Opinion
9:19-CV-689 (BKS/TWD)
05-12-2021
RASHAD SALAAM, Plaintiff, v. GORDON STOCK, EVAN VIANESE, Defendants.
RASHAD SALAAM Plaintiff, pro se 14-A-3363 Clinton Correctional Facility HON. LETITIA JAMES Attorney General for the State of New York Attorney for Defendants LAUREN ROSE EVERSLEY, ESQ. Assistant Attorney General
RASHAD SALAAM
Plaintiff, pro se
14-A-3363
Clinton Correctional Facility
HON. LETITIA JAMES
Attorney General for the State of New York
Attorney for Defendants
LAUREN ROSE EVERSLEY, ESQ.
Assistant Attorney General
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Rashad Salaam ("Plaintiff), an 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 Auburn Correctional Facility ("Auburn C.F."). (Dkt. No. 34, Plaintiffs third amended complaint.) Correction Officers Gordon Stock ("Stock") and Evan Vianese ("Vianese") (collectively "Defendants") now move for summary judgment, in lieu of an answer, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 53.) In short, Defendants argue Plaintiff commenced this action before exhausting his administrative remedies. (Dkt. No. 53-1.) For the reasons set forth below, the Court recommends denying Defendants' motion.
I. DISCUSSION
A. Background
In his third amended complaint, Plaintiff alleges that Stock failed to protect him on July 22, 2017, when an inmate raped him. (Dkt. No. 34 at 1, 3.) Furthermore, Plaintiff asserts the same inmate cut him several times on July 25, 2017, and Vianese did not "pull his pin" or assist in any way. Id. More specifically, Plaintiff alleges that Stock was "overlooking the gallery" when Plaintiff was attacked on July 22, 2017, and "allowed [an] inmate to enter [his] cell without pulling a pin or addressing the issue[, ]" and Vianese "stood at the end of the gallery" and observed the same inmate attack Plaintiff on July 25, 2017, yet "did nothing" and then allowed the inmate to follow Plaintiff into his cell where he was stabbed. Id. at 3. Additionally, Plaintiff alleges each Defendant was aware Plaintiff is transgender and was subject to repeated harassment by other inmates leading up to the events at issue. Id. at 2. The Court construed Plaintiffs third amended complaint as alleging Eighth Amendment failure to protect claims and Fourteenth Amendment equal protection claims against Defendants. (Dkt. No. 35.)
Defendants now bring a motion for summary judgment in lieu of an answer. (Dkt. No. 53.) In their motion, Defendants argue Plaintiff never utilized the inmate grievance procedure available to him at Auburn C.F. (Dkt. No. 53-1.) Specifically, Defendants assert Plaintiff never submitted a complaint regarding the alleged sexual abuse on July 22, 2017, and never filed a grievance regarding the July 25, 2017, cutting incident. Id. at 8-9. In a declaration filed in connection with their motion, Cheryl Parmiter, the Inmate Grievance Program ("IGP") Supervisor at Auburn C.F., stated she reviewed her internal records and concluded Plaintiff did not file a grievance regarding the allegations in the third amended complaint. (Dkt. No. 53-3 at ¶ 15.) Defendants further assert Plaintiff never filed a complaint regarding his alleged sexual assault. (Dkt. No. 53-2 at ¶ 17.) Thus, according to Defendants, the third amended complaint should be dismissed for failure to exhaust because Plaintiff commenced this action without completing the administrative grievance procedure. (Dkt. No. 53-1.)
Plaintiffs response criticizes the Auburn C.F. grievance process as "corrupted" and asserts that he has filed several grievances related to these incidents without any response. (Dkt. No. 56 at 1; Dkt. No. 56-1 at l.) Plaintiff further contends he has been threatened by officers for filing grievances and the grievances related to these events were thrown away. (Dkt. No. 56-1 at 1.) Plaintiff alleges he contacted the Prison Rape Elimination Act ("PREA") Hotline and the Office of Special Investigation ("OSI") related to the sexual abuse allegation and received counseling, support, and advocacy from Safe Harbor of the Finger Lakes. (Dkt. No. 56 at 2; Dkt. No. 58 at 1.) Plaintiff further submitted medical records that indicate he suffered lacerations on his right cheek and forearm on July 25, 2017. (Dkt No. 56 at 4-6.) Plaintiff also filed a letter indicating he had an OSI case opened regarding the sexual abuse allegation and provided the OSI case number. (Dkt. No. 57.) Finally, he asserts he contacted Prisoners' Legal Services of New York to discuss his conditions of confinement and enclosed the related correspondence in his filings. (Dkt. No. 59.)
In his response, Plaintiff says he would like "a delay to contact a lawyer to help" with his case or for the Court to appoint a lawyer for him. (Dkt. No. 56 at 2.) Any request for the Court to appoint a lawyer to assist with his case must be made as a formal motion and Plaintiff must explain why an attorney should be appointed in his case and what efforts he has made to find a lawyer on his own. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986); Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). Accordingly, to the extent Plaintiffs response (Dkt. No. 56) could be construed as a request for counsel, that request is denied without prejudice.
In their reply, Defendants argue the Court should deem the assertions in Defendants' Statement of Material facts admitted. (Dkt. No. 64 at 4.) Defendants further suggest Plaintiffs conclusory allegations related to Auburn C.F.'s grievance system and his attempt to file grievances in this case should be disregarded. Id. at 4-5. Defendants also argue that OSI investigations are insufficient to satisfy the exhaustion requirement with respect to the claims against Vianese that do not include allegations of sexual assault. Id. at 5.
B. Standard of Review
1. 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.
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)).
2. Plaintiffs Failure to Respond to Defendants' Statement of Material Facts
While courts are required to give due deference to a plaintiff spro 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). Here, Plaintiff 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). ,
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.
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. 53 at 3.)
Accordingly, the facts set forth in Defendants' Statement of Material Facts (Dkt. No. 53-2) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiffs third 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 plaintiffs 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 Plaintiffs 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 v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
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. § l997e(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 § l997e(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.
As noted above, this case involves claims against two corrections officers involving their conduct on different dates. In one of those incidents, Plaintiff asserts Stock was aware that another inmate was sexually assaulting him in his jail cell and did nothing to prevent the attack. The other incident similarly alleges Vianese was aware Plaintiff was being attacked and did nothing, however, the second incident did not involve sexual assault. In their motion, Defendants argue Plaintiff failed to exhaust his administrative remedies prior to filing suit in federal court. (Dkt. No. 53.) Defendants acknowledge that there are differing requirements regarding exhaustion that are applicable to each set of claims against each officer.
To that end, with respect to the claims against Vianese, exhaustion requires compliance with DOCCS' well-established three-step administrative review process, the IGP. 7 NYCRR § 701.1 (a). 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).
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 *l-2 (N.D.N.Y.Mar. 6, 2013). Generally, if a plaintiff 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)).
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).
However, for complaints regarding sexual abuse or sexual harassment-as in this case regarding Stock-DOCCS has established a different procedure. See DOCCS Directive 4040 § 701.3(i); 7 NYCRR § 701.3(i). "Revised in 2014 pursuant to the Prison Rape Elimination Act ("PREA"), see Henderson v. Annucci, No. 14-CV-445A, 2016 WL 3039687, at *3 (W.D.N.Y. Mar. 14, 2016), Directive 4040 § 701.3(i) creates a relaxed exhaustion requirement for allegations concerning incidents of sexual assault." Sheffer v. Fleury, No. 9:18-cv-1180 (LEK7DJS), 2019 WL 4463672, at *4 (N.D.N.Y. Sept. 18, 2019). Specifically, "an inmate is not required to file a grievance concerning an alleged incident of sexual abuse or sexual harassment to satisfy the [PLRA] exhaustion requirement." 7 NYCRR § 701.3(i). Instead:
any allegation concerning an incident of sexual abuse or sexual harassment shall be deemed exhausted if official documentation confirms that: an inmate who alleges being the victim of sexual abuse or sexual harassment reported the incident to facility staff; in writing to Central Office Staff; to any outside agency that the Department has identified as having agreed to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials under the PREA Standards; or to the Department's Office of the Inspector General.Id. (citations omitted). If an inmate does file a grievance regarding a complaint of sexual abuse or sexual harassment, "[t]he complaint shall be deemed exhausted upon filing." Id. Finally, "[a] sexual abuse or sexual harassment complaint may be submitted at any time." Id.
In this case, Defendants have asserted in their Statement of Material Facts that Plaintiff never filed a grievance related to the incidents that occurred on July 22, 2017, and July 25, 2017, at Auburn C.F. (Dkt. No. 53-3 at ¶ 16.) Furthermore, Defendants contend "Plaintiff never submitted a complaint under the PREA" regarding the July 22, 2017, incident at Auburn C.F. involving a sexual assault. Id. at ¶ 17.
To support this fact, Defendants cite to Plaintiffs first amended complaint at Dkt. No. 16 page 1. In that document, Plaintiff asserts the inmate who raped him told him not to tell about the incident or he would be killed and that he, therefore, did not tell. (Dkt. No. 16 at 1.) The Court is skeptical that this evidence is sufficient to satisfy Defendants' burden to prove their contention that Plaintiff never submitted a complaint regarding the alleged sexual assault. In any event, as discussed below, Plaintiff submitted evidence sufficient to refute this assertion and the Court finds Defendants' motion should be denied on that basis alone.
First, with respect to the claims against Stock, Plaintiff responded to Defendants' motion with documentation supporting his allegation that he reported his claims of sexual harassment to OSI and the PREA help center. Specifically, Plaintiff contends he contacted the PREA Hotline and the OSI related to the sexual abuse allegation and received counseling, support, and advocacy from Safe Harbor of the Finger Lakes. (Dkt. No. 56 at 2; Dkt. No. 58 at 1.) Plaintiff also filed a letter indicating he had an OSI case opened regarding the sexual abuse allegation and it is OSI Case Number SCU-19-0120. (Dkt. No. 57.)
As noted above, "an inmate is not required to file a grievance concerning an alleged incident of sexual abuse or sexual harassment to satisfy [PLRA] exhaustion requirement. . . before bringing a lawsuit regarding an allegation of sexual abuse as long as the matter was reported." 7 NYCRR § 701.3(i). Rather, making a complaint regarding the alleged sexual assault to OSI and through the PREA helpline is sufficient to satisfy the exhaustion requirement. See Id. Therefore, the Court finds there is a genuine dispute as to whether Plaintiff complained about the sexual assault and recommends denying Defendants' motion for summary judgment related to his claims against Stock.
With respect to Plaintiffs claims against Vianese, Plaintiff asserts that he attempted to file grievances related to the assault but that his grievances were destroyed and that Auburn C.F.'s grievance system is corrupted. (Dkt. No. 56 at 1; Dkt. No. 56-1 at 1.) The Court is aware that Plaintiff has not provided any further evidence substantiating his claims that he filed these supposed grievances besides a letter to Prisoner Legal Services of New York and medical records that tend to support he was injured on the relevant date. In some instances, as Defendants argue, Courts have found that such allegations are insufficient to overcome a properly supported motion for summary judgement. (Dkt. No. 64 at 5 (citing cases).)
However, given the posture of this case, the Court recommends giving Plaintiff the benefit of the doubt and denying Defendants' motion at this time so that the parties can conduct discovery on this issue. That is, "[s]ince the Court is required to draw reasonable inferences in Plaintiffs favor, the Court must infer that the grievance was never filed because prison authorities did not file it, not because Plaintiff did not submit it." McLean v. LaClair, No. 9:19- CV-1227 (LEK/ATB), 2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021); Farm v. Graham, No. 15-CV-1339 (DNH/CFH), 2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) ("Viewing the facts in the light most favorable to plaintiff, the record suggests that plaintiffs grievances were submitted, but were unfiled and unanswered, creating an issue of fact as to whether the grievance process was available and whether plaintiff attempted to exhaust his administrative remedies[.]"), report and recommendation adopted, 2018 WL 1399340 (N.D.N.Y.Mar. 19, 2018); Thaxton v. Simmons, No. 10-CV-1318, 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) ("[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance that was lost or tampered with by [d]efendants. Such credibility assessments are to be resolved by a trier of fact."); see also Woodward v. Lytle, No. 9:16-CV-1174 (NAM/DEP), 2018 WL 4643036, at *4-5 (N.D.N.Y.Sept. 27, 2018) (finding an issue of fact as to the availability of the grievance process where plaintiff drafted and submitted a grievance that was never filed or answered) (collecting cases).
In sum, the Court finds Defendants have failed to adequately demonstrate Plaintiff failed to exhaust his administrative remedies before filing suit in federal court. Therefore, the Court recommends denying Defendants' motion for summary judgment with leave to renew after discovery has concluded.
II. CONCLUSION
After carefully considering the record, the Court finds Defendants failed to establish that there are no genuine disputes as to the material facts related to exhaustion.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 53) be DENIED; and it is further
ORDERED that to the extent Plaintiffs response (Dkt. No. 56) is construed as a request for counsel, that request is DENIED without 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).
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).
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).