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finding it was error for district court not to consider plaintiff's arguments that failure to exhaust should be excused under Hemphill
Summary of this case from Harrison v. GoordOpinion
No. 07-1268-cv.
February 2, 2009.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Feuerstein,J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is VACATED insofar as it granted summary judgment to defendants-appellees on the basis of plaintiff's failures to exhaust her administrative remedies, and REMANDED for a determination of whether her failures to exhaust should be excused.
APPEARING FOR APPELLANT: ANNETTE VOGELFANG, Pro Se, Bedford, N.Y.
APPEARING FOR APPELLEES: ARLENE S. ZWILLING, Assistant County Attorney, for Christine Malafi, Suffolk County Attorney, Hauppauge, N.Y.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. GUIDO CALABRESI, HON. ROBERT D. SACK, Circuit Judges.
Plaintiff-appellant Annette Vogelfang appeals pro se from a grant of summary judgment entered by the district court on March 9, 2007 in favor of defendants-appellees. The district court found that Vogelfang failed to exhaust her administrative remedies, as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a). We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
Vogelfang has been incarcerated in the Suffolk County Correctional Facility ("SCCF") for at least two periods, including the periods from July 31, 2001 to October 2, 2001, and from December 17, 2002 to April 30, 2003. In April 2004, she filed a pro se complaint against "Riverhead County Jail Officers[,] Sgt. Thomas Hennessey[,] . . . Sgt. Aitken, Sgt. Turpin[,] Lt. Nolan[,] Officer Kris Kiernan" and "at least" six other "John and Jane Doe" officers, in both their official and individual capacities. Vogelfang alleged that while she was incarcerated two incidents occurred: on September 5, 2001, an officer sexually molested her and, along with five other officers, hit her repeatedly; on April 27, 2003, after she complained about not having soap in the shower, officers came into her cell and beat her for "hours".
After discovery, the defendants-appellees moved for summary judgment, arguing that as to both alleged incidents Vogelfang failed to exhaust administrative remedies. They attached to their motion an affidavit from David Geslak, Executive Officer of the Grievance Evaluation Unit at SCCF, the unit responsible for administrative review of inmate grievances and maintaining records of grievance filings and procedures. Geslak affirmed that SCCF had an inmate grievance program, that Vogelfang had received copies of the rules both times she entered into the SCCF, and that there was no record of any grievance filed by Vogelfang with respect to either incident.
In her opposition, Vogelfang conceded that she never filed a grievance with respect to the September 5, 2001 incident, but she said she had not done so because she was "locked in the cell and unable to even get to a telephone". With respect to the April 27, 2003 incident, Vogelfang made the following contention. Two days after the incident, she handed a grievance form to one "Sgt. Katona" (since identified as Sgt. Donna Ketonen), who was then in charge of the grievance program. The next day, the third after the attack, she was transferred to another prison. From there, she attempted to send at least one additional letter to Sgt. Katonen requesting an update on her previously filed grievance, but her letter was returned to sender, and she never heard from Sgt. Ketonen. Although Vogelfang submitted no copy of the alleged grievance form, she did cite to a prison log entry showing that she was given a black pen on April 29, 2003, which, she argued, she used to write the grievance. She also submitted a copy of the letter she attempted to send to Sgt. Ketonen from her new facility, but which was returned to sender (perhaps because it was addressed to "Riverhead County Jail", which is not the name of the SCCF).
The district court granted the defendants-appellees' motion for summary judgment, reciting that Vogelfang "concedes that she never filed any written grievances concerning the alleged sexual assault and beating of September 5, 2001, or the purported assault of April 27, 2003." The district court therefore ruled that she failed to exhaust her administrative remedies under the PLRA. The district court did not address Vogelfang's argument that she submitted a grievance form to Sgt. Ketonen, or more generally whether her failures to exhaust her administrative remedies could be excused under the standards set forth inHemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) and Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004).
The district court erred in noting Vogelfang's concession with respect to the April 27, 2003 incident. Moreover, the district court did not consider whether her failure (or failures) to exhaust administrative remedies should be excused under theHemphill line of cases. Hemphill held that where "a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies," a three-part inquiry should guide a district court's analysis of whether a plaintiff has met the requirements of § 1997e(a). 380 F.3d at 686-91. First, a district court must determine whether any administrative remedies were "available" for the purposes of § 1997e(a). Id. at 686-88. Second, a court must consider whether the defendant(s) should be estopped from asserting the defense of failure to exhaust for inhibiting the ability of the plaintiff to pursue administrative remedies.Id. at 688-89. Third, if administrative remedies were available and the defendant(s) did not forfeit the defense of failure to exhaust, a court must consider whether "special circumstances" excuse the plaintiff's failure to pursue or exhaust administrative remedies. Id. at 689-91;see also Brownell v. Krom, 446 F.3d 305, 312-13 (2d Cir. 2006) (finding that "special circumstances" justified the plaintiff's failure to exhaust).
It was error for the district court not to consider Vogelfang's arguments, with respect to both the September 5, 2001 incident and the April 27, 2003 that her failures to exhaust should be excused. We decline to consider them here in the first instance.
With respect to the April 27, 2003 incident, it may matter that the SCCF Inmate Rules Regulations and Admission Kit, which informs SCCF prisoners of the grievance rules, did not specify that prisoners had a duty to follow-up if they received no response to a filed grievance.
Accordingly, the judgment of the district court is VACATED insofar as it granted summary judgment to defendants on the basis of plaintiff's failures to exhaust her administrative remedies and REMANDED to the district court for a determination of whether Vogelfang's failures to exhaust should be excused.