19-650
Hayes v. Dahkle

                         United States Court of Appeals
                             For the Second Circuit

                                            August Term 2019

                                      Argued: February 27, 2020
                                       Decided: October 5, 2020

                                                 No. 19-650



                                             TAHEEN HAYES,
                                            Plaintiff-Appellant,

                                                       v.

    T. DAHLKE, CORRECTION OFFICER, COXSACKIE CORRECTIONAL FACILITY, DANIEL F.
    MARTUSCELLO, SUPERINTENDENT, COXSACKIE CORRECTIONAL FACILITY, RAYMOND
     SHANLEY, DEPUTY OF SECURITY, COXSACKIE CORRECTIONAL FACILITY, JASON A.
     MEIER, CORRECTION OFFICER, COXSACKIE CORRECTIONAL FACILITY, GREGORY E.
    LANGTRY, CORRECTION OFFICER, COXSACKIE CORRECTIONAL FACILITY, STEPHEN A.
     BENCE, E. COON, CORRECTION OFFICER, COXSACKIE CORRECTIONAL FACILITY, K.
      HOFFMAN, J. IARUSSO, O.R.C./INMATE COUNSELOR, COXSACKIE CORRECTIONAL
                                     FACILITY,
                                Defendants-Appellees. *



                           Appeal from the United States District Court
                             for the Northern District of New York
                            No. 16-cv-1368, Thomas J. McAvoy, Judge.


*   The Clerk of the Court is directed to amend the caption as set forth above.
Before: LIVINGSTON, Chief Judge, SULLIVAN, AND NARDINI, Circuit Judges.
       Plaintiff-Appellant Taheen Hayes, a New York State inmate, alleges that
Defendants-Appellants, all employees of the New York Department of Corrections
and Community Supervision (“DOCCS”), violated his constitutional rights under
the First and Eighth Amendments when they sexually assaulted him and retaliated
against him for filing grievances. The district court granted summary judgment
to Defendants based, in part, on its conclusion that Hayes failed to exhaust
administrative remedies as required by the Prison Litigation Reform Act
(“PLRA”). See 42 U.S.C. § 1997e(a). We disagree, and hold that where, as here, an
inmate follows the steps prescribed by the DOCCS Inmate Grievance Procedure
but prison officials do not respond to the inmate’s final appeal within the time
allotted under the regulations, he has exhausted administrative remedies under
the PLRA. We nonetheless agree with the district court that many – but not all –
of Hayes’s claims fail on the merits. Accordingly, we AFFIRM in part and
REVERSE in part.

                               DAVID SHAPIRO, Northwestern Pritzker School
                               of Law Bluhm Legal Clinic, Chicago, Illinois
                               (Hillary Chutter-Ames, Business and Professional
                               People for the Public Interest, Chicago, Illinois, on
                               the brief), for Plaintiff-Appellant Taheen Hayes.
                               JONATHAN D. HITSOUS, Assistant Solicitor
                               General (Barbara D. Underwood, Solicitor
                               General, Andrea Oser, Deputy Solicitor General,
                               on the brief), for Letitia James, Attorney General of
                               the State of New York, Albany, New York, for
                               Defendants-Appellees T. Dahlke, Daniel F.
                               Martuscello, Raymond Shanley, Jason A. Meier,
                               Gregory E. Langtry, Stephen A. Bence, E. Coon, K.
                               Hoffman, J. Iarusso.
                               Robert Matthew Quackenbush, The Legal Aid
                               Society, New York, NY, for Amicus Curiae The
                               Legal Aid Society.
                                        James M. Bogin, Prisoners’ Legal Services of New
                                        York, Albany, NY, Michael E. Cassidy, Prisoners’
                                        Legal Services of New York, Plattsburgh, NY, for
                                        Amicus Curiae Prisoners’ Legal Services of New
                                        York.
RICHARD J. SULLIVAN, Circuit Judge:

        This case presents an issue of first impression under the Prison Litigation

Reform Act (“PLRA”) – namely, whether an inmate who has adequately

completed every step of the New York State Department of Corrections and

Community Supervision (“DOCCS”) Inmate Grievance Procedure must wait

indefinitely for prison officials to respond to his final appeal before he may

commence suit in federal court. 1

        On November 17, 2016, Plaintiff-Appellant Taheen Hayes, an inmate in

New York State’s Coxsackie Correctional Facility (“Coxsackie”), filed a complaint

under 42 U.S.C. § 1983 alleging that Defendants-Appellees – Superintendent

Daniel F. Martuscello, Correction Officer (“C.O.”) T. Dahlke, C.O. Jason A. Meier,

C.O. Gregory E. Langtry, C.O. Stephen A. Bence, C.O. E. Coon, C.O. K. Hoffman,

Deputy Superintendent of Security Raymond Shanley, and Officer Rehabilitation

Counselor James Iarusso – violated his constitutional rights under the First and



1This case was heard in tandem with Dickinson v. York, No. 18-2781, which is being resolved in a separate
summary order filed simultaneously with this opinion.


                                                   3
Eighth Amendments. Hayes alleged that Dahlke sexually molested him during a

pat frisk conducted before a routine cell search, and that, after Hayes filed a

grievance about the incident, prison officials repeatedly retaliated against him,

leading him to file additional grievances regarding their retaliatory conduct.

Hayes followed the administrative procedures outlined by the DOCCS Inmate

Grievance Procedure, but the Central Office Review Committee (“CORC”) did not

respond within the 30 days provided by the regulations. Hayes filed suit in the

United States District Court for the Northern District of New York while his

appeals were pending before the CORC. The district court (McAvoy, J.) granted

summary judgment in favor of Defendants-Appellees.

      On appeal, Hayes argues that the district court erred in dismissing several

of his claims on the grounds that he failed to exhaust administrative remedies. We

agree, and hold that Hayes exhausted his administrative remedies when he

followed the prison’s procedures but the CORC failed to respond to his appeal

within the mandatory timeline prescribed by the regulations. We nonetheless

agree with the district court that many of Hayes’s claims fail on the merits.

Accordingly, we REVERSE the district court’s judgment as to Hayes’s First

Amendment retaliation claims against Hoffman and Meier, and his Eighth




                                        4
Amendment excessive force claims against Meier, Langtry and Dahlke, but

AFFIRM the district court’s judgment as to the remaining claims.

                                             I. BACKGROUND

                      A. New York State’s Inmate Grievance Program

        DOCCS regulations outline the procedures that apply to the Inmate

Grievance Program at Coxsackie. First, the inmate must generally file a grievance

with the Inmate Grievance Resolution Committee (“IGRC”) within 21 days of the

incident. N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit. 7 § 701.5(a)(1), (b). The

IGRC must render a decision within 18 days of receipt.

If the IGRC renders an adverse decision, the inmate has seven days from receipt

to appeal to the superintendent of the facility, who then has 20 days to respond.

the superintendent renders an adverse decision, the inmate has

seven days to appeal to the CORC.

CORC, in turn, “shall

review each appeal [and] render a decision on the grievance . . . within 30 calendar

days from the time the appeal was received.”

3In the text of the NYCRR, this provision appears below the actual 701.5(d)(2) as a second 701.5(d)(2),
followed by 701.5(d)(4). We recognize this as a scrivener’s error and refer to the second 701.5(d)(2) as
701.5(d)(3) for clarity. See, e.g., Girard v. Chuttey, No. 18-2997, 

, at *2 (2d Cir. Sept. 10,
2020).


                                                        5
       Under the regulations, both the inmate and prison officials may request an

extension of any of the time limits outlined in the Inmate Grievance Procedure.

extension requests from the officials will only be granted “with the

written consent of the grievant.”

such extension, matters

not decided within the time limits may be appealed to the next step.”

sexual abuse, however, need not follow this three-step

procedure. Instead, DOCCS regulations provide that an allegation concerning an

incident of sexual abuse or sexual harassment “shall be deemed exhausted if

official documentation confirms that” the inmate reported the incident “to facility

staff.”

Facts

       Hayes, who has been in DOCCS custody since 2003, was imprisoned at

Coxsackie in 2016, when the events forming the basis of this appeal occurred. In

total, this appeal concerns six claims: an Eighth Amendment sexual assault claim

against T. Dahlke (“Claim One”); First Amendment retaliation claims against K.

Hoffman (“Claim Two”), Daniel F. Martuscello (“Claim Three”), James Iarusso

(“Claim Four”), and Jason A. Meier (“Claim Five”); and an Eighth Amendment




                                         6
excessive force claim against Meier and Gregory E. Langtry (“Claim Six”). 4 We

recite the facts pertaining to each claim, construing the evidence in the light most

favorable to Hayes and resolving all factual ambiguities in his favor. See Cioffi v.

Averill Park Cent. Sch. Dist. Bd. of Educ., 

, 162 (2d Cir. 2006).

        This case stems from a pat frisk that occurred on April 15, 2016, during

which Hayes contends that Dahlke sexually molested him. That day, Dahlke

conducted a routine search of Hayes’s cell, which had been scheduled pursuant to

a DOCCS policy encouraging correction officers to search each inmate’s cell at

least once every sixty days. When searching an inmate’s cell, an officer must pat

frisk the inmate, which is “a search by hand of an inmate’s person . . . while the

inmate is clothed.” J. App’x 308. Prison regulations state that, while “[c]ontact

through the clothing with the genitalia, groin, . . . inner thigh, and buttocks is a

necessary component of a thorough pat frisk[,] . . . staff must avoid any

penetration of the anal or genital opening through the clothing” and “must not lift

or otherwise manipulate the genitalia during a pat frisk.”

the district court, Hayes brought several other claims, including a supervisory liability claim against
Raymond Shanley and Eighth Amendment excessive force claims against Stephen Bence and E. Coon.
Hayes does not press those claims on appeal.


                                                    7
      Hayes contends that during this pat frisk, which lasted five to eight minutes

and was always through his clothing, Dahlke “had his lower body (genitals)

pressed up against [Hayes’s] butt and tightly pressed his hands down [Hayes’s]

back and into the crack of his butt (inside) all the way down and around his groin.”

J. App’x 382–83 (internal quotation marks and alterations omitted). He testified

during his deposition that Dahlke “lifted up and was going around” his testicles.

J. App’x 255.    Although he affirmed that Dahlke did not make any sexual

comments to him during the pat frisk, Hayes interpreted it as sexual because “of

the closeness and the amount of time it took.”

discover any

contraband on Hayes and proceeded to search his cell, during which time Hayes

contends that Dahlke asked him questions like, “do you consider yourself a male

or female?” and “do you suck dick or fuck men?” J. App’x 383 (alterations

omitted). Later that day, and again the following day, Hayes contacted the Prison

Rape Elimination Act (“PREA”) hotline to report the incident. He also reported

the incident to Superintendent Martuscello, and soon thereafter filed a written

grievance against Dahlke with the facility’s staff.

      Hayes alleges that he suffered from a pattern of abuse and retaliation after

reporting the incident. First, he contends that one month after Dahlke’s alleged




                                          8
sexual assault, another correction officer, Hoffman, filed a false misbehavior report

stating that he heard Hayes yelling to another inmate, “call the PREA Hotline, tell

them that the officer touch your dick during a pat[ ]frisk, it works all the time, I do

it, trust me.” J. App’x 261. According to Hayes’s complaint, Hoffman’s report

falsely stated that he told Hayes to stop yelling, and that Hayes responded that he

would file a grievance against him as well.

      On May 16, 2016, as a result of the report, Hayes was placed in “keeplock,”

a form of solitary confinement, pending a disciplinary hearing. Hayes told Meier,

who worked at keeplock, that he was there because of the false report, and Meier

responded by calling him a “fucking liar.” J. App’x 45, 275. Later that day, Meier

observed Hayes’s keeplock interview with a nurse. During the interview, the

nurse asked if Hayes had been sexually assaulted before being transferred to

keeplock. Although the nurse only meant assaults within 72 hours of the transfer,

Hayes responded yes, referring to the April incident with Dahlke. According to

Hayes, Meier then “went crazy,” and yelled, “Oh, you want to fucking play these

games. Okay. All right. You want to play these fucking games. You fucking

faggots get us fired.” J. App’x 276, 46. After the nurse left, Hayes alleges that




                                          9
Meier yelled in Hayes’s face that he would “fuck [him] up right now.” J. App’x

46–47, 276.

       As it turned out, Hayes only stayed in keeplock for one day. His continued

protest of the handling of his grievance landed him in the Special Housing Unit

(“SHU”), where he remained for about a month. After he was released, Hayes

submitted a grievance alleging that Hoffman filed a false misbehavior report

against him. A few days later, Hoffman approached Hayes, telling him that he

would be “out of here soon,” and that “you mess with one of us, you got to mess

with all of us.” J. App’x 51, 264. Another time, according to Hayes, Hoffman told

him, “I just seen the captain about your grievance, you won’t fucking quit

complaining[,] right[?]” J. App’x 52. Hoffman then added, “Dahlke said hi!”

was later expunged, although the record does not reflect

why.

       As Hayes tells it, following his release from SHU, he also experienced

retaliation from Superintendent Martuscello. Hayes alleges that Superintendent

Martuscello called him into his office, and asked if he was going to write additional

grievances against staff members. When Hayes told Martuscello that various

correction officers had retaliated against him, Martuscello allegedly replied,




                                         10
“[W]hat do you expect to happen[?]” and “[M]aybe you should stop writing,

[since] you know what happen[s] when you write, right[?]”           J. App’x 283.

Martuscello then told Hayes that prison staff are “going to have a problem” with

an inmate who writes grievances.

Hayes that he

was facing deferred SHU time for a prior disciplinary infraction, which Hayes

interpreted as a threat “that if [he] continue[d] to” pursue his grievances,

Martuscello would “put [him] back in [the] special housing unit.” J. App’x 50, 385.

This conversation prompted Hayes to file a grievance against the superintendent.

       According to Hayes, he then faced additional retaliation after meeting with

Iarusso, a counselor in the grievance office. Hayes alleged that Iarusso told him

that “maybe if [he] stop[ped] filing grievances then maybe all of this would go

away.” J. App’x 52. When Hayes told Iarusso that he “had a constitutional right

to redress . . . and shouldn’t have to be subjected to retaliation because of it[,]

Iarusso laughed and responded[,] ‘You must [not] know how Coxsackie runs.’”

later, Hayes went before the IGRC regarding an unrelated

grievance and again asked about the grievance he had filed against

Superintendent Martuscello. He contends that during this hearing, Iarusso, a

member of the IGRC, responded that he had discarded the grievance and that he




                                        11
would never personally file a grievance against the superintendent. Hayes then

filed another grievance, reporting Iarusso’s conduct during the IGRC hearing.

      Hayes alleges that, five days later, the retaliation escalated when Meier and

Langtry attacked and beat him. He reports that, while escorting him back to

keeplock, Meier opened the door to the housing area and said something that

included the word “faggot.” J. App’x 265. He alleges that Meier then attacked

him from behind and slammed him to the ground, causing him to lose

consciousness. Meier then repeatedly punched Hayes, at which point Langtry

joined in and began kicking him as well. Hayes was taken to the hospital, where

he was given five stitches to his right eye and was treated for blurred vision, loss

of consciousness, and lower back pain. About a week later, Hayes filed a grievance

against Meier and Langtry for retaliation and excessive force.

                             C. Procedural History

      Hayes filed a single complaint in federal court on November 17, 2016, which

addressed his numerous grievances. There is no dispute that Hayes followed the

grievance procedures for each, and that all of his grievance appeals – except his

sexual assault allegation against Dahlke – were still pending before the CORC as

of November 17th. For each of the grievances (except the grievance against




                                         12
Superintendent Martuscello), Hayes filed suit more than 30 days after the CORC

received the appeal. With respect to the grievance against the superintendent,

however, Hayes filed suit only 27 days after the CORC received the appeal. The

CORC would eventually deny each grievance – five to seven months after receipt,

well after the commencement of Hayes’s district court case.

      In federal court, Defendants first moved to dismiss Hayes’s claims for

failure to state a claim, which the district court granted in part and denied in part.

Hayes does not challenge any part of that ruling on appeal. Defendants later

moved for summary judgment on the remaining claims. The district court referred

the motion to a magistrate judge, and subsequently adopted the magistrate judge’s

report and recommendation (1) granting summary judgment for Dahlke because

his conduct was not “of the kind” that violated the Eighth Amendment, J. App’x

407; (2) dismissing the First Amendment retaliation claims against Hoffman,

Superintendent Martuscello, and Iarusso for non-exhaustion, and alternatively

dismissing them on the merits; and (3) dismissing the assault claims against Meier

and Langtry for non-exhaustion but not addressing the merits. Hayes filed a

timely notice of appeal.




                                         13
                  II. JURISDICTION AND STANDARD OF REVIEW

      We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review

the district court’s grant of summary judgment de novo. Williams v. Corr. Officer

Priatno, 

, 121–22 (2d Cir. 2016). Under Rule 56(a) of the Federal Rules

of Civil Procedure, summary judgment should be granted “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). In granting summary

judgment, the court is “required to view the evidence in the light most favorable

to the party opposing summary judgment [and] to draw all reasonable inferences

in favor of that party.” Weyant v. Okst, 

, 854 (2d Cir. 1996).

      Nevertheless, to show a genuine dispute, the nonmoving party must

provide “hard evidence,” D’Amico v. City of New York, 

, 149 (2d Cir.

1998), “from which a reasonable inference in [its] favor may be drawn.” Binder &

Binder PC v. Barnhart, 

, 148 (2d Cir. 2007) (internal quotation marks

omitted). “Conclusory allegations, conjecture, and speculation,” Kerzer v. Kingly

Mfg., 

, 400 (2d Cir. 1998), as well as the existence of a mere “scintilla

of evidence in support of the [nonmoving party’s] position,” Anderson v. Liberty




                                         14
Lobby, Inc., 

, 252 (1986), are insufficient to create a genuinely disputed

fact.

                                           III. DISCUSSION

        On appeal, Hayes argues that the district court erred by (1) dismissing each

of his claims, except for his Eighth Amendment sexual assault claim, for failure to

exhaust since he filed suit before the CORC, the final administrative review body,

had issued a decision on his grievance; (2) dismissing, in the alternative, Claims

Two through Five on the merits; and (3) granting summary judgment on Claim

One – his Eighth Amendment sexual assault claim – on the merits. 5 We address

each argument in turn.

        A. An Inmate Exhausts Administrative Remedies When He Follows the
           Entire Procedure but the CORC Fails to Respond Within the 30-Day
                                       Deadline

        The PLRA requires an inmate to exhaust all “available” administrative

remedies before bringing a federal civil rights action. 42 U.S.C. § 1997e(a). “[I]t is

the prison’s requirements, and not the PLRA, that define the boundaries of proper

exhaustion.” Jones v. Bock, 

, 218 (2007). “[A]side from the ‘significant’




5Defendants do not dispute that Hayes exhausted his administrative remedies on his Eighth Amendment
sexual abuse claim. Soon after the initial pat frisk, Hayes reported the incident in a number of ways,
including filing a grievance, which constituted ”official documentation” to “facility staff” – all that is
required to exhaust a sexual abuse claim under the regulations. See NYCRR tit. 7 § 701.3(i).


                                                   15
textual qualifier that ‘the remedies must indeed be “available” to the prisoner,’

there are ‘no limits on an inmate’s obligation to exhaust . . . .’” 

(quoting Ross v. Blake, 

, 1856 (2016)). An administrative

procedure is “unavailable” when (1) “it operates as a simple dead end – with

officers unable or consistently unwilling to provide any relief to aggrieved

inmates;” (2) the scheme is “so opaque that it becomes, practically speaking,

incapable of use,” meaning that “some mechanism exists to provide relief, but no

ordinary prisoner can discern or navigate it;” or (3) “when prison administrators

thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” 

–60.

      Hayes contends that a prisoner exhausts administrative remedies when he

completes every required step of the grievance procedure yet the CORC – the last

appellate body within the administrative scheme – fails to respond within the 30-

day time limit prescribed by the regulations. In the alternative, he argues that the

CORC’s delay rendered further remedies “unavailable” under Ross. Defendants

concede that Hayes has followed each step of the grievance procedure in a timely

manner, but contend that he was required to wait until the CORC rendered a

decision before filing suit, even if more than 30 days had elapsed since the CORC




                                         16
received the appeal.                Defendants maintain that “[t]o properly exhaust

administrative remedies, an inmate must not only appeal to the CORC, but receive

a decision,” Defendants’ Br. at 28, and that remedies are only “unavailable” if the

CORC does not respond within a “reasonable” amount of time. Defendants’ Br.

at 32.

         We have not yet addressed in an authoritative opinion whether an inmate

must wait for a response from prison officials to exhaust administrative remedies.

Defendants contend that our decision in Neal v. Goord, 

(2d Cir. 2001),

abrogated on other grounds by Porter v. Nussle, 

(2002), supports the

proposition that an inmate must “receive” a decision in order to exhaust.

Defendants’ Br. at 28.            But in Neal we considered only whether exhausting

administrative remedies after a complaint is filed can save a case from 

–22. We consequently had no occasion to consider whether an

inmate is required to receive a final decision from the CORC before filing suit. 6




6Defendants also look to our decision in Gizewski v. New York State Dep’t of Corr. & Comty. Supervision, 692
F. App’x 668 (2d Cir. 2017), in which, like here, the plaintiff filed suit after the 30-day deadline but before
the CORC decided his appeal. But in addition to being a non-precedential summary order, see 2d Cir. Local
R. 32.1.1, Gizewski never directly addressed whether administrative remedies were exhausted after the
expiration of the 30-day CORC deadline, and instead simply appears to have proceeded on the assumption
that they were not. As explained below, it is this argument that forms the basis of our holding here.


                                                      17
       We therefore turn to the text of the regulations to determine the inmate’s

and the prison’s respective obligations. DOCCS regulations provide that when a

prisoner appeals an adverse decision of the superintendent to the CORC, the

CORC “shall review each appeal [and] render a decision on the grievance . . .

within 30 calendar days from the time the appeal was received.” NYCRR tit. 7

§ 701.5(d)(3)(ii) (emphasis added).       “Unlike the word ‘may,’ which implies

discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware Techs.,

Inc. v. United States, 

, 1977 (2016); see also Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 

, 35 (1998) (noting that the world “shall” is

“mandatory” and “normally creates an obligation impervious to judicial

discretion”).

       Although some grievance programs give the agency some discretion or

flexibility as to when it must decide an appeal, see, e.g., Ford v. Johnson, 

, 400 (7th Cir. 2004) (applying exhaustion requirement in the context of a

regulation requiring the agency to issue a decision within 60 days of the appeal

“whenever possible”), DOCCS regulations impose a 30-day deadline with no

qualifications. In fact, the regulations specifically prohibit prison officials from

stalling the resolution of an inmate’s grievance by ignoring the various deadlines




                                            18
throughout the process. Instead, to obtain an extension “at any level of review,”

the agency must obtain the inmate’s consent. NYCRR tit. 7 § 701.6(g)(2). “Absent

such extension, matters not decided within the time limits may be appealed to the

next step.”

CORC review, there is simply no “next step” in the

grievance process – other than to file a lawsuit in court. 7

        Defendants respond that, despite the provision’s clear language, the 30-day

deadline is really no deadline at all. Rather, they argue that it is “aspirational,”

since “[t]he failure to decide appeals within that timeframe does not divest the

CORC of authority to decide the matter thereafter.” Defendants’ Br. at 30–31. We

recognize that New York courts have held that the time limit in § 701.5(d)(3)(ii) is

“directory, not mandatory,” meaning that a petitioner seeking to annul a tardy

determination from the CORC must show that she was substantially prejudiced

by the delay. See, e.g., Jones v. Fischer, 

, 1296–97 (3d Dept 2013),

appeal dismissed, 

(2014); Ortiz v. Goord, 

, 830–31 (3d



7 The regulations state that “[i]f a grievant does not receive a copy of the written notice of receipt within 45
days of filing an appeal, the grievant should contact the [Inmate Grievance Procedure] supervisor in
writing to confirm that the appeal was filed and transmitted to [the] CORC.” NYCRR tit. 7 § 701.5(d)(3)(i)
(the “status check provision”). But the status check provision simply provides an inmate with a mechanism
to see if the supervisor “filed and transmitted” the appeal “to [the] CORC.”

allow the inmate
to compel or otherwise prompt a decision from the CORC. Moreover, because a supervisor could confirm
that she transmitted the appeal simply by consulting her own records, the status check provision does not
even require the supervisor to contact the CORC at all. The status check provision, therefore, does not
support the argument that there are additional remedies following an appeal to the CORC.


                                                      19
Dept 2003). But the CORC’s ability to decide a grievance after the 30-day time

period expires says nothing about whether an inmate has exhausted the

procedures for the purposes of the PLRA.

      Also unavailing is the argument that Hayes did not exhaust all available

administrative remedies because he could have brought an Article 78 proceeding

in state court to compel the CORC to consider his appeal. See N.Y. C.P.L.R. § 7801–

06. As an initial matter, Defendants do not cite to a single case where a prisoner

has actually used an Article 78 proceeding to compel a CORC decision, leaving us

to doubt that this is even a viable remedy. Regardless, the fact remains that “it is

the prison’s requirements . . . that define the boundaries of proper exhaustion.”

. Thus, the availability of a state mechanism outside of the

prison’s grievance procedure is irrelevant to the question of whether an inmate

has exhausted administrative remedies under the PLRA.

      We therefore hold that, because the DOCCS Inmate Grievance Procedure

imposes a mandatory deadline for the CORC to respond, an inmate exhausts

administrative remedies when he follows the procedure in its entirety but the

CORC fails to respond within the 30 days it is allocated under the regulations. We

decline to impose a “reasonableness” requirement found nowhere in the text,




                                         20
which would leave inmates – and courts – to blindly speculate how long one must

wait before filing suit. See, e.g., Staples v. Patane, No. 9:17-cv-0703 (TJM) (TWD),

, at *9 (N.D.N.Y. Dec. 7, 2018), report and recommendation adopted,

(N.D.N.Y. Feb. 20, 2019) (concluding that plaintiff had not

exhausted remedies where the CORC had not replied in ten months, which was

“more than the five[-]month delay found insufficient” in another case but “far less

than the two years which resulted in a finding of availability” in another); Ford v.

Smith, No. 9:12-cv-1109 (TJM) (TWD), 

, at *3 (N.D.N.Y. Feb. 19,

2014) (holding that a six-month delay before the CORC responded did not render

administrative remedies unavailable).         While the exhaustion requirement is

designed to ensure that a prisoner uses “all steps that the agency holds out, and

do[es] so properly (so that the agency addresses the issues on the merits),” Woodford

v. Ngo, 

, 90 (2006) (quoting Pozo v. McCaughtry, 

, 1024 (7th

Cir. 2002)), it is not designed to allow prison officials to stall the resolution of

complaints – meritorious or not – for an indefinite period of time.

      In reaching this decision, we join six other circuits that have considered state

prison procedures with similar mandatory deadlines and found that the

administrative remedies were either exhausted or “unavailable” when the prison




                                         21
did not respond within the allotted time. See Moore v. Bennette, 

, 725

(4th Cir. 2008) (“[T]o be entitled to bring suit in federal court, a prisoner must have

utilized all available remedies ‘in accordance with the applicable procedural

rules,’ so that prison officials have been given an opportunity to address the claims

administratively. . . . Having done that, a prisoner has exhausted his available

remedies, even if prison employees do not respond.” (quoting 

)); Powe v. Ennis, 

, 394 (5th Cir. 1999) (“A prisoner’s administrative

remedies are deemed exhausted when a valid grievance has been filed and the

state’s time for responding thereto has expired.”); see also Shifflett v. Korszniak, 

, 365 (3d Cir. 2019) (“[W]e hold that as soon as a prison fails to respond to

a properly submitted grievance or appeal within the time limits prescribed by its

own policies, it has made its administrative remedies unavailable and the prisoner

has fully discharged the PLRA’s exhaustion requirement.”); Jernigan v. Stuchell, 

, 1032 (10th Cir. 2002) (noting that “the failure to respond to a grievance

within the time limits contained in the grievance policy renders an administrative

remedy unavailable,” although finding that this was “not what happened” in the

case before it); Lewis v. Washington, 

, 833 (7th Cir. 2002) (agreeing with

other circuits that “have deemed administrative remedies exhausted when prison




                                          22
officials fail to respond to inmate grievances because those remedies had become

‘unavailable,’” because the court “refuse[d] to interpret the PLRA so narrowly as

to . . . permit prison officials to exploit the exhaustion requirement through

indefinite delay in responding to grievances” (internal quotation marks and

alterations omitted)); Foulk v. Charrier, 

, 698 (8th Cir. 2001) (holding

that the “district court did not err in declining to dismiss [plaintiff’s] excessive

force claim for failure to exhaust administrative remedies” because the prison did

not respond to his complaint and thus no further administrative proceedings were

“available”). Because we rule on exhaustion alone, we decline to consider whether

the administrative procedures here were so “opaque” that they are “unavailable”

under Ross. In doing so, we avoid wading into the often complex and highly fact-

specific inquiries of the unavailability exception.

      Here, there simply were no further steps under the regulations that Hayes

could have taken to obtain relief on most of his grievances. Recall that, for all but

one grievance, Hayes waited to file suit until more than 30 days after the CORC

received the appeal of his grievance. For those claims, therefore, Hayes exhausted

his administrative remedies.




                                         23
      That said, Hayes waited only 26 days after the CORC received the appeal of

his grievance against the superintendent, four days short of the 30-day deadline

for the CORC to respond. See NYCRR tit. 7 § 701.5(d)(3)(ii). While Hayes need not

wait indefinitely after the agency fails to follow its own deadline at the final stage

of appeal, he must actually wait for that deadline to expire before filing suit. To

hold otherwise would be in direct conflict with the Supreme Court’s holding that

“proper exhaustion of administrative remedies . . . means using all steps that the

agency holds out, and doing so properly.” 

(emphasis and

internal quotation marks omitted); see also 

(emphasizing that

to properly exhaust administrative remedies, a prisoner “must complete the

administrative review process in accordance with the applicable procedural rules

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

(internal quotation marks and citation omitted)).         And it is well-settled that

“[s]ubsequent exhaustion after suit is filed . . . is insufficient” and “will not save a

case from dismissal.” 

–22.

      Hayes does not argue otherwise, instead asserting that a remedy was

unavailable here because “it was obvious at this point that [the] CORC would not

honor its own deadlines, rendering remedies unavailable.” Hayes’s Br. at 33. But




                                          24
Hayes’s subjective belief does not render the remedies unavailable here. See

(“Even where the ‘available’ remedies would appear to

be futile at providing the kind of remedy sought, the prisoner must exhaust the

administrative remedies available.”). Because Hayes filed suit before the 30-day

deadline, we affirm the district court’s judgment as to Claim Three against

Superintendent Martuscello.

   B. Hayes Raised a Triable Issue of Fact as to His Retaliation Claim Against
          Hoffman But Not as to His Retaliation Claim Against Iarusso

      Because we find that Hayes exhausted his administrative remedies for his

First Amendment retaliation claims against Hoffman and Iarusso, and since the

district court also assessed those claims on the merits, we address the district

court’s alternative holding that they were entitled to summary judgment because

Hayes failed to demonstrate that he suffered any adverse action.

      “To prevail on a First Amendment retaliation claim, an inmate must

establish ‘(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 [conduct] and the adverse action.’” Holland v.

Goord, 

, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 

, 128

(2d Cir. 2009)). The parties do not contest that the first requirement has been met,



                                         25
as filing a grievance is protected conduct. See Gill v. Pidlypchak, 

, 384

(2d Cir. 2004).

      To be an “adverse action,” retaliatory conduct must be the type that would

deter “a similarly situated individual of ordinary firmness from exercising his or

her constitutional rights.” Davis v. Goord, 

, 353 (2d Cir. 2003) (internal

quotation marks omitted).      We look to the specific circumstances in which

retaliation claims arise, “bearing in mind that prisoners may be required to tolerate

more than average citizens, before a retaliatory action taken against them is

considered adverse.”

and alterations omitted). An

inmate must first show that the protected conduct was “a substantial or motivating

factor in the prison officials’ disciplinary decision,” 

(internal quotation marks omitted), in response to which the defendant official can

then show that the disciplinary action would have occurred regardless, such as by

showing that the inmate actually committed the actions charged in the

misbehavior report.

“[B]ecause we recognize both the near inevitability

of decisions and actions by prison officials to which prisoners will take exception

and the ease with which claims of retaliation may be fabricated, we examine




                                         26
prisoners’ claims of retaliation with skepticism and particular care.” Colon v.

Coughlin, 

, 872 (2d Cir. 1995).

    1. Claim Two: First Amendment Retaliation Claim Against Hoffman

      Hayes contends that Hoffman retaliated against him by filing a false

misbehavior report. The district court found that Hayes (1) had not alleged an

adverse action, since Hayes spent only one day in keeplock as a result of the

purportedly false complaint, and (2) had not established a causal connection

between the retaliatory action and protected activity, since Hayes had not shown

that Hoffman knew that Hayes filed a grievance. We disagree, and conclude that

Hayes has elicited circumstantial, but sufficient, evidence to create a genuine issue

of material fact as to whether retaliation was a substantial factor in Hoffman’s

misbehavior report.

      First, while Hayes was only in keeplock for one day, it appears that this was

because he was promptly moved to the SHU for additional misbehavior. It is not

clear from the record exactly how long he would have otherwise gone to keeplock,

but it appears that he was not notified that the misbehavior report at issue was

removed from his record until ten days after he was sent to keeplock. We conclude




                                         27
that the limited nature of the record here cannot preclude a finding of adverse

action.

      Second, we find that Hayes has raised a triable issue of fact regarding the

causal connection between the retaliatory activity and adverse action. “We have

held that the temporal proximity of an allegedly retaliatory misbehavior report to

a grievance may serve as circumstantial evidence of retaliation,” Gayle v. Gonyea,

, 683 (2d Cir. 2002), but have not drawn a “bright line” as to exactly

when a temporal relationship supports a finding of a causal relationship. Gorman–

Bakos v. Cornell Coop. Extension, 

, 554 (2d Cir. 2001); compare

(holding that five months between the protected action and the retaliation

supported an inference of a causal connection) with Hollander v. Am. Cyanamid Co.,

, 85–86 (2d Cir. 1990) (finding that the passage of three months weighed

against finding a causal connection).

      Here, approximately one month passed between the events underlying

Hayes’s PREA claim and the purportedly false misbehavior report. Moreover,

according to Hayes, Dahlke exhibited a continued pattern of sexually-charged

verbal harassment throughout the time between the initial grievance and the

misbehavior report, and Dahlke and Hoffman worked on the same unit floor the




                                         28
day the misbehavior report was filed. Additionally, the very language of the

misbehavior report – which alleged that Hayes falsified PREA complaints – ties

the protected act to the retaliation, particularly given Hoffman’s later statements,

including his alleged assertion that if “you mess with one of us, you got to mess

with all of us.” J. App’x 51, 264. Added to that is the fact that the complaint against

Hayes was abruptly expunged, for which Defendants have provided no

explanation. See Baskerville v. Blot, 

, 733 (S.D.N.Y. 2002) (noting

that “the administrative dismissal of the misbehavior report . . . weigh[s] in

plaintiff’s favor”); see also 

(“A false reason for the report’s

issuance would support the inference that the real reason was the improper one:

retaliation.”).

       So the temporal connection, language of the misbehavior report, and other

surrounding circumstances support a finding of a nexus between the grievance

and the purportedly retaliatory action. That means, when taking the facts in the

light most favorable to Hayes, the district court erred: sending a prisoner to

keeplock for some indeterminate amount of time could be enough to chill speech

of a prisoner of ordinary firmness, especially in light of the other threats regarding




                                          29
solitary confinement that Hayes claimed to have experienced. Accordingly, we

reverse the judgment of the district court on Claim Two.

      2. Claim Four: First Amendment Retaliation Claim Against Iarusso

      Hayes contends that the district court erred in finding that Iarusso did not

retaliate against him when he (1) told Hayes that “maybe all of this would go

away” if he stopped filing grievances, (2) refused to file Hayes’s grievance against

Superintendent Martuscello for a month, and (3) told Hayes in front of the IGRC

that he would never personally file a grievance against Martuscello. Hayes’s Br.

at 49. We disagree.

      At most, Iarusso’s comments constitute vague threats that would be

insufficient to deter “a similarly situated individual of ordinary firmness from

exercising his or her constitutional rights.”    

(internal

quotation marks omitted). It is well-settled that “[i]nsulting or disrespectful

comments directed at an inmate generally do not rise” to the level of a

constitutional violation, and “that prisoners may be required to tolerate more than

average citizens, before a retaliatory action taken against them is considered

adverse.”

and alterations omitted). We acknowledge

that the statements at issue here could, taken in the light most favorable to Hayes,




                                         30
be viewed as implicit threats. Threats accompanied by some action, like putting a

defendant on a restricted access status, surely constitute adverse action. See, e.g.,

Burns v. Martuscello, 

, 93–94 (2d Cir. 2018). But even Hayes admits that

the threats here were accompanied by, at most, a one-month delay in filing one of

Hayes’s grievances.     While we have held that a prison official’s repeated

interference with an inmate’s efforts to file grievances might necessitate “efforts

beyond what is reasonably expected of an inmate with ordinary firmness,” 

(internal quotation marks omitted), we decline to find that the

month-long delay in filing one grievance alleged here rises to the level of a

constitutional violation. Although this is an objective standard, 

, it also bears noting that Iarusso’s statements clearly did not prevent Hayes

from filing additional grievances, since he filed grievances against Iarusso, Meier,

and Langtry within a few weeks of Iarusso’s allegedly chilling remarks. We think

it clear that Iarusso’s comments would be equally unlikely to deter an “individual

of ordinary firmness from exercising his or her constitutional rights.” 

. Therefore, we affirm the judgment of the district court as to Claim

Four.




                                         31
C. The District Court Erred in Granting Summary Judgment on Hayes’s Eighth
                         Amendment Claim Against Dahlke

      Finally, we address Hayes’s Eighth Amendment claim against Dahlke,

which was undisputedly timely, but which the district court rejected on the merits.

The Eighth Amendment protects prisoners from cruel and unusual punishment

by prison officials. Wilson v. Seiter, 

, 296–97 (1991). To succeed on an

Eighth Amendment claim, a plaintiff “must show (1) a deprivation that is

objectively, sufficiently serious . . . and (2) a sufficiently culpable state of mind on

the part of the defendant official.” Gaston v. Coughlin, 

, 164 (2d Cir.

2001) (internal quotation marks omitted).

      “Although not ‘every malevolent touch by a prison guard gives rise to a

federal cause of action,’ the Eighth Amendment is offended by conduct that is

‘repugnant to the conscience of mankind.’” Crawford v. Cuomo, 

, 256

(2d Cir. 2015) (quoting Hudson v. McMillian, 

, 9–10 (1992)).              “A

correction[] officer’s intentional contact with an inmate’s genitalia or other

intimate area, which serves no penological purpose and is undertaken with the

intent to gratify the officer’s sexual desire or to humiliate the inmate, violates the

Eighth Amendment.”

Our “principal inquiry” in determining if there

was an Eighth Amendment violation “is whether the contact is incidental to



                                          32
legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast

whether it is undertaken to arouse or gratify the officer or humiliate the inmate.”

       We find that Hayes has offered sufficient facts to survive summary

judgment on his Eighth Amendment claim against Dahlke. To be sure, the conduct

here occurred during a routine pat frisk prior to a planned search of Hayes’s cell.

As a general matter, pat frisks “relate to the safety and security of the facility by

ensuring that inmates do not possess contraband, and prison directives make clear

that pat frisks necessarily entail contact with the genitalia and buttocks, where

inmates have been known to conceal drugs and weapons such as razor blades. See

S. App’x 25. But the routine nature of these pat frisks alone does not shield an

officer from liability, and the conduct described by Hayes, if believed, could

certainly support an inference that Dahlke engaged in conduct beyond what was

required for a pat search in order to “gratify [his] sexual desire” or “humiliate”

Hayes. See 

.

       Although, as the district court observed, “there is no indication that C.O.

Dahkle penetrated plaintiff’s anus, intentionally or otherwise, or in any way

squeezed or fondled [Hayes’s] genitals,” J. App’x 405–06, Hayes testified that




                                            33
Dahlke’s over-the-clothing pat frisk was quite unlike any he had experienced in

his thirteen years as an inmate. Hayes, who was no stranger to frisks, alleged that

the five- to eight-minute frisk by Dahlke was “[w]ay longer than a typical” pat

frisk. J. App’x 254. And according to him, the way Dahlke touched him was

starkly different from other pat frisks he had experienced. For starters, rather than

the normal “patting and sliding,” this frisk “was more so grabbing” as in a

“massage.”

up and was going around” Hayes’s testicles,

in violation of prison regulations.

      Hayes further testified that Dahlke did part of this invasive search while he

“pressed” his “lower body (genitals) . . . up against” Hayes’s behind in a manner

that, if credited, would appear to have no legitimate purpose in a bona fide pat

search.   J. App’x 383.    Indeed, as we explained in Crawford, if an “officer

intentionally brings his or her genitalia into contact with the inmate in order to

arouse or gratify the officer's sexual desire or humiliate the inmate, a violation is

self-evident because there can be no penological justification for such 

. Perhaps it is less “self-evident” in the context of an invasive frisk that

at least starts out for legitimate penological reasons: after all, by its very nature,

such a frisk has to happen up close and personal, so it may involve inadvertent




                                          34
and innocent bumping. Still, reading the record in the light most favorable to

Hayes, genital-to-buttock contact was “just not like a regular search.” J. App’x 252.

For his part, Dahlke does not argue that a penological purpose would justify that

kind of contact; he denies outright that he pressed his genitals against Hayes. J.

App’x 335. That swearing match, of course, is not for us to adjudicate.

      According to Hayes, Dahlke followed up that physical contact with a verbal

barrage that again, if credited, would support an inference that the contact was

designed to arouse himself or humiliate Hayes, or both. In that way, this case

resembles Crawford, where a correction officer “allegedly ‘squeezed’ and

‘fondled’” the plaintiff’s privates and then made demeaning sexual comments

about 

–59. As in Crawford, the gratuitous conduct described

by Hayes, coupled with the sexually charged comments allegedly made by Dahlke

immediately following the pat frisk, supports an inference that Dahlke used the

opportunity presented by a routine pat search to molest Hayes “in order to arouse

himself, humiliate [the plaintiff,] or both.”

If credited, that is precisely

the sort of “intentional contact with an inmate’s genitalia . . . which serves no

penological purpose and is undertaken with the intent to gratify the officer’s




                                          35
sexual desire or to humiliate the inmate, [in] violat[ion of] the Eighth

Amendment.”

        Of course, it must be noted that Dahlke vehemently denies that he engaged

in any improper touching of Hayes during the pat frisk; he likewise denies that he

ever made the crass and demeaning statements attributed to him by Hayes

concerning Hayes’s sexual orientation.                    J. App’x 103, 335.         To the contrary,

Defendants contend that Hayes’s allegations are utterly false and cynically

designed to “game” the system against corrections officers in light of DOCCS

regulations that are now more solicitous with respect to inmate allegations of

sexual abuse or sexual harassment. See NYCRR tit. 7 § 701.3(i). But the ultimate

resolution of who is telling the truth, Hayes or Dahlke, must be made by a jury,

since there are clearly disputed issues of fact and credibility determinations that

cannot be made by a court on a motion for summary judgment. All that matters

now is that, if believed, Hayes’s allegations establish a constitutional violation. 8




8Dahlke alternatively argues that he is entitled to qualified immunity because “it was objectively
reasonable to believe that the thorough search Hayes described did not violate the Eighth Amendment.”
Defendants’ Br. at 19. We disagree. Although there is clearly a factual dispute as to whether Dahlke ever
engaged in the conduct alleged by Hayes, there can be no doubt that the illegality of such conduct was
clearly established by Crawford the year before the frisk took place. 

(“A correction[]
officer’s intentional contact with an inmate’s genitalia or other intimate area, which serves no penological
purpose and is undertaken with the intent to gratify the officer’s sexual desire or to humiliate the inmate,
violates the Eighth Amendment.”).


                                                     36
     We therefore reverse the district court’s grant of summary judgment on

Claim One.

                                CONCLUSION

     Accordingly, for the reasons stated above, we REVERSE the district court’s

dismissal of Claims One, Two, Five, and Six and REMAND for further

proceedings consistent with this opinion.    We AFFIRM the district court’s

judgment as to Claims Three and Four.




                                        37