Opinion
No. 00-CV-6076.
April 2, 2004
David C. Moore, Pro se, 92-A-6533, Upstate Correctional Facility, Malone, New York, for plaintiff.
Charles D. Steinman, Esq., Assistant Attorney General, Office of the New York State, Attorney General, Rochester, New York, for defendants.
DECISION AND ORDER
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983, brought by the pro se plaintiff, a prison inmate. Now before the Court is defendants' motion [#109] for summary judgment, seeking dismissal of plaintiff's second, sixteenth, twenty-fifth, twenty-seventh, twenty-ninth, and thirty-second claims, on the grounds that plaintiff did not exhaust his administrative remedies before commencing this action, as required by 42 U.S.C. § 1997e(a). For the reasons stated below, the application is denied.
BACKGROUND
At all relevant times, plaintiff David Moore ("plaintiff") was an inmate at Southport Correctional Facility ("Southport") and defendants were employees of the New York State Department of Correctional Services ("DOCS"). The Court set forth the facts of this case in two prior Decisions and Orders [#6][#83]. It is sufficient here to note the following facts. Plaintiff originally asserted 32 causes of action. The Court, in its initial Decision and Order [#6] in this case, dismissed some of those claims, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. The parties then filed cross-motions for summary judgment as to all but one of the remaining claims (Claim 16). On March 12, 2002, the undersigned issued a Decision and Order [#83], granting summary judgment to defendants on all causes of action, except numbers 1, 2, 16, 25, 27, 29, and 32.
This case was then ready to proceed to trial on claims 1, 2, 16, 25, 27, 29, and 32. As will be discussed further below, defendants' application now before the Court seeks judgment only as to claims 2, 16, 25, 27, 29, and 32. The nature of those claims, and plaintiff's attempts to exhaust his administrative remedies as to each of them, are as follows:
Claim 2
Plaintiff's Second claim alleges that defendants improperly tampered with his incoming mail. Plaintiff contends that on April 13, 1998, he wrote a letter to Southport's Superintendent, defendant Michael McGinnis ("McGinnis"), concerning 16 pieces of mail that Southport's Mail Clerk, defendant Deane Gardner ("Gardner"), had withheld and then returned to the sender. Plaintiff argued that the mail was in compliance with facility rules. Later, on April 23, 1998, plaintiff filed an inmate grievance concerning 11 other pieces of mail that he claimed Gardner was withholding, requesting that the mail be released. (Grievance No. Spt. 14255-98). As part of that grievance, plaintiff also referred to the 16 letters that Gardner had previously returned to sender. In the grievance, plaintiff requested that the 11 letters then being held be released, and that Gardner stop "harassing" him by improperly withholding his mail. The Inmate Grievance Review Committee denied the grievance. On or about May 6, 1998, plaintiff again wrote to McGinnis, reiterating that his mail should not have been withheld.
Claim 16
Claim 16 involves an incident which began when plaintiff was attacked by another inmate in Southport's visiting room. Plaintiff physically subdued his attacker, but was issued a misbehavior report, because he allegedly disobeyed a direct order to stop fighting. Plaintiff was subsequently convicted at a Tier Hearing. Plaintiff, however, contends that the corrections officers who witnessed the incident failed to intervene to protect him. On or about September 3, 1998, plaintiff wrote to Southport's Deputy Superintendent for Security, defendant Richard Morse ("Morse"), complaining that he should not have been issued a misbehavior report, since the other inmate had attacked him first. Morse responded by noting that plaintiff had failed to respond to several direct orders to stop fighting during the incident. On or about February 7, 1999, plaintiff wrote to DOCS Commissioner Glenn Goord ("Goord"), appealing his Tier Hearing conviction. As part of that letter, plaintiff indicated that the corrections officers who were present did not intervene or try to stop the attack.
Claim 25
Claim 25 involves an incident in which plaintiff attempted to mail two large envelopes of legal mail. He contends that defendants improperly refused to mail the envelopes, and that when staff returned the envelopes to him, most of the materials were missing. On or about September 15, 1999, plaintiff filed an inmate grievance (Grievance No. Spt. 16990-99), complaining that his outgoing legal mail had been opened and returned, and that 372 pages were missing. On or about September 21, 1999, the Inmate Grievance Review Committee ("IGRC") denied the grievance, and directed plaintiff to try to resolve the situation through "existing channels" by speaking with his area supervisor or counselor. Plaintiff contends that he appealed the denial of the grievance, both to the facility superintendent, and to DOCS's Central Office Review Committee ("CORC"). In support of the latter contention, plaintiff has submitted a receipt, purportedly from CORC, indicating that his appeal was received by CORC on November 19, 1999. Plaintiff also wrote letters to an Assistant Deputy Superintendent Richard Cerio ("Cerio") and to Deputy Superintendent M. Corcoran ("Corcoran") regarding the incident.
Claim 27
Claim 27 involves an incident where plaintiff received mail from the U.S. Department of Justice that had allegedly been opened by Southport staff before it was given to him. On or about November 12, 1999, plaintiff filed an inmate grievance (Grievance No. Spt. 17395-99) complaining that his legal mail had been opened. The IGRC denied the grievance, noting that the matter was being handled by Cerio. Plaintiff then wrote to the Inmate Grievance Program Supervisor, asking that the grievance be reopened. Plaintiff also wrote letters to DOCS' counsel, Anthony Annucci ("Annucci"), and to an unidentified Deputy Superintendent regarding the incident, requesting that the matter be investigated. Subsequently, Cerio responded to plaintiff, stating that nothing improper had occurred with regard to plaintiff's legal mail. Plaintiff appealed the denial of his grievance to McGinnis. Plaintiff also wrote a letter regarding the incident to Lucien Leclaire ("Leclaire"), Deputy Commissioner of DOCS. On December 3, 1999, Walter H. Chattman, Associate Commissioner of DOCS, responded on behalf of Leclaire, indicating that there was no evidence that plaintiff's legal mail had been improperly opened.
Claim 29
Claim 29 involves an incident wherein plaintiff's bed sheets were allegedly lost by the prison laundry. Plaintiff contends that despite the fact that it was winter and his cell was very cold, defendants refused to provide him with sheets for approximately three weeks. Plaintiff unsuccessfully attempted to resolve the matter informally by speaking to a number of staff. On December 7, 1999, plaintiff filed an inmate grievance concerning the missing sheets, requesting: "Produce missing sheets at my cost or facility's." On December 13, 1999, Southport charged plaintiff's prison account $15.50 to replace the missing sheets, and the following day, December 14, 1999, plaintiff received new sheets. The same day, the IGRC denied plaintiff's grievance, on the grounds that the facility laundry supervisor denied that she had lost the sheets. Plaintiff apparently also wrote an additional letter regarding the incident, because on December 28, 1999, Acting Superintendent M. Corcoran wrote to plaintiff, indicating that IGRC records indicated that plaintiff's concerns regarding his sheets were "being addressed."
Claim 32
Claim 32 involves an incident where plaintiff sent a number of documents to Southport's law library to be photocopied. Included in those documents was a misbehavior report belonging to another inmate. Defendant Corrections Officer Richard Murphy ("Murphy") issued plaintiff a misbehavior report for possessing another inmate's property, even though Murphy had allegedly photocopied the same document for plaintiff on previous occasions. Plaintiff contends that Murphy was retaliating against him, because plaintiff had recently sued Murphy. On December 10, 1999, plaintiff filed an inmate grievance, complaining that he was being harassed by Murphy. On December 14, 1999, the IGRC denied the grievance, indicating that Murphy was "doing his job." Plaintiff contends that he eventually appealed this issue to CORC and received a decision from CORC. However, he contends that corrections staff confiscated the decision from his cell on or about July 23, 2003. Plaintiff also wrote to Goord and to Annucci regarding the alleged retaliation by C.O. Murphy.
As discussed earlier, the Court resolved defendants' initial summary judgment motion on March 12, 2002, after which it appeared that this case was ready for trial. On April 2, 2002, the Court issued a Pre-trial Order [#85]. However, on April 30, 2002, defendants' counsel wrote the Court, requesting additional time to file a second summary judgment motion, pursuant to 42 U.S.C. § 1997e(a), as a result of the U.S. Supreme Court's decision in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002), handed down on February 26, 2002. The Court permitted defendants to file the motion [#87], but then denied their application on procedural grounds. See, Decision and Order [#100]. Subsequently, the Court granted defendants leave to file another summary judgment motion.
42 U.S.C. § 1997e(a) 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."
On August 11, 2003, defendants filed the subject summary judgment motion [#109], again alleging that plaintiff did not comply with 42 U.S.C. § 1997e(a) before commencing this action. In that regard, defendants again seek judgment on claims 2, 16, 25, 27, 29, and 32. Defendants do not seek summary judgment as to Claim 1. See, Defs. Memo of Law [#110], p. 4, n. 3. In support of their current application for summary judgment, defendants submit an affidavit [#112] from Thomas G. Eagen, Director of DOCS' Inmate Grievance Program, in which he indicates that: 1) he is the custodian of records kept by the Central Office Review Committee ("CORC"), "the body that renders final administrative decisions under DOCS's Inmate Grievance Program"; 2) CORC's computer database contains records of all appeals filed by inmates since 1990; 3) CORC's computer database "also contains a great deal of historical data with respect to appeals to CORC back to 1986, including data on many . . . appeals"; 4) he searched this database and found no record of plaintiff having appealed to CORC concerning claims 2, 16, 25, 27, 29, or 32. Defendants' theory is that, in order to have exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff was required to follow all three steps established by DOCS's Inmate Grievance Program, by: 1) filing an inmate grievance; 2) appealing the denial of the grievance to the facility Superintendent; and 3) appealing the Superintendent's determination to CORC. Defendants contend that plaintiff never completed these steps as to any of the subject claims, and that the claims must therefore be dismissed.
In response, See, [##124-27, 131], plaintiff contends that he exhausted his administrative remedies as to all claims. More specifically, with regard to claims 25 and 32, plaintiff claims that, contrary to Eagen's assertion, he actually completed the three-step grievance process by appealing to CORC. He has produced a document that he alleges is a receipt from CORC, showing that CORC received his appeal of the grievance involved in claim 25. Regarding claim 32, as mentioned above, plaintiff maintains that he had a decision from CORC, but it was confiscated by staff at Southport. As to the remaining claims, plaintiff contends that he should be deemed to have exhausted his administrative remedies through the other means described above, i.e., by writing letters to various DOCS officials. Alternatively, he alleges that: 1) he is not required to have exhausted, since Porter v. Nussle does not apply retroactively; 2) defendants waived the affirmative defense by failing to raise it in their answers to the complaint; and 3) defendants are prevented from filing the instant motions on the grounds of collateral estoppel.
As will be discussed below, the Court is denying defendants' motion at this time. Nonetheless, the Court notes that plaintiff's legal arguments lack merit. First, the Court rejects plaintiff's contention that Porter v. Nussle does not apply retroactively. See, e.g., Santos v. Hauck, 242 F.Supp.2d 257, 260 (W.D.N.Y. 2003) (Applying Porter v. Nussle retroactively) (Citations omitted). Plaintiff's argument that defendants' waived the affirmative defense of failure to exhaust is also without merit. As to that, although the affirmative defense is raised in defendants' amended answers [##113-21], plaintiff alleges that the amended answers are "defunct," since they were filed without the Court's permission. See, Pl. Memo of Law [#125], pp. 4-5. However, on July 24, 2003, the Honorable Jonathan W. Feldman, United States Magistrate Judge, ordered that defendants could file amended answers. Order [#107]. As to that, on July 9, 2003, defendants filed an application [#103] for two types of relief. First, defendants requested to have until July 25, 2003 to file a summary judgment motion. Second, defendants requested permission to amend their answers to add the affirmative defense of failure to exhaust administrative remedies, but unlike their request to file a summary judgment motion, did not indicate a particular date by which the amended answers would be filed. In granting the application, Magistrate Judge Feldman did not specify a date by which the amended answers were to be filed. Defendants filed their amended answers on August 7, 2003, and the Court deems them to have been timely filed. Accordingly, the Court finds that defendants have not waived the affirmative defense. Nor is there any merit to plaintiff's contention that defendants are barred from filing successive motions for summary judgment by the doctrine of collateral estoppel. See, e.g., Whitford v. Boligno, 63 F.3d 527, 530 (7th Cir. 1995) ("[T]he denial of summary judgment has no res judicata effect, and the district court may, in its discretion, allow a party to renew a previously denied summary judgment motion or file successive motions, particularly if good reasons exist.") (Citations omitted).
On September 10, 2003, defendants submitted a reply affidavit from Eagen, alleging, inter alia, that the receipt from CORC that plaintiff has produced in connection with claim 25 is a forgery, and that he actually never appealed to CORC. Plaintiff subsequently filed a sur-reply, essentially reiterating his previous arguments. The Court has thoroughly considered the parties' submissions and the entire record in this case.
ANALYSIS
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
The instant motion is brought pursuant to 42 U.S.C. § 1997e(a), which 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." As a general matter,
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination.Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). However, the Second Circuit has indicated that it is unclear whether or not an inmate may also exhaust his administrative remedies in other ways. See, Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003) ("We recognize that it is unclear in this Circuit whether attempts to lodge informal grievances can satisfy the exhaustion requirement. However, this Court recently ordered appointment of counsel in five pending appeals to brief the question of whether New York State inmates who do not fully comply with the state's formal grievance procedure may nevertheless exhaust their claims in other ways.").
Applying the foregoing principles of law to the facts of this case, the Court finds that defendants' application must be denied as to claims 25 and 32, since plaintiff has indicated in a sworn affidavit that he in fact exhausted his administrative remedies by appealing the denial of his grievances on those claims to CORC. As for claim 25, although defendants allege that the receipt plaintiff purportedly received from CORC is a forgery, the Court may not resolve disputed issues of fact on a motion for summary judgment. As for the remaining claims, plaintiff contends that he exhausted his administrative remedies using informal means. However, as discussed above, the state of the law concerning exhaustion by informal means is currently unsettled. Richardson v. Goord, 347 F.3d at 434. Accordingly, as to the remaining claims, the Court will deny defendants' motion, but will grant defendants leave to renew the motion, if and when the Second Circuit clarifies whether or not, and to what extent, an inmate may exhaust administrative remedies using informal means. See, Britt v. Dep't of Corrections, No. 99 Civ. 1672 (LMM), 2004 WL 547955 at *2 (S.D.N.Y. Mar. 19, 2004) (Denying summary judgment motion pursuant to 42 U.S.C. § 1997e(a) without prejudice to renew, "in such manner as the Court may determine upon the filing of a decision or decisions by the Second Circuit as contemplated in Richardson (of which the Court is to be promptly informed)").
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment [#109] is denied as follows: As to claims 25 and 32, the application is denied, on the grounds that there exist material issues of fact that will have to be resolved at trial; as to claims 2, 16, 27, and 29, the application is denied since it is unclear whether or not defendants are entitled to judgment as a matter of law. However, as to claims 2, 16, 27, and 29, defendants are granted leave to renew their application if and when the Second Circuit clarifies the standard of law pertaining to exhaustion of administrative remedies by informal means, as contemplated in Richardson v. Goord, 347 F.3d at 434. The Court will schedule the trial of this matter by a separately-issued Pretrial Order.
So Ordered.