Opinion
9:20-cv-00556 (BKS/TWD)
10-26-2020
EDWIN RODRIGUEZ, Plaintiff, v. CORRECTION OFFICER JJ LANDRY, et al., Defendants.
APPEARANCES: EDWIN RODRIGUEZ Plaintiff, pro se 04-A-3404 Riverview Correctional Facility PO Box 247 Ogdensburg, NY 13669 HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 KONSTANDINOS D. LERIS, ESQ. Assistant Attorney General
| APPEARANCES: | OF COUNSEL: |
| EDWIN RODRIGUEZPlaintiff, pro se04-A-3404Riverview Correctional FacilityPO Box 247Ogdensburg, NY 13669 | |
|---|---|
| HON. LETITIA JAMESAttorney General for the State of New YorkCounsel for DefendantsThe CapitolAlbany, NY 12224 | KONSTANDINOS D. LERIS, ESQ.Assistant Attorney General |
Plaintiff commenced this pro se action pursuant to 42 U.S.C. § 1983, asserting claims arising out of his confinement in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). (Dkt. No. 1.) Presently before the Court is Defendants' motion for summary judgment seeking dismissal of the complaint. (Dkt. No. 10.) Plaintiff opposes the motion. (Dkt. No. 13.) For the reasons which follow, the Court recommends that Defendants' motion be granted.
I. BACKGROUND
On May 20, 2020, Edwin Rodriguez ("Plaintiff") commenced this action alleging violations of his constitutional rights. (Dkt. No. 1.) The complaint was initially reviewed by the Honorable Brenda K. Sannes, United States District Judge, pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. (Dkt. No. 4.) Following that review, only Plaintiff's Eighth Amendment excessive force and failure to protect claims against Correction Officer ("C.O.") JJ Landry and C.O. White ("Defendants") remain in this action. Id. at 18. Specifically, Plaintiff alleges that on September 7, 2019, while incarcerated at the Bare Hill Correctional Facility ("Bare Hill"), he was assaulted by Defendants (Dkt. No. 1 at 10.)
Page references to documents identified by docket number are to the page number assigned by the Court's CM/ECF electronic docket system. 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.
Defendants now move for summary judgment, in lieu of an answer, pursuant to Rule 56 of the Federal Rules of Civil Procedure based on Plaintiff's alleged failure to exhaust administrative remedies. (Dkt. No. 10.) Plaintiff has responded to the motion and Defendants submitted a reply. (Dkt. Nos. 13, 14.) Defendants' motion has been referred for a report-recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
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 moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law" and 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.
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 v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). 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).
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 . . . 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 (2016). 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). "[E]xhaustion is mandatory under the PLRA and . . . 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").
Exhaustion is an affirmative defense. Jones, 549 U.S. at 216. Thus, the defendants "bear the initial burden of establishing, by pointing to 'legally sufficient source[s]' such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute." Hubbs v. Suffolk Cty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (quoting Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003)). "[O]nce a defendant has adduced reliable evidence that administrative remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those remedies, the plaintiff must then 'counter' the defendant's assertion by showing exhaustion [or] unavailability" under Ross. Ferrer v. Racette, No. 14-cv-1370 (GTS/DJS), 2017 WL 6459525, at *12 (N.D.N.Y. Dec. 18, 2017) (citation omitted). In Ross, the Supreme Court explained:
[t]he exhaustion requirement hinges on the "availabl[ity]" of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones. . . . [A]n 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 1858-59 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)) (citations omitted).
The Ross Court highlighted "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 136 S. Ct. at 1859). First, "an administrative remedy may be unavailable when 'it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.'" Id. (quoting Ross, 136 S. Ct. at 1859). Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. at 123-24 (quoting Ross, 136 S. Ct. at 1859). Third, an administrative remedy may be unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 124 (quoting Ross, 136 S. Ct. at 1860).
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)).
B. DOCCS Inmate Grievance Program
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. 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. A grievance alleging staff misconduct, once it is given a number and recorded by the IGP clerk, must be sent directly to the superintendent. Id. 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 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).
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.").
An exception to the twenty-one day time limit for filing a grievance may be granted if there are mitigating circumstances, which are provided for in 7 N.Y.C.R.R. § 701.6(g). (Dkt. No. 10-6 at ¶ 3.) Any request for an extension of time to file a grievance must be submitted in writing to the grievance clerk at the facility where the inmate is housed within forty-five days of the alleged occurrence. See 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a). Grievances must be filed at the facility where the inmate is housed even if the grievance pertains to another facility. See id. § 701.5(a)(1). "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).
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)).
C. Analysis
Plaintiff asserts Eighth Amendment excessive force and failure to protect claims against C.O. White and C.O. Landry related to an alleged incident occurring on Septmeber 7, 2019, at Bare Hill. (Dkt. No. 1 at 10.) Defendants argue Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 10.) The Court agrees with Defendants.
In support of their motion, Defendants submit declarations from Cheryl Lamore, Megan Striano, and Laura Looker, the IGP Supervisors at Bare Hill, Ulster Correctional Facility ("Ulster"), and Gouverneur Correctional Facility ("Gouverneur"), respectively. (Dkt. Nos. 10-2, 10-3, 10-4.) Defendants also submit a declaration from Rachel Sequin, the IGP Assistant Director for DOCCS. (Dkt. No. 10-5.)
Plaintiff was incarcerated at Bare Hill from February 21, 2019, to October 7, 2019. (Dkt. No. 10-6 at ¶ 9.) In March 2019, Plaintiff attended an orientation program at Bare Hill that included instructions on how to use the IGP. Id. at ¶ 14. On October 7, 2019, Plaintiff was transferred from Bare Hill to Gouverneur. Id. at ¶ 10. Plaintiff was temporarily housed in-transit at Ulster from October 7, 2019, through October 8, 2019. Id. at ¶ 11. Plaintiff arrived at Gouverneur on October 8, 2019, where he remained until December 12, 2019. Id. at ¶ 12. Plaintiff is presently confined at Riverview Correctional Facility and commenced this action on May 20, 2020. (Dkt. No. 1.)
Defendants' submissions demonstrate that during all relevant times Bare Hill, Ulster, and Gouverneur had fully functioning IGP available to inmates. (Dkt. No. 10-6 at ¶ 13.) Plaintiff's excessive force and failure to protect claims against Defendants are the proper subject for a grievance under the IGP. Id. at ¶ 8. Defendants' submissions propound that Plaintiff did not file a grievance—or submit a written request to file a late grievance—at Bare Hill, Ulster, or Gouverneur against Defendants relating to the alleged September 7, 2019, assault. Id. at ¶¶ 15-20. The deadline for Plaintiff to file a grievance relating to his claims in this action was September 28, 2019. Id. at ¶ 21. The deadline for Plaintiff to submit a written request for an extension of time to file a late grievance relating to his claims in this action was October 22, 2019. Id. at ¶ 22. Plaintiff did not appeal the denial of any grievance to CORC related to his Eighth Amendment claims against Defendants. Id. at ¶ 23.
With these submissions, the Court finds Defendants have met their burden demonstrating Plaintiff failed to exhaust his administrative remedies. See Encarnaciton v. Spinner, No. 9:15-cv-01411 (BKS/ML), 2020 WL 2838559, at *14 (N.D.N.Y. June 1, 2020) (finding the defendants satisfied burden by submitting declaration from grievance coordinators stating the plaintiff never filed a grievance for the incident at issue); Bennett v. Onua, No. 09-cv-7227, 2010 WL 2159199, at *3 (S.D.N.Y. May 26, 2010) (finding the defendants "adequately supported the affirmative defense of failure to exhaust" where "a search of the grievance log records . . . did not reveal any record of a grievance" filed by the plaintiff); see also Torres v. New York State Dep't of Corr. Servs., 166 F. App'x 510, 512 (2d Cir. 2006) (summary order) ("The district court properly found that [the plaintiff] had failed to exhaust his administrative remedies because he had not filed grievances with respect to the claims alleged in his complaint.").
The burden thus shifts to Plaintiff to establish administrative remedies were unavailable to him under Ross. In his verified complaint, Plaintiff alleges that he filed a grievance, which was denied, and that he appealed the denial of his grievance but never received a response. (Dkt. No. 1 at 11.) In his opposition submission, which is not verified, Plaintiff states:
A verified complaint, as Plaintiff has filed in this case, is treated as an affidavit. See 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).
The reason why no grievance was filed was due to the fact that I felt that there would be retaliation against me if I did file such documents. I am asking the Court to take that into consideration.(Dkt. No. 13 at 1.)
Given the record and considering the evidence in the light most favorable to Plaintiff, the Court 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.
As an initial matter, Plaintiff's verified statement that he filed and appealed a grievance but never received a response is insufficient to overcome the evidence Defendants have presented relative to exhaustion. See Khudan v. Lee, No. 12-CV-8147 (RJS), 2016 WL 4735364, at *5 (S.D.N.Y. Sept. 8, 2016) (holding inmate's testimony that he filed grievances was not enough to create issue of fact regarding exhaustion); Nunez v. Goord, 172 F. Supp. 2d 417, 428-29 (S.D.N.Y. 2001) (inmate's unsupported claims that his grievances were lost at the Grievance Committee Office or destroyed by officers thereby rendering his attempts to grieve futile, fails to excuse inmate from fully grieving remedies); see, e.g., Gibbs v. Gadway, No. 19-CV-0281 (GTS/DJS), 2019 WL 5191506, at *5 (N.D.N.Y. Oct. 15, 2019) (finding conclusory claim unsupported by copies of grievances allegedly filed subject to dismissal), report-recommendation adopted by, 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020); Bradshaw v. Locke, No. 9:19-CV-428 (BKS/TWD), 2020 WL 5351315, at *7 (N.D.N.Y. Aug. 5, 2020) (finding the plaintiff's self-serving statements that he filed grievances but never received a response insufficient to defeat summary judgment where the defendants submitted evidence that the plaintiff never filed a grievance), report recommendation adopted by 2020 WL 5292040 (N.D.N.Y. Sept. 4, 2020). Moreover, as Defendants point out, Plaintiff essentially concedes in his opposition submission that he did not file a grievance with respect to his claims in this action. (See generally Dkt. Nos. 13, 14.)
Here, there is no evidence in the record showing the IGP "operate[d] as a simple dead end" to Plaintiff, nor is there any evidence that the IGP was unavailable due to an "opaque" administrative scheme. See Ross, 136 S. Ct. at 1859-60. The only Ross factor that could potentially be raised is unavailability due to prison administrators thwarting Plaintiff from "taking advance of a grievance process through machination, misrepresentation, or intimidation." See Ross, 136 S. Ct. at 1859-60, n.3.
In his opposition submission, Plaintiff urges the Court to excuse his failure to exhaust due to his fear of retaliation. (Dkt. No. 13 at 1.) However, as pointed out by Defendants in their reply submission (Dkt. No. 14 at 1), a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies under Ross. See Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016 WL 4411338, at *5 (N.D.N.Y. July 5, 2016); Saeli v. Chautauqua Cty., N.Y., No. 17-CV-6221 (CJS), 2020 WL 3547049, at *5 (W.D.N.Y. June 30, 2020) ("A general fear of retaliation is not an exception to the PLRA's exhaustion requirement."); see also Harrison v. Stallone, No. 9:06-CV-902, 2007 WL 2789473, at *5 (N.D.N.Y. Sept. 24, 2007) ("It has been held that a 'general fear' of retaliation is not sufficient to excuse the exhaustion requirement[.] If an inmate could simply state that he feared retaliation, there would be no point in having a grievance procedure."). Here, Plaintiff fails to allege how any individual prevented him from filing a grievance regariding regarding the alleged September 7, 2019, assault at Bare Hill. (See generally Dkt. Nos. 1, 13.) Thus, the Court finds Plaintiff has failed to raise a material issue of fact on the question of availability of the IGP under Ross.
Based upon the foregoing, the Court finds Plaintiff did not exhaust his administrative remedies as the PLRA requires and, therefore, recommends granting Defendants' motion for summary judgment.
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, dismissal with prejudice is appropriate 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 filed the grievance regarding the alleged Septmeber 7, 2019, assault. As Plaintiff's failure to exhaust his administrative remedies is incurable at this point, the Court recommends dismissing Plaintiff's complaint 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).
WHEREFORE, based on the findings set forth above, it is hereby
RECOMMENDED that Defendants' motion for summary judgment on exhaustion grounds (Dkt. No. 10) be GRANTED and that Plaintiff's complaint be DISMISSED WITH 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 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: October 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