Opinion
Civil Action No. 9:13-CV-1303 (FJS/DEP)
07-30-2014
PHILLIP SEUFFERT, Plaintiff, v. K. PECORE, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: Phillip Seuffert, Pro Se 10-A-3656 Clinton Correctional Facility P.O. Box 2001 Dannemore, NY 12929 FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: LAURA SPRAGUE, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: Phillip Seuffert, Pro Se
10-A-3656
Clinton Correctional Facility
P.O. Box 2001
Dannemore, NY 12929
FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: LAURA SPRAGUE, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Phillip Seuffert, a New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983 against two prison corrections officers alleging infringement of his constitutional rights. Plaintiff claims that Corrections Officer K. Pecore used excessive force against him in violation of his Eighth Amendment right to be free of cruel and unusual punishment. Plaintiff also asserts an equal protection cause of action under the Fourteenth Amendment based on the allegation that Corrections Officer M. Donovan discriminated against him due to his sexual orientation.
Currently pending before the court is a pre-answer motion brought by defendants Pecore and Donovan seeking the entry of summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, dismissing plaintiff's complaint. For the reasons set forth below, I recommend that the defendants' motion be granted in part and denied in part. 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 plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Dkt. No. 1. Although now confined elsewhere, at the times relevant to this action he was incarcerated at the Coxsackie Correctional Facility ("Coxsackie"), located in West Coxsackie, New York. Id.
On May 26, 2013, plaintiff, a self-identified homosexual, alleges that he was approached by defendant M. Donovan, a corrections officer stationed at Coxsackie, and told "[his] time on this gallery [wa]s limited." Dkt. No. 1 at 6. Plaintiff alleges that defendant Donovan said this to him without any provocation. Id. When Seuffert inquired as to the meaning of the statement, defendant Donovan responded by telling him "no homos[exual]s" are permitted on that gallery. Id. Plaintiff alleges that after this conversation, defendant Donovan issued him a false misbehavior report. Id. Plaintiff also alleges that the report was filed due to defendant Donovan's sexual discrimination against plaintiff, and that plaintiff was unlawfully subjected to disciplinary action based upon his sexual orientation. Id. Plaintiff contends that his attempt to lodge a grievance complaining of defendant Donovan's alleged discrimination was thwarted when the grievance supervisor at the facility refused to file it. Dkt. No. 1 at 2. Defendants counter by alleging that plaintiff never filed such a grievance. Dkt. No. 12-6 at 2.
As will be discussed more completely below, defendants acknowledge the existence of a letter authored by plaintiff and dated September 16, 2013, that, according to defendants, sought permission to file an untimely grievance regarding his discrimination allegations against defendant Donovan. Dkt. No. 14 at 2. Defendants did not attach that letter, and it is not otherwise in the record before the court. As a result, and because plaintiff has failed to respond in opposition to the pending motion, I am unable to discern the recipient of the letter or otherwise verify defendants' representation concerning its contents.
According to plaintiff, on May 27, 2013, while he was being escorted, within Coxsackie, defendant Pecore assaulted him without provocation, punching him "with a closed fist about his face, neck, and upper body areas." Dkt. No. 1 at 5. Plaintiff alleges that shortly after this first attack, defendant Pecore continued his attack by "knee[ing] plaintiff about the left side of his ribs . . . grab[bing] plaintiff by his shirt collar and . . . punch[ing], slap[ping], and elbow[ing] plaintiff about his face, neck, head, and upper body." Id. Plaintiff claims that, as a result of these attacks, he has sustained permanent physical injuries. Id.
Following this incident, plaintiff filed a grievance against defendant Pecore. Dkt. No. 1 at 2. That grievance was ultimately denied, on appeal, by the Central Office Review Committee ("CORC") on October 30, 2013. Dkt. No. 12-7 at 1. According to plaintiff, the CORC's denial was untimely issued. Dkt. No. 1 at 2. On October 21, 2013, nine days before the CORC's decision was rendered, plaintiff commenced this action. See generally Dkt. No. 1.
II. PROCEDURAL HISTORY
Plaintiff commenced this action by filing a complaint and accompanying application to proceed in forma pauperis ("IFP") on October 21, 2013. See generally Dkt. No. 1. Plaintiff's complaint asserts claims arising under the Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Dkt. No. 1 at 6; Dkt. No. 1-1 at 2. As relief, plaintiff seeks compensatory and punitive damages. Dkt. No. 1 at 7.
Although plaintiff's civil cover sheet requests $4,000,000, the prayer for relief in his complaint requests only $1,000,000. Dkt. No. 1-1 at 2; Dkt. No. 1 at 7.
Following an initial review of plaintiff's complaint and IFP application, Senior District Judge Frederick J. Scullin, Jr., issued an order on October 30, 2013, granting plaintiff's IFP status, dismissing plaintiff's Title VII claim against defendant Donovan, with prejudice, and permitting plaintiff's remaining claims to proceed. Dkt. No. 4 at 5. On January 2, 2014, in lieu of answering plaintiff's complaint, defendants moved for summary judgment seeking dismissal based on plaintiff's alleged failure to fully exhaust the available administrative remedies prior to filing this lawsuit. See generally Dkt. No. 12-2.
Unlike its Rule 12(b) dismissal motion counterpart, a summary judgment motion does not have the effect of automatically staying the requirement of answering a plaintiff's complaint. Compare Fed.R.Civ.P. 12(b)(6) with Fed.R.Civ.P. 56. In light of the fact that, by moving for summary judgment, defendants are actively defending against plaintiff's claims, and in order to avoid any contention that they have defaulted, in my discretion, I will sua sponte order a stay of defendants' time to answer plaintiff's complaint until twenty-one days after a final determination is issued with respect to defendants' motion in the event that the action survives. Snyder v. Goord, No. 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.).
Defendants' motion, which plaintiff has not opposed, is now fully briefed 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 the Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Plaintiff's Failure to Oppose Defendants' Motion
Plaintiff has not responded in opposition to defendants' motion for summary judgment. 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 ofN.D.N.Y. L.R. 7.1(b)(3).
the motion, as the case may be, unless good cause is shown.
The pending summary judgment was properly filed by the defendants, and defendants, through their motion papers, have met their burden of demonstrating entitlement to the relief requested with respect to plaintiff's Eighth Amendment claim asserted against defendant Pecore. Because defendants have accurately cited proper legal authority supporting the ground upon which their motion is based, and plaintiff has failed to respond in opposition to the motion to dismiss, I find that defendants' motion is facially meritorious regarding this claim. Accordingly, I recommend that defendants' motion to dismiss, regarding plaintiff's Eighth Amendment claim, be granted on this basis.
With respect to the question of whether defendants have satisfied their burden, I note that their "burden of persuasion is lightened such that, in order to succeed, [their] motion need only be 'facially meritorious.'" See Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *1 (Scullin, J., adopting report and recommendation by Lowe, M.J.) (finding that 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)).
With respect to plaintiff's Fourteenth Amendment claim asserted against defendant Donovan, however, even considering defendants' lightened burden, I find that a dispute of material fact exists regarding whether plaintiff should be excused from his failure to fully exhaust administrative remedies prior to filing this lawsuit. Accordingly, because defendants have failed to demonstrate entitlement to the relief requested with respect to plaintiff's discrimination claim, plaintiff's failure to oppose the motion is of no moment.
See Part III.C.3. of this report, post.
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 facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see 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 New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). 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, and 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 nonmoving party. 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 Available Administrative Remedies
In support of their motion, defendants argue that plaintiff failed to fully exhaust the available administrative remedies prior to filing this action. Dkt. No. 12-2 at 3. Specifically, defendants submit that plaintiff did not fully exhaust the available administrative remedies with respect to his excessive force claim because the CORC did not issue a final decision regarding that grievance until after plaintiff commenced this action. Id. at 6. Moreover, defendants contend that plaintiff never filed a grievance with respect to his discrimination claim, and therefore did not exhaust his administrative remedies with respect to that cause of action. Id.; Dkt. No. 14 at 2.
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 requires 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 Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). "[T]he 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, 532 (2002).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
The failure of a prisoner to satisfy the PLRA's exhaustion requirement is an affirmative defense that must be raised by a defendant in response to an inmate suit. Jones v. Block, 549 U.S. 199, 212 (2007). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "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; see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (citing Woodford).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
In accordance with the PLRA, the DOCCS has made a grievance procedure, called the Inmate Grievance Program ("IGP"), available to inmates. It is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 234898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. A representative of the facility's inmate grievance resolution committee ("IGRC") has 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).
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. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days of receipt of the grievant's appeal. Id. at § 701.5(c)(i), (ii).
Depending on the type of matter complained of by the grievant, the superintendent has either seven or twenty days after receipt of the grievant's appeal to issue a decision. Id. at § 701.5(c)(i), (ii).
The third and final step of the IGP involves an appeal to the CORC, which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 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).
Accordingly, at each step of the IGP process, a decision must be entered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. 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)).
1. Plaintiff's Grievance Regarding His Eighth Amendment Claim Asserted Against Defendant Pecore
In his complaint, plaintiff alleges that he filed a grievance at Coxsackie regarding the alleged use of excessive force against him by defendant Pecore. Dkt. No. 1 at 2. In support of their motion, defendants acknowledge the filing of such a grievance, but contend that plaintiff did not fully exhaust administrative remedies before filing suit because the CORC's final decision regarding the grievance was issued on October 30, 2012, nine days after the commencement of this action. Dkt. No. 12-7 at 1.
Defendants are correct that plaintiff failed to fully exhaust the available administrative remedies prior to commencing this action in light of the CORC's decision rendered after plaintiff filed his lawsuit. See Couvertier v. Jackson, No. 12-CV-1282, 2014 WL 2781011, at *4 (N.Y.N.D. June 19, 2014) (Hurd, J., adopting report and recommendation by Peebles, M.J.) (finding the inmate failed to fully exhaust his administrative remedies when he filed an action with the court before the CORC had rendered a final decision regarding the grievance); Partee v. Grood, No. 06-CV-1552, 2007 WL 2164529, at *3 (S.D.N.Y. July 25, 2007) ("[A]n inmate/plaintiff's claim is not exhausted until he appeals to the CORC and receives a final decision regarding his grievance."). The fact that complete exhaustion has now occurred does not cure this defect. See Burgos v. Craig, 307 F. App'x 469, 471 (2d Cir. 2008) ("Assuming arguendo that Plaintiff-Appellant subsequently exhausted his administrative remedies [after filing suit], that is not enough to save his suit, because he is required to have properly exhausted before he sues."); Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001), overruled on other grounds, Porter v. Nussle, 534 U.S. 516 (2002), (holding that "[s]ubsequent exhaustion after suit is filed . . . is insufficient" to satisfy the PLRA's exhaustion requirement).
Accordingly, I find that plaintiff did not fully exhaust the available administrative remedies with respect to his Eighth Amendment claim prior to filing this action.
2. Plaintiff's Grievance Regarding His Fourteenth Amendment Claim Asserted Against Defendant Donovan
Although plaintiff contends that he attempted to file a grievance regarding his discrimination claim against defendant Donovan, he alleges it "was received but denied filing by the Grievance Supervisor." Dkt. No. 1 at 2. In their motion, defendants argue that plaintiff never filed a grievance complaining of discrimination while at Coxsackie. Dkt. No. 12-2 at 4. In support of their position, defendants have submitted an affidavit from Ed Tillar, the Grievance Supervisor at Coxsackie, in which he avers that, according to the Coxsackie grievance records, plaintiff never filed "any grievance alleging discriminatory treatment." Dkt. No. 12-6 at 2. Moreover, Tillar states that he has no recollection of refusing a grievance from plaintiff, and, to the extent of his knowledge, all grievances from inmates are accepted and filed unless they are untimely. Id.
Even if the court were to accept as true plaintiff's allegation that Tillar rejected the grievance against defendant Donovan, it is undisputed that plaintiff failed to file an appeal when he did not receive a response from the IGRC. In support of their motion, defendants have submitted an affidavit from Jeffery Hale ("Hale"), the Assistant Director of the DOCCS IGP, in which he states that there is no record of plaintiff filing an appeal to the CORC regarding allegations of discrimination. Dkt. No. 12-5 at 2. Although Tillar's alleged failure to file plaintiff's grievance may, as discussed more below, excuse plaintiff's failure to fully exhaust administrative remedies, it does change the fact that plaintiff did not follow the required grievance procedures. See Murray, 2010 WL 1235591, at *2 & n.4 ("[A]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." (footnote omitted) (citing authority)); Williams v. Hupkowicz, No. 04-CV-0051, 2007 WL1774876, at *3 (W.D.N.Y. June 18, 2007) ("Even assuming an inmate received no timely official response as contemplated by the regulations to a grievance at any stage in the inmate grievance process, the inmate could nevertheless appeal such grievance to the next level, and the failure to do so constitutes a failure to exhaust his administrative remedies as required under the PLRA."). Accordingly, I find that plaintiff did not fully exhaust the available administrative remedies with respect to his discrimination claim asserted against defendant Donovan.
3. Exceptions to the Exhaustion Rule
Plaintiff's failure to exhaust the available administrative remedies with respect to either his excessive force or his discrimination claim is not necessarily fatal. In a series of decisions rendered since enactment of the PLRA, the Second Circuit has prescribed a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. See, e.g., Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); see also Macias, 495 F.3d at 41. Those decisions instruct that, before dismissing an action as a result of a plaintiff's failure to exhaust, a court must first determine whether the administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event of a finding that a remedy existed and was available, the court must next examine whether the defendant has forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it, or whether, through his own actions preventing the exhaustion of plaintiff's remedies, he should be estopped from asserting failure to exhaust as a defense. Id. In the event the exhaustion defense survives these first two levels of scrutiny, the court must examine whether the plaintiff has plausibly alleged special circumstances to justify his failure to comply with the applicable administrative procedure requirements. Id.
Here, although there is nothing in the record suggesting that the IGP was unavailable to plaintiff, the allegations in plaintiff's complaint require the court to consider whether defendants should be estopped from asserting the exhaustion defense or whether special circumstances exist justifying plaintiff's failure to fully exhaust with respect to his discrimination claim. In his verified complaint, which is signed under penalty of perjury and has the force and effect of an affidavit, plaintiff alleges that Tillar, the Grievance Supervisor at Coxsackie, rejected his grievance regarding his discrimination allegations against defendant Donovan. Dkt. No. 1 at 2. Even assuming plaintiff's version of the events with respect to this grievance is true, it is well settled that "[a] defendant in a prisoner civil rights action may not be estopped from asserting the affirmative defense of failure to exhaust administrative remedies . . . based on the actions or inactions of other individuals." See, e.g., Collins v. Caron, No. 10-CV-1527, 2014 WL 296859, at *5-6 (N.D.N.Y. Jan. 27, 2014) (Suddaby, J.) (citing cases) (emphasis in original). Thus, estoppel does not apply in this case.
Plaintiff has not alleged any circumstances that would excuse his failure to fully exhaust the available administrative remedies with respect to his excessive force claim asserted against defendant Pecore.
See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist[.]").
Nevertheless, assuming plaintiff's allegations are true, they may be sufficient to constitute special circumstances under Hemphill. Liberally construing those allegations, plaintiff maintains that Tillar interfered with his ability to file the grievance complaining of defendant Donovan's alleged discrimination. Dkt. No. 1 at 2. The Second Circuit has said that "non-exhaustion is an affirmative defense subject to estoppel in cases where prison officials inhibit an inmate's ability to utilize administrative grievance procedures." Giano, 380 F.3d at 677 (citing Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004)). Although courts in this circuit have interpreted this holding to mean that only a named-defendant may be estopped from asserting the exhaustion defense, other courts have extended the spirit of the holding by applying special circumstances where a non-defendant prison official interferes with an inmate-plaintiff's ability to file a grievance. See, e.g., Murray, 2010 WL 1235591, at *6 (finding an allegation "that an unspecified number of unidentified corrections officers (who are not [named-defendants]) somehow interfered with the delivery of [the plaintiff's] grievance and appeals . . . could constitute special circumstances justifying an inmate's failure to exhaust his available administrative remedies in certain situations"); Sandin v. Poole, 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (finding that the plaintiff's allegation that a prison official's "refusal to accept or forward plaintiff's appeals. . . effectively rendered the grievance process unavailable to [the plaintiff]" and would also constitute special circumstances). Because there is record evidence to support both (1) plaintiff's allegation that Tillar refused his grievance complaining of discrimination and (2) defendants' assertion that Tillar did not reject any of plaintiff's grievances, I find that a dispute of material fact exists precluding the granting of defendants' motion with respect to his discrimination claim. Accordingly, I recommend that the court hold an evidentiary hearing to evaluate the issues of fact and assess the credibility of plaintiff and Tillar. See Messa v. Goord, 652 F.3d 305, 310 (2d Cir. 2011) ("[T]he Seventh Amendment does not guarantee a jury trial on factual disputes regarding administrative exhaustion under the PLRA.").
See Giano v. Goord, 380 F.3d 670, 677 n.6 (2d Cir. 2004) ("[T]he case law on the PLRA's exhaustion requirement does not always distinguish clearly between (a) cases in which defendants are estopped from asserting non-exhaustion as an affirmative defense, (b) situations in which administrative remedies are not 'available,' to the plaintiff, and (c) circumstances in which administrative remedies are 'available,' but the prisoner's original failure to exhaust is nonetheless justified, and hence does not bar the prisoner's subsequent suit. This may, of course, be because the same facts sometimes fit into more than one of these categories." (citations omitted)).
See, e.g., Collins, 2014 WL 296859, at *5-6 (citing cases).
Finally, before concluding, I pause to take note of defendants' reply. In their letter brief, defendants acknowledge the existence of a letter from plaintiff, dated September 16, 2013, in which he sought permission to file an otherwise untimely grievance complaining of discrimination. Dkt. No. 14 at 2. Defendants did not attach plaintiff's letter to their submission, nor does defendants' letter brief disclose to whom plaintiff's letter was addressed. Id. Instead, defendants' letter brief suggests that plaintiff "attached [his] letter dated September 16, 2013," but fails to identify where the letter was attached. Id. My review of the record in this case, including plaintiff's complaint, which constitutes plaintiff's sole communication with the court in this matter, does not reveal reference to any letter authored by him. In light of plaintiff's allegation that Tillar, the Grievance Supervisor at Coxsackie, "received but denied filing" his "grievance" regarding his discrimination claim asserted against defendant Donovan, I recognize the possibility that plaintiff's allegation regarding his "grievance" actually alludes to the letter defendants highlight in their reply letter brief. Without a response from plaintiff, however, or the letter itself, I am constrained to conclude that plaintiff's verified complaint constitutes sufficient evidence giving rise to a dispute of material fact regarding whether plaintiff, indeed, filed a grievance as he alleges, or, instead, simply requested permission to file a grievance outside the time limitations provided for in the DOCCS regulations.
Specifically, defendants contend that plaintiff's request and grievance was untimely pursuant to 9 N.Y.C.R.R. § 701.6. Dkt. No. 14 at 2. According to that provision, although the IGP Supervisor may grant an exception to the time limit for filing a grievance based on mitigating circumstances, "an exception to the time limit may not be granted if the request was made more than 45 days after the an alleged occurrence." 9 N.Y.C.R.R. § 701.6(g)(1)(i)(a). Defendants contend that plaintiff's letter, dated September 16, 2013, which related to his discrimination complaints against defendant Donovan, was untimely because it was filed well beyond the forty-five days provided for in section 701.6. Dkt. No. 14 at 2.
To the extent that plaintiff's reference to a "grievance" in his complaint actually alludes to his letter seeking permission to file a late grievance, plaintiff's discrimination claim would be ripe for dismissal due to his failure to fully exhaust available administrative remedies and provide the court with any reason for his failure. See, e.g., Hilbert v. Fischer, No. 12-CV-3843, 2013 WL 4774731, at *7 ("[B]ecause the time to both file a grievance and request an exception to the time limit has long expired, and because Plaintiff has not offered any reason for his delay in filing a grievance . . ., the claim is dismissed with prejudice."); Cole v. Miraflor, No. 02-CV-9981, 2006 WL 457817, at *3-4 (S.D.N.Y. Feb. 23, 2006) (finding that the DOCCS's determination that the plaintiff's grievance was untimely "is conclusive on the issue of exhaustion"); Patterson v. Goord, No. 02-CV-0759, 2002 WL 31640585, at *1 (S.D.N.Y. Nov. 21, 2002) (dismissing the plaintiff's complaint for failure to exhaust where his request to file a late grievance was denied by prison officials and no other avenues of exhaustion were available).
IV. SUMMARY AND RECOMMENDATION
Defendants seek dismissal of plaintiff's complaint based on his alleged failure to fully exhaust the available administrative remedies prior to filing this lawsuit. Although it is undisputed that plaintiff commenced this action prior to fully exhausting administrative remedies with respect to his excessive force claim, a dispute of material fact exists regarding whether special circumstances exist to excuse his failure to fully exhaust administrative remedies regarding his discrimination claim.
Based upon the foregoing, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 12) be GRANTED in part and DENIED in part as follows:
(1) I recommend the court dismiss plaintiff's excessive force cause of action against defendant Pecore, without prejudice, for failure to fully exhaust administrative remedies, and that defendant Pecore be dismissed from the action;
(2) I recommend the court deny defendants' motion to the extent it seeks dismissal of plaintiff's discrimination claim asserted against defendant Donovan without prejudice to renewal following the close of discovery; and
(3) I recommend that if, following discovery, defendants do not again raise the exhaustion argument by renewed motion, the court hold an evidentiary hearing to resolve the issues of fact surrounding whether plaintiff's failure to fully exhaust the available administrative remedies with respect to his discrimination claim is excused under Hemphill.
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 86 (2d Cir. 1993).
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. Dated: July 30, 2014
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge