Opinion
9:19-cv-1114 (TJM/TWD)
06-26-2020
REGINALD McGAUGHY, Plaintiff, v. KEITH McDONALD, Defendant.
APPEARANCES: REGINALD McGAUGHY Plaintiff, pro se 09-R-0962 Cape Vincent Correctional Facility Rte. 12E PO Box 739 Cape Vincent, NY 13618 HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendant The Capitol Albany, NY 12224 OF COUNSEL: LAUREN ROSE EVERSLEY, ESQ. Assistant Attorney General
APPEARANCES: REGINALD McGAUGHY
Plaintiff, pro se
09-R-0962
Cape Vincent Correctional Facility
Rte. 12E
PO Box 739
Cape Vincent, NY 13618 HON. LETITIA JAMES
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, NY 12224 OF COUNSEL: LAUREN ROSE EVERSLEY, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Reginald McGaughy ("Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Supervision ("DOCCS"), commenced this pro se action pursuant to 42 U.S.C. § 1983 regarding alleged violations of his constitutional rights at Bare Hill Correctional Facility ("Bare Hill"). (Dkt. No. 1.) The Honorable Thomas J. McAvoy, United States Senior District Judge, reviewed the complaint in accordance with 28 U.S.C. § 1915 and found only Plaintiff's Eighth Amendment excessive force claim against Keith McDonald ("Defendant") survived initial review and required a response. (Dkt. No. 7.)
Defendant now moves for summary judgment, in lieu of an answer, pursuant to Rule 56 of the Federal Rules of Civil Procedure because Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 14.) Plaintiff has responded to the motion. (Dkt. No. 18.) For the reasons explained below, the Court recommends granting Defendant's motion.
I. BACKGROUND
On March 16, 2019, Plaintiff claims he was told to "pack up" for a move. (Dkt. No. 1 at 8.) According to Plaintiff, McDonald instructed Plaintiff to "get on the wall for a pat frisk" and as Plaintiff "was putting [his] hands on the wall, [McDonald] smacked [him] in the back of [his] head." Id. During the search, McDonald "kicked [Plaintiff's] feet from under [him]" and then "pulled the pin for the response team." Id. When the response team arrived, the unidentified individuals that comprised that team assaulted Plaintiff and directed racial slurs towards him. Id. Plaintiff was then transported to the Special Housing Unit ("SHU") by a sergeant who also directed racial slurs at him. Id. at 10. Upon arriving at the SHU, Plaintiff was assaulted again by six unidentified corrections officers. Id. Plaintiff was threatened not to report his injuries to a nurse or otherwise report the assault. Id. On March 17, 2019, Plaintiff was interviewed by a lieutenant about the use of force incident the day before. Id. at 8-9. On March 25, 2019, Plaintiff was transferred to Upstate Correctional Facility ("Upstate"). (Dkt. No. 14-3 at ¶ 10.) He commenced this action on or about September 10, 2019. (Dkt. No. 1.)
Page references to documents identified by docket number are to the page number assigned by the Court's CM/ECF electronic docket system. 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.
Defendant seeks summary judgment based solely on Plaintiff's failure to exhaust available administrative remedies prior to commencing this action. (Dkt. No. 14-1.) In support of his motion, Defendant offers evidence that Plaintiff filed a grievance at Upstate (Grievance No. UST-64896-19) dated April 1, 2019, regarding, inter alia, McDonald's alleged assault of Plaintiff on March 16, 2019, at Bare Hill. (Dkt. No. 14-2 at ¶ 6.) That grievance was forwarded to the facility superintendent for a response. Id. at ¶ 7. The superintendent responded to the grievance in June of 2019. Id. at ¶ 8. Upstate, however, has no record of Plaintiff appealing the superintendent's decision to the Central Office Review Committee ("CORC"). (Dkt. No. 14-3 at ¶ 18.) CORC likewise has no record of any appeal of Grievance No. UST-64896-19 being filed. (Dkt. No. 14-4 at ¶ 11.) Lastly, Bare Hill has no record of any grievances relating to the alleged March 16, 2019, incident. (Dkt. No. 14-5 at ¶ 13.)
A copy of Plaintiff's grievance packet for Grievance No. UST-64896-19 is attached as Exhibit A to the Declaration of Donna Wilcox, the Inmate Grievance Program ("IGP") Supervisor at Upstate. (Dkt. No. 14-3 at 6-11.)
Upon review of the records maintained at Upstate, Wilson states there is no record that Plaintiff appealed the superintendent's decision to CORC. (Dkt. No. 14-3 at ¶¶ 14, 17, 18.)
Rachel Seguin, the Assistant Director for the IGP at DOCCS and custodian of records maintained by CORC, declares that upon review of the records maintained by CORC in the regular course of business, Plaintiff did not appeal Grievance No. UST-64896-19 to CORC. (Dkt. No. 14-4 at ¶¶ 1, 9-12.) She further submits Plaintiff did not file an appeal to CORC of any grievance relating to his allegations in this action. Id. at ¶ 13.
Upon review of the records maintained at Bare Hill, Cheryl Lamore, the Bare Hill IGP Supervisor, states Plaintiff did not file any grievances concerning McDonald's alleged assault. (Dkt. No. 14-5 at ¶¶ 1, 12-13.)
In his opposition submission, which is not verified, Plaintiff "admits" he did not appeal the superintendent's decision to CORC but contends his complaint "should not be dismissed because excessive force during a pat frisk did happen." (Dkt. No. 18 at 1-2.)
II. LEGAL STANDARD
A court shall grant summary judgment only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R. Civ. P. 56(a). 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 272-73. 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. v. Zenith Radio Corp, 475 U.S. 574, 585-86 & 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). 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).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and quotation marks omitted). A verified complaint, as Plaintiff has filed in this case, is treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
Where a party is proceeding pro se, the court must "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 Civ. 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)).
The Court will provide Plaintiff with copies of all 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).
III. EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. Legal Standard
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). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007).
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").
In New York State prisons, DOCCS has a well-established three-step IGP. See 7 N.Y.C.R.R. § 701.5. However, special procedures are used when, as in this case, the grievance involves staff misconduct. See id. § 701.8. A grievance alleging staff misconduct, once it is given a number and recorded, must be sent directly to the superintendent, and the superintendent must issue a decision within twenty-five days. Id. § 701.8(b), (f). If the grievant wishes to appeal the superintendent's decision to CORC, he must do so within seven days of receipt of the decision. Id. § 701.8(h). Thereafter, CORC must render a written decision within thirty days of receipt of the appeal. Id. § 701.8(i); see id. § 701.5(d)(3)(ii).
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)." (quotation marks and citations omitted)). Nevertheless, the PLRA also "contains its own, textual exception to mandatory exhaustion." Ross v. Blake, 136 S. Ct. 1850, 1854-55 (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 brackets 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." Williams v. Correction Officer Priatno, 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).
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. The plaintiff must then establish the IGP grievance procedure was unavailable to him under Ross. See Adams v. O'Hara, No. 9:16-CV-0527 (GTS/ATB), 2019 WL 652409, at *4 (N.D.N.Y. Feb. 15, 2019).
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)).
B. Analysis
The record before the Court establishes Plaintiff filed Grievance No. UST-64896-19, dated April 1, 2019, which alleged, inter alia, that on March 16, 2019, Defendant McDonald used excessive force against him during a pat frisk at Bare Hill. (Dkt. No. 14-2 at ¶ 6.) Consistent with the policy for grievances involving staff harassment, the grievance was forwarded directly to the facility superintendent for consideration. Id. at ¶ 7. The superintendent denied Plaintiff's grievance on June 7, 2019, finding no misconduct by staff. Id. at ¶ 8. There is no record, however, of Plaintiff appealing the superintendent's decision to CORC. Id. at ¶ 9; see also Dkt. No. 18 at 1, 2 ("I admit I didn't appeal to 'CORC.'"). Plaintiff commenced this action on or about September 10, 2019. (Dkt. No. 1.)
Here, it is undisputed Plaintiff failed to avail himself of the full panoply of administrative remedies prior to commencing this action. See Bennett v. Fletcher, No. 9:17-CV-849 (GTS/CFH), 2020 WL 872491, at *7 (N.D.N.Y. Jan. 16, 2020) (citing Omaro v. Annucci, 68 F. Supp. 3d 359, 364 (W.D.N.Y. 2014) ("It is well-established that an inmate who does not appeal to CORC has failed to exhaust his administrative remedies.")), report-recommendation adopted by 2020 WL 871156 (N.D.N.Y. Feb. 21, 2020); see, e.g., Hamm v. Farney, No. 9:13-CV-1302 (BKS/CFH), 2017 WL 8894723, at *5 (N.D.N.Y. Dec. 22, 2017), report and recommendation adopted by 2018 WL 922149 (N.D.N.Y. Feb. 16, 2018) (dismissing the plaintiff's complaint for failure to exhaust where the IGP supervisor and DOCCS Assistant Director of IGP both declared that "a search of the DOCCS database confirmed plaintiff's original grievance, as well as an appeal to the superintendent, but produced no record of an appeal to CORC"). Accordingly, the Court finds Defendant has satisfied his burden of demonstrating Plaintiff failed to exhaust his administrative remedies prior to commencing this action.
The Court also finds Plaintiff has failed to submit nonconclusory evidence sufficient to raise a material issue of fact on the question of availability of the IGP under Ross. Plaintiff's assertion that his complaint "should not be dismissed because excessive force during a pat frisk did happen" is without merit. (See Dkt. No. 18.) As discussed above, excessive force claims are subject to the PLRA's exhaustion requirement. Porter, 534 U.S. at 532. Further, while Plaintiff claims he was "threat[ened] not to report [his] injuries" and contends he did not file a grievance at Bare Hill because he "was in fear of retaliation," it does not explain or excuse Plaintiff's failure to appeal Grievance No. UST-64896-19, which was filed at Upstate, to CORC. (Dkt. Nos. 1 at 8, 18 at 2.) Moreover, there is no evidence in the record showing the grievance procedure "operate[d] as a simple dead end" to Plaintiff, nor is there any evidence to establish an issue of fact as to unavailability due to an "opaque" administrate scheme. Because Plaintiff has produced no evidence showing the administrative process was unavailable to him during the time within which he was required to appeal Grievance No. UST-614893-19 to CORC, the Court finds Plaintiff has not met his burden of demonstrating his administrative remedies were unavailable to him under Ross and concludes Plaintiff did not exhaust his Eighth Amendment excessive force claim against McDonald as required by the PLRA.
Therefore, the Court recommends granting the 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 to CORC. As Plaintiff's failure to exhaust his administrative remedies is incurable at this point, the Court recommends dismissing Plaintiff's Eighth Amendment excessive force claim against McDonald with prejudice. See, e.g., Castineiras v. Helms, No. 9:17- CV-1084 (BKS/ATB), 2019 WL 2870300, at *5-6 (N.D.N.Y. June 6, 2019).
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 Eighth Amendment excessive force claim against Defendant McDonald be DISMISSED WITH PREJUDICE; and it if further
ORDERED that the Clerk is directed to amend the docket to reflect the full name of Defendant Keith McDonald; 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). Dated: June 26, 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