Opinion
9:19-CV-478 (LEK/TWD)
01-30-2020
JABARI MANN, Plaintiff, v. M. MARTINGANO, Defendant.
APPEARANCES: JABARI MANN Plaintiff, pro se 218 East 115 Street Apartment 1A New York, New York 10029 HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendant The Capitol Albany, New York 12224 OF COUNSEL: ERIK PINSONNAULT, ESQ. Assistant Attorney General
APPEARANCES: JABARI MANN
Plaintiff, pro se
218 East 115 Street
Apartment 1A
New York, New York 10029 HON. LETITIA JAMES
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, New York 12224 OF COUNSEL: ERIK PINSONNAULT, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Jabari Mann ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 1983, regarding the alleged violation of his constitutional rights. (Dkt. No. 1.) According to Plaintiff, M. Martingano ("Defendant") slammed his head against a wall on December 5, 2018. Id. Based on this event, Plaintiff raises an Eighth Amendment claim against Defendant for use of excessive force and state law assault and battery claims. Id. Defendant now moves for summary judgment, in lieu of an answer, pursuant to Rule 56 of the Federal Rules of Civil Procedure because, among other reasons, Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 14.) Plaintiff responded in opposition to the motion and Defendant replied. (Dkt. Nos. 20, 21.)
For the reasons explained below, the Court recommends granting Defendant's motion for summary judgment.
I. BACKGROUND
On December 5, 2018, Plaintiff alleges Defendant moved him from the I-1 dorm to the "I.D. room" at Green Correctional Facility. (Dkt. No. 1 at 4.) According to Plaintiff, Defendant then "slammed [his] face into the wall which caused [his] tooth to chip in half and busted [his] lip." Id. Plaintiff claims Defendant issued a false misbehavior report the next day to "cover up" Defendant's assault. Id. Given these facts, Plaintiff asserted an excessive force claim against Defendant, along with state law assault and battery claims and a request for injunctive relief. Id. at 5-6.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Defendant has moved for summary judgment on three grounds. (Dkt. No. 14-1.) First, Defendant argues Plaintiff failed to exhaust his administrative remedies because he failed to appeal his grievance. Id. at 4-9. Second, Defendant argues Plaintiff's state law claims are barred by New York Correction Law § 24. Id. at 10-11. Finally, Defendant argues Plaintiff's claim for injunctive relief is moot because Plaintiff was transferred to a different facility. Id. at 11-12.
Defendant subsequently argued that Plaintiff abandoned his state law claim and claim for injunctive relief as Plaintiff failed to address either of Defendant's arguments on the two claims in Plaintiff's opposition papers. (Dkt. No. 21 at 7.)
II. DISCUSSION
A. Standard of Review
Summary judgment may be granted only if the submissions of the parties taken together "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. 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 that genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations . . . of [the plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11 (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).
"To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "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 obliged 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). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93-CV-5981 (WHP) (JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B. Exhaustion of Administrative Remedies
1. Legal Standards
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).
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 particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (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").
In New York State prisons, DOCCS has a well-established three-step inmate grievance program ("IGP"). N.Y. Comp. Codes R. & Regs. ("N.Y.C.R.R.") tit. 7, § 701.5 (2013). First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. § 701.5(a). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance, id. § 701.5(b)(2), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii).
Third, a grievant may appeal to the Central Office Review Committee ("CORC") within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Grievances involving claims of excessive force are subject to an expedited procedure. Id. § 701.8. The superintendent must initiate an in-house investigation by higher ranking supervisory personnel, request an investigation by the inspector general's office, or request an investigation by the New York State Police Bureau of Investigation if the superintendent determines that criminal activity may be involved. Id. § 701.8(d). The superintendent must render a decision on the grievance within twenty-five calendar days, and extensions may be granted only with the consent of the grievant. Id. § 701.8(f). If the superintendent fails to respond within the required twenty-five days, the grievant may appeal the grievance to CORC by "filing a notice of decision to appeal (form #2133) with the inmate grievance clerk." Id. § 701.8(g).
"An inmate transferred to another facility may continue an appeal of any grievance." Id. § 701.6(h)(2). Any response to a grievance pending at the time of an inmate's transfer must be mailed directly to that inmate at his new facility or location. Id. § 701.6(h)(1). To appeal, the inmate must mail a signed appeal form to the IGP at the facility where the grievance was filed within seven calendar days of receipt. Id. § 701.6(h)(2).
As set forth above, at each step of the IGP, a decision must be rendered within a specified time period. "Where the IGRC and/or superintendent do not timely respond, an inmate must appeal 'to the next step,'" assuming there is a "next step" in the IGP. Eleby v. Smith, No. 9:15-CV-0281 (TJM/DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017) (quoting 7 N.Y.C.R.R. § 701.6(g)(2)); see also Smith v. Kelly, 985 F. Supp. 2d 275, 281 (N.D.N.Y. 2013) ("[A]ny failure by the IGRC or the superintendent to timely respond to a grievance . . . can—and must—be appealed to the next level . . . to complete the grievance process."). Generally, if a plaintiff fails to follow each of the required steps of the IGP, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See 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)." (quotations marks and citations omitted)).
Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing that an inmate has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216. 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 in lieu of an answer. Crichlow v. Fischer, No. 6:15-CV-06252 EAW, 2017 WL 920753, at *5 (W.D.N.Y. Mar. 7, 2017) (citing Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (granting a motion for summary judgment made in lieu of an answer where inmate failed to exhaust administrative remedies)).
2. Application
Here, the record evidence demonstrates Plaintiff filed a grievance involving an excessive force incident on December 11, 2018. (Dkt. No. 14-4 at 6; Dkt. No. 20 at 15.) On February 16, 2019, the superintendent denied Plaintiff's grievance. (Dkt. No. 14-4 at 6.) It is undisputed that Plaintiff did not appeal the superintendent's decision to CORC. (Dkt. No. 14-2 at 6-7.) Plaintiff filed the present action on April 24, 2019. (Dkt. No. 1.)
Plaintiff also filed a second grievance about the incident on December 16, 2018, which was consolidated with the first grievance by the IGP. (Dkt. No. 14-4 at 3.)
To the extent Plaintiff claims he "exhausted his administrative remedies when he filed a grievance with [the IGP]" (Dkt. No. 20 at 8), the act of filing a grievance without appealing to CORC does not constitute proper exhaustion of administrative remedies. See 7 N.Y.C.R.R. § 701.5; Grubbs v. Serrell, No. 9:13-CV-0467, 2018 WL 1175232, at *2 (N.D.N.Y. Mar. 6, 2018) (holding plaintiff failed to exhaust his administrative remedies by failing to appeal the superintendent's denial of his grievance to CORC). Therefore, the Court finds Defendant has satisfied his burden of demonstrating Plaintiff failed to exhaust his administrative remedies prior to commencing this action.
However, the Court's inquiry does not end here, as the PLRA "contains its own, textual exception to mandatory exhaustion." Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). More specifically, Section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]" (quotation marks and citations omitted). In the PLRA context, the Supreme Court has determined that "availability" means that "an 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 that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved 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 that "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).
Thus, the burden now shifts to Plaintiff to establish unavailability under Ross. There is no evidence in the record showing that the IGP "operate[d] as a simple dead end" to Plaintiff or that prison administrators prevented Plaintiff from using the IGP 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, while being deferential to Plaintiff's pro se status, Plaintiff has failed to raise an issue of fact as to the IGP program's opacity.
In response to Defendant's motion, Plaintiff argues he "should not be penalized for not appealing the Superintendent's decision to [CORC] within seven (7) calendar days after receipt of the decision pursuant to [§] 701.5(d)(1)(i) because he was transferred to Upstate SHU and never received the Superintendent's decision." (Dkt. No. 20 at 9.) This statement is unsupported by any factual evidence in the record and, alone, is insufficient to establish an issue of material fact to defeat a summary judgment motion. Fed. R. Civ. P. 56(c)(1). Had this statement constituted admissible evidence, Plaintiff's argument would still fail to establish the IGP was unavailable to him.
"Upstate SHU" refers to the Special Housing Unit at Upstate Correctional Facility.
As stated above, inmates must appeal to CORC if they do not receive a timely response from the facility superintendent. See Eleby, 2017 WL 986123, at *5 (holding administrative remedies were available to plaintiff because he could have appealed to the superintendent or CORC after failing to receive a response to his grievance). Further, as an inmate may continue the appeal of any grievance after being transferred to a different facility, 7 N.Y.C.R.R. § 701.6(h)(2), the transfer of an inmate while a grievance is pending is insufficient to establish unavailability on its own. See White v. Ercole, No. 06-CV-11361 (DAB), 2009 WL 602890, at *5 (S.D.N.Y. Mar. 3, 2009); see also Amaker v. Bradt, 745 F. App'x 412, 413 (2d Cir. 2018) (finding plaintiff's transfer to another prison one month after filing a grievance failed to establish administrative remedies were unavailable); Richardson v. New York State Dep't. of Corr. & Cmty Supervision Employees, 633 F. App'x 816, 818 (2d Cir. 2016).
Here, the evidence establishes Plaintiff could have appealed the superintendent's delayed response before he was transferred. IGP records indicate Plaintiff's grievance was filed on December 11, 2018. (Dkt. No. 14-4 at 6.) The superintendent had twenty-five calendar days to investigate and render a decision on the grievance, or until January 5, 2019. See 7 N.Y.C.R.R. § 701.8(f). The record indicates Plaintiff was transferred to Upstate Correctional Facility on or about January 11, 2019. (Dkt. No. 14-2 at 3; Dkt. No. 14-3 at ¶ 13.) Thus, because Plaintiff was able to appeal the superintendent's lack of response prior to being transferred, his argument that he failed to appeal to CORC due to his transfer is without merit. Cf. Toliver v. Adner, No. 9:18-CV-1420 (DNH/ATB), 2019 WL 35035059, at *4 (N.D.N.Y. June 3, 2019) (holding the plaintiff failed to establish the grievance process was unavailable to him because of his transfer where plaintiff was transferred after the deadline to file his grievance had already passed).
Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs.
Based upon the foregoing, the Court finds Plaintiff did not exhaust his administrative remedies as the PLRA requires.
Defendant also argues Plaintiff failed to exhaust his administrative remedies because he did not name Defendant as his assailant in his grievances. (Dkt. No. 14-1 at 8-10.) However, inmates are not required to name specific officers in grievances. See 7 N.Y.C.R.R. § 701.5(a)(2). Inmates must only "allege facts sufficient to alert corrections officials 'to the nature of the claim,' and 'provide enough information about the conduct' at issue 'to allow prison officials to take appropriate measures.'" Singh v. Lynch, 460 F. App'x 45, 47 (2d Cir. 2012) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)). Here, in his grievances, Plaintiff claimed that an unknown officer slammed his head into the wall and Defendant issued a false misbehavior report to cover up the assault. (Dkt. No. 14-4 at 2-3.) The Court finds Plaintiff's grievances put prison officials on notice of the alleged assault and provided sufficient information for an investigation of the incident.
3. Dismissal with Prejudice
The Court may 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). Alternatively, 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, a year has passed from the time Plaintiff should have appealed to CORC. 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).
C. Plaintiff's State Law Claims
Because the Court has recommended dismissing Plaintiff's lone federal claim, the Court lacks original jurisdiction to consider Plaintiff's state law claims. However, pursuant to 28 U.S.C. § 1367, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy . . . ." 28 U.S.C. § 1367(a). Nevertheless, the district court may decline to exercise supplemental jurisdiction over such a claim if "the district court has dismissed all claims over which it has original jurisdiction." Id. § 1367(c)(3); see also Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994) (holding that "the district court did not abuse its discretion in declining to exercise jurisdiction over the state-law claims" where it had dismissed the other federal law claims related to the action).
Here, the Court recommends declining to exercise supplemental jurisdiction over Plaintiff's remaining state law claims.
Alternatively, the Court agrees with Defendant that Plaintiff's state law claims must be dismissed pursuant to New York Corrections Law § 24. To that end, § 24 provides immunity for DOCCS employees from lawsuits based on acts or omissions within the course of their employment and requires such actions be brought in the New York Court of Claims as a claim against the state. N.Y. Correct. Law § 24; see also Ierardi v. Sisco, 119 F.3d 183, 186-87 (2d Cir. 1997). If a plaintiff brings such an action in federal court, the court should dismiss his or her state law claims for lack of subject matter jurisdiction. Baker v. Coughlin, 77 F.3d 12, 15-16 (2d Cir. 1996); Joy v. New York, No. 5:09 Civ. 841, 2010 WL 3909694, at *4-5 (N.D.N.Y. Sept. 30, 2010) (collecting cases).
Here, Plaintiff's state law claims against Defendant arise from acts or omissions within the scope of his employment at DOCCS. Thus, the Court recommends dismissing Plaintiff's common law claims for lack of subject matter jurisdiction. See Ames v. New York Dep't of Corr. & Cmty. Supervision, No. 9:12-CV-01487 (MAD/RFT), 2015 WL 4126326, at *14 (Mar. 24, 2015) (dismissing plaintiff's state law assault and battery claims as barred by New York Corrections Law § 24 where officers allegedly used excessive force on plaintiff within the facility).
D. Plaintiff's Claim for Injunctive Relief
While this motion was pending in the District Court, Plaintiff was released from custody. (Dkt. No. 19.) The Court finds that, as Plaintiff is no longer incarcerated at any correctional facility, his claim for injunctive relief is now moot. See Khalil v. Laird, 353 F. App'x 620, 621 (2d Cir. 2009); Matthews v. Thomas, No. 9:16-CV-1198 (TJM/CFH), 2017 WL 6629229, at *7 (N.D.N.Y. Nov. 6, 2017) ("Because plaintiff's complaint requested only injunctive relief in the form of a transfer, when plaintiff was released from prison 'he no longer had a continuing personal stake in the outcome of the action, and his claims were rendered moot.'") (internal citations omitted).
III. CONCLUSION
For the above stated reasons, the Court finds Plaintiff's excessive force claim was not exhausted as the PLRA requires and recommends Defendant's motion for summary judgment (Dkt. No. 14) be granted. The Court also recommends Plaintiff's Eighth Amendment excessive force claim be dismissed with prejudice and Plaintiff's state law claims be dismissed without prejudice.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendant's motion for summary judgment (Dkt. No. 14) be GRANTED; and it is further
RECOMMENDED that Plaintiff's Eight Amendment excessive force claim be dismissed with prejudice; and it is further
RECOMMENDED that Plaintiff's state law claims be dismissed without prejudice; 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 the Second Circuit 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. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: January 30, 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