Opinion
9:21-CV-0806 (TJM/ML)
12-15-2023
JOSE SANTIAGOCRUZ, Plaintiff, v. JOHN DOE #4, Officer, Great Meadow Corr. Facility; JOHN DOE #5, Officer, Great Meadow Corr. Facility; LEON GORDON; PATRICK BECK; and BRANDON DAIGLE, Defendants.
LETITIA A. JAMES Attorney General Counsel for Defendants Gordon, Beck, and Daigle JOSE SANTIAGOCRUZ Pro Se Plaintiff OF COUNSEL: BRITTANY HANER, ESQ. Assistant Attorney General
LETITIA A. JAMES Attorney General Counsel for Defendants Gordon, Beck, and Daigle
JOSE SANTIAGOCRUZ Pro Se Plaintiff
OF COUNSEL: BRITTANY HANER, ESQ. Assistant Attorney General
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, U.S. MAGISTRATE JUDGE
Currently before the Court, in this civil rights action filed by Jose Santiagocruz (“Plaintiff”) against defendants John Doe #4, John Doe #5, Leon Gordon, Patrick Beck, and Brandon Daigle (collectively “Defendants”) who are-or were at the relevant time-employed at Great Meadow Correctional Facility (“Great Meadow”), is Defendants Gordon, Beck, and Daigle's (collectively “Named Defendants”) motion for summary judgment. (Dkt. No. 48.) For the reasons set forth below, I recommend that Named Defendants' motion for summary judgment be granted. (Id.)
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
At this procedural posture, Plaintiff asserts failure to protect claims in violation of the Eighth Amendment and 42 U.S.C. § 1983 against Defendants. (Dkt. Nos. 20, 21.)
Plaintiff filed his complaint on or about July 15, 2021. (Dkt. No. 1.) In the more than two years that have passed since then, Plaintiff has not identified Defendants John Doe #4 and John Doe #5, and has not served process upon them. (See generally docket sheet.) This failure is not the result of lack of opportunity. The undersigned has extended the discovery deadline. (Dkt. Nos. 39.) Plaintiff has had more than two years-far more than the typical 120-day period-to identify and serve Defendants John Doe #4 and John Doe #5, and the Court is under no obligation to extend the deadline indefinitely. See Petway v. City of New York, 02-CV-2715, 2005 WL 2137805, at *5 (E.D.N.Y. Sept. 2, 2005) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the pro se plaintiff failed to serve John Doe defendants within roughly three years of filing complaint); Thomas v. Keane, 99-CV-4302, 2001 WL 410095, at *1, *5 (S.D.N.Y. April 23, 2001) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the pro se plaintiff failed to serve John Doe defendants within roughly two years of filing complaint); Cammick v. City of New York, 96-CV- 4374, 1998 WL 796452, at *1 (S.D.N.Y. Nov. 17, 1998) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the plaintiff failed to serve John Doe defendants within two years and five months of filing complaint); Waldo v. Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the pro se plaintiff failed to serve John Doe defendants within a year of filing his complaint). The undersigned, therefore, recommends sua sponte dismissal without prejudice of the claims against Defendants John Doe #4 and John Doe #5 for lack of timely service.
B. Named Defendants' Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Named Defendants in their Statement of Material Facts and not denied by Plaintiff in a response. (Compare Dkt. No. 48, Attach. 1 [Named Defs.' Statement of Material Facts], with Dkt. No. 58 [Pl.'s Resp.].)
1. Plaintiff is an incarcerated individual in the care and custody of the New York State Department of Corrections and Community Supervision (“DOCCS”).
2. At all times relevant to the incidents described in the Amended Complaint, Plaintiff was housed at Great Meadow.
3. Plaintiff brings claims against Defendants for their alleged failure to protect Plaintiff from an attack.
The Incident
4. On May 22, 2021, Plaintiff was attacked by another incarcerated individual while Plaintiff and others were walking out of their cells and onto a housing unit gallery on their way to Great Meadow's mess hall for dinner.
5. Plaintiff lost consciousness and his sight at some point during the attack.
6. Plaintiff estimated that the attack lasted for approximately ten minutes.
7. Video surveillance of the incident demonstrates that the attack lasted approximately twenty-two seconds.
8. Within six seconds of the start of the attack, officers can be heard shouting direct orders to incarcerated individuals in the area to “get on the wall.”
9. Plaintiff testified that there were five officers present when the attack began: two on each end of the company where the doors are located and one in the console box.
10. Plaintiff testified that he ran toward two officers near the doors where the console box is located.
11. Video surveillance demonstrates that there were only three officers present when the attack began-two at the far end of the company and one in the console box.
12. The majority of the attack occurred in the area near the console box and doors to the stairwell nearby.
Defendant Beck's Involvement
13. On May 22, 2021, Defendant Beck escorted a group of incarcerated individuals at Great Meadow, including Plaintiff, to the mess hall for dinner.
14. The escort was part of Defendant Beck's usual job responsibilities.
15. Defendant Beck was situated at the back of the group.
16. The group spanned approximately 218 feet from the first person to the last.
17. Defendant Beck heard a disturbance at the opposite end of the group and ordered the incarcerated individuals in the area to position themselves on the wall while he used a radio to report the disturbance.
18. Such orders are required pursuant to DOCCS' protocols.
19. Officers are trained to wait for additional responding officers before intervening in altercations between incarcerated individuals for security reasons.
20. DOCCS' policies emphasize the need to wait for responding officers in closed spaces, such as a housing unit gallery with limited exits and an enclosed space with many incarcerated individuals.
21. Plaintiff's attacker swung a red towel that contained an object and used it to strike Plaintiff in the head and face.
22. Plaintiff's attacker complied with direct orders to stop and retreated quickly to the nearby stairwell.
Defendant Daigle's Involvement
23. Defendant Daigle responded to a radio call for assistance in response to Plaintiff's attack.
24. Defendant Daigle arrived after the attack and did not witness Plaintiff's attack.
25. Defendant Daigle prepared a misbehavior report for the incident.
Defendant Gordon's Involvement
26. On May 22, 2021, Defendant Gordon worked in the console box on the east side of the facility that covers both “A Block” and “B Block” and performed movement and control tasks on “B5 company.”
27. The console box is a sealed secure area that incarcerated individuals cannot access.
28. While in the console box, Defendant Gordon was responsible for the opening and closing of cell gates in a secure housing unit.
29. Defendant Gordon did not approach the altercation because he was locked inside the console box.
30. DOCCS policies prohibit correction officers from immediately approaching physical altercations between incarcerated individuals.
31. DOCCS policies also prohibit console officers from leaving the console box during altercations between incarcerated individuals.
32. DOCCS policies require correction officers to order all nearby incarcerated individuals to place their hands high and flat on the walls when a fight breaks out.
33. DOCCS policies require correction officers to radio for assistance when a fight breaks out.
Exhaustion of Administrative Remedies
34. The DOCCS grievance process allows any incarcerated individual who is personally affected by an issue to submit their grievance complaint to the Incarcerated Individual Grievance Resolution Committee (“IIGRC”), a facility committee made up of elected incarcerated representatives and appointed staff members.
35. The grievance process is also described in detail in DOCCS Directive #4040. N.Y.C.R.R. Title 7 and Directive #4040 are available in the Great Meadow law library.
36. The incarcerated grievance process, which was established by 7 N.Y.C.R.R. § 701.5, involves three steps: (1) the incarcerated individual must file a complaint with the IIGRC within 21 calendar days of an alleged incident at the individual facility where the incarcerated individual is housed, even if the alleged incident occurred at another facility. The IIGRC has 16 calendar days in which to attempt to informally resolve the complaint or hold a hearing; (2) if dissatisfied with the IIGRC recommendation, the incarcerated individual may appeal it to the Superintendent of the facility within 7 calendar days after receipt of the IIGRC's written response. The request to appeal must be submitted, in writing, directly to the IIGRC at the facility where the grievance was filed. The Superintendent has 20 calendar days to render a response; and (3) if dissatisfied with the Superintendent's response, the incarcerated individual may appeal the decision to the Central Office Review Committee (“CORC”) within 7 calendar days after receipt of the Superintendent's written response.
37. The request to appeal to CORC must also be submitted, in writing, directly to the IIGRC at the facility where the grievance was filed, for forwarding to CORC.
38. CORC is the final appellate level of the IGP.
39. DOCCS also provides an expedited procedure for the review of grievances alleging harassment or misconduct by DOCCS employees.
40. A grievance that falls under this category will be directly forwarded to the Superintendent upon filing, who has 25 calendar days to render a response.
41. While the expedited procedure allows for direct forwarding of such a grievance to the Superintendent of the facility, an incarcerated individual must still initiate the grievance process by filing a grievance in accordance with § 701.5.
42. If an incarcerated individual disagrees with the Superintendent's response, they must still appeal the decision to CORC to exhaust their administrative remedies.
43. Further, if an incarcerated individual fails to receive a response from the Superintendent to an expedited grievance within the specified time, the failure to respond may be construed as a denial, and the incarcerated individual must still appeal to CORC to exhaust their administrative remedies.
44. Plaintiff did not file a grievance related to the incident of May 22, 2021, described in the Complaint.
45. As of January 2023, CORC had not received any appeals from Plaintiff regarding the incident of May 22, 2021.
C. Parties' Briefing on Named Defendants' Motion for Summary Judgment
1. Named Defendants' Motion for Summary Judgment
Generally, in support of their motion for summary judgment, Named Defendants assert the following three arguments: (1) Plaintiff failed to exhaust available administrative remedies before commencing this action; (2) in the alternative, Plaintiff cannot establish an Eighth Amendment claim; and (3) in the alternative, Named Defendants are entitled to dismissal of Plaintiff's claims based on the doctrine of qualified immunity. (See generally Dkt. No. 48, Attach. 2.)
More specifically, first, Named Defendants assert that Plaintiff's claim is subject to administrative exhaustion pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”). (Dkt. No. 48, Attach. 2 at 11-13.) Named Defendants argue that Plaintiff failed to file a grievance related to Named Defendants' alleged failure to protect him on May 22, 2021, or thereafter. (Id.) In addition, Named Defendants argue that Plaintiff failed to appeal any grievance to CORC related to Named Defendants' alleged failure to protect on May 22, 2021. (Id.)
Second, in the alternative, Named Defendants assert that the video demonstrates that the attack lasted approximately twenty-two seconds, which permitted officers little time to detect and physically intervene. (Dkt. No. 48, Attach. 2 at 13-17.) Moreover, Named Defendants assert that the video demonstrates that within six seconds of the start of the attack, officers- including Defendant Beck-were shouting direct orders to incarcerated individuals in the area to position themselves against the walls, pursuant to DOCCS protocol. (Id.) Named Defendants argue that some incarcerated individuals did not hurriedly comply with orders to get on the wall and officers are trained to wait for compliance before approaching a physical altercation. (Id.) Further, Named Defendants argue that, pursuant to DOCCS protocol, officers must radio for assistance and wait for additional officers to arrive before approaching a physical altercation, which is what occurred on May 22, 2021. (Id.) Named Defendants assert that no officer was able to safely, physically intervene during the twenty-two second attack but officers did intervene by giving direct orders and radioing for assistance. (Id.)
Third, in the alternative, Named Defendants argue that no rational jury could conclude that they violated a statute or constitutional right based on the record evidence in this action. (Dkt. No. 48, Attach. 2 at 17.) Named Defendants argue that thus, they are entitled to dismissal of Plaintiff's claims based on the doctrine of qualified immunity. (Id.)
2. Plaintiff's Response in Opposition to Named Defendants' Motion for Summary Judgment
Generally, in opposition to Named Defendants' motion for summary judgment, Plaintiff argues that he filed a grievance related to Defendants' failure to protect him on May 22, 2021. (See generally Dkt. No. 58.) Plaintiff's opposition appears to include a copy of a grievance dated May 31, 2021. (Dkt. No. 58 at 2.) In addition, Plaintiff's opposition includes a “Personal Statement” dated July 12, 2023, which states that Plaintiff knows how to file a grievance and how to “file forward.” (Id. at 3.)
3. Named Defendants' Reply in Further Support of their Motion for Summary Judgment
Generally, in further support of their motion for summary judgment, Named Defendants assert the following three arguments: (1) their statement of facts must be admitted because Plaintiff failed to respond to Named Defendants' properly supported statement of material facts not in dispute pursuant to Fed.R.Civ.P. 56; (2) Plaintiff's opposition failed to introduce a question of fact as to whether he failed to exhaust his administrative remedies because (a) there are serious doubts as to the authenticity of Plaintiff's purported grievance, and (b) Plaintiff does not dispute that he failed to exhaust his administrative remedies by appealing his grievance to CORC before commencing this action; and (3) the Court should grant Named Defendants' motion on their unopposed arguments related to the merits of Plaintiff's claims and based on the doctrine of qualified immunity. (See generally Dkt. No. 61.)
II. RELEVANT LEGAL STANDARDS
A. Standard Governing A Motion For Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that non-movant is proceeding Pro Se. (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).
Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement-even when the non-movant was proceeding Pro Se .
Among other things, Local Rule 56.1 (previously Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.
Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).
Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
B. Standard Governing Exhaustion of Administrative Remedies
Under the PLRA, “[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); see also Ross v. Blake, 136 S.Ct. 1850, 1854-55 (2016) (“The [PLRA] mandates that an [incarcerated individual] exhaust ‘such administrative remedies as are available' before bringing suit to challenge prison conditions.”). “[T]he PLRA's exhaustion requirement applies to all [incarcerated individual] 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). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).
The PLRA requires “proper exhaustion,” which means using all steps required by the administrative review process applicable to the institution in which an incarcerated individual is confined and doing so properly. 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'” (quoting Woodford, 548 U.S. at 90)). In New York State prisons, DOCCS has a well-established three-step incarcerated grievance program (“IGP”), in which, (1) the incarcerated individual must file a grievance with the Incarcerated Grievance Resolution Committee (“IGRC”) within twenty-one days of the alleged occurrence, (2) the incarcerated individual must then appeal an adverse decision by the IGRC to the superintendent of the facility within seven days after receipt of the IGRC's response, and (3) the incarcerated individual must then appeal an adverse decision by the superintendent to the CORC within seven days after receipt of the superintendent's response. 7 N.Y.C.R.R. § 701.5; McGee v. McGready, 16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018).
“[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance.” Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021); see 7 N.Y.C.R.R. § 701.8. Under the expedited procedure, the Superintendent has twenty-five days to respond to the grievance. 7 N.Y.C.R.R. § 701.8. If the Superintendent fails to respond within twenty-five days, the incarcerated individual may appeal directly to CORC. Id. § 701.8(g). If the Superintendent does respond, the incarcerated individual has seven days from receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g). Whether or not the Superintendent timely responds, the procedure to appeal a determination of the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the inmate grievance clerk.” Id. § 701.8(g)-(h).Incarcerated individuals who have been transferred to a different facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2).
The procedure to appeal to CORC under the normal, non-expedited procedures is the same. 7 N.Y.C.R.R. § 701.5(d)(1)(i).
“CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the [incarcerated individual] does not receive such confirmation within forty-five days, he ‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.'” Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022) (quoting 7 N.Y.C.R.R. § 701.5(d)(3)(i)). The IGP requires CORC to respond to an appeal within thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii). If CORC has received an appeal and fails to rule within those thirty days, the incarcerated individual is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020).
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 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 and citations omitted). In the PLRA context, the Supreme Court has determined that “availability” means that “an [incarcerated individual] 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).
The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners 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 [incarcerated individuals].” 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 [incarcerated individuals] from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. In Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that “the three circumstances discussed in Ross do not appear to be exhaustive[.]” The illustrations of unavailability in Ross nonetheless guide the Court's inquiry. Mena v. City of New York, 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing that an incarcerated individual has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216. The plaintiff must then establish the IGP grievance procedure was unavailable to him under Ross. Id.
C. Standard Governing Failure to Protect Claims
“The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of [incarcerated individuals] in their custody.” Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). To prevail on claim that officials failed to intervene, a plaintiff must show that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know the victim's constitutional rights were being violated; and (3) the officer d[id] not take reasonable steps to intervene.” Tafari v. McCarthy, 714 F.Supp.2d 3174, 342 (N.D.N.Y. 2010) (Hurd, J., adopting Report and Recommendation by Lowe, M.J.).
To prevail on a claim that officials have failed to protect an incarcerated individual from harm, a plaintiff must demonstrate that, objectively, the conditions of his incarceration posed a substantial risk of serious harm and, subjectively, that the defendant acted with deliberate indifference. See Farmer, 511 U.S. at 834; see Hayes, 84 F.3d at 620. “[A] prison official has sufficient culpable intent if he has knowledge that an [incarcerated individual] faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.” Hayes, 84 F.3d at 620. A plaintiff must show that prison officials actually knew of, but disregarded, an excessive risk to his safety: “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see Tangreti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020).
III. ANALYSIS
A. Whether Plaintiff Failed to Exhaust Available Administrative Remedies
After carefully considering the matter, the undersigned answers this question in the affirmative for the reasons set forth in Named Defendants' memoranda of law. (Dkt. No. 48, Attach. 2 at 11-13; Dkt. No. 61 at 7-10.) The following is intended to supplement, not supplant, those reasons.
Although Plaintiff appears to submit a grievance related to the subject of this lawsuit and implicitly alleges that he submitted that grievance to Great Meadow's IIGRC, he fails to identify any evidence in the record creating a genuine issue of fact for trial that he appealed that alleged grievance to CORC. (See generally Dkt. No. 58.) Notwithstanding Great Meadow IIGRC's alleged failure to respond to Plaintiff's grievance, Plaintiff was still required to completely exhaust administrative remedies in accordance with the applicable procedural rules, which included appealing to CORC. Woodford v. Ngo, 548 U.S. 90-103 (2006). Moreover, Plaintiff fails to identify any evidence in the record or even assert an argument that administrative remedies were unavailable to him. (See generally Dkt. No. 58.)
As a result, I recommend that Plaintiff's claims be dismissed for failure to exhaust administrative remedies.
B. Whether, in the Alternative, Plaintiff's Claims Should be Dismissed Against Named Defendants Based on the Merits
For the reasons set forth in Defendants' memoranda of law, I recommend that, in the alternative, Plaintiff's failure to protect claims against Named Defendants be dismissed on the merits. (Dkt. No. 48, Attach. 2 at 13-17; Dkt. No. 61 at 10.) The following is intended to supplement-not supplant-those reasons.
However, to the extent that the Court rejects the undersigned's recommendation that Plaintiff's claims against Named Defendants be dismissed for failure to exhaust administrative remedies or, in the alternative, that Plaintiff's failure to protect claims be dismissed based on the merits, I recommend that the Court reject Named Defendants' arguments that they are entitled to qualified immunity. Named Defendants appear to merely repeat arguments from elsewhere in their brief without meaningfully applying the law to the facts of the case. (Dkt. No. 48, Attach. 2 at 17 [arguing that “For the reasons explained in Part II supra, no rational jury could conclude that [Named] Defendants violated a statute or constitutional right based on the record evidence in this action.”].) Therefore, the undersigned recommends that “[t]he Court . . . deline[] to consider at this time whether [Named Defendants] are protected by qualified immunity.” Osorio v. Westchester Cnty., 18-CV-5629, 2019 WL 3958443, at *1 n.2 (S.D.N.Y. Aug. 21, 2019).
Plaintiff fails to present a genuine issue of fact for trial evincing that Named Defendants had a realistic opportunity to prevent the attack and did not take reasonable steps to intervene. Instead, as set forth by Named Defendants, the record establishes that, given the brevity of the attack, there was little time for Named Defendants to detect and intervene in the attack. (Dkt. No. 48, Attach. 2 at 13-17.) Notwithstanding, within seconds of the start of the attack, pursuant to DOCCS protocol, officers were directing incarcerated individuals to place their hands on the walls and radioing for backup. (Id.)
As a result, I recommend that, in the alternative, Plaintiff's claims against Named
Defendants be dismissed on the merits.
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 48) be GRANTED ; and it is further respectfully
RECOMMENDED that Defendants John Doe #4 and John Doe #5 be sua sponte DISMISSED from this action without prejudice, due to Plaintiff's failure to identify and serve those defendants; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order 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).