Opinion
9:22-CV-0541 (MAD/ML)
04-19-2023
KENNETH RICKENBACKER, Plaintiff, v. B. KELLY, Defendant.
KENNETH RICKENBACKER Pro Se Plaintiff Franklin Correctional Facility LETITIA A. JAMES NICHOLAS W. DORANDO, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendant The Capitol
KENNETH RICKENBACKER Pro Se Plaintiff Franklin Correctional Facility
LETITIA A. JAMES NICHOLAS W. DORANDO, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendant The Capitol
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
REPORT-RECOMMENDATION
Currently before the Court, in this civil rights action filed by Kenneth Rickenbacker (“Plaintiff”) against B. Kelly (“Defendant”), is Defendant's motion for summary judgement pursuant to Fed.R.Civ.P. 56. (Dkt. No. 32.) For the reasons set forth below, I recommend that Defendant's motion for summary judgement be granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
At this procedural posture, Plaintiff asserts a claim of excessive force in violation of the Eighth Amendment and 42 U.S.C. § 1983 against Defendant. (Dkt. Nos. 1, 21.) More specifically, Plaintiff alleges that on April 8, 2019, while confined at Clinton Correctional Facility (“Clinton”), Defendant responded to a group of inmates who “jumped” Plaintiff in the corridor at the bottom of the 12:1 staircase. (See generally Dkt. Nos. 1, 21.) Plaintiff alleges that Defendant “slammed” Plaintiff onto the floor with “extreme force” causing injury to Plaintiff's right wrist, shoulder, and back. (Dkt. No. 1 at 4-5, 8; Dkt. No. 21 at 4.)
B. Defendant's Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Defendant in his Statement of Material Facts and not denied by Plaintiff in a response. (Compare Dkt. No. 32, Attach. 1 [Def.'s Statement of Material Facts], with docket sheet.)
1. Plaintiff is an incarcerated individual who, at all relevant times, was in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”).
2. Plaintiff signed his Complaint in this action on May 23, 2021, and it was filed with the Court on May 25, 2021.
3. Plaintiff's sole remaining cause of action is a claim of excessive force in violation of the Eighth Amendment and 42 U.S.C. § 1983 against Defendant.
4. DOCCS has an inmate grievance process established by 7 N.Y.C.R.R. § 701.1 et seq. This process involves three steps: (1) complaint to the Inmate Grievance Review
Committee (“IGRC”) at the individual facility; (2) appeal to the Superintendent of the facility; and (3) appeal to the Central Office Review Committee (“CORC”).
5. Plaintiff's allegations in this matter are proper subjects for a grievance under the DOCCS grievance procedures outlined in 7 N.Y.C.R.R. § 701.1 et seq.
6. The Clinton incarcerated grievance process was functioning during the period of August 3, 2017, until May 3, 2019, when Plaintiff was housed at Clinton.
7. Clinton currently maintains all grievances from January 2019 to present, which would encompass an event that occurred on or about April 8, 2019.
8. If Plaintiff had filed a grievance while incarcerated at Clinton, Clinton would have maintained a record of the file.
9. Plaintiff did not file a grievance relative to these allegations.
10. Plaintiff did not file an appeal relative to the claims listed in the Complaint.
Although Defendant cites to the Declaration of Rachel Seguin at paragraph number 21 to support this contention (Dkt. No. 32, Attach. 1 at ¶ 5 [citing Dkt. No. 32, Attach. 3 at ¶ 21]), support for this contention is found in Ms. Seguin's declaration at paragraph 20.
C. Parties' Briefing on Defendant's Motion for Summary Judgment
1. Defendant's Memorandum of Law
Generally, in support of his motion for summary judgment, Defendant asserts that Plaintiff failed to exhaust his administrative remedies before commencing this action. (See generally Dkt. No. 32, Attach. 2.) More specifically, Defendant argues that Plaintiff did not file a grievance with the IGRC at Clinton regarding the allegations that form the basis of his claim against Defendant. (Dkt. No. 32, Attach. 2 at 9.) In addition, Defendant argues that Plaintiff did not file an appeal with CORC. (Id.) Thus, Defendant argues that Plaintiff did not exhaust his administrative remedies and this matter should be dismissed. (Id.)
2. Plaintiff's Opposition
A response to Defendant's motion was due on or before October 22, 2022. (Dkt. No. 33.) On October 24, 2022, the Court sua sponte granted Plaintiff an extension of time to respond to Defendant's motion for summary judgment until November 21, 2022. (Dkt. No. 36.) On December 7, 2022, the Court again sua sponte granted Plaintiff an extension of time to respond to Defendant's pending motion until January 6, 2023. (Dkt. No. 37.) To date, Plaintiff has not filed a response to Defendant's pending motion. (See generally docket sheet.)
II. RELEVANT LEGAL STANDARDS
A. Standard Governing A Motion For Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
As a result, “[c]onclusory 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) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than 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, 585-86 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding Pro Se. (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).
Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement-even when the non-movant was proceeding Pro Se .
Among other things, Local Rule 56.1 (previously Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.
Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).
Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
B. Standard Governing Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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, 1854-55 (2016) (“The [PLRA] mandates that an inmate exhaust ‘such administrative remedies as are available' before bringing suit to challenge prison conditions.”). “[T]he PLRA's exhaustion requirement applies to 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).
The PLRA requires “proper exhaustion,” which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. 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'” (quoting Woodford, 548 U.S. at 90)). In New York State prisons, DOCCS has a well-established three-step incarcerated grievance program (“IGP”), in which, (1) the inmate must file a grievance with the Inmate Grievance Resolution Committee (“IGRC”) within twenty-one days of the alleged occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the superintendent of the facility within seven days after receipt of the IGRC's response, and (3) the inmate must then appeal an adverse decision by the superintendent to the CORC within seven days after receipt of the superintendent's response. 7 N.Y.C.R.R. § 701.5; McGee v. McGready, 16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018).
“[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance.” Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021); see 7 N.Y.C.R.R. § 701.8. Under the expedited procedure, the Superintendent has twenty-five days to respond to the grievance. 7 N.Y.C.R.R. § 701.8. If the Superintendent fails to respond within twenty-five days, the inmate may appeal directly to CORC. Id. § 701.8(g). If the Superintendent does respond, the inmate has seven days from receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g). Whether or not the Superintendent timely responds, the procedure to appeal a determination of the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the inmate grievance clerk.” Id. § 701.8(g)-(h). Inmates who have been transferred to a different facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2).
The procedure to appeal to CORC under the normal, non-expedited procedures is the same. 7 N.Y.C.R.R. § 701.5(d)(1)(i).
“CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the inmate does not receive such confirmation within forty-five days, he ‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.'” Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022) (quoting 7 N.Y.C.R.R. § 701.5(d)(3)(i)). The IGP requires CORC to respond to an appeal within thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii). If CORC has received an appeal and fails to rule within those thirty days, the inmate is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020).
While the PLRA mandates exhaustion of 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 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. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that “the three circumstances discussed in Ross do not appear to be exhaustive[.]” The illustrations of unavailability in Ross nonetheless guide the Court's inquiry. Mena v. City of New York, 13-CV-2430, 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 a prisoner 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. Id.
III. ANALYSIS
After carefully considering the matter, for the reasons set forth in Defendant's memorandum of law (Dkt. No. 32, Attach. 2), I recommend that the Court grant Defendant's motion for summary judgment. The following is intended to supplement-not supplant-those reasons.
The alleged events at issue in this matter occurred on April 8, 2019. (See generally Dkt. No. 1.) The deadline for Plaintiff to file a grievance with Clinton's IGRC expired on April 29, 2019. 7 N.Y.C.R.R. § 701.5(a). Plaintiff was housed at Clinton from August 3, 2017, until May 3, 2019. (Dkt. No. 32, Attach. 3 at ¶ 22; Dkt. No. 32, Attach. 3 at 8.) Thus, Plaintiff was housed at Clinton for the entire duration of time that he was eligible to file a grievance regarding the alleged incident with Defendant on April 8, 2019. Plaintiff did not file a grievance regarding the alleged events at issue in this matter. (Dkt. No. 32, Attach. 4 at ¶ 16.)
Moreover, Plaintiff did not file a grievance appeal to CORC regarding the alleged events at issue in this matter. (Dkt. No. 32, Attach. 3 at ¶¶ 25, 26; Dkt. No. 32, Attach. 3 at 11.)
As a result, I recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed for failure to exhaust his administrative remedies before commencing this action.
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendant's motion for summary judgement (Dkt. No. 32) be GRANTED ; and it is further respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE ; and it is further respectfully
ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order 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).