Opinion
9:16-cv-1062 (DNH/TWD)
07-20-2018
KEITH I. HURST, Plaintiff, v. A. MOLLNOW and EISENSCHMIDT, Defendants.
APPEARANCES: KEITH I. HURST Plaintiff, pro se 105 Hunter Ave., #2 Albany, NY 12206 BARBARA D. UNDERWOOD Attorney General of the State of New York Attorney for Defendants The Capitol Albany, NY 12224 OF COUNSEL: MARK G. MITCHELL, ESQ.
APPEARANCES: KEITH I. HURST
Plaintiff, pro se
105 Hunter Ave., #2
Albany, NY 12206 BARBARA D. UNDERWOOD
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224 OF COUNSEL: MARK G. MITCHELL, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
This matter was referred for Report and Recommendation by the Hon. David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3(c). Pro se Plaintiff Keith I. Hurst, a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), has commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights while confined at Washington Correctional Facility ("Washington"). (Dkt. No. 1.) The sole remaining claim is Plaintiff's Eighth Amendment excessive force claim against Defendants A. Mollnow, a Corrections Officer ("C.O.") and Eisenschmidt, a Sergeant ("Sgt."). (Dkt. No. 12.)
Presently pending is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Dkt. No. 41) for Plaintiff's failure to exhaust administrative remedies before commencing this action. (Dkt. No. 41-11 at 6-13.) Defendants also contend, to the extent Plaintiff's seeks monetary damages against them in their official capacities, they are entitled to Eleventh Amendment immunity. (Dkt. No. 41-11 at 13.) Plaintiff filed a response in opposition to Defendants' motion. (Dkt. No. 57.) Defendants filed a reply. (Dkt. No. 60.) For reasons that follow, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 41) be granted in part and denied in part.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
II. BACKGROUND
A. July 1, 2016, Incident
Plaintiff alleges that on July 1, 2016, while an inmate at Washington, he was subjected to excessive force by C.O. Mollnow and Sgt. Eisenschmidt. (Dkt. No. 1 at 4-5.) On that date, Plaintiff claims he requested to speak to an "area supervisor" regarding his keeplock status. Id. at 4-5. In response, C.O. Mollnow "pulled the pin on her walkie talkie" and several officers, including Sgt. Eisenschmidt responded. Id. The officers physically assaulted Plaintiff, inflicting numerous injuries, while hurling racial epithets at him. Id. Specifically, C.O. Mollnow kicked Plaintiff in the left side of his face and spit on him while he was on the ground. (Dkt. Nos. 1 at 5, 41-2 at 86-88.) Sgt. Eisenschmidt punched Plaintiff in the head, face, and chest, banged his head into the wall, and choked him. (Dkt. Nos. 1 at 5, 41-2 at 157.) The assault lasted approximately ten minutes. (Dkt. No. 41-2 at 98-100.) Afterwards, Plaintiff was taken by bus to Sgt. Eisenschmidt's office. Id. There, Sgt. Eisenschmidt punched, kicked, and choked Plaintiff, and slammed his head against a wall. Id. at 103-104. Plaintiff was then sent to the Special Housing Unit ("SHU"). Id.
B. Plaintiff's Inmate Misbehavior Reports
On July 1, 2016, C.O. Mollnow issued Plaintiff two inmate misbehavior reports for creating a disturbance, harassment, refusing a direct order, making threats, and being out of place. (Dkt. No. 1 at 9, 11-12.) As described in those misbehavior reports, at approximately 1:00 p.m., Plaintiff was "cube visiting" without permission. (Dkt. No. 41-4 at 5.) When C.O. Mollnow told Plaintiff that he was not allowed to cube visit, Plaintiff yelled, "fuck you" and returned to his cube. Id. At Sgt. Eisenschmidt's direction, C.O. Mollnow told Plaintiff he was keeplocked. Id. Plaintiff argued with C.O. Mollnow about his keeplock status, but returned to his cube. Id. At approximately 1:20 p.m., Plaintiff approached C.O. Mollnow's desk and resumed arguing about his keeplock status. Id. at 6. C.O. Mollnow ordered Plaintiff to leave the desk and return to his cube. Id. Plaintiff stepped onto the officer's podium in a threatening manner. Id. C.O. Mollnow activated her alarm; Plaintiff ran to his cube. Id. A response team arrived; Plaintiff was sent to the SHU. Id. No physical force was used in the incident. Id. at 5, 6.
At two Tier III disciplinary hearings conducted on July 11, 2016, Plaintiff pleaded guilty to two counts of creating a disturbance and was found guilty of all other charges. Id. at 7; Dkt. No. 41-2 at 122, 125. He was sentenced to 90 days in the SHU, 90 days loss of recreation, and 90 days loss of good time credits, along with 120 days loss of package, commissary, and telephone privileges. (Dkt. No. 41-2 at 126.) The hearing officer's determinations were affirmed on administrative appeal. (Dkt. No. 41-6 at 1.) On July 15, 2016, Plaintiff was transferred to Upstate Correctional Facility ("Upstate"). (Dkt. No. 41-2 at 142.)
C. Plaintiff's Grievance
In his verified complaint, Plaintiff declares, "I exhausted all of my administrative remedies, grievance, commissioner, governor, inspector general, special litigation of Washington, D.C." (Dkt. No. 1 at 2.) Plaintiff further states, "I filed grievances to the higher authority & never received a response. The facility of Washington never responded to my grievance." Id. at 3.
The Court finds Plaintiff's complaint was adequately verified under 28 U.S.C. § 1746 by Plaintiff's declaration under penalty of perjury. (Dkt. No. 1.)
At his deposition, Plaintiff testified that on or about July 14, 2016, while confined in the SHU at Washington, he filed a grievance with Inmate Grievance Resolution Committee ("IGRC") regarding the July 1, 2016, assault:
Q: Did you file an inmate grievance with the IGRC about the incident on July 1, 2016?
A: Yeah.
Q: You did? On what date?
A: July 14th or 13th. It was the -- it was before they packed me up.
Q: And that was at Washington Correctional?
A: Yeah.
Q: All right. Where did you put the grievance?
A: In the mailbox.
Q: What did the grievance say?
A: It was on a -- it was on a regular piece of paper and it says that I was assaulted July 1st by several officers and -- the sergeant.(Dkt. No. 41-2 at 141.) The next day, on or about July 15, 2016, Plaintiff was transferred to Upstate. Id. at 142. Plaintiff testified he never received a response to his grievance that he filed at Washington:
Q: What else?
A: I don't remember what it says.
Q: All right. And you put that in the mailbox at Washington?
A: Yeah. I know it was about my -- the assault.
Q: Did you get a response to that [grievance]?Id. Plaintiff further explained, "I filed a grievance on [the July 1, 2016, assault] and they made it disappear. They said they never got it. I wrote a grievance . . . ." Id. at 93-94. Plaintiff testified he wrote the Commissioner, the Governor, and Special Litigations. Id. at 94. He "wrote everybody that [] could consider a grievance." Id.
A: I never got a response from it. I contacted the Upstate box -- Inmate Grievance Program to make sure they got my grievance and they said that they never had received it.
Q: All right. So, you put -- you put this grievance in the mailbox at Washington. And then you were transferred to a different facility?
A: Yes, sir.
Q: What date?
A: On the 15th or 16th. I think it was July 15th, when I was transferred out of -- out of there.
Q: Where did you go?
A: Upstate Correctional Facility.
For example, by letter dated August 14, 2016, Plaintiff sent a letter to the Commissioner, regarding the July 1, 2016, incident:
I was assaulted by several officers, including a sergeant. I was called racial slurs & repeatedly kicked & punched. The female officer even kicked me in the face, causing my left eye to become blurry & spit on me. They assaulted me for a very long time. . . . I was beaten on the bus, then I was assaulted in the Sergeant office. He choked me & started banging my head into wall." . . . The Sergeant name is "Eisenschmidt" and the female office name is "A. Mollnow. . . . She also lied on the misbehavior report. I am not letting them get away with this & they should be placed under investigation. . . . Still heard no response from Inmate Grievance—dated 7.14.16. I hope you could look into this matter & save me from doing unnecessary box time. Do your job.(Dkt. No. 1 at 6.)
Plaintiff testified that he also contacted Upstate's IGRC regarding the status of his grievance:
Q: What response did you get?(Dkt. No. 41-2 at 143.) Plaintiff admitted he never appealed to the Central Office Review Committee ("CORC"):
A: That Washington never received no grievances from Hurst.
Q: Did you do an appeal to the superintendent?
A: No -- I don't recall. I don't know. I know I -- I filed my grievance with Albany and the Governor.
Q: So, you sent some letters to the Governor?
A: Yeah. To back up the grievance.
Q: All right. And when you say Albany, what do you mean?
A: The Commissioner and I --.
Q: All right. So, you wrote to the Commissioner and you wrote to the Governor?
A: And I wrote the Inspector General and he came about five months later to see me.
Q: Did you appeal to the Central Office Review Committee?Id. at 144-45.
A: I'm saying, if they never received it, how could I appeal it?
During his deposition, Plaintiff confirmed that he never filed a grievance at Upstate regarding the July 1, 2016, incident:
Q: How about when you -- when you got to Upstate on July 15, 2016, did you try putting a grievance in -- filing a grievance there about --
A: No.
Q: -- what had happened at Washington?
A: No. Because I thought it -- my grievance had already -- I thought they already had it. I thought they received it. But after like a month of not hearing nothing from them, I decided to take it upon myself to respond to Upstate grievances, to respond to them because you can't send mail out like that. You got it do it through the Grievance Program.
Q: All right. Am I correct though you could of filed a grievance at Upstate, about something that happened at Washington? Correct?
A: Yes. Because it was -- it was less than twenty-one days that it occurred.
Q: All right. But you didn't -- you didn't do that?
A: No. Because I already did it.
Q: Okay. Do you have a copy of the grievance that you say you filed on July 13 or July 14?
A: No. If I had carbon paper I would of made one, but I didn't have no carbon paper. Usually I do that, but I didn't have carbon paper at the time.
Q: Do you have written proof that you -- you filed that grievance?
A: No. Oh, yeah.Id. at 145-47. Plaintiff confirmed he sent a letter to Upstate regarding his grievance:
Q: What?
A: I have written proof that I wrote to Albany -- Upstate Inmate Grievance, asking about that grievance and they wrote --
Q: Okay.
A: -- me back saying that they going to contact Washington Correctional Facility and they going to contact me, when they get a response. And when they got a response, they saying that Washington never received a -- a grievance.
Q: You're saying that there was a letter from you to Upstate and you said something to the effect, what happened to my grievance at Washington?Id. at 149.
A: Yes.
Q: And you said that Upstate wrote back and said we'll look into it?
A: Yeah.
Q: And then eventually, Upstate said there -- nothing was filed?
A: Yeah.
Plaintiff did not have a copy of the letters with him at the September 13, 2017, deposition. (Dkt. No. 41-2 at 147.) Plaintiff indicated he would provide copies of the letters to Defendants, provided they were not destroyed in his sister's house fire. Id. at 147-48.
Defendants have submitted evidence in support of their motion establishing Washington has no record of any grievance filed by Plaintiff regarding the alleged July 1, 2016, incident. (Dkt. No. 41-9 at 2-3.) Matthew L. Waters, Inmate Grievance Program ("IGP") Supervisor, is one of the individuals responsible for keeping records of the grievances filed by inmates at Washington. Id. at 2. In his declaration, Waters explains he searched the IGP files to determine if Plaintiff filed any grievance at Washington relating to the alleged July 1, 2016, incident. Id. Based upon his search, Waters determined Washington has no record of any grievance filed by Plaintiff relating to any issue connected to the alleged use of excessive force incident at Washington in July 2016. Id. at 2-3.
Defendants have also submitted evidence establishing CORC has no record of an appeal relating to the alleged July 1, 2016, assault. (Dkt. No. 41-8 at 1-2.) Rachel Seguin is the Assistant Director of the DOCCS IGP. Id. at 1. In that capacity, she is the custodian of the records maintained by CORC, which is the body that renders final administrative decisions under DOCCS' three-step IGP. Id. In her declaration, Seguin explains she searched CORC records and, based upon her search, determined Plaintiff did not file a grievance appeal with CORC related to any issue involving an alleged use of excessive force incident at Washington in July 2016. Id. Seguin has attached a computer printout showing that the only CORC appeal filed by Plaintiff was in 2015, concerning an incident at Downstate, and that there are currently no active CORC appeals pending for Plaintiff. Id. at 2.
III. APPLICABLE LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); 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, that 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 that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." 426 F.3d 549, 554 (2d Cir. 2005). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted); Smith v. Woods, No. 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at the point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
IV. PLAINTIFF'S FAILURE TO COMPLY WITH L.R. 7.1(a)(3)
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). While Plaintiff has opposed Defendants' motion, he has failed to respond to Defendants' statement of material as required under L.R. 7.1(a)(3). (Dkt. No. 57.) His response does not mirror Defendants' statement of material facts, nor does Plaintiff specifically admit or deny the statements therein or cite references to evidence in the record supporting of refuting Defendants' statements. See id. Where a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement to which Plaintiff has not properly responded will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Plaintiff was notified of the consequences of his failure to respond to Defendants' summary judgment motion pursuant to L.R. 56.2. (Dkt. No. 43.)
This Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute where a non-movant willfully fails to respond to a properly filed summary judgment motion. Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.
V. DISCUSSION
A. Exhaustion of Administrative Remedies
Defendants argue Plaintiff's excessive force claim arising from the July 1, 2016, incident should be dismissed on the ground that he failed to exhaust his administrative remedies.
1. Legal Standard
Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The PLRA requires "proper exhaustion," which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. 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") (internal quotations omitted). In New York State prisons, DOCCS has a well-established three-step IGP. See N.Y. Comp. Codes R. & Regs. tit. 7 ("7 NYCRR"), § 701.5.
First, an inmate must file a complaint with the facility IGP clerk within twenty-one days of the alleged occurrence. Id. § 701.5(a)(1). A representative of the facility's IGRC has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance, id. § 701.5(b)(2), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC's decision to the facility superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to CORC for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(I).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Grievances claiming employee harassment, including claims of excessive force, "are of particular concern to the administration of [DOCCS] facilities," and subject to an expedited procedure whereby the grievance goes directly to the facility superintendent. Id. § 701.8. The superintendent is required to initiate an in-house investigation by higher ranking supervisory personnel; request an investigation by the inspector general's office; or request an investigation by the New York State Police Bureau of Investigation if the superintendent determines that criminal activity may be involved. Id. § 701.8(d).
Section 701.8 has been found applicable to claims of excessive force. See Torres v. Carry, 691 F. Supp. 2d 366 (S.D.N.Y. 2009).
A grievance referred to the superintendent and determined to be an allegation of harassment, may not be withdrawn and must be addressed by the superintendent. Id. § 701.8(d). The superintendent is required to render a decision on the grievance within twenty-five calendar days, and extensions may be granted only with the consent of the grievant. Id. § 701.8(f). If the superintendent fails to respond within the required twenty-five days, the grievant may appeal the grievance to CORC by "filing a notice of decision to appeal (form #2133) with the inmate grievance clerk." Id. § 701.8(g).
As set forth above, at each step of the IGP process, a decision must be rendered within a specified time period. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." Id. §§ 701.6(g), 701.8(g). Generally, if a plaintiff fails to follow each of the required three step of the above-described IGP, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies and required under the PLRA. See Ruggiero 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 quotations and citations omitted)); see, e.g., Martin, II v. Niagara Cty. Jail, No. 05-CV-868 (JTC), 2012 WL 3230435, at *6 (W.D.N.Y. Aug. 6, 2012) (inmate who fails to exhaust his administrative remedies is barred from commencing a federal lawsuit).
Because non-exhaustion is an affirmative defense, Defendants bear the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216; Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004), overruled on other grounds, Woodford, 548 U.S. at 94-95.
2. Plaintiff's Failure to Exhaust
Plaintiff has averred that on or about July 14, 2016, he submitted a grievance regarding the July 1, 2016, incident while he was in the SHU at Washington. (Dkt. No. 41-2 at 141-43.) The undisputed record evidence establishes there is no record of this grievance having been filed at Washington or appealed to CORC. (Dkt. Nos. 41-9 at ¶ 9; 41-8 at ¶¶ 3, 4; 41-2 at 143-45.) Therefore, the Court finds Defendants have satisfied their burden of showing that Plaintiff failed to satisfy the exhaustion requirements before commencing this action. See Woodford, 548 U.S. at 93.
To the extent Plaintiff suggests he "exhausted" his administrative remedies by contacting the Commissioner, Governor, and Inspector General, among others, regarding the July 1, 2016, incident, "[t]he law is well-settled that informal means of communicating and pursuing a grievance, even with senior prison officials, are not sufficient under the PLRA." Timmons v. Schriro, Nos. 14-CV-6606 RJS, 14-CV-6857 RJS, 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015); see also Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016 WL 4411338, at *4 (N.D.N.Y. July 5, 2016), report-recommendation adopted by, 2016 WL 4275733 (N.D.N.Y. Aug. 12, 2016); Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *4 (N.D.N.Y. May 9, 2017) (collecting cases); see also Geer v. Chapman, No. 9:15-CV-952 (GLS/ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26, 2016) ("It is well-settled that writing letters to prison officials, or other officials, is insufficient to properly exhaust administrative remedies."). Thus, Plaintiff's informal complaints, whether written or verbal, outside of the grievance process, are insufficient to exhaust his administrative remedies. See also Jones, 549 U.S. at 218 (proper exhaustion under the PLRA means using all steps required by the applicable administrative review process).
3. Availability of the DOCCS IGP
A prisoner's failure to exhaust does not end a court's exhaustion review. While the PLRA mandates exhaustion of 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[.]") (quotations and citations 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 (quotations and citations omitted).
To guide courts in the "availability" analysis, the Supreme Court has identified three circumstances in which a court may find that 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. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." 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. When one of the three circumstances is found, "an inmate's duty to exhaust 'available' remedies does not come into play." Id. at 1859. Once a defendant has satisfied the burden of establishing a failure to exhaust, the plaintiff must establish that the IGP was unavailable to him. See Jones, 549 U.S. at 216.
The Court finds that the question of availability in this case is governed by Williams v. Corr. Officer Priatno, 829 F.3d 118 (2d Cir. 2016), in which the Second Circuit held that the opacity of 7 NYCRR § 708.1(g) rendered the DOCCS IGP procedure unavailable to the plaintiff inmate and found that the plaintiff had exhausted his administrative remedies by giving his grievance to the corrections officer. Defendants' attempt to distinguish Williams from the case at bar is unpersuasive. (See Dkt. No. 41-11 at 12.)
As in this case, the inmate plaintiff in Williams claimed to have drafted a grievance complaining of an assault by corrections officers. Williams, 829 F.3d at 120-21. The plaintiff alleged he gave the grievance to a corrections officer for delivery to the IGP office because he was in the SHU. Id. Here, Plaintiff testified he placed the grievance in the mailbox located in the SHU and, in his opposition submission, explains he handed the grievance to a corrections officer to be placed in the SHU mailbox. (Dkt. Nos. 41-2 at 141-43; 57 at 4, 6.) Significantly, the plaintiff in Williams, like Plaintiff herein, was transferred to another facility before hearing anything regarding the grievance he had attempted to file. Id. As in this case, it was undisputed in Williams that the inmate plaintiff never received a response to the unfiled grievance and did not appeal the grievance to CORC under 7 NYCRR § 701.8(g). Id. at 125.
In his opposition submission, Plaintiff states, "Plaintiff is 100% positive that he gave the on duty officer, that was working the special housing unit on July 14, 2016, the inmate grievance envelope to be placed into the facility out-going mailbox. (Dkt. No. 57 at 6.) The Court notes that according to the regulations, inmates in the SHU are instructed to file grievances by giving them to a corrections officer to file on behalf of the inmate. See 7 NYCRR § 701.7.
The Second Circuit acknowledged in Williams that under the DOCCS regulation relevant in both Williams and this case, an inmate may appeal a grievance "to the next step" if he does not receive a timely response from the Superintendent. Williams, 829 F.3d at 124. The Court concluded, however, that:
even if Williams technically could have appealed his grievance, we conclude that the regulatory scheme providing for that appeal is "so opaque" and "so confusing that . . . no reasonable prisoner can use [it]." Ross, 136 S. Ct. at 1859 (quoting Tr. of Oral Arg. 23). The regulations simply do not contemplate the situation in which Williams found himself, making it practically impossible for him to ascertain whether and how he could pursue his grievance.Id. (alternations in original). Accepting Williams' allegation that the officer to whom he had given the grievance did not file it, the Court found:
[u]nder that circumstance, the regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies. On their face, the regulations only contemplate appeals of grievances that were actually filed. For example, if the grievance had never been filed, the superintendent would never have received it and the timeline for her to provide a response within 25 days "of receipt of the grievance" would never have been triggered. NYCRR tit. 7, § 701.8(f). In turn, the textual provision allowing a grievant to appeal to the CORC would never have come into effect. See. id. § 701.8(g) ("If the superintendent fails to respond within the required 25 day calendar day time limit the grievant may appeal his/her grievance to CORC.") Accordingly, the regulations give no guidance whatsoever to an inmate whose grievance was never filed.Id. The Court noted in Williams that the obscurity of the regulation was compounded by Williams' transfer to another facility approximately two weeks after having given the grievance to the corrections officer. Id. at 126.
Here, Defendants contend Plaintiff has failed to sustain his burden of demonstrating unavailability under Ross sufficient to raise a material issue of fact. Specifically, Defendants argue Plaintiff has failed to show that the grievance procedure was so opaque as to render it incapable of use because "the regulations contemplate the very situation Plaintiff allegedly believed he was in—a filed grievance that went unanswered." (Dkt. No. 60 at 5.) In support of their motion, Defendants explain the regulations provide that an inmate who receives no response within the time allotted for response may go directly to the next step of the grievance process. Id. (citing 7 NYCRR §§ 701.6(g)(2), 701.8(g)). Thus, after receiving no response from the facility superintendent within 25 days of purportedly submitting his grievance, Plaintiff could have appealed to CORC. Id. In short, Defendants argue, "the grievance process provided Plaintiff with a 'clear avenue to proceed.'" Id. (quoting Cicio v. Wenderlich, 714 F. App'x 96, 97-98 (2d Cir. 2018) (summary order) ("When a prisoner has filed a grievance, but receives no response, the regulations provide a right of appeal.")).
In Cicio, the Second Circuit found that the grievance process in Cicio's case was not so opaque that it became "incapable of use." Cicio, 714 F. App'x at 97-98 (citing Ross, 136 S. Ct. at 1859). In so holding, the Court compared and distinguished Cicio's situation from that of the plaintiff in Williams. See id. (cf. Williams v. Priatno, 829 F.3d 118, 126 (2d Cir. 2016) (finding that appellate process was too opaque in circumstances where inmate alleged that a prison guard did not file his grievance and the inmate had since been transferred)). Here, by contrast, the Court finds Plaintiff's circumstances more closely resemble that of the plaintiff in Williams. Thus, for the same reasons, Defendants' reliance on recent rulings by summary order by the Second Circuit are easily distinguishable and inapposite. (See Dkt. No. 41-11 at 12.)
However, "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." Berman v. Drunkin, No. 9:13-CV-0136 (LEK/DJS), 2017 WL 1215814, at *8 (N.D.N.Y. Mar. 10, 2017) (emphasis in original), report and recommendation adopted by 2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017); see also Juarbe v. Carnegie, No. 9:15-CV-01485 (MAD/DEP), 2016 WL 6901277, at *1 (N.D.N.Y. Oct. 7, 2016) ("In Williams, the Second Circuit held that when a plaintiff's grievance is both unfiled and unanswered, the regulations do not clearly outline the process to appeal or otherwise exhaust administrative remedies, and therefore, the administrative remedies are unavailable under Ross."). Therefore, "[a]s long as [the plaintiff's] grievances were not actually filed, then [the plaintiff's] current situation falls squarely within the Second Circuit's decision in Williams[.]" Juarbe, 2016 WL 6901277, at *1.
Here, Plaintiff claims he submitted a grievance at Washington, and the next day he was transferred to Upstate. (Dkt. No. 41-2 at 141-42.) The undisputed evidence demonstrates Washington has no record of Plaintiff's grievance. (Dkt. No. 41-9 at 2-3.) Drawing all inferences in the non-moving party's favor, Plaintiff's grievance was both unfiled and unanswered. In that situation, the Second Circuit has held the procedures "are so opaque and confusing that they were, 'practically speaking, incapable of use.'" Williams, 829 F.3d at 126 (quoting Ross, 136 S. Ct. at 1859). In light of Williams, the Court finds material issues of fact as to the availability of the grievance process and whether Plaintiff attempted to exhaust his administrative remedies, precluding summary judgment. See, e.g., Fann v. Graham, No. 9:15-CV-1339 (DNH/CFH), 2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) (finding issue of fact as to the availability of administrative remedies where the record suggested the plaintiff submitted grievances, which were unfiled and unanswered), report and recommendation adopted by 2018 WL 1399340 (N.D.N.Y. Mar. 19, 2018).
Therefore, the Court recommends that Defendants' motion for summary judgment on exhaustion grounds be denied without prejudice and with the opportunity to renew by way of an exhaustion hearing should Defendants request such a hearing.
B. Official Capacity Claims
The Eleventh Amendment protects states against suits brought in federal court. Alabama v. Pugh, 438 U.S. 781, 782 (1978). The immunity granted to the states under the Eleventh Amendment extends beyond the states themselves to state agents and instrumentalities that are effectively arms of the state, Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006), and, unless waived, bars all money damage claims against state officials acting in their official capacities. Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (observing that an inmate-plaintiff's claims for damages against individual corrections department employees sued in their official capacities are considered claims against New York and, therefore, are barred by the state's Eleventh Amendment immunity).
Therefore, to the extent Plaintiff seeks monetary damages from C.O. Mollnow and Sgt. Eisenschmidt in their official capacities (see Dkt. No. 1 at 2, 15), the Court agrees with Defendants that such claims must be dismissed on Eleventh Amendment grounds. (See Dkt. No. 41-11 at 13.)
WHEREFORE, based on the findings above, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 41) be GRANTED in part and DENIED in part; and it is further
RECOMMENDED that insofar as it seeks dismissal of Plaintiff's Eighth Amendment excessive force claim against Defendants in their official capacities, the motion be GRANTED; and it is further
RECOMMENDED that insofar as it seeks dismissal of Plaintiff's Eighth Amendment excessive force claim against Defendants on exhaustion grounds, the motion be DENIED without prejudice to Defendants renewing this argument and requesting an exhaustion hearing, and it is further
ORDERED that the Clerk shall provide Plaintiff with a copy of this Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: July 20, 2018
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, NY
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge