Bennett v. Akshar et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
DeLOVE R. BENNETT,
Plaintiff,
9:25-CV-1173
v. 	(GTS/ML)
SHAEEZA BIBI KAHN, Health Svcs.
Administrator; DR. AHMED BUTT;
SCOTTLAND RIDER, Phys. Assis.; and
BROOME COUNTY,
Defendants.
_______________________________________
APPEARANCES: 	OF COUNSEL:
DeLOVE R. BENNETT, No. 25-B-0628
Plaintiff, Pro Se
Wyoming Correctional Facility
P.O. Box 501
Attica, New York 14011
BARCLAY DAMON, LLP 	PAUL A. SANDERS, ESQ.
Counsel for Defendants Kahn, Butt, and Rider 	RADHIKA SHUKLA, ESQ.
2000 Five Star Bank Plaza
100 Chestnut Street
Rochester, New York 14604-2072
HON. CHERYL D. SULLIVAN 	JOSHUA T. TERRELL, ESQ.
Broome County Attorney 	Assistant County Attorney
Counsel for Defendant Broome County
Broome County Office Building
60 Hawley Street
P.O. Box 1766
Binghamton, New York 13902-1766
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
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Currently before the Court, in this pro se prisoner civil rights action filed by DeLove R.
Bennett (“Plaintiff”) against Broome County, Shaeeza Bibi Kahn, Dr. Ahmed Butt, and Scottland
Rider (“Defendants”), is United States Magistrate Judge Miroslav Lovric’s Report and
Recommendation recommending that the motion to dismiss filed by Defendant Broome County
(Dkt. No. 8) be denied, and the motion to dismiss filed by Defendants Kahn, Butt and Rider
(Dkt. No. 17) be granted. (Dkt. No. 41.) Defendant Broome County filed partial Objections to
the Report and Recommendation, to which Plaintiff filed a response. (Dkt. Nos. 42, 44.)
I. 	RELEVANT BACKGROUND
A. 	Magistrate Judge Lovric’s Report and Recommendation
Generally, in his Report and Recommendation, Magistrate Judge Lovric made two
specific findings. (Dkt. No. 41.) First, Magistrate Judge Lovric determined that Defendant
Broome County’s motion to dismiss should be denied for the following reasons: (a) as to
Defendant Broome County’s arguments that Plaintiff’s claims pursuant to the Americans with
Disabilities Act (“ADA”) and Rehabilitation Act should be dismissed for failure to state a claim
and for mootness, Magistrate Judge Lovric rejected Defendant Broome County’s argument that
Plaintiff’s transfer out of Broome County Correctional Facility before commencing this action
rendered his claims moot because it is not clear at this stage in the litigation whether Plaintiff
may be entitled to any relief on these claims, and that, because Plaintiff has alleged he was
assigned to an unfavorable unit because of his disability, Defendant Broome County’s argument
that Plaintiff has failed to state a claim should be rejected; and (b) Magistrate Judge Lovric
rejected Defendant Broome County’s argument that Plaintiff’s claims should be dismissed for
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failing to exhaust administrative remedies because it was unclear whether Plaintiff had exhausted
remedies based on the allegations, Plaintiff has not had an opportunity for full discovery on this
issue, and materials presented by Defendant Broome County in support of this argument fall
outside the pleadings and therefore cannot be considered on this motion to dismiss. (Dkt. No. 41,
at 14-19.)
Second, Magistrate Judge Lovric determined Defendants Kahn, Butt, and Rider’s motion
to dismiss should be granted for the reasons stated in their memoranda of law. Further,
Magistrate Judge Lovric noted the following: (1) as to those Defendants’ argument that Plaintiff
failed to allege personal involvement, Plaintiff’s Complaint is devoid of any specific allegations
against those Defendants as to how they are responsible for any of the conduct alleged by
Plaintiff; and (2) as to Plaintiff’s deliberate medical indifference claims, Plaintiff allegations that
he was prescribed Ozempic by his primary care physician but was instead treated with insulin
injections while incarcerated is nothing more than a disagreement with medical treatment that
does not give rise to a Section 1983 claim, and his allegation that he was given an improper dose
of a different medication does not constitute deliberate indifference, but rather, at most, medical
malpractice that is not actionable under Section 1983. (Dkt. No. 41, at 19-22.)
B. 	Broome County’s Objections to the Report and Recommendation
Generally, in its objections, Defendant Broome County asserts that Plaintiff’s ADA and
Rehabilitation Act claims against it should be dismissed based on Plaintiff’s failure to exhaust
administrative remedies under the PLRA. (Dkt. No. 42.) More specifically, Defendant Broome
County argues that (1) Plaintiff failed to produce any evidence which shows he exhausted his
remedies to counter the evidence presented with Defendant Broome County’s motion, and (2)
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although Plaintiff alleges he was denied reasonable accommodations to pursue his grievances
(i.e., because the jail did not have a law library clerk or anyone to assist with writing or typing
grievance claims), records show Plaintiff had filed 11 prior grievance claims and two federal
lawsuits related to different issues while housed at the Broome County Jail. (Id.)
C. 	Plaintiff’s Response to Broome County’s Objections
Generally, in his response to Defendant Broome County’s objections, Plaintiff argues that
the assertion that he failed to exhaust his administrative remedies has already been raised and
rejected, such that Defendant Broome County should be collaterally estopped from reasserting
this claim. (Dkt. No. 44.) Plaintiff further argues that Magistrate Judge Lovric correctly found
that it would be improper to consider Defendant Broome County’s extrinsic evidence on this
motion because exhaustion under the PLRA is an affirmative defense. (Id.)
II. 	ANALYSIS
After carefully reviewing the relevant papers herein, including Magistrate Judge Lovric’s
thorough Report and Recommendation, the Court can find no error (clear or otherwise) in the
Report and Recommendation.1 Magistrate Judge Lovric employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report
1 	When a specific objection is made to a portion of a magistrate judge’s report and
recommendation, the Court subjects that portion of the report and recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). When no specific objection is made
to a report and recommendation, the Court subjects that report and recommendation to only a
clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. 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.” Id.; see also Batista v. Walker,
94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted
to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so
long as those sections are not facially erroneous.”) (internal quotation marks omitted).
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and Recommendation is accepted and adopted in its entirety for the reasons stated therein. (Dkt.
No. 41.) To those reasons, the Court adds the following points to address the specific objection
made by Defendant Broome County, which is subject to de novo review.
Defendant Broome County objects to the Report and Recommendation, arguing that
Magistrate Judge Lovric erred in declining to consider presented extrinsic evidence related to
whether Plaintiff exhausted his administrative remedies pursuant to the PLRA. (Dkt. No. 42, at
6-8.) However, the Supreme Court has clearly held that “failure to exhaust is an affirmative
defense under the PLRA,” meaning “inmates are not required to specifically plead or
demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007); see also
Woodford v. Ngo, 548 U.S. 81, 101 (2006) (finding that the exhaustion requirement is not
jurisdictional). Moreover, the Second Circuit has consistently held that “‘a defendant may raise
an affirmative defense in a pre-answer Rule 12(b)(6) motion [only] if the defense appears on the
face of the complaint,’” because “affirmative defenses, like the statute of limitations, ‘often
require consideration of facts outside of the complaint and thus are inappropriate to resolve on a
motion to dismiss.’” Michael Grecco Prods., Inc. v. RADesign, Inc., 112 F.4th 144, 149-50 (2d
Cir. 2024) (quoting Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 [2d Cir. 2008]; Kelly-
Brown v. Winfrey, 717 F.3d 295, 308 [2d Cir. 2013]). As a result, Defendant Broome County’s
motion regarding exhaustion is subject to the same restrictions regarding the consideration of
extrinsic evidence applicable to any motion to dismiss brought pursuant to Fed. R. Civ. P.
12(b)(6), namely the only matters outside of the four corners of the complaint that the Court may
properly consider are (1) documents attached as an exhibit to the complaint or answer, (2)
documents incorporated by reference in the complaint (and provided by the parties), (3)
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documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.
DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010).
In its Objections, Defendant Broome County does not argue that any of these
circumstances apply to the evidence of other unrelated grievances that Plaintiff had filed during
his time at the Broome County Jail, seeming to rely instead upon an assertion that the motion
related to exhaustion was properly pursuant to Fed. R. Civ. P. 12(b)(1) rather than Fed. R. Civ. P.
12(b)(6). However, as discussed above, exhaustion is not jurisdictional, and thus does not fall
within the scope of Fed. R. Civ. P. 12(b)(1). As a result, to prevail on its motion to dismiss
related its affirmative defense of exhaustion, that affirmative defense must appear on the face of
the Complaint or be based on extrinsic evidence that the Court may properly consider.
As an initial matter, a failure to exhaust is not apparent from the face of the Complaint
because Plaintiff does not make any allegations that suggest he failed to file a grievance or
otherwise failed to exhaust his remedies. (Dkt. No. 1.) As to the extrinsic evidence presented,
various other grievances that Plaintiff has filed on unrelated matters do not fall into any of the
relevant categories for the consideration of extrinsic evidence, and thus may not be considered.
To the extent that Defendant Broome County relies upon statements made by Plaintiff in his
opposition memorandum of law as to the motion to dismiss, while Plaintiff does appear to
implicitly admit he did not file a grievance as to the relevant issue, he notably explains that this
was because of “significant barriers and policy and procedure set by Broome County Jail” that
“prevented the exhaustion of remedies,” including (a) not having access to a law clerk to help
him complete the grievance form given that “he cannot use his hands to type or write and is at
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the mercy of other individuals who may or may not choose to assist,” (b) the lack of an official
policy by Broome County through which an inmate can obtain such a reasonable
accommodation, and (c) the fact that grievance forms are only available upon request from an
officer who can then decide who may file a grievance and on what issues. (Dkt. No. 29, Attach.
1, at 8-9.) To the extent that these additional statements in Plaintiff’s memorandum can be used
to supplement the Complaint based on his pro se status, they plausibly suggest that any failure to
exhaust was due to Defendant Broome County’s own actions and those of its jail personnel. See
Pease v. Hartford Life and Accident Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006) (indicating that
whether administrative remedies were actually available and whether there were any special
circumstances to justify an incarcerated person’s failure to comply with the procedural
requirements are relevant considerations in determining whether a plaintiff can rebut an
affirmative defense of failure to exhaust). As a result, even considering those additional factual
allegations, the face of the Complaint does not indicate a failure to exhaust sufficient to meet
Defendant Broome County’s burden to establish its affirmative defense on this motion.
As Magistrate Judge Lovric notes, the fact that the Court declines to dismiss on the basis
of exhaustion at this stage does not preclude Defendant Broome County from again raising that
argument on a future motion for summary judgment. (Dkt. No. 41, at 18.) But, at this stage,
there is no proper basis to find that Plaintiff’s claim against Defendant Broome County should be
dismissed for failure to exhaust.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric’s Report and Recommendation (Dkt. No. 41) is
ACCEPTED and ADOPTED in its entirety; and it is further
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ORDERED that Defendant Broome County’s motion to dismiss (Dkt. No. 8) is
DENIED; and it is further
ORDERED that Defendants Kahn, Butt, and Rider’s motion to dismiss (Dkt. No. 17) is
GRANTED, and the medical indifference claims remaining against those three Defendants are
DISMISSED for failure to state a claim, such that the Clerk of Court is directed to terminate
Defendants Kahn, Butt, and Rider from this action.
Dated: October 14, 2026
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
United States District Judge
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