CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff
Presently pending is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed R. Civ. P.") 56(a). Dkt. No. 27. Plaintiff did not submit a response to defendants' motion. For the following reasons, it is recommended that defendants' motion be granted.
The facts are reviewed in the light most favorable to plaintiff as the non-moving party.
Plaintiff alleges that he was attacked five separate times while incarcerated. Dkt. No. 10 at 2-3. During these attacks, plaintiff alleges that he was cut on the face and ear, and repeatedly assaulted by other inmates. Dkt. No. 10 at 2. The first three attacks occurred in January, July, and October 2013, while he was housed at Clinton C.F. Dkt. No. 10 at 2. The fourth attack occurred in November 2013, while he was housed at Auburn C.F.
Plaintiff was attacked by two inmates in January 2013, while he was housed at Clinton C.F. Dkt. No. 10 at 3. One inmate cut plaintiff on the cheek and another inmate punched him in the face.
Plaintiff was attacked on a second occasion between July 28, 2013, and August 3, 2013, by members of the Bloods gang. Dkt. No. 10 at 4. One attacker cut plaintiff on the side of his face while two other attackers punched him in the face and upper body.
Plaintiff was attacked a third time in October 2013, by two members of the Bloods gang. Dkt. No. 10 at 4. Plaintiff was cut on his lip, ear, and hand by a razor, and then punched and slapped in the face.
Plaintiff alleges that he was attacked on November 20, 2013, while working out at Auburn C.F. Dkt. No. 10 at 4. One inmate attacked the plaintiff from behind and cut the left side of his face while another inmate punched and kicked him.
Plaintiff filed a grievance on November 28, 2013, stating that his property went missing after he returned to his cell after receiving medical treatment at the hospital. Parmiter Decl. Ex. A (Dkt. No. 27-5 at 11). Plaintiff alleges that he was told that his cell was packed by officers, but he never received the property.
The IGRC received a grievance from plaintiff on December 20, 2013, which requested that he be placed in the Assessment and Program Preparation Unit ("APPU"), a safe housing unit, due to his status as an informant, and prior attacks against him at Clinton C.F. Parmiter Decl. Ex. A (Dkt. No. 27-5 at 3, 14). The IGRC responded by informing plaintiff that a transfer to a safer housing unit was beyond the scope of its authority, and referred the grievance to the superintendent.
Plaintiff alleges that he was cut and punched by fellow inmates while using the gym at Elmira C.F. in January 2014. Dkt. No. 10 at 5. He states that no staff was present in the gym when the attack occurred.
Plaintiff claims that the defendants committed "malicious and deliberate[] indifferent misconduct" that violated his Eighth Amendment Rights. Dkt. No. 10 at 1. Defendants argue that plaintiff failed to exhaust his administrative remedies as required under 42 U.S.C. § 1997e(a), the Prison Litigation Reform Act ("PLRA"). Dkt. No. 27-9 at 3.
"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 to show the absence of disputed material facts by "citing to particular parts of materials in the record[.]" FED. R. CIV. P. 56 (c)(1)(A);
A non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts" to avoid summary judgment.
Where, as here, a party seeks judgment against a
Defendants contend that their motion for summary judgment must be granted because plaintiff failed to exhaust administrative remedies. Dkt. No. 27-9 at 9. The 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.
Although the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that "certain caveats apply."
Administrative remedies are unavailable when there are no procedural means that afford the possibility of relief for the action complained of.
Here, there is no 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 (2015). First, the inmate must file a complaint with an inmate grievance program ("IGP") clerk within twenty-one days of the alleged action.
Plaintiff claims that he was attacked on three occasions at Clinton C.F. Dkt. No. 10 at 2. In January 2013, plaintiff was cut on the cheek and punched in the face by two inmates.
After a diligent search of the inmate grievance records, no results were found for grievances filed by plaintiff regarding the attacks alleged in his complaint. Declaration of Christine Gregory ("Gregory Decl.") ¶ 6 (Dkt. No. 27-1); Declaration of Steven Racette ("Racette Decl.") ¶ 5 (Dkt. No. 27-2). Christine Gregory, a DOCCS Inmate Grievance Supervisor at Clinton C.F., searched the inmate grievance records maintained by the facility and did not find any grievances filed by plaintiff during his incarceration at Clinton C.F. Gregory Decl. ¶¶ 5-7. Steven Racette, superintendent of Clinton C.F. during plaintiff's incarceration, also conducted a diligent search for correspondence from plaintiff regarding the incidents alleged in this action. Racette Decl. ¶ 5. Racette's search failed to reveal any grievances or correspondence sent to him from plaintiff.
Plaintiff has failed to show that the grievance process was not available to him, that the defendants waived the defense of failure to exhaust, or that there were special circumstances that would justify his failure to comply with exhaustion requirements.
Accordingly, it is recommended that defendants' motion for summary judgment be granted on this ground, but that such dismissal be without prejudice.
Plaintiff claims that he was attacked on November 21 or 22, 2013, at Auburn C.F. Dkt. No. 10 at 4. The attack caused significant injury, necessitating treatment at a hospital.
Plaintiff completed the first step of the grievance process, but never appealed the IGRC response to the facility superintendent, or to CORC. Parmiter Decl. ¶ 9; N.Y. COMP. CODES. R. & REGS. tit. 7, § 701.5 (2015). Harold Graham, Superintendent of Auburn C.F., conducted a diligent search of his records, and found no correspondence from plaintiff. Declaration of Harold Graham ("Graham Decl.") ¶ 5 (Dkt. No. 27-6). The records maintained by DOCCS' Inmate Grievance Program show that plaintiff never appealed any grievance to CORC. Declaration of Jeffery Hale ("Hale Decl.") ¶ 11 (Dkt. No. 27-7). The exhaustion of administrative remedies must be fully completed prior to the filing of an action in federal court.
Moreover, with respect to this grievance, plaintiff does not allege that he failed to meet the exhaustion requirement due to administrative remedies being unavailable to him, nor does he allege that the defendant has waived the defense of failure to exhaust or acted in such a way as to estop him from raising such a defense.
Accordingly, it is recommended that defendants' motion for summary judgment be granted on this ground, but that such dismissal be without prejudice.
Plaintiff's second grievance, AUB-64028-13, filed on November 28, 2013, stated that while he was receiving treatment at a hospital after being attacked on November 20, 2013, the staff at Auburn C.F. lost his property. Parmiter Decl. Ex. A (Dkt. No. 27-5 at 11). The IGRC concluded that plaintiff's property could not be located and recommended that plaintiff file a claim for missing property.
With respect to this grievance, plaintiff does not allege that he failed to meet the exhaustion requirement due to administrative remedies being unavailable to him, nor does he allege that the defendant has waived the defense of failure to exhaust or acted in such a way as to estop him from raising such a defense.
Accordingly, it is recommended that defendants' motion for summary judgment be granted on this ground, but that such dismissal be without prejudice.
On December 20, 2013, plaintiff filed a grievance requesting that he be placed in the APPU because he believed that he was not safe in the general prison population due to his status as an informant, and because he had previously been attacked at Clinton C.F. Parmiter Decl. Ex. A (Dkt. No. 27-5 at 14). On January 24, 2014, the IGRC informed plaintiff that a transfer was beyond the scope of its authority, and referred the grievance to the superintendent.
The ordinary procedure of the IGRC is to send a superintendent's response to the inmate's current housing facility. Parmiter Decl. ¶ 18. However, where an inmate fails to receive a response within the specified time period, he or she can and must appeal to the next level of review.
With respect to this grievance, plaintiff does not allege that he failed to meet the exhaustion requirement due to administrative remedies being unavailable to him, nor does he allege that the defendant has waived the defense of failure to exhaust or acted in such a way as to estop him from raising such a defense.
Accordingly, it is recommended that defendants' motion for summary judgment be granted on this ground, but that such dismissal be without prejudice.
Plaintiff claims that he was cut and punched by fellow inmates in January 2014, while housed at Elmira C.F. Dkt. No. 10 at 5. William Abrunzo, a DOCCS Inmate Grievance Supervisor at Elmira C.F., stated that, after conducting a diligent search of the inmate grievance records, he found no grievances filed by plaintiff regarding the January 2014 attack. Declaration of William Abrunzo ("Abrunzo Decl.") ¶ 6 (Dkt. No. 27-3). Further, Paul Chappius, Superintendent of Elmira C.F., failed to find any correspondence from plaintiff regarding the alleged attack. Declaration of Paul Chappius ("Chappius Decl.") ¶ 5 (Dkt. No. 27-4).
Plaintiff does not allege that he failed to meet the exhaustion requirement due to administrative remedies being unavailable to him, nor does he allege that the defendant has waived the defense of failure to exhaust or acted in such a way as to estop him from raising such a defense.
Accordingly, it is recommended that defendants' motion for summary judgment be granted on this ground, but that such dismissal be without prejudice.
For the reasons stated above, it is hereby
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Nixon Peabody LLP, Daniel J. Hurteau, Esq., of Counsel, Albany, NY, for Plaintiff.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Laura A. Sprague, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
GLENN T. SUDDABY, District Judge.
The Prison Litigation Reform Act of 1995 ("PLRA") requires that prisoners who bring suit in federal court must first exhaust their available administrative remedies: "No action shall be brought with respect to prison conditions under § 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. The PLRA was enacted "to reduce the quantity and improve the quality of prisoner suits" by "afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In this regard, exhaustion serves two major purposes. First, it protects "administrative agency authority" by giving the agency "an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency's procedures." Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion promotes efficiency because (a) "[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court," and (b) "even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration." Woodford, 548 U.S. at 89.
Moreover, there is an expedited process for the review of complaints of inmate harassment or other misconduct by corrections officers or prison employees. 7 N.Y.C.R.R. § 701.8. In the event the inmate seeks expedited review, he or she may report the misconduct to the employee's supervisor. The inmate then files a grievance under the normal procedures outlined above, but all grievances alleging employee misconduct are given a grievance number, and sent immediately to the superintendent for review. Under the regulations, the superintendent or his designee shall determine immediately whether the allegations, if true, would state a "bona fide" case of harassment, and if so, shall initiate an investigation of the complaint, either "in-house," by the Inspector General's Office, or by the New York State Police Bureau of Criminal Investigations. An appeal of the adverse decision of the superintendent may be taken to the CORC as in the regular grievance procedure. A similar "special" procedure is provided for claims of discrimination against an inmate. 7 N.Y.C.R.R. § 701.9.
It is important to note that these procedural requirements contain several safeguards. For example, if an inmate could not file such a complaint within the required time period after the alleged occurrence, he or she could apply to the facility's IGP Supervisor for an exception to the time limit based on mitigating circumstances. If that application was denied, the inmate could file a complaint complaining that the application was wrongfully denied.
It is also important to note that DOCCS has a separate and distinct administrative appeal process for inmate misbehavior hearings:
"An individual decision or disposition of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered nongrievable." 7 N.Y.C.R.R. § 701.3(e)(1). Similarly, "an individual decision or disposition resulting from a disciplinary proceeding . . . is not grievable." 7 N.Y.C.R.R. § 701.3(e)(2). However, "[t]he policies, rules, and procedures of any program or procedure, including those above, are grievable." 7 N.Y.C.R.R. § 701.3(e)(3); see also N.Y. Dep't Corr. Serv. Directive No. 4040.
Generally, if a prisoner has failed to properly follow each of the required three steps of the above-described grievance procedure prior to commencing litigation, he has failed to exhaust his administrative remedies, and his claims are subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534 U.S. at 524; Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d Cir.2006). However, a plaintiff's failure to exhaust does not end the inquiry. The Second Circuit has held that a three-part inquiry is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686, 691 (2d Cir.2004), accord, Ruggiero, 467 F.3d at 175. First, "the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact `available' to the prisoner." Hemphill, 380 F.3d at 686 (citation omitted). Second, if those remedies were available, "the court should . . . inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it . . . or whether the defendants' own actions inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiffs failure to exhaust as a defense." Id. [citations omitted]. Third, if the remedies were available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, "the Court should consider whether `special circumstances' have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements." Id. [citations and internal quotations omitted].
Finally, two additional points bear mentioning regarding exhaustion hearings. First, the Second Circuit has ruled that a plaintiff in a lawsuit governed by PLRA is not entitled to a jury trial on disputed factual issues relating to his exhaustion of administrative remedies; rather, PLRA exhaustion is a matter of judicial administration. Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir.2011). Second, given that non-exhaustion is an affirmative defense, the defendant bears the burden of showing that a prisoner has failed to exhaust his available administrative remedies.
After carefully considering the evidence submitted at the exhaustion hearing, the Court finds that Plaintiff did not file a grievance regarding the assault alleged in this action, despite the fact that administrative remedies were available to Plaintiff during the time in question. The Court makes this finding for the following five reasons.
Second, Defendants have adduced admissible evidence establishing that, during the time in question, an inmate grievance program was in existence at Upstate Correctional Facility ("Upstate C.F."). (Hrg. Tr. at 5-11, 24; Hrg. Exs. D-1, D-2, D-4.)
Third, Defendants have adduced admissible evidence establishing that, during the time in question, Plaintiff was advised of Directive 4040 each time he was received at a correctional facility, had access to Directive 4040, and was aware of the inmate grievance program at Upstate C.F. (Hrg. Tr. at 41-42, 48-49, 54-55, 60-61, 63, 71-72; Hrg. Exs. D-3, D-4.) For example, Plaintiff filed grievances at Upstate C.F. on March 20, 2009, and April 1, 2009. (Hrg. Ex. D-3; Hrg. Tr. at 71-72.) Similarly, Plaintiff had filed grievances at another correctional facility on August 29, 2006, October 13, 2006, January 19, 2007, and February 18, 2009. (Hrg. Ex. D-3; Hrg. Tr. at 30-32, 54, 73.) Moreover, in his Verified Second Amended Complaint, Plaintiff swore that, during the time in question, he was aware of (1) the need to file a grievance, and (2) the office at Upstate C.F. to which to submit that grievance. (Dkt. No. 8, at ¶¶ 51-58.)
Fourth, Defendants have adduced admissible evidence establishing that the inmate grievance program at Upstate C.F. was working during the time in question. (Hrg. Tr. at 11-12, 38-41, 43-45; Hrg. Ex. D-2.) For example, on March 20, 2009, and April 1, 2009, Plaintiff filed grievances at Upstate C.F., which he subsequently pursued all the way to CORC. (Hrg. Ex. D-3; Hrg. Tr. at 71-72.) Indeed, between July 5, 2009, and July 20, 2009, forty-one other staff misconduct grievances were successfully filed at Upstate C.F. (Hrg. Ex. D-2; Hrg. Tr. at 11-12.)
Fifth, the Court finds the relevant portions of Plaintiff's hearing testimony (i.e., that he mailed grievances to the grievance office on July 6, 2009, July 16, 2009, and July 19, 2009, which were lost or destroyed during mailing or processing) to be incredible due to various admissions, omissions and/or inconsistencies in that testimony, and his demeanor during his testimony. (Hrg. Exs. P-1, P-2, P-3; Hrg. Tr. at 3-22, 47-80.)
After carefully considering the evidence submitted at the exhaustion hearing, the Court finds that Defendants did not forfeit the affirmative defense of non-exhaustion by failing to raise or preserve it, or that Defendants are estopped from raising the defense by taking actions that inhibited Plaintiff's exhaustion of remedies.
With regard to the forfeiture issue, Defendant's Amended Answer asserted this affirmative defense, and Plaintiff's counsel made no argument regarding forfeiture at the hearing. (Dkt. No. 50, at ¶ 18; see generally Hr. Tr. 80-87.)
The Court notes that a contrary interpretation of the second part of the Second Circuit's three-part exhaustion inquiry would turn the ancient doctrine of estoppel on its head, transforming it-in Orwellian fashion-into one of "vicarious estoppel." See Black's Law Dictionary at 629 (9th ed) (defining "estoppel" as "[a] bar that prevents one from asserting a claim or right that contradicts what one has said or done before. . . ."). Moreover, such an invention would be wholly unnecessary: the vicarious conduct sought to be protected against is already protected against by the "special circumstances" inquiry established by the Second Circuit.
Finally, while it may be argued that such an interpretation of the doctrine of estoppel is nonetheless appropriate because the purpose of the PLRA is to enable the institution to resolve disputes efficiently rather than protect the individual,
After carefully considering the issue, the Court finds that there exists no special circumstances justifying Plaintiff's failure to comply with the administrative procedural requirements. Construed with the utmost of special leniency, Plaintiff's hearing testimony, and his counsel's cross-examination of Defendants' witness, raise the specter of four excuses for not having exhausted his available administrative remedies before he filed this action on December 9, 2009:(1) Plaintiff reasonably misunderstood the grievance process to permit him to appeal the non-processing of his grievances directly to CORC on July 28, 2009; (2) Plaintiff's letter of August 30, 2009, to the Superintendent of Elmira Correctional Facility ("Elmira C.F.") notifying him that Plaintiff "would like to have [his] appeal sent to" CORC completed the exhaustion process; (3) Plaintiff's contact with the Inspector General's Office in September of 2009 completed the exhaustion process; and (4) Plaintiff's initial exchange of correspondence with the office of the Superintendent of Upstate C.F. between July 5, 2009, and July 12, 2009, satisfied the pre-appeal exhaustion process.
With regard to Plaintiff's second excuse (i.e., that his letter of August 30, 2009, to the Superintendent of Elmira C.F. completed the exhaustion process), the Court finds that this excuse does not suffice for three alternative reasons: (a) the subject of the letter of August 30, 2009—i.e., the underlying grievance of August 10, 2009, which was submitted to the inmate grievance office at Upstate C.F.-was untimely and never accepted for filing by the grievance office at Upstate C.F.; (b) the rejection of the underlying grievance of August 10, 2009, at Upstate C.F. needed to be appealed to the Superintendent of Upstate C.F., not to the Superintendent of Elmira C.F.; and (c) Plaintiff never received a denial of his letter of August 30, 2009, nor filed an appeal from any such denial with CORC. (Hrg. Exs. P-6, P-8, P-9; Hrg. Tr. at 23-80.) With regard to the first reason, the Court notes, if exhaustion could be accomplished simply through appealing the denial of a request for leave to file an untimely grievance, then the time deadlines contained in the exhaustion process would lose all meaning. See Smith v. Kelly, 06-CV-0505, Decision and Order, at 21 (N.D.N.Y. filed Oct. 30, 2013) (Suddaby, J.) ("It would eviscerate the exhaustion requirement to deem an inmate to have exhausted his available administrative remedies where he files a grievance four-and-a-half years late . . ., then skips the superintendent and appeals the rejection of his grievance (based on untimeliness) to CORC, which never passes on the merits of his grievance. If exhaustion were permissible under such circumstances, every inmate could exhaust his available administrative remedies without fulfilling the functions of the exhaustion requirement. . . ."). As the Supreme Court explained, "We are confident that the PLRA did not create such a toothless scheme." See Woodford v. Ngo, 548 U.S. 81, 95 (2006) (reversing Ninth Circuit decision holding that prisoner had exhausted his administrative remedies under the PLRA because none remained available to him after his grievance was rejected as untimely by state prison officials).
With regard to Plaintiff's fourth excuse (i.e., that his initial exchange of correspondence with Upstate C.F. Superintendent in early July 2009 initiated the exhaustion process), the Court finds that this excuse does not suffice for three alternative reasons: (1) an inmate's direct correspondence with the superintendent, bypassing the inmate grievance office, is not a grievance under the governing regulations (nor did that correspondence even contain a copy of his grievance);
For all these reasons, the Court finds that Plaintiff's four proffered excuses—whether considered individually or together—do not constitute special circumstances justifying his failure to exhaust his available administrative remedies before filing this action. A procedure was available for Plaintiff to grieve the assault alleged in this action; and that procedure was made known to him; however, for whatever reason, he simply failed to follow it. Under the circumstances, the sound purposes of the exhaustion requirement (see, supra, Part I of this Decision and Order) have been thwarted.
Wayne Hargrove, Ossining, NY, pro se.
Alexander V. Sansone, Troy & Troy, Lake Ronkonkoma, NY, Joseph Carney, Mineola, NY, for Defendants.
TRAGER, J.
On August 27, 2004,
Upon entering NCCF, new prisoners must first go through medical intake. Aff. of Kim Edwards, ("Edwards Aff.") ¶ 3. This standard process usually takes seventy-two hours. Edwards Aff. ¶ 4. During medical intake, NCCF tests inmates for TB. Aff. of Getachew Feleke ("Feleke Aff.") ¶ 3. NCCF generally uses a PPD test to detect latent TB. Feleke Aff. ¶ 3. However, if an inmate has previously tested positive for TB, it is NCCF's policy to test for TB using an x-ray instead.
On March 15, 2002, Hargrove was incarcerated at NCCF. NHCC Defs.' 56.1 Statement ¶ 1. Before entering the general population, Hargrove was processed through medical intake. NHCC Defs.' 56.1 Statement ¶ 2. The NCCF Medical Intake Chart for Hargrove, dated March 15, 2002 ("3/15/02 Chart"), shows that Hargrove informed medical staff that he had previously been exposed to tuberculosis. NHCC Defs.' Notice of Mot., Ex. C, at 1; NHCC Defs.' 56.1 Statement ¶ 2. The 3/15/02 Chart also shows that Hargrove reported testing positive to a prior PPD test and that he had been treated for TB in 2000. NHCC Defs.' Notice of Mot., Ex. C, at 1. Hargrove alleges that he was exposed to and treated for TB in 1997. Hargrove's Aff. in Opp. to Mot. for Summary Judgment, ("Aff. in Opp."), Ex. A at 1-2. Defendants contend that Hargrove was given an x-ray during the medical intake process because of his reported positive PPD test, and that the x-ray was negative, showing no active TB infection. NHCC Defs.' 56.1 Statement ¶ 2; Edwards Aff. ¶ 3. Without specifying a date, Hargrove generally states that his "request to be x-rayed was denied." Aff. in Opp. at 3.
The following year, in June of 2004, Hargrove was scheduled to be retested. Edwards Aff. ¶ 6; NHCC Defs.' 56.1 Statement ¶ 5. Because of the contradiction between the negative May 2003 PPD test and his reported positive history, NCCF contacted the Infectious Disease Department of the Nassau County Medical Center. Edwards Aff. ¶ 6. It was suggested that Hargrove be given a two-step PPD test, administered fifteen days apart. Feleke Aff. ¶ 4; Edwards Aff. ¶ 6. Hargrove was given these two PPD skin tests in June 2004. Edwards Aff. ¶ 6; NHCC Defs.' 56.1 Statement ¶ 5. Again, Hargrove alleges that these tests were administered against his will and under threat of being placed in quarantine. Complaint, Exs. A, B; Aff. in Opp., Ex. A.
On December 3, 2004, Hargrove was seen by a physician's assistant. NHCC Defs.' 56.1 Statement ¶ 6. During this meeting, Hargrove complained of a dry cough and that the site on his forearm where the June 2004 PPD tests had been administered was red and swollen. NHCC Defs.' 56.1 Statement ¶ 6; 11/28/04 Sick Call Request.
Hargrove's December 18, 2004 chart notes a positive PPD test and an order was placed in the chart that Hargrove not be submitted for future PPD tests. Edwards Aff. ¶ 7; NHCC Defs.' 56.1 Statement ¶ 8. See also 11/19/2004 Grievance.
Hargrove alleges that the following physical ailments were caused by the PPD tests: chronic coughing, high blood pressure, chronic back pain, lung infection, dizzy spells, blurred vision and a permanent scar on both his forearms. Complaint, Ex. C; Aff. in Opp. at 3-4.
NCCF has had an inmate grievance program ("IGP") in place since 2001. Aff. of Kenneth Williams, ("Williams Aff."), at 2. NCCF's IGP is carried out in conformance with the New York State Commission of Corrections Minimum Standards and Regulations for Management of County Jails and Penitentiaries ("Minimum Standards"). Id.
The IGP is designed to resolve complaints and grievances that an inmate may have regarding the inmate's care and treatment while incarcerated at NCCF. Williams Aff. at 2. Upon entering NCCF, all inmates receive a copy of the NCCF inmate handbook, which outlines the IGP. Id.
The first step requires an inmate to submit his grievance form
In support of his allegations that he continuously informed defendants that he had been exposed to TB and, therefore, should not have been given PPD tests, Hargrove submitted three letters with his complaint, two of which were addressed to the Inmate Grievance Committee and one of which was addressed to "To whom this may concern." Complaint, Exs. A-C. He also submitted five complaint letters written to Sheriff Reilly, seventeen sick call requests and nine grievance forms during discovery and with his Affidavit in Opposition to Defendants' Motion for Summary Judgment, explaining that some of the medical records and notarized letters were "missing." Aff. in Opp, Ex. A at 2. Defendants call the authenticity of most of these documents into question, contending that Hargrove never submitted any grievance form or complaint letter before he filed his complaint. County Defs.' Mem. of Law at 16-21; County Defs.' 56.1 Statement at ¶¶ B2, C3, D3.
Kenneth Williams, an investigator at NCCF in the Inmate Grievance Unit, testified that he reviewed all of the grievance forms, complaint letters and sick call requests annexed to Hargrove's Complaint and to Hargrove's Affidavit in Opposition to Defendants' Motion for Summary Judgment. Williams Aff. at 2. Williams testified that he examined the grievance records at NCCF and searched "for any grievances by plaintiff/inmate Hargrove" and found "only two."
Turning to the complaint letters addressed to Reilly, many contain notary stamps cut from the bottom of unrelated documents and photocopied onto the bottom of the complaint letters. See County Defs.' Mem. of Law at 18-21. C.O. Thomas McDevitt and C.O. Paul Klein, both of whom perform notary services for prisoners at NCCF, have submitted sworn affidavits, stating that they kept individual Notary Log Books covering all dates relevant to this litigation. Aff. of C.O. Klein, ("Klein Aff."), at 1; Aff. of C.O. McDevitt, ("McDevitt Aff."), at 1. McDevitt's Notary Log Book shows that he notarized only one document for Hargrove. This document, dated May 13, 2002, was a motion related to Hargrove's criminal trial. McDevitt Aff. at 1-2. Hargrove signed the Notary Log Book acknowledging receipt of that notarized motion. McDevitt Aff. at 2. McDevitt states that he never notarized any other documents for Hargrove. McDevitt Aff. at 2. However, McDevitt's stamp and signature dated May 13, 2002 (the date of the legitimate notarization) appear on Hargrove's letter to Sheriff Reilly dated May 10, 2002. County Defs.' Not. of Motion, Ex. A.
These facts repeat themselves in regard to the documents bearing the notary stamp and signature of Klein. Klein had performed several legitimate notarizations for Hargrove in connection to Hargrove's criminal trial. Klein Aff. at 1-2. Hargrove signed Klein's Notary Log Book acknowledging receipt of those notarized documents. Klein Aff. at 2. However, Klein states that he never notarized any of Hargrove's letters addressed to Sheriff Reilly that bear Klein's stamp and signature. Klein Aff. at 2. On all of the documents that Hargrove submitted bearing Klein's stamp and signature, the dates and signatures of Klein match identically to the dates on which he had performed legitimate notarizations for Hargrove in connection with his criminal trial. Defendants argue it is clear that the documents bearing the stamps and signatures of McDevitt and Klein were not actually notarized by these notaries. County Defs.' Mem. of Law at 17-22.
A motion for summary judgment is granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A court ruling on a summary judgment motion must construe the facts in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Williams v. Metropolitan Detention Center, 418 F.Supp.2d 96, 100 (E.D.N.Y.2005). Defendants, the moving party in this action, bear the burden of demonstrating the absence of a genuine issue of material fact. Baisch v. Gallina, 346 F.3d 366, 371 (2d Cir.2003).
As Hargrove is proceeding pro se, his complaint must be reviewed carefully and liberally, and be interpreted to "raise the strongest argument it suggests," Green v. United States, 260 F.3d 78, 83 (2d Cir.2001), particularly when civil rights violations are alleged, see, e.g., McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). Plaintiff's complaint does not specify the legal theories upon which it relies, but, in construing his complaint to raise its strongest arguments, it will be interpreted to raise claims under 42 U.S.C. § 1983. See, e.g., Dufort v. Burgos, No. 04-CV-4940, 2005 WL 2660384, at *2 (E.D.N.Y. Oct. 18, 2005) (liberally construing plaintiff's complaint, which failed to specify the legal theory or theories upon which it rested, as, inter alia, a claim under 42 U.S.C. § 1983); Williams, 418 F.Supp.2d at 100 (same).
The PLRA was intended to "reduce the quantity and improve the quality of prisoner suits." Woodford v. Ngo, ___ U.S. ___, 126 S.Ct. 2378, 2387 (2006) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). It seeks to eliminate unwarranted interference with the administration of prisons by federal courts, and thus "`affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Woodford, 126 S.Ct. at 2387 (quoting Porter, 534 U.S. at 525). See also Booth v. Churner, 532 U.S. 731, 739 (2001). Formal grievance procedures allow prison officials to reconsider their policies, implement the necessary corrections and discipline prison officials who fail to follow existing policy. See Ruggiero v. County of Orange, 467 F.3d 170, 177-78 (2d Cir.2006).
The PLRA's "invigorated" exhaustion provision, 42 U.S.C. § 1997e(a), provides the mechanism to reduce the quantity and improve the quality of prisoners' suits by requiring that prison officials have the opportunity to address prisoner complaints through internal processes before allowing a case to proceed in federal court. Woodford, 126 S.Ct. at 2382 (citing Porter, 534 U.S. at 524). Section 1997e(a) provides that:
42 U.S.C. § 1997e(a).
The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983. Woodford, 126 S.Ct. at 2383; Ruggiero, 467 F.3d at 174; Williams, 418 F.Supp.2d at 100-01. The exhaustion provision is applicable to suits seeking relief, such as money damages, that may not be available in prison administrative proceedings, as long as other forms of relief are obtainable through administrative channels. Giano v. Goord, 380 F.3d 670, 675 (2d Cir.2004); see also Woodford, 126 S.Ct. at 2382-83 ("[A] prisoner must now exhaust administrative remedies even where the relief sought-monetary damages-cannot be granted by the administrative process.") (citing Booth, 532 U.S. at 734).
In June 2006, the Supreme Court held that the PLRA requires "proper exhaustion" before a case may proceed in federal court. Woodford, 126 S.Ct. at 2387. "Proper exhaustion" requires a prisoner to use "`all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Ruggiero, 467 F.3d at 176 (citing Woodford, 126 S.Ct. at 2385 (emphasis in original)). Although the level of detail necessary to properly exhaust a prison's grievance process will vary from system to system, Jones v. Bock, 127 S.Ct. 910, 2007 WL 135890, at *12 (Jan. 22, 2007), "proper exhaustion" under the PLRA "`demands compliance with [that] agency's deadlines and other critical procedural rules.'" Ruggiero, 467 F.3d at 176 (quoting Woodford, 126 S.Ct. at 2386). Thus, the PLRA's exhaustion requirement is not satisfied by "untimely or otherwise procedurally defective attempts to secure administrative remedies." Ruggiero, 467 F.3d at 176 (citing Woodford, 126 S.Ct. at 2382).
Section 1997e(a) of the PLRA applies to Hargrove's complaint; Hargrove was and continues to be confined in a correctional facility, see Berry v. Kerik, 366 F.3d 85, 87 (2d Cir.2004), and Hargrove's claim is about a "prison condition" within the meaning of the PLRA, see Williams, 418 F.Supp.2d at 101. See also Sloane v. W. Mazzuca, No. 04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) (recognizing PLRA's application to complaint alleging retaliation by prison officials for plaintiff's refusal to consent to a PPD test). Accordingly, the merits of Hargrove's Section 1983 claims can only be addressed if it is first determined that Hargrove properly exhausted each claim under Section 1997e(a) of the PLRA before filing his complaint in federal court.
Furthermore, even if the falsified grievance forms Hargrove submitted in support of his claim are considered authentic, they are still untimely. The diagnostic TB tests (whether x-ray or PPD tests) were given to Hargrove on March 15, 2002, May 24, 2003 and in June of 2004, but the grievance forms Hargrove submitted complaining of unwanted PPD tests are dated April 19, 2002, April 28, 2002, April 20, 2003, April 28, 2003 and November 19, 2004. None of these grievances were filed "within five days of the of the date of the act or occurrence giving rise to the grievance." Williams Aff. at 3. There is no evidence in the record suggesting that NCCF's IGP allows for a tolling of the five-day time limit in which to file a grievance.
While the letters to Reilly and sick call requests show that Hargrove attempted to bring his complaints about the PPD testing to the attention of the prison staff, see, e.g., Aff. in Opp., Exs. A-D, NCCF's IGP requires use of formal grievance forms. Thus, writing complaint letters and submitting sick call requests did not properly exhaust NCCF's available administrative remedies. See, e.g., Hernandez v. Coffey, No. 99-CV-11615, 2006 WL 2109465, at *4 (S.D.N.Y. July 26, 2006) (holding letters did not satisfy plaintiff's exhaustion obligation); Williams, 418 F.Supp.2d at 101 (holding that because plaintiff's efforts to convey his medical condition through letters and conversations with the warden and medical staff did "not include the required steps of the PLRA's administrative remedy process," plaintiff failed to exhaust); Mills v. Garvin, No. 99-CV-6032, 2001 U.S. Dist. LEXIS 3333, at *8 (S.D.N.Y. Mar. 2, 2001) ("letter writing is not the equivalent of an exhaustion of administrative remedies under the PLRA").
As Hargrove failed to properly exhaust his administrative remedies, this action is precluded by 42 U.S.C. § 1997e(a) unless Hargrove can establish excuse for his failure to exhaust.
The first step in the Hemphill inquiry requires a court to determine whether administrative remedies were available to the prisoner. Hemphill, 380 F.3d at 686. The test for assessing availability is an "objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available." Id. at 688 (internal quotation marks omitted). In making this determination, "courts should be careful to look at the applicable set of grievance procedures." Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir.2004). Exhaustion may be considered unavailable in situations where plaintiff is unaware of the grievance procedures or did not understand it, Ruggiero, 467 F.3d at 179, or where defendants' behavior prevents plaintiff from seeking administrative remedies,
Here, Hargrove has not claimed that NCCF's administrative grievance procedure was unavailable to him. In fact, Hargrove demonstrated his access to and knowledge of NCCF's IGP by filing proper grievances on November 19, 2004 and on May 10, 2005. Hargrove did not dispute any part of Investigator Williams's affidavit detailing the IGP and its availability to inmates since 2001. Specifically, Hargrove did not dispute, upon entering the facility, that he received a copy of the inmate handbook outlining the IGP. He has not claimed that he is unfamiliar with or unaware of NCCF's IGP. Hargrove has not alleged that prison officials failed to advance his grievances
The second step of the inquiry asks whether defendants are estopped from raising exhaustion as a defense. Specifically, "whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Hemphill, 380 F.3d at 686 (internal citations omitted).
Here, Hargrove has not made any statements that would permit a finding that defendants should be estopped from raising the affirmative defense of exhaustion or that defendants waived the right to raise the defense. Defendants first raised the PLRA's exhaustion requirement as an affirmative defense in their respective answers. See County Defs.' Am. Answer at 3; NHCC Defs.' Answer at 1. County Defendants raised it again in their motion for summary judgment. See County Defs.' Mem of Law at 15-23. Thus, defendants are not estopped from raising the affirmative defense now. See, e.g., Sloane, 2006 WL 3096031, at *8 (exhaustion defense not waived where defendants first raised it in their motion to dismiss).
Additionally, defendants have not threatened Hargrove or engaged in other conduct preventing him from exhausting the available administrative remedies. Cf. Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir.2004) (holding defendants were estopped from asserting non-exhaustion because of prison officials' beatings, threats and other conduct inhibiting the inmate from filing proper grievances); Feliciano v. Goord, No. 97-CV-263, 1998 WL 436358, at *2 (S.D.N.Y. July 27, 1998) (holding defendants were estopped from asserting non-exhaustion where prison officials refused to provide inmate with grievance forms, assured him that the incidents would be investigated by staff as a prerequisite to filing a grievance, and provided prisoner with no information about results of investigation). Hargrove has not argued otherwise. See Ruggiero, 467 F.3d at 178 (holding defendants were not estopped from asserting a failure to exhaust defense where plaintiff pointed to no affirmative act by prison officials that would have prevented him from pursing administrative remedies); Sloane, 2006 WL 3096031, at *8 (finding no estoppel where plaintiff did not argue that defendants prevented him from pursuing the available administrative remedies); Hernandez, 2006 WL 2109465, at *4 (finding no estoppel where plaintiff did not argue that any threats or intimidation prevented him from pursuing his appeals). Thus, for the same reasons that administrative remedies were not deemed unavailable to Hargrove, defendants are not estopped from raising a failure to exhaust defense.
Hargrove has not sufficiently rebutted the defendants' assertion of failure to exhaust, and a liberal reading of his submissions does not reveal any grounds to excuse that failure.
Because Hargrove filed a complaint in federal court before filing a grievance, permitting his unexhausted and unexcused claim to proceed would undercut one of the goals of the exhaustion doctrine by allowing NCCF to be haled into federal court without the "opportunity to correct its own mistakes with respect to the programs it administers." Woodford, 126 S.Ct. at 2385. See also Ruggiero, 467 F.3d at 178 (citing Porter, 534 U.S. at 525). Thus, his complaint must be dismissed.
In general, dismissal without prejudice is appropriate where plaintiff has failed to exhaust but the time permitted for pursuing administrative remedies has not expired. Berry v. Kerik, 366 F.3d 85, 87 (2d Cir.2004). Dismissal with prejudice is appropriate where "administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust." Berry, 366 F.3d at 88. Here, Hargrove's administrative remedies were available to him during his entire period of confinement at NCCF. He remained incarcerated in NCCF throughout the time period in which he alleges the PPD tests were given. He could have exhausted remedies for his grievances at any time. Therefore, Hargrove had ample opportunity to seek administrative remedies but failed to do so. Because there is no evidence in the record that administrative remedies are still available to Hargrove, as the five-day time period had run, and because Hargrove has alleged no special circumstances justifying his failure to exhaust, his complaint is accordingly dismissed with prejudice. Berry, 366 F.3d at 88 (upholding dismissal with prejudice where plaintiff had no justification for his failure to pursue administrative remedies while they were available.)
After carefully reviewing the allegedly fraudulent documents, it must be concluded that Hargrove consciously falsified these documents. See, e.g., Shangold, 2006 WL 71672, at *1, *3 (finding clear and convincing evidence of fraud where plaintiffs fabricated a timeline and plot outlines to advance their claims); McMunn, 191 F.Supp.2d at 446 (finding clear and convincing evidence of fraud where plaintiff edited audio tapes and represented that they were unedited during discovery). The notaries performing services for prisoners at NCCF testify that they never notarized many of the documents supplied by Hargrove. See Klein Aff.; McDevitt Aff. Furthermore, a visual examination of the documents themselves makes it clear that many of the documents submitted by Hargrove are forgeries.
In considering what sanction to impose, courts consider the following five factors: (i) whether the misconduct was the product of intentional bad faith; (ii) whether and to what extent the misconduct prejudiced the plaintiffs; (iii) whether there was a pattern of misbehavior rather than an isolated instance; (iv) whether and when the misconduct was corrected; and (v) whether further misconduct is likely to occur in the future. Scholastic, Inc. v. Stouffer, 221 F.Supp.2d 425, 444 (S.D.N.Y.2002) (citing McMunn, 191 F.Supp.2d at 461).
Here, Hargrove's deception was not an isolated instance; he fabricated the dates on many grievance forms, in addition to improperly duplicating notary stamps on complaint letters to make them look authentic. Klein Aff. at 2; McDevitt Aff. at 2; County Defs.' 56.1 Statement ¶¶ C3, D3. He submitted these forgeries to defendants during discovery and again as exhibits to his Affidavit in Opposition to Defendant's Motion for Summary Judgment. A severe sanction is warranted as Hargrove's forgeries were intentional, he never corrected them once their authenticity was challenged and he continues to insist on their veracity. Aff. in Opp. at 1-4. Given that there is clear and convincing evidence that Hargrove has continuously and consciously perpetrated a fraud on the court through his submission of fraudulent documents and sworn affirmations of those documents' authenticity, dismissal with prejudice is especially appropriate. See, e.g., Shangold, 2006 WL 71672, at *5 (dismissing with prejudice where plaintiffs fabricated evidence to advance their claims); Scholastic, 221 F.Supp.2d at 439-444 (dismissing with prejudice where plaintiff produced seven pieces of falsified evidence); McMunn, 191 F.Supp.2d at 445 (dismissing with prejudice where plaintiff "lie[d] to the court and his adversary intentionally, repeatedly, and about issues that are central to the truth-finding process").
SO ORDERED.
Joseph Mauldin, Buffalo, NY, pro se.
William A. Long, Jr., Buffalo, NY, for Defendants.
RICHARD J. ARCARA, District Judge.
The Court has reviewed the Report and Recommendation, and the record in the case, and no objections having been timely filed, it is hereby
The Clerk of Court shall take all steps necessary to close the case.
H. KENNETH SCHROEDER, JR., United States Magistrate Judge.
This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. # 8.
Currently before the Court is defendants' motion for summary judgment for failure to exhaust administrative remedies as required by the Prisoner's Litigation Reform Act ("PLRA"). Dkt. # 43. For the following reasons, it is recommended that defendants' motion be granted.
In an Incident Report dated September 28, 2010, Michael Kiff, a Corrections Officer at the Niagara County Jail, reported the following:
Dkt. # 50-1, p. 2.
At the disciplinary hearing, plaintiff pled guilty to the following rule violations:
which is found altered or stored in excess and was found guilty of:
Dkt. # 50-1, p. 4. Plaintiff was sentenced to 40 days administrative segregation with loss of privileges. Dkt. # 50-1, p. 4.
Inmate Grievance Coordinator ("IGC"), Kevin Payne affirms that he received a grievance from plaintiff during the first week of October, 2010 in which plaintiff alleged that he was assaulted by C.O. Kiff during a cell search on September 28, 2010. Dkt. # 47-1, ¶ 21; See Dkt. # 49-1, p. 6. Before logging the grievance, IGC Payne spoke with plaintiff, who informed IGC Payne
Dkt. # 47-1, ¶ 28. When IGC Payne informed plaintiff that he was agreeable to such a resolution, IGC Payne affirms that plaintiff "took physical possession of the grievance form." Dkt. # 47-1, ¶ 29. As a result, the grievance was never logged or assigned a number. Dkt. # 47-1, ¶ 30.
Plaintiff filed Grievance # 10-187 on October 25, 2010. Dkt. # 47-1, ¶ 14. This grievance states:
Dkt. # 49-1, p. 2; See Dkt. # 44-1, pp. 11-12.
IGC Payne met with C.O. Kiff and plaintiff regarding Grievance # 10-187 on October 26, 2010. Dkt. # 49-1, p. 4; See Dkt. # 44-1, pp. 11-12. With respect to the allegation regarding the cell search, C.O. Kiff referred IGC Payne to his incident report dated September 28, 2010. Dkt. # 49-1, p. 4. With respect to the remaining allegations, C.O. Kiff stated:
Dkt. # 49-1, p. 3; See Dkt. # 47-1, ¶ 15. Plaintiff did not appeal this determination. Dkt. # 47-1, ¶ 15.
Plaintiff commenced this action on February 7, 2011, pursuant to 42 U.S.C. § 1983, alleging that during the course of a search of his cell at the Niagara County Jail, where plaintiff was being held as a pre-trial detainee in the custody of the United States Marshals Service, C.O Kiff removed photographs from the door of plaintiff's cell in a rough and potentially destructive fashion, prompting plaintiff to complain. Dkt. #2, ¶ 6. In response to his complaints, plaintiff alleges that C.O. Kiff exited plaintiff's cell "and in the presence of CO Newman
At his deposition, plaintiff acknowledged receipt of an Inmate Handbook setting forth the rules at the Niagara County Jail, as well as the grievance procedure for resolving disputes. Dkt. # 44-1, pp. 9-10. Plaintiff acknowledged prior grievances which he appealed, as well as prior grievances which he did not appeal. Dkt. # 44-1, p. 19. With respect to the September 28, 2010 incident, plaintiff denied any agreement to resolve his grievance in exchange for being able to give his possessions to other inmates. Dkt. # 44-1, p. 15. Specifically, plaintiff testified:
Dkt. # 44-1, p. 15. Plaintiff denied taking the grievance and was unaware of what happened with it. Dkt. # 44-1, p. 16.
Notwithstanding notification by counsel for the defendants as required under Irby v. N.Y. City Transit Auth., 262 F.3d 412, 414 (2d Cir.2001), concerning the requirements of Rule 56 of the Federal Rules of Civil Procedure and the perils of failing to respond to a motion for summary judgment, including that such failure may result in the granting of judgment in favor of defendants (Dkt. # 52), plaintiff has not filed a response to the instant motion.
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving parry." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).
Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a `metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982 (internal citations omitted). A party seeking to defeat a motion for summary judgment
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).
The PLRA states: "No action shall be brought with respect to prison conditions under section 1983 of this title, 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). In Porter v. Nussle, the Supreme Court held that exhaustion of administrative remedies in 1997(e) cases is mandatory
The PLRA's exhaustion requirement may be excused when: (1) administrative remedies are not available to the prisoner; (2) defendants have either waived the defense of failure to exhaust or acted in such a way as to estop them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement. Ruggerio v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) In Amador v. Andres, however, the Court of Appeals for the Second Circuit questioned, without deciding, the continued viability of the doctrines of estoppel and special circumstances following Woodward v. Ngo. 655 F.3d 89, 102 (2d Cir.2011).
The administrative remedies available to county jail inmates require the submission of a grievance to the Inmate Grievance Coordinator ("IGC"), within five days of the occurrence. 9 N.Y.C.R.R. § 7032.4(d). Within five business days of the receipt of a grievance, the IGC is required to issue a written determination to the inmate, who has two business days to appeal the determination to the Chief Jail Administrator ("CJA"). 9 N.Y.C.R.R. § 7032.4(I)-(j). The CJA is required to issue a written determination on the appeal to the plaintiff within five business days of the filing of the appeal. 9 N.Y.C.R.R. § 7032.4(k). The inmate may appeal the CJA's determination to the State Commission of Correction, Citizen's Policy & Complaint Review Council, within three business days of the denial of the grievance. 9 N.Y.C.R.R. § 7032.5(a). "All levels of the grievance procedure must be exhausted before an inmate may commence litigation." Price v. Engert, 589 F.Supp.2d 240, 245 (W.D.N.Y.2008).
Notwithstanding the contradiction between plaintiff's statement in the October 25, 2010 grievance that his complaint relating to the September 28, 2010 assault was resolved and his subsequent deposition testimony that he was unaware of what happened to that complaint (Dkt. # 49-1, p. 2), it is undisputed that plaintiff failed to complete the grievance process outlined in the Inmate Handbook regarding either complaint despite his knowledge and prior use of the grievance process. Dkt. # 44-1, pp. 9-10 & 19. Defendants raised plaintiff's failure to exhaust administrative remedies as an affirmative defense in their Answer (Dkt. # 12, p. 8), and plaintiff has proffered no response to raise any question of fact as to the unavailability of administrative procedures or any special circumstance which may have prevented him from properly exhausting his claim. Accordingly, it is recommended that defendants' motion to dismiss the complaint for failure to properly exhaust his administrative remedies as required by the PLRA be granted.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. § 636(b) (1) that:
This Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72(b).
The district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988).
The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72(b) may result in the District Judge's refusal to consider the objection.
The Clerk is hereby directed to send a copy of this Report, Recommendation and Order to the attorneys for the parties.
Michael McCray, Bronx, NY, pro se.
Hon. Andrew M. Cuomo, Attorney General for the State of New York, Justin C. Levin, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
NORMAN A. MORDUE, Chief Judge.
After careful review of all of the papers herein, including the Magistrate Judge's Report-Recommendation, and no objections submitted thereto, it is
ORDERED that:
1. The Report-Recommendation is hereby adopted in its entirety.
2. The defendants' motion for judgment on the pleadings is converted to one for summary judgment (docket no. 42), that motion is granted and judgment is granted to all defendants as to all claims.
3. The Clerk of the Court shall serve a copy of this Order upon all parties and the Magistrate Judge assigned to this case.
DAVID R. HOMER, United States Magistrate Judge.
Plaintiff pro se Michael McCray ("McCray"), formerly an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, five DOCS employees, violated his constitutional rights under the Eighth Amendment. Am. Compl. (Docket No. 7). Presently pending is defendants' motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).Docket No. 42.
McCray did not oppose defendants' motion. "Summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). Defendants provided such notice in their Notice of Motion here. Docket No. 42-1-1. Despite this notice, McCray failed to respond.
On July 26, 2005, McCray was assaulted by five or six inmates while incarcerated at Greene Correctional Facility. Am.Compl. 6. Defendant Bendall, a corrections officer, observed the confrontation, left his post to go to the bathroom while the altercation progressed, and returned to find McCray suffering from serious injuries. Id. Bendall called defendant Basen, another corrections officer, to assist him with transporting McCray out of the area. Id. Once McCray was outside the cell area, defendant Smith, a corrections sergeant, and two other unnamed officers handcuffed McCray before Bendall and Basen began slamming McCray's face into a brick wall as Smith looked on. Id. 6. This assault resulted in a broken jaw, facial disfigurement, chronic pain, dizziness, disorientation, lightheadedness, blind spots, headaches, depression, and emotional distress. Id.
DOCS records reflect the following. From July 14 until August 26, 2005, there is "no record or other indication that Mr. McCray filed any grievances regarding the allegations described in [his complaint] . . . In fact, there is no record or other indication that Mr. McCray filed any grievances, or letters of complaint, while at Greene. Janiec Decl. (Docket No. 42-5) ¶¶ 5. Additionally, McCray failed to appeal any grievances related to the present matter to CORC while he was incarcerated. Bellamy Decl. (Docket No. 42-4 at 1-2); Docket No. 42-4 at 3. From October 2005, when McCray filed his first grievance appeal until September 2009, McCray filed fifty-two appeals to CORC. Docket No. 42-4 at 3.
In his amended complaint, McCray alleges that Bendall and Basen used excessive force against him and that Bendall and Smith failed to intervene to protect him in violation of his Eighth Amendment rights. Defendants move for judgment on McCray's failure to exhaust his administrative remedies.
At the close of the pleadings, a request for dismissal for failure to state a claim may be brought as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). See generally Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir.1983)). "The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998); Burke v. New York, 25 F.Supp.2d 97, 99 (N.D.N.Y.1998) (Munson, J.). On a motion under Rule 12(c), a determination must be made based solely on the allegations of the complaint and answer and any documents necessarily incorporated therein by reference. See Ccleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir.2006).
Defendants have submitted various documents outside the pleadings in support of their motion. Those documents have been considered by the Court. Thus, defendants' motion must be converted to one for summary judgment. Cleveland, 448 F.3d at 521 ("A court may indeed convert a motion for judgment on the pleadings into a motion for summary judgment if matters outside the pleadings are presented to and not excluded by the court.") (internal quotation marks and citation omitted).
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).
When, as here, a party seeks dismissal or summary judgment against a pro se litigant, a court must afford the nonmovant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that `when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.
Under 42 U.S.C. § 1997e(a), an inmate must exhaust all administrative remedies prior to bringing any suits challenging prison conditions, including federal civil rights cases. Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 126 S.Ct. 2378, 2382-83 (2006). This exhaustion requirement applies to all prison condition claims. Porter, 534 U.S. at 532. "[A]ny deprivation that does not affect the fact or duration of a prisoner's overall confinement is necessarily a condition of that confinement." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999). The exhaustion requirement also applies even if the administrative grievance process does not provide for all the relief requested by the inmate. Nussle, 534 U.S. at 524.
While the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that "certain caveats apply." Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) (citing Giano v. Goord, 380 F.3d 670, 677 (2d Cir.2004)). Exhaustion for an inmate in DOCS custody is generally achieved through the IGP. See N.Y. Comp.Codes R. & Regs. tit. 7, § 701.1 et seq. (2001). However, when inmates fail to follow the IGP, a court must conduct a three-part inquiry to determine if such failure is fatal to their claims. A court must consider whether
Administrative remedies are unavailable when there is no "possibility of [] relief for the action complained of." Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.2004) (citing Booth v. Churner, 532 U.S. 731, 738 (2001)). The test to determine the availability of an administrative remedy is an objective one asking whether "a similarly situated individual of ordinary firmness" would have deemed it accessible. Id. at 688. Courts have found unavailability "where plaintiff is unaware of the grievance procedures or did not understand it or where defendants' behavior prevents plaintiff from seeking administrative remedies." Hargrove v. Riley, No. CV-04-4587 (DST), 2007 WL 389003, at *8 (E.D.N.Y.2007) (internal citations omitted).
Here, McCray was undeniably familiar with the grievance program and its appeals procedures having filed multiple grievances and fifty-five appeals. Docket No. 42-4 at 3. McCray began filing appeals shortly after the incident at issue in this case. McCray acknowledges his understanding of the grievance process. but claims here that he attempted to file a grievance not at Greene where the incident occurred but to DOCS officials at headquarters in Albany. There is no dispute, however, that McCray failed to appeal the denial of his grievances as required by the IGP. This failure is fatal to his claim. See Boddie v. Bradley, 228 Fed. Appx. 5, 1 (2d Cir.2006).
McCray contends, however, that his injuries prevented him from submitting timely grievances and appeals. However, there is nothing in the record that indicates that McCray's alleged injuries rendered him unable to write, request paper, utilize the inmate library, or seek assistance from the inmate law clerks and librarian during the time he was convalescing at Greene. Since the record is devoid of any allegations or indications excusing his failure to exhaust his administrative remedies, the exception for inability to file or appeal a grievance is inapplicable. Accordingly, McCray has failed to comply with the mandatory exhaustion requirements under the PLRA.
Therefore, defendants' motion for summary judgment should be granted.
For the reasons stated above, it is hereby
BUCHWALD, District J.
Fishkill is operated by the New York State Department of Correctional Services ("Department of Correctional Services"). The Division of Correctional Industries ("Corcraft") is the manufacturing division of the Department of Correctional Services. While incarcerated at Fishkill, plaintiffs were employed in Fishkill's industry paint shop, which is a Corcraft facility.
Plaintiffs allege that during the course of their employment at the paint shop they were exposed to dangerous substances, were not provided with adequate training on handling those substances, and were not provided appropriate safety equipment. Plaintiffs further allege that as a result of these conditions, they suffered from sinus problems, bouts of dizziness, chest pains, various respiratory and cardiovascular disorders, and an increased risk of developing future respiratory and cardiac complications.
Plaintiffs Jose Santos and Pete Thomas exhausted their administrative remedies by appealing their grievances all the way up to the Central Office Review Committee of the Department of Correctional Services. Defendants' Statement of Material Fact ("Defendants' Statement"), ¶¶ 52-54.
Plaintiff Beasly maintains that he was on his way to file a grievance concerning inadequate safety equipment at the paint shop when he encountered an Officer Geronimo, from whom he requested a pass he would need to take his grievance to the appropriate office for filing.
Plaintiff Anthony Jackson alleges that he filed a grievance concerning paint shop conditions at the Fishkill grievance office, and that when this grievance was denied, he appealed, first to the Superintendent of Fishkill, and then to the Central Office Review Committee. Jackson Declaration ("Jackson Decl."), ¶¶ 6-14. However, Defendants dispute these facts. Defendants' Reply Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Reply Memo."), 6-7.
Defendants base their summary judgment motion on failure to exhaust. They grant that Mr. Santos and Mr. Thomas have exhausted their administrative remedies in compliance with the Act. Def. Reply Memo. at 1 n. 1. However, they assert that Mr. Beasly and Mr. Jackson have not. Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Memo. of Law"), 3.
Summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing the record, we must assess "the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." Frito-Lay, Inc. v. LTV Steel Co. (In re Chateuagay Corp.), 10 F.3d 944, 957 (2d Cir.1993). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248 (internal quotation marks omitted).
We deal with plaintiff Beasly first. Though he does not contend that he physically filed, he does assert that there is a triable issue of fact as to whether the normal administrative remedies of the Department of Correctional Services were "available" to him under the Act. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Memo. of Law"), 10-11. Specifically, Mr. Beasly contends that on or about March of 2000, he filled out a grievance form, attempted to file it, and was met by Officer Geronimo and Sergeant McCarroll who, when he requested a pass to allow him to file the form, told him there was no need to file such a form. Beasly Decl. at ¶¶ 4-8.
We note that defendants have as yet offered no evidence concerning whether Officer Geronimo or Sergeant McCarroll has any recollection of the events described by Mr. Beasley, and if so, what that recollection is. We believe that on the record presented, a reasonable fact-finder could conclude that Mr. Beasley's actions represented a reasonable attempt to file, and that the prison officials prevented Mr. Beasly from doing so.
Mr. Jackson, however, maintains that he actually filed a grievance and exhausted the process. Defendants contend otherwise. Mr. Jackson states he has a specific recollection of having appeared before a grievance panel some time in or about April of 1999 for a hearing of approximately twenty minutes. Jackson Decl. at 8-9. Upon losing the hearing, he says he mailed an appeal the same day. Id. at 9-10. Mr. Jackson claims that when that appeal was denied, he mailed on the next day the final appeal required under the grievance procedures, an appeal to the Central Office of the Department of Correctional Services. Id. at 11-12. That appeal, he says, was denied. Id. at 13.
In response, defendants submit a declaration by Thomas Eagen, Director of the Inmate Grievance Program for the Department of Correctional Services. Mr. Eagen states: "After review of my records, I can establish that. . . Anthony Jackson . . . did not file a grievance regarding working conditions at the Fishkill paint shop." Declaration of Thomas J. Eagen ("Eagen Decl."), ¶ 4.
The Eagen declaration, upon which defendants would have this Court grant them summary judgment, is totally conclusory. It does not even describe the search that was done, whether any search was conducted beyond the program's computerized records, or describe all the places where records of Mr. Jackson's grievance could be found. There is no indication that records of adjudicating officials were checked. Nor is there any information on record retention policies. For example, once filed and adjudicated, what happens to grievance records? How long are records of grievances maintained?
IT IS SO ORDERED.
