Opinion
01-CV-6371 CJS.
July 12, 2004
Mike Wilson, Pro se, Upstate Correctional Facility, Malone, NY, for plaintiff.
Charles D. Steinman, Esq., Assistant Attorney General, Office of the New York State, Attorney General, Rochester, New York, for defendants.
DECISION AND ORDER
INTRODUCTION
This is an action in which the pro se plaintiff, a prison inmate formerly housed at Southport Correctional Facility, is suing various employees of that facility, pursuant to 42 U.S.C. § 1983. Now before the Court is a motion for summary judgment [#47] by defendant Agnes Peters, RN ("Peters"), whom plaintiff alleges violated his 8th Amendment rights by acting with deliberate indifference to his serious medical needs. For the reasons that follow, the application is granted.
BACKGROUND
On April 30, 2000, at Southport Correctional Facility, plaintiff alleges that he was assaulted by several correctional officers, and that, as a result of the assault, he sustained a laceration to his right ear and a bruised shoulder. Plaintiff claims that Peters examined him after the alleged assault, and that although Peters told him he was in need of sutures, she refused to provide them, and instead instructed him to "ask [his] regular nurse tomorrow." Pl. App. to Stmt. of Facts [#54]. Plaintiff further alleges that, although Peters was aware of his shoulder injury, she permitted him to be handcuffed behind his back, which caused him pain and exacerbated his condition. Plaintiff thus contends that he "was denied the proper medical treatment by Nurse A. Peters." Id.Peters now moves for summary judgment based on plaintiff's alleged failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. Peters bases her motion on the affidavit of Thomas G. Eagen ("Eagen"), custodian of the records maintained by the New York State Department of Correctional Services Central Office Review Committee ("CORC"). Eagen states that while a grievance from plaintiff was received "with respect to the correction officers involved in the April 30, 2000, incident," "there is no indication that . . . plaintiff ever filed an appeal to CORC with respect to the claim [against] . . . R.N. Peters." Eagen Aff. ¶ 5.
Plaintiff, however, maintains that on April 30, 2000, he filed separate grievances with regard to both the assault and Peters' denial of proper medical care. Plaintiff, in a sworn affidavit dated November 24, 2003, states that he "placed his grievances in the institutional mail box to be processed" on April 30, 2000. In subsequent sworn statements, however, plaintiff alleges that he handed the two grievances to unnamed corrections officers to be mailed. Plaintiff has also submitted affidavits from two inmates who claim that on April 30, 2000, they overheard plaintiff ask unnamed corrections officers to place "his grievances" in the mail box. Plaintiff further contends that only three days later, on May 3, 2000, having received no response to his grievances, he sent a memorandum to Southport's Inmate Grievance Resolution Committee ("IGRC"), in which he sought to appeal to "CORC and the superintendent M. McGinnis," simultaneously. Pl. Stmt. of Facts [#54]. Plaintiff claims he appealed after only three days because he assumed the absence of a reply implied a denial of his grievance. Plaintiff claims that he never received a response to either his grievance against Peters or to his "appeal." Plaintiff has produced no evidence, such as a copy of the grievance or appeal, to show that he actually filed such documents. The only documentary proof submitted by plaintiff is a handwritten statement purporting to be a copy of the grievance, which he admittedly prepared in December 2003, 3 ½ years after the fact.
In response to plaintiff's sworn submission asserting that he did indeed file a grievance and appeal with respect to the alleged denial of medical care, Peters filed a Reply Memorandum of Law, [#53], in which she contends that plaintiff has nonetheless failed to exhaust administrative remedies because "his purported subsequent attempts to appeal were not in accordance with DOCS regulations." Specifically, Peters notes that, even assuming plaintiff actually filed a grievance and appeal, the appeal was filed on May 3, 2000, only three days after the initial grievance was filed on April 30. Peters argues that this would be contrary to DOCS regulation 7 N.Y.C.R.R. § 701.7(a)(3), which allows the Inmate Grievance Committee up to seven days to investigate and hold hearings on grievances. Plaintiff filed a sur-reply, [#59], arguing that it is no where explicitly stated that "inmates cannot file an early appeal."
The Court has thoroughly considered the parties' submissions and the entire record in this action.
ANALYSIS
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "even pro se litigants must abide by the Federal Rules of Civil Procedure." Shoemaker v. Am. Broad. Co., Inc., No. 99 Civ. 2610(DAB), 1999 WL 1084247 at *2 (S.D.N.Y. Dec. 1, 1999) (citations omitted). Thus, here, plaintiff must be able to support his claim that he exhausted all administrative remedies pursuant to the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e(a) with evidentiary proof in admissible form in order for there to exist a dispute of the material facts.
42 U.S.C. § 1997e(a) provides 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." It is well settled that,
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court.Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). Where a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing his lawsuit, the district court should dismiss the action without prejudice. Neal v. Goord, 267 F.3d 116, 121-23 (2d Cir. 2001), overruled in part on other grounds, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002).
It is unclear at this time whether or not inmates may also exhaust their administrative remedies in other ways. See Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003). However, the Court need not consider that issue here, since plaintiff maintains that he exhausted using the Inmate Grievance Program.
Pursuant to 7 N.Y.C.R.R. § 701.7 (a)(3), IGRC representatives shall have up to 7 working days to review a grievance and resolve it informally. "If there is no resolution . . . a hearing must take place within 7 working days of receipt of grievance." 7 N.Y.C.R.R. § 701.7(a)(4). A written decision must then be communicated to the grievant within 2 working days. 7 N.Y.C.R.R. § 701.7(a)(4)(v). Pursuant to 7 N.Y.C.R.R. § 701.7(b)(1), the inmate may appeal an IGRC action to the superintendent by filing an appeal with the IGP clerk within 4 working days after receipt of the committee's written response to the grievance. However, "matters not decided within the time limits may be appealed to the next step." 7 N.Y.C.R.R. § 701.8. In addition, receipt of the superintendent's written response is requisite to an inmate's appeal to the CORC, the final step in the administrative exhaustion process. 7 N.Y.C.R.R. § 701.7(c)(1).
Applying these legal principles to the facts of this case, the Court first finds that judgment must be granted in favor of Peters, since plaintiff did not in fact exhaust his administrative remedies before commencing this action. Plaintiff alleges that he filed a grievance with respect to Peters' alleged denial of medical treatment on April 30, 2000. However, he offers only conclusory assertions to support that claim. Such bald assertions are insufficient to defeat a summary judgment motion. Rodriguez v. Hahn, 209 F.Supp.2d 344, 348 (S.D.N.Y. 2002). Plaintiff's assertion that corrections guards failed to file the grievance against Peters is implausible, because his grievance against the corrections guards who allegedly assaulted him was processed. Moreover, the two affidavits that plaintiff submitted from his inmate witnesses are inherently unreliable, as they claim to recall verbatim a mundane event that allegedly occurred four years earlier, yet fail to identify the corrections officers involved. Apart from these shortcomings, the affidavits are not relevant, since neither inmate has personal knowledge as to the nature of the grievances that plaintiff allegedly gave to the corrections officers. That is, even assuming that they did hear the conversation they claim to have heard, they would not know that either of the grievances plaintiff supposedly gave to the corrections officers pertained to Peters.
However, even assuming that plaintiff actually filed a grievance against Peters, he subsequently failed to exhaust his remedies because he did not follow the proper procedures. Although plaintiff contends he never received a response to this grievance, he nonetheless claims to have filed an appeal on May 30, 2000, before the "7 working days" time allotted for the IGRC to render a decision had expired. 7 N.Y.C.R.R. § 701.7(a)(3). Consequently, an appeal, even if it had been filed, would have been premature. 7 N.Y.C.R.R. § 701.8 states that "matters not decided within the time limits may be appealed to the next step," and it is implicit in this language that one must wait the designated "7 working days" before appealing. Moreover, plaintiff's "appeal," [#54] Exhibit 2, states that it was intended for both the "CORC and the superintendent M. McGinnis." In this regard, plaintiff failed to comply with DOCS regulations, which do not allow inmates to seek two levels of review simultaneously, since this undermines the process of administrative exhaustion, and eliminates any possibility of receiving a favorable response from the superintendent before moving on to the CORC. In addition, inmates must actually receive a response from the CORC in order to exhaust administrative remedies. Rodriguez v. Hahn, 209 F.Supp.2d at 348.
These procedural inadequacies require that plaintiff's action be dismissed. Administrative policy has been implemented to establish a uniform system of grievance evaluation. If an inmate were permitted to seek judicial relief after merely claiming to have filed grievance and appeal, with no evidentiary proof and without adhering to regulations of timeliness, the system of administrative review would rapidly deteriorate.
CONCLUSION
Defendant's motion for summary judgment [#47] is granted. Plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act 42 U.S.C. § 1997e(a).
So ordered.