Opinion
9:18-CV-895 (GLS/TWD)
02-19-2020
MICHAEL A. DEMUTH, Plaintiff, v. ERNEST CUTTING, LT. CHRIS MILES, SR., C.O. REESE, Defendants.
APPEARANCES: MICHAEL A. DEMUTH Plaintiff, pro se 19-B-1439 Collins Correctional Facility P.O. Box 340 Collins, New York 14034 OFFICE OF FRANK W. MILLER Counsel for Defendants 6575 Kirkville Road East Syracuse, New York 13057 OF COUNSEL: FRANK W. MILLER, Esq.
APPEARANCES: MICHAEL A. DEMUTH
Plaintiff, pro se
19-B-1439
Collins Correctional Facility
P.O. Box 340
Collins, New York 14034 OFFICE OF FRANK W. MILLER
Counsel for Defendants
6575 Kirkville Road
East Syracuse, New York 13057 OF COUNSEL: FRANK W. MILLER, Esq. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Michael A. Demuth ("Demuth" or "Plaintiff") commenced this civil rights action under 42 U.S.C. § 1983 regarding alleged violations of his constitutional rights. (Dkt. No. 1.) According to Demuth, C.O. Reese ("Reese"), a correctional officer at Chenango County Correctional Facility, retaliated against him for filing grievances. Id. Plaintiff seeks compensatory damages against Reese and an injunction directing Ernest Cutting ("Cutting") and Lt. Chris Miles ("Miles") to ensure Reese does not retaliate against him. (Dkt. No. 10 (Decision and Order on initial review describing the remaining claims).)
Currently before the Court is Defendants' motion for summary judgment. Defendants argue they are entitled to summary judgment because Plaintiff failed to exhaust his administrative remedies and his claim is meritless. (Dkt. No. 31.) Plaintiff did not respond to Defendants' motion for summary judgment despite several extensions of time to do so. (Dkt. Nos. 36, 38.) Therefore, the Court considers Defendants' motion unopposed. For the reasons that follow, the Court recommends granting Defendants' motion on exhaustion grounds and dismissing this case with prejudice.
I. STANDARD OF REVIEW
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). As noted above, Plaintiff failed to respond to Defendants' motion for summary judgment. Plaintiff's failure to oppose Defendants' motion results in the admission of properly supported facts, however the Court must still ensure those facts show Defendants are entitled to judgment as a matter of law. See Jackson v. Federal Express, 766 F.3d 189, 194 (2d Cir. 2014) (a non-response to a summary judgment motion does not risk default because the district court must ensure that each statement of material fact is supported by the record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed) (citing Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242-46 (2d Cir. 2004) (even when a motion for summary judgment is not opposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law)).
II. BACKGROUND
Giving Plaintiff the benefit of the doubt, the Court interprets his complaint as alleging Reese took the following retaliatory actions: (1) he destroyed a grievance Plaintiff had intended to file against him; and (2) he verbally assaulted Plaintiff when he inquired about the missing grievance which resulted in a 24-hour lock-in and subsequent false misbehavior report.
Specifically, on July 14, 2018, Plaintiff turned in three informal grievances to non-party Corrections Officer Bates. (Dkt. No 31-2 at ¶ 5.) Officer Bates placed the grievances on the desk at Housing Unit C. Id. at ¶ 6. Reese then replaced Officer Bates in Housing Unit C during Bates's lunch break. Id. at ¶ 7. After Officer Bates returned, Plaintiff asked him how many grievances were at the desk and Officer Bates located only two. Id. at ¶ 8. Plaintiff alleges Reese removed one of the grievances because it related to him.
Moreover, on July 27, 2018, Plaintiff was sitting at his table for meal service and engaged with Reese about whether Reese destroyed one of Plaintiff's grievances. (Dkt. No. 1.) Reese ordered Plaintiff to lock-in and he filed a misbehavior report against Plaintiff. (Dkt. No. 31-2 at ¶ 16.)
Plaintiff filed a formal grievance related to the missing grievance incident on July 14, 2018, and Reese's harassment and subsequent lock-in on July 27, 2018. Id. at ¶¶ 11, 14. The grievances were denied and Plaintiff never appealed. Id. at ¶¶ 13, 15.
III. EXHAUSTION
Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[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). Exhaustion is required for "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones v. Bock, 549 U.S. 199, 216 (2007). Whether a plaintiff has exhausted his administrative remedies is a question of law. Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999). Thus, an inmate's failure to exhaust administrative remedies is properly considered on a motion for summary judgment. Crichlow v. Fischer, No. 6:15-CV-06252 EAW, 2017 WL 920753, at *5 (W.D.N.Y. Mar. 7, 2017) (citing Mckinney v. Prack, 170 F. Supp. 3d 510, 514 (W.D.N.Y. 2016) (granting a motion for summary judgment made in lieu of an answer where inmate failed to exhaust administrative remedies)).
To properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the institution to which they are confined. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly").
The Chenango County Correctional Facility has a seven-step inmate grievance procedure. (Dkt. No. 31-8 at 26-28.) First, the inmate must "attempt to reach a solution with the Corrections Officer assigned" to his housing area. Id. at 27. Second, the inmate may request an informal complaint form. Id. Third, the inmate may request a formal grievance form. Id. Fourth, the grievance is investigated and the Investigating Grievance Officer provides a written determination within five business days of receiving the complaint. Id. Fifth, the inmate may appeal to the Jail Administrator or his or her designee within two business days of receiving the Grievance Officer's decision. Id. Sixth, the Jail Administrator responds within five business days. Id. Seventh, the inmate may appeal to the State Commission of Corrections, which responds within forty-five days. Id.
Here, it is undisputed Plaintiff failed to avail himself of the full panoply of administrative remedies at Chenango County Correctional Facility. To that end, as stated above, Plaintiff asserts the following two allegations of retaliation: (1) Reese destroyed a grievance Plaintiff had intended to file against him; and (2) Reese verbally assaulted Plaintiff when he inquired about the missing grievance which resulted in a 24-hour lock-in and subsequent misbehavior report. With respect to the lost grievance incident, on July 28, 2018, Plaintiff filed formal Grievance SCOC 7032-1, No 18-240. (Dkt. No. 31-7 at ¶¶ 5-6; Dkt. No. 31-10.) That grievance was denied on August 8, 2018, and Plaintiff did not appeal. (Dkt. No. 31-7 at ¶ 6.)
Plaintiff filed a second grievance, No. 18-241, on July 27, 2018, reiterating his complaint about the lost grievance and adding allegations regarding Reese's verbal harassment. (Dkt. No. 31-7 at ¶ 8; Dkt. No. 31-12.) That grievance was denied on August 8, 2018, and never appealed. (Dkt. No. 31-7 at ¶ 8.) In his deposition, Plaintiff admits to accepting the denial of these grievances and electing to file a legal complaint rather than pursue his administrative remedies. (Dkt. No. 31-4 at 4-5, 8, 11.)
Moreover, Plaintiff's original complaint was signed July 27, 2018, and filed on August 1, 2018—before the first step of the administrative process had completed. (Dkt. No. 1.) In the Second Circuit, if a prisoner files suit in federal court before exhausting administrative remedies, the federal court must dismiss the complaint—suspending or continuing the action until administrative remedies are exhausted cannot "save a case from dismissal." Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter, 534 U.S. 516. For these reasons, the Court finds Plaintiff failed to exhaust his administrative remedies.
Nevertheless, while the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1858 (2016). More specifically, Section 1997e(a) provides only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); 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 "availability" means "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotation marks and citations omitted).
The Ross Court identified three circumstances in which a court may find 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 inmates." 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 inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
In Williams v. Correction Officer Priatno, the Second Circuit noted "the three circumstances discussed in Ross do not appear to be exhaustive[.]" 829 F.3d 118, 123 n.2 (2d Cir. 2016). The illustrations of unavailability in Ross nonetheless guide the Court's inquiry. See Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
There is no evidence in the record showing the Chenango County Correctional Facility grievance procedure "operate[d] as a simple dead end" to Plaintiff, nor is there any evidence that prison administrators prevented Plaintiff from using the grievance procedure due to "machination, misrepresentation, or intimidation." See Ross, 136 S. Ct. at 1859-60. The only Ross factor that could potentially be raised is unavailability due to an "opaque" administrative scheme. See id. However, even if the Court were to be extremely deferential to Plaintiff's pro se status, there is no evidence to establish an issue of fact as to the program's opacity. To the contrary, Plaintiff, as noted above, readily acknowledged he chose to file a legal complaint rather than appeal the denial of his grievances through the administrative process. (Dkt. No. 31-4 at 4-5.)
Therefore, the Court recommends granting Defendants' motion for summary judgment on exhaustion grounds.
It is appropriate for the Court to dismiss a claim without prejudice for failing to exhaust administrative remedies "[i]f the time permitted for pursuing administrative remedies has not expired." Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (quoting Snider, 199 F.3d at 111-12). However, the Court may dismiss the claim with prejudice if the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is unable to cure his failure to exhaust. Id. at 88.
Here, more than a year has passed since Plaintiff should have appealed the grievance. As Plaintiff's failure to exhaust his administrative remedies is incurable at this point, the Court recommends dismissing Plaintiff's action with prejudice. See Castineiras v. Helms, No. 9:17-CV-1084 (BKS/ATB), 2019 WL 2870300, at *5-6 (N.D.N.Y. June 6, 2019).
Because the record establishes Plaintiff failed to avail himself of available administrative remedies before commencing this action, the Court declines to consider whether his claim would have survived Defendants' motion relative to the merits of his claim.
IV. CONCLUSION
After carefully considering the record, the Court finds Plaintiff failed to exhaust his administrative remedies.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 31) be GRANTED; and it is further
RECOMMENDED that Plaintiff's lawsuit be dismissed with prejudice; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (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) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: February 19, 2020
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).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge