Opinion
Civil Action No. 9:13-CV-0394 (MAD/DEP)
03-03-2015
TONY McGEE, Plaintiff, v. C.O. HAIGH, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: Tony McGee, Pro Se 08-A-6251 Great Meadow Correctional Facility Box 51 Comstock, NY 12821 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: KEVIN M. HAYDEN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: Tony McGee, Pro Se
08-A-6251
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: KEVIN M. HAYDEN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Tony McGee, a New York State prison inmate, has commenced this action against several corrections employees pursuant to 42 U.S.C. § 1983 alleging that they have violated his civil rights, including his right to equal protection as guaranteed under the Fourteenth Amendment to the United States Constitution. Plaintiff claims that the defendants have denied him meals, showers, and other privileges based exclusively upon his sexual orientation. Plaintiff's complaint, as amended, seeks declaratory relief and an award of punitive damages.
Currently pending before the court is a motion brought by the three remaining defendants who have appeared in the action seeking the entry of summary judgment dismissing plaintiff's remaining claims. Defendants argue that plaintiff's claims are procedurally precluded based upon his failure to exhaust available administrative remedies before commencing suit. They also contend that plaintiff's claims are legally deficient, and any damage claims asserted against them in their official capacities are precluded by the Eleventh Amendment. For the reasons set forth below, I recommend that defendants' motion be granted. I. BACKGROUND
As will be discussed below, plaintiff's claims against sixteen of the twenty originally named defendants were dismissed by decision and order issued by District Judge Mae D'Agostino based upon her initial review of plaintiff's complaint pursuant to 28 U.S.C. § 1915(e). Dkt. No. 9 at 11. In addition, one of the four remaining defendants, identified only as "Walsh," has neither been served nor appeared in the action.
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 7. At the times relevant to his claims, McGee was confined in the Coxsackie Correctional Facility ("Coxsackie"), located in Coxsackie, New York. Id.
In this action, plaintiff alleges he was deprived of meals, showers, law library access, and other privileges at Coxsackie over a twelve-month period beginning in September 2011 and extending through August 2012. See generally Dkt. No. 7. As it relates to the three remaining defendants who have appeared in the case, plaintiff's complaint alleges that (1) defendant Saltsman, a corrections officer, denied him three showers in October 2011, stating that "he did not like 'fags,'" Dkt. No. 7 at 2; (2) defendant Haigh denied plaintiff three meals on November 22, 2011, November 26, 2011, and December 17, 2011, telling plaintiff, "[Y]ou won't eat faggot," id. at 3; Dkt. No. 41-20 at 13-14; and (3) defendant Bushane, another corrections officer, refused to provide plaintiff with commissary buy-sheets on June 18, 2012 and July 17, 2012, telling plaintiff, "[You] don't need a commissary sheet 'faggot.'" Dkt. No. 7 at 3; Dkt. No. 41-20 at 42.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about April 8, 2013, and later filed an amended complaint on July 1, 2013. Dkt. Nos. 1, 7. Named as defendants in plaintiff's complaint, as amended, are Corrections Officers Haigh, Saltsman, Bushane, Williams, Nickleson, Reinbeck, Walsh, Brow, Droit, Dru/Drummond, Mays, Russell, Meaurbeau/Muschrid, Omans, Wiltsie, and Vasquez, as well as an individual identified as McMacllean, who, according to plaintiff, is a correspondent unit employee. Dkt. No. 7. Plaintiff's complaint asserts an equal protection claim in violation of the Fourteenth Amendment based on his status as a homosexual. See generally id.; see also Dkt. No. 43 at 5.
Plaintiff's allegations against defendant Haigh are similar to those set forth in his complaint in an earlier action, McGee v Haight, No. 12-CV-1431 (N.D.N.Y. filed Sept. 18, 2012), wherein he claimed that Haigh denied him access to the mess hall for dinners on November 22, 2011, November 26, 2011, December 16, 2011, and December 17, 2011. McGee, No. 12-CV-1431, Dkt. No. 1 at 4. Plaintiff's complaint in that action did not contain any allegations that defendant Haigh's conduct, as alleged, was motivated by discriminatory animus in violation of the Fourteenth Amendment. McGee, No. 12-CV-1431, Dkt. No. 1. The action was ultimately dismissed based upon plaintiff's failure to pay the appropriate filing fee. McGee, No. 12-CV-1431, Dkt. Nos. 4, 5.
Following initial review of plaintiff's amended complaint, District Judge Mae A. D'Agostino issued a decision and order dated October 11, 2013, dismissing plaintiff's claims asserted against defendants Drummond, McMacllean, Williams, Omans, Brow, Droit, Mays, Russell, Meaurbeau, Nickelson, Reinbeck, Wiltsie, Vasquez, and Mateo, leaving intact only his Fourteenth Amendment cause of action against defendants Haigh, Saltsman, Bushane, and Walsh. Dkt. No. 9. Defendant Walsh has yet to be served and has not appeared in the action.
To the extent his amended complaint could be construed, at this juncture, as asserting an Eighth Amendment claim, plaintiff has disavowed such cause of action in his opposition to defendants' pending motion. See Dkt. No. 45 at 6 ("Claim 'recent' 9:13-CV-000394 (MAD/DEP) was not filed as an 8th Amendment claim as for this claim it was filed as a 14th Amendment violation of Constitutional rights[.]"). For that reason, I recommend that any Eighth Amendment claim now asserted be dismissed.
Following service upon defendants Haigh, Saltsman, and Bushane, the joinder of issue, and the completion of discovery, defendants moved, on June 12, 2014, for the entry of summary judgment dismissing plaintiff's claims. Dkt. No. 41. In their motion, defendants argue that plaintiff failed to exhaust available administrative remedies before filing suit and is therefore barred from pursuing the claims in this action. Dkt. No. 41-2 at 9-13. Addressing the merits, defendants maintain that plaintiff's equal protection claim is legally deficient in that it fails to identify any cognizable injury, and further contend that plaintiff's damage claims asserted against them in their official capacities are precluded by the Eleventh Amendment. Id. at 14-16. The court has since received three separate submissions from the plaintiff in opposition to defendants' summary judgment motion. Dkt. Nos. 43-45. Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Among the issues raised in plaintiff's submissions is the preparation and submission of an errata sheet related to his deposition. Dkt. Nos. 44, 45. By letter dated October 17, 2014, defendants' counsel has replied, attaching a copy of plaintiff's deposition errata sheet signed on May 24, 2014. Dkt. No. 49.
It appears the clerk of the court docketed plaintiff's initial submission in opposition to the pending motion as a cross-motion based on certain language contained therein. See, e.g., Dkt. No. 43 at 1 ("This is my 'motion for dismissal of summary judgment by defendants.'"). Upon further review, however, it appears plaintiff's submissions constitute only responses to the pending motion and plaintiff seeks no other relief than denial of defendants' summary judgment motion. Accordingly, I recommend that plaintiff's cross-motion be denied.
III. DISCUSSION
A. Plaintiff's Failure to Submit a Responsive Rule 7.1(a)(3) Statement
Although plaintiff has opposed defendants' motion for summary judgment, he did not address defendants' statement of undisputed material issues of fact submitted pursuant to rule 7.1(a)(3) of the local rules of practice for this court. See generally Dkt. Nos. 43-45. Before turning to the merits of defendants' motion, a threshold issue to be addressed is the legal significance of this failure.
This court's local rules provide that any motion for summary judgment must be accompanied by a statement of material facts as to which, the moving party submits, there exists no genuine dispute. N.D.N.Y. L.R. 7.1(a)(3). The rule further requires that each fact listed set forth a specific citation to the record where the fact is established. Id.
In this instance, defendants' motion was accompanied by a proper rule 7.1(a)(3) statement, including corresponding record citations. Dkt. No. 41-22 . The motion also included a notice to plaintiff of the consequences of failing to properly respond to the summary judgment motion, which stated that, "[i]f [plaintiff] do[es] not submit a short and concise statement of material facts as to which [he] claim[s] there are genuine issues in dispute, all material facts set forth in the statement filed and served by the defendant(s) shall be deemed admitted." Dkt. No. 41-1.
Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Under this rule, plaintiff's failure to respond to the defendants' rule 7.1(a)(3) statement is the functional equivalent of his admission of the material facts contained with the statement for purposes of the instant motion. See Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn J.) (listing cases); see also Monahan v. N.Y. City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts' discretion to adopt local rule 7.1(a)(3); Ketchuck v. Boyer, No. 10-CV-0870, 2011 WL 5080404, at *2 (N.D.N.Y. Oct. 25, 2011) (McAvoy, J.) ("[T]he responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly." (listing cases)).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
B. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Failure to Exhaust Available Administrative Remedies
Defendants contend that plaintiff is precluded from maintaining this action based upon his failure to exhaust available administrative remedies prior to commencing suit. Dkt. No. 41-2 at 9-13. The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). "[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). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
The DOCCS makes available to inmates a grievance procedure entitled the Inmate Grievance Program ("IGP"). The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. A representative of the facility's IGRC has up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b)(2).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. Id. at § 701.5(c)(i), (ii).
Depending on the type of matter complained of by the grievant, the superintendent has either seven or twenty days after receipt of the grievant's appeal to issue a decision. Id. at § 701.5(c)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS CORC", which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. See Ruggerio v. Cnty. 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)." (quotation marks omitted)).
A review of the record now before the court reveals that plaintiff has a robust grievance history. According to Jeffrey Hale, Assistant Director of the DOCCS IGP, plaintiff has appealed eighteen grievances to the CORC, ten of which were filed in 2011 and 2012, while plaintiff was incarcerated at Coxsackie. Dkt. No. 41-12 at 2; Dkt. No. 41-13 at 1-2. According to Hale, five of the ten grievances are relevant to the claims asserted by plaintiff. See generally Dkt. No. 41-12 . Although I will analyze those grievances individually below, in general, none of them contain allegations of discrimination based on his sexual orientation, and thus did not squarely place prison officials on notice of his equal protection claims.
1. Denial of Meals
Plaintiff claims that defendant Haigh denied him meals on November 22, 2011, November 26, 2011, and December 17, 2011. Dkt. No. 7 at 2; Dkt. No. 41-20 at 13-14. The record reflects that on December 27, 2011, plaintiff filed Grievance No. CX-16919-11 concerning the denial of meals on those dates, and that the grievance was denied at all levels, including before the CORC. Dkt. No. 41-15 . Plaintiff's grievance, however, only alleged that he was denied meals by defendant Haigh on November 22, 2011, November 26, 2011, and December 17, 2011. Id. at 5. Plaintiff did not allege that he was denied meals based on his sexual orientation or discriminatory animus. Id. During the investigation of plaintiff's grievance, he was interviewed by Captain Murphy, who stated that plaintiff "had nothing to add" to his grievance during the interview. Id. at 8. Moreover, the decisions issued by the superintendent and CORC denying plaintiff's grievance do not indicate any finding of discrimination or mention plaintiff's sexual orientation. Id. at 1, 6. Accordingly, there is no basis to conclude that plaintiff's grievance alleging denial of meals by defendant Haigh on November 22, 2011, November 26, 2011, and December 17, 2011, placed defendants on notice of an equal protection claim or discrimination allegation.
Although plaintiff did not specifically identify defendant Haigh as the corrections officer who denied him meals on the relevant dates, defendant Haigh submitted a memorandum to Sergeant Marshall during the investigation of Grievance No. CX-16919-11 denying plaintiff's allegations. Dkt. No. 9.
During his deposition in connection with this action, plaintiff admitted that his grievance against defendant Haigh for the denial of meals did not include an allegation of discrimination. Dkt. No. 41-20 at 31.
On June 28, 2012, plaintiff also filed Grievance No. CX-17210-12, alleging the denial of meals on March 26, 2012, March 30, 2012, and June 13, 2012. Dkt. No. 5. These incidents are not raised in plaintiff's amended complaint. See generally Dkt. No. 7. In any event, like plaintiff's grievance against defendant Haigh for the alleged denial of meals in November and December 2011, Grievance No. CX-17210-12, filed in June 2012, fails to allege discriminatory intent or motive by the corrections officers allegedly responsible for denying plaintiff his meals. Dkt. No. 41-14 at 5. The investigation, including an interview of the plaintiff by Sergeant Anderson and memoranda drafted by the corrections officers implicated in the grievance, do not reveal that plaintiff intended to allege discrimination or that his sexual orientation was a basis for the denial. Id. at 9-11. Accordingly, plaintiff's grievance filed in June 2012 also fails to place defendants on notice of an equal protection claim or an allegation otherwise of discrimination.
2. Denial of Showers
Plaintiff alleges that defendant Saltsman denied him access to showers on three occasions in October 2011, due to plaintiff's status as a homosexual. Dkt. No. 7 at 2. The record reveals that on January 12, 2012, plaintiff filed Grievance No. CX-16936-12 complaining of receiving threats and being deprived of showers and access to the law library. Dkt. No. 41-16 . A careful review of the documents associated with that grievance, which was denied at all levels up through the CORC, however, fails to reflect any allegation of shower denials in October 2011, or any mention of defendant Saltsman being involved in the deprivations. Id. Moreover, it does not appear that defendant Saltsman was interviewed during the course of the investigation of that grievance. Id. In addition, even assuming defendant Saltsman was involved in the alleged deprivations, the grievance does not allege discrimination or mention plaintiff's sexual orientation. Id. at 4. Similarly, during the investigation of the grievance, plaintiff was interviewed by Sergeant Marshall, who reported that plaintiff "provided no witnesses or evidence to support his grievance[, and plaintiff] had nothing to add." Id. at 7. Accordingly, there is nothing in the record to suggest that, even assuming Grievance No. CX-16936-12 was intended to implicate defendant Saltsman, plaintiff intended to allege that Saltsman's conduct was motivated by discriminatory animus towards his sexual orientation. As a result, plaintiff's grievance concerning the denial of showers did not place defendants on notice of his equal protection claim.
At his deposition in connection with this case, plaintiff testified that he believed defendant Saltsman denied him three showers "between October and November," but was unable to definitively testify to the specific dates. Dkt. No. 41-20 at 37-38.
At his deposition, plaintiff testified that, in addition to denying him meals, defendant Haigh denied him showers on November 22, 2011, November 26, 2011, and December 17, 2011. Dkt. No. 41-20 at 13-14, 16. There is no record evidence reflecting that plaintiff filed a grievance through the IGP regarding the denial of a shower on those dates. According to Hale, the only grievance filed by plaintiff and reviewed up through the CORC regarding the denial of showers during the relevant period while he was incarcerated at Coxsackie is Grievance No. CX-16936-12, discussed above. Dkt. No. 41-13 at 1-2. For that reason, to the extent plaintiff asserts an equal protection claim against defendant Haigh based on an allegation that he was denied showers due to his sexual orientation, I recommend it be dismissed for failure to exhaust the available administrative remedies.
3. Denial of Commissary Sheets
In his complaint, plaintiff also alleges that defendant Bushane refused to provide him with commissary sheets on June 18, 2012 and July 17, 2012, and in doing so made a derogatory reference to his sexual orientation. Dkt. No. 7 at 3; see also Dkt. No. 41-20 at 42. Plaintiff filed two separate grievances concerning commissary denials while at Coxsackie. The first, Grievance No. CX-17192-12, was filed on June 21, 2012, and alleges that the "Commissary Steward Mr. G. Melenez" refused to permit plaintiff to shop at the prison commissary. Dkt. No. 41-17 at 6. The second, Grievance No. CX-17248-12, was filed on July 19, 2012, and alleges that defendant Bushane failed to provide him with a commissary buy-sheet on July 17, 2012. Dkt. No. 41-18 5. Neither of those grievances, however, contained allegations of discrimination against plaintiff based on his sexual orientation. Dkt. No. 41-17 at 6; Dkt. No. 41-18 5. In addition, the investigations of plaintiff's grievances regarding the denial of commissary privileges do not reveal that Commissary Steward Melenez or defendant Bushane deprived plaintiff of commissary access or a commissary buy-sheet based on his sexual orientation. See generally Dkt. Nos. 41-17, 41-18. Commissary Supervisor Melenez stated, in connection with the investigation of grievance No. CX-17192-12, that plaintiff "turned in the wrong commissary sheet dated 4/6/12 and dropped it the day after his buy day, 6/18/12." Dkt. No. 41-17 at 10. In connection with Grievance No. CX-17248-12, Commissary Supervisor Melenez stated that plaintiff's commissary buy-sheet was sent to him and the corrections officer responsible for passing them out "said all sheet[s] were passed out." Dkt. No. 41-18 at 12 (emphasis in original). None of the decisions issued by the IGRC, facility superintendent, or CORC, all of which denied both of plaintiff's grievances regarding commissary access, reflect any finding of discrimination or motivation by the accused individuals of discriminatory animus. Accordingly, I find that plaintiff failed to exhaust the available administrative remedies regarding the denial of commissary access based on his sexual orientation.
In summary, the record reflects that plaintiff failed to exhaust available administrative remedies before commencing this action. The sole remaining cause of action is an equal protection claim based on allegations that the defendants discriminated against him by denying him meals, showers, and commissary due to his sexual orientation. Although plaintiff filed grievances complaining of being deprived those specific rights and privileges, none of the relevant grievances included an allegation of discrimination, and the investigations undertaken in connection with the grievances did not reveal either discriminatory animus by the accused individuals or plaintiff's belief that the individuals' conduct was motivated by his sexual orientation. As such, the grievances failed to place defendants on notice of plaintiff's equal protection claim. Accordingly, I find that plaintiff failed to exhaust all available administrative remedies prior to filing suit. See Young v. Goord, No. 01-CV-0626, 2002 WL 31102670, at *4 (E.D.N.Y. Sept. 3, 2002), aff'd in relevant part by Young v. Goord, 67 F. App'x 638 (2d Cir. 2003), (dismissing the plaintiff's equal protection claim based on exhaustion grounds because "[a]t no point during the administrative proceedings did [he] raise, in words of substance, an equal protection claim based on the differential treatment of other Rastafarians").
The failure to exhaust, however, does not warrant dismissal of plaintiff's amended complaint without further inquiry. In a series of decisions rendered since enactment of the PLRA, the Second Circuit has prescribed a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. See, e.g., Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); see also Macias, 495 F.3d at 41. Those decisions instruct that, before dismissing an action as a result of a plaintiff's failure to exhaust, a court must first determine whether the administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event of a finding that a remedy existed and was available, the court must next examine whether the defendant has forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it, or whether, through his own actions preventing the exhaustion of plaintiff's remedies, he should be estopped from asserting failure to exhaust as a defense. Id. In the event the exhaustion defense survives these first two levels of scrutiny, the court must examine whether the plaintiff has plausibly alleged special circumstances to justify his failure to comply with the applicable administrative procedure requirements. Id.
In this case, although plaintiff contends, in his opposition to defendants' motion, that plaintiff-inmates are not required to "'specially plead or demonstrate exhaustion in [their] civil rights complaint,'" courts in this circuit have found that, once a defendant satisfies the burden of demonstrating that an inmate has failed to exhaust administrative remedies, it then becomes incumbent upon the plaintiff to counter with a showing of unavailability, estoppel, or special circumstances. See, e.g., Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *4 & n.17 (N.D.N.Y. Mar. 31, 2010) (Suddaby, J.); see also Calloway v. Grimshaw, No. 09-CV-1354, 2011 WL 4345299, at *5 & n.5 (N.D.N.Y. Aug.10, 2011) (Lowe, M.J.) (citing cases), report and recommendation adopted by 2011 WL 4345296 (N.D.N.Y. Sept.15, 2011) (McAvoy, J.); Cohn v. KeySpan Corp., 713 F. Supp. 2d 143, 155 (E.D.N.Y. 2010) (finding that, in the employment discrimination context, the defendants bear the burden of establishing the affirmative defense of failure to timely exhaust his administrative remedies, but once defendants have done so, the plaintiff must plead and prove facts supporting equitable avoidance of the defense.). In this instance, plaintiff has not presented, nor has the court discerned, any basis to conclude that the IGP was not available to him, defendants should be estopped from asserting failure to exhaust, or that special circumstances exist to justify plaintiff's failure to exhaust. Accordingly, I recommend that defendants' motion be granted and plaintiff's remaining claims asserted against defendants Haigh, Saltsman, and Bushane be dismissed for failure to exhaust available administrative remedies.
D. Plaintiff's Claims Against Defendant Walsh
On October 11, 2013, following the court's initial review of plaintiff's amended complaint, summonses were issued for the four remaining defendants, including defendant Walsh. Dkt. No. 10. The summons for defendant Walsh was subsequently returned unexecuted a short time later with a handwritten notation that states, "[C]an not identify[.]" Dkt. No. 12. Since then, plaintiff has taken no steps to identify defendant Walsh more particularly and/or arrange for service of the summons and complaint upon him. Although defendants' motion does not explicitly request this relief, I recommend that the court sua sponte examine whether plaintiff should be permitted to proceed against this unserved defendant.
Rule 4(m) of the Federal Rules of Civil Procedure requires that service of a summons be effectuated within 120 days of its issuance, absent a court order extending that period. Fed. R. Civ. P. 4(m). Upon a showing of good cause, this time for service must be extended. See Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Panaras, 94 F.3d at 340 (citing Fed. R. Civ. P. 4(m)); see also Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) ("We hold that district courts have discretion to grant extensions even in the absence of good cause."); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). When examining whether to extend the prescribed period for service, a district court is afforded ample discretion to weigh the "overlapping equitable considerations" involved in determining whether good cause exists and whether an extension may be granted in the absence of good cause. Zapata, 502 F.3d at 197.
Rule 4(m) provides that,
[i]f a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m). This court's local rules shorten the time for service from the 120 day period under Rule 4(m) to sixty days. N.D.N.Y. L.R. 4.1(b).
Plaintiff's pro se status entitles him to a certain degree of leniency insofar as service of process is concerned, and courts generally favor resolution of a case on its merits rather than on the basis of a procedural technicality. Poulakis v. Amtrak, 139 F.R.D. 107, 109 (N.D. Ill. 1991). When a plaintiff proceeds in forma pauperis, as is the case in this instance, the court is obligated to issue the plaintiff's process to the United States Marshal, who must, in turn, effect service upon the defendants, thereby relieving the plaintiff of the burden to serve once reasonable steps have been taken to identify the defendants named in the complaint. Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); see also Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) ("[Section] 1915([d]) provides that the officers of the court 'shall issue and serve all process' when a plaintiff is proceeding in forma pauperis."). Of course, this does not mean that a pro se plaintiff may stand idle upon being notified that efforts by the U.S. Marshals Service to serve a particular defendant have been unsuccessful. VanDiver v. Martin, 304 F. Supp. 2d 934, 938-43 (E.D. Mich. 2004). A plaintiff who does so acts at his peril, and risks dismissal of his claims against an unserved defendant. As the Second Circuit has observed,
[i]f a plaintiff proceeding IFP chooses to rely on the Marshals to serve the relevant parties, and it becomes apparent that the Marshals will not accomplish by the Rule 4(m) or court-ordered
deadline, she must advise the district court that she is relying on the Marshals to effect service and request a further extension of time for them to do so.Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012). Accordingly, a district court must look at the facts and circumstances surrounding each case to determine whether good cause exists. Meilleur, 682 F.3d at 63.
In this case, defendant Walsh was not served and did not appear in the action within the appropriate time period. Based upon a review of the record, I do not find good cause exists to justify plaintiff's failure to effectuate timely service upon that defendant, and find no basis to exercise my discretion in favor of extending the governing period of service. Accordingly, because this court has never acquired jurisdiction over him, I recommend that plaintiff's claims be dismissed as against defendant Walsh, without prejudice. See Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946) ("[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served."); accord, Osrecovery, Inc. v. One Group Int'l, Inc., 234 F.R.D. 59, 60 (S.D.N.Y. 2005).
The only allegation in plaintiff's amended complaint against defendant Walsh relates to the denial of showers on two occasions for a two month period of October and November 2011. Dkt. No. 7 at 2. It appears likely that this claim is unexhausted for the reasons cited above with respect to the claims against the remaining three defendants.
IV. SUMMARY AND RECOMMENDATION
Defendants have raised the question of whether plaintiff exhausted all available administrative remedies before commencing this action. Having reviewed the record, I conclude that, while plaintiff filed grievances alleging that he was denied meals, showers, and commissary access, those grievances did not allege he was denied those rights and privileges based on his sexual orientation or any discriminatory animus. When asked during the investigation of the grievances whether he had anything to add, plaintiff declined to offer any additional information, including any allegations of discrimination. Accordingly, I find that plaintiff's grievances, which did not allege discrimination or a violation of equal protection, are not sufficient to satisfy his requirement under the PLRA. Because the record is also devoid of any evidence to suggest that plaintiff should be excused from the exhaustion requirement, dismissal of the remaining claims is appropriate.
In light of my recommendation that defendants' motion be granted based on plaintiff's failure to exhaust administrative remedies, I have not considered their alternative arguments for dismissal.
Based upon the foregoing, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 41) be GRANTED and that all claims against Haigh, Saltsman, and Bushane be DISMISSED; and it is further
RECOMMENDED that the court dismiss all claims against defendant Walsh, without prejudice, based upon the fact that he has not yet been served in the action; and it is further
RECOMMENDED that, to the extent plaintiff's amended complaint is construed as asserting an Eighth Amendment cause of action, the claim be dismissed; and it is further
RECOMMENDED that plaintiff's cross motion (Dkt. No. 43) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: March 3, 2015
Syracuse, New York