UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________
AKO K. BURRELL
Plaintiff, vs. 9:23-CV-454 (MAD/DJS) J. SPENCE, Correctional Officer, Five Points Correctional Facility, et al.,
Defendants. ____________________________________________
APPEARANCES: OF COUNSEL:
AKO K. BURRELL 17-B-2994 Attica Correctional Facility Box 149 Attica, New York 14011 Plaintiff, pro se
HON. LETITIA JAMES LELA M. GRAY, AAG Attorney General for the State of New York The Capitol Albany, New York 12224 Attorney for Defendants
Mae A. D'Agostino, U.S. District Judge:
ORDER On April 12, 2023, pro se Plaintiff Ako K. Burrell commenced this civil rights action pursuant to 42 U.S.C. § 1983, asserting claims arising out of his incarceration at Five Points Correctional Facility. See Dkt. No. 1. In a June 5, 2023, Decision and Order, the Court ordered that several of Plaintiff's claims be dismissed, resulting in the termination of multiple defendants from this action. See Dkt. No. 8. Plaintiff's remaining claims against each Defendant Corrections Officer Lee Benjamin, Toan Huynh, Jonathan Spence, and Sergeant James Conger ("Defendants") are (1) an Eighth Amendment excessive force and failure-to-intervene claim, and (2) a First Amendment retaliation claim. See id. The retaliation claim alleges that the assault which gives rise to the Eighth Amendment claim "occurred in retaliation for grievances" filed by Plaintiff against non-party officers working at Five Points Correctional Facility. Dkt. No. 83-8 at 5. On September 25, 2025, Defendants filed a motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 with respect to the retaliation claim. See generally Dkt. No. 83. On April 13, 2026, Magistrate Judge Daniel J. Stewart issued a Report-Recommendation and
Order, recommending that Defendants' motion for partial summary judgment be denied. See Dkt. No. 97. The parties' deadline to file written objections to the Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b)(1) was April 27, 2026. No objections were filed.1 For the reasons set forth below, the Report-Recommendation and Order is adopted in its entirety. When a party files specific objections to a magistrate judge's Recommendations, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which the objection is made." 28 U.S.C. § 636(b)(1). When a party declines to file objections or files "[g]eneral or conclusory objections, or objections which merely recite the same arguments [presented] to the magistrate judge," the court reviews those
1 On June 1, 2026, the Report-Recommendation and Order that was sent to Plaintiff at the Oneida County Correctional Facility was mail returned to the Court as undeliverable. See Dkt. No. 105. On June 4, 2026, Plaintiff filed a letter requesting additional time to respond with objections. See Dkt. No. 106 at 1. On June 9, 2026, Plaintiff's request for an extension of time to object to the Report-Recommendation and Order was granted, with objections due by July 9, 2026. See Dkt. No. 108. On June 10, 2026, a notice of change of address was filed by Plaintiff. See Dkt. No. 109. On June 11, 2026, the Clerk re-sent docket numbers 96, 97, 107, and 108 to Plaintiff's new address at Attica Correctional Facility. To date, Plaintiff has not filed any objections. On July 7, 2026, Plaintiff filed a letter requesting media presence at trial. See Dkt. No. 110. The Court will rule on that request at such time as this case proceeds to trial. recommendations for clear error. O'Diah v. Mawhir, No. 08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted); see also McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). "A litigant objecting to a [report and recommendation] may not simply rest on the briefs considered by the magistrate judge; she must lodge a specific objection to some specific aspect of the [report and recommendation]." Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 361 (2d Cir. 2025). Additionally, "[w]hen a timely filed objection raises and properly briefs arguments previously rejected by the magistrate judge, the district judge must review those arguments de novo." Id. 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). As there are no objections, the Court will review the Report-Recommendation and Order for clear error. The Court adopts the unobjected-to factual recitation contained in Magistrate Judge Stewart's April 13, 2026, Report-Recommendation and Order. See Dkt. No. 97. The Court also finds that Magistrate Judge Stewart correctly recommended that Defendants' motion for partial summary judgment on the First Amendment retaliation claim should be denied. See id. at 9. To prevail on a First Amendment retaliation claim, a plaintiff must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech [or conduct] and the adverse
action." Holland v. Goord, 785 F.3d 215, 225 (2d Cir. 2014) (quoting Espinol v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). In support of their motion for partial summary judgment, Defendants assert that the record does not provide evidentiary support for Plaintiff's retaliation claim. See Dkt. No. 83-8 at 6-7. However, Magistrate Judge Stewart appropriately noted that Plaintiff’s complaint alleges that during the assault, Defendant Conger told Plaintiff the assault was related to grievances Plaintiff had previously filed against a non-party corrections officer. See Dkt. No. 97 at 7 (citing Dkt. No. 1 at 30). Magistrate Judge Stewart stated Plaintiff gave similar testimony multiple times in his deposition. See id. Therefore, the Court agrees with Magistrate Judge Stewart's conclusion that Plaintiff's testimony, if credited by a jury, could support a finding that Defendants were "substantially motivated to act because of Plaintiff's grievances." Id. (quoting Williams v. Heese, No. 16-CV-1343, 2020 WL 1480105, *7 (N.D.N.Y Feb 19, 2020), R&R adopted, 2020 WL 1470800 (N.D.N.Y. Mar. 26, 2020)).
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________
AKO K. BURRELL
Plaintiff, vs. 9:23-CV-454 (MAD/DJS) J. SPENCE, Correctional Officer, Five Points Correctional Facility, et al.,
Defendants. ____________________________________________
APPEARANCES: OF COUNSEL:
AKO K. BURRELL 17-B-2994 Attica Correctional Facility Box 149 Attica, New York 14011 Plaintiff, pro se
HON. LETITIA JAMES LELA M. GRAY, AAG Attorney General for the State of New York The Capitol Albany, New York 12224 Attorney for Defendants
Mae A. D'Agostino, U.S. District Judge:
ORDER On April 12, 2023, pro se Plaintiff Ako K. Burrell commenced this civil rights action pursuant to 42 U.S.C. § 1983, asserting claims arising out of his incarceration at Five Points Correctional Facility. See Dkt. No. 1. In a June 5, 2023, Decision and Order, the Court ordered that several of Plaintiff's claims be dismissed, resulting in the termination of multiple defendants from this action. See Dkt. No. 8. Plaintiff's remaining claims against each Defendant Corrections Officer Lee Benjamin, Toan Huynh, Jonathan Spence, and Sergeant James Conger ("Defendants") are (1) an Eighth Amendment excessive force and failure-to-intervene claim, and (2) a First Amendment retaliation claim. See id. The retaliation claim alleges that the assault which gives rise to the Eighth Amendment claim "occurred in retaliation for grievances" filed by Plaintiff against non-party officers working at Five Points Correctional Facility. Dkt. No. 83-8 at 5. On September 25, 2025, Defendants filed a motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 with respect to the retaliation claim. See generally Dkt. No. 83. On April 13, 2026, Magistrate Judge Daniel J. Stewart issued a Report-Recommendation and
Order, recommending that Defendants' motion for partial summary judgment be denied. See Dkt. No. 97. The parties' deadline to file written objections to the Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b)(1) was April 27, 2026. No objections were filed.1 For the reasons set forth below, the Report-Recommendation and Order is adopted in its entirety. When a party files specific objections to a magistrate judge's Recommendations, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which the objection is made." 28 U.S.C. § 636(b)(1). When a party declines to file objections or files "[g]eneral or conclusory objections, or objections which merely recite the same arguments [presented] to the magistrate judge," the court reviews those
1 On June 1, 2026, the Report-Recommendation and Order that was sent to Plaintiff at the Oneida County Correctional Facility was mail returned to the Court as undeliverable. See Dkt. No. 105. On June 4, 2026, Plaintiff filed a letter requesting additional time to respond with objections. See Dkt. No. 106 at 1. On June 9, 2026, Plaintiff's request for an extension of time to object to the Report-Recommendation and Order was granted, with objections due by July 9, 2026. See Dkt. No. 108. On June 10, 2026, a notice of change of address was filed by Plaintiff. See Dkt. No. 109. On June 11, 2026, the Clerk re-sent docket numbers 96, 97, 107, and 108 to Plaintiff's new address at Attica Correctional Facility. To date, Plaintiff has not filed any objections. On July 7, 2026, Plaintiff filed a letter requesting media presence at trial. See Dkt. No. 110. The Court will rule on that request at such time as this case proceeds to trial. recommendations for clear error. O'Diah v. Mawhir, No. 08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted); see also McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). "A litigant objecting to a [report and recommendation] may not simply rest on the briefs considered by the magistrate judge; she must lodge a specific objection to some specific aspect of the [report and recommendation]." Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 361 (2d Cir. 2025). Additionally, "[w]hen a timely filed objection raises and properly briefs arguments previously rejected by the magistrate judge, the district judge must review those arguments de novo." Id. 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). As there are no objections, the Court will review the Report-Recommendation and Order for clear error. The Court adopts the unobjected-to factual recitation contained in Magistrate Judge Stewart's April 13, 2026, Report-Recommendation and Order. See Dkt. No. 97. The Court also finds that Magistrate Judge Stewart correctly recommended that Defendants' motion for partial summary judgment on the First Amendment retaliation claim should be denied. See id. at 9. To prevail on a First Amendment retaliation claim, a plaintiff must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech [or conduct] and the adverse
action." Holland v. Goord, 785 F.3d 215, 225 (2d Cir. 2014) (quoting Espinol v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). In support of their motion for partial summary judgment, Defendants assert that the record does not provide evidentiary support for Plaintiff's retaliation claim. See Dkt. No. 83-8 at 6-7. However, Magistrate Judge Stewart appropriately noted that Plaintiff’s complaint alleges that during the assault, Defendant Conger told Plaintiff the assault was related to grievances Plaintiff had previously filed against a non-party corrections officer. See Dkt. No. 97 at 7 (citing Dkt. No. 1 at 30). Magistrate Judge Stewart stated Plaintiff gave similar testimony multiple times in his deposition. See id. Therefore, the Court agrees with Magistrate Judge Stewart's conclusion that Plaintiff's testimony, if credited by a jury, could support a finding that Defendants were "substantially motivated to act because of Plaintiff's grievances." Id. (quoting Williams v. Heese, No. 16-CV-1343, 2020 WL 1480105, *7 (N.D.N.Y Feb 19, 2020), R&R adopted, 2020 WL 1470800 (N.D.N.Y. Mar. 26, 2020)).
To be sure, Plaintiff did admit he had trouble recalling whether specific grievances were mentioned in some instances. See Dkt. No. 97 at 8 (citing Dkt. No. 83-2 at 75.). However, the Court finds that Magistrate Judge Stewart correctly determined that Plaintiff's somewhat inconsistent testimony establishes questions of fact rather than demonstrates Defendants' entitlement to summary judgment. See id. "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York 426 F.3d 549, 553 (2d Cir. 2005) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)). Further, "[t]he court may consider a number of factors when determining whether a causal connection exists, including the temporal proximity between the protected activity and the alleged retaliatory act[.]" Vega v. Artus, 610 F. Supp. 2d 185, 207
(N.D.N.Y. 2009) (internal quotations and citations omitted). Here, as explained by Magistrate Judge Stewart, there were merely "a few weeks between the filing of [Plaintiff's] grievances and the alleged assault." Dkt. No. 97 at 8. The Court agrees with Magistrate Judge Stewart's finding that the temporal proximity provides additional evidence of the requisite causation. See id. Accordingly, after carefully reviewing the Report-Recommendation and Order, the entire record in this matter, and the applicable law, the Court hereby ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No. 97) is ADOPTED in its entirety; and the Court further ORDERS that the Defendant's motion for partial summary judgment (Dkt. No. 83) is DENIED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with Local Rules. IT ISSO ORDERED.
Dated: July 15, 2026 J) Yy a Lips pez 3 Albany, New York Mae A. D’Agostin 7 U.S. District Judge
The following claims remain and shall be scheduled for trial absent settlement by the parties: Eighth Amendment excessive force, failure-to-intervene, and retaliation claims against Defendants Lee Benjamin, James Conger, Toan Huynh, and Jonathan Spence.