09-4200-pr
Morales v. Dzurenda



                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation "summary order"). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the thirtieth day of June, two thousand and ten.


PRESENT:

          ROGER J. MINER ,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                               Circuit Judges.
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AGUSTIN MORALES,

                               Plaintiff-Appellant,

          v.                                                                               No. 09-4200-pr

JAMES DZURENDA, Warden, I/O, and PINTO , CO, I/O,

                               Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:                                       Agustin Morales, pro se, Newtown, CT.


FOR DEFENDANTS-APPELLEES:                                      Ann E. Lynch, Assistant Attorney General (Richard
                                                               Blumenthal, Attorney General, on the brief), Office of
                                                               the Attorney General, Hartford, CT.

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        Appeal from a September 8, 2009 judgment of the United States District Court for the
District of Connecticut (Christopher F. Droney, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Plaintiff-appellant Agustin Morales (“plaintiff” or “Morales”), pro se, appeals from a summary
judgment of the District Court entered in favor of defendants-appellees. The District Court granted
summary judgment on plaintiff’s claim brought pursuant to 42 U.S.C. § 1983 upon concluding that
plaintiff failed to exhaust his administrative remedies. We assume the parties’ familiarity with the
remaining factual and procedural history of the case.

        We review a district court’s grant of summary judgment de novo, construing the evidence in
the light most favorable to the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P., 

, 300 (2d Cir. 2003). We also review de novo a district court’s determination that a plaintiff failed
to exhaust administrative remedies under the Prison Litigation Reform Act (“PLRA”). See Johnson v.
Rowley, 

, 44 (2d Cir. 2009).

         The PLRA requires that prison inmates exhaust administrative remedies prior to seeking
relief in federal court. See 42 U.S.C. § 1997e(a). The Act 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).’” Hernandez v. Coffey, 

, 305 (2d Cir. 2009) (quoting Woodford v.
Ngo, 

, 90 (2006)). We have explained that failure to exhaust may be excused only where:
(1) administrative remedies were not in fact available; (2) prison officials have forfeited, or are
estopped from raising, the affirmative defense of non-exhaustion; or (3) “special circumstances . . .
justify the prisoner’s failure to comply with administrative procedural requirements.” Hemphill v.
New York, 

, 686 (2d Cir. 2004) (internal quotation marks omitted).

         Upon de novo review, we agree with the District Court that plaintiff failed properly to exhaust
his administrative remedies, and did not demonstrate special circumstances sufficient to excuse his
failure to exhaust. See 

affirm the judgment of the District Court substantially for
the reasons stated in its thorough and well-reasoned Ruling on Defendant’s Motion for Summary
Judgment. See App. 10-22 (Morales v. Dzurenda, No. 3:07-cv-1220, Docket Entry No. 37 (D. Conn.
Sept. 8, 2009)).




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                                        CONCLUSION

       We have considered all of plaintiff’s arguments and find them to be without merit. For the
foregoing reasons, the judgment of the District Court is AFFIRMED.


                                             FOR THE COURT,
                                             Catherine O’Hagan Wolfe, Clerk of Court




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