GLENN T. SUDDABY, Chief District Judge.
On December 7, 2015, the Court conducted an evidentiary hearing in the abovecaptioned prisoner civil rights action, filed pro se by Jacolby Wallace, a/k/a Jocolby Wallace ("Plaintiff"), against the above-captioned New York State correctional employee ("Defendant"), pursuant to 42 U.S.C. § 1983, asserting claims of excessive force and retaliation.
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. "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532.
In accordance with the PLRA, the New York State Department of Corrections and Community Supervision ("DOCCS") has made available a well-established inmate grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the DOCCS Inmate Grievance Program ("IGP") involves the following three-step procedure for the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7 ("Directive 4040").
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 "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. 7 N.Y.C.R.R. § 701.6(g). If that application was denied, the inmate could file a complaint complaining that the application was wrongfully denied.
Despite the plain language of 7 N.Y.C.R.R. § 701.6(g), there appears to be some confusion regarding whether the IGRC's nonresponse must be appealed to the superintendent where the plaintiff's grievance was never assigned a grievance number.
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.
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 hearing, the Court finds that, before filing this action, Plaintiff failed to follow each of the required three steps described above in Part I of this Decision and Order. The Court bases this finding on (1) the credible hearing testimony of Inmate Grievance Program Coordinator Kathryn Gascon, (2) the credible hearing testimony of Inmate Grievance Program Supervisor Sergeant Dion Quinta, and (3) the hearing exhibits adduced by Defendant. (See, e.g., Hrg. Tr.; Hrg. Exs. D-1, D-2, D-3, D-4, D-5, D-6, D-7.) However, as indicated above in Part I of this Decision and Order, this finding does not end the Court's inquiry; rather, the Court must proceed to the three-part inquiry established by the Second Circuit.
New York prison inmates are subject to an Inmate Grievance Program established by DOCCS and recognized as an "available" remedy for purposes of the PLRA. Murray, 2010 WL 1235591, at *5 [citations omitted]. There are different circumstances under which the grievance procedure is deemed not to have been available to an inmate plaintiff. Id. [citation omitted]. For example, 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." Id. [citation omitted]. When testing the availability of administrative remedies in the face of claims that undue influence from prison workers has caused a plaintiff inmate to forego the formal grievance process, courts employ an objective test, examining whether "a similarly situated individual of ordinary firmness [would] have deemed them available." Id. [citations omitted].
Here, after carefully considering the evidence submitted at the hearing, the Court finds that administrative remedies were "available" to Plaintiff during the time in question. The Court makes this finding for the following three reasons.
First, in his hearing testimony and Verified Amended Complaint, Plaintiff asserted that, during the time in question, there was a grievance procedure at Watertown Correctional Facility, he submitted a grievance, and he spoke to "the lady civilian grievance coordinator [who] received my grievance" on September 16, 2013. (Hrg. Tr. at 2; Hrg. Ex. D-2, at ¶¶ 4[a],[b][i], 6.) Similarly, Plaintiff asserted that, during the time in question, he "filled out another grievance" at Gouverneur Correctional Facility. (Hrg. Tr. at 5; Hrg. Ex. D-2, at ¶ 6.)
Second, at the hearing, Inmate Grievance Program Coordinator Kathryn Gascon and Inmate Grievance Program Supervisor Sergeant Dion Quinta testified credibly that, during the time in question, there was a working grievance program at Watertown Correctional Facility. (Hrg. Tr. at 14-16, 20-24.) Similarly, the record contains a copy of a grievance Plaintiff filed at Gouverneur Correctional Facility, and a response to that grievance. (Hrg. Ex. D-7.)
Third, the Court finds Plaintiff's hearing testimony on the subject (i.e., that the alleged threats of Ms. Gascon essentially rendered the Inmate Grievance Program unavailable to Plaintiff, particularly in light of the asserted conduct of other corrections officers) to be incredible due to (a) the credibility of Sergeant Quinta's testimony that he has never seen Ms. Gascon threaten grievants, (b) the credibility of Ms. Gascon's testimony that she has never threatened grievants (and did not threaten Plaintiff), and (c) Plaintiff's demeanor during his testimony. (Hrg. Tr. at 9, 16-17, 26-27.)
The Court notes that, even if Plaintiff's administrative remedies were somehow rendered unavailable at Watertown Correctional Facility between the date of the alleged incident (September 13, 2013) and the date of his transfer to Gouverneur Correctional Facility (October 17, 2013), he has not persuaded the Court that those administrative remedies were rendered unavailable at Gouverneur Correctional Facility. This is because, pursuant to Directive 4040, Plaintiff had until 45 days from the incident on September 13, 2013 (or until October 28, 2013) in which to request an extension of the 21-day deadline for filing a grievance. (Hrg. Ex. D-3, at 9 [attaching § 701.6(g)(1)(i)(a)].) However, he did not file such a request at Gouverneur Correctional Facility between October 17, 2013, and October 23, 2013, despite the fact that had been informed of the grievance process numerous times upon his arrival at different correctional facilities. (Hrg. Exs. D-7, Ex. D-4; Hrg. Tr. at 4, 22-23.) Moreover, while he filed a (second) grievance at Gouverneur Correctional Facility on either October 24, 2013, or October 25, 2013,
After carefully considering the evidence submitted at the hearing, the Court finds that Defendant did not forfeit the affirmative defense of non-exhaustion by failing to raise or preserve it. Defendant's Answer timely asserted this affirmative defense. (Dkt. No. 34, at ¶ 14.)
The Court also finds that Defendant is not estopped from raising the affirmative defense of non-exhaustion by taking actions that inhibited Plaintiff's exhaustion of remedies. In light of the various omissions in Plaintiff's hearing testimony and his demeanor during that testimony, the Court finds that he did not offer persuasive evidence that Defendant himself interfered with Plaintiff's ability to file grievances during the time in question.
It is important to note that a defendant in an action may not be estopped from asserting the affirmative defense of failure to exhaust administrative remedies based on the actions (or inactions) of other individuals. This point of law is clear from Second Circuit cases.
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 may nonetheless be appropriate because the purpose of the PLRA is to enable the institution to resolve disputes efficiently rather than protect the individual, prisoner civil rights suits are suits against prison officials in their individual capacities rather than suits against them in their official capacities (which would effectively be suits against the State and thus be barred by the Eleventh Amendment). As a result, the crux of the second part of the Second Circuit's three-part exhaustion inquiry is whether the officials may avail themselves of that defense, not whether the institution may avail itself of the defense.
For all these reasons, to the extent that Plaintiff alleges that the conduct of a nondefendant correctional employee (such as Inmate Grievance Program Coordinator Kathryn Gascon) inhibited him from exhausting his administrative remedies with regard to his grievance against Defendant, those allegations cannot estop Defendant from asserting failure-to-exhaust as a defense.
There are a variety of special circumstances that may excuse a prisoner's failure to exhaust his available administrative remedies, such as the following: (1) the facility's "refusal to accept or forward plaintiff's appeals [to CORC]-which effectively rendered the grievance appeal process unavailable to him";
Construed with the utmost of special leniency, Plaintiff's Verified Amended Complaint, pre-hearing Exhibit List, hearing argument and cross-examination of Defendant's witnesses raise the specter of four excuses for Plaintiff's failure to exhaust his available administrative remedies before filing this action: (1) on September 16, 2013, Inmate Grievance Program Coordinator Kathryn Gascon deterred Plaintiff from filing his grievance by telling him that "things would only get worse" if he pursued his grievance, because all the staff members at Watertown Correctional Facility "work together" (a cooperation confirmed by, inter alia, the fact that Defendant had been motivated by Plaintiff's attempt to sue another corrections officer); (2) after he was transferred from Watertown Correctional Facility to Gouverneur Correctional Facility on or about October 17, 2013, Plaintiff sufficiently grieved, or attempted to grieve, the claims in question; (3) on September 13, 2013, Plaintiff complained orally to Corrections Officer J. Largett about Defendant's conduct; and (4) at some point in time, Plaintiff's mother placed a telephone call to the Inspector General's Office.
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. With regard to Plaintiff's first excuse (i.e., that Ms. Gascon threatened him not to file his grievance), the Court finds that this excuse does not constitute special circumstances justifying his failure to exhaust his available administrative remedies for each of two alternative reasons. As an initial matter, as indicated above in Part II.B. of this Decision and Order, the Court finds that the threat simply did not occur based on (a) Plaintiff's demeanor during his testimony, (b) the credibility of Ms. Gascon's testimony that she has never threatened grievants (and did not threaten Plaintiff), and (c) the credibility of Sergeant Quinta's testimony that he has never seen Ms. Gascon threaten grievants. Any argument that Ms. Gascon improperly refused to immediately forward Plaintiff's grievance to the superintendent is belied by the fact that, when it was received by her, the grievance was already signed by Plaintiff as having been "informally resolved." (Hrg. Tr. at 3, 25; Hrg. Ex. D-6.) In any event, even if Plaintiff's administrative remedies were rendered unavailable by Ms. Gascon at Watertown Correctional Facility between the date of the alleged incident (September 13, 2013) and the date of his transfer to Gouverneur Correctional Facility (October 17, 2013), those administrative remedies were not rendered unavailable at Gouverneur Correctional Facility between October 17, 2013, and the deadline for an extension request (on October 28, 2013), for the reasons set forth above in Part II.A. of this Decision and Order.
With regard to Plaintiff's second excuse (i.e., that he sufficiently grieved, or attempted to grieve, the claims in question after he was transferred to Gouverneur Correctional Facility), the Court finds that this excuse does not constitute special circumstances justifying his failure to exhaust his available administrative remedies for the second reason stated in the preceding paragraph: Plaintiff could have, between October 17, 2013, and October 28, 2013, filed a properly supported request for an extension of the 21-day deadline for filing his grievance, but unjustifiably failed to do so. Rather, he waited until three days or four days before the expiration of the 45-day time period under § 701.6(g)(1)(i)(a) to file a one-page grievance stating merely, inter alia, that Ms. Gascon placed him in "fear" at Watertown Correctional Facility, which was appropriately rejected as being untimely. (Hrg. Ex. D-7.)
With regard to Plaintiff's third excuse (i.e., that he submitted the complaints in question orally to another corrections officer, C.O. Largett), the Court finds that this excuse does not constitute special circumstances justifying his failure to exhaust his available administrative remedies for each of two alternative reasons. As an initial matter, an oral complaint to a corrections officer is not a grievance. (Hrg. Ex. D-3 at 1 [attaching § 701.2(a)].) See also Martin v. City of New York, 11-CV-0600, 2012 WL 1392648, at *6 (S.D.N.Y. Apr. 20, 2012) ("`[O]ral statements to various officials' do not satisfy the PLRA's exhaustion requirement.") (quoting Simon v. Campos, 09-CV-6231, 2010 WL 1946871, at *6 [S.D.N.Y. May 10, 2010]). During the time in question, Plaintiff knew, or reasonably should have known of that fact, given that usually prisoners are advised of the grievance procedure as part of their orientation at every new facility to which they are transferred. (Hrg. Tr. at 23; Hrg. Ex. D-4.) Indeed, he should have been placed on further notice of that fact due to C.O. Largett's having advised Plaintiff that he should "write a grievance." (Hrg. Ex. D-2, at ¶ 6.) In any event, following the making of that alleged complaint, Plaintiff never filed a timely appeal to CORC from either a non-response to that complaint or a finding of unsubstantiation regarding that complaint. (Id.; Hrg. Tr.)
With regard to Plaintiff's fourth excuse (i.e., that his mother called the Inspector General's Office), the Court finds that this excuse does not constitute special circumstances justifying his failure to exhaust his available administrative remedies for each of two alternative reasons. As an initial matter, even assuming that the Inspector General's Office carried out an investigation, the record does not establish that such an investigation was upon a referral from the Superintendent of either Watertown Correctional Facility or Gouverneur Correctional Facility, as is required. (See generally Hrg. Tr.; Hrg. Ex. D-2.) See also, supra, Part I of this Decision and Order. In any event, Plaintiff never appealed a finding of unsubstantiation by the Inspector General's Office to CORC (but rather proceeded directly to this Court). (Id.) Both a referral and appeal are required in order for an inmate's contact with the Inspector General's Office, and finding of unsubstantiation, to complete the exhaustion process.
In sum, Plaintiff has proffered no special circumstances justifying his failure to achieve exhaustion of the claims in this action-whether those circumstances are considered individually or in combination. To hold otherwise, in this case, would be to unacceptably frustrate the two major purposes of the exhaustion requirement-to protect the administrative authority of DOCCS (by giving that department an opportunity to correct its own mistakes before being haled into federal court), and to promote judicial efficiency (by resolving disputes more quickly and economically in administrative proceedings, and producing a useful record for subsequent judicial consideration). See, supra, Part I of this Decision and Order.
