MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Senior District Judge.

I. INTRODUCTION

Plaintiff pro se Shawn Woodward, a New York State prison inmate, brings this 42 U.S.C. § 1983 action against seven individual Defendants employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), alleging civil rights claims related to his confinement at Cape Vincent Correctional Facility ("Cape Vincent"). (Dkt. No. 1). Plaintiff's remaining claims are for First Amendment retaliation against all Defendants and Eighth Amendment excessive force against Defendant Dawley. (Dkt. Nos. 30, 36). On February 9, 2018, Defendants filed for summary judgment, on the basis that Plaintiff's claims were barred based on his failure to exhaust the available administrative remedies prior to filing this action. (Dkt. No. 41). The matter was referred to United States Magistrate Judge David E. Peebles, who, on August 13, 2018, issued a Report & Recommendation, recommending that Defendants' motion for summary judgment be granted and that the case be dismissed because Plaintiff failed to exhaust his available administrative remedies. (Dkt. No. 57). Plaintiff then filed timely objections to the Report & Recommendation, arguing, inter alia, that he could not have exhausted his administrative remedies since they were "opaque and incapable of use." (Dkt. No. 60, p. 12).

II. STANDARD OF REVIEW

This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection, as is the case here. Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C).

Summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d 202, 210 (2d Cir. 2014). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In ruling on a summary judgment motion, the court "must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Where the plaintiff proceeds pro se, the Court must read his submissions liberally and interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

III. DISCUSSION

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. See Espinal v. Goord, 558 F.3d 119, 123-24 (2d Cir. 2009). To properly exhaust his administrative remedies, an inmate must complete the administrative review process in accord with the applicable state procedural rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Woodford, 548 U.S. at 90-91. The defendant bears the burden of proving that a plaintiff failed to exhaust available administrative remedies. See Samuels v. Fischer, 168 F.Supp.3d 625, 651 (S.D.N.Y. 2016).

The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). 7 N.Y.C.R.R. §§ 701.5(a)(1), (b). The grievance must be filed within 21 days of the alleged occurrence, using an "inmate grievance complaint form (form #2131)," but if this form is not readily available, "a complaint may be submitted on plain paper." Id. at § 701.5(a)(1). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. at § 701.5(c)(1). If the grievant wishes to appeal to the Superintendent, "he or she must complete and sign the appeal section on the IGRC response form (form #2131) and submit it to the grievance clerk within seven calendar days after receipt of the IGRC's written response." Id. Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee ("CORC"). Id. at § 701.5(d)(1). If the grievant wishes to appeal to the CORC, "he or she must complete and sign form #2133 and submit it to the grievance clerk within seven calendar days after receipt of the superintendent's written response to the grievance." Id. If the grievance concerns employee harassment, there is an expedited process: the grievance skips the IGRC level and goes to the Superintendent, who has twenty-five days to make a decision, after which the inmate has seven days to appeal to the CORC. Id. at § 701.8. During the grievance process, "matters not decided within the time limits may be appealed to the next step." Id. at § 701.6(g)(2). Inmates in special housing units have access to Form #2131, and "[t]he IGP supervisor shall monitor and ensure the proper functioning of the grievance procedure in SHU's." Id. at § 701.7.

There is also an exception to the mandatory exhaustion requirement, in the event the administrative remedies are "unavailable." Williams v. Correction Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross v. Blake, __ U.S. __, 136 S.Ct. 1850, 1858 (2016)). An inmate "must exhaust available remedies, but need not exhaust unavailable ones." Ross, 136 S.Ct. at 1858. The Supreme Court has identified three circumstances in which an administrative remedy, while "officially on the books," is not available. Id. at 1859. An administrative remedy is unavailable when: (1) "it operates a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) it is "so opaque that it becomes, practically speaking, incapable of use"; or (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Williams, 829 F.3d at 123-24 (quoting Ross, 136 S. Ct. at 1859-60).

b. Evidence of Exhaustion & Availability

On or about April 3, 2015, Plaintiff was incarcerated at Cape Vincent Correctional Facility in Cape Vincent, New York. (Dkt. No. 1, p. 3). Plaintiff helped other inmates prepare complaints about corrections staff, and he was allegedly warned by the staff against "writing up staff" and "testifying at hearings" in support of other inmates, and he was allegedly subjected to retaliation for doing so. (Id., pp. 7-12). On or about July 3, 2015, Plaintiff was confined to the Special Housing Unit ("SHU"), after being found guilty of charges of fighting and drug use. (Id., p. 13). Although the determinations were eventually reversed, Plaintiff spent nearly two months in the SHU as a result of the charges. (Id.). Plaintiff alleges that, on July 14, 2015, while in the SHU, he submitted a grievance complaining of retaliatory conduct by various Defendants, but that "[l]ater that week when the Inmate Grievance Program Supervisor made her rounds [,] she told me that she was not filing my grievance because she knew some of the officers and did not believe what I was saying." (Dkt. No. 52-2, pp. 1-2). There is no record of this particular grievance being filed. (See Dkt. No. 41-3). On July 22, 2015, Plaintiff successfully filed a grievance related to the food served in the SHU. (Dkt. No. 41-4).

On July 27, 2015, Plaintiff wrote a letter to Acting DOCCS Commissioner Anthony Annucci, informing him that Plaintiff had attempted to file a grievance on July 14, 2015 but was thwarted by the IGP Supervisor. (Dkt. No. 52-2, p. 1). Plaintiff wrote that "because of this [,] I sent a handwritten copy to the facility's superintendent since he is the next in the chain of the grievance appeal process." (Id., p. 2). Plaintiff wrote that he spoke with the Superintendent on July 27, 2015, who referred him back to the "grievance department." (Id.). Plaintiff continued:

(Id.). Annucci referred Plaintiff's letter to Karen Bellamy, the DOCCS Director of the IGP, who wrote Plaintiff in response on August 3, 2015. (Dkt. No. 52-3). In relevant part, Bellamy wrote as follows:

(Id.). On August 27, 2015, Plaintiff wrote again to Annucci, addressing the Bellamy letter. (Dkt. No. 52-4). Plaintiff expressed confusion as to what to do next, writing that:

(Id.). Plaintiff asked that his grievance be forwarded "to the proper facility's staff for filing," since by that time he had been transferred to Southport Correctional Facility in Pine City, New York. (Id.). By letter dated October 8, 2015, Bellamy responded to Plaintiff, writing in relevant part that: "Please be advised that your IGP issues were addressed in my August 3, 2015 letter to you . . . You have not presented any compelling evidence to indicate that your grievances are not being processed in accordance with Directive #4040." (Dkt. No. 52-5). According to DOCCS, "[n]either Plaintiff's July 27, 2015 letter nor his August 27, 2015 letter was a grievance or an appeal of a grievance." (Dkt. No. 52-1, ¶ 7). There is no record of an appeal related to the alleged July 14, 2015 grievance. (See Dkt. No. 41-5).

c. Analysis

In their motion for summary judgment, Defendants argued that Plaintiff failed to exhaust his administrative remedies and could not show that the administrative remedies were unavailable to him. (Dkt. No. 41-1). In the Report & Recommendation, Magistrate Judge Peebles correctly found that Plaintiff failed to exhaust his administrative remedies, since Plaintiff never actually filed a grievance related to the claims in this action, nor did he appeal any such grievance to the CORC. (Dkt. No. 57). That left one question: "whether the IGP was unavailable to plaintiff such that he may be excused from his failure to fully exhaust the administrative remedies." (Id., p. 18). After careful review of the record, the Court finds that an issue of fact remains as to this question, in accordance with the Second Circuit's decision in Williams v. Correction Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016).

In that case, the plaintiff was housed in the SHU at Downstate Correctional Facility, and while there, he allegedly drafted a grievance concerning staff misconduct and then gave it to a correction officer to forward to the grievance office on his behalf. Williams, 829 F.3d at 120-21. The plaintiff never received a response to the grievance, he never appealed it, and he was transferred to another facility about two weeks later. Id. at 121. He alleged that the correction officer in the SHU never filed the grievance for him. Id. The plaintiff filed a civil rights action, but the defendants successfully moved to dismiss, on the basis that the plaintiff failed to exhaust his administrative remedies, citing records that he never filed an appeal of the grievance. Id. But the Second Circuit reversed, finding that the administrative remedies were unavailable to the plaintiff under the circumstances, where he had an unfiled and unanswered grievance:

Williams, 829 F.3d at 124. The Circuit explained that the regulations do not outline any process to appeal an unfiled grievance:

Id. The Circuit concluded that "the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it." Id. at 126. Further, the "obscurity" of the regulations "was compounded by the fact that Williams was transferred to another facility approximately two weeks after giving his grievance to the correction officer," since the regulations also do not provide guidance "on how a transferred inmate can appeal his grievance with the original facility without having received a response." Id. The Circuit recommended that, to avoid confusion going forward, "DOCCS revise its grievance procedures to instruct inmates how to appeal grievances that were not properly filed by prison staff, and how to appeal a grievance, to which the inmate never received a response, after being transferred." Id. at 126-27.

Likewise, there is evidence in this case that: 1) Plaintiff drafted a grievance while in the SHU on or about July 14, 2015; 2) he gave it the IGP Supervisor for filing; and 3) the grievance was never filed or answered. (Dkt. No. 1; Dkt. No. 52-2). On the other hand, there is evidence that the IGP Supervisor never received or refused to file any such grievance. (Dkt. No. 52-3). It is undisputed that DOCCS has no record of this grievance or any related appeal. Drawing all inferences in the non-moving party's favor, Plaintiff drafted and submitted the grievance, but it went unfiled and unanswered. Under these particular circumstances, "the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it." Williams, 829 F.3d at 126. Moreover, Plaintiff was also transferred after attempting to file the grievance, further compounding the problem. Id. Plaintiff's understandable confusion about the process is evident in his letters dated July 27, 2015 and August 27, 2015 to Acting Commissioner Annucci. (Dkt. Nos. 52-2, 52-4). And in response, DOCCS made no attempt to explain that Plaintiff had to appeal the non-response to his alleged unfiled grievance to the CORC, the position taken by Defendants in this case.1 In fact, Plaintiff was advised that "Directive #4040 makes no provision for an inmate to refer grievances directly to Central Office, and that specific grievance concerns should be directed to the IGP Supervisor for the most expeditious means of resolution." (Dkt. No. 53-3). Plaintiff correctly identifies this confounding situation in his objections to the Report & Recommendation. (Dkt. No. 60, p. 16).

In sum, viewing the evidence in the light most favorable to Plaintiff, the Court finds that an issue of fact exists as to the availability of the grievance process, which precludes summary judgment.2 See Williams, 829 F.3d at 126-27; see also Medina v. Napoli, 725 F. App'x 51, 54 (2d Cir. 2018) ("The record establishes that Medina's allegations, supported by witness testimony, about defendants' actions to prevent the filing of Medina's grievances concerning the June 2007 incident are sufficient, when viewed in the light most favorable to Medina, to raise a genuine issue of material fact as to whether the grievance process was `available' to Medina under the Ross and Williams exhaustion analysis."); Jackson v. Downstate Correctional Facility, No. 16 Civ. 267, 2018 WL 3650136, at *9, 2018 U.S. Dist. LEXIS 128980, at *18 (S.D.N.Y. July 31, 2018) (denying summary judgment motion based on failure to exhaust administrative remedies where evidence showed that the plaintiff "submitted a grievance, but that grievance was never filed," and the appeal procedures were "prohibitively opaque") (citing Williams); Hurst v. Mollnow, No. 16 Civ. 1062, 2018 WL 4178226, at *10, 2018 U.S. Dist. LEXIS 122624, at *26 (N.D.N.Y. July 20, 2018) ("In light of Williams, the Court finds material issues of fact as to the availability of the grievance process and whether Plaintiff attempted to exhaust his administrative remedies, precluding summary judgment."), report and recommendation adopted, No. 16 Civ. 1062, 2018 WL 4153926, 2018 U.S. Dist. LEXIS 147670 (N.D.N.Y. Aug. 30, 2018); Fann v. Graham, No. 15 Civ. 1339, 2018 WL 1399331, at *6, 2018 U.S. Dist. LEXIS 6717, at *17 (N.D.N.Y. Jan. 11, 2018) ("Viewing the facts in the light most favorable to plaintiff, the record suggests that plaintiff's grievances were submitted, but were unfiled and unanswered, creating an issue of fact as to whether the grievance process was available and whether plaintiff attempted to exhaust his administrative remedies. . . ."), report and recommendation adopted, No. 15 Civ. 1339, 2018 WL 1399340, 2018 U.S. Dist. LEXIS 43887 (N.D.N.Y. Mar. 19, 2018); Reid v. Marzano, No. 15 Civ. 761, 2017 WL 1040420, at *3, 2017 U.S. Dist. LEXIS 38547, at *10 (N.D.N.Y. Mar. 17, 2017) (denying summary judgment motion based on exhaustion argument, noting that "it is DOCCS' borderline incomprehensible regulation governing this situation that is to blame").

IV. CONCLUSION

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Magistrate Judge Peebles's Report & Recommendation (Dkt. No. 57) is REJECTED; and it is further

ORDERED that Defendants' Motion for Summary Judgment (Dkt. No. 41) is DENIED without prejudice to renew should the Defendants request an exhaustion hearing pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011); and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.

IT IS SO ORDERED.

Synopsis

Background: Prisoner brought § 1983 action against state correctional employees, alleging that his constitutional rights were violated while he was incarcerated. The United States District Court for the Western District of New York, Curtin, J., 2012 WL 5288713, granted summary judgment in favor of defendants based on prisoner's failure to exhaust his administrative remedies as required by Prison Litigation Reform Act (PLRA). Prisoner appealed. The Court of Appeals, 554 Fed.Appx. 65, vacated and remanded. On remand, the District Court, 2015 WL 5638101, again granted summary judgment in favor of defendants. Prisoner appealed.

The Court of Appeals held that genuine issues of material fact existed as to whether prison grievance procedures were functionally available to prisoner, and whether prisoner took all steps that were purportedly available to him to appeal dismissal of his grievances.

Affirmed in part, vacated in part, and remanded.

Appeal from a judgment of the United States District Court for the Western District of New York (Curtin, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART, VACATED IN PART, and the case is REMANDED for further proceedings consistent with this opinion.

Attorneys and Law Firms

For Plaintiff-Appellant: Kevin King, Mark W. Mosier, Covington & Burling LLP, Washington, D.C.

For Defendants-Appellees: Frederick A. Brodie, Assistant Solicitor General, Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General for Eric T. Schneiderman, Attorney General for the State of New York, Albany, N.Y.

PRESENT: PIERRE N. LEVAL, PETER W. HALL, Circuit Judges, COLLEEN McMAHON,* District Judge.

*52 *53 SUMMARY ORDER

Plaintiff-Appellant Anthony Medina appeals the district court's order granting summary judgment in favor of defendants based on a determination that Medina had failed to exhaust his administrative inmate grievance procedures prior to bringing an action in federal court, as required under the Prison Litigation Reform Act (PLRA). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

In 2016 the Supreme Court decided Ross v. Blake, ____ U.S. ____, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016), a case that addressed when prison officials effectively render certain otherwise available administrative remedies "unavailable" such that an inmate is thus incapable of exhausting them. Shortly thereafter, and while Medina's appeal was pending, a panel of this Court adopted the Ross "availability" analysis in Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), to determine whether an inmate exhausted the administrative remedies required under the PLRA. On the facts of that case, we determined that the administrative remedies Williams had failed to pursue were "unavailable" within the meaning of the Ross test, and therefore found that his suit was not barred. Id. at 126.

In deciding defendants' summary judgment motion, the guidance provided by Ross and Williams was not available to the district court. The court, therefore, did not undertake the newly articulated availability analysis.1 The alleged actions of the defendants in handling Medina's grievances with regard to the June incident bear a strong similarity to those of the defendants in Williams. Medina, like Williams, was an inmate in a special housing unit who was required to rely on correction *54 officers to file his grievances, and both Medina and Williams alleged that those officers intentionally discarded the grievances or prevented them from being filed. 829 F.3d at 124. The Williams decision makes clear that the prison grievance regulations "plainly do not describe a mechanism for appealing a grievance that was never filed" by reason of inaction or obstruction by prison officials, resulting in a situation where "the process to appeal an unified and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it." Id. at 126. That Williams was decided on a motion to dismiss and not on a summary judgment motion does not change the analysis. The record establishes that Medina's allegations, supported by witness testimony, about defendants' actions to prevent the filing of Medina's grievances concerning the June 2007 incident are sufficient, when viewed in the light most favorable to Medina, to raise a genuine issue of material fact as to whether the grievance process was "available" to Medina under the Ross and Williams exhaustion analysis. Ross, 136 S.Ct. at 1862; Williams, 829 F.3d at 124. Because we now have the newly articulated framework by which to determine whether the administrative remedies applicable to the June 2007 incident were available to Medina and could be exhausted, we vacate that portion of the summary judgment and remand to the district court for further proceedings.

In contrast to the June incident, much about what occurred with respect to the December 2007 food deprivation incident (which is alleged to have occurred in retaliation for the filing of the grievance over the June incident) is undisputed. It is uncontested that a grievance was timely filed protesting this incident; and in contrast to June, Medina does not assert that he was prevented from following the proper procedures to file that grievance. There is also no dispute that the December grievance was not considered and denied on the merits but was instead dismissed because Medina had not taken the matter up with his block sergeant before filing a formal complaint. We note that such consultation is "encouraged" but not actually "required" by the Department of Corrections and Community Supervision (DOCCS) grievance protocol.2

In the present case, where the dismissal of Medina's grievance was upheld by the IGP supervisor, DOCCS regulations provide that Medina "may" file a second, "separate" grievance, challenging as improper the dismissal of that first grievance. See NYCRR § 701.5(b) (4)(iii). The record does not conclusively show whether Medina ever filed such a collateral grievance or, if he did, whether he took the necessary appeals therefrom. Without that information, we cannot determine either whether Medina took all the steps that were purportedly "available to him" in the Inmate Grievance Program to appeal the dismissal of his grievance, see 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), or whether the permissive collateral grievance was "functionally unavailable" as discussed in Williams, 829 F.3d at 125 n.4. The district court is far better situated than this Court to make these determinations in the first instance on a full record.

Accordingly, we remand to the district court to consider, in light of the new framework articulated in Ross and adopted by this Court in Williams, whether Medina exhausted his administrative remedies *55 as to each of his June and December 2007 food deprivation claims.

Finally, we note that Medina has conceded that summary judgment was properly granted in its entirety in favor of seven of the named defendants: Danny Davis, Edmund Delany, D. Diehr, Richard A. Donahue, Paul Jayne, Thomas Eagen, and Sabrina von Hagn. The judgment as to those specific defendants is thus affirmed.

The judgment of the district court is AFFIRMED IN PART, VACATED IN PART, and the case is REMANDED for further proceedings consistent with this opinion.

All Citations

725 Fed.Appx. 51

Attorneys and Law Firms

Raymond Jackson, Dannemora, NY, pro se.

Bruce J. Turkle, Office of New York State Attorney General, New York, NY, for Defendants.

OPINION & ORDER

NELSON S. ROMAN, United States District Judge

*1 Plaintiff Raymond Jackson ("Plaintiff') commenced this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants C.O. Reyes ("Reyes"), C.O. Thoban ("Thoban") (collectively, the "Defendants"), and Downstate Correctional Facility ("Downstate")1 for alleged violations of his Eighth Amendment right to be free from cruel and unusual punishment. (See The Second Amended Complaint ("SAC") (ECF No. 22).). Presently before the Court is Defendants' motion for summary judgment on the basis that Plaintiff failed to exhaust his administrative remedies as mandated by the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA") ("Defendants' Motion"). (See Defendants' Brief in Support of their Motion for Summary Judgment ("Defs. Br.") (ECF No. 38) at 1-2.) For the following reasons, Defendants' Motion is DENIED.

FACTUAL BACKGROUND2

Plaintiff is an inmate incarcerated at Clinton Correctional Facility ("Clinton"), a prison operating under the auspices of the New York State Department of Corrections and Community Supervision ("DOCCS"). (See SAC at 2.) Plaintiff's claims arise from an incident that occurred on October 8, 2015 while he was housed at Downstate. (Id. at 4.) Specifically, Plaintiff alleges that while he was in the "draft" room, he was attacked by Defendants. (See id.) The following day, Plaintiff was transferred to Clinton. (See Declaration of Bruce J. Turkle in Support of Defendants' Motion ("Turkle Decl.") (ECF No. 39), Ex. 1 at 8.)

Upon his arrival at Clinton, Plaintiff attended "Phase 1"; an orientation program at Clinton covering all aspects of incarceration, including a review of the grievance process and the remedies available to inmates under 7 N.Y.C.R.R. § 701 et seq. (See Turkle Decl., Ex. 1 at 12-13.)

*2 On October 21, 2015, Plaintiff completed an inmate grievance and sent it to Downstate complaining of the alleged assault that took place on October 8, 2015 when he was still housed there (the "Downstate Grievance"). (See Turkle Decl., Ex. 1 at 46-47; Ex. 4.) A letter dated October 27, 2015 was sent to Plaintiff from K. Watson, Inmate Grievance Program ("IGP") Supervisor at Downstate advising that she had received the October 21, 2015 grievance, but in light of Plaintiffs transfer to Clinton, he was required to file his grievance "at the facility where [he was] housed even if it pertains to another facility." (Turkle Decl., Ex. 5.) The letter also noted that the original grievance was being returned to Plaintiff to "proceed as [he saw] fit." (Id.)

On October 26, 2015, Plaintiff filed a grievance at Clinton (the "October Grievance"). (See Turkle Decl., Ex. 1 at 66-67; Ex. 6.) This grievance was not written on the standard grievance form, but a regular piece of paper. (See Turkle Decl., Ex. 1 at 67-69; Ex. 6.) Plaintiff testified that as soon as he received Ms. Watson's letter, he used a piece of carbon paper to create the October Grievance and filed it the same day. (See Turkle Decl., Ex. 1 at 66-69.)3 Plaintiff contends that his October Grievance was ignored and not acknowledged. (Id. at 69, 90-91, 95, 102, 103.) Plaintiff repeatedly maintains that it was filed. (Id.; See Plaintiffs Brief in Opposition to Defendants' Motion ("Plf. Br.") (ECF No. 44) at 2.)4

Plaintiff twice completed "requests for interview information" addressed to A. Sweeney, Assistant Superintendent at Clinton ("Sweeney"). (See Turkle Decl., Ex. 7.) The first was on October 20, 2015, the day before he drafted his Downstate Grievance, and merely requested to speak with Sweeney. (Id.) The second was on October 26, 2015, and stated that he was "told [he] can still pursue a Grievance against Downstate Correctional Facility from Clinton Annex? [sic] If so ma'm that is what I am asking permission to do." (Id.) Sweeney sent Plaintiff a letter on October 29, 2015, acknowledging that he requested to speak with her and sought permission to pursue a grievance against Downstate correctional officers. (See Turkle Decl., Ex. 8.) Sweeney informed Plaintiff of the following: (1) as to his October 20, 2015 request, that he needed to provide a reason for meeting with her; and (2) with respect to the October 26, 2015 request, "if [he had] any concerns [he felt were] in need of a grievance", that he could "pursue this through [the] formal grievance process." (Id.) Sweeney also directed Plaintiff to address any of his concerns regarding the grievance process to Mrs. Brousseau, Clinton's IGP Supervisor. (Id.)

*3 Plaintiff made no further contact with any prison administrators or IGP members to ascertain the status of his October Grievance before initiating this lawsuit in January 2016. (See Turkle Decl., Ex. 1 at 90-91.) Nevertheless, during the months of November and December of 2015, Plaintiff testified that other inmates were telling him that something was wrong with his grievance and that he should have already received a response or hearing by that point. (Id. at 90.) Plaintiff did not, however, reach out to Sweeney again, or contact Mrs. Brousseau as Sweeney had suggested. Instead, on January 7, 2016, Plaintiff initiated this Section 1983 lawsuit, (see ECF No. 1), because his October Grievance was not acknowledged and he thought "they were playing games", (see Turkle Decl., Ex. 1 at 103.)

By letter dated February 1, 2016, Plaintiff finally reached out to Mrs. Brousseau, to ask why there was no response to his October Grievance. (See Turkle Decl., Ex. 9.) In response on February 4, 2016, Mrs. Brousseau advised Plaintiff that "[t]here is no record of a grievance on file for you at Clinton annex that concerns allegations of assault." (See Turkle Decl., Ex. 10.) Plaintiff also received a memorandum dated March 7, 2016 from Downstate in response to his request for records, which informed him that they did not have any grievance on file pertaining to an assault that took place on October 8, 2015. (Id. Ex. 11.)

During this time, Plaintiff spoke with two Inmate Grievance Resolution Committee ("IGRC") representatives, Cedrick and Beatha, who informed him that the evidence showed "that [he] filed the" October Grievance, (See Turkle Decl., Ex. 1 at 102), the Clinton IGP administrators "probably just didn't acknowledge it and they threw it out", (id.), and he should file a new grievance, (Id. at 116-18.) Thereafter, on March 15, 2016, Plaintiff requested leave from this Court to withdraw his Complaint, as he did "not use the proper vehicle in this matter," but otherwise failed to explain the impetus for this request. (See ECF No. 9.) On April 15, 2016, this Court granted Plaintiffs application and dismissed his case without prejudice. (See ECF No. 14.) In the interim, Plaintiff filed a grievance on April 3, 2016 (the "April Grievance"). (See Turkle Decl., Ex. 12.)

The April Grievance stated that Plaintiff had previously filed a grievance in October, but "got no response", he felt "this is in retaliation against [him] for filing a grievance against another officer" at Downstate, and that C.O. Reyes and C.O. Thoban "assaulted [him and] they hurt [his] elbow. . . ." (Id.) Plaintiffs April Grievance was dismissed as untimely on April 19, 2016. (See Turkle Decl., Exs. 13-15.) The decision indicated that there was no grievance on record regarding an alleged assault at Downstate and that Plaintiffs April Grievance was filed beyond the timeframes articulated in 7 N.Y.C.R.R. § 701; thus it could not be accepted or investigated. (See id.) Plaintiff appealed to the Clinton Superintendent, who affirmed the IGRC's decision on April 26, 2016, and reiterated that the April Grievance was untimely and "unsubstantiated." (See Turkle Decl., Ex. 16.) On April 29, 2016, Plaintiff appealed the Superintendent's decision to the Central Office Review Committee ("CORC"), (See Turkle Decl., Ex. 17), and after a hearing on August 31, 2016, the CORC affirmed the Superintendent's decision, (See Turkle Decl., Ex. 18.)

Approximately three months later, on November 16, 2016, Plaintiff made an application before this Court for leave to reinstate his action, based on the CORC's denial of his April Grievance. (See ECF No. 15.) Defendants opposed Plaintiffs application, arguing that if Plaintiffs reasoning for discontinuing the action was originally related to his need to exhaust his administrative remedies, his only recourse was to now initiate a new lawsuit, not reopen the action. (See ECF No. 16.) By short order dated January 26, 2017, this Court granted Plaintiffs application to reopen the case and directed Plaintiff to file an amended complaint on or before March 13, 2017. (See ECF No. 19.) Thereafter, on February 16, 2017, Plaintiff filed an amended complaint and amended his pleadings a second time on March 13, 2017. (See ECF Nos. 20, 22.) Plaintiff's March 13, 2017 second amended complaint is the operative complaint.

*4 In support of their motion, Defendants also provide the Court with affidavits from Michael Kirkpatrick, Superintendent at Clinton, Brousseau, and Karen Bellamy, Director of the Inmate Grievance Program at DOCCS, all demonstrating that no grievance dated October 26, 2015 or related to an October 8, 2015 assault at Downstate (aside from the April Grievance) was ever filed with the IGRC. (See Turkle Decl., Ex. 19 ¶¶ 12-4; Ex. 20 ¶¶ 15-16; Ex. 21 ¶¶ 7-9.)

LEGAL STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if 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). The moving party bears the initial burden of pointing to evidence in the record, "including depositions, documents . . . [and] affidavits or declarations," see Fed. R. Civ. P. 56(c)(1) (A), "which it believes demonstrate[s] the absence of a genuine issue of material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may support an assertion that there is no genuine dispute of a particular fact by "showing . . . that [the] adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to the nonmoving party to raise the existence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; accord Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Benn v. Kissane, 510 Fed.Appx. 34, 36 (2d Cir. 2013) (summary order). Courts must "draw all rational inferences in the non-movant's favor," while reviewing the record. Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Importantly, "the judge's function is not himself to weigh the evidence and determine the truth of the matter," nor is it to determine a witness's credibility. Anderson, 477 U.S. at 249; see also Kaylor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). Rather, "the inquiry performed is the threshold inquiry of determining whether there is the need for a trial." Anderson, 477 U.S. at 250. Summary judgment should be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that patty's case." Celotex, 477 U.S. at 322.

Critically, in an opposition to a motion for summary judgment "[s]tatements that are devoid of any specifics, but replete with conclusions" will not suffice. Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (nonmoving party "may not rely on conclusory allegations or unsubstantiated speculation" (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))).

DISCUSSION

I. PLRA Exhaustion

Defendants argue that they are entitled to summary judgment because Plaintiff has failed to exhaust his administrative remedies. (See Defs. Br. at 1-2.) Though Defendants are correct that Plaintiff has failed to exhaust his administrative remedies, such failure is excusable.

*5 The PLRA mandates pre-litigation exhaustion of all complaints about inmate life by stating that "a prisoner confined in any jail, prison, or other correctional facility" must exhaust "such administrative remedies as are available" prior to initiating a federal lawsuit. 42 U.S.C. § 1997e(a). To ascertain what remedies are available, courts must look to "the state prison procedures [available] and the prisoner's grievance" choices. Espinal v. Goard, 558 F.3d 119, 124 (2d Cir. 2009) (citing Jones v. Bock, 649 U.S. 199, 218 (2007)). Thereafter, courts consider whether a particular plaintiff has exhausted his administrative remedies, and in circumstances where he has not, courts must then determine whether such a failure may be excused. See Williams v. Corr. Officer Priatno, 829 F.3d 118, 122-24 (2d Cir. 2016).

In New York, the grievance process is governed by the three tiered IGP system. Id. at 125; see also 7 N.Y.C.R.R. § 701. Typically, an inmate must (I) "file[ ] a grievance with the [IGRC within 21 days of the incident]"; (2) "appeal an adverse decision by the IGRC to the Superintendent of the facility"; and (3) "appeal an adverse decision by the Superintendent to the [CORC]." See Espinal, 558 F.3d at 125; see also 7 N.Y.C.R.R. § 701.5.

In situations such as this, concerning a grievance of harassment,5 there is an expedited procedure which mandates that the grievance be sent directly to the Superintendent on the day it is filed. See N.Y.C.R.R. § 701.8. The Superintendent then has 25 days to "render a decision on the grievance and transmit said decision" to the inmate. Id. § 701.8(f). "If the Superintendent fails to respond within the required 25 calendar time limit the grievant may appeal his or her grievance to CORC." Id. § 701.8(g). To do so, the grievant must "fil[e] a Notice of Decision to Appeal (Form #2133) with the inmate grievance clerk." Id.

The regulations also provide that within 45 days of the incident, an inmate can seek an extension of the time to file a grievance beyond the 21 days prescribed by § 701.5 or file an appeal "of an IGRC or superintendent's decision", based on "mitigating circumstances." See 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a), (b). No exceptions, however, are granted "if the request was made more than 45 days after" the incident. Id.6

Prior to 2016, if a pro se inmate had failed to exhaust his administrative remedies, the Second Circuit urged courts to consider whether special circumstances existed "that justified a plaintiffs failure to exhaust remedies that were available and not subject to estoppel." Williams, 829 F.3d at 122 (discussing Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004)). In 2016, however, the Supreme Court held that the exhaustion analysis hinges on the functional availability of administrative remedies, and that non-textual exceptions to the exhaustion requirement would not stand. See Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). Thus, though a remedy is technically on the books, it is considered functionally unavailable if (1) "it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) the "administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use"; or (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859-60. Consequently, Ross explicitly rejected the special circumstances exception. Id. at 1858.7

A. The October Grievance

*6 After learning that his Downstate Grievance was rejected for failure to comply with 7 N.Y.C.R.R. § 701.5(a) (1), Plaintiff filed the October Grievance. (See Turkle Decl., Ex. 1 at 66-68.) Such grievance is governed by 7 N.Y.C.R.R. § 701.8, as it is a harassment grievance. Plaintiffs grievance thus would have been sent directly to the Superintendent for immediate review. See 7 N.Y.C.R.R. § 701.8(b). Thereafter, the Superintendent had 25 days within which to "render a decision on the grievance and transmit said decision, with reasons stated to the grievant, the grievance clerk, and any direct party of interest." Id. § 701.8(f). After expiration of the 25 calendar day period, when "the Superintendent fail[ed] to respond", the procedures provide that Plaintiff could have "appeal[ed] his grievance to CORC," by completing a Notice of Decision to Appeal. Id. § 701.8(g). Instead, he claims that he "tried to exhaust the grievance process by trying to have a personal conversation with Sweeney about the assault that happen [sic] at downstate, and at Clinton Annex, but she did not give me an interview." (Plf. Br. at 2.) Such conduct is insufficient for exhaustion, see Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (noting that after Woodford v. Ngo, 548 U.S. 81 (2006), "notice alone is insufficient because `[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. . . .' "); see also Snyder v. Whittier, 428 Fed.Appx. 89, 91 (2d Cir. 2011) (summary order) ("Merely alerting the prison officials as to the nature of the wrong . . . does not constitute proper exhaustion.") (internal quotations and alterations omitted), and Plaintiff's failure to appeal to the CORC constitutes a failure to exhaust his administrative remedies, see Cicio v. Wenderlich, 714 Fed.Appx. 96, 97-98 (2d Cir. 2018) (summary order) (finding that failure to take an appeal provided for in the regulations "[w]hen a prisoner has filed a grievance, but receives no response" constitutes failure to exhaust); see also Shaw v. Ortiz, No. 15-CV-8964(KMK), 2016 WL 7410722, at *3 (S.D.N.Y. Dec. 21, 2016) (appeal required "even if [plaintiff] do[es] not receive a response from the IGRC or Superintendent").

The critical question, then, is whether the appeal was functionally unavailable to Plaintiff such that his failure to exhaust should be excused. Toward that end, Plaintiff argues that "administrative remedies were unavailable due to threats and being rough [sic] up by the guards at Clinton Annex, [that he] truly fear[ed] for [his] safety and well being," (Plf. Br. at 3); as such, he "filed directly to the federal court", (id.) Such allegations appear to suggest the applicability of the third exception articulated in Ross. Moreover, in light of Defendants' argument that the October Grievance was not filed, this Court will also analyze whether the administrative remedies were so opaque as to render them incapable of use.

1. Threats and Intimidation

Plaintiff's argument that administrative remedies were unavailable to him because he was threatened and intimidated by prison officials fails to meet the third unavailability exception articulated in Ross. "[R]eliance upon conclusory statements or mere allegations is not sufficient to defeat a summary judgment motion." Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002); see also Medina v. Kaplan, No. 16-CV-7223(KMK), 2018 WL 797330, at *5 (S.D.N.Y. Feb. 8, 2018) (noting that conclusory allegations insufficient "to establish the unavailability of administrative remedies"). "Accusations which are `unsupported' and `stand alone' are similarly insufficient." Medina, 2018 WL 797330, at *5; see also Khudan v. Lee, No. 12-CV-8147(RJS), 2016 WL 4735364, at *6 (S.D.N.Y. Sept. 8, 2016) (finding insufficient allegations regarding intimidation that "fail[ ] to specify the dates of any threats, . . . [or] the locations" in which the threats took place). Plaintiff's argument that intimidation was the reason why he "didn't write another grievance or a letter to Ms. Brousseau . . .," (Plf. Br. at 3-4), is wholly unsupported by any evidence and is conclusory insofar as Plaintiff points to no facts regarding such intimidation to defeat summary judgment.8

*7 Moreover, Plaintiff's intimidation argument was raised for the first time in his opposition and is contradicted by his deposition testimony, in which he stated that he filed his federal court action in January of 2016 because his October Grievance had gone unanswered and he thought "they were playing games." (See Turkle Decl., Ex. 1 at 103; see also id. at 102 (testifying that they "didn't want to acknowledge [his] letters so [he] filed a 1983".)) Consequently, though the Court acknowledges its role is not to make credibility determinations, it will discredit the intimidation argument as "insufficient to create a genuine dispute of fact." Khudan, 2016 WL 4735364, at *5; see also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) ("[F]actual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony."); see also LionKingzulu v. Jayne, 714 Fed.Appx. 80, 82 (2d Cir. 2018) (summary order).9

2. Opaque Procedures

The Second Circuit directly addressed the issue of opaque procedures in Williams;10 a case that concerned a pro se inmate who gave a grievance to a corrections officer to file while he was housed in the Special Housing Unit (the "SHU"). Williams, 829 F.3d at 120. Thereafter, plaintiff learned (and subsequently alleged) that his grievance was never actually filed, was told that the Superintendent would look into it for him, and was transferred to another facility in the following days, ultimately never receiving a response to his grievance. Id. at 120-21. The Court held that, despite the fact that an appeal was technically available to plaintiff insofar as it was "officially on the books", it was nevertheless functionally unavailable because "the regulatory scheme providing for that appeal [was] `so opaque' and `so confusing' that . . . no reasonable prisoner c[ould] use [it]." Id. at 124 (quoting Ross, 136 S.Ct. at 1859) (alterations in original). The procedures were held "prohibitively opaque" because they "simply do not contemplate the situation in which Williams found himself", id. at 124, as they only provide remedies for filed grievances, id. Consequently, the Court identified a deficiency in the regulations that rendered administrative remedies functionally unavailable to inmates in Williams' position.

Astonishingly, Defendants fail to even mention Williams in their moving papers despite the obvious factual similarities presented by this case and their argument that the October Grievance was never filed. Such a failure is disconcerting. While Williams is unquestionably unfavorable to Defendants' positon, it is nevertheless Second Circuit precedent by which this Court is bound, and which Defendants had an obligation to address. The Court is particularly troubled by such behavior where, as here, the opposing party is a pro se litigant who has neither the legal acumen nor means to stay abreast of developments in the law.

*8 At its core, this case is indistinguishable from Williams. While Plaintiff was not in the SHU or transferred after he filed his grievance, like Williams, he submitted a grievance, but that grievance was never filed. Williams explicitly addressed such a situation by expressly holding that, though "an administrative remedy[ the appeal to CORC ]was officially on the books"; since the grievance was never filed, "the regulatory scheme providing for th[e] appeal [was] `so opaque' and `so confusing' that . . . no reasonable prisoner [could] use [it]." Williams, 829 F.3d at 124 (quoting Ross, 136 S.Ct. at 1859) (alterations in original); see also id. (where a grievance is not filed "the regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies"); Jenkins v. Cordero, No. 17-CV-1592(VB), 2018 WL 456311, at *3 (S.D.N.Y. Jan. 17, 2018) (noting that "the IGP's regulations are not clear regarding how a prisoner is to proceed when a grievance is submitted by the inmate but never filed with the IGRC"). Despite Plaintiffs insistence that he filed his grievance and it went unanswered, the DOCCS records demonstrate that no such grievance was ever filed. (See Turkle Decl., Ex. 19 ¶¶2-4; Ex. 20 ¶¶ 15-16; Ex. 21 ¶¶ 7-9.) Instead, in February of 2016, almost three months after the expiration of the 45 day period, Plaintiff learned that his October Grievance was not on file. (See id. Exs. 9-10.) Consequently, the appeal was functionally unavailable to him.

Nevertheless, Defendants insist that Plaintiff should have appealed the nonresponse of his October Grievance to CORC. (See Defs. Br. at 20.)11 Such a contention was considered and rejected by the Second Circuit in Williams. There, the defendants maintained that three options existed "to an inmate following his appeal of an unfiled grievance: (1) if it is still within 21 days of the incident, the inmate can re-file the complaint; (2) if it is beyond 21 days but within 45 days of the incident, the inmate can request an exception to the 21-day time limit if he can show mitigating circumstances; or (3) if it is more than 45 days since the incident, the inmate may file a separate complaint grieving the denial of an extension of the time limit." Williams, 829 F.3d at 125. The Second Circuit rejected each of these options, id. at 125-26, and noted that "the regulations plainly do not describe a mechanism for appealing a grievance that was never filed." Id. at 126.

Even assuming Plaintiff submitted his grievance on October 26, 2015 related to an October 8, 2015 assault, at the expiration of the 25 day window provided by § 701.8(g), Plaintiff would have had only two days to appeal to CORC, team that his grievance was never filed, and ask for an extension of time to file a grievance. Plaintiff thus falls into that small group of inmates that "took less than the allowed 21 days to submit [their] original complaint," see Williams, 829 F.3d at 125; the second option articulated by defendants in Williams. This was rejected as an option that, "to the extent . . . available to an inmate in William's position, only increase[s] confusion regarding the avenues available to pursue an appeal." Id. at 126.

Additionally, Defendants' argument that Plaintiff never actually filed his grievance is of no moment. (See Defs. Br. at 21 (arguing that "the evidence establishes that the October 26, 2015 Grievance was never filed".)) The record demonstrates that Plaintiff made attempts to file a grievance in October of 2015, though there is no record of such a grievance with the IGRC. (See Turkle Decl., Ex. I at 66-67 ("once I seen this letter I filed it"), 69 ("I put it in the inmate grievance box and it just never got answered"), 102-103 ("I see that my twenty days been lapsed. They never answered it."); Plf. Br. at 2; Exs. 4-7; Ex. 19 ¶¶ 12-4; Ex. 20 ¶¶ 15-16; Ex. 21 ¶¶ 17-9.) The Court declines to make any credibility determinations at this point; particularly because Williams addressed a situation akin to Plaintiff's where an inmate discovers his grievance was never filed more than 45 days after the incident occurred. There, defendants contended that an inmate could simply "file a separate complaint grieving the denial of an extension of the time limit"; but the Court rejected that option as "wholly inapplicable as a mechanism to appeal an unfiled grievance." Williams, 829 F.3d at 125. Plaintiffs case demonstrates why: in February of 2016, after learning his October Grievance was never filed, Plaintiff attempted to remedy the deficiency by withdrawing his 1983 action and filing the April Grievance, which was repeatedly rejected as untimely. (See Turkle Decl., Exs. 12-18.) While not in keeping with the regulations, this conduct can only be described as an attempt to either appeal the nonresponse of the October Grievance or seek additional time to file a Grievance, both of which were flatly rejected. The procedures on the books provide no mechanism whereby an inmate can learn whether or not his grievance has been filed, and if not, how to proceed to properly grieving his concerns thereafter.

*9 It bears noting that had Plaintiff asked, he would not have been granted an extension of time to file his grievance in February, as the regulations prohibit extensions at such a later hour. See 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a); see also Williams, 829 F.3d at 125 (noting that "the regulations state unequivocally that jain exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence'"). It is therefore apparent that administrative remedies were unavailable to Plaintiff. Plaintiff's failure to exhaust must be excused and Defendants' Motion denied.12

DOCCS has been on notice since July of 2016 that there is a defect in their procedures which are prohibitively opaque insofar as they prescribe for appeals of grievances that were unanswered or never filed. See generally Williams, 829 F.3d 118. Indeed, the Second Circuit explicitly recommended "that DOCCS revise its grievance procedures to instruct inmates how to appeal grievances that were not properly filed by prison staff, and how to appeal a grievance, to which the inmate never received a response, after being transferred." Id. at 126-27. DOCCS has yet to do so. Until such time as DOCCS revises its procedures, courts will continue to be faced with the prospect of making credibility determinations on whether or not the inmate actually filed his grievance and inmates will needlessly be trapped into positions in which they cannot properly adhere to the mandates of the PLRA, despite their best efforts.

CONCLUSION

For the foregoing reasons, Defendants' Motion is DENIED. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 37. The parties are directed to confer and submit the attached Civil Case Management Plan to Chambers on or before August 17, 2018. The Clerk of the Court is further directed to mail a copy of this Opinion and Order to Plaintiff at his address as listed on ECF.

SO ORDERED.

Attachment

This Civil Case Discovery Plan and Scheduling Order is adopted, at counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):

Attorneys and Law Firms

KEITH I. HURST, 105 Hunter Ave., #2, Albany, NY 12206, pro se.

BARBARA D. UNDERWOOD, OF COUNSEL: MARK G. MITCHELL, ESQ., Attorney General of the State of New York, The Capitol, Albany, NY 12224, Attorney for Defendants.

ORDER AND REPORT-RECOMMENDATION

THERESE WILEY DANCKS, United States Magistrate Judge

I. INTRODUCTION

*1 This matter was referred for Report and Recommendation by the Hon. David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3(c). Pro se Plaintiff Keith I. Hurst, a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), has commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights while confined at Washington Correctional Facility ("Washington"). (Dkt. No. 1.) The sole remaining claim is Plaintiff's Eighth Amendment excessive force claim against Defendants A. Mollnow, a Corrections Officer ("C.O.") and Eisenschmidt, a Sergeant ("Sgt."). (Dkt. No. 12.)

Presently pending is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Dkt. No. 41) for Plaintiff's failure to exhaust administrative remedies before commencing this action. (Dkt. No. 41-11 at 6-13.1) Defendants also contend, to the extent Plaintiff's seeks monetary damages against them in their official capacities, they are entitled to Eleventh Amendment immunity. (Dkt. No. 41-11 at 13.) Plaintiff filed a response in opposition to Defendants' motion. (Dkt. No. 57.) Defendants filed a reply. (Dkt. No. 60.) For reasons that follow, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 41) be granted in part and denied in part.

II. BACKGROUND

A. July 1, 2016, Incident

Plaintiff alleges that on July 1, 2016, while an inmate at Washington, he was subjected to excessive force by C.O. Mollnow and Sgt. Eisenschmidt. (Dkt. No. 1 at 4-5.) On that date, Plaintiff claims he requested to speak to an "area supervisor" regarding his keeplock status. Id. at 4-5. In response, C.O. Mollnow "pulled the pin on her walkie talkie" and several officers, including Sgt. Eisenschmidt responded. Id. The officers physically assaulted Plaintiff, inflicting numerous injuries, while hurling racial epithets at him. Id. Specifically, C.O. Mollnow kicked Plaintiff in the left side of his face and spit on him while he was on the ground. (Dkt. Nos. 1 at 5, 41-2 at 86-88.) Sgt. Eisenschmidt punched Plaintiff in the head, face, and chest, banged his head into the wall, and choked him. (Dkt. Nos. 1 at 5, 41-2 at 157.) The assault lasted approximately ten minutes. (Dkt. No. 41-2 at 98-100.) Afterwards, Plaintiff was taken by bus to Sgt. Eisenschmidt's office. Id. There, Sgt. Eisenschmidt punched, kicked, and choked Plaintiff, and slammed his head against a wall. Id. at 103-104. Plaintiff was then sent to the Special Housing Unit ("SHU"). Id.

B. Plaintiff's Inmate Misbehavior Reports

On July 1, 2016, C.O. Mollnow issued Plaintiff two inmate misbehavior reports for creating a disturbance, harassment, refusing a direct order, making threats, and being out of place. (Dkt. No. 1 at 9, 11-12.) As described in those misbehavior reports, at approximately 1:00 p.m., Plaintiff was "cube visiting" without permission. (Dkt. No. 41-4 at 5.) When C.O. Mollnow told Plaintiff that he was not allowed to cube visit, Plaintiff yelled, "fuck you" and returned to his cube. Id. At Sgt. Eisenschmidt's direction, C.O. Mollnow told Plaintiff he was keeplocked. Id. Plaintiff argued with C.O. Mollnow about his keep-lock status, but returned to his cube. Id. At approximately 1:20 p.m., Plaintiff approached C.O. Mollnow's desk and resumed arguing about his keeplock status. Id. at 6. C.O. Mollnow ordered Plaintiff to leave the desk and return to his cube. Id. Plaintiff stepped onto the officer's podium in a threatening manner. Id. C.O. Mollnow activated her alarm; Plaintiff ran to his cube. Id. A response team arrived; Plaintiff was sent to the SHU. Id. No physical force was used in the incident. Id. at 5, 6.

*2 At two Tier III disciplinary hearings conducted on July 11, 2016, Plaintiff pleaded guilty to two counts of creating a disturbance and was found guilty of all other charges. Id. at 7; Dkt. No. 41-2 at 122, 125. He was sentenced to 90 days in the SHU, 90 days loss of recreation, and 90 days loss of good time credits, along with 120 days loss of package, commissary, and telephone privileges. (Dkt. No. 41-2 at 126.) The hearing officer's determinations were affirmed on administrative appeal. (Dkt. No. 41-6 at 1.) On July 15, 2016, Plaintiff was transferred to Upstate Correctional Facility ("Upstate"). (Dkt. No. 41-2 at 142.)

C. Plaintiff's Grievance

In his verified complaint,2 Plaintiff declares, "I exhausted all of my administrative remedies, grievance, commissioner, governor, inspector general, special litigation of Washington, D.C." (Dkt. No. 1 at 2.) Plaintiff further states, "I filed grievances to the higher authority & never received a response. The facility of Washington never responded to my grievance." Id. at 3.

At his deposition, Plaintiff testified that on or about July 14, 2016, while confined in the SHU at Washington, he filed a grievance with Inmate Grievance Resolution Committee ("IGRC") regarding the July 1, 2016, assault:

(Dkt. No. 41-2 at 141.) The next day, on or about July 15, 2016, Plaintiff was transferred to Upstate. Id. at 142. Plaintiff testified he never received a response to his grievance that he filed at Washington:

Id. Plaintiff further explained, "I filed a grievance on [the July 1, 2016, assault] and they made it disappear. They said they never got it. I wrote a grievance. . . ." Id. at 93-94. Plaintiff testified he wrote the Commissioner, the Governor, and Special Litigations. Id. at 94. He "wrote everybody that [] could consider a grievance." Id.

For example, by letter dated August 14, 2016, Plaintiff sent a letter to the Commissioner, regarding the July 1, 2016, incident:

*3 (Dkt. No. 1 at 6.)

Plaintiff testified that he also contacted Upstate's IGRC regarding the status of his grievance:

(Dkt. No. 41-2 at 143.) Plaintiff admitted he never appealed to the Central Office Review Committee ("CORC"):

Id. at 144-45.

During his deposition, Plaintiff confirmed that he never filed a grievance at Upstate regarding the July 1, 2016, incident:

Q: Okay.

Id. at 145-47. Plaintiff confirmed he sent a letter to Upstate regarding his grievance:

Id. at 149.3

*4 Defendants have submitted evidence in support of their motion establishing Washington has no record of any grievance filed by Plaintiff regarding the alleged July 1, 2016, incident. (Dkt. No. 41-9 at 2-3.) Matthew L. Waters, Inmate Grievance Program ("IGP") Supervisor, is one of the individuals responsible for keeping records of the grievances filed by inmates at Washington. Id. at 2. In his declaration, Waters explains he searched the IGP files to determine if Plaintiff filed any grievance at Washington relating to the alleged July 1, 2016, incident. Id. Based upon his search, Waters determined Washington has no record of any grievance filed by Plaintiff relating to any issue connected to the alleged use of excessive force incident at Washington in July 2016. Id. at 2-3.

Defendants have also submitted evidence establishing CORC has no record of an appeal relating to the alleged July 1, 2016, assault. (Dkt. No. 41-8 at 1-2.) Rachel Seguin is the Assistant Director of the DOCCS IGP. Id. at 1. In that capacity, she is the custodian of the records maintained by CORC, which is the body that renders final administrative decisions under DOCCS' three-step IGP. Id. In her declaration, Seguin explains she searched CORC records and, based upon her search, determined Plaintiff did not file a grievance appeal with CORC related to any issue involving an alleged use of excessive force incident at Washington in July 2016. Id. Seguin has attached a computer printout showing that the only CORC appeal filed by Plaintiff was in 2015, concerning an incident at Downstate, and that there are currently no active CORC appeals pending for Plaintiff. Id. at 2.

III. APPLICABLE LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.

Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).

A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist. . . .") (citations omitted).

In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." 426 F.3d 549, 554 (2d Cir. 2005). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a non-moving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To satisfy Rule 56(e), affidavits must be based upon `concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted); Smith v. Woods, No. 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006).4 "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll, 196 F.3d 435, 452 (2d Cir. 1999).

*5 In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at the point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

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." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

IV. PLAINTIFF'S FAILURE TO COMPLY WITH L.R. 7.1(a)(3)

While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epicl Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). While Plaintiff has opposed Defendants' motion, he has failed to respond to Defendants' statement of material as required under L.R. 7.1(a)(3). 5 (Dkt. No. 57.) His response does not mirror Defendants5 statement of material facts, nor does Plaintiff specifically admit or deny the statements therein or cite references to evidence in the record supporting of refuting Defendants' statements. See id. Where a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement to which Plaintiff has not properly responded will be accepted as true (1) to the extent they are supported by evidence in the record,6 and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion.7 See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).

*6 This Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute where a non-movant willfully fails to respond to a properly filed summary judgment motion. Amnesty Ant v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.

V. DISCUSSION

A. Exhaustion of Administrative Remedies

Defendants argue Plaintiff's excessive force claim arising from the July 1, 2016, incident should be dismissed on the ground that he failed to exhaust his administrative remedies.

1. Legal Standard

Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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); see also Ross v. Blake, 136 S.Ct. 1850, 1854-55 (2016). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). "[T]he PLRA's 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 wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

The PLRA requires "proper exhaustion," which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly") (internal quotations omitted). In New York State prisons, DOCCS has a well-established three-step IGP. See N.Y. Comp. Codes R. & Regs. tit. 7 ("7 NYCRR"), § 701.5.

First, an inmate must file a complaint with the facility IGP clerk within twenty-one days of the alleged occurrence. Id. § 701.5(a)(1). A representative of the facility's IGRC has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance, id. § 701.5(b)(2), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3).

Second, a grievant may appeal the IGRC's decision to the facility superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3) (ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to CORC for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(I).

Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).

*7 Grievances claiming employee harassment, including claims of excessive force, "are of particular concern to the administration of [DOCCS] facilities," and subject to an expedited procedure whereby the grievance goes directly to the facility superintendent. Id. § 701.8.8 The superintendent is required to initiate an in-house investigation by higher ranking supervisory personnel; request an investigation by the inspector general's office; or request an investigation by the New York State Police Bureau of Investigation if the superintendent determines that criminal activity may be involved. Id. § 701.8(d).

A grievance referred to the superintendent and determined to be an allegation of harassment, may not be withdrawn and must be addressed by the superintendent. Id. § 701.8(d). The superintendent is required to render a decision on the grievance within twenty-five calendar days, and extensions may be granted only with the consent of the grievant. Id. § 701.8(f). If the superintendent fails to respond within the required twenty-five days, the grievant may appeal the grievance to CORC by "filing a notice of decision to appeal (form #2133) with the inmate grievance clerk." Id. § 701.8(g).

As set forth above, at each step of the IGP process, a decision must be rendered within a specified time period. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." Id. §§ 701.6(g), 701.8(g). Generally, if a plaintiff fails to follow each of the required three step of the above-described IGP, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies and required under the PLRA. See Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits.") (internal quotations and citations omitted)); see, e.g., Martin, II v. Niagara Cty. Jail, No. 05-CV-868 (JTC), 2012 WL 3230435, at *6 (W.D.N.Y. Aug. 6, 2012) (inmate who fails to exhaust his administrative remedies is barred from commencing a federal lawsuit).

Because non-exhaustion is an affirmative defense, Defendants bear the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216; Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004), overruled on other grounds, Woodford, 548 U. S. at 94-95.

2. Plaintiff's Failure to Exhaust

Plaintiff has averred that on or about July 14, 2016, he submitted a grievance regarding the July 1, 2016, incident while he was in the SHU at Washington. (Dkt. No. 41-2 at 141-43.) The undisputed record evidence establishes there is no record of this grievance having been filed at Washington or appealed to CORC. (Dkt. Nos. 41-9 at ¶ 9; 41-8 at ¶¶ 3, 4; 41-2 at 143-45.) Therefore, the Court finds Defendants have satisfied their burden of showing that Plaintiff failed to satisfy the exhaustion requirements before commencing this action. See Woodford, 548 U.S. at 93.9

3. Availability of the DOCCS IGP

*8 A prisoner's failure to exhaust does not end a court's exhaustion review. While the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]") (quotations and citations omitted). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotations and citations omitted).

To guide courts in the "availability" analysis, the Supreme Court has identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "Nil this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. When one of the three circumstances is found, "an inmate's duty to exhaust `available' remedies does not come into play." Id. at 1859. Once a defendant has satisfied the burden of establishing a failure to exhaust, the plaintiff must establish that the IGP was unavailable to him. See Jones, 549 U.S. at 216.

The Court finds that the question of availability in this case is governed by Williams v. Corr. Officer Priatno, 829 F.3d 118 (2d Cir. 2016), in which the Second Circuit held that the opacity of 7 NYCRR § 708.1(g) rendered the DOCCS IGP procedure unavailable to the plaintiff inmate and found that the plaintiff had exhausted his administrative remedies by giving his grievance to the corrections officer. Defendants' attempt to distinguish Williams from the case at bar is unpersuasive. (See Dkt. No. 41-11 at 12.)

As in this case, the inmate plaintiff in Williams claimed to have drafted a grievance complaining of an assault by corrections officers. Williams, 829 F.3d at 120-21. The plaintiff alleged he gave the grievance to a corrections officer for delivery to the IGP office because he was in the SHU. Id. Here, Plaintiff testified he placed the grievance in the mailbox located in the SHU and, in his opposition submission, explains he handed the grievance to a corrections officer to be placed in the SHU mailbox. (Dkt. Nos. 41-2 at 141-43; 57 at 4, 6.10) Significantly, the plaintiff in Williams, like Plaintiff herein, was transferred to another facility before hearing anything regarding the grievance he had attempted to file. Id. As in this case, it was undisputed in Williams that the inmate plaintiff never received a response to the unfiled grievance and did not appeal the grievance to CORC under 7 NYCRR § 701.8(g). Id. at 125.

*9 The Second Circuit acknowledged in Williams that under the DOCCS regulation relevant in both Williams and this case, an inmate may appeal a grievance "to the next step" if he does not receive a timely response from the Superintendent. Williams, 829 F.3d at 124. The Court concluded, however, that:

Id. (alternations in original). Accepting Williams' allegation that the officer to whom he had given the grievance did not file it, the Court found:

Id. The Court noted in Williams that the obscurity of the regulation was compounded by Williams' transfer to another facility approximately two weeks after having given the grievance to the corrections officer. Id. at 126.

Here, Defendants contend Plaintiff has failed to sustain his burden of demonstrating unavailability under Ross sufficient to raise a material issue of fact. Specifically, Defendants argue Plaintiff has failed to show that the grievance procedure was so opaque as to render it incapable of use because "the regulations contemplate the very situation Plaintiff allegedly believed he was in a filed grievance that went unanswered." (Dkt. No. 60 at 5.) In support of their motion, Defendants explain the regulations provide that an inmate who receives no response within the time allotted for response may go directly to the next step of the grievance process. Id. (citing 7 NYCRR §§ 701.6(g)(2), 701.8(g)). Thus, after receiving no response from the facility superintendent within 25 days of purportedly submitting his grievance, Plaintiff could have appealed to CORC. Id. In short, Defendants argue, "the grievance process provided Plaintiff with a `clear avenue to proceed.'" Id. (quoting Cicio Wenderlich, 714 F. App'x 96, 97-98 (2d Cir. 2018) (summary order) ("When a prisoner has filed a grievance, but receives no response, the regulations provide a right of appeal.")).11

*10 However, "Williams holds that the process to appeal an `milled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it." Berman v. Drunkin, No. 9:13-CV-0136 (LEK/DJS), 2017 WL 1215814, at *8 (N.D.N.Y. Mar. 10, 2017) (emphasis in original), report and recommendation adopted by 2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017); see also Juarbe v. Carnegie, No. 9:15-CV-01485 (MAD/DEP), 2016 WL 6901277, at *1 (N.D.N.Y. Oct. 7, 2016) ("In Williams, the Second Circuit held that when a plaintiff's grievance is both unfiled and unanswered, the regulations do not clearly outline the process to appeal or otherwise exhaust administrative remedies, and therefore, the administrative remedies are unavailable under Ross."). Therefore, "Ms long as [the plaintiff's] grievances were not actually filed, then [the plaintiff's] current situation falls squarely within the Second Circuit's decision in Williams[.]" Juarbe, 2016 WL 6901277, at *1.

Here, Plaintiff claims he submitted a grievance at Washington, and the next day he was transferred to Upstate. (Dkt. No. 41-2 at 141-42.) The undisputed evidence demonstrates Washington has no record of Plaintiff's grievance. (Dkt. No. 41-9 at 2-3.) Drawing all inferences in the non-moving party's favor, Plaintiff's grievance was both unfiled and unanswered. In that situation, the Second Circuit has held the procedures "are so opaque and confusing that they were, `practically speaking, incapable of use.'" Williams, 829 F.3d at 126 (quoting Ross, 136 S. Ct. at 1859). In light of Williams, the Court finds material issues of fact as to the availability of the grievance process and whether Plaintiff attempted to exhaust his administrative remedies, precluding summary judgment. See, e.g., Fann v. Graham, No. 9:15-CV-1339 (DNH/CFH), 2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) (finding issue of fact as to the availability of administrative remedies where the record suggested the plaintiff submitted grievances, which were unfiled and unanswered), report and recommendation adopted by 2018 WL 1399340 (N.D.N.Y. Mar. 19, 2018).

Therefore, the Court recommends that Defendants' motion for summary judgment on exhaustion grounds be denied without prejudice and with the opportunity to renew by way of an exhaustion hearing should Defendants request such a hearing.

B. Official Capacity Claims

The Eleventh Amendment protects states against suits brought in federal court. Alabama v. Pugh, 438 U.S. 781, 782 (1978). The immunity granted to the states under the Eleventh Amendment extends beyond the states themselves to state agents and instrumentalities that are effectively arms of the state, Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006), and, unless waived, bars all money damage claims against state officials acting in their official capacities. Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (observing that an inmate-plaintiff's claims for damages against individual corrections department employees sued in their official capacities are considered claims against New York and, therefore, are barred by the state's Eleventh Amendment immunity).

Therefore, to the extent Plaintiff seeks monetary damages from C.O. Mollnow and Sgt. Eisenschmidt in their official capacities (see Dkt. No. 1 at 2, 15), the Court agrees with Defendants that such claims must be dismissed on Eleventh Amendment grounds. (See Dkt. No. 41-11 at 13.)

WHEREFORE, based on the findings above, it is hereby

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 41) be GRANTED in part and DENIED in part; and it is further

*11 RECOMMENDED that insofar as it seeks dismissal of Plaintiff's Eighth Amendment excessive force claim against Defendants in their official capacities, the motion be GRANTED; and it is further

RECOMMENDED that insofar as it seeks dismissal of Plaintiff's Eighth Amendment excessive force claim against Defendants on exhaustion grounds, the motion be DENIED without prejudice to Defendants renewing this argument and requesting an exhaustion hearing, and it is further

*12 ORDERED that the Clerk shall provide Plaintiff with a copy of this Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).

*13 Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.12 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).

All Citations

Slip Copy, 2018 WL 4178226

Attorneys and Law Firms

KEITH I. HURST, 105 Hunter Avenue, #2, Albany, NY 12206, pro se.

BARBARA D. UNDERWOOD, OF COUNSEL: MARK G. MITCHELL, ESQ., Asst Attorney General, Attorney General for the State of New York, The Capitol, Albany, NY 12224, Attorney for Defendants.

DECISION and ORDER

DAVID N. HURD, United States District Judge

*1 Pro se plaintiff Keith I. Hurst brought this civil rights action pursuant to 42 U.S.C. § 1983. On July 20, 2018, the Honorable Thérèse Wiley Dancks, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary judgment be granted in part and denied in part. No objections to the Report-Recommendation were filed.

Based upon a careful review of the Report-Recommendation, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).

Therefore, it is

ORDERED that

1. Defendants' motion for summary judgment is GRANTED in part and DENIED in part;

2. Defendants' motion for summary judgment dismissing plaintiff's Eighth Amendment excessive force claim against defendants in their official capacities is GRANTED and those claims are DISMISSED;

3. Defendants' motion for summary judgment dismissing plaintiff's Eighth Amendment excessive force claim based on non-exhaustion is DENIED without prejudice to defendants renewing this argument and requesting an exhaustion hearing; and

4. Trial is scheduled for February 5, 2019 in Utica, New York.

IT IS SO ORDERED.

All Citations

Slip Copy, 2018 WL 4153926

Attorneys and Law Firms

Jermaine Fann, 430 Main Street, Apt. 306, Dunkirk, New York 14048, pro se.

Hon. Eric T. Schneiderman, Attorney General for the State of New York, OF COUNSEL: WILLIAM A. SCOTT, ESQ., NICOLE E. HAIMSON, ESQ., Assistant Attorneys General, The Capitol, Albany, New York 12224, Attorney for Defendants.

REPORT-RECOMMENDATION AND ORDER1

Christian F. Hummel, U.S. Magistrate Judge

*1 Plaintiff pro se Jermaine Fann ("plaintiff''), a former inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Superintendent ("Supt.") H. Graham, Deputy Superintendent ("DSS") Fagan, Lieutenant ("Lieut.") Ouimetto, Sergeant ("Sgt.") Ederer, Corrections Officer ("C.O.") M. Cornell, C.O. Lovejoy, C.O. Steinberg, C.O. C. Thomas, and C.O. R.F. Schramm—who, at all relevant times, were employed at the Auburn Correctional Facility ("Auburn")—violated his constitutional rights under the First, Fourth, and Fourteenth Amendments. Dkt. No. 79. ("Am. Compl."). Presently pending before the Court are plaintiff's Motion for Summary Judgment and defendants' Motion for Summary Judgment, both filed pursuant to Federal Rules of Civil Procedure ("Fed. R. Civ. P.") 56. Dkt Nos. 119, 120. Plaintiff and defendant opposed the respective motions, and defendant filed a reply. Dkt. Nos. 124, 125, 126. For the following reasons, it is recommended that defendants' motion be granted in part and denied in part, and plaintiff's motion be denied.

I. Arguments

A. Plaintiffs Motion for Summary Judgment

In support of his Motion for Summary Judgment, plaintiff filed a Statement of Material Facts.2 On review of plaintiff's Motion for Summary Judgment, the facts will be related herein in the light most favorable to defendants as the nonmoving party. See subsection II (A) infra; Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) ("In assessing the record . . . to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought."). On May 10, 2015, plaintiff filed a grievance against C.O. Thomas for denying him the right to attend morning breakfast. Dkt. No. 119-2 ¶¶ 7-8. On June 6, 2015, C.O. Thomas approached plaintiff regarding the May 10, 2015 grievance. Id. ¶ 10. The next day, C.O. Thomas informed plaintiff that he was confined to his cell because of the grievance plaintiff filed against him. Id. ¶ 11. C.O. Thomas then issued plaintiff a false misbehavior report because of plaintiff's May 10, 2015 grievance against him. Id. ¶ 12. On June 12, 2015, plaintiff received thirty days confinement and loss of all privileges pursuant to C.O. Thomas' June 7, 2015 misbehavior report. Id. ¶ 13.

*2 On June 3, 2015, C.O. Cornell and C.O. Steinberg performed an "unreasonable" visual body cavity search —also known as a "strip frisk" or "strip search"— on plaintiff "under filthy prison conditions." Dkt. No. 119-2 ¶¶ 14-15, 17. The strip frisk room "was filthy, bug infested, and extremely cold." Id. ¶ 16. Supt. Graham, who has worked at Auburn for ten-and-a-half years, knew Auburn corrections officers were conducting unreasonable searches. Id. ¶ 18-19. The same day, plaintiff filed a grievance against C.O. Cornell and C.O. Steinberg alleging an unreasonable strip frisk. Id. ¶ 20. On June 13, 2015, C.O. Cornell "responded to the plaintiff's [] grievance." Id. ¶ 21. On July 8, 2015, C.O. Cornell confronted plaintiff regarding the June 3, 2015 grievance plaintiff filed against him. Id. ¶ 22. On July 9, 2015, Sgt. Ederer authorized C.O. Cornell to perform a visual body cavity search on plaintiff. Id. ¶¶ 29, 32. During the strip frisk, C.O. Cornell "made statements" to plaintiff regarding the June 3, 2015 grievance that plaintiff filed against him. Id. ¶ 28. C.O. Cornell was not supervised during the strip frisk, nor did he conduct the search in a "suitable and comfortable location." Id. ¶¶ 30, 31.

The same day, C.O. Cornell and C.O. Lovejoy conducted a cell search of plaintiffs cell. Dkt. No. 119-2 ¶ 33. During the search, C.O. Cornell, C.O. Lovejoy, and C.O. Schramm destroyed plaintiffs legal materials and medication. Id. ¶ 34. C.O. Lovejoy escorted plaintiff to the hospital for a urine test. Id. ¶ 35. C.O. Lovejoy and C.O. Schramm "harassed and threatened the plaintiff for his grievance activities." Id. ¶ 36. C.O. Cornell "planted drugs on the plaintiff for filing [a] grievance." Id. ¶ 37. On July 10, 2015, C.O. Cornell issued plaintiff a misbehavior report in retaliation for his June 3, 2015 grievance that plaintiff filed against him. Id. ¶¶ 38-39. On July 28, 2015, "plaintiff was found guilty of the false misbehavior report written by [C.O.] Cornell." Id. ¶ 40. On October 1, 2015, "Albany" reversed the July 28, 2015 disciplinary decision. Id. ¶ 41.

In opposition, defendants argue that the Court should deny plaintiffs motion because plaintiffs motion papers "affirmatively demonstrate" that his claims are without merit, and, therefore, should be dismissed. Dkt. No. 124-1 at 6.

B. Defendants' Motion for Summary Judgment

In support of their Motion for Summary Judgment, defendants filed a Statement of Material Facts. Dkt. No. 120-1. The facts relating to defendants' Motion for Summary Judgment are related herein in the light most favorable to plaintiff as the nonmoving party. See subsection II (A), infra; Rattner, 930 F.2d at 209 ("In assessing the record . . . to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought."). On June 3, 2015, plaintiff alleges that C.O. Cornell and C.O. Steinberg strip frisked him. Dkt. No. 120-1 ¶ 11. C.O. Cornell conducted a pat frisk on that date, but did not perform a strip frisk. Id. ¶ 12. C.O. Steinberg did not perform a pat frisk or strip frisk on plaintiff on June 3, 2015. Id. ¶ 13.

On June 7, 2015, C.O. Thomas issued plaintiff a Tier II disciplinary ticket for sleeping during morning count. Dkt. No. 120-1 ¶ 18. On June 12, 2015, Lieut. Ouimette commenced a Tier II disciplinary hearing. Id. ¶ 19. During the hearing, Lieut. Ouimette denied plaintiffs request to call Supt. Graham as a witness because he did not issue the disciplinary ticket, and was not present during the incident that resulted in the ticket. Id. ¶¶ 20-21. Although Lieut. Ouimette denied plaintiffs request, he allowed plaintiff to testify that he had filed a prior grievance against C.O. Thomas. Id. ¶¶ 22, 23. Lieut. Ouimette found plaintiff guilty, and sentenced him to thirty days keeplock.3

*3 On July 9, 2015, Sgt. Ederer authorized C.O. Cornell and C.O. Lovejoy to conduct a cell search of plaintiffs cell. Dkt. No. 120-1 ¶ 27. In conjunction with the cell search, C.O. Cornell performed a pat frisk of plaintiff. Id. ¶ 28. During the pat frisk, C.O. Cornell found a "green leafy substance" on plaintiff that was later found to be marijuana, along with a "suspicious lump" in plaintiffs "groin area." Id. ¶ 29. C.O. Cornell requested permission to conduct a strip frisk. Id. ¶ 30. C.O. Cornell found no further contraband during the strip frisk. Id. ¶ 31. C.O. Cornell was the only officer present during plaintiffs strip frisk. Id. ¶ 32. C.O. Lovejoy completed the search of plaintiffs cell and found no other contraband. Id. ¶ 34. Because plaintiff possessed marijuana, Auburn staff took plaintiff to the hospital for urine sample testing. Id. ¶ 35. Plaintiff tested positive for marijuana use. Id. ¶ 36. C.O. Cornell issued plaintiff a misbehavior report for possession and use of marijuana. Id. ¶ 37.

On July 14, 2015, Lieut. Ouimette commenced a Tier III disciplinary hearing regarding the July 9, 2015 misbehavior report. Dkt. No. 120-1 ¶ 38. At the outset, Lieut. Ouimette dismissed the drug use charge because plaintiff had already tested positive for marijuana use within the past thirty days, and the July 9, 2015 test results could not be validated. Id. ¶¶ 39-40. Lieut. Ouimette found plaintiff guilty of drug possession, and sentenced him to ninety days keeplock. Id. ¶ 41. The disciplinary disposition was reversed on appeal, and plaintiff served approximately sixty days in keeplock. Id. ¶ 42.

In opposition, plaintiff argues that the Court should deny defendants' motion because: (1) he exhausted his administrative remedies; and (2) he has stated claims against the defendants. Dkt. No. 125. In reply, defendants contend that plaintiff failed to exhaust his administrative remedies. Dkt. No. 126.

II. Discussion4

A. Legal Standards

"A court shall grant summary judgment if 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). The moving party has the burden of showing the absence of disputed material facts by providing the Court with portions of "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it may affect the outcome of the case as determined by substantive law, such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "In determining whether summary judgment is appropriate, [the Court will] resolve all ambiguities and draw all reasonable inferences against the moving party." Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).

To avoid summary judgment, a non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Carey v. Crescenzi, 923 F.2d 18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotation marks omitted). A non-moving party must support such assertions by evidence showing the existence of a genuine issue of material fact. Id. "When no rational jury could find in favor of the non-moving party because the evidence to support is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Services, Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).

B. Exhaustion

As a threshold matter, defendants contend that plaintiff has failed to exhaust his administrative remedies. Dkt. No. 120-4 ("Def. Mem. of Law") at 10-13. Defendants argue that because plaintiff failed to exhaust his administrative remedies as to Supt. Graham, DSS Fagan, Sgt. Ederer, C.O. Lovejoy, and C.O. Schramm, any claims involving those defendants should be dismissed. Def. Mem. of Law at 13. Defendants further argue that plaintiff failed to exhaust his administrative remedies as to the July 9, 2015 incident. Id.5 Plaintiff contends that he properly filed a grievance regarding the July 9, 2015 incident. Dkt. No. 125 at 7-8. Plaintiff also claims that he was aware "of the facility attitude toward the grievance program" and "properly followed all steps to exhaust his claims." Id. at 8. Plaintiff argues that "the [d]efendants failure to properly deliver and or have a program where grievances are safe and secure does not fall at [his] feet, [and] should not be an escape route for claims to be dismissed." Id. In reply, defendants argue that plaintiff supports his "conclusory allegation" that he exhausted his administrative remedies with "handwritten letters that, by [p]laintiff's own acknowledgement [sic], were never acknowledged as received by DOCCS." Dkt. No. 126 at 4. Defendants contend that plaintiff's prior grievance filings and Jeffery Hale and Cheryl Parmiter's declarations invalidate plaintiffs claim of unavailability. Id. The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust any administrative remedies available to him or her before bringing an action for claims arising out of his or her incarceration. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Woodford v. Ngo, 548 U.S. 81, 82, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The 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 wrong." Porter, 534 U.S. at 532, 122 S.Ct. 983. Further, the exhaustion requirement applies even where the prisoner seeks relief not available in the administrative grievance process, such as monetary damages. Id. at 524, 122 S.Ct. 983. To exhaust administrative remedies, the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he or she is incarcerated. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation omitted).

Although the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that "certain caveats apply." Ruggiero v. Cty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citation omitted). The Supreme Court recently held that [c]ourts may not engraft an unwritten `special circumstances' exception onto the PLRA's exhaustion requirement." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1862, 195 L.Ed.2d 117 (2016). Thus, the "special circumstances" exception in Hemphill v. New York, 680 F.3d 680, 686 (2d Cir. 2004) is no longer consistent with the statutory requirements of the PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016).6

*5 Although Ross eliminates the "special circumstances" exception, courts must still consider the PLRA's "textual exception to mandatory exhaustion." Ross, 136 S.Ct. at 1858. Under this exception, courts must determine whether administrative remedies were "available" to a prisoner. Id. The Supreme Court identified three circumstances where administrative remedies may be unavailable to a prisoner. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859 (citing Booth v. Churner, 532 U.S. 731, 736, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Lastly, administrative remedies are unavailable where "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.

1. Did Plaintiff Exhaust his Administrative Remedies?

Although plaintiff seems to suggest that the Auburn grievance process was unavailable, there is no genuine dispute that at all relevant times, DOCCS had in place a three-step inmate grievance program. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5.7

a. DSS Fagan

Plaintiff concedes that he did not exhaust his administrative remedies as to claims against DSS Fagan, and that summary judgment should be granted. Dkt. No. 125 at 9. Accordingly, it is recommended that defendants' Motion for Summary Judgment, insofar as it relates to claims against DSS Fagan, be granted.

b. Supt. Graham and Lieut. Ouimetto

Insofar as plaintiff seeks relief against Supt. Graham for supervisory liability and Lieut. Ouimetto for Fourteenth Amendment due process, plaintiff has failed to exhaust his administrative remedies. DOCCS records establish that plaintiff did not name either Supt. Graham or Lieut. Ouimetto in grievances pertaining to the conduct at issue. See Dkt. No. 120-30; Dkt. No. 120-29 ("Hale Decl.") at 4 (detailing plaintiff's subject grievances). Notably, in opposition, plaintiff does not allege that he exhausted his administrative remedies as to Supt. Graham or Lieut. Ouimetto, and does not claim that defendants prevented or obstructed him from filing grievances against Supt. Graham or Lieut. Ouimetto. Further, there is nothing in the record indicating that Supt. Graham, Lieut. Ouimetto, or any other defendant prevented him from filing grievances. See Dkt. No. 125 at 8 (noting, in plaintiff's exhaustion section, that he "properly exhausted" claims against defendants Cornell, Lovejoy, Ederer, and Schramm).8 Therefore, because plaintiff failed to exhaust his administrative remedies as to Supt. Graham and Lieut. Ouimetto, it is recommended that defendants' Motion for Summary Judgment, insofar as it relates to claims against Supt. Graham and Lieut. Ouimetto, be granted.

c. July 9, 2015 Incident

*6 Plaintiff claims that on July 14, 2015, he filed a grievance regarding the July 9, 2015 "retaliatory cell search, visual body cavity search, urine test, verbal threats, harassment, and the false misbehavior report." Am. Compl. ¶ 169. Plaintiff testified that he handed this grievance to the "rounds officer" while he was on keeplock confinement. Dkt. No.120-3 ("Pl. Dep.") at 213. On July 17, 2015, after he did not receive a copy of the grievance or a grievance number, plaintiff filed a second grievance. Am. Compl. ¶ 171. Plaintiff testified that he handed the second grievance to the sergeant on duty. Pl. Dep. at 217. On August 13, 2015, after not receiving a response from Auburn's IGRC, plaintiff filed a notice of appeal "in accordance with the rules and regulations" requesting that his grievance be sent to CORC. Am. Compl. ¶ 177.

Defendants contend that plaintiff never filed a grievance with respect to the July 9, 2015 strip frisk by C.O. Cornell, cell search by C.O. Cornell, C.O. Lovejoy, C.O. Schramm, and Sgt. Ederer, destruction of property by C.O. Cornell and C.O. Schramm, and a falsified misbehavior report. Def. Mem. of Law at 12-13. Auburn's IGP Supervisor Cheryl Parmiter declared that a search of the DOCCS database confirms that, although plaintiff filed six grievances while housed at Auburn, five were filed prior to July 9, 2015. Dkt. No. 120-35 ("Parmiter Decl.") at 3. The grievance filed after July 9, 2015 does not relate to the wrongdoings plaintiff alleged occurred on July 9, 2015. Id. at 4. DOCCS' Assistant Director of IGP Jeffery Hale declared that a search of the CORC database confirms that "plaintiff filed a number of grievance appeals with CORC, but none of those appeals concern matters stemming from incidents of an allegedly improper strip frisk, an allegedly improper cell search, or the issuance of an allegedly false misbehavior report on July 9, 2015." Hale Decl. at 4. However, plaintiff has proffered a copy of the July 17, 2015 grievance alleging that "several officers"9 subjected him "to an unnecessary pat frisk, strip, frisk, cell search, verbal threats, and an [sic] urine test and false report." Dkt. No. 125-2 at 18. Plaintiff further provides his August 13, 2015 notice of appeal to CORC, which details plaintiff's attempts to exhaust his administrative remedies and expresses his desire to further "appeal to the next level of review." Id.10

Viewing the facts in the light most favorable to plaintiff, the record suggests that plaintiff's grievances were submitted, but were unfiled and unanswered, creating an issue of fact as to whether the grievance process was available and whether plaintiff attempted to exhaust his administrative remedies as to C.O. Cornell, C.O. Lovejoy, C.O. Schramm, and Sgt. Ederer in relation to the July 9, 2015 incident. See Williams, 829 F.3d at 126 (concluding that "the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it."); Thaxton v. Simmons, No. 9:10-CV-1318 (MAD/RFT), 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) ("[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance that was lost or tampered with by [d]efendants. Such credibility assessments are to be resolved by a trier of fact."). Accordingly, the undersigned recommends that defendants' Motion for Summary Judgment on plaintiff's claims arising from the July 9, 2015 incident be denied, without prejudice and with the opportunity to renew by way of an exhaustion hearing, should defendants request such a hearing.

C. Fourth Amendment

*7 Plaintiff alleges that C.O. Cornell and C.O. Steinberg violated his Fourth Amendment rights during a June 3, 2015 strip search. Dkt. No. 119-3 ("Pl. Mem. of Law") at 4-5. Defendants argue that the strip frisk never occurred, and in the alternative, neither C.O. Cornell nor C.O. Steinberg had physical contact with plaintiff. Def. Mem. of Law at 19. The Fourth Amendment establishes that "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures[ ] shall not be violated." U.S. CONST. amend. IV. However, inmates are generally not afforded the same privacy rights as non-inmates because "[l]oss of . . . privacy [is an] inherent incident[ ] of confinement." Bell v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Perez v. N.Y.S. Dept of Corr. Servs., No. 9:08-CV-1031, 2010 WL 1235637, at *5 (N.D.N.Y. Mar. 17, 2010). "Strip frisks pass constitutional muster, even if the strip frisk is conducted without probable cause, so long as the search is reasonable and not abusive." Shabazz v. Pico, 994 F.Supp. 460, 473 (S.D.N.Y. 1998) (citing Bell, 411 U.S. at 558-60, 93 S.Ct. 1713). In assessing reasonableness under the Fourth Amendment, "[c]ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell, 441 U.S. at 558, 99 S.Ct. 1861. C.O. Cornell concedes that he pat frisked plaintiff on June 3, 2015, but denies conducting a strip frisk. Def. Mem. of Law at 19; Dkt. No. 120-18 ("Cornell Decl.") ¶ 4. C.O. Steinberg denies strip frisking plaintiff on June 3, 2015. Def. Mem. of Law at 19; Dkt. No. 120-21 ("Steinberg Decl.") ¶ 4. C.O. Steinberg further states that he did not witness C.O. Cornell pat frisk plaintiff on June 3, 2015. Steinberg Decl. ¶ 4.

The record contains disputed issues of material fact as to whether the June 3, 2015 strip frisk occurred, and if it did occur, whether the strip frisk was reasonable under the Fourth Amendment. However, even assuming the strip frisk occurred as plaintiff alleges, and occurred without probable cause, plaintiff fails to establish that the June 3, 2015 strip frisk was unreasonable. Plaintiff testified that the June 3, 2015 search was illegal, in part, because C.O. Cornell conducted it in a "racist manner" by forcing plaintiff to "have [his] hands above [his] head, strapped to some bars, standing naked." Pl. Dep. at 222-23. DOCCS Directive 4190 states that a corrections officer may require an inmate to "lift[ ] his arms to expose his armpits" during a strip frisk. Dkt. No. 120-8 at 6. Plaintiff has not further demonstrated how standing with his "hands above [his] head, strapped to some bars" constitutes racist conduct on behalf of C.O. Cornell or C.O. Steinberg. Pl. Dep. at 222-23. Moreover, there is no indication that C.O. Cornell or C.O. Steinberg exceeded the scope of the strip frisk, as plaintiff concedes that neither C.O. Cornell or C.O. Steinberg made physical contact with him during the frisk. Pl. Dep. at 152. Insofar as plaintiff suggests that C.O. Cornell and C.O. Steinberg violated DOCCS Directive 4190 by conducting the strip search in the alleged unsanitary area at issue in C-Block, C.O. Cornell and C.O. Steinberg's failure to follow a DOCCS directive does not amount to a constitutional violation. See Burroughs v. Petrone, 138 F.Supp.3d 182, 219 (N.D.N.Y. 2015); Sanders v. Gifford, No. 11-CV-0326, 2014 WL 5662775, at *4 (N.D.N.Y. Nov. 4, 2014). Therefore, viewing the facts in the light most favorable to plaintiff, plaintiff fails to establish that the June 3, 2015 strip frisk was unreasonable. Accordingly, it is recommended that plaintiff's Motion for Summary Judgment as to the June 3, 2015 strip search be denied, and defendants' Motion for Summary Judgment be granted.

D. First Amendment

Plaintiff claims that C.O. Thomas subjected him to a false misbehavior report in retaliation for filing a grievance against him. Pl.'s Mem. of Law at 6-7. Defendants argue that plaintiff "has no viable claim for Officer Thomas' filing of a false misbehavior report [because] [h]e was granted a hearing on the charges and does not raise any viable claim that such hearing failed to provide him due process." Def.'s Mem. of Law at 20. Moreover, defendants argue that the only evidence plaintiff offers of C.O. Thomas' retaliation are the inadmissible declarations of inmates who purported to have overheard conversations between C.O. Thomas and plaintiff. Dkt. No. 124-1 at 8-9.

*8 Courts are to "approach [First Amendment] retaliation claims by prisoners `with skepticism and particular care[.]' See, e.g., Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). A retaliation claim under Section 1983 may not be conclusory and must have some basis in specific facts that are not inherently implausible on their face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); South Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 110 (2d Cir. 2009). "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.'" Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004), overruled on other grounds by Swierkiewicz, 534 U.S. at 560, 122 S.Ct. 999).

To satisfy the first element of a retaliation claim, a plaintiff must show that he engaged in a protected activity. See Espinal, 558 F.3d at 128. The Second Circuit has concluded that use of the prison grievance system constitutes a protected activity. See Gill, 389 F.3d at 384; Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988) ("Moreover, intentional obstruction of a prisoner's right to seek redress of grievances is precisely the sort of oppression that section 1983 is intended to remedy.") (alteration and internal quotation marks omitted); see also Roseboro v. Gillespie, 791 F.Supp.2d 353, 367 (S.D.N.Y. 2011) (finding that the filing of a grievance is a protected activity); Mateo v. Fischer, 682 F.Supp.2d 423, 433 (S.D.N.Y. 2010) (same). Plaintiff states that he filed a grievance against C.O. Thomas on May 10, 2015. Pl.'s Mem. of Law at 6-7; Dkt. No. 119-4 at 4. Thus, plaintiff satisfies the first prong of the test as he has engaged in a protected activity. See id.; Gill, 389 F.3d at 384.

A defendant's retaliatory filing of a falsified misbehavior report that results in disciplinary segregated confinement constitutes adverse action. See Gill, 389 F.3d at 384 (finding that a false misbehavior report that resulted in the plaintiff's placement in keeplock constituted adverse action); Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (emphasis added) ("An allegation that a prison official filed false disciplinary charges in retaliation for the exercise of a constitutionally protected right, such as the filing of a grievance, states a claim under § 1983."). "[T]he mere allegation that a false misbehavior report has been issued to an inmate, standing alone, does not rise to [a] level of constitutional significance." Reed v. Doe No. 1, No. 9:11-CV-0250 (TJM/DEP), 2012 WL 4486086, at *5 (N.D.N.Y. July 26, 2012) (citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)). However, a plaintiff's allegation that a defendant issued a false misbehavior report in response to the plaintiff's protected activity can support a claim of unlawful retaliation. Id. (citing Franco v. Kelly, 854 F.2d 584, 589 (2d. Cir. 2008)). The plaintiff bears the burden of establishing that "the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff." Gayle, 313 F.3d at 682.

*9 Baskerville v. Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y. 2002). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. In assessing temporal proximity, the Second Circuit has held that, generally, to establish a temporal proximity sufficient to support an inference of causal connection, there may be no more than six months between the temporal proximity and the adverse action. See Espinal, 558 F.3d at 129.

Plaintiff alleges that on May 10, 2015, he filed a grievance against C.O. Thomas. Pl.'s Mem. of Law at 6-7; Dkt. No. 119-4 at 4. On June 6, 2015, C.O. Thomas submitted a memorandum to the Auburn IGP denying the allegations set forth in the grievance. Dkt. No. 119-4 at 6. The following day, C.O. Thomas confined plaintiff to his cell. Pl.'s Mem. of Law at 7. When plaintiff questioned why he was confined, C.O. Thomas stated, "you filed [a] grievance, this is what you had asked for." Id. C.O. Thomas issued plaintiff a misbehavior report for failure to comply with facility count procedures (112.21) and refusing a direct order (106.10) stemming from plaintiff's failure to wake up during morning count. Id.; Dkt. No. 119-4 at 15. Lieut. Ouimette conducted a disciplinary hearing on June 12, 2015 and sentenced plaintiff to thirty days keeplock. Id. at 17.

Defendants argue that plaintiff "provides no admissible evidence in support of this claim and Officer Thomas has specifically denied the allegations of retaliation." Dkt. No. 124-1 at 8. Defendants also discredit plaintiff's reliance on Kenneth Boyd's Declaration, which they contend is "insufficient and inadmissible as it is based upon his own supposition regarding Officer Thomas' mental state and his alleged conversations with the Plaintiff." Id. at 9. Although defendants are correct that "[a]ffidavits submitted in support of or in opposition to the summary judgment motion must `be made on personal knowledge, . . . [and] set forth facts as would be admissible in evidence,'" plaintiff's submission of the Boyd Declaration is not fatal to his claim. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (quoting FED. R. CIV. P. 56(e)). Indeed, the record establishes that plaintiff has presented sufficient circumstantial and direct evidence to raise a material question of fact whether C.O. Thomas retaliated against him.

Plaintiff has suggested facts supporting two of the factors set forth in Baskerville. Baskerville, 224 F.Supp.2d at 732. Plaintiff filed a grievance against C.O. Thomas on May 10, 2015. Pl.'s Mem. of Law at 6-7; Dkt. No. 119-4 at 4. On June 6, 2015, C.O. Thomas submitted a memorandum to the Auburn IGP in conjunction with the grievance investigation denying the allegations against him. Dkt. No. 119-4 at 6. The next day, C.O. Thomas filed an allegedly false misbehavior report. Pl.'s Mem. of Law at 7; Dkt. No. 119-4 at 15. C.O. Thomas learned of plaintiff's grievance, at the latest, on June 6, 2015, and issued the misbehavior report on June 7, 2015; therefore, the temporal proximity sufficiently supports an inference of causal connection. See Washington v. Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017) (summary order) (finding that the defendant's questioning of the plaintiff about a grievance he filed, and subsequently filing an allegedly false misbehavior report against the plaintiff two days later supports an inference of causal connection). Moreover, upon confining plaintiff in his cell, C.O. Thomas stated, "you filed [a] grievance, this is what you had asked for." Pl.'s Mem. of Law at 7. In support of that contention, plaintiff has proffered the sworn affidavit of inmate Rodolfo Casiano, who testified that he was housed in a neighboring cell and witnessed the conversation between plaintiff and "the officer that worked that day." Dkt. No. 119-4 at 8. Mr. Casiano states that he heard C.O. Thomas make the abovementioned comment, as well as the statement, "it's funny how things work." Id. Although C.O. Thomas denies issuing the misbehavior report in retaliation for plaintiff's grievance, affording plaintiff special solicitude, a question of material fact is raised as to whether C.O. Thomas had retaliatory intent. See Washington, 681 Fed.Appx. at 46. Defendants do not argue that plaintiff would have been issued a misbehavior report but for the exercise of his First Amendment rights. See Gayle, 313 F.3d a 682 ("The burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation."). Arguably, defendants may be suggesting that plaintiff received a misbehavior report because he slept through the morning facility count; however, as plaintiff denies this conduct, a material fact is in dispute. See Dkt. No. 119-4 at 15. Because a genuine issue of material fact exists with regard to C.O. Thomas' retaliatory intent, it is recommended that plaintiff's Motion for Summary Judgment be denied, and defendants' Motion for Summary Judgment be denied as to plaintiff's First Amendment claim against C.O. Thomas.

III. Conclusion

*10 WHEREFORE, for the reasons stated herein, it is hereby

RECOMMENDED, that plaintiff's Motion for Summary Judgment (Dkt. No. 119) be DENIED; and it is further

RECOMMENDED, that defendants' Motion for Summary Judgment (Dkt. No. 120) be GRANTED IN PART:

the motion be GRANTED, and the claims be DISMISSED with prejudice; and it is further

RECOMMENDED, that defendants' Motion for Summary Judgment (Dkt. No. 120) be DENIED IN PART:

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT

TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED R. CIV. P. 6(a), 6(e), 72.11

All Citations

Slip Copy, 2018 WL 1399331

Attorneys and Law Firms

JERMAINE FANN, 430 Main Street-Apt. #306, Dunkirk, NY 14048, pro se.

HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, OF COUNSEL: WILLIAM A. SCOTT, ESQ., NICOLE E. HAIMSON, ESQ., Ass't Attorneys General, The Capitol, Albany, NY 12224, Attorney for Defendants.

DECISION and ORDER

DAVID N. HURD, United States District Judge

*1 Pro se plaintiff Jermaine Fann brought this civil rights action pursuant to 42 U.S.C. § 1983. On January 11, 2018, the Honorable Christian F. Hummel, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary judgment be granted in part and denied in part, and plaintiffs motion for summary judgment be denied in its entirety. Plaintiff and defendants filed timely objections to the Report-Recommendation, and defendants submitted an additional though untimely response to plaintiffs objections.

Based upon a careful review of the Report-Recommendation and the portions to which the parties objected, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).

Therefore, it is

ORDERED that

1. Plaintiffs motion for summary judgment is DENIED in its entirety;

2. Defendants' motion for summary judgment is GRANTED in part and DENIED in part;

3. Plaintiffs supervisory liability claims against defendants Fagan and Graham are DISMISSED with prejudice;

4. Plaintiffs Fourteenth Amendment due process claim against defendant Ouimette is DISMISSED with prejudice;

5. Plaintiffs Fourth Amendment unreasonable search claims against defendants Cornell and Steinberg are DISMISSED with prejudice;

6. Defendants' motion for summary judgment is DENIED as to plaintiffs First Amendment retaliation claim against defendant Thomas; and

7. Defendants' motion for summary judgment is DENIED without prejudice as to plaintiffs First and Fourth Amendment claims against defendants Cornell, Lovejoy, Schramm, and Ederer for the incidents occurring on July 9, 2015, to defendants renewing this argument and requesting a hearing to assess whether plaintiff exhausted his administrative remedies.

IT IS SO ORDERED.

All Citations

Slip Copy, 2018 WL 1399340

Attorneys and Law Firms

JOSEPH J. REID, SR., 15-R-1021, Great Meadow Correctional Facility, Box 51, Comstock, New York 12821, pro se.

OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, OF COUNSEL: RYAN W. HICKEY, AAG, The Capitol, Albany, New York 12224, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. District Judge

I. INTRODUCTION

*1 Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision, commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the Eighth and Fourteenth Amendments. See Dkt. No. 1. After sua sponte review, the Court dismissed Plaintiffs due process claim against Defendant Rockwood and the supervisory liability claim against the Superintendent of the Watertown Correctional Facility ("Watertown C.F."). See Dkt. No. 8. Plaintiffs Eighth Amendment excessive force claims against Defendants Marzano and Verne, and failure to intervene claim against Defendant Rozanski survived sua sponte review. See id. at 10-11.

On July 1, 2016, the remaining Defendants moved for summary judgment, alleging that Plaintiff failed to exhaust his administrative remedies before commencing this action. See Dkt. No. 35. In a Report-Recommendation and Order dated January 19, 2017, Magistrate Judge Hummel recommended that the Court deny Defendants' motion. See Dkt. No. 45. Specifically, Magistrate Judge Hummel found that, although Plaintiff knew how to file a grievance, he did not know how to proceed when he did not receive a response. See id. at 13. The report further found that Defendants failed to put forth any evidence showing that Plaintiff received information about how to pursue administrative remedies when a grievance is unfiled and unanswered. See id. (citing Washington v. Westchester Cnty. Dept of Corr., No. 13 Civ. 5322, 2014 WL 1778410, *4 (S.D.N.Y. Apr. 25, 2014)). Further, Magistrate Judge Hummel found that "the regulations that govern the appeal of an unfiled and unanswered grievance have not changed since the Second Circuit's decision in Williams, and remain as confusing and arduous as the Court explained in that decision." Id. (citing Williams v. Priatno, 829 F.3d 118, 124-25 (2d Cir. 2016)).

On February 6, 2017, Defendants objected to the Magistrate Judge Hummel's Report-Recommendation and Order. See Dkt. No. 46. First, Defendants argue that the Court should reject the Report-Recommendation and Order because Plaintiffs "mere allegation that he submitted a grievance, unsupported by evidence, is not sufficient to excuse his failure to exhaust at the summary judgment stage." Id. at 1. Next, Defendants contend that the present matter is factually distinguishable from Williams since that case was before the court on a motion to dismiss, whereas here Defendants have filed a motion for summary judgment. See id. at 2. As such, Defendants contend that Plaintiffs bald assertion that he filed two grievances, unsupported by any evidence other than his own conclusory allegations, are insufficient. See id.

Currently before the Court is Magistrate Judge Hummel's January 19, 2017 Report-Recommendation and Order and Defendants' objections thereto.

II. DISCUSSION

The Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (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). This exhaustion requirement applies to all suits brought by inmates regarding aspects of prison life. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust all available administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004), abrogated on other grounds by Ross v. Blake, 136 S.Ct. 1850 (2016). The failure to exhaust is an affirmative defense that must be raised by the defendants and, as such, it is the defendants' burden to establish that the plaintiff failed to meet the exhaustion requirements. See Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testinan, 380 F.3d 691, 695 (2d Cir. 2004); Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009) (citations omitted).

*2 The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. See Jones, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that "proper" 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. See Woodford, 548 U.S. at 90-103.

New York State has a three-step administrative review process. First, a grievance is submitted to the Inmate Grievance Resolution Committee ("IGRC") which reviews and investigates the formal complaint before issuing a written determination. See 7 N.Y.C.R.R. § 701.5(b). Second, an adverse decision by the IGRC may be appealed to the Superintendent of the Facility. See id. at § 701.5(c). Third, an adverse decision by the Superintendent may be appealed to Central Office Review Committee ("CORC"), which makes the final determination within the administrative review process. See id. at § 701.5(d). If all three of these levels of review are exhausted, then the prisoner may seek relief in federal court pursuant to section 1983. See Bridgeforth v. DSP Bartlett, 686 F.Supp.2d 238, 239 (W.D.N.Y. 2010) (citing Porter, 534 U.S. at 524); Singh v. Goord, 520 F.Supp.2d 487, 495-96 (S.D.N.Y. 2007) (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). When a plaintiff presents a claim arising "directly out of a disciplinary or administrative segregation hearing . . . (e.g., a claim of denial of procedural due process), he exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate grievance instead of or in addition to his ordinary appeal." Sweet v. Wende Corr. Facility, 514 F.Supp.2d 411, 413 (W.D.N.Y. 2007) (internal quotation and citations omitted); see also Davis v. Barrett, 576 F.3d 129, 131-32 (2d Cir. 2009).

To the extent a civil rights claim must be exhausted by the grievance process, completion of the three-tiered process, through and including a final decision by CORC, must be completed before an action asserting that claim may be initially filed. See, e.g., Casey v. Brockley, No. 9:13-CV-1271, 2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) ("Receiving a decision from CORC after commencing litigation does not satisfy PLRA's requirement that administrative remedies be exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must be dismissed without prejudice") (citing Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001), overruled on other grounds, Porter v. Nussle, 534 U.S. 516 (2002)); Rodriguez v. Rosner, No. 12-CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012). "[A] post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the time the action was commenced." Guillory v. Haywood, No. 9:13-CV-1564, 2015 WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing Neal, 267 F.3d at 122) (other citation omitted).

Although administrative remedies generally must be exhausted, a prisoner need not exhaust remedies if they are not "available." Ross v. Blake, ___ U.S. ___ 136 S.Ct. 1850, 1855 (2016). "First, an administrative remedy may be unavailable when `it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates.'" Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 136 S. Ct. at 1859). "Second, `an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.'" Id. (quoting Ross, 136 S. Ct. at 1859). "In other words, `some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.'" Id. at 123-24 (quoting Ross, 136 S. Ct. at 1859). "Third, an administrative remedy may be unavailable `when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'" Id. at 124 (quoting Ross, 136 S. Ct. at 1860).1

*3 In the present matter, the Court finds that Magistrate Judge Hummel correctly determined that Defendants' motion for summary judgment should be denied. As Magistrate Judge Hummel noted, Plaintiffs accusation that correction officers discarded his grievances, alone, does not excuse his failure to exhaust administrative remedies. In response to Defendants' motion, Plaintiff alleges that he was never properly instructed on how to file a grievance while at Watertown C.F. See Dkt. No. 41 at 2. Plaintiffs testimony at his deposition demonstrated that, although he had a basic knowledge of the grievance process, he never received a formal orientation regarding the grievance process, just a "quick breakdown." Dkt. No. 35-6 at 16-19. Although the record demonstrates that Plaintiff knew how to file a grievance, the true issue, as identified by Magistrate Judge Hummel, is the procedure Plaintiff was required to follow in his situation: how to complete the grievance process when a grievance (or two) goes unanswered. See id. at 87-88; Dkt. No. 41 at 2.

In Williams, the Second Circuit had to determine whether administrative remedies were "available" when the plaintiffs grievance was allegedly never filed and the plaintiff received no response. See Williams, 829 F.3d at 120-21. The Second Circuit concluded that the regulations do not clearly outline the process to appeal an unfiled and unanswered grievance. See id. at 124. As such, the Second Circuit held that "the grievance procedures that were technically available to [the plaintiff] are so opaque and confusing that they were, `practically speaking, incapable of use.'" Id. (quoting Ross, 136 S. Ct. at 1859).

Defendants' attempt to distinguish the Williams case from the present matter is unpersuasive. In Williams, the plaintiff, like Plaintiff Reid here, attempted to file a grievance while in the SHU. See Williams, 829 F.3d at 124. The plaintiff in Williams also contended that he gave his grievance to a correction officer to be filed, and that the correction officers likely threw away the grievance since the facility had no record of the grievance being filed. See id. Accepting the plaintiffs allegations, the court held that "[u]nder that circumstance, the regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies. On their face, the regulations only contemplate appeals of grievances that were actually filed." Id. The Second Circuit continues to note in detail the confusing nature of the timelines set forth in the DOCCS regulations governing the grievance procedure. See id. at 124-25.

Here, although Plaintiff clearly knew how to file a grievance while in the SHU, accepting Plaintiffs deposition testimony as true, it is clear that Plaintiff did not know how to proceed when he never received a response. Plaintiffs general knowledge of how to file a grievance was rendered useless if he was not properly informed how to proceed after not receiving a response. Plaintiffs situation was further complicated by the fact that the incident at issue occurred on May 10, 2015 and Plaintiff was transferred from Watertown C.F. on May 28, 2015. See Dkt. No. 35-3 at ¶¶ 10, 12. Indeed, in Williams, the Second Circuit noted that the "obscurity" of the regulations was further "compounded by the fact that Williams was transferred to another facility approximately two weeks after giving his grievance to the correction officer." Williams, 829 F.3d at 126. Moreover, Defendants did not put forth any evidence demonstrating that Plaintiff received information about how to pursue administrative remedies when a grievance is unfiled and unanswered. See Washington v. Westchester Cnty. Dep't of Corr., No. 13 Civ. 5322, 2014 WL 1778410, *4 (S.D.N.Y. Apr. 25, 2014).

In their objections, Defendants contend that allowing this result "would undermine the exhaustion requirement, as it would permit inmates to circumvent the exhaustion rules on the basis of the mere allegation of submitting a grievance, without supporting evidence." Dkt. No. 46 at 2 (emphasis in original). Defendants argue that such a result would render the exhaustion requirement meaningless, which was clearly not intended by the PLRA. See id. First, it is unclear what evidence Defendants expect Plaintiff to produce of his grievances that were allegedly discarded by corrections officers. Although Plaintiff would have ideally made a photocopy of his grievances for his own personal file, inmates in the SHU do not have regular access to the law library like inmates in the general population. Moreover, Plaintiffs position is supported by his deposition testimony, which is sufficient to withstand Defendants' motion for summary judgment. Finally, it is not the Court who has created this unfortunate situation. Rather, it is DOCCS' borderline incomprehensible regulation governing this situation that is to blame. In Williams, the Second Circuit informed DOCCS how this situation could be avoided going forward. Specifically, the Williams court stated as follows: "To avoid confusion going forward, we recommend that DOCCS revise its grievance procedures to instruct inmates how to appeal grievances that were not properly filed by prison staff, and how to appeal a grievance, to which the inmate never received a response, after being transferred." Williams, 829 F.3d at 126-27. As such, it is not the Court that has created this situation, but DOCCS itself.

*4 Accordingly, the Court finds that Magistrate Judge Hummel correctly determined that the Court should deny Defendants' motion for summary judgment.

Finally, in their objections, Defendants request that the Court schedule an evidentiary hearing in the event that their motion for summary judgment is denied. Since disputed factual issues as to exhaustion are to be decided by the Court and not a jury, the Court grants Defendants' request and will schedule an exhaustion hearing forthwith. See Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir. 2011).

III. CONCLUSION

After carefully considering the entire record in this matter, the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Magistrate Judge Hummel's January 19, 2017 Report-Recommendation and Order is ADOPTED in its entirety for the reasons set forth herein; and the Court further

ORDERS that Defendants' motion for summary judgment is DENIED; and the Court further

ORDERS that Defendants' request for an exhaustion hearing is GRANTED; and the Court further

ORDERS that the Clerk of the Court shall schedule an exhaustion hearing in consultation with the parties and the Court; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

All Citations

Not Reported in Fed. Supp., 2017 WL 1040420