Summary
noting that Collins applied theHemphill three-part inquiry after Woodford
Summary of this case from HAIRSTON v. NEW YORK STATE DOCSOpinion
99 Civ. 11615 (WHP).
July 26, 2006
MEMORANDUM AND ORDER
Pro se plaintiff Jose Hernandez ("Hernandez" or "Plaintiff") brings this civil rights action asserting violations under 42 U.S.C. § 1983. By Memorandum and Order, dated September 29, 2003, this Court granted Defendants' motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) based on Plaintiff's failure to exhaust his administrative remedies under the Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e.Hernandez v. Coffey, No. 99 Civ. 11615 (WHP), 2003 WL 22241431 (S.D.N.Y. Sept. 29, 2003). Plaintiff appealed, and by mandate dated June 6, 2005 (the "Mandate"), the Court of Appeals vacated this Court's judgment and remanded the case for further proceedings.
Specifically, the Court of Appeals directed this Court to consider the following factors in light of its decisions inGiano v. Goord, 380 F.3d 670 (2d Cir. 2004) and Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004): (1) to what extent were the remedies Hernandez failed to pursue in fact available; (2) if the administrative procedures were available, whether Defendants were estopped from asserting failure to exhaust as a defense; and (3) if administrative remedies were available and one or all of the Defendants were not estopped from asserting failure to exhaust as a defense, whether Hernandez was justified in not pursuing a grievance in accord with the New York State Department of Correctional Services' ("DOCS") grievance procedures. (Summary Order, filed Jan. 20, 2005.)
BACKGROUND
Familiarity with this Court's previous Memorandum and Order is presumed. Hernandez, 2003 WL 22241431. At all times relevant to this action, Hernandez was incarcerated at a New York State correctional facility. DOCS has an established three-step administrative mechanism known as the inmate grievance program ("IGP") to resolve inmate complaints. N.Y. Corr. Law § 139 (McKinney 2005). Under the IGP, an inmate must first file a compliant with the Inmate Grievance Review Committee ("IGRC") within fourteen days of the challenged event. The IGRC is required to respond within seven days. The inmate may then appeal the IGRC decision to the superintendent of the facility. Finally, the inmate may appeal to the DOCS Central Office Review Committee ("CORC"). N.Y. Comp. Codes R. Regs. tit. 7, § 701.7. The IGP permits "matters not decided within the time limits [to] be appeal to the next step." N.Y. Comp. Codes R. Regs. tit. 7, § 701.8.
In the Complaint, Plaintiff asserted that he exhausted his administrative remedies by writing to Glenn S. Goord as Commissioner of DOCS, the Dutchess County District Attorney and the State Police in Albany (collectively, the "November 1998 Letters"). (Complaint, filed Nov. 29, 1999 at 2; Plaintiff's Affidavit on Exhaustion, filed May 21, 2002 ¶¶ 2, 4-5 Exs. B-D: November 1998 Letters.); see Hernandez, 2003 WL 22241431, at *3. By Order, dated May 3, 2002, this Court directed Plaintiff to submit a sworn affidavit explaining the administrative remedies he pursued, including copies of any relevant documents. The Court further directed Defendants to deliver to Plaintiff any letters submitted in pursuit of his administrative remedies and copies of all grievances he filed with the Clinton Correctional Facility ("Clinton"). (May 3, 2002, Order; June 18, 2002 Order.)
On July 1, 2002, Defendants moved for judgment on the pleadings based on Plaintiff's failure to exhaust his administrative remedies. In opposing that motion, Plaintiff contended that he filed a timely grievance at Clinton on November 10, 1998, but never received a response. (Plaintiff's Affidavit in Opposition, filed Aug. 1, 2002 ("Pl. Aff.") ¶ 14 Ex. F: Grievance.); see Hernandez, 2003 WL 22241431, at *4. He also claimed that on February 15, 2000, he wrote to the chairperson of the IRGC regarding the IRGC's failure to respond. (Pl. Aff. ¶ 16 Ex. I: Letter to IRGC.); see Hernandez, 2003 WL 22241431, at *4. In light of recent Second Circuit precedent, this Court must now consider whether Hernandez can rebut Defendants' argument that he failed to exhaust his administrative remedies.
DISCUSSION
I. Legal Standard
While this Court declined to consider documents outside the pleadings in its previous decision, the inquiry directed by the Court of Appeals requires this Court to look beyond the pleadings. Ziemba v. Wezner, 366 F.3d 161, 164 (2d Cir. 2004);Taylor v. New York State Dept. of Corr., No. 03 Civ. 1929 (PKC), 2004 WL 2979910, at *3-4 (S.D.N.Y. Dec. 22, 2004). Rule 12(c) provides that if "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(c). While notice to the parties is typically required prior to conversion, it is unnecessary in PLRA cases where both parties have submitted materials outside the pleadings and would not be surprised by conversion. Collins v. Goord, No. 05 Civ. 7484 (MBM), 2006 WL 1928646, at *7 (S.D.N.Y. July 11, 2006); Curry v. Mazzuca, No. 05 Civ. 1542 (NRB), 2006 WL 250487, at *4-5 (S.D.N.Y. Feb. 2, 2006). Plaintiff and Defendants previously submitted extensive affidavits with supporting documents addressing exhaustion. Accordingly, this Court deems it appropriate to convert Defendants' motion to one for summary judgment.
Summary judgment "shall be rendered forthwith if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). On such a motion, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255; accord Preseault v. City of Burlington, 412 F.3d 96, 101 (2d Cir. 2005). Summary judgment is not appropriate, however, where the non-movant can "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In this regard, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Because Hernandez is a pro se party, this Court reads his submissions liberally and interprets them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994);see Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998).
II. Exhaustion
The PLRA provides:
No 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. Under the PLRA, "[e]xhaustion is no longer left to the discretion of the district court, but is mandatory."Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006). Following this Court's previous decision, the Court of Appeals has held that "while the PLRA's exhaustion requirement is mandatory certain caveats apply." Giano, 380 F.3d at 675; Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004). In the Second Circuit, courts must now conduct the following three-part inquiry to determine whether an inmate has exhausted his administrative remedies: (1) whether administrative remedies were available to the inmate; (2) whether defendants' own actions inhibiting exhaustion estops them from raising the defense; and (3) whether special circumstances justify the inmate's failure to comply with procedural requirements. Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006); Brownell v. Krom, 446 F.3d 305, 311 (2d Cir. 2006); Hemphill, 380 F.3d at 686; Giano, 380 F.3d at 675; Collins, 2006 WL 1928646, at *7 n. 13 (applying the Hemphill three-part inquiry after the Supreme Court's decision in Woodford). This Court considers each of these inquires seriatim.
"To be available under the PLRA, a remedy must afford `the possibility of some relief for the action complained of.'"Abney, 380 F.3d at 667 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). In making this determination, "courts should be careful to look at the applicable set of grievance procedures."Abney, 380 F.3d at 668; Taylor v. New York City Dept. of Corr., No. 03 Civ. 1929 (PKC), 2004 WL 2979910, at *6 (S.D.N.Y. Dec. 22, 2004). Hernandez argued that he filed a grievance and never received a response. Rather than appealing to the next stage of the IGP, more than one year later, Hernandez wrote a letter to the chairperson of the IGRC concerning the failure to respond.
The PLRA requires proper exhaustion, "which means using all steps that the agency holds out, and doing so properly."Woodford, 126 S. Ct at 2385, 2387. In this Circuit, district courts have held that the lack of a response from the IGRC does not excuse an inmate's obligation to exhaust his remedies through available appeals. Acosta v. Corr. Officer Dawkins, No. 04 Civ. 6678 (RMB), 2005 WL 1668627, at *3 (S.D.N.Y. July 14, 2005) (inmate required to appeal lack of response to exhaust administrative remedies); Taylor, 2004 WL 2979910, at *6 ("Even if the IGRC failed to respond, a similarly situated individual reading the rules would understand that the failure to respond permitted him to appeal to the next level."); Veloz v. State of New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004). Assumingarguendo that Hernandez filed his grievance as he contends, the absence of any response from IGRC did not excuse his obligation to appeal to the next stage of the IGP. Indeed, requiring Hernandez to appeal and exhaust his remedies "gives [him] an effective incentive to make full use of the prison grievance process and accordingly provides [the prison] with a fair opportunity to correct [its] own errors." Woodford, 126 S. Ct. at 2387.
This case is distinguishable from Abney, where the Second Circuit held that inmates are not required to appeal the failure to implement a favorable ruling in the absence of DOCS regulations governing that procedure. Abney, 380 F.3d at 669. Here, however, DOCS regulations are not silent with respect to the IGP's failure to respond to a grievance. As discussed above, Section 701.8 provides "that matters not decided within the time limits may be appealed to the next step." N.Y. Comp. Codes R. Regs. tit. 7, § 701.8.
Notably, Hernandez did not argue that any threats or intimidation prevented him from pursuing his appeals. See Taylor, 2004 WL 2979910, at *7; Veloz, 339 F. Supp. 2d at 516. After the incident, Hernandez alleged that his attackers threatened to kill him if he said anything. (Pl. Aff. ¶ 6.) Nevertheless, he filed a grievance and thereafter wrote to the chairperson of the inmate grievance committee. Because the threat did not discourage Hernandez from commencing the grievance process, this Court cannot conclude that it dissuaded him from pursuing his appeals.
For the same reasons, this Court finds that Defendants were not estopped from asserting a failure to exhaust defense. Other than the IGRC's failure to respond to his grievance, Hernandez identified no conduct attributable to Defendants that thwarted him from pursuing the necessary appeals. Acosta, 2005 WL 1668627, at *3 (estoppel inappropriate based on no response from IGRC); Taylor, 2004 WL 2979910, at *7; Veloz, 339 F. Supp. 2d at 516.
Similarly, the November 1998 Letters are insufficient to satisfy the exhaustion requirement. Because Hernandez was not too intimidated to file a grievance, he cannot demonstrate that his failure to follow the appropriate grievance procedures was justified. Absent such a showing, the letters do not satisfy Plaintiff's exhaustion obligation. Collins, 2006 WL 1928646, at * 9 (letters insufficient without facts excusing use of IGP process); Connor v. Hurley, No. 00 Civ. 8354 (LTS), 2004 WL 885828, at *2 (S.D.N.Y. Apr. 26, 2004).
Finally, no special circumstances justify Plaintiff's failure to comply with the IGP three step grievance procedure. Hernandez argued that because he was not required to exhaust his claim under Second Circuit law at the time his claim arose, the exhaustion rule subsequently established by the Supreme Court inPorter v. Nussle, 534 U.S. 516 (2002) does not apply to him. This argument is unavailing. In Porter, the Supreme Court held that the "the 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 (2002). As this Court recognized in its previous opinion, the rule in Porter "applies retroactively to prisoners such as Hernandez who filed their suits prior to the Supreme Court's pronouncement." Hernandez, 2003 WL 22241431, at *4;see Webb v. Goord, 340 F.3d 105, 112 (2d Cir. 2003) ("Our Circuit has already applied Porter retroactively."); see also Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97 (1993) ("When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the Supreme Court's] announcement of the rule.").
CONCLUSION
For the foregoing reasons, summary judgment is granted in favor of Defendants. Accordingly, Plaintiff's pending motions for appointment of counsel and to disqualify the Attorney General as counsel for Defendants are denied as moot. The Clerk of Court is directed to mark this case closed.
SO ORDERED.