (quotation marks omitted)).