Opinion
00 Civ. 7691 (LAK) (GWG).
September 10, 2002
REPORT AND RECOMMENDATION
Salih Khalid filed this action pro se on October 12, 2000, alleging claims against various defendants under 42 U.S.C. § 1983. On November 27, 2000, he filed an amended complaint naming two defendants: Officer Reda and Lieutenant Farrell. Proceedings against Farrell have been stayed pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. § 521. Reda has moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, Reda's motion should be granted.
I. STATEMENT OF FACTS
Khalid has declined to oppose the motion for summary judgment. Thus, the following statement of facts is based on the affidavits and other materials submitted by Reda in support of his motion. In addition, the facts as set forth in Reda's Statement pursuant to Local Civil Rule 56.1 have not been contested by Khalid and accordingly are deemed admitted. See Local Civil Rule 56.1(c).
A. The Fight
On and prior to September 26, 1999, Reda served as a correctional officer in the Sing Sing Correctional Facility. Though Khalid was an inmate in this facility, the two men maintained "no relationship." Transcript of the July 26, 2001, Deposition of Salih Khalid ("Khalid Dep.") (reproduced as Ex. B to Lee Declaration In Support of Motion for Summary Judgment ("Lee Decl."), dated October 2001) at 36. Interactions between the two were limited to occasional greetings. Id. at 36-37. Inmate J. Sain was also unknown to both Khalid and Reda prior to September 26, 1999. Id. at 36-37; Reda Declaration, dated October 9, 2001 ("Reda Decl."), ¶ 15; Declaration of Dennis Iyekegbe, dated October 12, 2001 ("Iyekegbe Decl."), ¶ 12. Nor did Reda, prior to September 26, 1999, have any reason to suspect that Khalid and Reda would ultimately have a hostile interaction. Reda Decl. ¶ 15.
On the morning of September 26, 1999, all three men were present in Housing Block A. Reda Decl. ¶¶ 4, 6; Iyekegbe Decl. ¶ 4. Reda was stationed with another officer, Dennis Iykegbe, on the mess hall bridge. Reda Decl. ¶ 5; Iyekegbe Decl. ¶ 5. From there, the two officers supervised as inmates moved among the mess hall, the yard, and the gym. Reda Decl. ¶¶ 4-5; Iyekegbe Decl. ¶¶ 4-5.
At approximately 9:05 a.m., Reda and Iyekegbe observed a fight between Sain and Khalid. Reda Decl. at ¶ 6; Iyekegbe Decl. at ¶ 7; Khalid Dep. at 46-47. Because hundreds of inmates were surrounding the area, Officer Reda determined that it would be too dangerous and against procedure to leave his position immediately. Reda Decl. ¶ 11. Remaining on the bridge, Officers Reda and Iyekegbe ordered the two men to stop fighting. Reda Decl. ¶¶ 7, 9; Iykegbe Decl. ¶¶ 8, 10. Officer Reda telephoned for backup while Officer Iykegbe pulled an alarm. Reda Decl. ¶ 7; Iykegbe Decl. ¶ 8. Both Reda and Iykegbe waited for other officers to arrive before moving off the bridge and into the area in which the inmates were fighting. Reda Decl. ¶ 9; Iyekegbe Decl. ¶ 10. Reda states that this waiting period occupied less than two minutes, Reda Decl. ¶ 8; Khalid states that the period occupied three to five minutes, Khalid Dep. at 50, 67; and Iyekegbe defines the period as "short," Iyekegbe Decl. ¶ 9.
By the time Officers Reda and Iykegbe arrived on the scene, the two inmates had already separated. Reda Decl. ¶ 10; Iyekegbe Decl. ¶ 11. The Officers had the two inmates place their hands against nearby fencing as Officer Reda searched Khalid and Officer Iykegbe searched Sain. Id. Neither officer found a weapon on the inmates. Id. Both inmates were then escorted to the medical department for treatment. Reda Decl. ¶ 10; Khalid Dep. at 53, 58. Khalid was treated for cuts to his cheek, nose, and scalp. Khalid Dep. at 58. Khalid's injuries left him with scars on his face and scalp. Id. at 58-66. Khalid also stated that the fight left him with permanent injuries to his vision, requiring him to wear a thicker lens on the side of his face that was cut by Sain. Khalid Dep. at 59-60.
B. The Disciplinary Hearing
On September 27, 1999, Khalid was served with an "Inmate Misbehavior Report." The report, written by Officer Reda, charged Khalid with assault on another inmate, fighting, and creating a disturbance. Inmate Misbehavior Report, dated September 26, 1999 (reproduced as Ex. C to Lee Decl.). Khalid then underwent a prison disciplinary hearing on October 4, 1999, in which he pled guilty to fighting but not guilty to assault and creating a disturbance. Superintendent Hearing Disposition ("Hearing Disposition"), dated October 4, 1999 (reproduced as Ex. D to Lee Decl.); Khalid Dep. at 68-69. Defendant Farrell was the Hearing Officer at this proceeding and found Khalid guilty on all three counts. Hearing Disposition at 1. As a result,
Khalid was ordered to spend 36 months in the special housing unit and, for the same period of time, was denied access to the telephone, commissary and packages. Id. Farrell also imposed the loss of six months of good time credits. Id. Khalid filed an administrative appeal to the Director of the Special Housing Unit, Donald Selsky, and on December 7, 1999, the penalties were modified. Review of Superintendent's Hearing, dated December 7, 1999 (reproduced as Ex. E to Lee Decl.). Rather than the 36 month loss of packages, commissary and phone privileges, Khalid was given nine months' loss of each privilege. Id. Also, Khalid was required to spend only nine months in the special housing unit. Id. The amount of good time lost, however, remained the same. Id.
C. Khalid's State and Federal Court Filings
On February 28, 2000, Khalid brought an action in New York Supreme Court against Farrell and Donald Selsky pursuant to Article 78 of the New York Civil Practice Laws and Rules. Article 78 Petition, dated February 28, 2000 (reproduced as Ex. F to Lee Decl.). In this proceeding, Khalid challenged the administrative proceedings, alleging that Farrell's use of authority had been unfair, abusive and in violation of a Department of Correctional Services directive. Id. at 2-3. He also complained that the misbehavior report was in English not Arabic, which prevented him from being able to defend himself. Id. at 3. The proceeding was transferred to the Appellate Division, Third Department, which issued a decision concluding that Khalid's plea of guilty to fighting precluded him from challenging the sufficiency of the evidence. See Memorandum and Judgment, dated June 7, 2001 (reproduced as Ex. G to Lee Decl.), at 1. It also found that the record of the hearing constituted "substantial evidence" to support the determination of Khalid's guilt on the charges. Id. at 2. Accordingly, it confirmed the prison's determination and dismissed Khalid's petition. Id.
On December 14, 1999, Khalid executed the complaint in the instant action, which was docketed on October 12, 2000. Because of deficiencies in allegations in the original complaint, the Court ordered Khalid to file an amended complaint. See Order, filed October 12, 2000. On November 27, 2000, Khalid filed an amended complaint. In the amended complaint, Khalid alleges that Reda failed to adequately protect him during the fight and that Farrell failed to follow proper procedures in the administration of the hearing on the disciplinary charges brought against him. Amended Complaint, filed November 27, 2000, ¶¶ 2-3, 7-12. Khalid claims that Reda and Farrell violated his Eighth, Ninth, and Fourteenth amendment rights and are liable to him for damages under 42 U.S.C. § 1983. Id. ¶¶ 13-17. In addition to money damages, Khalid seeks to have the hearing and its results removed from the institutional records. Id. at § V.
On December 3, 2001, Reda filed a Notice of Motion for Summary Judgment with accompanying papers. Included in the Notice was a warning to plaintiff that he must provide affidavits showing that there is a genuine issue for trial. The notice did not, however, comply with the specific requirements of Local Civil Rule 56.2. Khalid subsequently requested and was granted an extension of time until January 22, 2002 to respond to the summary judgment motion. See Memorandum Endorsement, filed December 6, 2001. No opposition, however, was submitted as of that date. Subsequently, the Court advised Khalid that his claims may be dismissed if he did not file affidavits or other papers in response to Reda's motion by May 1, 2002. See Order dated April 1, 2002. This Order contained the notice language required by Local Civil Rule 56.2. The docket sheet reflects that Khalid still has not submitted any papers in opposition to the summary judgment motion.
II. DISCUSSION
A. Standard of Review
A district court may grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); New York Stock Exchange, Inc. v. New York, 293 F.3d 550, 554 (2d Cir. 2002). A genuine issue is one that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). A material issue is a "dispute over facts that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. Thus, "'[a] reasonably disputed, legally essential issue is both genuine and material" and precludes a finding of summary judgment. McPherson, 174 F.3d at 280 (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. McPherson, 174 F.3d at 280.
"When a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations or denials of [its] pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). If the adverse party does not make this showing, summary judgment may be entered against that party. Fed.R.Civ.P. 56(e); accord Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) ("[M]ere speculation and conjecture is insufficient to preclude the granting of the motion.").
B. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act, 110 Stat. 1321-73, as amended, 42 U.S.C. § 1997e(a), "[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." This means the prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing suit." Flanagan v. Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002); see also Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988 (2002) ("All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy and effective.'") (citations omitted). The Supreme Court has clarified that "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, 122 S.Ct. at 992. The exhaustion requirements also apply to a plaintiff seeking relief not available in the prison administrative proceeding such as monetary damages. See Booth v. Churner, 532 U.S. 731, 740-41 (2001).
Even though Khalid filed this action before Porter v. Nussle was decided, "the broad exhaustion requirement announced in Nussle applies with full force" to litigants in such a situation. Espinal v. Goord, 2002 WL 1585549, at *2 n. 3 (S.D.N.Y. July 17, 2002). See generally Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993) ("When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule.").
7 N.Y.C.R.R. § 701 outlines the Inmate Grievance Program under which New York prison inmates may file complaints with the Inmate Grievance Resolution Committee ("IGRC"). First, the inmate must file a complaint with the IGRC. 7 N.Y.C.R.R. § 701.7(a). Next, after receiving a response from the IGRC, the inmate may appeal to the Superintendent of the facility. Id. at § 701.7(b). Finally, after receiving a response from the Superintendent, the prisoner can seek review of the Superintendent's decision with the Central Office Review Committee ("CORC"). Id. at § 701.7(c). See, e.g., Anderson v. Pinto, 2002 WL 1585907, at *1 (S.D.N.Y. July 17, 2002). In New York, a "prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure." Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002). As was noted in Flanagan, "New York permits inmates to file internal grievances as to virtually any issue affecting their confinement." 2002 WL 122921, at *1. Exhaustion is not accomplished by an inmate's appeal of a disciplinary hearing decision brought against the inmate. See Benjamin v. Goord, 2002 WL 1586880, at *2 (S.D.N.Y. July 17, 2002) (citing Cherry v. Selsky, 2000 WL 943436, at *7 (S.D.N.Y. July 7, 2000)).
The claims in the amended complaint against Reda center on Khalid's claim that Reda allowed Khalid to be physically assaulted. These claims were grievable under the prison regulations. See 7 N.Y.C.R.R. § 701.2(a) (permitting grievances for any "complaint about the substance or application of any written or unwritten policy, regulation, procedure or rule of the Department of Correctional Services or any of its program units, or the lack of a policy, regulation, procedure or rule"); 7 N.Y.C.R.R. § 701.11 (describing special expedited grievance process for "employee misconduct meant to . . . harm an inmate"); see also Gray v. Murry, 2001 WL 826088, at *3 (S.D.N.Y. July 19, 2001) (inmate's claim that corrections officers failed to protect him from attack by another inmate is grievable under the New York inmate grievance program); Cabrera v. N.Y. State Dep't of Corr. Servs., 2001 WL 682461, at *2 (S.D.N.Y. June 15, 2001) ("plaintiff's 'failure to protect' claim . . . is subject to the exhaustion requirement of § 1997e(a)"). Khalid admits that he was aware that his prison had a grievance procedure, but that he did not file a grievance complaint, let alone appeal the disposition of this complaint all the way to the CORC. See Amended Complaint at II.B; Khalid Dep. at 34-36. Therefore he has not exhausted his administrative remedies.
Although Khalid has not submitted any papers in opposition to Reda's motion, in his deposition Khalid stated that he did not file a grievance because he was in segregated housing and had "no access to a lot of paperwork [he] was supposed to have." Khalid Dep. at 34-35. Khalid admits, however, that he did not even ask correction officers for a grievance complaint form, id. at 35, and does not allege (let alone provide competent evidence) that any correction officers or other prison employees prevented him from filing a grievance. Nor has he offered any other reason for his failure to exhaust. Accordingly, Khalid has unjustifiably failed to exhaust his administrative remedies and his complaint must be dismissed. Cf. Flanagan, 2002 WL 122921, at *2 n. 3 (rejecting argument that prisoner could be excused for exhausting administrative remedies even though correctional officers threatened him with violence if he filed a grievance because the prisoner "made no effort to file a written grievance, and verbal discouragement by individual officers does not prevent an inmate from filing a grievance").
III. CONCLUSION
Reda's motion for summary judgment should be granted.
No final judgment should be entered at this time because the case remains open as to Farrell. Farrell's answer to the amended complaint is due on October 7, 2002. See Order dated September 4, 2002.
Notice of Procedure for Filing of Objections to this Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any requests for an extension of time to file objections must be directed to Judge Kaplan. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).