07-0612-pr
Espinal v. Goord


                         UNITED STATES COURT OF APPEALS

                              FOR THE SECOND CIRCUIT
                           _______________________________

                                    August Term, 2008

(Submitted: December 4, 2008                                   Decided: February 2, 2009
                                                             Amended: February 27, 2009)


                                 Docket No. 07-0612-pr
                           _______________________________

CESAR A. ESPINAL,

                                  Plaintiff-Appellant,

                    v.

COMMISSIONER GLENN S. GOORD, BRIAN F. MALONE, Inspector General of the New
York State Department of Correctional Services, CHRISTOPHER P. ARTUZ, Former
Superintendent of Green Haven Correctional Facility, W. TOTTEN, Captain of Green Haven
Correctional Facility, COLEMAN S. WILSON, Correctional Sergeants of Green Haven
Correctional Facility, KENNETH G. HAFFORD, Correctional Sergeants of Green Haven
Correctional Facility, JERRY W. SURBER, Correctional Officer of Green Haven Correctional
Facility, FRASHER, Correctional Officer of Green Haven Correctional Facility, ROSARIO,
Correctional Officer of Green Haven Correctional Facility, AYOTLE, Correctional Officer
of Green Haven Correctional Facility, DANIEL F. MARTUCELLO, Correctional Officer of
Green Haven Correctional Facility, B. RODAS, Correctional Medical Providers of Green
Haven Correctional Facility, B. HEALY, Correctional Medical Providers of Green Haven
Correctional Facility, CHAKRAVARTY, Correctional Medical Providers of Green Haven
Correctional Facility, JOHN DOE 1-2, in their personal and individual capacity,

                              Defendants-Appellees.
_______________________________

Before: LEVAL, POOLER, and PARKER, Circuit Judges.

_______________________________



                                            1
       Cesar Espinal, an inmate of the New York State Department of Correctional Services

(“DOCS”) who filed an action under 42 U.S.C. § 1983, appeals the order of the United States

District Court for the Southern District of New York (George A. Yanthis, M.J.) granting

summary judgment, in part, on the ground that Espinal failed to exhaust administrative remedies

under the Prison Litigation Reform Act of 1995 (“PLRA”). After the district court issued its

order, the U.S. Supreme Court held in Jones v. Bock that exhaustion under the PLRA does not

require a prisoner’s grievance to identify the parties responsible for misconduct unless an

identification requirement is provided in the state’s grievance procedures. 

, 218

(2007). The New York DOCS’ grievance procedures do not require an inmate to specifically

name responsible parties. Accordingly, Espinal did not fail to exhaust his administrative

remedies by omitting the names of defendants from his prison grievance. We therefore

REVERSE the grant of summary judgment on this ground. We also REVERSE the dismissal of

Espinal’s retaliation claims, and AFFIRM the denial of Espinal’s motion for a new trial.

       AFFIRMED in part, REVERSED and REMANDED in part.

__________________________

                   CESAR A. ESPINAL, pro se, for Plaintiff-Appellant,

                   MARION R. BUCHBINDER, Assistant Solicitor General, (BARBARA D.
                   UNDERWOOD, Solicitor General, BENJAMIN N. GUTMAN, Deputy
                   Solicitor General, Assistant Solicitor General, on the brief), for ANDREW M.
                   CUOMO, Attorney General of the State of New York, New York, NY, for
                   Defendants-Appellees.

__________________________




                                                 2
POOLER, Circuit Judge:

       Cesar A. Espinal, an inmate of the New York State Department of Correctional Services

(“DOCS”), filed a lawsuit, under 42 U.S.C. § 1983, in the United States District Court for the

Southern District of New York, alleging, inter alia, that the defendants used excessive force

against him and denied him medical treatment in violation of the Eighth Amendment, that they

did so in retaliation for Espinal’s prior lawsuits, and that they conspired to assault him and deny

him medical care in violation of his constitutional rights. The district court (George A. Yanthis,

M.J.) issued an order, entered on September 1, 2005, that granted in part and denied in part the

defendants’ motion for summary judgment.1 The district court dismissed all claims against

twelve of the fourteen defendants on the ground that Espinal failed to exhaust administrative

remedies, under the Prison Litigation Reform Act of 1995, by failing to name those defendants in

his grievance. The district court granted summary judgment, in part, in favor of the two

remaining defendants, Surber and Frasher, because Espinal failed to exhaust his administrative

remedies on the conspiracy claims and because there were no triable issues of material fact on the

retaliation claims. The district court denied summary judgment as to Espinal’s excessive force

claims against Surber and Frasher. A jury returned a verdict in favor of Surber and Frasher on

the excessive force claims. Espinal appealed the order granting summary judgment in part and

an order, made by oral decision and entered on January 11, 2007, that denied his motion for a

new trial.

       After the district court’s order granting summary judgment in part, the U.S. Supreme



       1
        The parties consented to have a magistrate judge conduct all proceedings pursuant to 28
U.S.C. § 636(c).

                                                 3
Court held in Jones v. Bock that exhaustion under the Prison Litigation Reform Act does not

require a prisoner’s grievance to identify the parties responsible for misconduct unless an

identification requirement is provided in the state’s grievance procedures. 

, 218

(2007). Because the New York DOCS grievance procedures do not require an inmate to

specifically name responsible parties, Espinal did not fail to exhaust his administrative remedies

by omitting the names of the defendants from his prison grievance. We therefore reverse the

grant of summary judgment on this ground. We also reverse the grant of summary judgment in

favor of Surber and Frasher on the conspiracy claims and the retaliation claims. We affirm the

district court’s denial of Espinal’s motion for a new trial, and deny Espinal’s request for a

temporary restraining order.2

                                         BACKGROUND

       Espinal makes the following allegations in his Section 1983 complaint. On the morning

of December 17, 1999, Espinal “got into a dispute” with another inmate, but was not harmed. He

was then taken to the medical clinic for a “fight exam.” Officer Williams, who is not a defendant

in this action, escorted Espinal to the clinic. Espinal was allegedly confronted by Sergeant

Wilson, corrections officers Surber, Rosario, Frasher, Ayotle, and several additional officers,

who brought him into the “sick-call room” of the clinic. Surber, Ayotle, and Frasher repeatedly

slammed Espinal into the wall. The officers asked Espinal whether he had been in a fight.

Before Espinal answered, Rosario “told him to shut-up,” and Surber struck him on the side of his

head. The officers then informed Espinal that they would hit him if he did not answer their



       2
       After due consideration of the State’s petition for rehearing, which was denied, we have
amended our opinion.

                                                 4
questions in the affirmative. Surber and Rosario allegedly punched Espinal several times on the

side of the head when he did not respond to their questions.

       When Officer Williams returned to ask whether Espinal was ready to be brought into the

clinic, the defendants informed Williams that they were “not finished with Espinal.” The officers

continued to hit Espinal and kicked him in his right leg where he was previously injured by a gun

shot. Espinal was taken into the clinic at approximately 9:10 a.m. after a half-hour beating, and

was warned not to tell anyone what happened. Espinal had previously filed a lawsuit against

several DOCS defendants, including Surber, in June 1998. Espinal alleges that he was told by

the officers during the December 17, 1999 incident that “this is what happens to [i]nmates when

they submit law suits against us,” and that they threatened to kill him.

       At the clinic, Espinal was first seen by Nurse Healy. Espinal informed Healy that the

officers caused his injuries, but Healy was told by Surber that the injuries resulted from the fight

with the other inmate. Espinal was then seen by a doctor, defendant Dr. Chakravarty, who tried

to examine Espinal, but Espinal refused treatment because Chakravarty’s method of examination

was causing him pain. Espinal would not sign a refusal-of-treatment form and asked to be seen

by another doctor. Chakravarty denied the request. Espinal then asked Sergeant Hafford if he

could be seen by another doctor and be taken to the mental health unit. Hafford denied these

requests because Espinal’s medical charts showed that he had refused medical treatment and did

not indicate any mental health problems.

       Espinal was then left in a room with Surber and Ayotle who verbally harassed him.

Specifically, Surber threatened to kill Espinal if Espinal did not attempt suicide. Espinal was

taken back to his cell at around 10:30 a.m. Espinal asked to go to emergency sick call several


                                                  5
times, but defendant Martucello denied his requests. Later that day, around 6:20 p.m., Espinal

was again brought to the clinic and was reevaluated. An inmate injury report was prepared that

listed injuries to Espinal’s head, right leg, and wrists. Subsequently, Espinal had several

appointments to be seen by the medical department during December 1999, January 2000, and

February 2000. Espinal alleges that the officers and defendant Rodas did not permit him to

attend those appointments.

       The defendants denied Espinal’s allegations in their answer, and asserted failure to

exhaust administrative remedies as an affirmative defense. The record contains two internal

grievances filed by Espinal that are pertinent to this lawsuit. In the first grievance, filed on

December 17, 1999, Espinal claimed that, on that morning, in the “sick call room,” he was

“handcuffed and beaten severe[ly] to the head, face, and body, by officer Surber, officer Frash[e]r

and other countless security officers, as they [were] slurring racial comments and threats of

killing me,” and that the beating was “retaliation” against him. On February 3, 2000, defendant

Christopher Artuz, then-Superintendent of Green Haven Correctional Facility, denied the

grievance, finding Espinal “was not refused medical attention, rather, [Espinal himself] refused

medical assistance,” and there was “no evidence to substantiate [Espinal’s] allegations of

unprofessional conduct and threats.” On February 11, 2000, Espinal appealed, and on April 5,

2000, his appeal was denied.

       In the second grievance, dated January 19, 2000, Espinal stated that he was making a

complaint “against Green Haven’s Medical Dept.” for deliberate indifference to his serious

medical needs in connection with various “[m]andatory [c]linic [a]ppointments,” and asserted

that “the conduct of prison officials and medical personal [sic]” denied him access to medical


                                                  6
care. On March 16, 2000, Artuz denied the grievance, reasoning that medical personnel had seen

Espinal 31 times since October 1999, and granted the grievance to the extent that Espinal would

continue to receive treatment as prescribed. On April 4, 2000, Espinal appealed, and on April

26, 2000, his appeal was denied.

       In October 2004, the defendants moved for summary judgment, arguing that (1) all of

Espinal’s claims, except the excessive force and retaliation claims against Surber and Frasher,

should be dismissed for failure to exhaust administrative remedies under the Prison Litigation

Reform Act; and (2) the excessive force and retaliation claims against Surber and Frasher should

be dismissed because Espinal raised no triable issues of material fact. The district court found

that Espinal failed to exhaust his administrative remedies as to all defendants except Surber and

Frasher because he never specifically named those defendants in his grievances. The district

court noted that Espinal’s grievances referred to the “countless security officers” involved in the

December 17, 1999 incident, and to deliberate indifference by “Green Haven’s Medical Dept.,”

“prison officials,” and “medical personal [sic]” in connection with the alleged denial of medical

appointments. But the district court considered these references insufficient to exhaust claims

against unnamed defendants, “particularly given the fact that . . . [Espinal was] able to remember

the names of the officers he claim[ed] to have taken part in the incidents” when he drafted his

complaint in this lawsuit. The district court also dismissed the conspiracy claims against Surber

and Frasher because, inter alia, Espinal never asserted the existence of a conspiracy to assault

him or deny him medical care in either of his grievances.

       The district court then turned to the remaining claims against Surber and Frasher. Espinal

alleged that the beating by the officers was perpetrated in retaliation for a previous lawsuit


                                                  7
against several DOCS defendants, including Surber, that was filed in June 1998 and was

dismissed on June 14, 1999. The district court found that Espinal’s retaliation claims did not

raise any triable issues of material fact. The district court considered the outcome of the

grievance hearing on the December 17, 1999 incident, Espinal’s history of misbehavior, and the

length of time between the filing of the lawsuit and the incident (a year and a half after filing the

lawsuit and six months after dismissal). The district court determined, however, that Espinal

raised triable issues of material fact on the excessive force claims against Surber and Frasher.

       The excessive force claims were tried before a jury on October 30, 31, and November 1,

2006. Espinal was represented by counsel at trial. The jury returned a verdict in favor of the

defendants. Espinal’s counsel moved for a new trial pursuant to Federal Rule of Civil Procedure

59(a). The district court denied the motion for a new trial in an oral decision.

       Espinal filed a timely appeal of the September 1, 2005 order granting summary judgment

in part and the January 11, 2007 order denying the motion for a new trial.

                                           DISCUSSION

I.     Exhaustion of Administrative Remedies

       A.      The Scope of the PLRA Exhaustion Requirement

       The Prison Litigation Reform Act of 1995 (“PLRA”) states that “[n]o action shall be

brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by

a prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA exhaustion

requirement “applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some other


                                                  8
wrong.” Porter v. Nussle, 

, 532 (2002). Prisoners must utilize the state’s grievance

procedures, regardless of whether the relief sought is offered through those procedures. Booth v.

Churner, 

, 741 (2001).

       In Woodford v. Ngo, the Supreme Court held that “the PLRA exhaustion requirement

requires proper exhaustion.” 

, 93 (2006). The prisoner in Woodford argued that

administrative remedies were unavailable once the prison rejected his grievance as untimely. 

The Supreme Court rejected this argument. The Court held that “[p]roper exhaustion

demands compliance with an agency’s deadlines and other critical procedural rules” as a

precondition to filing a federal lawsuit. 

Woodford explained that compliance with

state procedural rules is necessary to achieve “[t]he benefits of exhaustion [that] can be realized

only if the prison grievance system is given a fair opportunity to consider the grievance.” 

       In Jones v. Bock, 

(2007), the Supreme Court was again confronted with

several questions regarding the scope of the PLRA exhaustion requirement. One of those

questions was whether a prisoner fails to exhaust a claim against a particular defendant by failing

to name that defendant in the internal prison grievance. 

217. The Supreme Court

explained that Woodford “held that to properly exhaust administrative remedies prisoners must

‘complete the administrative review process in accordance with the applicable procedural rules’

– rules that are defined not by the PLRA, but by the prison grievance process itself.” 

(quoting 

) (citation omitted). It follows, as recognized by the Court,

that “[t]he level of detail necessary in a grievance to comply with the grievance procedures will

vary from system to system and claim to claim,” because “it is the prison’s requirements, and not


                                                 9
the PLRA, that define the boundaries of proper exhaustion.” 

inquiry thus requires that we look at the state prison procedures and the

prisoner’s grievance to determine whether the prisoner has complied with those procedures. See

; 

-90. In Jones, a unanimous Supreme Court,

employing this approach, found that Michigan’s grievance procedures did not require the

prisoner to specifically identify in his grievance those officials responsible for alleged

misconduct, and only offered the general guidance that prisoners should “be as specific as

possible” and “[b]e brief and concise” in framing their grievances. 

(quotation marks

omitted). The Court also noted that the inmate grievance forms did not prompt prisoners to name

the responsible parties. 

exhaustion only mandates compliance with the

state’s procedural rules and Michigan’s procedures “ma[de] no mention of naming particular

officials,” there was no authority for a court to impose such a requirement. 

explained that the rationale for an identification requirement – notice to a particular official who

may later be sued – was not one of the primary “benefits of exhaustion,” which seeks to promote

the ability of the prison system to respond to complaints, to reduce litigation, and to improve the

record when litigation nonetheless commences in the courts. 

The Court concluded

that “exhaustion is not per se inadequate simply because an individual later sued was not named

in the grievances.” 

York DOCS’ Inmate Grievance Program

       The Second Circuit has yet to address the question presented in Jones as applied to New

York DOCS’ Inmate Grievance Program; that is, whether New York DOCS’ Inmate Grievance

Program regulations require a prisoner, in a grievance, to name particular officials who are


                                                 10
allegedly responsible for misconduct, in order to later bring suit against those officials in federal

court. The question is presented here because the district court found non-exhaustion as to

twelve of the fourteen defendants based exclusively on Espinal’s failure to specifically name

those defendants in either of his grievances.

       We look first to the New York DOCS’ Inmate Grievance Program (“IGP”) procedures.

The relevant regulations in this case are those that were in place during 1999 and 2000 when

Espinal filed the grievances at issue. Those IGP regulations were repealed and new regulations

were adopted in 2006. See N.Y. Comp. Codes R. & Regs., tit. 7, § 701.1 et seq. However, as

noted by the State in its brief, there are only “minor differences” between the former and the

current regulations. Hence, although we consider the regulations in place during 1999 and 2000

when Espinal filed his grievances, we note that our analysis is equally applicable to the

regulations in place today.

       The IGP has a regular three-tiered process for adjudicating inmate complaints: (1) the

prisoner files a grievance with the Inmate Grievance Resolution Committee (“IGRC”), (2) the

prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and

(3) the prisoner then may appeal an adverse decision by the superintendent to the Central Officer

Review Committee (“CORC”). N.Y. Comp. Codes R. & Regs., tit. 7, § 701.7 (1999).3 The IGP

also has an “expedited” process for harassment grievances, 

(1999),4 which pertains

to “[e]mployee conduct meant to annoy, intimidate, or harm an inmate,” 

(a). See


       3
       This section of the IGP regulations on the regular grievance procedure is now codified at
N.Y. Comp. Codes R. & Regs., tit. 7, § 701.5 (2008).
       4
       This section of the IGP regulations on harassment grievances is now codified at N.Y.
Comp. Codes R. & Regs., tit. 7, § 701.8 (2008).

                                                 11
also Hemphill v. New York, 

, 682-83 (2d Cir. 2004). A harassment grievance is

sent directly to the superintendent. 

If the grievance is a bona fide harassment

issue, the superintendent must initiate or request an investigation, 

(b)(3-4), and

render a decision, 

(b)(5), after which the prisoner could then appeal to the CORC, 

(b)(7). Espinal’s grievance with respect to the December 17, 1999 incident was handled

through the expedited procedure for harassment grievances, whereas the grievance charging that

Espinal was not allowed to attend scheduled medical appointments was addressed through the

regular three-tiered procedure.

       The IGP regulations provide that an inmate must submit a complaint on an Inmate

Grievance Complaint Form, or on plain paper if the form is not readily available. N.Y. Comp.

Codes R. & Regs., tit. 7, § 701.7(a). The regulations state that the “[c]ontent” of the grievance

should include the inmate’s name, department identification number, housing unit, and program

assignment, 

and spaces for this information are included on the complaint

form. This provision further states that “the grievance must contain a concise, specific

description of the problem and the action requested and indicate what actions the grievant has

taken to resolve the complaint.” 

form also provides spaces for the inmate to

include a “[d]escription of [p]roblem,” which is to be “as brief as possible,” and the “[a]ction

requested.”

       The New York IGP regulations do not state that a prisoner’s grievance must name the

responsible party. Like the policy in 

, the IGP regulations offer the general

guidance that a grievance should “contain a concise, specific description of the problem,” N.Y.

Comp. Codes R. & Regs., tit. 7, § 701.7(a)(1)(i), and the complaint form does not instruct the


                                                 12
inmate to name the officials allegedly responsible for misconduct. The Supreme Court in Jones

held that similarly broad regulatory language in Michigan’s grievance procedures was

insufficient to convey an identification 

. We find that New York’s

IGP also does not contain an express identification requirement. The scope of proper exhaustion

under the PLRA is determined by reference to the state grievance system’s procedural rules.

; 

-90. Because New York’s IGP does not

articulate an identification requirement, it is plain that a New York state prisoner is not required

to name responsible parties in a grievance in order to exhaust administrative remedies.

       The State acknowledges the Jones decision but does not meaningfully address it. The

State also has not pointed to any provision of the IGP regulations that constitutes an

identification requirement. It might have pointed us to the section of the New York IGP

regulations on harassment grievances which states that “[t]he employee who allegedly committed

the misconduct shall be a direct party to [the] grievance.” N.Y. Comp. Codes R. & Regs., tit. 7,

§ 701.11.5 A “direct party” is defined as “[a]n individual so uniquely affected by the grievance

that fair play dictates that he/she should be afforded the opportunity to provide input prior to any

decision and also to appeal any disposition rendered.” 

A direct party, under the

IGP regulations, is entitled to appear at hearings, to present information at hearings, to receive

notice of hearing decisions, and to appeal adverse decisions. 

iv, v), §

701.7(b), § 701.7(c), 701.11(b)(5).

       The “direct party” provision, however, cannot be construed as an identification



       5
         In the current regulations, substantially similar language is included in the definition of a
“direct party.” N.Y. Comp. Codes R. & Regs., tit. 7, § 701.2(i) (2008).

                                                 13
requirement. Nowhere in the regulations does it say that the prisoner must name each direct

party in their grievance. To be sure, the State must be aware of the identity of a direct party to

inform the employee that a claim has been made, that the employee is entitled to present

information at a hearing, and that the employee may appeal adverse decisions. But the

regulations do not clearly indicate that the onus of identification lies with the prisoner making a

grievance. It is plausible that an identification requirement is absent from the regulations

because there are cases when an inmate is unable to name responsible parties. Moreover, as long

as the prisoner provides enough information about the alleged misconduct, which is a

requirement already included in the IGP regulations, 

the State will normally

be able to identify any direct party to a grievance on its own through investigation.

       The pro se prisoner cannot be expected to infer the existence of an identification

requirement in the absence of a procedural rule stating that the grievance must include the names

of the responsible parties. Where New York’s grievance procedures do not require prisoners to

identify the individuals responsible for alleged misconduct, neither does the PLRA for

exhaustion purposes. See 

.6

       C.      Espinal’s Grievances



       6
          Because we find that New York’s grievance procedures do not contain an identification
requirement, our holding essentially follows the Jones decision. We are not presented with the
question whether a state’s procedural rules could be so onerous or impractical as to render
administrative remedies unavailable and PLRA exhaustion inapplicable. See 42 U.S.C. §
1997e(a) (an inmate is only required to exhaust “such administrative remedies as are available”);
cf. 

(recognizing that “the behavior of the defendants may render
administrative remedies unavailable,” and “the PLRA’s exhaustion requirement is inapplicable”
under those circumstances). We note that this question would arise if the State were to adopt an
identification requirement without making some allowance for non-compliance in circumstances
when the inmate is unable to identify the responsible parties.

                                                 14
       Given the foregoing analysis of New York’s grievance procedures, Espinal was not

required to specifically identify the responsible parties in his grievance in order to later name

them as defendants in this lawsuit. Espinal only had to provide a specific description of the

problem. N.Y. Comp. Codes R. & Regs., tit. 7, § 701.7(a)(1)(i). We find that Espinal has

complied with this requirement and exhausted his claims against the defendants.

       Espinal’s first grievance, in addition to alleging the involvement of Surber, Frasher, and

“countless other security officers” in the beating, included the specific date, time, and location of

the incident about which he complained, and that he was beaten for retaliatory reasons. These

allegations provided enough information to “‘alert the prison to the nature of the wrong for which

redress [was] sought,’” Johnson v. Testman, 

, 697 (2d Cir. 2004) (quoting Strong v.

David, 

, 650 (7th Cir. 2002)) (alteration omitted), and to “afford[] . . . time and

opportunity [for the State] to address [the] complaint[] internally,” 

, 534 U.S.

at 524-25). This is apparent from the prison officials’ initiation of an investigation of Espinal’s

complaint. The investigator claims to have conducted interviews with “all officers involved,”

but does not specify the names of officers other than Surber and Frasher. Whether this means

that no other officers were involved or that the investigator omitted other officers from the report

is unknown. The point is that prison officials had the necessary information to investigate the

complaints and the opportunity to learn which officers were involved in the alleged incident.

Espinal’s grievance was sufficient to advance the “benefits of exhaustion.” 

.

       We find that Espinal exhausted his excessive force and retaliation claims as to all

defendants allegedly involved in the December 17, 1999 incident. The district court separately


                                                 15
found that Espinal failed to exhaust administrative remedies as to his conspiracy claims because

he never asserted in his grievance the existence of a conspiracy to assault him. We do not read

the requirement in the IGP that the grievance describe the problem to imply that the prisoner

must “articulate legal theories.” See 

(quoting 

).

Espinal did not have to assert the existence of a conspiracy to exhaust his conspiracy claim; it is

sufficient that his grievance adequately described the alleged misconduct.

       The State argues that Espinal did not exhaust his claims against the defendants who

allegedly denied medical care on December 17, 1999. While Espinal’s grievance with respect to

the December 17, 1999 incident does not explicitly discuss the misconduct by medical personnel

which is alleged in the complaint, it is clear that the State considered these allegations when

reviewing Espinal’s grievance. Superintendent Artuz denied the grievance, in part, because

Espinal “was not refused medical attention, [but] rather [himself], . . . refused medical

assistance.” Espinal thus exhausted his claims with respect to the alleged denial of medical

treatment on December 17, 1999.

       Espinal’s second grievance also exhausted his claims that he was denied medical care in

violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. The

grievance alleged that Green Haven’s Medical Department, its medical personnel, and prison

officials refused to allow Espinal to attend his scheduled medical appointments. This was a

sufficient description of the alleged wrong. The State’s assertion that the grievance “failed to

provide prison officials with sufficient notice of wrongdoing to cause them to investigate any

such claim” cannot be squared with the conclusion of the investigator’s report. The investigator

found that medical personnel had seen Espinal thirty-one times since October 1999 and the


                                                 16
superintendent denied the grievance based on this finding. This grievance enabled the State to

investigate Espinal’s claim that he was denied access to medical care. Espinal has thus

exhausted his Eighth Amendment claims.

       On remand, the district court should consider whether Espinal’s claims against the

defendants present triable issues of fact.

II.    Espinal’s Retaliation Claims

       To prove a First Amendment retaliation claim under Section 1983, a prisoner must show

that “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse

action against the plaintiff, and (3) that there was a causal connection between the protected

speech and the adverse action.” Gill v. Pidlypchak, 

, 380 (2d Cir. 2004) (quoting

Dawes v. Walker, 

, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v.

Sorema N.A., 

(2002)).7 There is no dispute that Espinal’s earlier federal lawsuit,

filed in June 1998 and dismissed in June 1999, was a protected activity. See Colon v. Coughlin,

, 872 (2d Cir. 1995) (holding that prison officials are prohibited from retaliating

against prisoners who exercise the right to petition for redress of grievances). While the district


       7
          We have described the essential elements of a First Amendment retaliation claim
differently depending on the factual context. Compare 

(requiring, in the
prison context, that the prisoner responded to retaliatory conduct by defendants “that would deter
a similarly situated individual of ordinary firmness from exercising . . . constitutional rights”
(quotation marks omitted)) with Curley v. Village of Suffern, 

, 73 (2d Cir. 2001)
(requiring that a private citizen, who alleged he was arrested by public officials in retaliation for
his unsuccessful campaign to unseat the Village’s mayor, show that he was “actually chilled” in
exercising his rights (quotation marks omitted)). See also Williams v. Town of Greenburgh, 

, 76 (2d Cir. 2008). Espinal alleges retaliation in the prison context. The district court, in
its decision below, stated that “[o]nly retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights constitutes an
adverse action for a claim of retaliation.” See 

. We therefore find that
the “ordinary firmness” requirement applies here.

                                                 17
court appears to have assumed that the alleged beating was an adverse action for purposes of

analyzing the existence of a causal connection, we have no trouble finding on the record in this

case that there is a triable issue of fact as to whether a severe beating by officers over the course

of thirty minutes would deter a person of “ordinary firmness” from exercising his rights. See

. The remaining question is whether the officers’ action was causally related

to Espinal’s filing of the earlier lawsuit.8

        A plaintiff can establish a causal connection that suggests retaliation by showing that

protected activity was close in time to the adverse action. See Clark County Sch. Dist. v.

Breeden, 

, 273-74 (2001); accord Gorman-Bakos v. Cornell Coop. Extension, 

, 554 (2d Cir. 2001). The district court found that Espinal failed to show a causal

connection between the protected activity of filing a lawsuit and any adverse action by the

officers during the December 17, 1999 incident. The district court stressed the length of time

between the filing of the lawsuit, the termination of the lawsuit, and the incident (a year and a

half after filing the lawsuit and six months after dismissal). The district court concluded that the

time period was “too lengthy and the temporal relationship too attenuated to establish a causal

connection” between the officers’ action and Espinal’s protected activity, and that there was no

evidence Frasher was even aware of Espinal’s prior lawsuit.

        We have “not drawn a bright line to define the outer limits beyond which a temporal

relationship is too attenuated to establish a causal relationship between the exercise of a federal



        8
        The State argues in its petition for rehearing that the jury verdict rejecting Espinal’s
excessive force claim forecloses a necessary element of his First Amendment retaliation claim.
We take no position on this question, leaving it to the district court to decide in the first instance
on remand.

                                                  18
constitutional right and an allegedly retaliatory action.” 

. This

has allowed our Court to exercise its judgment about the permissible inferences that can be

drawn from temporal proximity in the context of particular cases. Compare Hollander v.

American Cyanamid Co., 

, 85-86 (2d Cir. 1990) (finding a lack of evidence that an

adverse action, taken three months after the plaintiff’s EEOC complaint, was in response to the

plaintiff’s protected activity) with Grant v. Bethlehem Steel Corp., 

, 45-46 (2d Cir.

1980) (finding that the lapse of eight months between an EEOC complaint and retaliatory act

indicated a causal connection).

        Here, we find that the passage of only six months between the dismissal of Espinal’s

lawsuit and an allegedly retaliatory beating by officers, one of whom (Surber) was a defendant in

the prior lawsuit, is sufficient to support an inference of a causal connection. See Gorman-

(suggesting the lapse of five months between protected activity and

retaliation may show a causal connection). It is plausible that the officers waited to exact their

retaliation at an opportune time – as when Espinal was involved in a fight with another inmate –

in order to have a ready explanation for any injuries suffered by Espinal. Moreover, we cannot

conclude that there is no evidence that Frasher was aware of Espinal’s prior lawsuit. Viewing the

evidence in the light most favorable to Espinal, as we must, it is a legitimate inference that

Frasher, as a member of Green Haven’s emergency response team with Surber on December 17,

1999, learned of the prior lawsuit from Surber, who was a defendant in the earlier lawsuit, or

from other officers aware of the lawsuit, and took action in response to Espinal’s protected

activity.

        We reverse the district court’s dismissal of Espinal’s retaliation claims against Surber and


                                                 19
Frasher. The district court should consider on remand whether Espinal also raises triable issues

of fact with respect to other officers, if any, that were involved in the December 17, 1999

incident. Espinal also alleged in his complaint that medical personnel refused him medical

treatment on December 17, 1999 in retaliation for his previous lawsuit against Surber and other

officers. The district court did not consider whether the evidence supported a claim that the

actions of medical personnel were in retaliation for Espinal’s filing of a lawsuit. We leave it to

the district court to address this question in the first instance.

C. Espinal’s Motion for a New Trial

        We review the denial of a motion for a new trial for abuse of discretion. Kosmynka v.

Polaris Industries, Inc., 

, 82 (2d Cir. 2006). Espinal raised the following arguments

in support of his motion: (1) he was wearing prison attire at trial which caused him prejudice; (2)

his request to have his sister testify as a rebuttal witness was improperly denied; (3) the district

court should have given a curative instruction to the jury when defense counsel asked Espinal on

cross-examination whether he had been convicted of murder and robbery; and (4) the jury verdict

was against the weight of the evidence. The district court rejected those arguments. We find no

error in the district court’s denial of Espinal’s motion.

        The district court reasonably determined that Espinal’s clothing did not cause him

prejudice because he was wearing jeans and a sweatshirt which “looked like civilian clothing.” It

is highly unlikely that Espinal’s clothing had an influence on the jury verdict. See Tesser v. Bd.

of Educ. of City Sch. Dist. of City of New York, 

, 319 (2d Cir. 2004) (stating that

the grant of a new trial depends on “the likelihood that [an] error affected the outcome of the

case” (quotation marks omitted)).


                                                   20
       The district court acted within its discretion in precluding the rebuttal testimony of

Espinal’s sister. Espinal sought to introduce his sister’s testimony to rebut defendants’ testimony

regarding the extent of Espinal’s injuries. It was necessary, however, for Espinal to offer

evidence of the extent of his injuries in his case in chief in order to show that he was subjected to

a beating at the hands of the officers. Espinal did so by offering his medical records which were

also read into evidence by defense witnesses. The district court reasonably found that evidence

of Espinal’s injuries was already placed before the jury and that the sister’s testimony lacked

impeachment value. Cf. Pitasi v. Stratton Corp., 

, 1561-62 (2d Cir. 1992) (finding

exclusion of testimony erroneous when it was unnecessary during the plaintiff’s case in chief but

material to the impeachment of defense witnesses).

       The district court also acted within his discretion in determining that defense counsel’s

question to Espinal during cross-examination, asking whether he was convicted of murder and

robbery, did not warrant a curative instruction or a new trial. Espinal’s counsel asked

prospective jurors during voir dire about their thoughts regarding Espinal’s murder conviction,

and identified Espinal’s murder conviction in his opening statement to the jury. Defense counsel

was also permitted to explore Espinal’s murder conviction on cross-examination. The district

court accurately characterized the reference to a robbery conviction as comparably “minor.”

Also, the jury was instructed that questions are not evidence and Espinal never answered the

question. The reference to the robbery did not create “undue prejudice or passion” as to warrant

a new trial. Matthews v. CTI Container Transp. Int'l, Inc., 

, 278 (2d Cir. 1989).

       Espinal’s claim that the jury verdict was against the weight of the evidence is not

reviewable on appeal. Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 

, 1199


                                                 21
(2d Cir. 1995), modified on other grounds, 

(2d Cir. 1996).

IV.    Espinal’s Request for a Temporary Restraining Order

       Espinal requests a temporary restraining order and a transfer of custody for the first time

on this appeal. We generally will not consider arguments raised for the first time on appeal.

Universal Church v. Geltzer, 

, 228 (2d Cir. 2006). Espinal may renew this request

on remand.

                                         CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s dismissal of Espinal’s 42

U.S.C. § 1983 claims on the basis of failure to exhaust administrative remedies; we REVERSE

the district court’s dismissal of the retaliation claims against Surber and Frasher; we AFFIRM the

district court’s denial of the motion for a new trial on the excessive force claims against Surber

and Frasher; we DENY Espinal’s request for a temporary restraining order; and we REMAND

for proceedings consistent with this opinion.




                                                 22