Merritt v. Hicks

• Court: U.S. District Court — Northern District of New York
• Writing for the Court: THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
• Docket Number: 9:23-cv-1465 (DNH/TWD)
• Decision Date: 12 December 2025
• Citation: Merritt v. Hicks, 9:23-cv-1465 (DNH/TWD) (N.D. N.Y. Dec 12, 2025)
• Parties: ELISHA MERRITT, Plaintiff, v. J. HICKS, et al., Defendants.

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ELISHA MERRITT, Plaintiff, v. J. HICKS, et al., Defendants.

No. 9:23-cv-1465 (DNH/TWD)

United States District Court, N.D. New York

December 12, 2025

APPEARANCES: ELISHA MERRITT Plaintiff, pro se NEW YORK STATE ATTORNEY GENERAL Attorneys for Defendants New York State Attorney General - Albany The Capitol Albany, NY 12224

OF COUNSEL: OLIVIA R. COX, ESQ.

REPORT-RECOMMENDATION AND ORDER

THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

This matter has been referred for a report and recommendation by the Honorable David N. Hurd, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Elisha Merritt (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983 and the Adult Survivors Act (“ASA”), N.Y. C.P.L.R. § 214-j, based on events which occurred while he was incarcerated in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). See generally, Dkt. Nos. 1, 21. Currently before the Court is Defendants Wolf, Gates, Fenlong, Helvie, Best, Coffey, and Marra's motion to dismiss and partial motion for summary judgment. Dkt. No. 58. For the reasons set forth below, the undersigned recommends the Defendants' motion to dismiss be granted.

II. BACKGROUND

Plaintiff commenced this action by filing a complaint dated November 16, 2023, see Dkt. No. 1 at 40,^[1] against Sergeant Hicks and C.O. John Does A, B, C, D, and E, along with a motion to proceed in forma pauperis (“IFP”). Dkt. Nos. 1-2. By Decision and Order dated January 3, 2024, the Hon. Judge Hurd granted Plaintiff's application to proceed IFP; dismissed Plaintiff's Eighth and First Amendment claims against Sergeant Hicks as barred by res judicata, as the Court previously granted summary judgment and dismissed such claims against Hicks in Merritt v. Hicks, et al., No. 9:18-CV-1067 (DNH/TWD) (N.D.N.Y. filed September 7, 2018), for failure to exhaust administrative remedies; and dismissed Plaintiff's Eighth Amendment claims against John Does A, B, C, D, and E, as barred by the statute of limitations. See generally, Dkt. No 6.

Plaintiff filed a motion for reconsideration of the portion of the Court's Decision and Order dismissing his Eighth Amendment claims as untimely. See generally, Dkt. No. 8. On March 11, 2024, the Hon. Judge Hurd granted Plaintiff's motion for reconsideration, concluding “[a]t this preliminary stage, plaintiff has sufficiently alleged facts to suggest that tolling” pursuant to the ASA, “applies with respect to his Eighth Amendment claims.” Dkt. No. 9 at 3 (citation omitted). In so holding, the Court explicitly noted “[t]his preliminary finding does not preclude defendants from filing motions related to the issue of timeliness.” Id. at 3-4, n. 1. The Court also issued a Valentin Order directing the Attorney General's Office to attempt to ascertain the name of the Doe defendants. Id. at 5-6.

On August 14, 2024, Plaintiff filed an amended complaint wherein he named individuals from Gouverneur Correctional Facility (hereinafter, “Gouverneur” or “Gouverneur C.F.”) including Sgt. J. Hicks and C.O.s M. Gates, S. Wolf, D. Fenlong, J. Coffey, D. Best, S. Helvie, and J. Marra as defendants. See generally, Dkt. No. 21. By Decision and Order dated September 12, 2024, the Hon. Judge Hurd accepted the amended complaint for filing and found Plaintiff's Eighth Amendment claims against Defendants Wolf, Gates, Fenlong, Coffey, Best, Helvie, and Marra, who had been substituted for the Doe Defendants, survived sua sponte review and required a response. Dkt. No. 22 at 5-6. The Court dismissed Plaintiff's claims against Hicks for the reasons set forth in the January 3, 2024, Decision and Order. Id. at 4-5.

On July 30, 2025, counsel filed a motion to dismiss and partial motion for summary judgment on behalf of Defendants Wolf, Gates, Fenlong, Helvie, Best, Coffey, and Marra (hereinafter, “Defendants”), pursuant to Rules 12(b)(6) and 56(a) of the Federal Rules of Civil Procedure, seeking to dismiss Plaintiff's Eighth Amendment excessive force, failure to intervene, and racial discrimination claims in the amended complaint with prejudice. Dkt. No. 58; see also Dkt. Nos. 59-61. Defendants argue Plaintiff's claims concerning events which occurred on September 12, and 13, 2017, are time barred; the ASA does not revive Plaintiff's claims; and, even assuming, arguendo, Plaintiff's claims concerning the final incident that occurred on September 13, 2017,^[2] could be revived by the ASA, Plaintiff's remaining distinct claims alleging excessive force, failure to intervene, and racial discrimination during the September 12, 2017, incident and the September 13, 2017, incidents in the infirmary and small SHU cannot be revived. See Dkt. No. 58-1 at 8-15. Defendants further aver Plaintiff failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act (“PLRA”) prior to commencing this action, therefore, summary judgment should be granted in favor of the Defendants with respect to Plaintiff's claims concerning the September 12, 2017, incident as well as the First and Second September 13, 2017, incidents. See id. at 15-19.^[3]

Plaintiff filed a response in opposition to the Defendants' motion to dismiss and for summary judgment. See generally, Dkt. No. 64. He first contends his § 1983 claims are not time barred as his claims were timely filed within the one-year revival period set forth in the ASA, and the ASA's broad scope encompasses all of his discrete claims. See id. at 8-18. Plaintiff also asserts he was exempt under the ASA from the PLRA's exhaustion requirement. See id. at 18.

The Defendants submitted a reply in further support of the motion to dismiss and for partial summary judgment. See generally, Dkt. No. 68. Plaintiff filed two additional submissions with the court, see generally, Dkt. Nos. 70, 69, which were construed as a request to submit a sur-reply and a sur-reply, respectively. Dkt. No. 71.

III. LEGAL STANDARD

A defendant may move to dismiss a complaint “for failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Determining whether a complaint states a plausible claim for relief . . . requires the reviewing court to draw on its judicial experience and common sense . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.

Iqbal, 556 U.S. at 679 (internal quotations and citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a claim that is plausible on its face.” Twombly, 550 at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” does not suffice. Id. (citation omitted).

“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Where a party is proceeding pro se, the court is obliged to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). In considering a Rule 12(b)(6) motion, “the court considers the complaint, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted).

The mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual allegations are consistent with the allegations of the plaintiff's complaint.

Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at *6 and n.41 (N.D.N.Y. Oct. 22, 2008) (collecting cases); Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y. 2004) (where a pro se is faced with a motion to dismiss, a court may consider materials outside of the complaint “to the extent they are consistent with the allegations in the complaint.”), vacated in part on other grounds, 317 F.Supp.2d 160 (N.D.N.Y. 2004).

IV. DISCUSSION

“In section 1983 actions, the applicable...