Juan Rivas v. Robert Kessler, et al.

• Court: District Court, N.D. New York
• Decided: July 10, 2026
• Docket: 9:25-cv-00253
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________

JUAN RIVAS,

Plaintiff,

-v- 9:25-CV-00253 (AJB/DJS)

ROBERT KESSLER, et al.,

Defendants. _____________________________________

Hon. Anthony Brindisi, U.S. District Judge:

DECISION & ORDER Plaintiff Juan Rivas (“Rivas”) brings this 42 U.S.C. § 1983 action alleging violations of his Eighth Amendment rights by corrections officers at Marcy Correctional Facility and other New York Department of Corrections and Community Supervision (“DOCCS”) officials. Defendants Joshua Blystone, Dustin Gentile, and Paul Paciello (collectively “defend- ants”),1 represented by the Office of the New York State Attorney General, seek pre-discovery summary judgment under Federal Rule of Civil Procedure 56. Dkt. No. 28. They also seek dis- missal of Rivas’s claims against defendant Dustin Gentile under Rule 12(b)(6). Id. For the reasons set forth below, defendants’ motion for pre-discovery summary judgment and defendant Gentile’s motion to dismiss will be DENIED.

1 Rivas also asserts claims against defendants Jarrad Brown, Anthony Farina, Robert Kessler, Christopher Fenton, Ryan Giordano, James Kingsley, and Sean Redmond. See Am. Compl., Dkt. No. 5. Unless otherwise stated, refer- ences to “defendants” throughout this opinion are limited to the three represented by the Office of the New York State Attorney General. I. BACKGROUND Rivas alleges that on September 24, 2024, he was physically and sexually assaulted by Sergeant Gentile and an unknown corrections officer while awaiting transport from Marcy Cor- rectional Facility to the residential mental health unit (“RMHU”) at Elmira Correctional Facility.

Am. Compl. ¶ 20. Rivas asserts that, upon arriving at Elmira, he reported the assault and asked not to be returned to Marcy because he feared for his safety. Id. ¶ 32. According to the complaint, his concerns went unaddressed, and he returned to Marcy about a week later. Id. ¶ 33. Upon his return to Marcy, Rivas was placed in a special housing unit (“SHU”) cell, without belongings, bedding, or, according to the complaint, “anything else in the room.” Id. ¶ 34; see also id. (“Plain- tiff was told he would have to earn those items back.”). On October 4, 2024, Rivas “was first given an opportunity to use the phone since [the alleged assault.]” Am. Compl. ¶ 35. He called his wife (“Ms. Rivas”) and informed her of what had happened. Id. Rivas’s wife filed an Office of Special Investigations (“OSI”) complaint on his behalf, alleging that Rivas had been “sexually abused, beaten, and tormented by staff at Marcy”

on September 24. Id. ¶ 36. Ms. Rivas also emailed a detailed description of the allegations to several DOCCS officials, “including the official OSI Complaint email address, and [] Jason Eff- man, [DOCCS’] PREA Coordinator.” Id. ¶ 37. On October 8, 2024, Rivas met with a staff member from OSI about the Prison Rape Elim- ination Act (“PREA”) complaint. Am. Compl. ¶ 42. Rivas “begged the staff member to have him transferred immediately as he feared . . . serious[] harm[] if he remained at Marcy any longer.” Id. ¶ 42. When Rivas returned to his cell after, “he discovered that his pencils, toilet paper, and tooth- paste had been removed from his cell.” Id. ¶ 43. At some point that same day, defendant Blystone allegedly saw Rivas’s hand protruding through the cell door slot and “violently kicked” the slot shut, fracturing Rivas’s right hand. Id. ¶¶ 45, 46. The next day, October 9, 2024, Rivas alleges that defendants Redmond, Kessler, Giordano, Kingsley, Farina, and Fenton arrived at his cell “and told him they were there to escort him to

RMHU at Marcy . . . for suicide watch.” Am. Compl. ¶ 50. On the way, the officers led Rivas to a room for frisking. Id. ¶ 56. There, Rivas alleges, defendants “falsely claimed that [Rivas] turned[,] struck [] Redmond with his right fist[,]” and “punched [] Giordano in the nose” using the same fractured hand. Id. ¶¶ 57–58. Rivas alleges that the officers then used this pretext to attack him. Am. Compl. ¶¶ 58–60. Rivas further says that Kessler repeatedly kneed him in the torso, causing five rib fractures and a punctured lung, while Farina choked him with some kind of rope. Id. ¶¶ 62, 63. As a result, Rivas was taken to the hospital for emergency medical treatment that same day. Id. ¶ 66. He was not discharged until two weeks later, on October 23, 2024. Id. ¶ 66. Rivas alleges that the October 9 attack was in retaliation for his complaints. Id. ¶ 84.

II. STANDARD OF REVIEW A. Motion for Summary Judgment Under Rule 56, summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists if the evidence is such that a reason- able jury could return a verdict for the nonmoving party.” McCutcheon v. Colgate-Palmolive Co., 62 F.4th 674, 686 (2d Cir. 2023) (quoting Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017)). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Hilton v. Wright, 928 F. Supp. 2d 530, 544 (N.D.N.Y. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In reviewing the motion, the district court must ‘draw all rea- sonable inferences against the party whose motion is under consideration.’” Lake v. HealthAlli-

ance Hosp. Broadway Campus, 738 F. Supp. 3d 208, 215 (N.D.N.Y. 2024) (Hurd, J.) (quoting Williams v. MTA Bus Co., 44 F.4th 115, 125 (2d Cir. 2022)). However, “[a] question of material fact does not exist merely because plaintiff disagrees with the deposition testimony and documen- tary evidence produced by defendant[s].” Turner v. Delta Airlines, Inc., 658 F. Supp. 3d 123, 131 (E.D.N.Y. 2023) (citing Anderson, 477 U.S. at 247–48). B. Motion to Dismiss “To survive a motion to dismiss, a plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face[.]’” Principle Homecare, LLC v. McDonald, 158 F.4th 326, 330 (2d Cir. 2025) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Sanders v. City of Saratoga Springs, 691 F. Supp. 3d 548, 554 (N.D.N.Y. 2023) (Sannes, C.J.) (“Mere

‘labels and conclusions’ are insufficient; rather, a plaintiff must provide factual allegations suffi- cient ‘to raise a right to relief above the speculative level.’”) (quoting Twombly, 550 U.S. at 555). “In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the plead- ing and draw all reasonable inferences in the pleader’s favor.” Bazinett v. Pregis LLC, 720 F. Supp. 3d 154, 158 (N.D.N.Y. 2024) (citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)) (D’Agostino, J.). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Smith v. Adidas Am., Inc., 691 F. Supp. 3d 564, 572–73 (N.D.N.Y. 2023) (Sannes, C.J.) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). III. DISCUSSION As relevant here, Rivas alleges that defendants Blystone, Gentile, and Paciello used exces- sive force, and that Paciello failed to intervene in that use, therefore violating the Eighth Amend- ment’s prohibition on cruel and unusual punishment. See Am. Compl. ¶¶ 85–95. Defendants first

move for pre-discovery summary judgment. Defs.’ Mot., Dkt. No. 28-11. They argue that they are entitled to judgment because Rivas failed to exhaust his administrative remedies before filing this action, “as required by 42 U.S.C. § 1997e(a).” Id. at 3. A. Exhaustion of Administrative Remedies “The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C. § 1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action.” Booker v. Flint, 2023 WL 3765556, at *2 (N.D.N.Y. Apr. 11, 2023), report and recommendation adopted, 2023 WL 3762822 (N.D.N.Y. June 1, 2023) (Suddaby, J.). “The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or partic- ular episodes, and regardless of the subject matter of the claim.” Id. at *2 (citing Giano v. Goord,

380 F.3d 670, 675–76 (2d Cir. 2004)). “Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceed- ings.” Id. at *2. “[T]o properly exhaust an inmate’s administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules.” Booker, 2023 WL 3765556, at *2 (citing Jones v. Bock, 549 U.S. 199, 218–19 (2007)). “‘[P]roper’ exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court.” Id. at *2 (citing Woodford v. Ngo, 548 U.S. 81, 90–103 (2006)). Courts are not permitted to excuse a prisoner’s failure to exhaust because of “special cir- cumstances.” Booker, 2023 WL 3765556, at *3 (citing Ross v. Blake, 578 U.S. 632, 640 (2016)). “Mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclos- ing judicial discretion.” Id. at *2 (quoting Riles v. Buchanan, 656 F. App’x 577, 580 (2d Cir.

2016)). Nevertheless, the lack of availability of administrative remedies is a “textual exception to mandatory exhaustion[.]” See Booker, 2023 WL 3765556, at *3; Ross, 578 U.S. at 642; Riles, 656 F. App’x at 580. “An administrative procedure is unavailable when: (1) ‘it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved in- mates’; (2) it is ‘so opaque that i[t] becomes, practically speaking, incapable of use’; or (3) ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’” Riles, 656 F. App’x at 580 (quoting Ross, 578 U.S. at 643– 44). Defendants maintain that Rivas never filed a grievance at Marcy or Five Points. Rivas

insists that he filed a grievance but he admits DOCCS has no record of any grievance from him. Pl.’s Resp. to Defs.’ SOMF, Dkt. No. 49-1 ¶ 26. Rivas explains the absence of any grievance record by contending that administrative remedies were unavailable to him. See Pl.’s Resp. at 11– 14. Given the limited record before it and without the benefit of discovery, the Court cannot determine the chronology of events following the alleged September 24, 2024, assault with cer- tainty. But understanding what did or did not happen, and when, is essential for determining whether administrative remedies were available. Defendants seek summary judgment while declining to engage with the factual assertions that bear directly on their exhaustion defense. They “[d]eny knowledge or information as to the truth” of, or otherwise avoid admitting or denying, nearly every factual assertion in Rivas’s coun- terstatement—including those relevant to his claim that administrative remedies were unavaila- ble.2

Defendants go further, contending that all of Rivas’s factual assertions regarding the una- vailability of administrative remedies are “irrelevant as to whether [he] exhausted his administra- tive remedies.” See, e.g., Defs.’ Resp. to Pl.’s Counterstatement ¶¶ 4, 11, 18. Put simply, defend- ants argue that the sole relevant fact here is that Rivas did not exhaust his administrative remedies. Whether they, or others at DOCCS, improperly prevented Rivas from pursuing those administra- tive remedies is, in their view, immaterial. The Court does not agree. “[I]t is well established that ‘[o]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.’” Hairston v.

Newtown, 2026 WL 993380, at *5 (N.D.N.Y. Mar. 11, 2026) (quoting Hellstrom v. U.S. Dep’t of

2 Contrast Pl.’s Counterstatement, Dkt. No. 49-1 ¶ 4 (“Some time after he was transferred back to Marcy[,] Rivas met with an officer who said she was investigating a PREA complaint[.]”), with Defs.’ Resp. to Pl.’s Counterstatement, Dkt. No. 50-1 ¶ 4 (“Deny knowledge or information as to the truth of this statement.”); Contrast Pl.’s Counterstatement ¶ 11 (“On October 8, 2024, Plaintiff met with a staff member from OSI about the complaint regarding his safety at Marcy Correctional Facility.”), with Defs.’ Resp. to Pl.’s Counterstatement ¶ 11 (“Deny knowledge or information as to the truth of this statement.”); Contrast Pl.’s Counterstatement ¶ 18 (“While at the hospital, Mr. Rivas continued to be denied the ability to grieve by the guards overseeing his custody.”), with Defs.’ Resp. to Pl.’s Counterstatement ¶ 18 (“Deny knowledge or information as to the truth of this statement.”); Contrast Pl.’s Counterstatement ¶ 20 (“Im- mediately after discharge, Mr. Rivas was transferred to Five Points, where he made several attempts to grieve the incidents at Marcy”), with Defs.’ Resp. to Pl.’s Counterstatement ¶ 20 (“Deny knowledge or information as to the truth of this statement.”); Contrast Pl.’s Counterstatement ¶ 22 (“[Rivas] gave the grievance to the woman pushing the cart for outgoing mail and grievances but saw her put it on top of the cart rather than in the box. He repeated this process on two additional occasions, again receiving no response.”), with Defs.’ Resp. to Pl.’s Counterstatement ¶ 22 (“Deny knowledge or information as to the truth of this statement.”); Contrast Pl.’s Counterstatement ¶ 13 (“When Mr. Rivas put his hand through the slot in his cell and called out to ask for writing materials, Defendant Blystone kicked the slot closed, crushing Mr. Rivas’s right hand, the hand he uses to write, in it.”), with Defs.’ Resp. to Pl.’s Counterstatement ¶ 13 (“This statement . . . is improperly asserted here as Defendant Blystone has not answered the Amended Com- plaint.”). Veterans Affs., 201 F.3d 94, 97 (2d Cir. 2000) and collecting cases), report and recommendation adopted, 2026 WL 990928 (N.D.N.Y. Apr. 13, 2026). As a result, denial of a pre-answer motion for summary judgment on exhaustion grounds is appropriate where issues remain as to the availability of administrative remedies during the rel-

evant period. See, e.g., Hardee v. Thomas, 2025 WL 777268, at *5 (N.D.N.Y. Feb. 13, 2025) (recommending denial of pre-answer motion for summary judgment on the basis of exhaustion where the record was “incomplete as to the availability of administrative remedies” at the correc- tional facilities where the plaintiff was housed following the subject incident), report and recom- mendation adopted, 2025 WL 773577 (N.D.N.Y. Mar. 11, 2025); Adams v. Berkman, 2025 WL 2548797, at *6 (N.D.N.Y. July 11, 2025) (recommending denial of pre-answer motion for summary judgment where the record was “incomplete as to the availability of [p]laintiff’s administrative remedies following the alleged . . . incident” and noting there were “certainly issues that call for further factual development”), report and recommendation adopted, 2025 WL 2318706 (N.D.N.Y. Aug. 12, 2025).

Resolving all ambiguities and drawing all reasonable inferences in the non-moving party’s favor, the Court finds that there are unresolved issues of material fact regarding availability of administrative remedies that preclude summary judgment in defendants’ favor on exhaustion grounds. See Booker, 2023 WL 3765556, at *4. B. Failure to State a Claim Defendants also move pursuant to Rule 12(b)(6) to dismiss Rivas’s Eighth Amendment claim against Gentile. See Notice of Mot., Dkt. No. 28 at 1. Defendants’ argument is straightfor- ward: the amended complaint contains only a single allegation concerning Gentile’s involvement in the October 9 incident. Specifically, “the single allegation levied against []Gentile regarding the October 9, 2024, incident [i]s in Paragraph 60 of the Amended Complaint,” and it is “the first and only” mention of Gentile. Defs.’ Mot. at 11; see also Am. Compl. ¶ 60 (“The officers, De- fendants Kessler, Anzalone, Kingsley, Fenton, Redmond, Giordano, Blystone, Gentile, Farina, and Paciello all began attacking Plaintiff.”).

Defendants contend that Rivas “offered no facts as to where Defendant Gentile was nor what he did or did not do, when he arrived at Plaintiff’s cell, or any other interactions between them.” Defs.’ Mot. at 11. “By contrast,” they say, Rivas “provided detailed accounts regarding Defendants Redmond, Kessler, Kingsley, Farina, and Fenton’s arrival at his cell to escort him to . . . R[MH]U for suicide watch, his interaction with the officers, the arrival of Defendants Bly- stone and Paciello and [Rivas’s] subsequent interactions with them.” Id. (citing Am. Compl. ¶¶ 50–59). This juxtaposition, in defendants’ view, “demonstrates the conclusory nature of the alle- gations against []Gentile[.]” Id. “[A]n assertion that Defendant Gentile ‘attacked’ Plaintiff is nothing more than ‘naked assertions devoid of further factual enhancement.’ [sic]” Id. (quoting3 Twombly, 550 U.S. at 555).

This argument is rejected. Rivas’s operative complaint is not required to provide an ac- counting of Gentile’s activities prior to and after the alleged attack on October 9, 2024, nor a blow- by-blow attributing particular acts of force to Gentile. Moreover, Rivas alleges that on a previous occasion on September 24, 2024, Gentile slammed his head into a desk, hit him with a shoe, grabbed his testicles, groped his penis, and possibly “put a finger inside his anus[.]” Am. Compl. ¶¶ 24–27. Plaintiff has also alleged, albeit in far less detailed terms, that Gentile participated in the alleged attack on October 9, 2024. See id. ¶ 60. At this stage of the case, Rivas has plausibly

3 Defendants attribute to Twombly language that is not in the cited passage and at least one word that appears nowhere in the opinion. The purpose of “(cleaned up)” is to enhance readability. See Karol v. Old Second Nat’l Bank, 2020 WL 6343088, at *1 n.1 (N.D. Ill. Oct. 29, 2020) (citing Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143 (2017)). It is not meant to pass a party’s patchwork sentence off as a Supreme Court quote. alleged facts sufficient to sustain his Eighth Amendment claim against Gentile. See Mims v. Laprey, 2024 WL 3090481, at *3–7 (D. Conn. June 21, 2024). C. Leave to Amend Rivas’s opposition papers note that he “will seek to file a Second Amended Complaint”

pursuant to Rule 15 and offers a “proposed Second Amended Complaint” as an exhibit. Pl.’s Resp. at 1 n.1; see also Dkt. No. 49-4. Leave to amend a complaint should be freely given when justice so requires, Fed. R. Civ. P. 15(a)(2), and it is within the district court’s sound discretion to grant or deny such leave. See Shi Ming Chen v. Hunan Manor Enter., Inc., 437 F. Supp. 3d 361, 364 (S.D.N.Y. 2020). However, Rivas’s request is not procedurally compliant. Instead, it “is simply tacked onto . . . an opposition brief” and “fails to comply with the Local Rule governing motions for leave to amend pleadings.” Brooks v. City of Utica, 275 F. Supp. 3d 370, 383 (N.D.N.Y. 2017) (Kahn, J.); see also Local Rule 15.1. Rivas has not formally moved for leave to amend. Accordingly, to the extent his request might be understood as a cross-motion for leave to amend, it will be denied

without prejudice to renewal in a properly filed motion that complies with Local Rule 15.1. IV. CONCLUSION Accordingly, it is hereby: ORDERED, that defendant Gentile’s motion to dismiss (Dkt. No. 28) is DENIED; and it is further ORDERED, that defendants’ motion for summary judgment (Dkt. No. 28) is DENIED; and it is further ORDERED, that, to the extent Rivas’s opposition is construed as a cross motion for leave to amend (Dkt. No. 49), the cross motion is DENIED without prejudice. Defendants are directed to file an answer to the amended complaint within 14 days of the date of this Order. SO ORDERED.

Dated: July 10, 2026 ° ’ 4 Utica, New York Anthony J. Brindisj U.S. District Judg