Opinion
1:20-cv-09408 (LJL) (SDA)
12-17-2022
Devorn Parker, Plaintiff, v. Cynthia Brann et al., Defendants.
HONORABLE LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION AND ORDER
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Pro se Plaintiff Devorn Parker (“Plaintiff” or “Parker”) brings this Pro se action under 42 U.S.C. § 1983, alleging that defendants Cynthia Brann (“Brann”), then Commissioner of the New York City Department of Correction (“DOC”); Patsy Yang (“Yang”), Senior Vice President of Correctional Health Services (“CHS”); and Margaret Egan (“Egan”), Executive Director of the New York City Board of Correction (collectively, “Defendants”) violated his constitutional rights while he was a pretrial detainee at the Vernon C. Bain Center (“VCBC”) by failing to take adequate steps to mitigate the threat of COVID-19. (Second Am. Compl. (“SAC”), ECF No. 7.) Currently before the Court is Defendants' motion for summary judgment. (Defs.' Mot. Summary J., ECF No. 48.) Also before the Court is a motion to seal Plaintiff's medical records. (Letter Motion to Seal, ECF No. 47.)
For the reasons set forth below, I respectfully recommend that Defendants' motion for summary judgment be GRANTED. In addition, Defendants' motion to seal is GRANTED.
FACTUAL BACKGROUND
I. Plaintiff
Parker was a detainee at the VCBC from at least September 22, 2020 through January 14, 2021. (SAC at PDF p. 4; Defs.' Rule 56.1 Statement of Undisputed Facts (“Defs.' SOF”), ECF No. 51, ¶ 2.) Parker alleges that Brann, Yang and Egan disregarded complaints he made to 311 regarding the conditions in his dorm (Dorm 2BA) at VCBC. (SAC at PDF p. 4.) Parker asserts that the beds in his dorm were 3 to 4 inches behind one another and 3 to 4 feet across from each other without any dividers. (SAC at PDF p.4; Pl.'s Response, ECF No. 57, ¶ 7.) Parker further alleges that his dorm exceeded 50% capacity restrictions for indoor gatherings restrictions and housed approximately 48-50 inmates with 50 being the maximum capacity. (Id.; see also Pl.'s Response ¶¶ 3, 16.) All approximately 48-50 inmates in Parker's dorm shared sinks, toilets and showers. (Id.)
Parker alleges that, on January 12, 2021 and January 14, 2021, three individuals in his dorm tested positive for COVD-19. (SAC at PDF p.4.) Thereafter, Parker alleges that 32 inmates remained in his dorm. (Id. at PDF p. 4-5.) Parker has medical conditions that make him more vulnerable to COVID-19 and, as a result, he feared for his life and well-being. (Id. at PDF p. 5; see also Pl.'s Dep. Tr., ECF No. 49-2, at 36, 39-40.)
Parker repeatedly was screened for symptoms of COVID-19 while he was confined at VCBC and tested for COVID-19 with negative results. (Defs.' SOF ¶¶ 68-69.) Parker contends that he was tested, at most, five times while he was at VCBC and was not put in a unit for high-risk individuals despite his medical conditions, including asthma and HIV. (Pl.'s Response ¶¶ 12, 23; see also SAC at PDF p. 5; Pl.'s Dep. Tr. at 55.) Parker asserts that he was denied the COVID-19 vaccine in January 2021 because he was not over 50-years old, even though he was high-risk. (Pl.'s Response ¶ 8.) In July 2021 and August 2021, Parker received two doses of the COVID-19 vaccine. (Defs.' SOF ¶ 72; Pl.'s Medical Records, Thayer Decl. Ex. A, ECF No. 49-1, at PDF p. 14.)
During his deposition, Plaintiff testified that he may have contracted COVID-19 at a different facility prior to being transferred to VCBC. (Pl.'s Dep. Tr. at 44.) However, the claims in the SAC are limited to VCBC and the time period between September 22, 2020 and January 15, 2021. (See SAC at PDF p. 4.)
II. COVID-19 Protocols At VCBC
Additional countermeasures taken by DOC and CHS in response to COVID-19 are set forth in the Declarations of Tanisha Mills and Party Yang. (See Mills Decl., Thayer Decl. Ex. C, ECF No. 49-3; Yang Decl., Thayer Decl. Ex. D, ECF No. 49-4.) Here, the Court summarizes the countermeasures most relevant to Plaintiff's claims.
Beginning on or around May 4, 2020, all new admissions to VCBC were offered a COVID-19 test. (Defs.' SOF ¶ 5.) Inmates who agreed to be tested were held in a housing area for newly admitted individuals with pending COVID-19 test results. (Id.) Only when a negative test was received was the inmate transferred to general population housing. (Id.) According to Defendants, new inmates who declined testing were quarantined for 10-14 days before they were housed. (Id.) Parker disputes that this was true for all new inmates. (Pl.'s Response ¶ 4 (“some came right up from intake from the streets”); see also Pl.'s Dep. Tr. at 30.) If an inmate tested positive for COVID-19, that person was removed to a designated area and any housing areas where that inmate had been housed during the infectious period were designated as Asymptomatic Exposed (AE) units and offered subsequent rounds of testing. (Defs.' SOF ¶¶ 5052.)
DOC implemented various cleaning and sanitizing protocols, including limiting the number of people in the bathroom and shower areas at a given time. (Defs.' SOF ¶¶ 20-24.) Soap and other cleaning supplies, including sanitizing solutions, general and floor cleaners, “gentle scrub” and mops, were available in each unit's janitor closet and were provided upon request, except in those housing units where access to those materials presented a security issue. (Id. ¶ 24.) Plaintiff asserts that sanitizing was not done by trained individuals and that his housing unit would go days without cleaning, sanitizing solutions and soap. (Pl.'s Response ¶¶ 13-15, 17; Pl.'s Dep. Tr. at 41.)
Where possible in dormitory housing units, DOC ensured that there was an empty bed in between people in custody. (Id. ¶ 31.) DOC also provided guidance to individuals to refrain from sitting on other people's beds, and to sleep head to foot if there was not enough separation between beds. (Id.) According to Defendants, DOC painted social distancing cues on chairs and benches in dayroom and intake areas in order to help individuals understand and maintain safe distance from one another in communal spaces. (Id. ¶ 32.) Plaintiff asserts that there were no social distancing cues in Dorm 2BA because there were no benches and, thus, there was no way to place the cues. (Pl.'s Response ¶ 18.)
Defendants also assert that CHS and DOC implemented staff protocols regarding COVID-19. (Defs.' SOF ¶¶ 55-61.) Plaintiff asserts that the screening was not enough to protect inmates because it did not account for asymptomatic staff; “most staff” refused the vaccine and sick staff remained working through the end of their shifts. (Pl.'s Response ¶¶ 9-11.) Defendants also contend that all inmates and staff were given masks and encouraged to use them and that, in the recreation yard, all persons were required to wear a mask for the duration of recreation. (Defs.' SOF ¶ 34.) Plaintiff asserts that masks were “barely available when in recreation” and inmates never were forced to wear them. (Pl.'s Response ¶ 19.) Plaintiff also testified that he was not able to obtain a mask when he asked for one. (Pl.'s Dep. Tr. at 31.)
In January 2021, CHS began offering the COVID-19 vaccine to high-risk inmates and, in March 2021, began offering the COVID-19 vaccine to all incarcerated individuals. (Defs.' SOF ¶¶ 10-11.)
PROCEDURAL HISTORY
Plaintiff filed his original Complaint with 49 other VCBC detainees. (Compl., ECF No. 2.) On November 9, 2020, the Court severed the matter into separate civil actions. (11/9/2020 Order, ECF No. 1.) An Amended Complaint was filed on November 24, 2020. (Am. Compl., ECF No. 4.) The Amended Complaint again purported to assert claims by other VCBC detainees in addition to Plaintiff. (See id.) Plaintiff filed a Second Amended Complaint on January 26, 2021. (See SAC.) By Order dated September 15, 2021, Judge Liman referred this action to me for general pretrial management and dispositive motions. (Order of Ref., ECF No. 28.) As of June 3, 2022, Plaintiff had been transferred to Greene Correctional Facility. (See 6/3/2022 Order, ECF No. 43.)
Following discovery, on August 12, 2022, Defendants filed the motion for summary judgment that is now before the Court, along with their supporting papers, including the requisite Notice to Pro Se Litigants Pursuant to Local Civil Rule 56.2.(Notice, ECF No. 52.) Plaintiff filed a response to Defendants' motion on September 23, 2022, in which he disputes some of the facts set forth in Defendants' 56.1 Statement. (See Pl.'s Response.) Defendants filed their reply on October 21, 2022. (Defs.' Reply Mem., ECF No. 60.) On October 26, 2022, Plaintiff filed a memorandum notifying the Court that his address had changed to Bare Hill Correctional Facility. (Pro Se Mem., ECF No. 61.)
Defendants have filed similar motions for summary judgment in four other cases that have been referred to this Court. See Prendergast v. Brann et al., No. 20-CV-09418; Molina v. Brann et al., No. 20-CV-09483; Davidson v. Brann et al., No. 20-CV-09500 and Morales v. Brann et al., No. 20-CV-10126.
LEGAL STANDARDS
I. Rule 56
Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986). A dispute concerning material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248). A disputed fact is “material” only if it “might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Id. at 255.
“Although the same standards apply when a Pro se litigant is involved, the Pro se litigant should be given special latitude in responding to a summary judgment motion.” Caines v. Oudkerk, No. 17-CV-03060 (PGG), 2018 WL 3059653, at *2 (S.D.N.Y. June 20, 2018) (internal citation and quotation marks omitted); see also Tarrant v. City of Mount Vernon et al., No. 20-CV-09004 (PMH), 2022 WL 17070062, at *3 (S.D.N.Y. Nov. 17, 2022) (noting “special solicitude” afforded Pro se litigants and that it is through that “lens of leniency” that courts must consider motions for summary judgment against Pro se plaintiffs).
II. Section 1983
“To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a ‘state actor.'” Griffin v. Corporation Counsel, No. 22-CV-08521 (LTS), 2022 WL 16926117, at *2 (S.D.N.Y. Nov. 14, 2022) (citing West v. Atkins, 487 U.S. 42, 48-49 (1988)). “A pretrial detainee's claim for unconstitutional conditions of confinement is governed by the Fourteenth Amendment Due Process Clause, which requires that officers take reasonable measures to guarantee the safety of the inmates[.]” Ungar v. City of New York, No. 21-1384-CV, 2022 WL 10219749, at *1 (2d Cir. Oct. 18, 2022) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)).
To succeed on a conditions of confinement claim, a pretrial detainee must satisfy two prongs, “an ‘objective prong' showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process, and a ‘subjective prong'-perhaps better classified as a ‘mens rea prong' or ‘mental element prong'-showing that the officer acted with at least deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29. To establish the objective prong, “the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health, which includes the risk of serious damage to physical and mental soundness.” Id. at 30 (internal citation omitted). To establish the mens rea prong, “the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant- official knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 35.
“[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because [he or she] held a high position of authority.” Blackv. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). “Instead, a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676); see also Boley v. Durets, 687 Fed.Appx. 40, 41 (2d Cir. 2017) (“As a fundamental prerequisite to establishing a § 1983 claim, a plaintiff must show the defendants' personal involvement in the alleged constitutional violation.”) “Assertions of personal involvement that are merely speculative are insufficient to establish a triable issue of fact.” Tarrant, 2022 WL 17070062, at *4 (citing Keesh v. Quick, No. 19-CV-08942 (PMH), 2022 WL 2160127, at *9 (S.D.N.Y. June 15, 2022)).
DISCUSSION
Defendants argue that they should be granted summary judgment on Plaintiff's claim that the conditions of his confinement violated the Constitution “because the undisputed facts demonstrate that Defendants were not deliberately indifferent to any unreasonable risk of harm during the times relevant to the Complaint.” (Defs.' Mem., ECF No. 50, at 10.) Defendants argue both that no reasonable jury could find for Plaintiff on the objective prong, i.e., that the challenged conditions posed a substantial risk of serious harm; and that no reasonable jury could find for Plaintiff on the mens rea prong, which requires Plaintiff to show that Defendants intentionally or recklessly failed to act with reasonable care to mitigate the risk that the alleged conditions posed to Plaintiff. (Id. at 11-18.) Defendants further argue that they are entitled to summary judgment on Plaintiff's claims against Defendants in their official capacities because he has not sufficiently plead an underlying constitutional violation and, in any event, has not established that the alleged violations were causes by an official policy or custom. (Id. at 18-20.) Moreover, Defendants argue that Plaintiff has not alleged that Brann, Yang or Egan personally were involved in the alleged violations and has failed to exhaust his available administrative remedies. (Id. at 19-24.)
I. Conditions Of Confinement
It is well settled that “correctional officials have an affirmative obligation to protect inmates from infectious disease.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). Moreover, “[i]t is ‘undisputed-and, indeed, by now common knowledge-that COVID-19 is a highly dangerous disease that poses a significant risk of severe illness and death.'” Gil-Cabrera v. Dep't of Corr., No. 20-CV-09493 (LTS) (SDA), 2021 WL 5282620, at *4 (S.D.N.Y. Sept. 27, 2021), report and recommendation adopted sub nom. Gil-Cabrera v. City of New York, 2021 WL 5910055 (S.D.N.Y. Dec. 14, 2021) (quoting James v. Annucci, No. 20-CV-06952 (CJS), 2021 WL 3367530, at *2 (W.D.N.Y. Aug. 3, 2021)); see also Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323, 349 (S.D.N.Y. 2020) (“Put simply, COVID-19 stands with the roster of infectious diseases from which correctional officials have an affirmative obligation to protect inmates.”) (citing Jolly, 76 F.3d at 477) (internal quotation marks omitted). Accordingly, courts have found that “an inmate can face a substantial risk of serious harm in prison from COVID-19 if a prison does not take adequate measures to counter the spread of the virus.” Chunn v. Edge, 465 F.Supp.3d 168, 200 (E.D.N.Y. 2020); see also Caraballo v. Dep't of Corr. City of New York, No. 22-CV-00971 (JLR), 2022 WL 16555313, at *4 (S.D.N.Y. Oct. 31, 2022) (“under certain circumstances, an inmate's exposure to COVID-19 could ‘pose an unreasonable risk of serious damage to his health,' thereby satisfying the objective prong”) (quoting Shomo v. Dep't of Corr. & Cmty. Supervision, No. 21-CV-00128 (PMH), 2022 WL 1406726, at *12 (S.D.N.Y. May 4, 2022)). The relevant inquiry is whether a plaintiff has shown a substantial risk of serious harm from COVID-19 at a correctional facility in light of the countermeasures that the facility has in place. See Chunn, 465 F.Supp.3d at 201.
The Court need not decide whether there is a genuine issue of material fact as to the objective prong, however, because Plaintiff cannot satisfy the mens rea prong. Even assuming Defendants were aware of the risks of COVID-19 by September 2020, the record is devoid of evidence that Brann, Yang or Egan “intentionally . . . impose[d] the alleged condition[s], or recklessly failed to act with reasonable care to mitigate the risk that the condition[s] posed” to Plaintiff. See Caraballo, 2022 WL 16555313, at *5 (quoting Darnell, 849 F.3d at 35). To the contrary, Defendants have adduced significant evidence as to countermeasures put in place by DOC and CHS to minimize the risk to inmates of COVID-19 generally and with respect to Parker in particular. (See Mills Decl.; Yang Decl.; Pl.'s Medical Records, Thayer Decl. Ex. A, ECF No. 49-1.) Although Plaintiff asserts that DOC did not follow all of the COVID-19 protocols at VCBC, “[e]ven assuming [defendants'] response to COVID-19 was imperfect, or negligent, it is not enough to support a finding of deliberate indifference.” Jones v. Westchester Cty., No. 20-CV-08542 (PMH) 2022 WL 1406591, at *4-5 (dismissing § 1983 claims alleging failure by jail officials to provide proper care and adequate protection to prevent spread of COVID-19); see also Gibson v. Rodriguez, No. 20-CV-00953 (KAD), 2021 WL 4690701, at *7 (D. Conn. Oct. 7, 2021) (granting summary judgment to defendants on claim that they were deliberately indifferent to risk posed by COVID-19 in view of reasonable countermeasures).
Moreover, Plaintiff has not set forth facts regarding any individual actions taken by Brann, Yang or Egan with respect to the alleged violations. The only facts in the Second Amended Complaint as to Brann, Yang and Egan are that they ignored a call that Parker made to 311. (SAC at PDF p 4.) During his deposition, Plaintiff testified that he had never spoken with Brann, Yang or Egan and did not know if they were aware of the conditions in his dorm, but he sued them “[b]ecause they're the ones that run everything.” (Pl.'s Dep. Tr. at p. 43.) However, even if Plaintiff could establish that Defendants were aware of Plaintiff's complaint, that is not enough to establish personal involvement. See McIntosh v. United States, No. 14-CV-07889, 2016 WL 1274585 (KMK), at *16 (S.D.N.Y. Mar. 31, 2016) (“[M]ere receipt of a complaint or grievance from an inmate is insufficient to establish personal involvement[.]”). Nor is the fact that Defendants held certain high-level positions. See Shomo, 2022 WL 1406726, at *7 (“Plaintiff's allegations that the Individual Defendants held certain positions within DOCCS and denied his grievances are simply insufficient.”). Accordingly, Plaintiff's claims also should be dismissed for lack of personal involvement. See Tangreti, 983 F.3d at 618 (liability exists only where the “defendant, through the official's own individual actions, has violated the Constitution”); see also Shomo, 2022 WL 1406726, at *7-8 (dismissing § 1983 claims for lack of personal involvement) (citing cases); Gibson v. State of New York et al., No. 21-CV-04251 (GHW), 2021 WL 4267683, at *1-2 (S.D.N.Y. Sept. 20, 2021) (dismissing § 1983 claims against DOC supervisors alleging deliberate indifference to serious risk of contracting COVID-19 when complaint lacked facts about how supervisory officials were personally involved in alleged violations).
To the extent Plaintiff asserts claims against Defendants in their official capacities, which are equivalent to claims “against the entity of which an officer is an agent[,]” Crosby v. Petermann, No. 18-CV-09470 (JGK), 2020 WL 1434932, at *4 (S.D.N.Y. Mar. 24, 2020) (citing Kentucky v. Graham, 473 U.S. 159, (1985)), the Court recommends that those claims be dismissed since Plaintiff has failed to establish that his constitutional rights have been violated. See Vickers-Pearson v. City of New York, No. 18-CV-08610 (KPF), 2020 WL 5732028, at *9 (S.D.N.Y. Sept. 24, 2020) (“there can be no municipal liability without an underlying constitutional violation”) (granting summary judgment). Moreover, as Defendants point out, Plaintiff has not presented evidence that the alleged violations were caused by a policy or custom. (Defs.' Reply Mem. at 2-4.)
II. Failure To Exhaust Administrative Remedies
The Court also agrees with Defendants that they are entitled to summary judgment because Plaintiff has failed to exhaust his administrative remedies as provided by the Prison Litigation Reform Act (“PLRA”). (See Defs.' Mem at 20-24; Reply Mem. at 7-9.)
The PLRA states “[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). This action falls within the purview of this provision as the Supreme Court has established “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes[.]” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also 18 U.S.C. § 3626(g)(2) (defining the term “civil action with respect to prison conditions” to mean “any civil proceedings arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison[.]”).
“As the Supreme Court and Second Circuit have instructed, ‘proper exhaustion . . . means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'” Ortiz v. Annucci, No. 17-CV-03620 (RJS), 2019 WL 1438006, at *8 (S.D.N.Y. Mar. 29, 2019) (emphasis in original) (quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)); see also Ford v. Aramark, No. 18-CV-02696 (NSR), 2020 WL 377882, at *4 (S.D.N.Y. Jan. 23, 2020) (“[T]o satisfy the exhaustion requirement, an inmate must use all available administrative mechanisms, including appeals, through the highest level for each claim.”) (internal quotation marks omitted).
The procedure for exhaustion is not defined by the PLRA, but rather by the rules of the facility in which the inmate-plaintiff is incarcerated. See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). “Because failure to exhaust is an affirmative defense . . . defendants bear the initial burden of establishing, by pointing to legally sufficient source[s] such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute[.]” Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (internal quotation marks omitted). If the defendants satisfy this initial burden, it is then up to the plaintiff to “demonstrate that other factors . . . rendered a nominally available procedure unavailable as a matter of fact.” Id. “Exhaustion, even where the facts are disputed, is a matter of law for the Court to decide.” Brooks v. Mullen, No. 14-CV-06690 (FPG), 2020 WL 6158614, at *5 (W.D.N.Y. Oct. 21, 2020); see also Ortiz, 2019 WL 1438006, at *9 (“factual disputes related to administrative exhaustion are properly resolved by the Court rather than a jury”) (citing Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011)).
At Rikers Island, which includes VCBC, “grievance procedures are governed by the Inmate Grievance and Request Program (‘IGRP').” Hickman v. City of New York, No. 20-CV-04699 (RA) (OTW), 2021 WL 3604786, at *3 (S.D.N.Y. Aug. 12, 2021). Courts in this Circuit routinely take judicial notice of the IGRP. See Hickman, 2021 WL 3604786, at *3. “The IGRP applies to ‘[a]ny inmate who is directly and personally affected by an issue, condition, practice, service, or lack of an accommodation with regard to any issue that may arise in connection with their incarceration or action relating to their confinement.'” Massey v. City of New York, No. 20-CV-05665 (GBD) (DF), 2021 WL 4943564, at *7 (S.D.N.Y. Aug. 30, 2021) (alteration in original).
“The IGRP involves four steps: 1) submission of a complaint for informal resolution; 2) in the event an informal resolution is not reached within five days, request of a formal hearing; 3) appeal to the commanding officer; and 4) appeal to the Central Office Review Committee.” Hickman, 2021 WL 3604786, at *3; see also N.Y.C. Dep't of Corr., Directive 3376R-A at § V available at https://www1.nyc.gov/assets/doc/downloads/directives/Directive3376R-A.pdf (last visited December 16, 2022). “The inmate must take each of the four steps to exhaust the administrative grievance process.” Sanders v. City of New York, No. 16-CV-07426 (PGG), 2018 WL 3117508, at *4 (S.D.N.Y. June 25, 2018).
Although Plaintiff contends that he “took the proper steps and nothing changed” (Pl.'s Response ¶ 20), Plaintiff testified that he did not pursue the steps of the grievance process aside from making a 311 call. (Pl.'s Dep. Tr. at 35.) Although it may satisfy the first step of the process, a 311 call alone is not sufficient to satisfy the exhaustion requirements. See Massey, at *7 (311 call alone not sufficient to satisfy exhaustion requirements of PLRA).
Moreover, because Defendants have adduced evidence that the IGRP applied to Plaintiff's claims, Plaintiff must show that such procedure was unavailable. Hubbs, 788 F.3d at 54. An administrative remedy is unavailable when “it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates[;]” it is “so opaque that it becomes, practically speaking, incapable of use[;]” or “when prison administrators thwart inmates from taking advantage of [it] through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 643-45 (2016)). Although the Second Circuit has held that these three circumstances “are not exhaustive[,]” Romano v. Ulrich, 49 F.4th 148, 155 (2d Cir. 2022) (quoting Rucker v. Giffen, 997 F.3d 88, 93 (2d Cir. 2021)), these circumstances are useful to “guide the Court's inquiry.” Ortiz, 2019 WL 1438006, at *8.
In his response to Defendants' motion, Plaintiff asserts that he did not receive an inmate handbook. (Pl.'s Response ¶ 21.) However, he did not testify that he was unaware of the grievance process or that such process was unavailable, only that he did not make any written grievances. (Pl.'s Dep. Tr. at 35.)
In Rucker, the Second Circuit declined to address a similar argument that the plaintiff “did not know he had to file a grievance within five days after the incident because he did not receive the Inmate Handbook.” Rucker, 997 F.3d at 94 n.5. However, district courts that have addressed the issue in the wake of Ross have found similar assertions insufficient to create an issue of fact as to unavailability. See Galberth v. Washington, No. 14-CV-00691 (KPF), 2017 WL 3278921, at *11 (S.D.N.Y. July 31, 2017) (“Plaintiff would have to demonstrate that he was not timely provided with an inmate handbook because corrections officers were unwilling or unable to provide him with one, or prevented him from accessing the handbook ‘through machination, misrepresentation, or intimidation.'”) (quoting Ross, 578 U.S. at 644), aff'd, 743 Fed.Appx. 479 (2d Cir. 2018); see also Vidro v. Erfe, No. 18-CV-00567 (CSH), 2019 WL 4738896, at *8 (D. Conn. Sept. 26, 2019) (fact that plaintiff did not receive written or verbal information on grievance process insufficient to create genuine issue regarding availability of administrative remedies). Similarly, on the record here, the Court finds that Plaintiff's assertion that he did not receive an inmate handbook is insufficient to create an issue of fact as to whether an administrative remedy was available. Accordingly, I recommend that Defendants motion for summary judgment be granted on this ground as well. See Handy v. City of New York, No. 19-CV-03885 (MKV) (OTW), 2021 WL 4482548, at *6 (S.D.N.Y. Aug. 27, 2021), report and recommendation adopted, 2021 WL 4481600 (S.D.N.Y. Sept. 30, 2021) (granting summary judgment for failure to exhaust when there were “neither allegations in the pleadings nor evidence in the record that Plaintiff exhausted his administrative remedies or that such remedies were not available to Plaintiff.”); see also Cosme v. Faucher, No. 21-CV-01341 (SVN), 2022 WL 16540861, at *4 (D. Conn. Oct. 28, 2022) (granting summary judgment for failure to exhaust when plaintiff “presented no evidence in opposition to Defendants' motion showing that he exhausted his administrative remedies”).
III. Equal Protection
To the extent Plaintiff alleges a violation of the Equal Protection Clause of the Fourteenth Amendment, I recommend that such claim be dismissed because Plaintiff has not demonstrated that he was “treated differently than others who are similarly situated.” Singleton v. City of New York, No. 20-CV-08570 (ALC), 2022 WL 4620174, at *4 (S.D.N.Y. Sept. 30, 2022) (citing Gil-Cabrera, 2021 WL 5282620, at *3). Plaintiff does not allege that he was treated differently than other inmates, and to the extent he argues that inmates as a class were treated differently than those not in custody, “inmates are not, by virtue of being inmates, members of a protected class.” Id. (internal quotation marks and citations omitted).
IV. Defendants' Motion To Seal
Also before the Court is a motion by Defendants to seal Exhibit A of the Thayer Declaration, which contains Plaintiff's medical records. (Letter Motion to Seal, ECF No. 47.)
“[I]t is well-settled that documents submitted to a court for its consideration in a summary judgment motion are-as a matter of law-judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment.” Est. of Jackson by Jackson v. Cty. of Suffolk, No. 12-CV-01455 (ARR), 2019 WL 3253063, at *7 (E.D.N.Y. July 19, 2019) (citing Brown v. Maxwell, 929 F.3d 41, 47 (2d Cir. 2019)) (internal citation omitted)); see also Valentini v. Grp. Health Inc., No. 20-CV-09526 (JPC), 2020 WL 7646892, at *2 (S.D.N.Y. Dec. 23, 2020) (medical documents submitted in conjunction with motion to dismiss were judicial documents entitled to at least some presumption of public access). Despite this presumption, “court documents may be sealed if ‘specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'” Dunham v. City of New York, No. 11-CV-01223 (ALC), 2021 WL 918373, at *1 n.1 (S.D.N.Y. Mar. 10, 2021) (quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006)).
Here, the Court finds that sealing Plaintiff's medical records is necessary to protect Plaintiff's privacy interest in his medical information and that the sealing request is narrowly tailored to achieve that result. See Spring v. Allegany-Limestone Cent. Sch. Dist., No. 14-CV-0476S (WMS), 2021 WL 4166628, at *1 (W.D.N.Y. Sept. 14, 2021) (“[C]ourts in this circuit regularly allow medical records to be filed under seal, finding that parties have a strong privacy interest in their medical information.”); see also Valentini, 2020 WL 7646892, at *2 (plaintiff's privacy “countervailing interest” to presumption of public access). Accordingly, Defendants' motion to seal is GRANTED. Because Defendants' motion to seal is limited to Plaintiff's medical records, which are contained only in Exhibit A to the Thayer Declaration, the Court will unseal the Declaration itself, along with the other exhibits.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion for summary judgment be GRANTED. In addition, I hereby Order that Defendant's motion to seal is GRANTED.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Liman.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).