Opinion
Civil Action No. 9:16-CV-0139 (GTS/DEP)
02-23-2017
RAFAEL SANCHEZMARTINO, Plaintiff, v. CRAIG DEMMON, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: RAFAEL SANCHEZMARTINO, Pro Se 12-A-4609 Bare Hill Correctional Facility Caller Box 20 Malone, NY 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: TIMOTHY P. MULVEY, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: RAFAEL SANCHEZMARTINO, Pro Se
12-A-4609
Bare Hill Correctional Facility
Caller Box 20
Malone, NY 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: TIMOTHY P. MULVEY, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Rafael Sanchezmartino, a prison inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983 against several DOCCS employees alleging that they violated his rights under the Eighth Amendment by requiring him to hold onto a chain-link metal fence with his bare hands outdoors in sub-freezing weather for approximately thirty minutes.
Currently pending before the court is a pre-answer motion filed by defendants seeking the entry of summary judgment motion in their favor based on plaintiff's failure to exhaust available administrative remedies prior to filing this lawsuit. For the reasons set forth below, I recommend that defendants' motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). Indeed, because defendants have not yet filed an answer, the description of the relevant events is drawn from the allegations set forth in plaintiff's complaint.
Plaintiff is a prison inmate currently being held in the custody of the DOCCS in the Bare Hill Correctional Facility ("Bare Hill") located in Malone, New York. See generally Dkt. No. 1. On or about February 7, 2013, while plaintiff was incarcerated in Bare Hill, a physical altercation occurred between two inmates "in the vicinity of the facility dining hall." Dkt. No. 1 at 3. According to plaintiff, defendant Craig Demmon, a DOCCS corrections sergeant stationed at the prison, as well as other corrections officers, including defendants David Hughes, Gary LaBarge, and Scott Hough, directed "all of the inmates who were walking near the dining hall, including the Plaintiff, to stop moving and line up outside in front of a metal chain-link fence[.]" Id.
Following a pat-frisk of all of the inmates, they were directed to "remove any hats, gloves, and scarves that they were wearing, and to place their bare hands on the metal fence." Dkt. No. 1 at 3. According to plaintiff's complaint, the outside temperature on February 7, 2013, was approximately five degrees Fahrenheit. Id. Defendant Demmon then ordered the inmates to hold onto the chain-link fence until one of them "came forward with information regarding the assault." Id. Defendant Demmon and other corrections officers threatened the inmates with violence if they removed their hands from the fence. Id. Indeed, two inmates were assaulted when they attempted to remove their hands from the fence. Id. at 4. Despite pleas from both inmates and some corrections officers, defendant Demmon did not relent and permit the inmates to remove their hands from the chain-link fence until after thirty minutes had elapsed. Id.
As a result of the incident, plaintiff suffered "frostbite and permanent nerve damage." Dkt. No. 1 at 6. Plaintiff alleges that defendant Terrence White, a corrections lieutenant at Bare Hill, contributed to the use of excessive force by failing to adequately supervise the corrections employees involved. Id. at 7-8.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about February 8, 2016, with the filing of a complaint and accompanying application to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Although plaintiff's initial IFP motion was denied as incomplete, the court accepted his complaint for filing, and granted his second IFP application on March 30, 2016. Dkt. Nos. 4, 8. On April 28, 2016, prior to answering plaintiff's complaint, defendants filed the pending motion for summary judgment seeking dismissal of plaintiff's complaint in light of his failure to exhaust available administrative remedies. Dkt. No. 11. Plaintiff has not responded to defendants' motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
While a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure automatically extends the time under which a defendant must file an answer, there is no similar rule governing a defendant's obligation to answer a complaint when he files a pre-answer motion for summary judgment pursuant to Rule 56. Compare Fed. R. Civ. P. 12(a)(4) with Fed. R. Civ. P. 56; see also 10A Alan Wright et al., Federal Practice & Procedure § 2718 (4th ed.). Most courts that have determined that Rule 12(a)(4) operates by analogy to a defendant that has filed a pre-answer summary judgment motion and, therefore, have declined to find a defendant in default by failing to file an answer until after disposition of the motion. See Rashidi v. Albright, 818 F. Supp. 1354, 1356 (D. Nev. 1993) ("Although Rule 12 does not specifically allow for a summary judgment motion to toll the running of the period within which a responsive pleading must be filed, by analogy the language would seem to apply[.]"); but see Poe v. Cristina Copper Mines, Inc., 15 F.R.D. 85, 87 (D. Del. 1953) (finding that the "extension of time to file a response pleading until determination of a motion for summary judgment is not a definite and fixed right but a matter to be granted or denied under Rule 6(b)"). In this instance, exercising my discretion, I will sua sponte order a stay of defendants' time to answer plaintiff's complaint until fourteen days after a final determination is issued with respect to defendants' motion in the event that the action survives. Snyder v. Goord, 05-CV-1284, 2007 WL 957530, at *5 (N.D.N.Y. Mar. 29, 2007) (McAvoy, J., adopting report and recommendation by Peebles, M.J.).
III. DISCUSSION
A. Plaintiff's Failure to Respond to Defendants' Motion
Before turning to the merits of defendants' motion, a threshold issue to be addressed is the legal significance of plaintiff's failure to oppose the motion, and specifically whether that failure should be construed as a consent to the dismissal of his complaint.
Pursuant to Local Rule 7.1(b)(3), by failing to oppose defendants' motion, plaintiff has effectively consented to the granting of the relief sought. That rule provides as follows:
Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that the district courts may enter summary judgment in favor of the moving party where the non-moving party fails to respond in opposition, but not without first "ensur[ing] that each statement of material fact is support by record evidence sufficient to satisfy the movant's burden of production" and "determin[ing] whether the legal theory of the motion is sound").
In this case, plaintiff has not responded to defendants' motion. The motion was properly filed by defendants, and, through their motion, defendants have met their burden of demonstrating entitlement to the relief requested. With respect to the question of whether defendants have met their burden, I note that the "burden of persuasion is lightened such that, in order to succeed, his motion need only be 'facially meritorious.'" See Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *1 (N.D.N.Y. Nov. 27, 2007) (Scullin, J., adopting report and recommendation by Lowe, M.J.) (finding that determination of whether a movant has satisfied its burden to demonstrate entitlement to a dismissal under Local Rule 7.1(b)(3) "is a more limited endeavor than a review of a contested motion to dismiss" (citing cases)).
Copies of all unreported decisions cited to in this report have been appended for the convenience of the pro se plaintiff.
Because defendants have accurately cited both proper legal authority and evidence in the record supporting the grounds on which their motion is based, and plaintiff has failed to respond in opposition, I find that defendants' motion is facially meritorious. Jackson, 766 F.3d at 194. Accordingly, I recommend that the court grant defendants' motion on this basis.
It should also be noted that there are additional consequences arising from plaintiff's failure to respond to defendants' motion. By not responding, plaintiff has left defendants' Local Rule 7.1(a)(3) Statement of Material Facts unchallenged. Local Rule 7.1 provides, in relevant part, that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced this rule in cases where a non-movant has failed to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, No. 96-CV-0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report and recommendation by Hurd, M.J.). Stated differently, "a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.).
In this instance, because plaintiff was warned of the consequences of failing to properly respond to defendants' Local Rule 7.1 Statement, Dkt. Nos. 11, 13, and he has failed to do so, I recommend that the court deem the facts contained in defendants' Local Rule 7.1(a)(3) Statement as having been admitted to the extent they are supported by accurate record citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996).
As to any facts not contained in defendants' Local Rule 7.1(a)(3) Statement, 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.
B. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly 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." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is "mandatory" and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), and made it available for use by state prison inmates with complaints regarding prison conditions. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC") have up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b)(2).
The IGRC is comprised of "two voting inmates, two voting staff members, and a non- voting chairperson." 7 N.Y.C.R.R. § 701.4(a).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. Id. at § 701.5(c)(3)(i)(ii).
Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i)(ii).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." Id. at § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above-described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cnty. 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 omitted)).
While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies." (quotation marks omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "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 omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA. Ross, 136 S. Ct. at 1859-60. Under the 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. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams, 829 F.3d at 123 n.2.
In this case, although plaintiff's complaint alleges that he filed a grievance in accordance with the IGP regarding the incident on or about February 7, 2013, Dkt. No. 1 at 5, there is no independent record evidence to support that assertion. In any event, even assuming plaintiff did file such a grievance, there is no evidence that he appealed the grievance through to the CORC, as required by the IGP. Indeed, defendants have submitted a declaration by Jeffrey Hale, the Assistant Director of the IGP for the DOCCS, in which Hale states that his search of the relevant DOCCS records did not reveal an appeal filed by plaintiff to the CORC regarding an incident at Bare Hill involving cruel and unusual punishment on February 7, 2013. Dkt. No. 11-2 at 3. In light of Hale's declaration, and plaintiff's failure to respond to defendants' motion, I find that plaintiff failed to file a grievance and appeal it through to the CORC as required by the IGP. Finally, there is no evidence in the record to suggest that plaintiff failed to appeal his grievance through to the CORC because the IGP became unavailable to him. Accordingly, I recommend that defendants' motion be granted, and that plaintiff's complaint be dismissed based on his failure to exhaust available administrative remedies prior to commencing this action.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's complaint alleges that defendants violated his right under the Eighth Amendment to be free of cruel and unusual punishment when they ordered him and other inmates to hold onto a chain-link metal fence with their bare hands outdoors in five degrees Farenheit for approximately thirty minutes. Prior to filing his complaint, however, plaintiff failed to exhaust the administrative remedies available to him by the IGP. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment, Dkt. No. 11, be GRANTED and plaintiff's complaint be dismissed in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and 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).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules; and it is further
ORDERED that defendants' time to answer plaintiff's complaint is hereby stayed until twenty-one days after a final determination is issued with respect to the pending motion. Dated: February 23, 2017
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge