Opinion
9:09-CV-1055 (LEK/TWD)
11-19-2014
JOAQUIN R. WINFIELD, Plaintiff, v. WALTER BISHOP and NANCY MAROCCO, Defendants.
APPEARANCES: JOAQUIN R. WINFIELD, 97-A-5399 97-A-5399 Plaintiff pro se Clinton Correctional Facility P.O. Box 2002 Dannemora, NY 12929 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: RICHARD LOMBARDO, ESQ. Assistant Attorney General
APPEARANCES: JOAQUIN R. WINFIELD, 97-A-5399
97-A-5399
Plaintiff pro se
Clinton Correctional Facility
P.O. Box 2002
Dannemora, NY 12929
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
OF COUNSEL: RICHARD LOMBARDO, ESQ.
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION and ORDER
I. INTRODUCTION
In this pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, Plaintiff Joaquin R. Winfield alleges that Defendant Walter Bishop subjected him to excessive force. (Dkt. No. 38.) Plaintiff pursued the action pro se through discovery. Defendant Bishop's motion for summary judgment was denied, but the Court set the matter for an evidentiary hearing regarding the issue of exhaustion of administrative remedies. (Dkt. Nos. 92 and 93.) Pro bono counsel for Plaintiff was assigned (Dkt. No. 100), and an evidentiary hearing on exhaustion of administrative remedies was scheduled. (Text Minute Entry and Text Notice 12/20/2013; Dkt. No. 104.) Plaintiff objected to counsel assignment (Dkt. No. 105), and new counsel was thereafter assigned. (Dkt. Nos. 112 and 119.) The evidentiary hearing was rescheduled. (Text Notice 5/2/2014.) Plaintiff's second assigned pro bono counsel moved to be relieved as counsel due to "irreconcilable views on the appropriate legal strategy for the hearing," and Plaintiff filed a letter indicating no opposition to that motion. (Dkt. Nos. 126 and 131.) Plaintiff's second assigned pro bono counsel was relieved and Plaintiff appeared pro se at the evidentiary hearing. (Dkt. Nos. 129, 132, and 143.)
This defendant was identified in the original complaint as "John Doe Bishop." Pursuant to a request from Defendant, the Clerk listed his correct name on the docket. (Dkt. No. 18.) I will refer to him throughout this action as "Walter Bishop" or "Bishop." The action was dismissed against Defendant Nancy Marocco on summary judgment. (Dkt. Nos. 92 and 93.)
The Court previously determined that administrative remedies were available to Plaintiff, and that Plaintiff did not properly exhaust those remedies. (Dkt. No. 92 at 7-15; Dkt. No. 93.) The Court also previously determined that Defendant was not estopped from asserting the affirmative defense of failure to exhaust administrative remedies. Id. at 10; Dkt. No. 93. Therefore, an evidentiary hearing was held on June 20, 2014, on the limited issue of whether special circumstances existed to excuse Plaintiff's failure to exhaust administrative remedies. (Dkt. No. 143.) Based upon the evidence presented at the hearing, the Court finds that Plaintiff has not proved special circumstances necessary to provide a basis to excuse his failure to exhaust such remedies. Therefore, the Court recommends that Plaintiff's Amended Complaint (Dkt. No. 38) be dismissed in its entirety on this procedural basis, with prejudice, and without addressing the merits of the excessive force claim.
II. BACKGROUND
Plaintiff alleges that Defendant Bishop, a correction officer, was assigned to escort Plaintiff to and from a disciplinary hearing at Great Meadow Correctional Facility ("Great Meadow") on December 5, 2006. (Dkt. No. 38 at 4.) During the return trip from the hearing to Plaintiff's cell, a series of inmates greeted Plaintiff. Id. at 5. Defendant Bishop tugged at the chain restraint on Plaintiff's back and told him not to socialize with the other inmates. Id. When yet another inmate greeted Plaintiff, Plaintiff smiled and nodded. Id. at 6. Defendant Bishop tugged the chain restraint again and Plaintiff told him to "take it easy, Shorty." Id. Defendant Bishop replied, "I've got your . . . Shorty!" Id. Defendant Bishop then said, "Don't you spit!" and bashed Plaintiff's head against a wall. Id. Defendant Bishop put Plaintiff back in his cell without further incident. Id. at 7. Plaintiff never filed a written grievance with the Inmate Grievance Review Committee ("IRGC") regarding the alleged use of excessive force. (Dkt. No. 77-1 ¶¶ 12-13; Dkt. No. 77-8 at 107:14-18.)
III. HEARING TESTIMONY AND EVIDENCE
At the evidentiary hearing, the Court heard testimony from the Plaintiff, and DOCCS employees Sgt. Vincent Samolis, produced by Court order at the Plaintiff's request (see Dkt. No. 129), William Abrunzo, Chad Powell, and Kevin Reichelt.
A. Exhibits Received into Evidence
The Court received into evidence the following exhibits introduced by Plaintiff: P-1. Memo to Lt. Smith from Sgt. Hendry dated 12/7/06; P-2. Memo to Lt. Smith from Sgt. Vedder dated 12/6/06; P-3. Memo to Sgt. Vedder from C.O. Bishop dated 12/6/06; P-4. Action Tab to Capt. Eastman from P. VanGuilder, DSS dated "12/12/___"; P-5. Letter from Plaintiff to Richard Roy dated 12/7/06.
The Court received into evidence the following exhibits introduced by Defendant: D-A. DOCCS Directive 4040 dated 7/12/06 with Revision Notice date of 2/23/07; D-B. Inspector General's Investigation Report of alleged incident; D-C. Letter from Plaintiff dated 6/16/08 about filing a grievance; D-D. Memo from Karen LaPolt to Plaintiff dated 7/29/08; D-E. List of grievances filed by Plaintiff at Elmira Correctional Facility ("Elmira"); D-F. List of all grievance appeals filed by Plaintiff; D-H. Letter from Plaintiff to Superintendent LaClaire of Great Meadow dated 12/6/2006; D-I. Letter from Plaintiff to Central Office Review Committee ("CORC") dated 7/16/08; and D-J. Letter from CORC to Plaintiff dated 3/25/09.
The testimony and evidence at the hearing focused upon the issue of whether special circumstances existed to excuse Plaintiff's failure to properly exhaust his administrative remedies.
B. Summary of Testimony
1. Plaintiff
Plaintiff testified that he was in full compliance with DOCCS Directive 4040 Section 701.8(a) (Exhibit D-A) because he verbally reported the December 5, 2006, incident of alleged harassment that is the subject of the Amended Complaint to the Defendant's supervisor the day after it happened. (Dkt. No. 143 ("T") at 23-24.) Plaintiff believed that a verbal complaint to the Defendant's immediate supervisor, Sgt. Vedder, shows that he complied with the Directive. (T. at 38.) His verbal complaint to the supervisor made on December 6, 2006, generated interdepartmental memos about the claimed harassment. (T. at 38, 51-52; Exhibits P-1 through P-4.) Once he made the verbal complaint to Sgt. Vedder, Plaintiff believed he did not have to file a grievance form. (T. at 36, 49.) Plaintiff also sent a letter about the alleged harassment and excessive force to Superintendent LaClaire at Great Meadow on December 6, 2006. (T. at 60-61; Exhibit D-H.) In addition, he made a written complaint to the Inspector General's ("IG") Office. (T. at 31; see also Exhibits P-5, D-B.) He was interviewed by an IG office member, but never heard back from that office. (T. at 33.) He never heard back from Sgt. Vedder after the verbal complaint was made. (T. at 72.)
It is unclear whether Plaintiff ever heard back from Superintendent LaClaire as no evidence was offered by either party in that regard.
Plaintiff did not read Directive 4040 until sometime in 2008, when prompted by the lack of a response to his December 6, 2006, verbal complaint. (T. at 65.) Thereafter, on June 16, 2008, while Plaintiff was housed at Elmira, he wrote a letter to Great Meadow because he had not heard back from anyone about the verbal complaint he made to Sgt. Vedder. (T. at 49-50, 55, 65; Exhibit D-C.) Since Plaintiff received no response about the verbal complaint, he thought he had to file a form because he thought he did something wrong. (T. at 51-52.) Before June 16, 2008, he did not file a grievance about the December 5, 2006, incident because he believed he had already notified the authorities and "it would be an exercise of futility." (T. at 57-58.) He received a memo letter dated July 29, 2008, from the Deputy Superintendent of Programs at Great Meadow which noted that the records of Great Meadow did not indicate that he filed any grievances there in 2006-2007, and he was told it was too late to file a grievance. (T. at 73-74; Exhibit D-D.)
However, Plaintiff was advised by another inmate that he was in compliance with Directive 4040 because he had verbally notified the Defendant's immediate supervisor about the alleged assault. (T. at 63-64.) On the advice of a different inmate, Plaintiff then wrote a letter dated July 16, 2008, to CORC about the alleged incident of harassment and excessive force because he had not received a response to his verbal complaint. (T. at 72; Exhibit D-I.) In response, Plaintiff received a letter from CORC dated March 25, 2009, which indicated his grievance was untimely. (T. at 75; Exhibit D-J.)
As an inmate, Plaintiff had a somewhat good understanding of the grievance process in December of 2006 when the alleged incident occurred. (T. at 70.) Plaintiff ultimately acknowledged that, according to Directive 4040, an inmate does not have to make a verbal complaint about harassment in order to file a written grievance. (T. at 78; Exhibit D-A at Section 701.8(a).)
2. Sgt. Vincent Samolis
Sgt. Samolis testified he was the grievance sergeant at the Clinton Correctional Facility for a period of six (6) months. (T. at 84.) If an inmate alleges he is being harassed, the inmate fills out a form and submits it. (T. at 85.) The inmate can also complain to the officer's immediate supervisor, or to anyone else to whom the inmate wants to complain. (T. at 87.) In order to properly follow the grievance process, an inmate fills out a form or any piece of paper to complain about what happened; it is assigned a grievance number; it is investigated and brought to a committee; there is a response and the inmate can appeal the response if he is not happy with it. (T. at 88.) An inmate has to file a written form for it to be a grievance even if he has made a verbal complaint to the offending officer's supervisor. (T. at 89.) Directive 4040 at Section 701.8 does not require that a verbal complaint about harassment be made before an inmate can file a grievance about it. (T. at 92.) A written grievance is still required even if the inmate makes a verbal complaint. (T. at 92, 96.) An inmate must fill out a form or write something on a piece of paper and submit it to the grievance department in order to file a grievance. (T. at 93, 97.)
3. William Abrunzo
Mr. Abrunzo has been the inmate grievance supervisor at Elmira for four years and has worked for DOCCS for almost ten years. (T. at 101-102.) He confirmed that inmate grievances must be in writing, and that a verbal complaint of harassment is not a grievance within the meaning of Directive 4040. (T. at 103-04, 115, 119.) Directive 4040 Section 701.5 requires a grievance to be in writing. (T. at 122-23; Exhibit D-A.) He also confirmed the grievance process as explained by Sgt. Samolis. (T. at 105.) A verbal complaint of battery can be made to a supervisor, but that would not constitute a grievance being filed. (T. at 114.) Mr. Abrunzo reviewed a grievance log containing a list of grievances filed by Plaintiff after he was transferred to Elmira on February 6, 2007. (T. at 111; Exhibit D-E.) None of the grievances involved the incident in December of 2006 at Great Meadow. (T. at 111-112; Exhibit D-E.)
4. Chad Powell
Mr. Powell has been employed by DOCCS for eighteen years, and at the time of the hearing had worked as the assistant records access officer for nine years. (T. at 128-29.) The CORC reviews appeals of grievances. (T. at 129.) CORC maintains records of all grievance appeals from all DOCCS facilities. (T. at 130.) When CORC receives an appeal, it is logged and put into a DOCCS computer database. Id. Mr. Powell identified a list of appeals to CORC by Plaintiff. (T. at 131-32; Exhibit D-F.) The list did not contain any appeals involving an incident of harassment or excessive force occurring in December of 2006. (T. at 132; Exhibit D-F.)
5. Kevin Reichelt
Mr. Reichelt has worked for DOCCS for approximately twenty years. (T. at 141.) At the time of the hearing, he was a correction officer, but he previously worked from 2001 to 2009 as an investigator at the Inspector General's ("IG") Office. Id. The IG's office investigates complaints from inmates, inmates' families, fellow employees, and anonymous complaints. (T. at 142.) If a complaint is initiated by an inmate, the inmate does not learn the outcome regardless of whether or not the complaint is substantiated. (T. at 143.) An inmate grievance does not have anything to do with an IG investigation of a complaint, nor does CORC have authority to review determinations made by the IG's Office. (T. at 144.)
In January of 2007, the IG's Office opened a file in response to a letter received from Plaintiff alleging Defendant used excessive force on him. (T. at 145-46, 157-58; Exhibits D-B and P-5.) Mr. Reichelt investigated the complaint and found it unsubstantiated. (T. at 147; Exhibit D-B.) The IGRC and the IG's Office are completely different from one other, and if an inmate files a grievance the facility does not need to notify the IG's Office. (T. at 143-44, 158-59.)
IV. APPLICABLE LEGAL STANDARDS
A. The Prison Litigation Reform Act of 1996
As succinctly outlined by my colleague, Magistrate Judge David E. Peebles:
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that no 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. The 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. An inmate plaintiff's complaint is subject to dismissal if the evidence establishes that he or she failed to properly exhaust available remedies prior to commencing the action . . . . Proper exhaustion requires a plaintiff to procedurally exhaust his or her claims by complying with the system's critical procedural rules. Complete exhaustion has not occurred, for purposes of the PLRA, until all of the steps of that available process have been taken.Bailey v. Fortier, 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *4, 2012 U.S. Dist. LEXIS 185178, at *11-13 (N.D.N.Y. Oct. 4, 2012) (citations and punctuation omitted).
The Court will provide Plaintiff with copies of all unpublished decisions cited in this Order in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
As noted, "[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). In order 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 particular institution in which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York State prisons, DOCCS has a well-established three-step inmate grievance program. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013).
Generally, the DOCCS IGP involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. at § 701.5(a). A representative of the facility's IGRC has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. at 701.5(b)(1). If there is no informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (id. at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).
During the relevant time period involved in this case in 2006, grievances were to be filed within fourteen days of an occurrence. See Ex. D-A.
Second, a grievant may appeal the IGRC's decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at 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. at § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to CORC for a decision under the process applicable to the third step. Id. at 701.5(c)(3)(I).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at 701.5(d)(3)(ii).
An inmate may seek an extension of the time limits in writing at any of the steps, but such a request must be made within forty-five days of the incident being grieved or the decision being appealed. Id. at 701.6(g). If an inmate believes that an extension was wrongly denied, he may file a separate grievance protesting the denial. Id.
If a prisoner has failed to properly follow each of the applicable steps prior to commencing litigation, he has failed to exhaust his administrative remedies. Woodford, 548 U.S. at 93.
B. Hemphill v. State of New York
Because failure to exhaust is an affirmative defense, defendants bear the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4, 2010 U.S. Dist. LEXIS 32014, at *16 (N.D.N.Y. Mar. 31, 2010); Bailey, 2012 WL 6935254, at *6 (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence); see also Andrews v. Whitman, No. 06-2447-LAB (NLS), 2009 WL 857604, at *6, 2009 U.S. Dist. LEXIS 30017, at *16 (S.D. Cal. Mar. 27, 2009) (defendant must prove non-exhaustion of administrative remedies by a preponderance of the evidence).
If a defendant meets that burden, however, a plaintiff's failure to exhaust does not end the review. "[O]nce a defendant has adduced reliable evidence that administrative remedies were available to Plaintiff and that Plaintiff nevertheless failed to exhaust those administrative remedies, Plaintiff must then 'counter' Defendants' assertion by showing exhaustion unavailability, estoppel, or 'special circumstances' [under Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004)]." Murray, 2010 WL 1235591, at *4. Hemphill sets forth a three- part inquiry for district courts. First, courts must determine if administrative remedies were in fact available to plaintiff. Second, courts must determine if the defendants are estopped from presenting non-exhaustion as an affirmative defense because they prevented the plaintiff inmate from exhausting his administrative remedies by "'beating him, threatening him, denying him grievance forms and writing implements, and transferring him to another correctional facility.'" Hemphill, 380 F.3d at 688 (citing Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir. 2004)). Third, the Second Circuit explained in Hemphill that there are certain "special circumstances" in which even though administrative remedies may have been available and the defendants may not be estopped from asserting a non-exhaustion defense, the inmate's failure to exhaust may be justified. Hemphill, 380 F.3d at 686. "Special circumstances" have been found to include an incorrect but reasonable interpretation of DOCCS' regulations or failing to file a grievance in the precise manner prescribed by DOCCS as a result of threats. See, e.g., Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) (failure to exhaust was justified where plaintiff inmate's interpretation of regulations was reasonable and prison official threatened inmate).
Subsequent to Hemphill, the Supreme Court decided Woodford v. Ngo, 548 U.S. 81 (2006). The question addressed in Woodford was whether "a prisoner can satisfy the [PLRA's] exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84. The Supreme Court resolved the question in the negative, explaining that the PLRA requires "proper exhaustion" "using all steps that the agency holds out, and doing so properly (so that the agency addressed the issues on the merits)." Id. at 90 (citation omitted). Although the Second Circuit has acknowledged that there is some question as to whether the estoppel and special circumstances inquiries in Hemphill survived Woodford, the Court has as yet found it unnecessary to decide the issue and appears to still be considering all three Hemphill inquiries in exhaustion cases. See, e.g., Amador v. Andrews, 655 F.3d 89, 102-03 (2d Cir. 2011) (finding it unnecessary to decide whether Hemphill is still good law because plaintiff had failed to establish that defendants were estopped from raising non-exhaustion as an affirmative defense).
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V. ANALYSIS
A. Plaintiff Did Not Establish Special Circumstances Justifying His Failure to Exhaust Administrative Remedies
The Court previously determined that administrative remedies were available to Plaintiff, and that Plaintiff did not properly exhaust those remedies. (Dkt. No. 92 at 7-15; Dkt. No. 93.) The Court also previously determined that Defendant was not estopped from asserting the affirmative defense of failure to exhaust administrative remedies. Id. at 10; Dkt. No. 93. Therefore, the Court turns to the limited issue of whether special circumstances existed to excuse Plaintiff's failure to exhaust administrative remedies.
1. Plaintiff's Interpretation of Directive 4040
At the evidentiary hearing held on June 20, 2014, and in his closing argument submissions, Plaintiff asserted that he believed a verbal complaint to an employee's direct supervisor constituted a grievance under Section 701.8(a) of Directive 4040. (T. at 23-24, 38, 36, 49; Dkt. No. 150 at 2; Exhibit D-A.) Plaintiff further asserted that his verbal complaint to the offending officer's direct supervisor made on December 6, 2006, about the December 5, 2006, incident generated interdepartmental memos about the claimed harassment, and therefore it constituted a grievance within the meaning of Directive 4040. (T. at 38, 51-52; Exhibits P-1 through P-4.) Essentially, Plaintiff argues special circumstances exist excusing his failure to exhaust because he misunderstood the grievance procedures.
Section 701.8(a) of Directive 4040 governing allegations of employee harassment provides that:
(a) An inmate who wishes to file a grievance complaint that alleges employee harassment shall follow the procedures set forth in section 701.5(a), above.(Exhibit D-A at 12.) Section 701.5(a) clearly states that an inmate must submit a written grievance to the Inmate Grievance clerk. Id. at 5. Plaintiff also believed that because he filed a written complaint with the IG's Office, and he was interviewed by someone from that office, he did not have to file a grievance. (T. at 31, 33; see also Exhibits P-5, D-B.)
Note: An inmate who feels that he/she has been the victim of harassment should report such occurrences to the immediate supervisor of that employee. However, this is not a prerequisite for filing a grievance with the IGP.
Under the Hemphill analysis, the Second Circuit has described "special circumstances" excusing a failure to comply with the administrative grievance procedures as "a reasonable misunderstanding of the grievance procedures." Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006); see also Hartry v. Cnty. of Suffolk, 755 F. Supp. 2d 422, 433 (E.D.N.Y. 2010) ("Among the circumstances potentially qualifying as 'special' under this prong of the test is where a plaintiff's reasonable interpretation of applicable regulations regarding the grievance process differs from that of prison officials and leads him or her to conclude that the dispute cannot be grieved."); Bryant v. Williams, No. 08-CV-778S, 2009 WL 1706592, at *6, 2009 U.S. Dist. LEXIS 51151 (W.D.N.Y. June 17, 2009) (noting Second Circuit cases in which special circumstances have been held to exist, including cases involving an inmate's reasonable albeit erroneous interpretation of prison regulations, and an inmate's reliance upon the court's earlier construction of the law); Clarke v. Thornton, 515 F. Supp. 2d 435,439 (S.D.N.Y. 2007) ("Such special circumstances have previously been found to include threats of physical retaliation and reasonable misinterpretation of the statutory requirements of the appeals process.") (citing Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004)).
2. Reasonableness of Plaintiff's Interpretation of Directive 4040
The question for this Court then becomes whether Plaintiff's interpretation of Section 701.8(a) of Directive 4040 was reasonable under the circumstances. For the reasons that follow, the Court finds that Plaintiff's interpretation was not reasonable.
As noted above, Plaintiff complained to the offending officer's immediate supervisor, which generated interdepartmental memorandums. (T. at 26-29, 41, 47.) Section 701.8(a)(1) provides that "[a]n inmate who wishes to file a grievance complaint that alleges employee harassment shall follow the procedures set forth in section 701.5(a) above." The Note below the text of Section 701.8(a)(1) does provide that an inmate who feels he has been the victim of harassment should report the incident to the employee's immediate supervisor. However, it clearly states "this is not a prerequisite for filing a grievance with the IGP." (Exhibit D-A at 12.) The only reasonable interpretation of this section is that an inmate is not required to make a verbal report before filing a grievance. In fact, at the hearing, Plaintiff conceded that Section 701.8(a) means "you don't have to make a verbal complaint in order to file a written grievance." (T. at 78.)
Given the clear instruction to inmates in Section 708.1(a) that any inmate who wants to file a complaint about harassment "shall follow the procedures set forth in section 701.5(a)," which outlines the entire three-step grievance procedure and the necessity for filing a written grievance, there is no way the Note can reasonably be interpreted as excusing an inmate who complains to a supervisor from complying with the written grievance requirement (emphasis supplied). (Exhibit D-A at 12; Exhibit D-A at 5.)
Sgt. Samolis and William Abrunzo confirmed that verbal complaints are not grievances within the meaning of Directive 4040. (T. at 92, 96, 103-04, 115, 119, 122-23; Exhibit D-A.) Kevin Reichelt testified that an IG investigation of a complaint is not related to the inmate grievance process. (T. at 143-44.) Plaintiff testified that another inmate advised him that as long as he verbally notified the Defendant officer's immediate supervisor of the complaint, he did not have to file a written grievance. (T. at 63-64.) Plaintiff did not look at Directive 4040 at the time the other inmate told him this information, but Plaintiff conceded he understood the grievance process in December of 2006. (T. at 64, 70.)
Additionally, Plaintiff did not claim he was threatened, or that he was denied forms or writing materials. See, e.g., Giano 380 F.3d at 675-76 (failure to exhaust was justified under "special circumstances" where plaintiff inmate's misinterpretation of regulations was reasonable and prison official threatened inmate); Sandlin v. Poole, 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (court found the facility's "failure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiff's appeals . . . effectively rendered the grievance appeal process unavailable to him" and noted that "[s]uch facts . . . support a finding that defendants are estopped from relying on the exhaustion defense, as well as 'special circumstances' excusing plaintiff's failure to exhaust.").
Under all of these circumstances, the Court finds Plaintiff's misinterpretation of Directive 4040 is not reasonable.
B. Plaintiff's Credibility
The Court also finds Plaintiff's claimed interpretation of Directive 4040 is not credible. Plaintiff testified he believed in December of 2006 that a verbal complaint to the employee's immediate supervisor constituted a grievance based upon Section 701.8 of Directive 4040. (T. at 63-64.) However, he also testified he had not read Directive 4040 at that time, and that he was advised by another inmate that a verbal complaint to Defendant's supervisor constituted compliance with Directive 4040. Id.
At the hearing, Plaintiff testified he sent a letter to Great Meadow on June 16, 2008, because he did not receive a response to the verbal complaint he made on December 6, 2006. (T. at 28, 49-52, 54-55, 65, 68; Exhibit D-C.) At his deposition, however, he testified that the June 16, 2006, letter was his attempt to file a "belated" grievance about Defendant's alleged use of excessive force on December 5, 2006. (T. at 57.) He did not indicate in the letter that he was sending it because he did not receive a response to his verbal complaint, nor did he indicate at his deposition that he sent it because he had not received a response to his verbal complaint. (T. at 65; Exhibit D-C.)
Plaintiff also claimed at the hearing that his July 16, 2008, letter to CORC was sent because he had not received a response to his verbal complaint. (T. at 72; Exhibit D-I.) However, the content of the letter indicates Plaintiff was attempting to file a late grievance. (Exhibit D-I.) According to Plaintiff, he did not understand the process of appealing to CORC in July of 2008, but he sent that letter on the advice of another inmate. (T. at 72.) However, the testimony of Chad Powell and the list of CORC appeals confirm that Plaintiff had filed grievance appeals to CORC in March of 2007 and September of 2007. (T. at 131-32; Exhibit D-F.) Clearly, he understood the appeal process to CORC well before he wrote the July 16, 2008, letter to that office regarding the alleged assault of December 5, 2006.
C. Plaintiff Did Not Follow All of the Grievance Procedures
Even if Plaintiff's verbal complaint to the Defendant's immediate supervisor, or his complaint to the IG's office, or the December 6, 2006, letter to the Great Meadow Superintendent were construed as valid grievances concerning the December 5, 2006, alleged use of excessive force, Plaintiff still had an obligation to timely exhaust all appeals before his grievance is considered exhausted. George v. Morrison-Warden, 06 CIV. 3188 (SAS), 2007 WL 1686321, at *3, 2007 U.S. Dist. LEXIS 42640 (S.D.N.Y. June 11, 2007). In order to prevail on an argument that there were special circumstances because the officials did not file the grievances or respond to them, Plaintiff must show that he nonetheless followed the grievance procedures through all of the steps in the DOCCS regulations. See, e.g., Belile v. Griffin, No. 9:11-CV-0092 (TJM/DEP), 2013 WL 1776086, at *3-4, 7, 2013 U.S. Dist. LEXIS 47137, at *10, 22-23 (N.D.N.Y. Feb. 12, 2013) (plaintiff failed to exhaust his administrative remedies because he had not followed through on all of the steps, i.e., he did not appeal to the superintendent of the facility or appeal any unfavorable decision of the superintendent to CORC; plaintiff alleged he had filed two grievances by placing the grievances in his meal slot to be filed by corrections officers, but claimed they were intercepted or discarded, and never received a determination on the grievances); Veloz v. New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004) ("[P]laintiff's allegation that these particular grievances were misplaced or destroyed by correctional officers ultimately does not relieve him of the requirement to appeal these claims to the next level once it became clear to him that a response to his initial filing was not forthcoming."), aff'd, 178 F. App'x 39 (2d Cir. 2006); Atkins v. Menard, No. 9:11-CV-0366 (GTS/DEP), 2012 WL 4026840, at *4, 2012 U.S. Dist. LEXIS 130059, *13 (N.D.N.Y. Sept. 12, 2012) (finding that plaintiff failed to exhaust where he had the "ability, and indeed the duty, to appeal the IGRC's nonresponse (to his grievance) to the next level, including CORC, to complete the grievance process."); Murray v. Palmer, No. 03-CV-1010, (DNH/GLS), 2008 WL 2522324, at *16, 18, 2008 U.S. Dist. LEXIS 47933 (N.D.N.Y. June 20, 2008) (finding that in order to exhaust available administrative remedies with regard to his grievance, plaintiff had to file an appeal with the superintendent from the IGRC's nonresponse, which included a failure to acknowledge the receipt of a grievance and assign it a number); Gill v. Frawley, No. 02-CV-1380, 2006 WL 1742738, at *11 & n. 67, 2006 U.S. Dist. LEXIS 41984 (N.D.N.Y. June 22, 2006) (Lowe, M.J.) ("[A]n inmate's mere attempt to file a grievance (which is subsequently lost or destroyed by a prison official) is not, in and of itself, a reasonable effort to exhaust his administrative remedies since the inmate may still appeal the loss or destruction of that grievance.").
Here, Plaintiff has failed to make that showing. The Court finds that Plaintiff's June 16, 2008, letter to Great Meadow and his July 16, 2008, letter to CORC, both written over a year and a half after the alleged assault, are untimely. Plaintiff never sought permission to extend his time to appeal, which had long since passed by the time he wrote those letters in 2008. No extensions of the time frames set forth in Directive 4040 were requested or granted. Plaintiff has not provided any reasonable explanation for his delay of a year and a half after the alleged assault before writing to the Great Meadow facility or CORC about the assault and the lack of response to his verbal complaint. The regulations specify time limitations for each step and provide for extensions and exceptions, see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(g), but exceptions to time limits set forth in the grievance procedures may not be granted more than 45 days after an alleged occurrence. Id.; see also Saunders v. Goord, 98 Civ. 8501 (JGK), 2002 WL 1751341, at *3, 2002 U.S. Dist. LEXIS 13772, at * 9 (S.D.N.Y. July 29, 2002) ("Even if the plaintiff did not receive responses directed towards some grievances, the plaintiff was required, at a minimum, to make reasonable attempts to appeal those grievances before bringing an action in federal court . . . ."). It is undisputed that Plaintiff never sought an extension of any of the deadlines set forth in Directive 4040, despite being apparently versed in filing grievances (see Exhibit D-E) and appeals (see Exhibit D-F) as shown by the multiple grievances and two appeals he filed to CORC between December of 2006, the date of the alleged subject harassment, and July of 2008, when he finally wrote to CORC inquiring as to whether it was too late to file an appeal. (Exhibits D-A, D-F, D-I.) Therefore, the Court concludes that Plaintiff did not make a reasonable or timely attempt to appeal the subject complaint of harassment and, as such, has failed to show he exhausted all administrative remedies.
VI. CONCLUSION
Based upon the evidence presented at the hearing, the Court recommends that Plaintiff's Complaint be dismissed with prejudice and without addressing its merits because an administrative grievance process was available to him and he failed to exhaust those administrative remedies. Plaintiff has offered no reasonable or credible special circumstances to excuse his failure to exhaust administrative remedies.
Where a claim is dismissed for failure to exhaust administrative remedies, dismissal without prejudice is appropriate if the time permitted for pursuing administrative remedies has not expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004). However, if a prisoner has failed to exhaust administrative remedies or provide a valid excuse for failure to do so, and the time in which to exhaust has expired, it is proper for the court to dismiss the complaint with prejudice because any attempt to exhaust would be futile. Id. at 86; see also Hilbert v. Fischer, No. 12 Civ. 3843 (ER), 2013 WL 4774731, at *7, LEXIS 126881, at *23-24 (S.D.N.Y. Sept. 4, 2013) (where the time to file a grievance and request an exception to the time limit has long since expired, and plaintiff has failed to establish an excuse for his failure to exhaust, dismissal with prejudice is proper). Because Plaintiff has failed to establish a credible excuse for his failure to exhaust, the Court recommends that the dismissal of his Complaint be with prejudice.
ACCORDINGLY, it is hereby
RECOMMENDED that Plaintiff's Amended Complaint (Dkt. No. 38) in this action be DISMISSED, WITH PREJUDICE, based upon his failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a); and it is further
ORDERED that the Clerk provide Plaintiff with copies of all unpublished decisions cited in this Order in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (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. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: November 19, 2014
Syracuse, NY
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge