Opinion
Civil Action No. 9:18-CV-0339 (GTS/DEP)
06-27-2019
EDERICK FABRIZIO also known as EDERICK FABRICIO, Plaintiff, v. COMMISSIONER ANTHONY J. ANNUCCI, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: EDERICK FABRIZIO a/k/a EDERICK FABRICIO, Pro Se 97-A-2265 Otisville Correctional Facility Box 8 Otisville, NY 10963 FOR DEFENDANTS: HON. LETITIA A. JAMES New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: EDERICK FABRIZIO a/k/a
EDERICK FABRICIO, Pro Se
97-A-2265
Otisville Correctional Facility
Box 8
Otisville, NY 10963 FOR DEFENDANTS: HON. LETITIA A. JAMES
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
ORDER, REPORT, AND RECOMMENDATION
This is a civil rights action commenced by pro se plaintiff Ederick Fabrizio, a New York State prison inmate, pursuant to 42 U.S.C. § 1983 against several individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"). In his complaint, as amended, plaintiff alleges that defendants violated his rights under the First and Eighth Amendments to the United States Constitution.
In response to plaintiff's amended complaint, defendants have moved for the entry of summary judgment dismissing his claims. In their motion, defendants raise a single procedural issue, arguing that plaintiff is precluded from pursuing his claims as a result of his failure to exhaust available administrative remedies prior to filing suit. Because I agree that the record clearly establishes plaintiff's failure to properly exhaust available administrative remedies before commencing suit, and there is no basis presented for excusing the exhaustion requirement, I recommend that defendants' motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is currently confined in the custody of the DOCCS. Dkt. No. 9 at 1. While he is now incarcerated elsewhere, at all times relevant to the events in this action, plaintiff was confined in the Greene Correctional Facility ("Greene"), located in Coxsackie, New York. Id. At various other times, plaintiff was also held in the Elmira Correction Facility ("Elmira") and the Green Haven Correctional Facility ("Green Haven"). Id. at 4.
On November 9, 2016, plaintiff commenced an action in the Southern District of New York alleging violations of his constitutional rights while confined at Green Haven. Dkt. No. 9 at 4; see Fabricio v. Lee et al, No. 16-CV-8731 (S.D.N.Y. filed 11/9/16). In addition, on June 23, 2017, plaintiff filed a lawsuit in the Western District of New York alleging violations of his constitutional rights while he was confined at Elmira. Dkt. No. 9 at 4; Fabricio v. Annucci et al, No. 17-CV-6410 (W.D.N.Y. filed 6/23/17). Generally, plaintiff alleges that as a result of these two actions, defendants retaliated against him in violation of his First Amendment rights. See generally Dkt. No. 9 at 4.
Plaintiff's amended complaint details various alleged incidents occurring during his confinement at Greene, claiming that they were constitutionally-significant adverse actions taken in retaliation for his having engaged in protected activity. See generally Dkt. No. 9.
Although plaintiff describes additional events in his amended complaint that are not detailed in this section, I have limited my discussion to the circumstances forming the basis for those claims that survived the court's initial review pursuant to 28 U.S.C. §§ 1915(e), 1915A. See generally Dkt. No. 14.
A. December 9, 2017 Incident and Grievance GNE-9664-17
On December 9, 2017, while plaintiff was walking back from the mess hall towards his dorm with another inmate, he was stopped by defendant James Rielly, a corrections officer at Greene. Dkt. No. 9 at 7. Defendant Rielly allegedly then "grab[bed] the [p]laintiff by his coat . . . and force[d] him to put his hands on the fence, while maliciously and sadistically . . . kicking the [p]laintiff['s] legs to pull them apart, just for the very purpose of causing unnecessary harm . . . and made the [p]laintiff f[a]ll to his knees." Id. Defendant Oliver, who is also a corrections officer at Greene, then approached plaintiff, and the two defendants "started to smack the [p]laintiff from the bottom of his face[] while they . . . rubb[ed] [his] face against the fence," resulting in a laceration to his face, and they took bread out of his pocket. Id. Plaintiff claims that "at no time during this incident did [p]laintiff use any force against the defendant[] officers or do anything that would have provided the officers with a legal basis to use force against him." Id. at 7-8.
On December 12, 2017, plaintiff filed grievance number GNE-9664-17 regarding the December 9, 2017 incident involving defendants Rielly and Oliver. Dkt. No. 50-2 at 2; Dkt. No. 55-3 at 2; see also Dkt. No. 55-1 at 5-7. Plaintiff's grievance was forwarded directly to the superintendent of the facility, and a determination was issued on January 8, 2018, concluding that plaintiff's allegations could not be substantiated. Dkt. No. 50-2 at 2; Dkt. No. 55-3 at 1; see also Dkt. No. 50-3 at 9. The following day, plaintiff signed an appeal statement, and the DOCCS Central Office Review Committee ("CORC") acknowledged receipt of plaintiff's appeal on March 12, 2018. Id.; Dkt. No. 50-3 at 9-10; Dkt. No. 55-1 at 6.
Plaintiff also filed a second grievance against defendant Oliver on December 30, 2017 alleging retaliation, intimidation, and harassment. Dkt. No. 55-1. That grievance was consolidated with GNE-9664-17. Id.
B. February 16, 2018 Incident and Grievance GNE-9766-18
On February 16, 2018, while plaintiff was working on his legal claims, defendant Laster, another corrections officer at Greene, searched plaintiff's cube and began reading plaintiff's notepad where he kept legal notes related to each of his grievances. Dkt. No. 9 at 11. Defendant Laster thereafter left plaintiff's cube and returned with a contraband report. Id. While Laster subsequently confiscated plaintiff's notebook, he did not provide him with a corresponding contraband slip. Id.
As a result of that incident, on February 22, 2018, plaintiff filed grievance number GNE-9766-18. Dkt. No. 50-2 at 2; Dkt. No. 55-3 at 2; see Dkt. No. 50-3 at 12. That grievance was once again forwarded directly to the facility superintendent, and a determination was issued on March 16, 2018, advising plaintiff that the matter was under investigation by the DOCCS Office of Special Investigations ("OSI") and that action on the grievance was being deferred pending the completion of that investigation. Id.; see Dkt. No. 50-3 at 14. Plaintiff appealed the superintendent's determination to the CORC on March 21, 2018, and the CORC received plaintiff's appeal on April 26, 2018. Id.; Dkt. No. 55-1 at 5; see Dkt. No. 50-3 at 14.
C. April 5, 2018 Incident and Grievance GNE-9848-18
On April 5, 2018, defendant Oliver pat frisked plaintiff, ordering Fabrizio to take his shoes off and stand on a freezing cold floor. Dkt. No. 9 at 12. The following day, on April 6, 2018, plaintiff was stopped while walking to his dorm, placed in handcuffs, and directed to get into a van with defendant Rielly. Id. Plaintiff was then placed inside a room and ordered to face the wall while Rielly conducted a strip search of plaintiff. Id. at 13. Upon completion of the search, plaintiff's clothes were returned to him, with the exception of his gloves and scarf, which were not returned and for which he was not provided a contraband slip. Id. Plaintiff alleges that with respect to these events, the officers involved never gave plaintiff an explanation as to why he was subjected to a strip search, nor was he ever issued a misbehavior report, evidencing the "administration['s] intent [to] conspire against [plaintiff] to make him go through unnecessary suffering." Id.
On or about April 9, 2018, plaintiff filed grievance number GNE-9848-18 regarding the April 5 and 6, 2018 incidents. Dkt. No. 50-2 at 3; Dkt. No. 55-3 at 2; see Dkt. No. 50-3 at 16-17. The grievance was forwarded directly to the superintendent at Greene, who issued a determination on August 31, 2018, concluding that the plaintiff's allegations could not be substantiated. Id.; see Dkt. No. 50-3 at 19. Plaintiff filed an appeal of the superintendent's determination on September 12, 2018; that appeal was received by the CORC on October 15, 2018. Id.; Dkt. No. 55-1 at 9.
D. May 20, 2018 Incident and Grievance GNE-9848-18
On the evening of May 20, 2018, as plaintiff was leaving the facility's law library, defendant Daniel Galioto, another corrections officer at Greene, and Sergeant Cruz, an officer who, plaintiff claims, was previously affiliated with Green Haven and acquainted with defendants in plaintiff's prior lawsuit involving events at that facility, directed two officers to search plaintiff and his legal papers. Dkt. No. 9 at 15. Plaintiff was not provided a reason as to why the officers searched his papers. Id. On or about June 4, 2018, plaintiff filed grievance number GNE-9922-18 regarding the May 20, 2018 incident. Dkt. No. 50-2 at 3; Dkt. No. 55-3 at 2; see Dkt. No. 50-3 at 21-22. That grievance was similarly forwarded directly to the Greene superintendent, who issued a determination on August 10, 2018, again finding plaintiff's allegations to be unsubstantiated. Id.; see Dkt. No. 50-3 at 24. On August 10, 2018, plaintiff filed an appeal of the superintendent's determination; that appeal was received by the CORC on October 15, 2018. Id.; Dkt. No. 55-1 at 10.
E. Remaining Claims
Finally, in his complaint, as amended, plaintiff alleges that defendants Anthony J. Annucci, the DOCCS Acting Commissioner; Brandon Smith, the Superintendent of Greene; Thomas Mauro, the IGP Supervisor at Greene; and Brian Sullivan, a corrections officer at Greene, were personally involved in the alleged constitutional violations. Specifically, plaintiff contends that defendants Mauro and Sullivan investigated and denied his grievances, suggesting that they "participat[ed] in an unwritten practice of retaliation." Dkt. No. 9 at 19. With respect to defendants Smith and Annucci, plaintiff alleges they "intentionally conspire[d] to persecute [and] retaliate against plaintiff" and "fail[ed] to act on knowledge of substantial risk of serious harm to plaintiff." Id. at 17, 18.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about March 19, 2018, by the filing of a complaint dated February 20, 2018, accompanied by an application for leave to proceed in forma pauperis ("IFP"). Dkt. Nos 1, 2. Following an initial review of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A, Chief Judge Glenn T. Suddaby issued a decision and order denying as moot plaintiff's IFP application and dismissing all of the claims set forth in plaintiff's complaint, with the exception of his Eighth Amendment excessive force claim asserted against defendants John Doe #2 and Oliver, and granted plaintiff leave to amend his complaint. Dkt. No. 5.
Plaintiff availed himself of the opportunity to replead on or about July 16, 2018, by filing an amended complaint and second IFP application. Dkt. No. 9. Upon review of that amended pleading pursuant to 28 U.S.C. §§ 1915(e), 1915A, the court granted plaintiff's IFP application and accepted for filing plaintiff's Eighth Amendment excessive force claims against defendant Oliver and Rielly and the following First Amendment retaliation causes of action: (1) a claim against defendant Laster, related to incidents that occurred in February and March 2018; (2) claims against defendants Rielly and Oliver for aggressive pat-frisks and the confiscation of plaintiff's personal items in April 2018; (3) a claim against defendant Galioto, related to the May 2018 search of plaintiff's legal work; and (4) retaliation claims against defendants Annucci, Smith, Mauro, and Sullivan. Dkt. No. 14.
On April 1, 2018, prior to answering plaintiff's amended complaint, defendants filed the currently pending motion for summary judgment, arguing that plaintiff's claims are barred based on his failure to exhaust available administrative remedies prior to filing this action. Dkt. No. 50. Plaintiff filed a response in opposition to the motion, and defendants have since replied in further support of their motion. Dkt. Nos. 55, 56. Additionally, and with the court's permission, plaintiff has filed a sur-reply in opposition to defendants' motion. Dkt. No. 59. Defendants' motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 73.2(c). See also Fed. R. Civ. P. 72(b).
Unlike its Rule 12(b) dismissal motion counterpart, a summary judgment motion does not by rule 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. Despite the lack of a specific rule recognizing such a stay, some courts have deemed the interposition of a pre-answer summary judgment motion as an act of defending in the case, negating a finding of a default, while others have not. Compare Rashidi v. Albright, 818 F. Supp. 1354, 1355-56 (D. Nev. 1993) with Poe v. Cristina Copper Mines, Inc., 15 F.R.D. 85, 87 (D. Del. 1953). In this instance, exercising my discretion, I will sua sponte order a stay of defendants' time to answer plaintiff's complaint until twenty days after a final determination is issued with respect to defendants' motion, in the event that the action survives. See Snyder v. Goord, 9:05-CV-01284, 2007 U.S. Dist. LEXIS 23066, 2007 WL 957530, at * 5 (N.D.N.Y. Mar. 29, 2007) (McAvoy, S.J. and Peebles, M.J.).
III. DISCUSSION
A. Legal Standard Governing Summary Judgment Motions
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Exhaustion of Available Administrative Remedies
In support of their motion, defendants argue that plaintiff commenced this action on February 20, 2018, the date upon which plaintiff signed his original complaint. Dkt. No. 1 at 17; Dkt. No. 50-1 at 10. Defendants argue that based upon the dates that plaintiff filed each of his grievances and appeals with the CORC, plaintiff's federal causes of action are subject to dismissal due to his failure to satisfy the applicable exhaustion requirement. Dkt. No. 50-1 at 8-9. In opposition to defendants' motion, plaintiff asserts that there were delays in processing his appeals and that the CORC failed to render decisions, in violation of DOCCS Directive No. 4040. See generally Dkt. No. 55-1.
1. Legal Standard
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
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 New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC") have up to sixteen days after the grievance is filed to informally resolve the issue. 7 N.Y.C.R.R. § 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. 7 N.Y.C.R.R. § 701.5(b)(2).
The IGRC is comprised of "two voting inmates, two voting staff members, and a non- voting chairperson." 7 N.Y.C.R.R. § 701.4(a).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(g). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).
As can be seen, at each step of the IGP, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 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 IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (internal quotation marks omitted)).
While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies." (quotation marks omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotation marks omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA. Ross, 136 S. Ct. at 1859-60. Under the first, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams, 829 F.3d at 123 n.2.
Because failure to exhaust is an affirmative defense to a prisoner's civil rights claim, an inmate plaintiff is under no obligation to plead facts demonstrating that he has complied with the PLRA's exhaustion requirement. Jones v. Bock, 549 U.S. 199, 211-17 (2007). If, however, such an inmate-plaintiff pleads sufficient facts revealing his failure to exhaust available administrative remedies before commencing suit, his complaint may be dismissed for failure to state a cognizable claim. Jones, 549 U.S. at 215-16; see e.g., Weidman v. Wilcox, No. 12-CV-6524, 2014 WL 1056416, at *3 (W.D.N.Y. Mar. 17, 2014) (dismissing the plaintiff's complaint because it clearly alleged that the plaintiff failed to avail himself of the prison grievance procedure).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
2. Analysis
The record reflects that while confined at Greene, plaintiff filed the following grievances relating to the claims raised in this action:
| Grievances Filed | ||
|---|---|---|
| Grievance No. | Date Filed | Subject |
| GNE-9664-17 | December 12, 2017 | Excessive force on December9, 2017 |
| GNE-9766-18 | February 22, 2018 | February 16, 2018 search ofplaintiff's legal notepad |
| GNE-9848-18 | April 9, 2018 | April 5, 2018 pat frisk and April6, 2018 search |
| GNE-9922-18 | June 4, 2018 | May 20, 2018 search of plaintiffand his legal papers |
Ordinarily, under the prison mailbox rule, a complaint is deemed to have been filed on the date that is conveyed to prison officials. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Taylor v. Racette, 709 F. App'x 105, 106 n.1 (2018). Although plaintiff's complaint was signed on February 20, 2018, there is no evidence from which the court can ascertain whether, and on what date, plaintiff provided his pleading to prison officials for mailing. See generally Dkt. No. 1. It appears, although this is not entirely clear, that plaintiff instead sent his complaint to a family member, who then mailed the complaint to the court on March 14, 2018. Dkt. No. 1-10 at 1. The court ultimately received and filed the complaint on March 19, 2018. Dkt. No. 1. Based on these circumstances, I decline to conclude that the complaint was "filed" by plaintiff on February 20, 2018, and find instead that the complaint was filed on March 19, 2018.
As will be seen, whether the court considers the date plaintiff signed the complaint (February 20, 2018) or the date the complaint was filed (March 19, 2018) as the date of "commencement," this distinction is without consequence. Considering either date, it is unlikely if not impossible, given the timeline of plaintiff's grievances, that he would have completed the entire appeals process prior to commencing the present action.
Turning to plaintiff's first grievance, GNE-9664-17, there is no dispute of material fact that the superintendent of Greene issued a determination on January 8, 2018, and plaintiff thereafter signed an appeal statement on January 9, 2018. Dkt. Nos. 50-2 at 2, 55-3 at 1. The CORC did not acknowledge receipt of plaintiff's appeal, however, until March 12, 2018. Id. Accordingly, plaintiff's complaint was mailed to the court a mere two days after the CORC processed and acknowledged plaintiff's grievance appeal, and was filed only seven days after that point.
Because less than thirty days elapsed between the CORC's receipt of plaintiff's appeal—the time period allotted by the regulatory scheme for the CORC to act—and commencement of this action, see 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii), I conclude that plaintiff failed to fully exhaust his administrative remedies regarding plaintiff's claim stemming from the December 9, 2017 incident. See, e.g., Burgos v. Craig, 307 F. App'x 469, 471 (2d Cir. 2008) (observing that subsequent exhaustion "is not enough to save his suit, because [the inmate] is required to have properly exhausted before he sues."); Rodriguez v. Rosner, No. 12-CV-958, 2012 WL 7160117, *8 (Dec. 5, 2012) (Baxter, M.J.), report and recommendation adopted by 2013 WL 614360 (N.D.N.Y. Feb. 19, 2013) (McAvoy, J.). From the face of plaintiff's complaint and the undisputed facts before the court, it is clear that plaintiff's grievance number GNE-9664-17 was pending, and therefore unexhausted, at the time of commencement of this action. See, e.g., Shepherd v. Lempke, No. 10-CV-1524, 2017 WL 1187859, at *3 (N.D.N.Y. Mar. 30, 2017) (McAvoy, J.) (collecting cases).
Likewise, plaintiff failed to fully exhaust his administrative remedies with regard to his other three remaining grievances, GNE-9677-18, GNE9848-18, and GNE-9922-18. It is undisputed that with respect to GNE-9677-18, plaintiff signed his appeal to the CORC on March 21, 2018, after this action was commenced. Plaintiff did not even initiate the grievance process with respect to GNE9848-18 and GNE-9922-18 until after commencement. This chronology is fatal to plaintiff's claims. See, e.g., Scott v. Miller, 17-CV-520, 2018 WL 4635710, at *5 (N.D.N.Y. June 25, 2018) (Baxter, M.J.) ("The entire appeals process must be completed prior to filing.") (citing Casey v. Brockley, No. 13-CV-1271, 2015 WL 8008728, at *5 (N.D.N.Y. Nov. 9, 2015) (Dancks, M.J.)).
In opposition to defendant's motion, plaintiff argues that his submission of an amended complaint, which was filed with the court on July 16, 2018, cures this defect. Dkt. No. 9. Plaintiff's argument is unavailing. Where a plaintiff files an amended complaint, the operative date for an exhaustion analysis is the date of plaintiff's original complaint. See, e.g., Guillory v. Haywood, No. 13-CV-01564, 2015 WL 268933, at *11 (N.D.N.Y. Jan. 21, 2015) (D'Agostino, J.) ("[A] post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the time the action was commenced."); see also Shepherd v. Lempke, No. 10-CV-1524, 2017 WL 1187859, at *3 (N.D.N.Y. Mar. 30, 2017) (discussing post-commencement exhaustion). In other words, because the entire appeals process must be completed prior to filing, plaintiff must have exhausted his available administrative remedies prior to commencing this suit on March 19, 2018. Notably, the conduct complained of in grievance numbers GNE-9848-18 and GNE-9922-18 had not even occurred yet at the time plaintiff commenced this action. See Dkt. No. 50-3 at 16-17, 21-22.
The only remaining question to be resolved is whether the IGP was unavailable to plaintiff such that he may be excused from his failure to fully exhaust the administrative remedies. Williams, 829 F.3d at 123 (quoting Ross, 136 S. Ct. at 1858). Plaintiff invites the court to deem his administrative remedies unavailable—a finding that would excuse his failure to fully exhaust the administrative remedies—by virtue of the failure of defendant Mauro, Greene's IGP supervisor, to forward his appeals to the CORC in a timely manner and subsequent failure by the CORC to issue a final determination with regard to each of his four grievances. See generally Dkt. Nos. 55-1, 59. However, considering the timing of plaintiff's grievances, three of which were filed subsequent to plaintiff initiating this lawsuit, a finding of "unavailability" is inconsequential.
I note that for each of plaintiff's four grievances at issue, the CORC has yet to issue a decision on plaintiff's appeals. While defendants do not argue that plaintiff has failed to exhaust his administrative remedies on this basis, I am not convinced that such a position would pass muster in the aftermath of Williams. See also 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
To the extent plaintiff claims that grievance number GNE-9664-17 would have been exhausted in a timely manner but for Mauro's failure to forward plaintiff's appeal to the CORC within seven days, see Dkt. No. 55-1 at 6, I disagree. There is no evidence in this case that plaintiff ever wrote to defendant Mauro or the CORC regarding the timeliness of the CORC's response. See 7 N.Y.C.R.R. § 701.5(d)(3)(i) ("If a grievant does not receive a copy of the written notice of receipt within 45 days of filing an appeal, the grievant should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC."); see also Fox v. Lee, No. 9:15-CV-0390, 2018 WL 8576600, at *21 (N.D.N.Y. Dec. 18, 2018) (Hummel, M.J.). Moreover, even assuming—as plaintiff argues—that the appeal should have been sent to the CORC within one week, or by January 17, 2018, I have found no case deeming the IGP unavailable under Ross because the CORC did not issue a decision within 61 days, the time from January 17, 2018 until the filing of plaintiff's complaint.
Moreover, there is simply no evidence before the court that would suggest that the IGP operated a "simple dead end," was "incapable of use," or that plaintiff's efforts were thwarted by "machination, misrepresentation, or intimidation." Williams, 829 F.3d at 123 (quoting Ross, 136 S. Ct. at 1858). To the contrary, the IGP remained fully available to plaintiff and he was able to successfully and timely navigate each step. After plaintiff received a denial from the superintendent for each of his four grievances, he appealed to the CORC.
In sum, even when all inferences are drawn in plaintiff's favor, based upon the uncontested facts presently before the court, I am unable to conclude that plaintiff's failure to exhaust his administrative remedies should be excused due to unavailability. Accordingly, I agree with defendants that plaintiff prematurely filed this action, and consequently recommend that his federal civil rights claims be dismissed.
IV. SUMMARY AND RECOMMENDATION
Plaintiff was under no obligation to plead facts demonstrating that he complied with the PLRA's exhaustion requirement prior to filing this action. Nonetheless, given the chronology of events, the face of plaintiff's complaint reveals that he failed to exhaust his administrative remedies prior to commencement and there is no reason that he should be excused from this requirement. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment dismissing plaintiff's claims based on the failure to exhaust the available administrative remedies (Dkt. No. 50) be GRANTED, and that plaintiff's federal civil rights claims be DISMISSED WITHOUT PREJUDICE.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this order, report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order, report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
It is hereby ORDERED that the clerk of the court is respectfully directed to modify the court's records to change defendants' names, as reflected in footnote one, above; and it is further respectfully
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: June 27, 2019
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge