DAVID E. PEEBLES, Chief Magistrate Judge.
This is a civil rights action brought by pro se plaintiff Arkil LionKing Zulu, a New York State prison inmate, pursuant to 42 U.S.C. § 1983, against five corrections officers stationed at the Marcy Correctional Facility ("Marcy"), located in Marcy, New York. In his complaint, plaintiff alleges that he was assaulted by those corrections officers, in violation of his rights arising under the Eighth Amendment of the U.S. Constitution.
In order to permit the court to resolve the exhaustion defense raised by defendants prior to trial, the assigned district judge referred the matter to me for the purpose of conducting an evidentiary hearing and issuing a report and recommendation addressing the issue. Based upon the evidence adduced at that hearing, I conclude that plaintiff failed to fully exhaust his administrative remedies prior to commencing this action, but recommend that he be excused from the exhaustion requirement. The following represent my recommended findings of fact and conclusions of law.
Plaintiff is currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Dkt. No. 51-3 at 12. Although he is presently incarcerated elsewhere, plaintiff was confined to Marcy, the Downstate Correctional Facility ("Downstate") located in Fishkill, New York, or the Upstate Correctional Facility ("Upstate"), located in Malone, New York, at the times that are relevant to his claims and defendants' exhaustion defense. Dkt. No. 51-3 at 35; see also Dkt. No. 78 at 4-5.
Plaintiff alleges that during the early morning hours of January 18, 2015, while he was washing his hands in a dormitory bathroom at Marcy, defendant Jonathan Barnhart became abruptly hostile towards him. Dkt. No. 51-3 at 14-15, 18; see Dkt. No. 1 at 2-3; Dkt. No. 78 at 4. As plaintiff attempted to exit the bathroom, defendant Barnhart ordered plaintiff to stand against the wall. Dkt. No. 51-3 at 15; see Dkt. No. 1 at 2-3. When plaintiff asked if defendant Barnhart was speaking to him, the officer responded, "[y]eah, you, get the fuck on the wall." Dkt. No. 51-3 at 15; see Dkt. No. 1 at 2-3. Although plaintiff complied with the order, defendant Barnhart radioed for additional assistance. Dkt. No. 51-3 at 15; see Dkt. No. 1 at 3.
At that point, defendants D. Leddick, J. Muha, M. Hubal, and Gebo arrived on the scene. Dkt. No. 51-3 at 15-16. When plaintiff asked defendant Barnhart a question, the officer grabbed his hair and slammed his face into the wall twice. Dkt. No. 51-3 at 18; see Dkt. No. 1 at 3-4. Plaintiff alleges that while he was being escorted from the bathroom to Marcy's special housing unit ("SHU"), each of the officers assaulted him in some manner. Dkt. No. 51-3 at 18-20, 75; Dkt. No. 1 at 4-5.
Plaintiff was transported to St. Elizabeth's Hospital in Utica, New York, where he received three stitches to each of his left and right eyebrows. Dkt. No. 51-3 at 27, 32, 72, 104; see also Dkt. No. 1 at 5. As a result of this incident, plaintiff experienced permanent scarring from the sutures and suffered from approximately three weeks of migraine headaches. Dkt. No. 51-3 at 27-28, 72.
This action was commenced on or about November 28, 2016. Dkt. No. 1. Following the close of discovery, on January 9, 2018, defendants moved for the entry of summary judgment dismissing the claims remaining in the action following the court's initial review pursuant to 28 U.S.C. §§ 1915(e), 1915A.
In their motion, defendants argued that plaintiff failed to properly comply with the requirement that he exhaust available administrative remedies prior to the commencement of this suit. Dkt. No. 51. In response, plaintiff claimed that although he attempted to grieve the underlying incident, DOCCS personnel effectively thwarted his efforts. Dkt. No. 59. On August 22, 2018, I issued a report in which I recommended that defendants' motion be denied without prejudice due to "squarely conflicting accounts" concerning whether plaintiff attempted to file or appeal multiple grievances connected to the events that gave rise to this action. Dkt. No. 63 at 16.
Judge D'Agostino adopted my report and recommendation in its entirety on September 12, 2018, Dkt. No. 66, and subsequently referred the matter to me to conduct an evidentiary hearing, pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011), in order to determine whether plaintiff did in fact exhaust available administrative remedies with respect to his claim before filing suit and, if not, whether his failure to fulfill the exhaustion requirement should be excused. Dkt. No. 69.
An evidentiary hearing was subsequently conducted by me on January 30, 2019. See generally Dkt. No. 78. Plaintiff was represented at that hearing by pro bono counsel assigned by the court.
It is undisputed that plaintiff failed to file and pursue to completion a grievance regarding defendants' alleged use of excessive force. Plaintiff contends, however, that he should be excused from that obligation because his administrative remedies were not effectively unavailable to him at the relevant times. See generally Dkt. No. 82. First, he argues that prison officials failed to adhere to the procedural safeguards for inmates confined in a special housing unit ("SHU") as outlined in 7 N.Y.C.R.R. § 701.7. Dkt. No. 82 at 1-2. He further contends that although he attempted to appeal his grievance, the DOCCS personnel employed to run the inmate grievance program effectively frustrated those attempts. Id. 2-4. Finally, he submits that certain aspects of Directive 4040 are so opaque and confusing that the grievance procedure became incapable of use under the circumstances presented. Id. at 4-5.
For their part, defendants argue that plaintiff failed to meet his burden of adducing evidence that would excuse his failure to exhaust, and that as a result, he should not be relieved of that obligation. See generally Dkt. No. 83. Defendants further maintain that plaintiff's testimony during the hearing was contradictory, inconsistent, and, at times, illogical. See generally id.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC")
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal.
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(g). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified period of time. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above-described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (internal quotation marks omitted)).
While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies." (internal quotation marks omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (internal quotation marks omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA.
Prior to addressing the parties' arguments, the court must determine who, as between plaintiff and defendant, bears the burden of proof with respect to the exhaustion defense. Because the failure to exhaust administrative remedies is an affirmative defense, and not a pleading requirement, see Jones v. Bock, 549 U.S. 199, 216 (2007); Williams, 829 F.3d at 123, the party asserting a failure to exhaust administrative remedies typically bears the ultimate burden of proving its essential elements by a preponderance of the evidence. See, e.g., Hamlet v. Stotler, No. 17-CV-0939, 2018 WL 2729263, at *5 (N.D.N.Y. Apr. 27, 2018) (Dancks, M.J), report and recommendation adopted by 2018 WL 2727875 (N.D.N.Y. Jun 6, 2018) (Sharpe, J.); Soria v. Girdich, No. 04-CV-0727, 2007 WL 4790807, at *2 (N.D.N.Y. Dec. 6, 2007) (DiBianco, M.J.) (citing McCoy v. Goord, 255 F.Supp.2d 233, 247 (S.D.N.Y. 2003)); Howard v. Goord, No. 98-CV-7471, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).
In Nelson v. Plumley, No. 12-CV-0422, 2015 WL 4326762 (N.D.N.Y. Jul. 14, 2015) and Bailey v. Fortier, No. 09-CV-0742, 2012 WL 6935254 (N.D.N.Y. Oct. 4, 2012), report and recommendation adopted by, 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013), I acknowledged the existence of an ambiguity with respect to the appropriate burdens of production and persuasion in the context of exhaustion. Nelson, 2015 WL 4326762, at *7; Bailey, 2012 WL 6935254, at *5-*6; see also Calloway v. Grimshaw, No. 09-CV-1354, 2011 WL 4345299, at *5 & n. 5 (N.D.N.Y. Aug. 10, 2011), report and recommendation adopted by 2011 WL 4345296 (N.D.N.Y. Sep. 15, 2011) (McAvoy, J.); Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at * 4 & n. 17 (N.D.N.Y. Mar. 31, 2010). In particular, several district court decisions, "while referencing the burden of proof applicable to an affirmative defense, seem to primarily address an inmate's burden of production, or of going forward, to show facts that would form the basis for finding of unavailability, estoppel, or special circumstances, rather than speaking to the ultimate burden of persuasion." Nelson, 2015 WL 4326762, at *7 (emphasis in original); see Bailey, 2012 WL 6935254, at *6.
In Nelson, I ultimately determined that although the burden of production may shift to the plaintiff to demonstrate unavailability of the grievance process, the ultimate burden of proof remains with the defendant at all times. Nelson, 2015 WL 4326762, at *7; Bailey, 2012 WL 6935254, at *6; see Puga v. Choto, No. 11-CV-0070, 2014 WL 675824, at *5 (N.D.N.Y. Feb. 21, 2014) (McAvoy, J., adopting report and recommendation by Hummel, M.J.). While the Nelson and Bailey decisions were decided prior to Ross—and therefore applied the Hemphill factors—given that "unavailability" is a critical and central element of the legal standard outlined by both Hemphill and Ross, I see no reason to depart from my previous reasoning. See Adams v. O'Hara, No. 16-CV-0527, 2019 WL 652409, at *4 (N.D.N.Y. Feb. 15, 2019) (Suddaby, C.J.); Coleman v. Nolan, No. 15-CV-40, 2018 WL 4732778, at *4 n. 2 (N.D.N.Y. Oct. 2, 2018) (Baxter, M.J.); Smith v. Kelly, 985 F.Supp.2d 275, 284 (N.D.N.Y. 2013) (Suddaby, C.J.). I conclude, therefore, that although the burden of proof on this affirmative defense remains with the defendant at all times, the plaintiff can be required to produce evidence in order to defeat it. See Smith, 985 F. Supp. 2d at 284.
As will be seen, at the evidentiary hearing, plaintiff testified that he first attempted to file a grievance regarding defendants' alleged use of force on January 19, 2015, Exh. C-3, and a second, amended grievance concerning the incident on January 22, 2015, Exh. C-1. As a preliminary matter, defendants contend that plaintiff should be precluded from relying upon the January 19, 2015 grievance based upon his failure to produce it in response to a discovery request that plaintiff produce all grievances regarding the excessive force claim.
Federal Rule of Civil Procedure 37(c)(1) provides, in pertinent part, that
Fed. R. Civ. P. 37(c)(1); see Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). Despite the strict mandate of Rule 37(c)(1), however, the Second Circuit has rejected the view that the rule invariably requires exclusion of evidence not previously disclosed. MacDermid Printing Sols. LLC v. Cortron Corp., 883 F.3d 172, 189 n. 75 (2d Cir. 2016) (citing Design Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006)). As a result, the impact of Rule 37 is moderated by the court's deliberation of certain relevant factors to be considered when determining whether to preclude evidence, including (1) the explanation given for failing to comply with the operative discovery order; (2) the importance of the evidence at issue; (3) whether prejudice would suffered by the opposing party in having to respond to the new evidence; and (4) the possibility of a continuance. Softel, Inc. v. Dragon Med. & Sci. Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997) (citing Outley v. City of N.Y., 837 F.2d 587, 590-91 (2d Cir. 1988)).
Rule 37(c)(1) is further tempered by the overarching principle that preclusion is viewed by the courts as a drastic remedy. Courts prefer, whenever possible, to resolve disputes on their merits rather than on the basis of procedural technicalities. S.E.C. v. Euro Sec. Fund, No. 98-CV-7347, 2009 WL 2709316, at *4 (S.D.N.Y. Aug. 27, 2009) ("Strong public policy favors resolving disputes on the merits.") (quoting Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 172 (2d Cir. 2001)). Accordingly, the sanction of preclusion should be imposed only "in those rare cases where a party's conduct represents flagrant bad faith and callous disregard of the Federal Rules of Civil Procedure." Cornell Research Found., Inc. v. Hewlett-Packard Co., 01-CV-1974, 2006 WL 5097357, at *5 (N.D.N.Y. Nov. 13, 2006) (Peebles, M.J.) (citations omitted) (emphasis in original).
In this case, on June 12, 2017, plaintiff provided his Rule 26 disclosures to defendants' counsel, which included "[p]laintiff's grievance complaint pertaining to the incident on January 18, 2015, appeal to the [f]acility superintendent, [and] appeal to the [CORC.]" Dkt. No. 51-3 at 98-100; see also Dkt. No. 51-3 at 105 (cover letter dated January 25, 2015); id. at 106-107 (grievance dated January 22, 2015). Although plaintiff provided a number of documents to opposing counsel, he did not provide a copy of the January 19, 2015 grievance with his disclosures. See generally Dkt. No. 51-3 at 105-31.
Defendants' counsel then deposed plaintiff on September 8, 2017, at which point the parties went through plaintiff's disclosures in "painstaking detail[.]" Dkt. No. 83 at 83; see also Dkt. No. 83 at 179-272. At that time, plaintiff testified as follows:
Dkt. No. 83 at 218. In addition, the following colloquy occurred:
Dkt. No. 83 at 252-53. At no time during his deposition did plaintiff mention having drafted or filed a grievance on January 19, 2015. See generally Dkt. No. 83 at 179-272.
Following plaintiff's deposition, defendants' counsel served a demand for documents pursuant to Rule 34 of the Federal Rules of Civil Procedure, requesting, inter alia, the following:
Dkt. No. 83 at 279. In a letter dated January 17, 2018, plaintiff acknowledged receipt of defendants' discovery demand, but indicated that he was having difficulty responding due to problems with the mail and a lack of funds. Dkt. No. 83 at 283. On February 12, 2018, plaintiff provided documents responsive to defendants' demands, but once again failed to provide a copy of the January 19, 2015 grievance. Dkt. No. 83 at 285-334.
Plaintiff also responded to defendants' motion for summary judgment, which raised the exhaustion issue, on or about March 5, 2018. Dkt. No. 59. In that response, plaintiff continued to adhere to his position that the first grievance that he submitted in connection with defendants' actions was filed on January 22, 2015. Dkt. No. 59-7 at 2.
When the matter proceeded to an exhaustion hearing before the court on January 30, 2019, plaintiff testified, for the first time, that he drafted and filed his first grievance on January 19, 2015. Tr. 6, 8, 40.
While plaintiff's failure to provide requested discovery, even as a pro se litigant, cannot be countenanced by the court, after a thorough and careful review of the record, as well as consideration of the relevant factors, see Softel, Inc, 118 F.3d at 961, I conclude that plaintiff did not display flagrant bad faith or callous disregard of the Federal Rules of Civil Procedure such that preclusion of the January 19, 2015 grievance would be appropriate. Cornell Research Found., Inc., 2006 WL 5097357, at *5. Plaintiff's failure to provide the January 19, 2015 grievance appears to stem not only from his misapprehension regarding the scope of discovery, but also his disorganization, coupled with the realities of being confined to a prison setting. When the issue was addressed at the hearing, plaintiff indicated his mistaken belief that the January 19, 2015 grievance "[did not] exist" because he filed an "amended grievance" on January 22, 2015, effectively rendering the first one a nullity. Tr. 63-64. According to plaintiff, he believed that he did not need to produce the first grievance "because [he] wanted to start from my amended grievance" on January 22, 2015. Tr. 64.
This is not to say that the court is unsympathetic to defendants' frustrations. There is, however, at least some reference to plaintiff having attempted to file another grievance prior to January 22, 2015, albeit this is more easily discerned with the benefit of hindsight. First, plaintiff's correspondence log indicates that he sent a grievance on January 19, 2015. Exh. P-1. Moreover, the January 22, 2015 grievance specifically references a "the first grievance[.]" Exh. C-1 at 2. Plaintiff's March 19, 2015 letter to Erin Pfendler, the IGP Supervisor for Marcy, also refers to a grievance filed on January 19, 2015. Exh. D-9. Although the January 19, 2015 grievance was undoubtedly encompassed by defendants' demand pursuant to Rule 34 of the Federal Rules of Civil Procedure, see Dkt. No. 83 at 275-80, and should have been disclosed by plaintiff to defendants well prior to the recent exhaustion hearing, when plaintiff failed to produce it, defendants' counsel did not follow up with a motion to compel its production.
I note, moreover, that there does not appear to be any significant prejudice inuring to defendants as a result of plaintiff's significant delay in disclosing the first grievance. As will be discussed more thoroughly further on in this report, the consideration of the January 19, 2015 grievance would not alter the court's ultimate conclusion with respect to exhaustion. Accordingly, I find no basis pursuant to Rule 37(c) to preclude the court's consideration of the January 19, 2015 grievance, which was belatedly produced for the first time at the exhaustion hearing on January 30, 2019.
Plaintiff has been in the custody of the DOCCS since 1996. Dkt. No. 51-3 at 12. During the hearing, plaintiff evinced a fairly good—albeit occasionally incorrect—understanding of the procedure that governs inmate grievances. See generally Tr.; see also Dkt. No. 83 at 178-259.
Plaintiff testified that when he sends a correspondence, including a grievance, he utilizes carbon paper, retaining the carbon copy for his records. Tr. 38; see also Dkt. No. 83 at 208 ("I keep copies of everything[.]"), 224-25. While plaintiff generally maintains a contemporaneous list of the items that he sends, this matter is somewhat complicated by the fact that his correspondence log for the relevant time period appears to have been misplaced, resulting in plaintiff attempting to re-create the log from his memory. Tr. 5, 30-31, 38-39; see also Dkt. No. 83 at 208.
Plaintiff was confined to the SHU at Marcy immediately following the January 18, 2015 incident at issue in this case. Tr. 4. On January 19, 2015, he wrote a grievance regarding the incident. Tr. 4-6, 36, 59-60; see also Exh. P-1; C-3. On the same day, an unidentified officer announced mail rounds in the SHU, and plaintiff presented the grievance, along with his other mail, to that officer. Tr. 6-7, 27-28; see also Tr. 101-102; Dkt. No. 83 at 207-08, 214, 222; see also Exh. P-1 ("Grievance to [g]rievance department[.]"). The officer then placed those mail items in a "makeshift" mailbox located in the SHU. Tr. 7, 27-28; see also Dkt. No. 83 at 208, 214.
Because plaintiff did not initially know the names of every officer involved in the underlying incident, when he subsequently learned of their identities, he drafted an "amended grievance" on January 22, 2015. Tr. 8, 10; compare Exh. C-1 (amended grievance) with Exh. C-3 (firsts grievance). On January 25, 2015, plaintiff then drafted a "cover letter,"
Exh. P-3; see Tr. 9-10; see also Dkt. No. 83 at 213-15.
On February 1, 2015, when plaintiff's grievance was not acknowledged, plaintiff re-submitted the amended grievance to the IGP. Exh. C-2, Tr. 42-43, 49-50, 55; see also Exh 83 at 217-18. Plaintiff's correspondence log contains an entry for February 1, 2015, and indicates that he "sent [a] copy of [the] [a]mended grievance to [the] grievance department." Exh. P-1.
According to the applicable regulations, a member of the facility's IGP staff is required to "make rounds" of all SHU areas on a weekly basis. Tr. 90-92, 100; see 7 N.Y.C.R.R. § 701.7(c)(1). Erin Pfendler, the IGP Supervisor for Marcy, testified that although she generally made rounds once each week, shortly following her promotion to the position on January 15, 2015, she "was out with kidney stones" for several weeks. Tr. 100-01, 116-18, 127-28, 129. While the precise dates of Ms. Pfendler's absence were not narrowed down by the parties during the exhaustion hearing, plaintiff testified that during the three-week period that he was confined to the SHU at Marcy, he did not see any individuals from the IGRC. Tr. 45-46.
On February 6, 2015, the DOCCS began the process of transferring plaintiff to Upstate, with an intervening stop at Downstate. Tr. 33; Exh. D-1. Plaintiff was confined to Downstate when the twenty-one-day period provided by 7 N.Y.C.R.R. § 701.5(a)(1) expired. Exh. D-1; see also D-3. Plaintiff was ultimately received at Upstate on February 9, 2015. Exh. D-3.
On February 15, 2015, plaintiff attempted to follow up on his efforts to file a grievance complaining of the use of excessive force. Tr. 33-34, 49-50; see Exh. D-4; see also Dkt. No. 83 at 218-19. In a letter to the grievance supervisor at Marcy, inter alia, plaintiff stated:
Exh. D-4; see Exh. P-1 ("Wrote to IGP supervisor at Marcy about receiving amended grievance"). Appended to the letter was a copy of plaintiff's amended grievance dated January 22, 2015.
Exh. D-5; see also Tr. 34-35; P-1 ("Wrote IGRC").
According to Ms. Pfendler, it was only upon the receipt of plaintiff's letters from February 15, 2015 and February 17, 2015 that her office was alerted to the underlying incident by the plaintiff. Tr. 104-07, 114. Ms. Pfendler testified that although plaintiff could have requested an extension of time to file a grievance regarding the excessive force incident, he did not expressly do so in his letter, and she believed that she had no obligation to inform plaintiff that he could ask for one. Tr. 107-08, 121.
By memorandum dated February 23, 2015, Ms. Pfendler responded to plaintiff on behalf of Justin J. Thomas, the superintendent of Marcy, although plaintiff denied ever having received that response. Tr. 35, 105-06, 126; see Exh. D-6. After addressing the two other, unrelated grievances, Ms. Pfendler stated:
Exh. D-6.
In a letter dated March 9, 2015 to Superintendent Thomas, plaintiff attempted to file an appeal regarding the amended grievance dated January 22, 2015.
By letter dated March 19, 2015, plaintiff again wrote to Ms. Pfendler. Exh. D-9. In that letter, he claimed to have filed a first, initial grievance on January 19, 2015, and a second, amended grievance on January 22, 2015, and then noted that he handed the amended grievance to an SHU officer on February 1, 2015. Exh. D-9. He further indicated that he wrote the February 15, 2015 letter because the "Marcy grievance committee was not replying to [his] [a]mended grievance." Exh. D-9. In a memorandum dated March 25, 2015, Ms. Pfendler again responded and indicated that the officer "did not receive an `amended' grievance complaint prior to [February 17, 2015]." Exh. D-10; Tr. 111.
In response, by letter dated March 31, 2015, plaintiff stated:
Exh. D-11 (errors in original). Plaintiff further asserted that Ms. Pfendler did not understand his letters, and reiterated that he timely filed both the first, initial grievance and the second, amended grievance. Exh. D-11; Tr. 112. By memorandum dated April 3, 2015, Ms. Pfendler responded that plaintiff's grievance was untimely, but that if he wished to pursue the issue further, he could "do so by filing a grievance at [his] current facility." Exh. D-12; Tr. 112. Plaintiff answered by indicating he was merely attempting to exhaust his grievance. Exh D-13. In further reply, Ms. Pfendler reiterated that all grievances should be filed at plaintiff's current facility. Exh. D-14.
Plaintiff testified that as he understood the grievance procedure, when the superintendent failed to respond to a grievance within twenty-five days, he could proceed to appeal the grievance directly to the CORC. Tr. 49. In that regard, by letter dated May 18, 2015, plaintiff attempted to do just that. Exh. D-15. In that letter, plaintiff stated,
Exh. D-15 (any errors in original). Tr. 76. Karen Bellamy, the Director of the IGP, responded to plaintiff's letter, stating:
Exh. D-16; Tr. 75-77, 92-93; 130.
The parties do not seriously dispute that plaintiff failed to obtain a final, administrative adjudication of his excessive force grievance from the CORC prior to the commencement of this suit. Tr. 74-75; see D-2. Accordingly, I recommend a finding that defendants have met their burden of proving, by a preponderance of the evidence, that plaintiff failed to exhaust the administrative remedies provided under the IGP prior to the filing of his complaint on or about November 28, 2018. Dkt. No. 1. This recommendation leaves one further inquiry for the court: whether or not the IGP was "actually available" to plaintiff in light of the specific circumstances of this case. Williams, 829 F.3d at 119 (Ross, 136 S. Ct. at 1858-59).
Under the DOCCS IGP procedure, plaintiff was initially required to file a grievance with the IGRC within twenty-one calendars days of January 18, 2015 incident—in this case, no later than February 8, 2015. See 7 N.Y.C.R.R. § 701.5(a)-(b); see also 7 N.Y.C.R.R. § 701.8. As inmate confined to the SHU for the majority of that twenty-one-day time frame, plaintiff was required to rely on prison officials to transmit his grievance to the IGP.
In that respect, plaintiff credibly testified that he attempted to file (or re-file) a grievance on January 19, 2015, January 22, 2015, January 25, 2015, and February 1, 2015; all of those attempts were well within the twenty-one-day period for filing a grievance. Exh. C-1 (January 22, 2015); C-2 (February 1, 2015); C-3 (January 19, 2015); P-3 (January 25, 2015).
Complicating matters for plaintiff is that although the regulations contain a safety net allowing an inmate confined to the SHU "direct access" to the grievance program once per week, enabling an inmate to address precisely this very situation, see 7 N.Y.C.R.R. § 701.7(c), Ms. Pfendler, the IGP employee who would ordinarily conduct those rounds, was absent during the critical time for plaintiff to file a timely grievance and she did not designate a back-up to conduct weekly rounds in the SHU during her absence. Tr. 116-17, 127-28. According to plaintiff, no IGRC staff members made rounds during his SHU confinement at Marcy. Tr. 11. Further impeding plaintiff's grievance efforts is the fact that as the time period for filing a timely grievance was nearing a close, he was transferred out of Marcy to Upstate, with several intervening days spent at Downstate. See Woodward v. Lytle, No. 16-CV-1174, 2018 WL 4643036, at *4 (N.D.N.Y. Sept. 27, 2018) (quoting Williams, 829 F.3d at 126).
Frustrating plaintiff's efforts even further is the fact that upon his attempt to re-submit his previous grievance through the Marcy grievance program, see Exh. D-4; D-5, he was informed that his attempts were untimely under the twenty-one-day rule, see Exh. D-6; D-8. Although plaintiff believed that he did not need to request an extension in light of his prior, timely attempts to grieve the use of force, DOCCS personnel failed to inform him that he was within the forty-five-day period during which he could have been granted an extension of the filing deadline, and DOCCS personnel did not deem his correspondence as requesting such an extension. Exh. D-6; D-8. When plaintiff indicated that he wished to proceed with an appeal, his appeal was not forwarded to the CORC, and DOCCS personnel adhered to their position that plaintiff's attempts to grieve were untimely. Exh. D-8; D-9. When plaintiff persisted in outlining the history of the efforts that he had undertaken to timely file a grievance, see Exh. D-9, D-11, D-13, he was instructed to file "a grievance at your current facility." Exh. D-10; D-12, D-14.
Although defendants argue that plaintiff was under a duty to appeal the non-response to his grievance, their reliance on pre-Williams caselaw in this specific instance is misplaced in light of the fact that plaintiff's initial, timely grievances were not filed. See, e.g., Cicio v. Wenderlich, No. 13-CV-195S, 2017 WL 1437206, at *5-6 (W.D.N.Y. Apr. 24, 2017) (granting summary judgment against plaintiff for failure to exhaust when he failed to appeal a grievance for which
Williams, 829 F.3d at 124 (internal citations omitted); see also Trahan v. Capozzola, No. 12-CV-4353, 2017 WL 9512406 (E.D.N.Y. Jun. 26, 2017) ("[T]he Court sees nothing in the governing regulations or handbook which addresses how to pursue administrative remedies when a grievance is unfiled and unanswered.").
In this case, plaintiff credibly met his burden of production by documenting his efforts to file grievances, pursuant to the appropriate DOCCS and facility-specific procedures, and defendants failed to meet their ultimate burden by a preponderance of the evidence. The general evidence submitted regarding the mail and grievance procedures at Marcy was insufficient to overcome plaintiff's evidence, notwithstanding his lack of knowledge as to how his grievances might have been diverted after they left his possession. Defendants' evidence is largely consistent with plaintiff's claim that, for whatever reason, the timely grievances that he attempted to submit while confined to the SHU at Marcy were not filed. The absence of any official records of plaintiff's initial attempts to grieve the incident comports with plaintiff's assertion that once he handed a grievance through the feed-up hatch in the SHU, it was out of his possession and it was not filed.
Although plaintiff had a well-developed understanding of the grievance process, his familiarity with the standard IGP regulations could hardly make his situation less "opaque" or render administrative remedies somehow more available to him. Williams, 829 F.3d at 124. If anything, plaintiff's understanding of how the IGP process functions in the ordinary course bolsters his claim that the usual process did not unfold in this circumstance by suggesting that the filing failure did not result from plaintiff's own ineptitude. There is no evidence in the record that the absence of any grievances at Marcy regarding the incident is attributable to plaintiff, and it is readily apparent that plaintiff's persistent efforts to follow up, re-file, and appeal the grievances were consistently frustrated by DOCCS officials.
In sum, based upon the unique circumstances of this case, and without detracting from the importance of satisfying the PLRA's exhaustion obligation and fulfilling the procedural requirements of the DOCCS IGP, I recommend that the court find the IGP was not "actually" available to plaintiff, and that he should therefore be excused from the exhaustion requirement.
The parties in this action do not dispute that plaintiff did not exhaust available administrative remedies prior to commencing this action. However, plaintiff has produced credible evidence that he made multiple attempts to file a timely grievance with respect to the underlying excessive force incident, but that those grievances were never processed despite his repeated inquiries. It is therefore hereby respectfully
RECOMMENDED that the court conclude that because the remedies under the Inmate Grievance Program were rendered unavailable to plaintiff with regard to grievances complaining of an alleged assault by defendants on January 18, 2015, plaintiff's remaining claims in this action are not barred by the Prison Litigation Reform Act based upon a failure to exhaust administrative remedies.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report.
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
