Opinion
9:20-CV-51 (GTS/TWD)
04-22-2021
CHRISTOPHER L. AYERS, Plaintiff, v. LT. SCARLOTTA, RICHARD MILLER, CORRECTIONS OFFICER MCFERRIN, Defendants.
APPEARANCES: CHRISTOPHER L. AYERS Plaintiff, pro se 97-A-1592 Sullivan Correctional Facility Box 116 Fallsburg, New York 12733 HON. LETITIA JAMES Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224 LAUREN ROSE EVERSLEY, ESQ. Assistant Attorney General
| APPEARANCES: | OF COUNSEL: |
| CHRISTOPHER L. AYERSPlaintiff, pro se97-A-1592Sullivan Correctional FacilityBox 116Fallsburg, New York 12733 | |
|---|---|
| HON. LETITIA JAMESAttorney General for the State of New YorkAttorney for DefendantsThe CapitolAlbany, NY 12224 | LAUREN ROSE EVERSLEY, ESQ.Assistant Attorney General |
Christopher L. Ayers ("Plaintiff"), a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this pro se civil rights action under 42 U.S.C. § 1983, asserting claims arising out of his incarceration at Great Meadow Correctional Facility ("Great Meadow CF"). (Dkt. No. 50.) Plaintiff served Lieutenant Scarlotta and Officer McFerrin (collectively "Defendants") with the second amended complaint and they now move for summary judgment, in lieu of an answer, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 58.) In short, Defendants argue Plaintiff did not file a grievance related to the allegations contained in his second amended complaint and therefore failed to exhaust his administrative remedies. (Dkt. No. 58-1.) Plaintiff did not respond to Defendants' motion for summary judgment, thus leaving the Court to consider the motion unopposed. For the reasons set forth below, the Court recommends that Defendants' motion be granted.
As noted in the District Court's December 1, 2020, Text Order, the summons for the defendant identified as Corrections Officer Richard Miller was returned unexecuted on November 17, 2020. As such, this defendant has not appeared in this case or joined in the motion for summary judgment.
I. DISCUSSION
a. Background
In his second amended complaint, Plaintiff alleges that, while incarcerated at Great Meadow CF, defendant Scarlotta directed defendants Miller and McFerrin to handcuff Plaintiff and beat him. (Dkt. No. 50 at 6.) The District Court construed Plaintiff's second amended complaint as alleging Eighth Amendment excessive force claims against McFerrin and Miller and failure to protect claims against Scarlotta. (Dkt. No. 51.)
As noted above, only Defendants Scarlotta and McFerrin have been served and those defendants now bring a motion for summary judgment in lieu of an answer. (Dkt. No. 58.) In their motion, Defendants argue Plaintiff's "claims are the proper subject for a grievance under the applicable grievance procedures; yet, [he] did not file a grievance regarding his allegations against defendants in this action." (Dkt. No. 58-1 at 10.) In a declaration filed in connection with their motion, Alexandria Mead, the Inmate Grievance Supervisor at Great Meadow C.F., asserts that Plaintiff was incarcerated at the facility between October 16, 2018, and November 5, 2019, and did not file any grievances related to the allegations of excessive force against Defendants. (Dkt. No. 58-3 at ¶ 18.) Accordingly, Defendants argue the Court should dismiss the second amended complaint for failure to exhaust. (Dkt. No. 58-1.)
b. Standard of Review
1. Plaintiff's Failure to Respond to Defendants' Statement of Material Facts
The Local Rules were amended effective January 1, 2021. In the amendment, L.R. 7.1 was dissected and various subsections were renumbered and relocated to correspond with the appropriate Federal Rule. The relevant substance of the rules did not change. In the currently operative version of the Local Rules, L.R. 56.1 deals with summary judgement motions. However, because these motions were filed in 2020, the Court refers to the Local Rules as they existed at that time.
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). As noted above, Plaintiff failed to file any response to Defendants' summary judgment motion. Importantly, he has failed to challenge the statement of material facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3).
Local Rule 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." N.Y.N.D. L.R. 7.1(a)(3).
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Defendants provided Plaintiff with the requisite notice of the consequences of his failure to respond to the motion. (Dkt. No. 58 at 3.)
Accordingly, the facts set forth in Defendants' Statement of Material Facts (Dkt. No. 58-2) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's second amended complaint and verified opposition submissions will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) ("Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts Pursuant to Rule 7.1(a)(3) . . . supplemented by Plaintiff's verified complaint . . . as true."). As to any facts not contained in Defendants' Statement of Material Facts, in light of the procedural posture of this case, the Court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of Plaintiff. Terry, 336 F.3d at 137.
Moreover, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has reviewed the entire record.
2. Summary Judgment Standard
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). As noted above, Plaintiff failed to respond to Defendant's motion for summary judgment. Plaintiff's failure to oppose Defendant's motion results in the admission of properly supported facts, however the Court must still ensure those facts show Defendant is entitled to judgment as a matter of law. See Jackson v. Federal Express, 766 F.3d 189, 194 (2d Cir. 2014) (a non-response to a summary judgment motion does not risk default because the district court must ensure that each statement of material fact is supported by the record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed) (citing Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242-46 (2d Cir. 2004) (even when a motion for summary judgment is not opposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law)).
c. Analysis
The Prison Litigation Reform Act of 1995 ("PLRA"), provides, in pertinent part, "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is required for "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). "[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (stating that the mandatory language of § 1997e(a) forecloses judicial discretion to craft exceptions to the requirement). To properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the institution to which they are confined. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly"). Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing a failure to meet exhaustion requirements. See Jones, 549 U.S. at 216.
DOCCS has a well-established three-step administrative review process, Inmate Grievance Program ("IGP"), which oversees the manner in which issues are resolved by affording inmates "an orderly, fair, simple and expeditious method for resolving grievances." 7 N.Y.C.R.R. § 701.1(a). Concerns "about the substance or application of a written or unwritten policy, regulation, procedure or rule of [DOCCS]," as well as complaints of "employee misconduct meant to annoy, intimidate or harm an inmate" may be filed. Id. § 701.2(a)-(e).
First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. § 701.5(a). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance, id. § 701.5(b)(2), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's Superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the Superintendent must issue a written decision within twenty calendar days of receipt of the grievant' s appeal. Id. § 701.5(c)(3)(ii).
Third, a grievant may appeal to CORC within seven working days of receipt of the Superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
The Second Circuit has long recognized this procedure as an "available remedy" for purposes of the PLRA. See Hall v. Cty. of Saratoga, No. 10-CV-1120 (NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6, 2013). Generally, if a plaintiff, as here, fails to follow each of the required steps prior to commencing an action, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks and citations omitted)).
Nevertheless, while the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, Section 1997e(a) provides only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]" (quotation marks and citations omitted)). In the PLRA context, the Supreme Court has determined "availability" means "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotation marks and citations omitted).
There are three circumstances in which a court may find a facility's internal administrative remedies are not available under the PLRA. Id. at 1859-60. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
The question as to whether the plaintiff has exhausted his administrative remedies is a question of law. See Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999). Thus, an inmate's failure to exhaust administrative remedies is properly considered on a motion for summary judgment in lieu of an answer. Crichlow v. Fischer, No. 6:15-CV-06252 EAW, 2017 WL 920753, at *5 (W.D.N.Y. Mar. 7, 2017) (citing Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (granting a motion for summary judgment made in lieu of an answer where inmate failed to exhaust administrative remedies)).
Here, the record evidence establishes that Plaintiff failed to file a grievance related to the allegations that form the basis for his second amended complaint. (Dkt. No. 58-2 at ¶¶ 17-19.) Moreover, there is no evidence in the record showing the grievance procedure "operate[d] as a simple dead end" to Plaintiff, nor is there any evidence to establish an issue of fact as to unavailability due to an "opaque" administrative scheme. There also is no evidence prison administrators prevented Plaintiff from using the grievance procedure due to "machination, misrepresentation, or intimidation." See Ross, 136 S. Ct. at 1859-60. Lastly, the record does not demonstrate prison administrators prevented Plaintiff from using the grievance procedure due to "machination, misrepresentation, or intimidation." Id.
Therefore, given the record and considering the evidence in the light most favorable to Plaintiff, the Court finds Defendants have carried their burden to establish they are entitled to judgment as a matter of law.
Dismissal with prejudice is appropriate where the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is unable to cure his failure to exhaust. Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004). Here, the Plaintiff's time to file a grievance in accordance with the rules and regulations has already passed, rendering his failure to exhaust his administrative remedies incurable at this time.
As noted above, Defendant Miller has not been served with the second amended complaint and he has not yet appeared in this action apparently because he was misnamed. (See Text Order dated December 1, 2020.) However, given that Defendants' arguments with respect to exhaustion apply with equal strength to any putative defendant who participated in the alleged assault, the Court recommends dismissing this action in its entirety rather than providing Plaintiff an opportunity to properly name and serve a new defendant.
II. CONCLUSION
After carefully considering the record, the Court finds Plaintiff failed to exhaust his administrative remedies.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 58) be GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint be DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
The Court is aware that Plaintiff has been released from prison and the recent mail from the action has apparently not reached Plaintiff. It is important to note that Plaintiff was obligated, pursuant to L.R. 10.1(c)(2) and L.R. 41.2(b), to keep the Court informed of his current address. Therefore, any issue with his receipt of Court documents is due to his own omission.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). Dated: April 22, 2021
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge