THÉRÈSE WILEY DANCKS, Magistrate Judge.
Michael A. Demuth ("Demuth" or "Plaintiff") commenced this civil rights action under 42 U.S.C. § 1983 regarding alleged violations of his constitutional rights. (Dkt. No. 16.) According to Demuth, Corporal Hand ("Defendant"), a correctional officer at Chenango County Correctional Facility, failed to notarize certain "time sensitive" legal material in violation of his First Amendment right to access the courts. (Dkt. No. 16.)
Currently before the Court is Defendant's motion for summary judgment. Defendant argues he is entitled to summary judgment because Plaintiff failed to exhaust his administrative remedies and his claim is meritless. (Dkt. No. 38.) Plaintiff did not respond to Defendant's motion for summary judgment despite several extensions of time to do so. Therefore, the Court considers Defendant's motion unopposed. For the reasons that follow, the Court recommends granting Defendant's motion on exhaustion grounds and dismissing this case with prejudice.
A court "shall grant summary judgment 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). As noted above, Plaintiff failed to respond to Defendant's motion for summary judgment. Plaintiff's failure to oppose Defendant's motion results in the admission of properly supported facts, however the Court must still ensure those facts show Defendant is entitled to judgment as a matter of law. See Jackson v. Federal Express, 766 F.3d 189, 194 (2d Cir. 2014) (a non-response to a summary judgment motion does not risk default because the district court must ensure that each statement of material fact is supported by the record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed) (citing Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242-46 (2d Cir. 2004) (even when a motion for summary judgment is not opposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law)).
Late on June 22, 2018, Plaintiff requested notary services using the Chenango County Correctional Facility form. (Dkt. No. 38-2 at ¶ 3.) Defendant was the only notary on duty the following day on June 23, 2018. Id. at ¶ 4. There is a genuine factual dispute as to the events that took place June 23, 2018. To that end, Defendant asserts he was at Plaintiff's cell pod and asked him if he needed notary services, but Plaintiff did not respond. Id. at ¶¶ 6, 8. Plaintiff, on the other hand, contends Defendant purposefully ignored his requests for notary services. (Dkt. No. 16.) Such a dispute exists because, though Plaintiff failed to respond to Defendant's motion for summary judgment, the record includes signed affidavits from three witnesses who assert Defendant did not attempt to acquiesce Plaintiff's notary request. (Dkt. No. 16-2.)
Nonetheless, though this dispute is material to the merits of Plaintiff's claim, it is not material with respect to the issue of exhaustion. To that end, it is undisputed that (1) Plaintiff submitted a formal grievance regarding notary services on July 11, 2018, (Dkt. No. 38-2. at ¶¶ 26, 27); (2) Plaintiff's grievance was denied on July 12, 2018, id. at ¶ 28; and (3) Plaintiff did not appeal that determination, id.
Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[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). Exhaustion is required for "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 v. Nussle, 534 U.S. 516, 532 (2002).
Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones v. Bock, 549 U.S. 199, 216 (2007). Whether a plaintiff has exhausted his administrative remedies is a question of law. Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999). Thus, an inmate's failure to exhaust administrative remedies is properly considered on a motion for summary judgment. Crichlow v. Fischer, No. 6:15-CV-06252 EAW, 2017 WL 920753, at *5 (W.D.N.Y. Mar. 7, 2017) (citing Mckinney v. Prack, 170 F.Supp.3d 510, 514 (W.D.N.Y. 2016) (granting a motion for summary judgment made in lieu of an answer where inmate failed to exhaust administrative remedies)).
To properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the institution to which they are confined. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly").
The Chenango County Correctional Facility has a seven-step inmate grievance procedure. (Dkt. No. 38-16 at 26-28.) First, the inmate must "attempt to reach a solution with the Corrections Officer assigned" to his housing area. Id. at 27. Second, the inmate may request an informal complaint form. Id. Third, the inmate may request a formal grievance form. Id. Fourth, the grievance is investigated and the Investigating Grievance Officer provides a written determination within five business days of receiving the complaint. Id. Fifth, the inmate may appeal to the Jail Administrator or his or her designee within two business days of receiving the Grievance Officer's decision. Id. Sixth, the Jail Administrator responds within five business days. Id. Seventh, the inmate may appeal to the State Commission of Corrections, which responds within forty-five days. Id.
Here, it is undisputed Plaintiff failed to avail himself of the full panoply of administrative remedies at Chenango County Correctional Facility. As noted above, Plaintiff filed a formal grievance on July 11, 2018. (Dkt. No. 38-2 at ¶ 27.) That grievance was denied on July 12, 2018, and Plaintiff never appealed. (Dkt. No. 38-15 at ¶ 11.) Thus, the Jail Administrator and the State Commission on Corrections never had a chance to review Plaintiff's grievance.
Moreover, Plaintiff's original complaint was signed on June 23, 2018—the same day the events at issue in this lawsuit took place—and filed on June 28, 2018. In the Second Circuit, if a prisoner files suit in federal court before exhausting administrative remedies, the federal court must dismiss the complaint—suspending or continuing the action until administrative remedies are exhausted cannot "save a case from dismissal." Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter, 534 U.S. 516. For these reasons, the Court finds Plaintiff failed to exhaust his administrative remedies.
Nevertheless, while the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1858 (2016). More specifically, Section 1997e(a) provides only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]" (quotation marks and citations omitted)). In the PLRA context, the Supreme Court has determined "availability" means "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 (quotation marks and citations omitted).
The Ross Court identified three circumstances in which a court may find internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
In Williams v. Correction Officer Priatno, the Second Circuit noted "the three circumstances discussed in Ross do not appear to be exhaustive[.]" 829 F.3d 118, 123 n.2 (2d Cir. 2016). The illustrations of unavailability in Ross nonetheless guide the Court's inquiry. See Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
There is no evidence in the record showing the Chenango County Correctional Facility grievance procedure "operate[d] as a simple dead end" to Plaintiff, nor is there any evidence that prison administrators prevented Plaintiff from using the grievance procedure due to "machination, misrepresentation, or intimidation." See Ross, 136 S. Ct. at 1859-60. The only Ross factor that could potentially be raised is unavailability due to an "opaque" administrative scheme. See id. However, even if the Court were to be extremely deferential to Plaintiff's pro se status, there is no evidence to establish an issue of fact as to the program's opacity.
Therefore, the Court recommends granting Defendant's motion for summary judgment on exhaustion grounds.
It is appropriate for the Court to dismiss a claim without prejudice for failing to exhaust administrative remedies "[i]f the time permitted for pursuing administrative remedies has not expired." Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (quoting Snider, 199 F.3d at 111-12). However, the Court may dismiss the claim with prejudice if the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is unable to cure his failure to exhaust. Id. at 88.
Here, more than a year has passed since Plaintiff should have appealed the grievance. As Plaintiff's failure to exhaust his administrative remedies is incurable at this point, the Court recommends dismissing Plaintiff's action with prejudice. See Castineiras v. Helms, No. 9:17-CV-1084 (BKS/ATB), 2019 WL 2870300, at *5-6 (N.D.N.Y. June 6, 2019).
After carefully considering the record, the Court finds Plaintiff failed to exhaust his administrative remedies.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.
Kevin Damion Crichlow, Romulus, NY, pro se.
Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants
ELIZABETH A WOLFORD, United States District Judge
Presently before the Court are: Defendants' motion for summary judgment (Dkt. 177), Plaintiff's motion for discovery (Dkt. 182), Plaintiff's motion to appoint counsel (Dkt. 182), Plaintiff's motion for a stay (Dkt. 182), Plaintiff's motion for a medical exam (Dkt. 187); Plaintiff's motion for reconsideration (Dkt. 192), Plaintiff's motion to amend (Dkt. 192), Plaintiff's motion for a hearing (Dkt. 192), Defendants' motion for sanctions (Dkt. 195), and Plaintiff's motion for sanctions (Dkt. 198).
For the reasons stated below, Defendants' motion for summary judgment is granted in part and denied in part, Plaintiff's motion for discovery is denied without prejudice, Plaintiff's motion to appoint counsel is denied without prejudice, Plaintiff's motion for a stay is denied without prejudice, Plaintiff's motion for a medical exam is denied, Plaintiff's motion for reconsideration is denied, Plaintiff's motion to amend is denied as moot, Plaintiff's motion for a hearing is denied, Defendants' motion for sanctions is denied without prejudice; and Plaintiff's motion for sanctions is denied.
Plaintiff's amended complaint spans 142 pages (See Dkt. 12). Following severance of the action Into three separate parts, this Court retained Plaintiff's claims in which he asserts violations of his constitutional rights by Defendants relating to Plaintiff's incarceration at the Wende Correctional Facility ("Wende") and treatment at Wyoming Community Hospital (See Dkt. 223)
Plaintiff alleges actions occurring at Wende beginning on or about September 27, 2008—the date Plaintiff was transferred to Wende—through his transfer to Eastern Correctional Facility on November 16, 2010 (See Dkt. 12 at 14-36, Dkt 12-1 at 1-12)
Plaintiff alleges inadequate or nonexistent medical care throughout his incarceration at Wende, in violation of the Eighth Amendment. Plaintiff argues that he was not provided mental health treatment as required (Dkt. 12 at 19), and that he was "unreasonably exposed to infectious disease" (id. at 25, 36, Dkt. 188 at 35-36, 38-39) Plaintiff alleges deficient dental care from "2008 into 2013 at 3 [New York Department of Corrections and Community Supervision] prisons" (Dkt. 12 at 36). He contends he was not provided care for "alot of pain hip, jaw, hand, tooth's also need replacement of four's lost teeths & restoration of function and `oral surgery & periodontics.'" (Id. at 31; see, e.g., Dkt. 12-1 at 1). Plaintiff further alleges that he was denied dental care at Wende on June 30, 2008, to fix a "broken jaw." (Dkt. 12 at 36) As to his medical care, Plaintiff states that Defendant George Boucher, M.D., was grossly negligent in misdiagnosing an injury to Plaintiff's hand, which led to Plaintiff's receiving the "wrong surgery" on January 13, 2010 (Dkt. 12-1 at 2). Plaintiff complains that he was denied treatment for "injuries hip, back, shoulder, head" for "about 68 months" (Id. at 3). Plaintiff also asserts that he was subjected to a risk of disease due to asbestos in Wende. (Dkt. 12 at 21-24, 31; Dkt. 188 at 35).
Plaintiff complains that Defendant T.M.C. Christopher Zaluski ("Zaluski") and others failed to provide reasonable accommodations for Plaintiff's hearing disability. (Dkt. 12 at 14-16, Dkt. 12-1 at 1). Plaintiff alleges that he was in New York Department of Corrections and Community Supervision ("DOCCS") custody for six months before receiving hearing aids. (Dkt. 12 at 30, Dkt. 12-1 at 1). He also claims that he was denied equal access to opportunities and recreation in Wende because of his hearing disability, and that the failure to accommodate his hearing disability was retaliation for his standing up for himself and other disabled inmates. (Dkt. 12 at 33-35; Dkt. 12-1 at 11-12).
Plaintiff claims he was harassed and verbally abused while at Wende He alleges numerous instances of sexual harassment by Defendant C.O. Attea, and states that he reported such harassment to others, including the superintendent of Wende. (Id. at 17-18, 19, 31). Plaintiff claims that on June 18, 2010, Brooks verbally abused and threatened Plaintiff (Dkt. 12-1 at 8-9) Plaintiff asserts C.O. Corey Petties verbally abused and threatened Plaintiff on July 12, 2010 (Id. at 9-10) Plaintiff alleges that DOCCS has a "common practice to encourage and further its employee's, and officers discrimination and harassment and assault and [deprivation] of proper nutrition." (Dkt. 12 at 20).
Plaintiff also raises Fourteenth Amendment due process claims. Plaintiff complains of unspecified disciplinary proceedings that led a total of 180 days of disciplinary confinement between 2008 and 2010. (Id. at 29) Plaintiff claims his due process rights were violated because of the handling of "over 150" grievances filed through November 16, 2010, by Defendants Director Karen Bellamy ("Bellamy") and Sergeant William Scott ("Scott"). (Id. at 27-30). Plaintiff asserts that he was retaliated against for filing grievances and that no investigations were conducted into his claims. (Id. at 28). Plaintiff states that he filed over 300 grievances. (Dkt. 209-3 at 8; see, e.g., Dkt. 211 at 1)
He also alleges that on July 4, 2010, C.O. Hojsan destroyed Plaintiff's legal documents in the Wende law library, thereby depriving Plaintiff of an opportunity to be heard by the courts. (Dkt. 12-1 at 10-11). Hojsan also allegedly denied Plaintiff access to the law library. (Id. at 11)
Plaintiff complains that a fire broke out in his cell block on April 12, 2010, and that the correctional officers in the area, including Olszewski, failed to respond to calls for help (Id. at 6-7) Plaintiff claims that he was denied "fresh-air" and was thereafter denied medical care. (Id. at 7).
Plaintiff further contends that on some unspecified date Zaluski instructed others not to let Plaintiff out of his cell, in retaliation for Plaintiff's filing of grievances against Zaluski. (Dkt. 12 at 30).
Plaintiff complains that Defendant Brian Fischer ("Fischer") —the commissioner of DOCCS during Plaintiff's incarceration at Wende—knew of constitutional violations against Plaintiff and failed to take action (Dkt. 12-1 at 4-5) Plaintiff states that he personally sent "several letters" detailing inadequate health care and assault. (Id. at 4). Plaintiff also contends that Defendants "disregarded conditions posing an excessive risk to [his] health and safety ...," and that prison staff was inadequately trained (Id.).
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita Elec., 475 U.S. at 586-87). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"[A] party may file a motion for summary judgment at any time until 30 days after the close of all discovery" Fed. R. Civ. P. 56(b). But, summary judgment is generally not appropriate until after some discovery has occurred See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating that summary judgment is appropriate on the proper showing "after adequate time for discovery"); see, e.g., Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) ("[S]ummary judgment should only be granted if after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof" (emphasis original) (internal quotation marks and citations omitted)). "Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery." Hellstrom, 201 F.3d at 97, see also Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) ("The nonmoving party should not be `railroaded' into his offer of proof in opposition to summary judgment" (citing Celotex, 477 U.S. at 326)).
Defendants argue that some of Plaintiff's claims are time-barred by the statute of limitations. (Dkt. 177-5 at 3) "In [§] 1983 actions, the applicable limitations period is found in the `general or residual state statute of limitations for personal injury actions....'" Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). A § 1983 action filed in New York is subject to a three-year statute of limitations. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013).
Here, Plaintiff filed this action October 16, 2012. (Dkt. 1). Therefore, any claim arising before October 16, 2009, is barred by the statute of limitations Plaintiff points to the "continuing violation doctrine" to save his otherwise time-barred claims. (Dkt. 209-3 at 21-22).
Here, Plaintiff alleges four patterns of conduct which occurred both before and after October 16, 2009: (1) denial of adequate medical and dental treatment, (2) denial of adequate nutrition and hygiene, (3) discrimination and failure to accommodate based on Plaintiff's disability, and (4) denial of due process rights.
The continuing violation doctrine applies to Eighth Amendment claims for deliberate indifference to medical needs See Shomo, 579 F.3d at 182 ("[T]he continuing violation doctrine can apply when a prisoner challenges a series of acts that together comprise an Eighth Amendment claim of deliberate indifference to serious medical needs.") Plaintiff raises a number claims that he was denied adequate medical and dental treatment, which, taken together, could comprise an Eighth Amendment claim for deliberate indifference to serious medical needs Plaintiff also complains of ongoing deprivations of adequate food and access to showers and laundry Prison officials' Eighth Amendment obligations require that they "ensure that inmates receive adequate food, shelter, and medical care...." Farmer v. Brennan, 511 U.S. 825, 833 (1994).
Defendants argue that Plaintiff failed to allege the existence of a policy of deliberate indifference (Dkt. 196-2 at 10). The Court disagrees Plaintiff's amended complaint includes allegations that senior prison officials, including Fischer, knew of ongoing violations related to Plaintiff's inadequate heath care but failed to take action Plaintiff claims he sent letters to Fischer to point out the inadequacies of his health care at Wende Plaintiff also attaches a reply letter from Bellamy in which Bellamy states that she is responding to Plaintiff's letters on behalf of "governor Cuomo and Commissioner Fischer." (Dkt. 209-4 at 2) Plaintiff also asserts that the practices complained of "are widespread, longstanding, and deeply embedded in the culture of all [DOCCS] agenc[ies], constitut[ing] unwritten [DOCCS] policies & customs" (Dkt. 12-1 at 5).
Similarly, the amended complaint can be read as alleging a continuing violation as to Defendants' indifference to Plaintiff's nutrition and hygiene needs Plaintiff alleges that he was routinely deprived of meaningful opportunities to shower and exercise, and was not provided adequate nutrition (Dkt. 12 at 25, see, e.g., id. at 26). Plaintiff states that while he was in keeplock, collections officers were told not to feed him (Id. at 26). He also claims that he was only allowed to shower six times in a nine-month period, and that "his clothing and linen's [sic] were never laundered." (Id. at 27).
Plaintiff's allegations are sufficient to establish a plausible claim of "an ongoing policy of deliberate indifference and acts taken in accordance with that policy." See Taylor v. Goord, Civil Action No. 9.09-CV-1036 (FM/DEP), 2010 WL 3825661, at *7 (N.D.N.Y. Sept. 2, 2010), report and recommendation adopted by No. 9:09-CV-1036 (FM/DEP), 2010 WL 3825656 (N.D.N.Y. Sept. 24, 2010). Cf. Bussey v. Fischer, Civil Action No. 9:10-CV-1021 (NAM/DEP), 2011 WL 4862478, at *5 (N D.N.Y. Aug. 1, 2011) (finding a plaintiff failed to allege an ongoing policy of deliberate indifference sufficient to show a continuing violation where the alleged unwritten policy was inconsistent with written policies and requirements), report and recommendation adopted by No. 9:10-CV-1021 (NAM/DEP), 2011 WL 4499324 (N.D.N.Y. Sept. 27, 2011). Thus, particularly at this stage of the proceedings, Plaintiff's pre-October 16, 2009, claims as to inadequate medical and dental treatment, as well as inadequate food and hygiene, survive Defendants' statute of limitations defense.
Plaintiff also claims due process violations related to the processing of his grievances and disciplinary hearings In this context, the continuing violation doctrine does not apply to Plaintiff's Fourteenth Amendment due process claims because "[e]ach decision made without due process is a discrete violation, and the statute of limitations begins to run from the date that the plaintiff was denied the full and fair hearing he was entitled to" Bunting v. Fischer, 14-CV-0578-RJA-MJR, 2016 WL 4939389, at *3 (W.D.N.Y. Aug. 4, 2016) (citing Gonzalez, 802 F.3d at 223), report and recommendation adopted by 14-CV-578A, 2016 WL, 4804099 (W.D.N.Y. Sept. 14, 2016). Thus, all of Plaintiff's claimed due process violations which occurred before October, 16, 2009, are subject to the statute of limitations and must be dismissed.
In sum, at this stage in the proceedings, Plaintiff's claims of deliberate indifference to medical care, inadequate food and hygiene, and the failure to provide reasonable accommodations for his hearing disability all survive Defendants' statute of limitations challenge Plaintiff's due process claims which are based on the processing of his grievances and which arose before October 16, 2009, are time barred and must be dismissed.
Next, Defendants argue that many of Plaintiff's claims must be dismissed for failure to exhaust administrative remedies (Dkt. 177-5 at 4-6). An inmate's failure to exhaust administrative remedies is properly considered on a motion for summary judgment made in lieu of an answer See Crenshaw v. Syed, 686 F.Supp.2d 234, 236 (W.D.N.Y 2010) (granting a summary judgment motion made in lieu of answer where inmate failed to exhaust administrative remedies). Pursuant to 42 U.S.C. § 1997e, "[n]o action shall be brought with respect to prison conditions under [§ 1983], 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).
Crenshaw, 686 F. Supp. 2d at 236 (citations omitted). "Exhaustion is mandatory—unexhausted claims may not be pursued in federal court." Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). "[D]efendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity." McCoy v. Goord, 255 F.Supp.2d 233, 248 (S.D.N.Y. 2003). Pursuant to the Second Circuit's decision in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), a failure to exhaust administrative remedies may be excused where. "(1) the administrative remedies were not in fact available, [or] (2) prison officials have forfeited, or are estopped from raising, the affirmative defense of non-exhaustion, or (3) `special circumstances justify the prisoner's failure to comply with administrative procedural requirements.'" Dabney v. Pegano, 604 Fed.Appx 1, 3 (2d Cir. 2015) (quoting Hemphill, 380 F.3d at 686). However, the third prong of Hemphill, relating to "special circumstances" was abrogated by the Supreme Court's decision in Ross v. Blake, 136 S.Ct. 1850 (2016). Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016). The inquiry which used to be under the third prong of Hemphill, is now considered "entirely within the context of whether administrative remedies were actually available to the aggrieved inmate" Id.
In response to Defendants' assertion that Plaintiff failed to exhaust his administrative remedies for most of his claims, Plaintiff claims that DOCCS lost or destroyed his grievances (Dkt. 209-3 at 19 (claiming that DOCCS destroyed meritorious grievances). Dkt. 211 at 1 (same)). "Plaintiff's wholly conclusory and unsupported allegations that grievances are tampered with at [Wende] do not create a material issue of fact in this case." See Mans v. Yehl, Nos. 13-CV-6405-FPG, 14-CV-6304-FPG, 14-CV-6305-FPG, 2014 WL 4715883, at *4 (W.D.N.Y. Sept. 22, 2014).
However, Defendants' submissions show that Plaintiff has satisfied the exhaustion requirement for some potential claims. Defendants' sworn declaration from Jeffery Hale—the Assistant Director of the DOCCS Inmate Grievance Program —states that Plaintiff exhausted 25 grievances between the beginning of his incarceration in 2008 and the filing of this action in October 2012 (Dkt. 177-3 at 2) Of those 25 exhausted grievances, 23 relate to Plaintiff's incarceration at Wende. (See id. at 5-6). Defendants provide only a printout listing the titles and grievance numbers of the 23 exhausted grievances that arose at Wende (see id.), they did not submit any paperwork relating to the grievances themselves or the final resolution of any exhausted grievance. (See Dkt. 177).
Plaintiff clearly exhausted some potential claims which could be raised in federal court pursuant to § 1997e However, the Court cannot determine whether the claims Plaintiff raises in this action are those which have been exhausted because neither party submitted sufficient information which would allow the Court to make such a determination It is possible that none of Plaintiff's exhausted grievances relate to the named Defendants in this action, it is equally possible that all 23 exhausted grievances relate to actions taken by the named Defendants. Since Defendants seek summary judgment on this basis, it is their burden to establish the lack of any issue of material fact on the exhaustion argument They have failed to meet this burden Thus, Defendants' motion based upon Plaintiff's alleged failure to exhaust is denied.
Regardless of whether grievances were exhausted or whether the claims were timely asserted, Plaintiff's due process claims relating to disciplinary confinement and grievance processing fail as a matter of law and summary judgment is appropriate.
Plaintiff alleges due process claims related to disciplinary proceedings which led to disciplinary confinement (Dkt. 12 at 29). "[A] prisoner asserting a § 1983 claim for denial of due process at a disciplinary hearing must first identify a liberty interest protected by the Due Process Clause of which he was deprived, and then show that he was deprived of that interest without due process of law." Aguirre v. Kendra, 123 F.Supp.3d 419, 422 (W.D.N.Y. 2015) "Prison discipline implicates a liberty interest when it `imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison" Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (quoting Sandie Conner, 515 U.S. 472, 484 (1995)). Where a prisoner alleges that he was confined to the Special Housing Unit ("SHU") as the result of a disciplinary hearing, the court considers how long the confinement lasted, along with "the conditions of the prisoner's segregated confinement relative to the conditions of the general prison population," in determining whether a liberty interest is implicated. Vasquez v. Coughlin, 2 F.Supp.2d 255, 259 (N.D.N.Y. 1998). "Both the conditions and their duration must be considered, since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical." Sealey Giltner, 197 F.3d 578, 586 (2d Cir. 1999) (internal citation omitted).
Here, Defendants argue that none of Plaintiff's disciplinary confinements violated Plaintiff's due process rights (Dkt. 177-5 at 6-7). Defendants submitted Plaintiff's prison disciplinary record. (See Dkt. 177-4) The records show Plaintiff was subjected to only one non-time-barred SHU confinement at Wende. (See id. at 8). That SHU confinement was for 30 days. (Id.) Plaintiff does not argue that the conditions of his confinement were in any way abnormal or atypical Because Plaintiff's disciplinary confinement fell within the "short" range and did not involve any abnormalities, it did not implicate any liberty interest sufficient to raise a due process violation Plaintiff's due process claims as to disciplinary confinement at Wende fail as a matter of law.
Plaintiff also raises due process complaints about the handling of his grievances. (See Dkt. 12 at 27-30, Dkt. 209-2 at 21) It is well-established that inmates do not have a protected liberty interest in the processing of their prison grievances. See Torres v. Mazzuca, 246 F.Supp.2d 334, 342 (S.D.N.Y. 2003). "[Although] there is a First Amendment right of meaningful access to the courts and a right to petition the government for redress, inmate grievance procedures are not required by the Constitution and therefore a violation of such procedures does not give rise to a claim under § 1983 "Cancel v. Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001) (internal citations omitted)
Plaintiff has no liberty interest in the prison grievance program. Even if Defendants violated their own procedures in processing Plaintiff's grievances, Plaintiff cannot find relief under § 1983. A prisoner may raise due process claims related to disciplinary hearings. Montalvo v. Lamy, 139 F.Supp.3d 597, 608 (W.D.N.Y. 2015); Richard v. Fischer, 38 F.Supp.3d 340, 358-59 (W.D N.Y. 2014) However, Plaintiff's allegations here relate only to allegedly faulty grievance processing; Plaintiff makes no allegations of due process violations related to disciplinary hearings. Therefore, these claims fail as a matter of law.
Plaintiff's only claim against Defendants Bellamy and Scott are the due process claims related to the grievance process. Because Plaintiff's claims fail, Defendants Bellamy and Scott must be dismissed from the action.
Finally, Plaintiff alleges that he was retaliated against because he filed grievances (Dkt. 12 at 28).
For the foregoing reasons, Defendants' motion for summary judgment is granted with respect to Plaintiff's alleged due process claims, but is denied as to Plaintiff's Eighth Amendment claims related to the alleged denial of adequate medical treatment and adequate food and nutrition, and it is also denied with respect to Plaintiff's claims alleging retaliation and the failure to provide reasonable accommodations for Plaintiff's disability.
Plaintiff moves this Court to open discovery (Dkt. 182) Plaintiff states that he is "asking for interrogatory answers and other evidence [to] show that the material facts are in dispute." (Id. at 2). Plaintiff also states that discovery will allow him to show that he filed "over 300 grievances." (Id.)
The Court construes Plaintiff's motion as one under Fed. R. Civ. P. 56(d). In opposing a summary judgment motion, if a nomnovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it, (2) allow time to obtain affidavits or declarations or to take discovery, or (3) issue any other appropriate order." Fed. R. Civ. P. 56(d).
Alphonse Hotel Corp. v. Tran, 828 F.3d 146, 151 (2d Cir. 2016) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)).
Here, Plaintiff has not submitted any sworn affidavit or declaration requesting particular information, nor has he described how the material requested is germane to his defense related to the due process claims (the only claims on which the Court has granted summary judgment). As discussed above, the due process claims are barred as a matter of law, and Plaintiff has not made a showing that discovery would alter that conclusion. Therefore, the motion for discovery is denied without prejudice to Plaintiff seeking discovery with respect to the claims that remain
As part of Plaintiff's motion for discovery, he also moves this Court to appoint counsel "to assist [Plaintiff] in preparing his case...." (Dkt. 182 at 5). Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants, see, e.g., Sears, Roebuck Co. v. Charles Sews Real Estate, Inc., 865 F.2d 22, 23-24 (2d Cir. 1988), and the assignment of pro bono counsel in civil cases is within the trial court's discretion In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The court must evaluate "the merits of [the] plaintiff's case, the plaintiff's ability to pay for private counsel, his efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A. Sargenti Inc., 877 F.2d 170, 172 (2d Cir. 1989). Particular attention must be paid to the merits of the plaintiff's claim Id. ("Even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim." (quoting Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986))). Additionally, for prison inmates, the court must also give weight to the plaintiff's lack of practical access to attorneys. Id. at 173-74.
However, the Cooper factors all weigh against appointing counsel at this time. Plaintiff's motion papers provide no information suggesting that he attempted to obtain counsel to assist in his case. (See Dkt. 182 at 5). As the Second Circuit has noted, "[t]he vast majority of litigation on behalf of personal claimants is financed initially by lawyers who accept the representation for a contingent fee in the expectation of being rewarded by a share of the winnings" Cooper, 877 F.2d at 173 In the absence of an affirmative statement by Plaintiff otherwise, the Court assumes that he has not sought an attorney to represent him This weighs against the appointment of counsel.
The Court also finds that the Plaintiff has failed to show anything more than a remote possibility of success on the merits Plaintiff's ultimate success on the merits faces significant hurdles, including Defendants' defense that Plaintiff failed to exhaust his administrative remedies. This too weighs heavily against the appointment of counsel.
Balancing the factors set forth in Cooper, the Court finds that appointing counsel is inappropriate at this time, and Plaintiff's motion is denied without prejudice.
Plaintiff moves this Court to stay the action while he undergoes surgery on his wrist, aim, and back (Dkt. 182 at 6) Plaintiff does not disclose the date of the surgery, or any further information which would allow the Court to evaluate the necessity of such a stay. (See id.) Plaintiff has not sufficiently shown a need for a stay in the litigation Therefore, the motion is denied without prejudice.
Plaintiff asks this Court, pursuant to Fed. R. Civ. P. 35, to order a medical examination so that he can access medical care for currently occurring medical issues. (Dkt. 187). Rule 35 permits a court to order "a party whose ... condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner The court has the same authority to order a party to produce for examination a person who is in its custody...." Fed. R. Civ. P. 35 "In order to obtain a medical examination under Rule 35, the moving party must establish `good cause....'" Kelly v. Times/review Newspapers Corp., CV 14-2995 (JMA) (SIL), 2016 WL 2901744, at *1 (E.D.N.Y. May 18, 2016). "`Rule 35 does not, however, authorize a party to file a motion for his own physical examination.' Neither may a plaintiff invoke Rule 35 in order to receive medical care." Rodriguez v. Conway, No. 10-CV-6243L, 2011 WL 4829725, at *3 (W.D.N.Y. Sept. 6, 2011) (citations omitted), affirmed in relevant part by No. 10-CV-6243L, 2011 WL 4829869 (W.D.N.Y. Oct. 12, 2011).
Here, Plaintiff's current medical condition is not "in controversy" Plaintiff has already submitted records regarding his medical and dental maladies for the time period at issue in this action. (See Dkt. 209-5 at 1-27) Defendants have in no way challenged the substance of Plaintiff's claimed medical needs during his incarceration at Wende from 2008 to 2010 Further, Plaintiff cannot use Rule 35 to receive medical care Therefore, Plaintiff's motion is denied.
Plaintiff also filed a motion which, in essence, asks the Court to allow Plaintiff to amend his response to Defendants' motion for summary judgment. (Dkt. 192). The Court granted such relief already (Dkt. 208), and Plaintiff already filed amended response papers (Dkt. 209, Dkt. 211). Therefore, Plaintiff's motion is denied as moot because he has already received the requested relief.
Plaintiff further asks the Court to hold a hearing "to cover several issue[s] that Plaintiff [does not] fully[ ] understand." (Dkt. 192 at 3). Plaintiff also seeks scheduling conferences or orders pursuant to Fed. R. Civ. P. 16(b) and 26(1). The Court finds that neither a hearing nor a scheduling order is necessary at this time. If Plaintiff has legal questions, he may retain an attorney or do further legal research to answer those questions. It is not the Court's role to answer such questions. Thus, Plaintiff's motion is denied. Once an answer is filed, the case will proceed to discovery.
Defendants move this Court to impose sanctions on Plaintiff pursuant to Fed. R. Civ. P. 11. (Dkt. 195). Defendants argue that, as part of his response to the motion for summary judgment, Plaintiff filed a grievance exhausted by another inmate, claiming the grievance as one Plaintiff had himself exhausted (Dkt. 195-2 at 1-2 (citing Dkt. 188-8 at 2)). Plaintiff allegedly did so in an attempt to show that the Jeffery Hale declaration was knowingly false and that Defendants had destroyed Plaintiff's grievances. (Id. (citing Dkt. 188 at 12)).
A party or counsel for a party is required by the Federal Rules of Civil Procedure to certify that, to the best of their knowledge, the factual contentions made have evidentiary, support Fed. R. Civ. P. 11(b)(3). Rule 11 allows the court to "impose an appropriate sanction on any attorney, law firm, or party that violated [Rule 11(b)] or is responsible for the violation." Fed. R. Civ. P. 11(c)(1). "Sanctions may be— but need not be—imposed when court filings are used for an `improper purpose,' or when claims are not supported by existing law, lack evidentiary support, or are otherwise frivolous." Ipcon Collections LLC v. Costco Wholesale Corp., 698 F.3d 58, 63 (2d Cir. 2012) (citation omitted). "Further, even when a district court finds a violation of Rule 11, `the decision whether to impose a sanction is committed to the district court's discretion.'" Id. (quoting Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004)).
Defendants argue that "the only appropriate sanction in this matter is dismissal." (Dkt. 195-2 at 3). The Court disagrees. The grievance at issue relates to a complaint which arose during 2012 and 2013 (Dkt. 188-8 at 2) Even if Plaintiff was the grievant, the grievance itself would be irrelevant to this Court's inquiry into Plaintiff's incarceration conditions from 2008 until 2010. Indeed, the grievance at issue was not taken into account during the Court's review of the motion for summary judgment because it is irrelevant to the time frame at issue Further, although the filing of false documents in bad faith to a cant can, in egregious cases, result in dismissal, see Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2013 WL 1208558 (W.D.N.Y. 2013), report and recommendation adopted by 2014 WL 1224574 (W.D.N.Y. 2014), aff'd, 600 Fed.Appx. 34 (2d Cir. 2015), such an extreme sanction is not warranted at this time. However
Finally, Plaintiff asks this Court to impose sanctions on Defendants for making materially misleading and false statements to the Court in its response in opposition (Dkt. 174) to Plaintiff's letter motion (Dkt. 172). (Dkt. 198) The Court denied Plaintiff's motion as unrelated to the claims at issue in this action (Dkt. 176).
Read generously, Plaintiff argues that Defendants' counsel failed to acknowledge in his response that one of the individuals named in the letter motion was also a named Defendant in this action. (See Dkt. 198 at 1-2). Such a misstatement is immaterial and does not warrant sanctions As Plaintiff failed to assert any material violation of Rule 11, sanctions are inappropriate, and Plaintiff's motion is denied.
For the foregoing reasons, the Court
GRANTS IN PART AND DENIES IN PART Defendants' motion for summary judgment (Dkt. 177);
INSTRUCTS the Clerk of Court to terminate Defendants Bellamy and Scott from this action;
DIRECTS Defendants to answer the complaint within 30 days of the filing of this Decision and Order,
DENIES Plaintiff's motion for discovery (Dkt. 182) without prejudice,
DENIES Plaintiff's motion to appoint counsel (Dkt. 182) without prejudice,
DENIES Plaintiff's motion for a stay (Dkt. 182) without prejudice,
DENIES Plaintiff's motion for a medical exam (Dkt. 187);
DENIES Plaintiff's motion for reconsideration (Dkt. 192);
DENIES Plaintiff's motion to amend (Dkt. 192) as moot;
DENIES Plaintiff's motion for a hearing (Dkt. 192);
DENIES Defendants' motion for sanctions (Dkt. 195) without prejudice, and
DENIES Plaintiff's motion for sanctions (Dkt. 198).
SO ORDERED.
Not Reported in Fed. Supp., 2017 WL 920753
Jonathan Mena, Stormville, NY, pro se
Omar Javed Siddiqi, Ryan Glenn Shaffer, New York City Law Department, New York, NY, for Defendants.
RICHARD J. SULLIVAN, District Judge
On September 9, 2012, while incarcerated at the Otis Bantum Correctional Center ("OBCC") on Rikers Island, Plaintiff was placed in an intake cell in tie OBCC's receiving area, which he shared with two other individuals (56.1 Stmt. ¶¶ 2-3.) Plaintiff alleges that the cell was extremely cold, vermin-infested, and too small to accommodate three men (See Doc No. 54-1 ("Compl.") 4, 8.) Plaintiff further alleges that these conditions, coupled with the constant noise made by the two other inmates, prevented him from sleeping for the entire 60-hour period that he was held in the cell. (See id. at 4.) Consequently, he asked Defendant, who was on duty, to transfer him to a different cell. (56.1 Stmt. ¶¶ 7-8.) According to Plaintiff, Defendant responded that there was "nothing he could do" about the situation (Id. ¶ 9, see also Doc. No 54-2 ("Mena Dep.") 59:5-8.)
Plaintiff avers that he filed a grievance with the OBCC to complain about his experience in the cell (See Compl. at 7.) The New York City Department of Correction ("DOC") has an administrative grievance procedure, known as the Inmate Grievance and Request Program ("IGRP"), for inmates housed at facilities such as the OBCC. The IGRP, which was available and in effect at all times relevant to this lawsuit, requires that inmates first file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within ten days of the complained-of act. (56.1 Stmt. ¶¶ 11-12 see also Doc. No. 54-3 ("IGRP Directive") § IV(D)(1).) The IGRC then attempts to resolve the grievance informally within five days, and if the grievance is not informally resolved, then the inmate may request a formal hearing before the IGRC. (56.1 Stmt. ¶ 12, see also IGRP Directive §§ IV(G)-(H).) An inmate may appeal the IGRC's decision to the commanding officer, or her designee, and subsequent appeals may be taken to the Central Office Review Committee ("CORC"). (56.1 Stmt ¶ 13, see also IGRP Directive §§ IV(I)-(3).) The CORC's decision is the final and binding decision of the DOC, if an inmate disputes the decision of the CORC, he may independently appeal to the Board of Correction (IGRP Directive at 47.) Finally, if an inmate does not receive a timely disposition at any point throughout the grievance process, he has the option of either granting an extension of time to the relevant decisiorunaker (i.e., the IGRC, the commanding officer, or the CORC) or appealing and proceeding to the next level of review. (56.1 Stmt ¶ 14 see also IGRP Directive §§ IV(D) (9)(b)), (10).)
On April 11, 2013, Plaintiff commenced this action by filing a complaint against the City of New York, Correction Officer Jaquon Pickwood ("Pickwood"), Correction Officer Sauda Abdul-Malik ("Abdul-Malik"), and Defendant (collectively, "Defendants"), pursuant to Section 1983, asserting violations of his constitutional rights under the Eighth and Fourteenth Amendments (See Doc. No. 1.) On December 9, 2013, Defendants moved to dismiss the Complaint (Doc. No. 18) On September 17, 2014, the Court granted Defendants' motion to dismiss with respect to Plaintiff's claims against the City of New York, Pickwood, and Abdul-Malik, and Plaintiff's Fourteenth Amendment claims against Defendant for failure to state a claim upon which relief can be granted, but denied Defendants' motion to dismiss with respect to Plaintiff's Eighth Amendment claim against Officer Eason. (Doc No. 29.) On September 11, 2015, following the completion of discovery, Defendant filed the instant motion for summary judgment, along with his brief and his 56.1 Statement, arguing that Plaintiff failed to exhaust administrative remedies, that his Eighth Amendment conditions of confinement claim failed on the merits, and that in any event, Defendant was entitled to qualified immunity (Doc. Nos. 53-55, 57.) Defendant also filed a notice pursuant to Local Civil Rule 56.2 alerting Plaintiff of his obligation to submit a responsive statement and informing him of the consequences of not doing so. (Doc No. 56.) In accordance with Local Rule 56.2, this notice included copies of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1. (Id.) On October 14, 2015, Plaintiff filed a brief opposing sun-unary judgment and submitted several exhibits (see Doc. No. 58), but he failed to submit a responsive 56.1 Statement. Defendant submitted his reply on October 22, 2015. (Doc. No. 59 ("Reply").)
Pursuant to 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. P. 56(a) There is "no genuine dispute as to any material fact" where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties disagree on some or all facts, but even on the nonmoving party's version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a fact is genuinely disputed, the court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show a genuine dispute, the nonmoving party must provide "hard evidence," D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998), "from which a reasonable inference in [its] favor may be drawn," Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). "Conclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir 1998), as well as the existence of a mere "scintilla of evidence in support of the [nonmoving party's] position," Anderson, 477 U.S. at 252, are insufficient to create a genuinely disputed fact. A moving party is "entitled to judgment as a matter of law" on an issue if (1) it bears the burden of proof on the issue and the undisputed facts meet that burden, or (2) the nonmoving party bears the burden of proof on the issue and the moving party "`show[s] — that is, point[s] out ... — that there is an absence of evidence [In the record] to support the nonmoving party's [position]." See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Here, Plaintiff failed to submit a responsive Rule 56.1 statement, even though Defendant, pursuant to Local Civil Rule 56.2, sent Plaintiff notice of his obligations under Local Civil Rule 56.1 and Federal Rule of Civil Procedure 56 and sent copies of both rules (Doc. No. 56) In light of Plaintiff's pro se status, the Court has exercised its discretion to independently review the record, which reveals no controverted facts. See Holtz, 258 F.3d at 73 In fact, as discussed below, Plaintiff's own submissions confirm the material facts contained in Defendant's Rule 56.1 Statement.
Defendant argues that summary judgment should be granted because Plaintiff has failed to comply with the administrative exhaustion requirement of the Prison Litigation Reform Act of 1995 (the "PLRA"). The Court agrees.
Under the PLRA, inmates bringing claims with respect to prison conditions under Section 1983 must exhaust the administrative remedies that are available at that prison before proceeding in federal court 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement is "mandatory," thus "foreclosing judicial discretion." Ross v. Blake, 136 S.Ct. 1850, 1857 (2016); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) (describing the "invigorated exhaustion provision" as "[a] centerpiece of the PLRA's effort to reduce the quantity of prisoner suits" (citations and quotation marks omitted)). Accordingly, "the law is well-settled that the failure to take an available administrative appeal, even when the initial grievance receives no response, constitutes a failure to exhaust available administrative remedies." Garvin v. Rivera, No. 13-cv-7054 (RJS), 2015 WL 3999180, at *3 (S.D N.Y. June 29, 2015); accord Johnson v. N.Y.C. Dep't of Corr., No. 13-cv-6799 (CM), 2014 WL 2800753, at *6 (S.D.N.Y. June 16, 2014) ("Assuming that [p]laintiff filed a timely grievance ... and received no response within five business days[,] [p]laintiff ... could have taken the next step and requested a hearing."); Leacock v. N.Y.C. Health Hosp. Corp., No. 03-cv-5440 (RMB) (GWG), 2005 WL 483363, at *7 (S.D.N.Y. Mar. 1, 2005) ("[T]hat [plaintiff] allegedly did not receive a response to her grievance does not excuse her from failing to exhaust the appellate remedies available to her."), Burns v. Moore, No 99-cv-966 (LMM) (THK), 2002 WL 91607, at *8 (S.D.N.Y. Jan 24, 2002) ("Thus, even if [p]laintiff received no response to his initial grievance, [p]laintiff could have sought the next level of review, in this case, to the prison superintendent.")
The Court next considers whether there is any basis for excusing Plaintiff's failure to exhaust administrative remedies at the IGRP Last month, the Supreme Court forcefully disapproved of judge-made exceptions to the PLRA's exhaustion requirement, stressing the mandatory language of the statute. See Ross, 136 S. Ct. at 1862 ("Courts may not engraft an unwritten `special circumstances' exception onto the PLRA's exhaustion requirement.") In doing so, the Supreme Court expressly rejected the Second Circuit's prior framework under Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), and, by extension, Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), which recognized a "special circumstances" exception to the PLRA's exhaustion requirement. See Williams v. Priatno, No. 14-4777, ___ F.3d ___, ___, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016.) ("[T]o the extent that our special circumstances exception ... permits plaintiff's to file a lawsuit in federal court without first exhausting administrative remedies that were, in fact, available to them, those aspects of Giano and Hemphill are abrogated by Ross.").
Thus, post-Ross, the lone surviving exception to the PLRA's exhaustion requirement is that embedded in its text that an inmate need only exhaust those administrative remedies that are "available" to him. Ross, 136 S.Ct. at 1862, see also 43 U.S.C. § 1997e(a). An inmate's failure to exhaust may therefore be excused when his prison's grievance mechanisms are literally or constructively "unavailable." Ross, 136 S. Ct. at 1858-59. The Supreme Court described three scenarios in which administrative procedures could be "officially on the books," but "not capable of use to obtain relief," and therefore unavailable Id. While not exhaustive, these illustrations nonetheless guide the Court's inquiry See Williams, 2016 WL 3729383, at *4 n.2. First, an administrative procedure is unavailable when "it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to inmates." Ross, 136 S. Ct. at 1859 If prison administrators either lack the necessary authority to provide any relief or possess authority but consistently decline to exercise it, the administrative channels are not "available" within the meaning of the PLRA. Id.; see also Booth v. Churner, 523 U.S. 731, 736, 738 (2001) ("[T]he modifier `available' requires the possibility of some relief."). Second, an administrative procedure is unavailable where it is "so opaque that it becomes, practically speaking, incapable of use" Id. To meet this high bar, the administrative remedy must be "essentially `unknowable.'" Id. Finally, "a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of it through machination, misrepresentation, or intimidation." Ross, 136 S. Ct. at 1860.
Here, Plaintiff has not alleged — let alone shown — that the administrative procedures at the OBCC were unavailable to him Although Plaintiff's initial grievance received no response, this alone is insufficient to show that the IGRP acted as a mere dead end. As stated earlier, "the law is well-settled" that an inmate's "failure to take an available administrative appeal, even when the initial grievance receives no response, constitutes a failure to exhaust available administrative remedies." Garvin, 2015 WL 3999180, at *3 (collecting authorities) In short, the DOC's untimeliness in this case is not enough to demonstrate the unavailability of an administrative remedy. This is especially true in light of the IGRP's built-in appeal mechanism, whereby inmates may directly proceed to the next level of review in the event of the DOC's failure to respond to a grievance (See IGRP Directive § IV(D)(9)(b), (10).) Furthermore, Plaintiff has not introduced any facts to indicate that prison officials at OBCC are "consistently unwilling to provide any relief to aggrieved inmates." Ross, 136 S. Ct. at 1859.
Finally, the Court turns to the third scenario contemplated by the Supreme Court, in which "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859. Plaintiff has not demonstrated, or even suggested, that prison administrators obstructed or interfered with his access to administrative remedies. See, e.g., Winston v. Woodward, No. 05-cv-3385 (RJS), 2008 WL 2263191, at *10 (S.D.N.Y. May 30, 2008.) (concluding that plaintiff's failure to exhaust administrative remedies was not excused in light of his "failure to put forth any corroborating evidence, either direct or circumstantial, to support his claims that he suffered retaliation in the form of threats, harassment and mail tampering"). Thus, this exception to the exhaustion requirement is also clearly inapplicable.
Therefore, the Court concludes, as a matter of law, that Plaintiff has failed to exhaust administrative remedies available to him through the IGRP and has failed to offer any facts to prove that administrative remedies were not available to him Because Plaintiff's claims are barred for failure to comply with the administrative exhaustion requirement of the PLRA, Defendant's motion for summary judgment is granted.
For the reasons stated above, IT IS HEREBY ORDERED that Defendant's motion for summary judgment is GRANTED
Although Plaintiff has paid the filing fee in this action and has not applied to proceed in forma pauperis, the Court nevertheless certifies pursuant to 28 U.S.C. § 1915(a)(3) that, in the event Plaintiff seeks to appeal this Order in forma pauperis, any appeal would not be taken in good faith.
The Clerk is respectfully directed to terminate the motion pending at docket number 53, to mail a copy of this order to Plaintiff, and to close this case.
SO ORDERED.
Not Reported in Fed. Supp., 2016 WL 3948100
ROBERTO CASTINEIRAS, Plaintiff, pro se
AIMEE COWAN, Asst. Attorney General, for defendants.
ANDREW T. BAXTER, United States Magistrate Judge
Presently before the court, is a motion for summary judgment filed by defendant Helms, arguing that plaintiff has failed to exhaust his administrative remedies. In the alternative, defendant argues that plaintiff's Eighth Amendment claim may be dismissed on the merits, and that defendant is entitled to qualified immunity. (Dkt. No. 24). Plaintiff has responded in opposition to the motion, and defendant has filed a reply. (Dkt. Nos. 26, 27). For the following reasons, this court agrees that plaintiff has failed to exhaust his administrative remedies and will recommend that the defendant's motion for summary judgment be granted.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 82 S.Ct. 993, 8 L.Ed.2d 176 (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 Guano 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 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, 127 S.Ct. 910 (citing Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (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, 126 S.Ct. 2378.
The grievance procedure in New York is a three-tiered process The inmate must first file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). N.Y.Comp. Codes R. Regs., tit 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee ("CORC"). Id. § 701.5(d).
There is a special section for complaints of "harassment." Id. § 701.8 Harassment grievances are defined in another section of the regulations as "those grievances that allege employee misconduct meant to annoy, intimidate, or harm an inmate." Id. § 701.2(e) Based on this definition, section 701.8 has been found applicable to claims of excessive force by staff. Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *7 n.7 (S.D.N.Y. Sept. 28, 2018) (citing Torres v. Carry, 691 F.Supp.2d 366, 369-70 (S.D.N.Y. 2009)).
Complaints of harassment are handled by an
Until recently, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly exhausted his administrative remedies. See 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.
Riles, supra (quoting Ross, ___ U.S. ___, 136 S. Ct. at 1859-60).
In Ross, the Supreme Court gave examples of the circumstances under which each of the above would apply. Ross, ___ U. S. ___, 136 S. Ct at 1859-60. The first circumstance listed above involves a case in which the relevant "administrative procedure lacks the authority to provide "any" relief Id. at 1859. The second example is when the administrative procedure "exists," but is so complicated or "opaque" that no ordinary prisoner could "discern or navigate it." Id. Finally, administrative remedies are not available if prison administrators prevent Inmates from taking advantage of the grievance process by misleading or threatening them, preventing their use of the administrative procedure. Id. at 1860. Thus, if a plaintiff fails to exhaust his administrative remedies, the court must consider whether those remedies were "available" to him.
In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir. 2016), the Second Circuit considered whether administrative remedies had been "actually available" to an inmate plaintiff under Ross, after the district court granted the defendants' motion to dismiss for failure to exhaust The plaintiff alleged that, while housed in the special housing unit ("SHU"), he drafted a grievance that he delivered to a correction officer to forward to the grievance office on his behalf. Id. at 120-121. Approximately two weeks later, the plaintiff was transferred to a different facility. Id. at 121 He never received a response to his grievance, and alleged that it was never filed by the officer to whom he had given it. It was undisputed that plaintiff never appealed the grievance. Id.
The defendants in Williams argued that even if the grievance was never filed, the plaintiff was required to appeal it and complete the grievance process. Id. at 124. The defendants relied on a Department of Corrections and Community Services ("DOCCS") regulation that provided that "an inmate may appeal a grievance `to the next step' if he does not receive a timely response." Id. (quoting N.Y.Comp. Codes R. & Regs. tit. 7, § 701.6(g)(2)).
The Second Circuit rejected this argument and held that, for an inmate in the plaintiff's situation, the regulatory scheme was so "opaque" and "confusing" as to be practically unavailable Id. The Second Circuit found that DOCCS regulations "only contemplate appeals of grievances that [have been] actually filed ... [and] give no guidance whatsoever to an inmate whose grievance was never filed." Id. Thus, Williams holds that "the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it." Id. at 126.
Plaintiff attached his grievance to the complaint in this federal action (Compl. at CM/ECF p.7). The grievance is dated "9/21/17," and it was received by the Grievance Committee and given Grievance No UST-61853-17 on "9/22/17." (Id.) Plaintiff's federal complaint was also signed "9/21/17," and it was received by the court on "9/28/17." (Compl. at CM/ECF p. 6 Dkt. No. 1 generally). If plaintiff signed his administrative grievance and his federal complaint on the same day and mailed the federal complaint to the court, it is impossible that plaintiff could have exhausted his administrative remedies before he filed his federal action In fact, in the section of the form-complaint which asks the plaintiff "What was the final result of your grievance?", plaintiff's answer was "[it] is being in investigation under Code 49 harassment/misconduct."
A civil rights claim must be exhausted by the grievance process, which requires the completion of the three-tiered process, before an action asserting that claim may be filed. See, e.g., Casey v. Brockley, No. 9:13-CV-1271, 2015 WL 8008728, at *5 (N.D.N.Y. Nov. 9, 2015), Rep't Rec., adopted, 2015 WL 7864161 (N.D.N.Y. Dec. 3, 2015) See also Klein v. Fischer, No 13-CV-0437, 2015 WL 5174031, at *19 (N.D.N.Y. Sept. 2, 2015) ("a post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the time the action was commenced.").
The court will also examine whether plaintiff exhausted his administrative remedies after filing this action If plaintiff had done so, the federal complaint would still have to be dismissed, but the plaintiff would have been able to re-file the federal complaint immediately because his remedies would already have been exhausted See Brown v. Napoli, 687 F.Supp.2d 295, 298 (W.D.N.Y. 2009), Morales v. Mackalm, 278 F.3d 126, 128 (2d Cir. 2002) (dismissal for failure to exhaust should be without prejudice to refiling following exhaustion). If plaintiff did not exhaust his remedies during the pendency of this action, the dismissal may still be without prejudice, but plaintiff will have to attempt to exhaust his administrative remedies prior to refiling.
In this case, the parties dispute whether plaintiff completed the exhaustion requirement during the pendancy of this action Defendant Helms argues that plaintiff did not appeal the denial of his grievance to the CORC, and thus never completed the administrative grievance process for his claim at all (Dkt. Nos. 24-1, 24-9) Plaintiff argues that he did appeal to the CORC, but did not keep copies of any of the relevant documents. The parties agree that plaintiff filed Grievance UST-61853-17 following the alleged August 21, 2017 incident. (Cowen Dec. Ex. A, at 2). Because plaintiff's grievance involved allegations of employee harassment, it was forwarded directly to Upstate's Superintendent for review and response (Cowen Decl Ex. A at 7) Plaintiff's grievance was subsequently denied by the Superintendent. (Cowen Dec. Ex. A, at 3). However, the parties disagree as to whether plaintiff appealed the Superintendent's decision to the CORC. (Cowen Dec. Ex. A, at 3; Dkt. No. 24 at Dkt. No. 24-5 at 32-33).
In his deposition, plaintiff claims to have filed his appeal to the CORC and claims that the CORC issued a decision denying his grievance. (Pl.'s Dep. at 32-33). Plaintiff's testimony regarding the appeal was vague. Id. Plaintiff has been unable to produce the alleged denial of appeal by the CORC, although he claims to have received such a denial, and has failed to produce any other evidence that the appeal was filed Plaintiff testified that he did not keep a copy of his appeal or of the CORC's decision (Id. at 32). Although plaintiff responded to the defendant's summary judgment motion, he failed to address the exhaustion issue. (See Dkt. No. 26).
Unlike the plaintiff in Williams, this plaintiff does not argue that administrative remedies were unavailable to him Rather, plaintiff claims that he completed all the required steps to exhaust his administrative remedies He alleges that he did not keep the relevant documents It is undisputed that plaintiff filed a grievance and received a decision from the Superintendent denying his claim Because plaintiff has failed to claim that administrative remedies were unavailable to him, any recognized exceptions to the exhaustion of administrative remedies requirement are not relevant to the court's analysis See Ross, 136 S. Ct. at 1853-54.
When a plaintiff fails to exhaust his administrative remedies, the court must dismiss the action without prejudice so that the plaintiff may complete the exhaustion process and re-file his action, unless the time permitted for filing a grievance or appeal has finally expired See Felix v. Simon, 303 F.App'x. 21, 22 (2d Cir. 2008) (upholding dismissal of a civil rights action with prejudice where the time permitted for filing a grievance had expired because "dismissal with prejudice, when remedies are no longer available, is required in the absence of any justification for not pursuing such remedies") (citation omitted).
In this case, the Superintendent's decision was dated October 27, 2017, and the bottom of the document contains an "Appeal Statement," informing the plaintiff that he had "seven (7) calendar days from receipt of this notice to file your appeal.* Please state why you are appealing this decision to C.O.R.C." (Def.'s Ex. A at 3). See 7 N.Y.C.R.R. § 701.5(d) (1)(i). The text associated with the asterisk above states that "*An exception to this time limit may be requested under Directive #4040, section 701.6(g)." (Id.) This document is Form #2133. (Id.) The appeal section of the form is blank, 7 and the regulations specifically provide that "If the grievant or any direct party wishes to appeal to the CORC, he or she must complete and sign form #2133 and submit it to the grievance clerk within seven calendar days after receipt of the superintendent's written response to the grievance."
In his response to defendant's motion, plaintiff references another investigation surrounding the events of August 21, 2017 and argues that his Eighth Amendment claim should survive summary judgment, even if defendant Helms is granted a "partial" summary judgment on his exhaustion argument. (Dkt. No. 26). According to plaintiff, an investigation conducted by the Office of Special Investigations ("OSI") established that the nurse on duty on the day of the incident was guilty of abusive behavior (Dkt. No. 26).
A copy of the investigative report is attached to defense counsel's affidavit as Exhibit B. The OSI report referenced plaintiff and another inmate, who complained about an unrelated, but similar incident involving the nurse. (Cowan Decl. Ex B). The OSI investigated the August 21, 2017 incident (Cowan Dec. Ex. B) The investigation was conducted to look into allegations made by plaintiff, as well as additional allegations by a different inmate at Upstate Correctional Facility, against the nurse on duty during the August 21, 2017 incident (Nurse Marla Travers). (Id.) However, even assuming that this investigation sufficed to exhaust plaintiff's claims against Nurse Travers,
Pursuant to Fed. R. Civ. P. 56(f), a party opposing a motion for summary judgment based on insufficient discovery must file an affidavit describing (1) "the nature of the uncompleted discovery," (2) "how the facts sought are reasonably expected to create a genuine issue of material fact;" (3) "what efforts the affiant has made to obtain those facts" and; (4) "why those efforts were unsuccessful." Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994), see also Brunson v. Jonathan, 677 F.Supp.2d 640, 641 (W.D.N.Y. 2010).
In his response to defendant's motion, plaintiff also argues that he should be allowed to conduct further discovery in this matter in the form of depositions and interrogatories (Dkt. No. 26). Plaintiff has not met the requirements for additional discovery under Rule 56(f). Plaintiff's response to defendant's motion merely states that discovery "in the form of depositions" and "interrogatories" would be "instrumental" to establish defendant's culpability. Plaintiff's vague and conclusory statement fails to demonstrate how his ability to respond to defendant's motion for summary, judgment was impaired by his lack of discovery or what documents he wishes to obtain that would be material to the exhaustion or any substantive issue.
Additionally, in defendant's reply, defense counsel asserts that she complied with the Court's Mandatory Pretrial Discovery, order and forwarded the required discovery material to plaintiff. (Dkt. No. 27). Further, defendant notes that plaintiff had six months to conduct discovery, after defendant filed his answer to plaintiff's complaint on February 6, 2018 (Dkt. No. 16). The deadline for discovery did not expire until August 7, 2018. (Dkt. No. 17). Moreover, defendant's reply states that there is no indication that plaintiff ever demanded any further discovery or an extension of the discovery deadline. Thus, plaintiff has not met the requirements of Rule 56(f).
Based upon the complaint itself, the grievance documents, and Assistant Director Seguin's declarations, plaintiff has failed to raise an issue of fact as to whether, prior to the initiation of this action, he properly filed his grievance and/or appealed the grievance against defendant Helms to the CORC as required by the IGP See, e.g., Ruggiero v. City. 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 and emphasis omitted)).
The court also concludes that there are no issues of fact material to whether plaintiff has ever exhausted his administrative remedies with respect to the claim against defendant Helms. No reasonable fact finder could conclude that plaintiff pursued an appeal to the CORC after he filed this action or that he could still pursue such an appeal within the applicable deadlines Accordingly, I recommend that defendant's motion be granted, and that plaintiff's complaint be dismissed with prejudice based on his failure to exhaust available administrative remedies prior to commencing this action and thereafter, though the expiration of the applicable deadlines to do so.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days within which to file written objections to the foregoing report Such objections shall be filed with the Clerk of the Court
Slip Copy, 2019 WL 2870300
