Robert Dimitri v. Eric Velie, et al.

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March 27, 2026 Get Citation Alerts Download PDF Add Note

Robert Dimitri v. Eric Velie, et al.

District Court, N.D. New York

• Citations: None known
• Docket Number: 9:24-cv-00273

• Precedential Status: Unknown Status

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

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Trial Court Document

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

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ROBERT DIMITRI,
Plaintiff,
v. 9:24-cv-00273 (AMN/PJE)
ERIC VELIE, et al.,

Defendants.

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APPEARANCES: OF COUNSEL:

ROBERT DIMITRI
22-B-2482
Attica Correctional Facility
P.O. Box 149
Attica, New York 14011
Plaintiff pro se

HON. LETITIA JAMES CHI-HSIN E. ENGELHART, ESQ.
New York State Attorney General Assistant Attorney General
The Capitol
Albany, New York 12224
Attorneys for Defendants
Hon. Anne M. Nardacci, United States District Judge:

ORDER
I. INTRODUCTION
On February 26, 2024, plaintiff pro se Robert Dimitri (“Plaintiff”), who was incarcerated
in the custody of the New York State Department of Corrections and Community Supervision
(“DOCCS”) at all relevant times, commenced this action pursuant to 42 U.S.C. § 1983 in
connection with alleged misconduct that occurred at Great Meadow Correctional Facility (“Great
Meadow”) on September 16, 2023 and September 17, 2023. See Dkt. No. 1. Plaintiff sought and
was granted leave to proceed in forma pauperis. Dkt. Nos. 2, 4, 8. On May 10, 2024, the Court,
on initial review pursuant to 28 U.S.C. § 1915, dismissed all but Plaintiff’s Eighth Amendment
excessive force claims against Defendants Velie and Butler (“Defendants”). Dkt. No. 8 at 15.1 On
September 30, 2024, Plaintiff amended his complaint, see Dkt. No. 17, and on November 20, 2024,
the Court, on initial review, again dismissed all but Plaintiff’s excessive force claims against
Defendants Velie and Butler. Dkt. No. 20 at 12. On May 19, 2025, Defendants filed a motion to

dismiss and a motion for summary judgment pursuant to Rule 12(b)(6) and Rule 56 of the Federal
Rules of Civil Procedure. Dkt. No. 34 (“Motions”). The parties have fully briefed the Motions.
See Dkt. Nos. 39, 42. This matter was referred to United States Magistrate Judge Paul J.
Evangelista, who, on February 5, 2026, issued a Report-Recommendation and Order (“Report-
Recommendation”) recommending that Defendants’ Motions be denied. Dkt. No. 45 at 36.
Magistrate Judge Evangelista advised that under 28 U.S.C. § 636 (b)(1), the parties had fourteen
days within which to file written objections and that failure to object to the Report-
Recommendation within fourteen days would preclude appellate review. Id. Defendants timely
filed objections on February 19, 2026, see Dkt. No. 46, and Plaintiff filed a response on March 2,

1. Dkt. Nos. 47, 48. For the reasons set forth below, the Court adopts the Report-Recommendation. II. STANDARD OF REVIEW This Court reviews de novo those portions of a magistrate judge’s report-recommendation that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012); 28 U.S.C. § 636 (b)(1)(C). If no specific objections have been filed, this Court reviews a magistrate judge’s report-recommendation for clear error. See Petersen, [2 F.

1](https://www.courtlistener.com/opinion/8340714/united-states-ex-rel-foote-v-county-court-of-howard-county/) Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition).
Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge,
this Court reviews the relevant portions of the report-recommendation for clear error. See
Petersen, 2 F. Supp. 3d at 228 -29 & n.6 (collecting cases). “When performing such a ‘clear error’
review, ‘the court need only satisfy itself that there is no clear error on the face of the record in

order to accept the recommendation.’” Dezarea W. v. Comm’r of Soc. Sec., No. 21-cv-1138, 2023
WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm’r of Soc. Sec., No. 17-
cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)).
“[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances
to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a
legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a

pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at
particular findings in the magistrate’s proposal[.]” Machicote v. Ercole, No. 06-cv-13320, 2011
WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No.
22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the
court may accept, reject or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636 (b)(1)(C).
III. DISCUSSION
The Court adopts those aspects of the Report-Recommendation to which no party has
raised a specific objection, finding no clear error therein, including the background and the legal
framework set forth in the Report-Recommendation, familiarity with which is presumed for
purposes of this decision.
A. Motion to Dismiss
Defendants object to Magistrate Judge Evangelista’s determination that the Court may
consider Plaintiff’s exhibits, see Dkt. No. 1 at 7-47, which are attached to his original Complaint,

but not his Amended Complaint, in evaluating Defendants’ motion to dismiss. See Dkt. No. 46 at
5-7. Specifically, Defendants contend that the Report-Recommendation erred in considering
Plaintiff’s exhibits to be incorporated by reference in the Amended Complaint or as a written
instrument attached to it under Rule 10(c) of the Federal Rules of Civil Procedure. See id. at 6.
Magistrate Judge Evangelista found that Plaintiff’s exhibits were both “incorporated by
reference” and “integral to the complaint,” see Dkt. No. 45 at 14 (collecting cases), and
accordingly, in evaluating Defendants’ motion to dismiss, Magistrate Judge Evangelista
considered the Amended Complaint, together with the original Complaint and its attached exhibits,
and recommended that Defendants’ motion to dismiss be denied. See id. at 10, 15.

The Court agrees. A district court considering a dismissal pursuant to Rule 12(b)(6) “may
consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint[.]” Wilkerson v. Waffner, No. 14-cv-469, 2015 WL 1446243, at *3 n.4 (N.D.N.Y. Mar. 30, 2015) (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)). In this case, as Magistrate Judge Evangelista noted, this Court
concluded in its initial review of the Amended Complaint that requiring Plaintiff to re-file his
Amended Complaint to include the exhibits attached to his original Complaint “would be ‘an
unnecessary procedural hoop that would waste resources and delay resolution of this action.” Dkt.
No. 45 at 9 (quoting Dkt. No. 20 at 2 n.1). Indeed, this Court noted that “[a]lthough it is well
settled that an amended complaint supersedes a prior complaint in its entirety, it is clear to the
court that [P]laintiff intended to attach the exhibits to his [A]mended [C]omplaint.” Dkt. No. 20
at 2 n.1 (quoting Wellington v. Langendorf, No. 12-cv-1019, 2013 WL 3753978, at *3 n.2
(N.D.N.Y. July 15, 2013)). Therefore, Magistrate Judge Evangelista noted that due to Plaintiff’s
pro se status, in its initial review of the Amended Complaint, this Court considered the exhibits

attached to the original Complaint as incorporated by reference in the Amended Complaint. Dkt.
No. 45 at 9 (citing Dkt. No. 20 at 2 n.1); see also Commey v. Adams, No. 22-cv-18, 2022 WL
3286548, at *1 n.2 (S.D.N.Y. Aug. 11, 2022) (“Given [p]laintiff’s pro se status, the Court finds it
appropriate to consider any relevant facts that he raises throughout his pleadings and affidavits.”).
For these same reasons, the Court continues to consider the exhibits as incorporated by
reference in the Amended Complaint in evaluating Defendants’ motion to dismiss. See, e.g., Diaz
v. Roberts, No. 19-cv-6872, 2022 WL 13947504, at *6 (W.D.N.Y. Oct. 24, 2022) (considering the
exhibits attached to the original complaint, which pro se plaintiff did not re-file with the amended
complaint in a motion to dismiss for failure to exhaust administrative remedies, “apparently not

for any strategic reason but simply because he had already filed them”); see also Donhauser v.
Goord, 314 F. Supp. 2d 119, 212 (N.D.N.Y. 2021) (noting that “in cases where a pro se plaintiff
is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the
[operative] complaint to the extent they are consistent with the allegations in the [operative]
complaint”) (collecting cases); Briggs v. SCO Fam. of Servs., No. 16-cv-3882, 2021 WL 7209010,
at *2 (E.D.N.Y. Oct. 20, 2021) (considering a pro se plaintiff’s allegations set forth in prior
complaints and their respective attachments).
Even assuming arguendo that Plaintiff’s exhibits are not incorporated by reference, the
Court may nevertheless consider them if the Amended Complaint relies heavily upon their terms
and effect, thereby rendering the documents integral to the Amended Complaint. United States ex
rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021) (quoting DiFolco, 622 F.3d at 111); see
also Solano v. New York, No. 20-cv-1378, 2021 WL 4134793, at *3 (N.D.N.Y. Sept. 10, 2021).
However, “even if a document is ‘integral’ to the [Amended] [C]omplaint, it must be clear on the
record that no dispute exists regarding the authenticity or accuracy of the document” and “there

exist no material disputed issues of fact regarding the relevance of the document.” Foreman, 19
F.4th at 106 (quoting DiFolco, 622 F.3d at 111). Here, the documents that Plaintiff attached to his
original Complaint, which contain, inter alia, notarized grievance letters and appeal letters
addressed to the inmate grievance resolution committee (“IGRC”), central office review
committee (“CORC”), and Superintendent, regarding the alleged September 16 and September 17,
2023 excessive force incidents, as well as a letter Plaintiff received from the Inmate Grievance
Program Supervisor regarding the list of Plaintiff’s grievances on file, are integral to his Amended
Complaint. Given that Plaintiff affirmatively pled that he attempted to grieve his excessive force
claims against Defendants, “[d]ocuments associated with th[ose] grievance[s] are, therefore,

integral to and referenced in the [Amended] Complaint,” and the Court may consider them. Gunn
v. Annucci, No. 20-cv-2004, 2021 WL 1699949, at *3 (S.D.N.Y. April 29, 2021); see alsoSolano, 2021 WL 4134793, at *3 (noting that courts have found grievance documents to be incorporated
by reference or integral to a complaint that alleges having filed a grievance). Moreover,
Defendants do not dispute that the exhibits are integral to the Amended Complaint nor object to
their accuracy, relevance, or authenticity. See Dkt. No. 46 at 5-7.
Accordingly, the Court denies Defendants’ motion to dismiss.2

2 In concluding that Plaintiff’s exhibits were incorporated by reference and integral to the Amended
Complaint, Magistrate Judge Evangelista found that it was not necessary to determine whether
B. Motion for Summary Judgment
Defendants also object to Magistrate Judge Evangelista’s determination that summary
judgment is not warranted on Plaintiff’s excessive force claims. See Dkt. No. 46 at 8-11.
Specifically, Defendants contend that Magistrate Judge Evangelista erred in finding a genuine
issue of material fact as to whether Plaintiff exhausted his administrative remedies based on

Plaintiff’s conclusory assertions that his excessive force grievances were not processed. Id. at 10.
Prior to challenging prison conditions in federal court pursuant to 42 U.S.C. § 1983, the
Prison Litigation Reform Act requires an incarcerated individual to first exhaust his available
administrative remedies. See Ross v. Blake, 578 U.S. 632, 635 (2016) (citing 42 U.S.C. §
1997e(a)). Magistrate Judge Evangelista noted that in New York, administrative remedies consist
of a three-tiered Inmate Grievance Program, which begins with the incarcerated individual filing
a grievance within 21 calendar days of the alleged incident. See Dkt. No. 45 at 22 (citing N.Y.
Comp. Codes R. & Regs. (“NYCRR”) tit. 7, § 701.5(a)(1)). The grievance is initially reviewed
by the IGRC; upon appeal of the IGRC’s decision, it is reviewed by the facility superintendent;

and upon appeal of the superintendent’s decision, it is reviewed by the CORC, which makes the
final administrative determination. See id. at 22-23 (citing NYCRR §§ 701.5(b)-(d)); see also
Williams v. Corr. Officer Priatno, 829 F.3d 118, 119 (2d Cir. 2016). Additionally, Magistrate Judge
Evangelista noted that grievances regarding alleged harassment are subject to expedited review,
but the regulations also require that the incarcerated individual receive a response from CORC in
order to exhaust administrative review. See Dkt. No. 45 at 23 (citing NYCRR § 701.8(c)).
“However, prisoners are exempt from the exhaustion requirement when administrative

Plaintiff’s exhibits are “written instruments” under Rule 10(c) of the Federal Rules of Civil
Procedure. See Dkt. No. 45 at 14. The Court agrees and likewise declines to do so here.
remedies are ‘unavailable.’” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311 (2d Cir. 2020) (quoting
Ross, 578 U.S. at 642). An administrative procedure is unavailable when (i) “it operates as a
simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved
inmates”; (ii) “an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use”; and (iii) “when prison administrators thwart inmates from taking advantage of

a grievance process through machination, misrepresentation, or intimidation.” Williams, 829 F.3d
at 123 -24 (quoting Ross, 578 U.S. at 633).
The failure to exhaust administrative remedies is an affirmative defense. Id. at 122. “Thus,
first, a defendant must show that a grievance process governs the dispute at issue and that a plaintiff
has failed to exhaust it” and then “[i]n response, a plaintiff can show either exhaustion or
unavailability as outlined in Ross and its progeny.” Booker v. Flint, No. 22-cv-600, 2025 WL
1663999, at *3 (N.D.N.Y. June 12, 2025) (citations omitted).
As an initial matter, the Court agrees with Magistrate Judge Evangelista’s finding that
Defendants have sufficiently demonstrated that a grievance procedure existed, and Plaintiff failed

to exhaust administrative remedies related to the alleged September 16 and September 17, 2023
excessive force incidents. Dkt. No. 45 at 29 (collecting cases); see also Dkt. No. 34-6 at ¶¶ 26-27
(stating that DOCCS records show that Plaintiff did not file any grievances concerning the alleged
use of force incidents on September 16, 2023 and September 17, 2023 and had not appealed any
facility-level grievances regarding the alleged use of force incidents). Defendants raise no
objections regarding this point.
Accordingly, the Court proceeds to assess whether Defendants adequately demonstrated
the absence of a material factual dispute regarding the availability of the grievance process at Great
Meadow.
First, the Court finds that Defendants fail to distinguish the facts of this case with the
Second Circuit’s decision in Williams. In Williams, the plaintiff alleged that, while he was housed
in the Special Housing Unit (“SHU”), he drafted a grievance that he delivered to a corrections
officer to forward to the grievance office on his behalf, but after being transferred to a different
facility, he never received a response and alleged that the grievance was never filed by the

corrections officer to whom he had given it. See 829 F.3d at 120-21. The Second Circuit held
that, under those circumstances, the regulations did not adequately outline the process to appeal or
otherwise exhaust administrative remedies because “[o]n their face, the regulations only
contemplate appeals of grievances that were actually filed,” thereby rendering Plaintiff’s
administrative remedies unavailable. Id. at 124.
“The court recognizes that an inmate-plaintiff’s ability to process his grievances are
curtailed to some extent while confined to the SHU.” Simpson v. Price, No. 19-cv-1413, 2021 WL
7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (citing Rodriguez v. Cross, No. 15-cv-1079, 2017 WL
2791063, at *7 (N.D.N.Y. May 9, 2017)); see also Blake v. Porlier, No. 18-cv-1008, 2019 WL

7484052, at *6 (N.D.N.Y. Oct. 4, 2019) (noting that courts take into account “an inmate’s housing
and level of segregation from the general population . . . when determining the availability of
grievance procedures”). According to the record, Plaintiff was housed in the Behavioral Housing
Unit (“BHU”) with a cell shield order on August 16, 2023. See Dkt. No. 1 at 13. Like the SHU,
the BHU is a separate housing location within a correctional facility that provides services to a
target population of incarcerated individuals “who have a demonstrated history of treatment
resistance and poor custodial adjustment/behavior[.]” See Allah v. Murphy, No. 14-cv-438, 2016
WL 4401069, at *1 n.1 (N.D.N.Y. May 16, 2016), report and recommendation adopted, 2016 WL
4386013 (N.D.N.Y. Aug. 17, 2016), aff’d, 699 F. App’x 41 (2d Cir. 2017). Incarcerated
individuals who are housed in the BHU “would otherwise be serving a confinement sanction in a
[SHU].” Id. Plaintiff’s cell shield order was renewed on September 16, 2023, and then again, on
October 9, 2023. See Dkt. No. 1 at 11, 13. Moreover, according to Defendants’ submissions,
Plaintiff continued to remain in the BHU at Great Meadow until he was transferred to a different
correctional facility on December 19, 2023. See Dkt. No. 34-3 at 2; see also Dkt. No. 34-2 at ¶

1. Here, Plaintiff, while housed in the BHU, alleges that he drafted grievances for which he never received a response, claiming that Great Meadow “was not recording [his] grievances,” and further alleges that “excessive force grievances are not processed” at Great Meadow because of the level of “gang assaults by the staff.” Dkt. No. 39 at 1-2. In support of his allegations, Plaintiff submitted numerous notarized grievance letters and appeal letters addressed to the IGRC, CORC, and Superintendent, stating that he had not received a response to his grievances pertaining to the alleged use of force incidents, even after being transferred to a different facility. See, e.g., Dkt. No. 1 at 30-31, 34, 39-46; see also Johnson v. Owens, No. 20-cv-982 (AMN/CFH), 2023 WL

5351017, at *5 (N.D.N.Y. Aug. 21, 2023) (“If an inmate is transferred to another facility while a
grievance is pending, a response to the grievance shall be mailed to the inmate at the new facility.”
(citing NYCRR § 701.6(h)(1))). For example, in a letter dated October 31, 2023, Plaintiff stated
that he still had not received a response to the grievances he wrote on September 28, October 1,
and October 2, 2023, related to the alleged excessive force incidents on September 16 and
September 17, 2023. Dkt. No. 1 at 26-27. “In applying Williams, this Court has held that it is
sufficient for a plaintiff to submit a sworn statement that he gave his grievance to a correction
officer, and the plaintiff is not then required to produce a greater amount of evidence than normally
required of a non-movant at the summary judgment stage.” Smith v. Dodge, No. 18-cv-1066, 2022
WL 19771697, at *9 (N.D.N.Y. Jan. 19, 2022) (internal quotation marks, citations, and brackets
omitted), report and recommendation adopted, 2023 WL 2986826 (N.D.N.Y. Apr. 18, 2023).
Thus, viewing the facts in the light most favorable to Plaintiff, the record suggests that a
question of fact exists as to whether Plaintiff attempted to submit grievances that were never filed
or answered, as Plaintiff claims, or whether Plaintiff never filed any grievances, as Defendants

claim. See McLean v. LaClair, No. 19-cv-1227, 2021 WL 671650, at *9 (N.D.N.Y. Feb. 22, 2021)
(finding that defendants “failed to demonstrate the absence of a material factual dispute as to
whether the grievance process . . . was ‘unavailable’ due to the machinations or misrepresentations
of prison officials who inhibited the filing of [p]laintiff’s submissions”). Accordingly, the Court
concludes that Plaintiff has raised a genuine dispute of material fact that forecloses Defendants’
summary judgment motion at this juncture. See Croney v. Russell, No. 23-cv-1188, 2025 WL
1089520, at *3 (N.D.N.Y. Feb. 25, 2025) (noting that “[s]ummary judgment is a drastic device and
should not be granted when there are major factual contentions in dispute, particularly when, as
here, one party has yet to exercise its opportunities for pretrial discovery” (internal quotation

marks, citation, and alterations omitted)).
Magistrate Judge Evangelista found Defendants’ request to conduct limited discovery
regarding the issue of exhaustion to be appropriate in this case. See Dkt. No. 45 at 35. “[I]t is
common practice in district courts across the Second Circuit to permit parties to conduct limited
discovery on the issue of exhaustion in cases filed by incarcerated individuals.” Adams v.
Berkman, No. 24-cv-873, 2025 WL 2318706, at *2, 5-6 (N.D.N.Y. Aug. 12, 2025) (adopting
magistrate judge’s recommendation to deny summary judgment and order discovery on the
exhaustion issue, followed by an exhaustion hearing, where “the record suggests that [p]laintiff’s
grievances were submitted, but were unfiled and unanswered, creating an issue of fact as to
whether the grievance process was available”). The Court agrees with Magistrate Judge
Evangelista’s recommendation.
For the foregoing reasons, Defendants’ motion for summary judgment is denied.
IV. CONCLUSION
Accordingly, the Court hereby

ORDERS that the Report-Recommendation, Dkt. No. 45, is ADOPTED for the reasons
stated herein; and the Court further
ORDERS that Defendants’ motion to dismiss, Dkt. No. 34, is DENIED; and the Court
further
ORDERS that Defendants’ motion for summary judgment, Dkt. No. 34, is DENIED
without prejudice; and the Court further
ORDERS that the case be referred to Magistrate Judge Evangelista to facilitate the
completion of discovery on the limited issue of exhaustion; and the Court further
ORDERS that, at such time as discovery on the exhaustion issue has been completed,

Defendants shall request permission from Magistrate Judge Evangelista to file a renewed motion
for summary judgment and/or hold an exhaustion hearing; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 27, 2026
Albany, New York