Opinion
9:19-cv-00427 (DNH/TWD)
12-17-2021
MICHAEL SILER, Plaintiff, v. FLETCHER, et al., Defendants.
MICHAEL SILER Plaintiff, pro se. HON. LETITIA JAMES LAUREN ROSE EVERSLEY, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendants.
MICHAEL SILER Plaintiff, pro se.
HON. LETITIA JAMES LAUREN ROSE EVERSLEY, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendants.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate Judge.
This matter has been referred for a Report-Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Michael Siler (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this pro se action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) Plaintiff alleges that Sergeant Fletcher and Corrections Officers Russell and Hollenback (collectively, “Defendants”) violated his constitutional rights under the Eighth Amendment. Id. Defendants now move for summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies before commencing this action, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Dkt. No. 54.) For the following reasons, the Court recommends denying Defendants' motion.
The facts will be related herein in the light most favorable to Plaintiff as the nonmoving party. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record . . . to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”).
Plaintiff alleges Defendants subjected him to excessive force on February 8, 2019, at Upstate Correctional Facility (“Upstate”). (Dkt. No. 1 at 4-6.) He alleges Russell and Hollenback carried him into a cell and “slammed” him onto the floor. Id. at 4. While Fletcher watched and stated, “no hits in the face, ” Russell and Hollenback punched and kicked Plaintiff in the head, upper torso, and between his legs. Id. Russell put his knee on Plaintiff's neck while Hollenback repeatedly kicked Plaintiff in the groin. Id. at 5. Russell and Hollenback used a bedsheet to “hog tie” Plaintiff, wrapping the sheet around his neck, wrist, and ankles, and slid him under the bottom bunk. Id. Fletcher stated, “Just so you know Siler, we all come from a long family of Klansmen” and threatened to kill Plaintiff while using racial slurs. Id. Plaintiff sustained a bloody nose and multiple lacerations to his face, neck, ankles, and head. Id. Plaintiff urinated blood for forty-eight hours and suffered from pain in his lower abdomen. Id. at 5-6.
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
On February 11, 2019, while housed in the Special Housing Unit (“SHU”), Plaintiff submitted a grievance concerning the excessive force incident at issue. (Dkt. No. 54-3 at 46; Dkt. No. 58 at 3-4.) Because he did not receive a response from Upstate that his grievance was received, Plaintiff submitted a second grievance on February 20, 2019. (Dkt. No. 54-3 at 47-46.) The next day, on February 21, 2019, Plaintiff was transferred to Clinton Correctional Facility (“Clinton”). (Dkt. No. 54-4 at ¶ 4.) Thereafter, Plaintiff sent two letters to Upstate's Superintendent inquiring about his grievances. (Dkt. No. 54-3 at 52.)
On March 5, 2019, after not receiving any indication that either of his grievances had been received and filed at Upstate, Plaintiff submitted a third grievance at Clinton concerning the excessive force incident at issue. Id. On March 22, 2019, Plaintiff was transferred to Great Meadow Correctional Facility. (Dkt. No. 58 at 4-5.)
Plaintiff commenced this action on April 8, 2019, without having received any indication that any of his three grievances had been filed. (Dkt. No. 54-3 at 56-58, 62.)
Although the prisoner mailbox rule presumes that the date of filing is the date the inmate delivers the complaint to the prison guard for mailing, i.e., the date he or she signs the complaint, see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), Plaintiff explained at his deposition that he gave his complaint to another inmate to mail. (Dkt. No. 54-3 at 54-56.) Thus, construing all facts in Plaintiff's favor, the Court agrees with Defendants that Plaintiff's complaint was “filed” on April 8, 2019, the date indicated on the postmark of the envelope containing the complaint. The complaint was received by the Clerk's office on April 10, 2019.
II. LEGAL STANDARDS
A. Summary Judgment
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory 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).
The Second Circuit instructs that on summary judgment motions, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
B. Exhaustion
Pursuant to 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). The exhaustion requirement applies to all inmate suits about prison life. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)), abrogated on other grounds by Ross v. Blake, 578 U.S. 632, 648 (2016). “Generally, if a plaintiff . . . fails to follow each of the required steps prior to commencing an action, he has failed to exhaust his administrative remedies as required under the PLRA.” Sanders v. St. Mary, No. 9:19-CV-1314 (BKS/TWD), 2021 WL 1575944, at *4 (N.D.N.Y. Apr. 22, 2021), report and recommendation adopted, 2021 WL 1999781 (N.D.N.Y. May 19, 2021); see also Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (“[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).”) (cleaned up). “On a motion for summary judgment, “[t]he defendant bears the burden of proving that the administrative remedies available to the plaintiff were not exhausted prior to the initiation of a civil action.” McMillian v. Walters, No. 9:16-CV-0277 (MAD/DJS), 2017 WL 8894737, at *2 (N.D.N.Y. Dec. 18, 2017), report and recommendation adopted, 2018 WL 879270 (N.D.N.Y. Feb. 14, 2018).
To exhaust administrative remedies, “the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he or she is incarcerated.” Cuadrado v. Brueault, No. 9:14-CV-1293 (DNH/CFH), 2015 WL 1606178, at *3 (N.D.N.Y. Apr. 8, 2015); see Jones v. Bock, 549 U.S. 199, 218 (2007). “Courts in [] this Circuit have long recognized [DOCCS' three-step Inmate Grievance Program (“IGP”)] procedure as an ‘available' remedy for purposes of the PLRA.” Hall v. Cty. of Saratoga, No. 10-CV-1120 (NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6, 2013).
The grievance process begins with filing a complaint within 21 days of the alleged incident. 7 N.Y.C. § 701.5(a)(1). Typically, inmates file the grievances directly with the IGP grievance clerk. However, in situations where the inmate is housed in the SHU, he may give the grievance complaint to a correction officer to file for him. Id. § 701.7. The inmate's administrative remedies consist of a three-step grievance and appeal procedure: (1) investigation and review of the grievance by the Inmate Grievance Resolution Committee (“IGRC”); (2) if appealed, review of the IGRC's determination by the superintendent of the facility; and (3) if the superintendent's decision is appealed, review and final administrative determination by the Central Office Review Committee (“CORC”). See id. § 701.5.
“There is also an expedited procedure for complaints raising bona fide issues of harassment or other misconduct by DOCCS staff, which bypasses the IGRC.” Ferguson v. Mason, No. 9:19-CV-927 (GLS/ATB), 2021 WL 862070, at *2 (N.D.N.Y. Jan. 7, 2021), report and recommendation adopted, 2021 WL 531968 (N.D.N.Y. Feb. 12, 2021) (citing 7 N.Y.C.R.R. § 701.8). Once a complaint is given a number and recorded by the IGP clerk, the grievance is forwarded directly to the superintendent of the facility “for prompt review, investigation, and decision, ” after which the inmate may appeal any negative determination to CORC. Id.
While the PLRA mandates exhaustion of administrative remedies, it “contains its own, textual exception to mandatory exhaustion.” Ross v. Blake, 578 U.S. at 648. An administrative procedure is “unavailable” when (1) “it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44; see also Wilson v. Snyder, No. 9:19-CV-420 (DNH/CFH), 2019 WL 8192227, at *4 (N.D.N.Y. Dec. 5, 2019), report and recommendation adopted, 2020 WL 1140666 (N.D.N.Y. Mar. 9, 2020).
III. DISCUSSION
A. The Parties' Contentions
Defendants argue Plaintiff's complaint should be dismissed in its entirety because, despite the availability of the grievance procedure, he commenced this action before exhausting his administrative remedies. (Dkt. No. 54-1.) To that end, Defendants submit declarations from the IGP Supervisors at Upstate and Clinton, along with the IGP Assistant Director of DOCCS. (Dkt. Nos. 54-4, 54-5, 54-6.)
Sherri Debyah, the IGP Supervisor at Upstate, declares that on February 20, 2019, Plaintiff filed a grievance complaint (Grievance No. UST-64704-19), wherein he alleged that he “was subjected to use of force and assaulted by officers after being escorted to his cell on February 8, 2019.” (Dkt. No. 54-4 at ¶ 19.) Due to the nature of the complaint, Grievance No. UST-64704-19 was forwarded to Upstate's Superintendent. Id. at ¶ 20. On May 31, 2019, the Superintendent denied Grievance No. UST-64704-19. Id. Plaintiff did not, however, appeal Grievance No. UST-64704-19 to CORC. Id. at ¶ 22. Further, upon review of the records maintained in Upstate's grievance office, Debyah declares there is no record that Plaintiff wrote to or appealed the Superintendent's lack of response to CORC, or filed any other grievance relating to the claims in the present action. Id. at ¶ 23.
Christine Gregory, the IGP Supervisor at Clinton, declares that on March 5, 2019, Plaintiff filed a grievance complaint (Grievance No. CL-75464-19) wherein he alleged that he had been assaulted by four officers in the presence a sergeant on February 8, 2019, while housed at Upstate. (Dkt. No. 54-5 ¶ 19.) Due to the nature of the complaint, Grievance No. CL-75464-19 was forwarded to Clinton's Superintendent. Id. at ¶ 20. On April 11, 2019, Clinton's Superintendent's office received a letter from Plaintiff dated April 4, 2019, requesting a decision on Grievance No. CL-75464-19. Id. at ¶ 21. By letter dated April 11, 2019, Gregory responded to Plaintiff's letter and informed him that Grievance No. CL-75464-19 was pending a Superintendent's review. Id. at ¶ 22. She advised that any untimely response to a grievance may be appealed by submitting a letter to the IGP office. Id. On April 29, 2019, the Clinton IGP received a letter from Plaintiff dated April 21, 2019, wherein he requested that the IGP forward Grievance No. CL-75464-19 to CORC. Id. at ¶ 23. Gregory responded informing Plaintiff that his grievance would be appealed to CORC per his request. Id. at ¶ 24.
Rachel Sequin, the Assistant Director of the DOCCS IGP, declares that CORC received Plaintiff's appeal of Grievance No. CL-75364-19 on May 3, 2019. (Dkt. No. 54-6 at ¶ 14.) CORC issued a determination denying Grievance No. CL-75464-19 on September 3, 2020. Id. at ¶ 16.
In response to Defendants' motion, construed liberally, Plaintiff argues his administrative remedies were unavailable. (Dkt. No. 58.) Specifically, Plaintiff explains that he continued to “go off of his first grievance timeframes”, i.e., the first grievance he submitted and dated February 11, 2019, and commenced this action on April 8, 2019, after having not received any response from Upstate. Id. at 4-5. Plaintiff further points out that at the time he commenced this action, he had not received any acknowledgment or response as to his second grievance (Grievance No. UST-64704-19) or third grievance (Grievance No. CL-75364-19), dated February 20, 2019, and March 5, 2019, respectively. Id. at 5, 6, 14.
In their reply, Defendants assert Plaintiff's arguments are misplaced. (Dkt. No. 59.) Defendants argue (a) Upstate has no record of a grievance dated February 11, 2019, (b) Plaintiff never corresponded with Upstate concerning Grievance No. UST-64704-19, (c) Plaintiff never appealed Grievance No. UST-64704-19 to CORC, and (d) Plaintiff did not contact Clinton's Superintendent concerning Grievance No. CL-75464-19 until after he commenced this action. Id. at 4.
B. The Court's Analysis
Whether a plaintiff exhausted his administrative remedies is a legal question that requires a defendant to produce reliable evidence of availability. See Coleman v. Nolan, No. 9:15-CV-40 (ATB), 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018). “[O]nce a defendant has produced reliable evidence that such remedies were generally available, and the plaintiff nevertheless failed to exhaust those remedies, the plaintiff must then counter the defendant's proof by showing that, as to him or her, the remedy was unavailable.” Id. (citing Smith v. Kelly, 985 F.Supp.2d 275, 284 (N.D.N.Y. 2013)). As such, “‘the burden of production' may shift to a plaintiff when a court considers whether the grievance process was unavailable[.]” Id. (citations omitted).
Here, the Court finds Defendants have satisfied their initial burden of demonstrating remedies were generally available to Plaintiff, and that Plaintiff nevertheless failed to exhaust those remedies prior to commencing this action. (Dkt. Nos. 54-4, 54-5, 54-6.) The inquiry therefore turns on whether Plaintiff's administrative remedies were unavailable under Ross.
Williams v. Correction Officer Priatno instructs that administrative remedies are unavailable to a plaintiff where a grievance is “unfiled and unanswered” because “the process to appeal . . . is prohibitively opaque, such that no inmate could actually make use of it.” 829 F.3d 118, 126 (2d Cir. 2016). There, the plaintiff alleged that, while housed in the SHU, he drafted a grievance that he delivered to a correction officer to forward to the grievance office on his behalf. Id. at 120-121. Approximately two weeks later, the plaintiff was transferred to a different facility. Id. at 121. He never received a response to his grievance, and alleged that it was never filed by the officer to whom he had given it. Id. The plaintiff never appealed the grievance. Id. The Court found that “in giving his grievance to the correction officer, Williams exhausted all administrative remedies that were available to him.” Id. at 126.
“That Williams was decided on a motion to dismiss and not on a summary judgment motion does not change the analysis.” Medina v. Napoli, 725 Fed.Appx. 51, 54 (2d Cir. 2018) (summary order) (reversing grant of summary judgment and remanding to the district court to apply Williams).
Notably, the plaintiff in Williams also supported his allegation of unavailability “by providing the court with the date he filed the grievance, the procedure for how he filed it, and the timeline for roughly when [] subsequent follow-up conversations occurred.” Ozzborn v. Cornell, No. 9:17-CV-1039 (MAD/ATB), 2021 WL 2227829, at *4 (N.D.N.Y. June 2, 2021) (citing Williams, 829 F.3d at 121). In applying Williams, this Court has held that it is sufficient for a plaintiff to “submit [] a sworn statement that he gave his grievance to a correction officer, ” and the plaintiff is “not then required to produce a greater amount of evidence than normally required of a non-movant at the summary judgment stage.” Hudson v. Kirkey, No. 9:20-CV-0581 (LEK/DJS), 2021 WL 1966721, at *4 (N.D.N.Y. May 17, 2021) (citing McLean v. LaClair, No. 9:19-CV-1227, (LEK/ATB) 2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021)).
Recently, Magistrate Judge Hummel surveyed cases applying Williams. See Tillman v. Phillips, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5233308, at *5-6 (N.D.N.Y. Nov. 10, 2021) (collecting cases applying Williams), report and recommendation adopted, 2021 WL 5768393 (N.D.N.Y. Dec. 6, 2021). Since Williams, this Court has denied summary judgment on exhaustion grounds “where a plaintiff does not have a copy of the grievance, was not confined in the SHU, and has not submitted any contemporaneous correspondence inquiring about the status of his grievance, but submitted a sworn response and testified under oath that he submitted a handwritten grievance and that he verbally followed up with the grievance office.” Id. (citing Maldonado v. Mandalaywala, No. 9:17-CV-1303 (BKS/TWD), 2020 WL 1159426, at *17 (N.D.N.Y. Feb. 12, 2020), report and recommendation adopted, 2020 WL 1157643 (N.D.N.Y. Mar. 10, 2020)). This Court has also denied summary judgment where the plaintiff testified that he wrote two grievances, handed one to a grievance officer while housed in the general population, and another to a prison guard while housed in the SHU, but “he made no attempt to follow up or otherwise appeal to the superintendent.” Britt v. Carberry, No. 9:17-CV-0234 (MAD/DEP), 2019 WL 3365766, at *10 (N.D.N.Y. Mar. 22, 2019), report and recommendation adopted, 2019 WL 2437912 (N.D.N.Y. June 11, 2019).
By contrast, this Court has granted a defendant's motion for summary judgment where the plaintiff testified during a “deposition that he filed a grievance by leaving a plain envelope addressed to the grievance committee for the mail personnel to collect, ” but did not submit documentary evidence to support the contention and did not verbally follow up with anyone at the prison about the grievance. Ozzborn, 2021 WL 2227829, at *4-5; see also Sankara v. Montgomery, No. 9:16-CV-00885 (FJS/TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018) (finding the plaintiff's exhaustion claim insufficient where the plaintiff “provided no evidence that he actually did write grievances; when they were written; the content of the grievances . . . the officers named in the grievance(s) . . .; the specific steps taken by [the plaintiff] to provide them to an officer to send to the grievance office; and any specific follow up with the grievance office[.]”) report and recommendation adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018).
According to Defendants, summary judgment is warranted because the record plainly demonstrates that Plaintiff was not “tripped up” by the procedural requirements associated with the grievance process. (Dkt. No. 59 at 4.) Rather, Defendants contend the record shows Plaintiff knew how to follow the grievance procedure in that he sent a follow up letter to the Clinton IGP Supervisor concerning the status of Grievance No. CL-75464-19, and later appealed the Clinton Superintendent's lack of response to CORC. Id. Nevertheless, because Plaintiff's first inquiry as to the status of Grievance No. CL-75464-19 came nearly thirteen days after he commenced this action summary judgment is warranted. Id.
However, viewed in the light most favorable to the non-moving party, the Court finds this case more analogous to fact patterns where a grievance was submitted but never filed or answered. As noted, Plaintiff testified under oath that he filed a grievance concerning the February 8, 2019, incident on “February 11th, which was a Monday, in Upstate.” (Dkt. No. 54-3 at 46; see also id. at 47 (“The first grievance, I mailed out on the 11th. I gave that letter to the officer on the 11th.”); id. at 77 (“I personally stuck that [grievance] through the door, and the officers came and took it and put it in the mail.”).) The Upstate IGP, however, has no record of this complaint. (Dkt. No. 54-4 at ¶ 23.) Plaintiff further explained that he “never got a notification, letting [him] know that they got [his] grievance. That's why [he] filed . . . the second one.” Id. at 47-46 (referring to Grievance No. UST-64704-19 as “the second one.”). Moreover, Plaintiff transferred facilities after attempting to file the first grievance, contributing to the potential unavailability as “[t]he regulations plainly do not provide guidance on how a transferred inmate can appeal his grievance with the original facility without having received a response.” Williams, 829 F.3d at 126.
Plaintiff also testified that, while housed at Clinton, he wrote two letters to the Superintendent of Upstate, dated March 4 and 8, 2019, concerning that status of his two grievances. Id. at 52-53, 76. Again, the Upstate IGP has no record of any such correspondence. (Dkt. No. 54-4 at ¶ 23.) During his deposition, Plaintiff explained that he did not have copies of the first grievance or the follow-up letters he sent to Upstate's Superintendent because his property was lost in draft. (Dkt. No. 54-3 at 55; see also id. at 14 (also testifying that he could not review any documents in preparation for his December 20, 2020, deposition because his property “was lost in draft”).)
Plaintiff stated, “In that discovery there should be more letters, showing that I wrote to these superintendents. I had -- I had carbon copies, but I--my property was lost in draft. I had carbon copies of everything -- of all the letters that I wrote. That's just one letter. I wrote, like, five letters because in the grievance -- in the P.L.R.A., it tells you -- the Prison Litigation Reform Act, it tells you that if you don't -- if you don't receive a decision in a certain amount of time, you can appeal on your own to the next step.” (Dkt. No. 54-3 at 55.) While certainly not dispositive, the Court notes records submitted by Seguin indicate Plaintiff submitted Grievance DS-0101-20 to CORC titled, “Missing Property.” (Dkt. No. 54-6 at 6.)
After having not received any response from Upstate whatsoever, Plaintiff filed a third grievance at Clinton (Grievance No. CL-7565361-19) on March 5, 2019. (Dkt. No. 54-3 at 48.) Plaintiff then followed up with Clinton's Superintendent by letter dated April 4, 2018. (Dkt. No. 54-5 at ¶ 21.) It was only then, after having not received any correspondence from either the Upstate IGP or Clinton IGP, that Plaintiff commenced this action on or about April 8, 2019.
Considering this Court's responsibility to draw reasonable inferences in Plaintiff's favor, Plaintiff has raised a genuine issue of material fact as to the availability of administrative remedies. See, e.g., Hudson, 2021 WL 1966721, at *4; see also Thaxton v. Simmons, No. 9:10-CV-1318 (MAD/RFT), 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance that was lost or tampered with by [d]efendants.”); Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *9 (S.D.N.Y. Sept. 28, 2018) (denying summary judgment where the record contains sufficient detail regarding the plaintiff's attempts to file grievances) (collecting cases); see also LionKingzulu v. Jayne, 714 Fed.Appx. 80, 82 (2d Cir. 2018) (summary order) (“LionKingzulu's allegation that he filed a timely grievance while at Wende [Correctional Facility] but the grievance was not processed or accepted . . . presents a stronger argument that remedies were unavailable.”); see also Woodward v. Lytle, No. 9:16-CV-1174 (NAM/DEP), 2018 WL 4643036, at *4-5 (N.D.N.Y. Sept. 27, 2018) (finding an issue of fact as to the availability of the grievance process where plaintiff drafted and submitted a grievance that was never filed or answered) (collecting cases).
Lastly, Defendants' contention that Plaintiff was eventually able to successfully navigate the IGP at Clinton, and appealed Grievance No. CL-7565361-19 to CORC, does not necessarily weaken Plaintiff's unavailability argument. The fact that Plaintiff submitted a grievance at Clinton and contacted the Superintendent when he did not timely receive a response and thereafter, appealed to CORC, could suggest that absent interference at Upstate, he could comply with the IGP. See Burrell v. Zurek, No. 9:17-CV-0906 (LEK/TWD), 2019 WL 4051596, at *3 (N.D.N.Y. Aug. 28, 2019).
In sum, the Court finds unresolved issues of material fact regarding the availability of administrative remedies. Summary judgment is accordingly precluded.
WHEREFORE, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 54) be DENIED; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).