ANDREW T. BAXTER, Magistrate Judge.
This matter has been referred to me for Report-Recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
In the relevant portion of plaintiff's civil rights complaint, he alleges that defendant D'Agostino refused to provide plaintiff with a suitable mattress to sleep on, while he was incarcerated in the Schenectady County Jail ("SCJ") from October 17, 2014 until May 22, 2015 in violation of his constitutional rights. (Complaint ("Compl.") at 10, 11-12).
Presently before the court is a motion for summary judgment filed by Schenectady County Sheriff Dominick D'Agostino. (Dkt. No. 64). Plaintiff has responded in opposition to the motion, defendant D'Agostino has filed a reply, and plaintiff has filed what he has titled a "response" to defendant's memo of law. (Dkt. Nos. 67, 70, 71). For the following reasons, this court finds that the defendant's motion for summary judgment should be granted, and the complaint dismissed in its entirety as against defendant D'Agostino.
Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
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. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin, 467 F.3d at 272.
The Prison Litigation Reform Act, (PLRA), 42 U.S.C. §1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675.
The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g., Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009) (citations omitted).
The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. 548 U.S. at 90-103.
Grievance programs and procedures in
An inmate must file his grievance within five days of the date of the conduct giving rise to the complaint. Id. § 7032.4(d). The chief administrative officer of the facility designates a staff member to act as a grievance coordinator, and the regulations provide that each grievance shall be fully investigated by an individual who was not personally involved in the circumstances giving rise to the grievance. Id. § 7032.4(e), (f). The regulations specify minimum requirements for the type of information that must be gathered during the investigation of the inmate's grievance. Id. § 7032.4 (g)(1)-(g)(4).
The grievance coordinator must issue a written decision within five business days, containing the "facts and reasons underlying the coordinator's determination," and a copy of the determination must be provided to the inmate. Id. at 7032.4(i). The plaintiff may appeal an adverse determination to the chief administrative officer or his designee within two business days of receiving the adverse determination. Id. § 7032.4 (j). The chief administrative officer renders a decision within five business days, and if the inmate is still not satisfied, he may appeal the adverse decision directly to the Commission of Correction within three business days. Id. §§ 7032.4(k), 7032.5.
Within three business days after receiving the appeal from the inmate, the chief administrative officer of the facility must mail the appeal to the Commission's Citizens Policy and Complaint Review Council (CPCRC), and the grievance coordinator must provide the inmate with a receipt of mailing. Id. § 7032.5(c). The CPCRC has fortyfive days within which to issue a written decision. Id. § 7032.5(d). In certain circumstances, inmates will be provided assistance at any stage of the proceedings. Id. § 7032.9. The chief administrative officer of the facility must keep a centralized record of all grievances, and facility employees are given an orientation on the grievance procedures.
Until recently, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly exhausted his administrative remedies. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own actions inhibiting exhaustion estops them from raising the defense; and (3) whether "special circumstances" justify the inmate's failure to comply with the exhaustion requirement. Id.
The Supreme Court has now made clear that courts may not excuse a prisoner's failure to exhaust because of "special circumstances." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1857 (June 6, 2016). "`[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.'" Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir. 2016) (quoting Ross, ___ U.S. at ___, 136 S. Ct. at 1857). Although Ross has eliminated the "special circumstances" exception, the other two factors in Hemphill — availability and estoppel — are still valid. The court in Ross referred to "availability" as a "textual exception" to mandatory exhaustion, and "estoppel" has become one of the three factors in determining availability. Ross, ___ U.S. at ___, 136 S. Ct. at 1858. Courts evaluating whether an inmate has exhausted his or her administrative remedies must focus on whether those remedies were "available" to the inmate. Id. See also Riles, 2016 WL 4572321 at *2. Defendants bear the burden of proving the affirmative defense of failure to exhaust. Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016).
In this case, plaintiff concedes that he did not exhaust his administrative remedies.
In his response to the defendant's summary judgment motion, plaintiff now claims that he did not continue to request a grievance form because the sergeant's "tone" made it clear that he did not wish to continue to discuss the issue, and the sergeant allegedly told plaintiff that the next time he asked for a form, he would be locked in his cell. (Dkt. No. 67 ¶ 13). Plaintiff argues that he "exhausted" his remedies "once he felt threatened by the grievance [sergeant], and "it was determined that plaintiff [would] not receive a grievance." (Id. ¶ 16).
Based on Ross, the court must now determine whether the grievance process was "available" to plaintiff, given the facts that he has stated.
The fear of retaliation must be "reasonable" to render the grievance procedure "unavailable." Harrison v. Stallone, No. 9:06-CV-902, 2007 WL 2789473, at *5 (N.D.N.Y. Sept. 24, 2007) (citing Thomas v. Cassleberry, No. 03-CV-6394, 2007 U.S. Dist. LEXIS 30129, at *3-6 (W.D.N.Y. April 24, 2007)). Plaintiff's statement that the Sergeant's "tone" made plaintiff fear "retaliation," is not a "reasonable" fear of retaliation. If such an allegation rendered the process unavailable, it would be quite simple for inmates to circumvent the grievance procedure by making a conclusory statement that the officer's "tone" was aggressive or threatening. Thus, in itself, plaintiff's allegation that he felt "threatened" by the Sergeant's tone of voice does not excuse plaintiff from completing the grievance process. Plaintiff's claim that the sergeant vaguely threatened to lock plaintiff in "his" cell is also fails to rise to the level of a "reasonable" fear of retaliation. Inmates are always locked in their cells, and plaintiff does not allege that the sergeant made any other "threats" of physical harm or false charges to accompany that statement. Thus, plaintiff's fear of "retaliation" is insufficient to excuse the exhaustion requirement.
Plaintiff's other reason for failing to file a grievance requires more consideration. In his complaint, plaintiff claims that he was denied a grievance "form" because another inmate's grievance raising the mattress issue had been denied. (Compl. ¶ 4(b)). In his answers to defendant's interrogatories, plaintiff states that the Grievance Sergeant did not "accept" his grievance because the other inmate's grievance on the same issue had been denied. (Dkt. No. 64-11 at 2) (Interrogatory Ans. Nos. 8-11). Plaintiff states that he complained to the officers on the unit and to a grievance sergeant whose names plaintiff does not remember. Plaintiff then states that he complained to Grievance Sergeant "Nick named Russia,"
Defendants have attached a copy of the other inmate's grievance to their Reply. (Dkt. No. 70 Ex. A). A review of the grievance shows that in October of 2014, Inmate Tracy Hunter filed a grievance complaining about various issues, including the thickness of the mattresses upon which the inmates were required to sleep. (Dkt. No. 70-1 at 10). Inmate Hunter's grievance was investigated and denied at the facility level as well as by the CPCRC, "sustain[ing] the action taken by the facility administration." (Dkt. No. 70-1 at 3). The letter from the CPCRC is dated March 23, 2015. (Id.) The decision of Sergeant Greg Cufari, who signs as the Grievance Coordinator Schenectady County Sheriff's Department, states in relevant part, that Inmate Hunter complained about the mattresses at the facility because of a law suit "detailing the same complaint . . . which is outlined in this grievance." (Id. at 4). Sergeant Cufari then states that Inmate Hunter had been at SCJ for almost one year before ever complaining about the mattresses, and it was Sergeant Cufari's opinion that "Inmate Hunter is attempting to follow the same frivolous suit for a quick pay day." (Id. at 5).
The SJC Inmate Rule Book states that if the Grievance Sergeant cannot resolve the inmate's problem "informally," after the inmate has discussed the issue with his Floor Officer and his supervisor, "and provided that [the] complaint is a grievable matter, a grievance form
While it is undisputed that a problem with plaintiff's mattress is a grievable issue, plaintiff claims that his grievance was not "accepted" because he was told that Inmate Hunter's grievance on the same issue had been denied. The court notes that the rationale for the denial of Inmate Hunter's mattress grievance lends itself to supporting plaintiff's allegations. If the officer who investigated Inmate Hunter's grievance believed that the claim was "frivolous," and that the grievance was filed in response to an article that Inmate Hunter read about a law suit against another facility, then it is reasonable to assume that when plaintiff asked about filing a grievance relating to mattresses,
The court notes that very recently the Second Circuit has discussed an inmate's claim that administrative remedies were "unavailable" because he was in disciplinary housing and the officers refused to give him grievance forms. See Kearney v. Gebo, ___ F. App'x ___, 2017 WL 5256820 (2d Cir. Nov. 13, 2017). In Kearney, the court held that even if the officers refused to give the plaintiff grievance forms, the New York State regulations expressly allowed grievances to be filed on any kind of paper. Moreover, plaintiff Kearney had written letters of complaint to the Inspector General and to the Commission of Correction, showing that he had both paper and writing implements. Id. at *2. Thus, the court found that the grievance procedure was "available" to Kearney. Id.
This case is distinguishable from Kearney based on the evidence in the record. SCJ is a County Facility which has its own specific rules for filing grievances,
If the Grievance Sergeant believed that plaintiff's complaint was "frivolous" because he was already aware of such a claim by Inmate Hunter, he may have refused plaintiff's request for a grievance form and could have told plaintiff that such a claim was not acceptable because it had already been found to be frivolous and denied. Thus, whether the grievance was filed on a grievance form or if plaintiff had written it on any other sheet of paper, the Grievance Sergeant would still have been responsible for collecting the grievance and making the initial determination.
This court is
Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). In Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed the various ways in which a defendant can be personally involved in a constitutional deprivation, and thus be subject to individual liability.
A supervisory official is personally involved if that official directly participated in the infraction. Id. The defendant may have been personally involved if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong. Id. Personal involvement may also exist if the official created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue. Id. Finally, a supervisory official may be personally involved if he or she were grossly negligent in managing subordinates who caused the unlawful condition or event. Id. See also Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007) (citing Colon v. Coughlin, 58 F.3d 865, 873) (2d Cir. 1995)), rev'd on other grounds, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Some courts have discussed whether all of the Colon factors are still viable after Ashcroft. See Conklin v. County of Suffolk, 859 F.Supp.2d 415, 439 (E.D.N.Y. 2012) (discussing cases). However, the court in Conklin ultimately determined that it was unclear whether Colon had been overruled or limited, and continued to apply the factors outlined in Colon. Id. In making this determination, the court in Conklin stated that "it remains the case that `there is no controversy that allegations that do not satisfy any of the Colon prongs are insufficient to state a claim against a defendantsupervisor.'" Id. (quoting Aguilar v. Immigration Customs Enforcement Div. of the U.S. Dep't of Homeland Sec., 811 F.Supp.2d 803, 815 (S.D.N.Y. 2011)). See also Jones v. Smith, No. 09-CV-1058, 2015 WL 5750136, at *8 n.6 (N.D.N.Y. Sept. 30, 2015) (discussing the use of the Colon factors absent definitive guidance from the Second Circuit).
Defendant D'Agostino has submitted an affidavit in which he states that he never created a policy or custom of providing inmates with inadequate mattresses. (D'Agostino Aff. ¶ 2). Defendant D'Agostino also states that "at no time" while plaintiff was incarcerated at SCJ in 2014 and 2015, was defendant D'Agostino aware that plaintiff did not receive a new mattress or that anyone denied plaintiff a new mattress. (Id. ¶ 3). Defendant D'Agostino states that he was not aware that plaintiff had any medical condition or other issue that would have warranted supplying plaintiff with a new mattress, and that the defendant "had no involvement in denying Plaintiff a new mattress or supplying Plaintiff with an alleged inadequate mattress." (Id.)
In his complaint, plaintiff alleges that he wrote letters to defendant D'Agostino, but he never received a response. (Compl. at 11-12). Plaintiff further states in his complaint that defendant D'Agostino "need[s]" to inspect the mattresses at his facility and provide mattresses that "he" would sleep on. (Compl. at 14). In his answer to the defendant's interrogatories, plaintiff states that he sent letters to defendant D'Agostino, but adds that he "had direct contact with [D']Agostino during his tour/walk through about the mattress and he told me to talk [to] the floor officer who directed me to the grievance sgt.[] . . . ." (Def.'s Ex. J at p.2, ¶ 5). In another document, entitled "Plaintiff's Answer to Omnibus Discovery," plaintiff states that he "spoke" with defendant D'Agostino "as Sgt. Nicknamed Russia refused to accept my grievance." (Def.'s Ex. J at p.3 ¶ 2). In his response to defendant's motion for summary judgment, plaintiff states that defendant D'Agostino should be "held accountable for all incidents within his facility." (Dkt. No. 67 ¶ 15).
Clearly, the plaintiff's statements, implying that defendant D'Agostino must be "held accountable" for the incidents in his facility merely restate the doctrine of respondeat superior, which is not applicable in section 1983 actions. Plaintiff's additional statement that defendant D'Agostino should be inspecting the mattresses at his facility to make sure that they are acceptable is also not sufficient to establish personal involvement by the Sheriff.
Even if the court accepts the fact that defendant D'Agostino failed to respond to letters of complaint sent by plaintiff, this conduct alone would still be insufficient to establish personal involvement. Thompson v. Pallito, 949 F.Supp.2d 558, 575-76 (D. Vt. 2013) (citing cases). If merely writing an unanswered letter to a superior officer were sufficient to establish personal involvement, it would "contravene the black-letter principle that § 1983 does not allow for respondeat superior liability." Id. See also Jones v. Rock, No. 9:12-CV-447, 2013 WL 4804500, at *16 (N.D.N.Y. Sept. 6, 2013) (letters to superior officers insufficient to establish personal involvement). Cf. Guillon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013) (in the context of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), inmates who allege that they sent a complaint or grievance letter to a prison official are entitled to have the court draw that reasonable inference for pleading purposes).
Personal involvement will be found if the supervisory official "receives
However, personal involvement will not exist if the superior officer receives a complaint, but delegates the response and/or investigation to a subordinate. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). In this case, plaintiff claims in his response to defendant's motion that he had "direct contact" with the Sheriff, and that defendant D'Agostino told plaintiff to speak with the floor officer. However, plaintiff has never alleged when this alleged conversation with D'Agostino took place, nor has he ever indicated when he wrote letters to the defendant. Plaintiff only alleges in his complaint that he wrote letters to defendant D'Agostino and had not received any response as of May 15, 2015 — shortly before filing the instant complaint. (Compl. at p.12). Such vague allegations are insufficient to establish personal involvement. See Guillory v. Cuomo, 616 F. App'x 12, 14 (2d Cir. 2015) (affirming sua sponte dismissal when plaintiff did not allege when and where the letters to defendant Cuomo were sent, what they said, or how they were sent).
Even assuming the truth of plaintiff's statement, defendant D'Agostino's alleged advice to plaintiff to address his issues to the floor officer, is equivalent to referring plaintiff's letter of complaint to a subordinate for investigation. The fact that defendant D'Agostino directed plaintiff to subordinates for obtaining relief does not create personal involvement in the alleged violation that plaintiff was attempting to remedy. See Smith v. City of New York, No. 14 Civ. 5927, 2017 WL 2172318, at *8 (S.D.N.Y. May 16, 2017) (granting summary judgment based on a lack of personal involvement because "mere complaints made to supervisory defendants are not enough to establish supervisory liability) (citing Faulk v. New York City Dep't of Corrections, No. 08 Civ. 1668, 2014 WL 239708, at *10 (S.D.N.Y. Jan. 21, 2014) (granting summary judgment where plaintiff alleged only that he spoke to the warden several times about his grievances)).
Although plaintiff also states that he "spoke" with defendant D'Agostino, "as" the Sergeant refused to accept plaintiff's grievance, this statement is vague and to conflict with plaintiff prior statement in which he claims that when he spoke to defendant D'Agostino, the Sheriff told plaintiff to speak with the floor officer. (Def.'s Ex. J at 2-3). The fact that plaintiff may have spoken to defendant D'Agostino about his grievance is insufficient to show that defendant D'Agostino was personally involved in violating plaintiff's constitutional rights, given plaintiff's statement that D'Agostino told plaintiff how he needed to go about complaining about his mattress. Faulk, supra. Thus, this court finds that plaintiff has failed to allege the requisite personal involvement to sustain a section 1983 action against defendant D'Agostino.
Defendant D'Agostino has moved for dismissal of the cross-claims asserted by defendants Vena and Bell, Niskayuna Police Officers. (See Dkt. No. 23, ¶ 52). Defendants Vena and Bell allege that any injuries or damages sustained by plaintiff as a result of the incident described in plaintiff's complaint "were sustained in whole or in part by reason of the negligence and culpable conduct of the co-defendants." (Id.) Defendants Vena and Bell also seek apportionment of liability. (Id.)
Plaintiff has brought this claim pursuant to 42 U.S.C. § 1983, claiming that defendants violated his federal constitutional rights.
In this case, defendant D'Agostino, Sheriff of Schenectady County was named as a defendant in connection with conditions of confinement at SCJ, while defendants Vena and Bell, Niskayuna Police Officers were named in connection with an allegedly unconstitutional search during plaintiff's arrest. (Compl. generally). The only remaining claim against defendant D'Agostino was in relation to his claimed denial of a constitutionally adequate mattress. This issue is completely unrelated to the claims against defendants Vena and Bell, and there is certainly no indication of any agreement with these unrelated officers, who do not even work for the same municipality. In addition, defendants Vena and Bell have failed to respond to defendant D'Agostino's motion, notwithstanding the great amount of time that has passed since its filing on June 1, 2017. Thus, the court can only assume that defendants Vena and Bell do not oppose dismissal of their frivolous cross-claims. Based on the law, and the failure of the defendants to oppose defendant D'Agostino motion, this court recommends that any cross-claims filed by defendants Vena and Bell be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
