Opinion
Civil Action No. 9:16-CV-1174 (NAM/DEP)
05-24-2019
SHAWN WOODWARD, Plaintiff, v. SCOTT LYTLE, Correctional Officer, Cape Vincent Correctional Facility, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: SHAWN WOODWARD, Pro Se 00-A-6563 Franklin Correctional Facility P.O. Box 10 Malone, NY 12953 FOR DEFENDANTS: HON. LETITIA JAMES New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: HELENA LYNCH, ESQ. ERIK B. PINSONNAULT, ESQ. Assistant Attorneys General
APPEARANCES: FOR PLAINTIFF: SHAWN WOODWARD, Pro Se
00-A-6563
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953 FOR DEFENDANTS: HON. LETITIA JAMES
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: HELENA LYNCH, ESQ.
ERIK B. PINSONNAULT, ESQ.
Assistant Attorneys General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
Upon the scheduling of an evidentiary hearing to address the defendants' exhaustion of remedies defense, the court assigned pro bono counsel to represent plaintiff at the hearing. Dkt. No. 71. In light of plaintiff's objection to that appointment, and his rejection of the court's suggestion that he allow the appointed attorney to serve as standby counsel, pro bono counsel was relieved of the assignment, and plaintiff was permitted to proceed during the hearing pro se. Dkt. No. 80.
ORDER, REPORT AND RECOMMENDATION
This is a civil rights action brought by pro se plaintiff Shawn Woodward, a New York State prison inmate, against several individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983. In general terms, plaintiff's complaint alleges that defendants retaliated against him for assisting other inmates in preparing grievances against prison officials by issuing him false misbehavior reports and assaulting him.
In answer to plaintiff's claims, defendants assert, inter alia, that his failure to fully exhaust available administrative remedies, which is uncontested, effectively precludes him from litigating his claims in this action. In response, plaintiff has argued that his efforts to avail himself of the DOCCS internal administrative process for filing and pursuing inmate grievances were thwarted, and thus the grievance procedure was not available to him, and that he should be excused from the exhaustion requirement on that ground. Based upon plaintiff's claims, which defendants deny, the matter was referred to me to conduct an evidentiary hearing pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011). That hearing having been held on April 12, 2019, I now make the following recommended findings of fact and conclusions of law, based upon the evidence adduced by the parties at the hearing.
I. BACKGROUND
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 1. While he is now incarcerated elsewhere, at the times relevant to the claims in this action, plaintiff was confined in the Cape Vincent Correctional Facility ("Cape Vincent"), located in Cape Vincent, New York, having arrived at that facility in early April of 2015. Id.
Plaintiff commenced this action on or about September 28, 2016. Dkt. No. 1. On February 9, 2018, defendants moved for the entry of summary judgment dismissing plaintiff's complaint, arguing that his claims are barred by his failure to exhaust available administrative remedies prior to filing suit. Dkt. No. 41. In a memorandum-decision and order, dated September 27, 2018, Senior District Judge Norman A. Mordue found the existence of genuine issues of material fact surrounding defendants' exhaustion defense. Dkt. No. 61. Following defendants' motion for reconsideration, which plaintiff opposed, Senior District Judge Mordue ordered that an evidentiary hearing be conducted to resolve those factual issues. Dkt. Nos. 63, 65, 66. On November 27, 2018, the matter was referred to me for the purpose of conducting the required evidentiary hearing. Dkt. No. 67.
On April 12, 2019, I held a hearing pursuant to Senior District Judge Mordue's directive. Testifying at that hearing were defendants Scott Lytle, Paul Gaffney, Sean Dawley, Dennis Docteur, Stephen Anderson, Norman Jones, and Frederick Kenyon, as well as Tami Hartz, the Inmate Grievance Supervisor stationed at Cape Vincent. Although offered an opportunity to do so, plaintiff chose not to testify during the exhaustion hearing. Following the hearings, the parties were offered the opportunity to submit proposed findings of fact and conclusions of law. See Dkt. No. 113 at 114.
II. DISCUSSION
In their post-hearing briefing, defendants argue that because plaintiff did not to present any evidence at the hearing, he failed to meet his burden of production to show the unavailability of the inmate grievance procedure. Dkt. No. 115 at 22-25. Defendants further argue that they met their ultimate burden of proof to demonstrate that the grievance procedure remained available to plaintiff at all relevant times. Id. at 25-27.
To date, the court has not received any post-hearing briefing from plaintiff. On May 6, 2019, he requested an extension until May 22, 2019, which was granted by the court. Dkt. Nos. 117, 118. On May 17, 2019, plaintiff requested a further extension, while simultaneously requesting that Judge Mordue hold "[a]ll [f]ilings [i]n [a]beyance" due to a forthcoming motion for recusal. Dkt. Nos. 120, 121. Plaintiff's request for a further extension was denied. Dkt. No. 122.
A. Legal Standard Governing Exhaustion
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 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." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC") have up to sixteen days after the grievance is filed to informally resolve the issue. 7 N.Y.C.R.R. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. 7 N.Y.C.R.R. § 701.5(b)(2).
The IGP is embodied in DOCCS Directive No. 4040, which was marked as Court Exhibit ("Exh.") 1 during the hearing.
The IGRC is comprised of "two voting inmates, two voting staff members, and a non- voting chairperson." 7 N.Y.C.R.R. § 701.4(a).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(g). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).
As can be seen, at each step of the IGP, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above- described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cnty. 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)." (internal quotation marks omitted)).
While the PLRA mandates exhaustion of available 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 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 omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA. Ross, 136 S. Ct. at 1859-60. Under the 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. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams, 829 F.3d at 123 n.2.
B. Burden of Proof with Respect to Exhaustion
Prior to addressing the parties' arguments, the court must determine who, as between plaintiff and defendant, bears the burden of proof with respect to the exhaustion defense. Because the failure to exhaust administrative remedies is not a pleading requirement, but an affirmative defense, see Jones v. Bock, 549 U.S. 199, 216 (2007); Williams, 829 F.3d at 123, the party asserting a failure to exhaust administrative remedies typically bears the ultimate burden of proving its essential elements by a preponderance of the evidence. See, e.g., Hamlet v. Stotler, No. 17-CV-0939, 2018 WL 2729263, at *5 (N.D.N.Y. Apr. 27, 2018) (Dancks, M.J), report and recommendation adopted by 2018 WL 2727875 (N.D.N.Y. Jun 6, 2018) (Sharpe, J.); Soria v. Girdich, No. 04-CV-0727, 2007 WL 4790807, at *2 (N.D.N.Y. Dec. 6, 2007) (DiBianco, M.J.) (citing McCoy v. Goord, 255 F. Supp. 2d 233, 247 (S.D.N.Y. 2003)); Howard v. Goord, No. 98-CV-7471, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In Nelson v. Plumley, No. 12-CV-0422, 2015 WL 4326762 (N.D.N.Y. Jul. 14, 2015) and Bailey v. Fortier, No. 09-CV-0742, 2012 WL 6935254 (N.D.N.Y. Oct. 4, 2012), report and recommendation adopted by 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013), I acknowledged the existence of an ambiguity with respect to the appropriate burdens of production and persuasion in the context of exhaustion. Nelson, 2015 WL 4326762, at *7; Bailey, 2012 WL 6935254, at *5-*6; see also Calloway v. Grimshaw, No. 09-CV-1354, 2011 WL 4345299, at *5 & n.5 (N.D.N.Y. Aug. 10, 2011), report and recommendation adopted by 2011 WL 4345296 (N.D.N.Y. Sep. 15, 2011) (McAvoy, J.); Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *4 & n.17 (N.D.N.Y. Mar. 31, 2010). In particular, several district court decisions, "while referencing the burden of proof applicable to an affirmative defense, seem to primarily address an inmate's burden of production, or of going forward, to show facts that would form the basis for finding of unavailability, estoppel, or special circumstances, rather than speaking to the ultimate burden of persuasion." Nelson, 2015 WL 4326762, at *7 (emphasis in original); see Bailey, 2012 WL 6935254, at *6.
In Nelson, I concluded that although the burden of production may shift to the plaintiff to demonstrate unavailability of the grievance process, the ultimate burden of proof always remains with the defendant. Nelson, 2015 WL 4326762, at *7; Bailey, 2012 WL 6935254, at *6; see Puga v. Choto, No. 11-CV-0070, 2014 WL 675824, at *5 (N.D.N.Y. Feb. 21, 2014) (McAvoy, J., adopting report and recommendation by Hummel, M.J.). While the Nelson and Bailey decisions were decided prior to Ross—and therefore applied the Hemphill factors—given that "unavailability" is a critical and central element of the legal standard outlined by both Hemphill and Ross, I see no reason to depart from my previous reasoning. See Adams v. O'Hara, No. 16-CV-0527, 2019 WL 652409, at *4 (N.D.N.Y. Feb. 15, 2019) (Suddaby, C.J.); Coleman v. Nolan, No. 15-CV-40, 2018 WL 4732778, at *4 n.2 (N.D.N.Y. Oct. 2, 2018) (Baxter, M.J.); Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013) (Suddaby, C.J.). I conclude, therefore, that although the burden of proof on this affirmative defense remains with the defendant at all times, a plaintiff can be required to produce evidence in order to defeat it. See Smith, 985 F. Supp. 2d at 284.
C. Evidence Adduced at the Hearing
During the hearing, in addition to Cape Vincent's Inmate Grievance Supervisor, all seven of defendants testified regarding their knowledge of the grievance process at Cape Vincent, the availability of that process to plaintiff, and their respective interactions with plaintiff, to the extent each defendant had (or recalled) having any contact with plaintiff during his confinement at Cape Vincent. See generally Dkt. No. 113. Although plaintiff was given the opportunity, he declined to testify at the hearing. Tr. 113-14. Accordingly, the following evidence was presented by defendants at the hearing, and stands uncontroverted.
The transcript of the evidentiary hearing, held on April 12, 2019, Dkt. No. 113, will be cited as "Tr. ___."
As indicated in footnote 2, supra, although the court appointed pro bono counsel to assist plaintiff in connection with exhaustion hearing, plaintiff refused to accept the appointment even as standby counsel. Dkt. Nos. 71, 77; see also Text Minute Entry 2/5/2019 ("Plaintiff wishes to proceed [pro se] at the evidentiary hearing and declines Judge Peebles' suggestion to have stand by counsel available.")
1. Testimony of Tami Hartz, Cape Vincent IGP Supervisor
Tami Hartz, the Inmate Grievance Supervisor for Cape Vincent, is responsible for coordinating the IGP at that facility, including accepting, reviewing, and processing grievances filed by inmates and attempting to resolve those grievances. Tr. 87. She testified regarding the specific grievance procedures at Cape Vincent and her role in ensuring the availability of the IGP to inmates housed at that facility. Tr. 86-107. Several methods exist at Cape Vincent by which an inmate can file a grievance. Tr. 89-90, 99. Specifically, an inmate may file grievances by mail, by handing the grievance to an inmate representative, sliding it under Ms. Hartz's office door, or handing it directly to her. Tr. 89-90, 99.
Ms. Hartz testified that she is responsible for the oversight of three inmates who assist her in administering the IGP, including one clerk and two inmate representatives. Tr. 87. Inmate representatives live within the inmate population and are available to accept grievances directly from other inmates. Tr. 89.
As part of her responsibilities, Ms. Hartz conducts weekly rounds in Cape Vincent's special housing unit ("SHU"), where she speaks to inmates regarding their grievances. Tr. 91, 94-95; see generally 7 N.Y.C.R.R. § 701.7. According to the Cape Vincent SHU logbook, Ms. Hartz conducted rounds during the time that plaintiff was housed in the SHU. Tr. 93; Exh. D-1. Specifically, she entered SHU at 2:16 p.m. on July 15, 2015 and left at 2:25 p.m. Exh. D-1. Although she was in the SHU for less than ten minutes on that date, according to Ms. Hartz, rounds were generally "pretty quick" because "most of the time the[ inmates do not] want to talk[.]" Tr. 96.
During the time he was confined at Cape Vincent, plaintiff filed two grievances, one in April 2015 and another in July that year, both of which were processed in the normal course of business and are reflected in the grievance clerk's log. Tr. 103-05; Exh. D-3. According to Ms. Hartz, if plaintiff filed any other grievances, they too would have been reflected in the IGP's grievance log, which did not list the filing of any additional grievances. Tr. 105.
Ms. Hartz testified that she has never refused to accept and process a grievance from any inmate, including from inmates housed in the facility's SHU. Tr. 95, 98. Finally, Ms. Hartz testified that she "file[s] everything" that she receives and that she does not "refuse to file grievances" for inmates. Tr. 98, 106.
2. Testimony of Defendant Paul Gaffney
In 2015, defendant Paul Gaffney, a corrections officer, was stationed in the Cape Vincent's law library. Tr. 5-6. In that capacity he supervised plaintiff, who worked in the law library as a clerk. Tr. 9-10. Although plaintiff was responsible for assisting other inmates in the law library, it appeared to defendant Gaffney that plaintiff merely used the position "for his own benefit." Tr. 10-11.
In supervising plaintiff, defendant Gaffney was required to complete an inmate progress report every three months, detailing plaintiff's job performance as a law library clerk. Tr. 13-14. On a June 3, 2015 report of plaintiff's progress, defendant Gaffney noted that he was "only working on [his] legal work while [he was] at work," and he had a "poor attitude toward peers and correction officers." Tr. 15-16 (quoting Exh. D-8). Based on that evaluation, plaintiff was removed from his position in the law library. Tr. 17.
Defendant Gaffney testified that he never discouraged plaintiff from filing a grievance, threatened plaintiff if he filed a grievance, or otherwise took any action against plaintiff because of his use of the IGP. Tr. 12, 17. In addition, defendant Gaffney denied that he told plaintiff that he would be removed from his position as a clerk in the law library if he continued to file grievances. Tr. 17.
3. Testimony of Defendants Scott Lytle, Sean Dawley, Dennis Docteur, Stephen Anderson, Norman Jones, and Frederick Kenyon
Each of the remaining defendants also testified at the exhaustion hearing. Defendant Stephen Anderson, a corrections officer stationed at Cape Vincent, testified that if an inmate asks for grievance form, he "either give[s] [the inmate] a grievance form or tell[s] [the inmate] where [he or she] could pick one up." Tr. 53-54, 57-58. Defendant Anderson specifically denied ever discouraging plaintiff from filing a grievance or "threaten[ing] him not to file a grievance[.]" Tr. 58.
Defendants Anderson, Docteur, and Jones each offered testimony regarding their limited interactions with plaintiff, including disciplinary issues, which form the basis to at least some of plaintiff's constitutional claims. See generally Dkt. No. 1. By way of one example, plaintiff alleges that defendant Anderson issued plaintiff a false misbehavior report in retaliation for assisting inmates with their grievances. Id. at 9, 12. During the exhaustion hearing, defendant Anderson testified that he was ordered by another DOCCS employee to conduct a urinalysis of plaintiff, and after that urinalysis revealed the presence of synthetic marijuana, defendant Anderson issued plaintiff an inmate misbehavior report on June 2, 2015. Tr. 56-57, 61-62; see Exh. D-5. In the court's view, this testimony has limited, if any, relevance, to defendants' exhaustion defense.
Although defendant Norman Jones is now retired, at the times relevant to plaintiff's claims, he was employed as a disciplinary hearing officer at Cape Vincent. Tr. 63-64. Defendant Jones testified as follows:
Q And did you -- as a hearing officer did you tell him that he couldn't call witnesses because he had filed grievances?
A No.
Q Did you tell him that he couldn't present evidence because he had filed grievances?
A No.
. . . .Tr. 69-70. In addition, defendant Jones testified that he had never discouraged plaintiff from filing a grievance. Tr. 69, 73.
Q So let me just make sure I was clear. So does the - if an inmate had filed an unrelated grievance, would that ever be a factor in your conduct of the hearing?
A No.
Q Or in your determination at the hearing?
A No.
Defendant Frederick Kenyon, the head cook at Cape Vincent, testified that if an inmate requested a grievance form, he would provide a form and a pen to the requesting inmate. Tr. 74-75. He denied ever having "discouraged an inmate from filing a grievance" or "threatened an inmate not to file a grievance[.]" Tr. 75. Similarly, defendant Dennis Docteur, a retired corrections officer stationed at Cape Vincent, denied ever "discourage[ing] an inmate from filing a grievance," "threaten[ing] an inmate not to file a grievance," or "tak[ing] any negative action toward an inmate because he filed a grievance[.]" Tr. 47-48. Defendant Docteur also specifically denied having discouraged plaintiff from filing a grievance. Tr. 48.
Sean Dawley, a former corrections officer stationed at Cape Vincent during the relevant times and who did not specifically recall his interactions with plaintiff, testified that if an inmate had requested a grievance form, he would provide one if he had one in his possession. Tr. 38-39, 41-42 Defendant Dawley did not "ever tell an inmate not to file a grievance," "ever threaten an inmate against filing a grievance," or "ever take any action against an inmate or toward an inmate based on the fact that [he] filed a grievance[.]" Tr. 39-40, 42.
Finally, defendant Scott Lytle, a corrections officer at Cape Vincent, also indicated that he did not recall any interactions that he had with plaintiff. Tr. 32-33, 41. If an inmate requested a grievance form, defendant Lytle would provide the inmate a form or a piece of paper on which to write the grievance. Tr. 30-31. Defendant Lytle had not ever refused to give an inmate the materials needed to file a grievance, nor threatened an inmate not to file a grievance, including plaintiff. Tr. 31-33.
D. Analysis
It is uncontroverted, based upon the papers submitted in connection with defendants' summary judgment motion, that no grievance was officially filed and processed at Cape Vincent concerning the claims now being asserted, nor did plaintiff properly appeal any grievances concerning those claims to the CORC. Compare Dkt. No. 41-2 at 4 with Dkt. No. 51 at 3; see also Dkt. No. 41-3 at 2-3; Dkt. No. 41-5 at 3. The only question left to be resolved is whether the IGP was available to plaintiff during the relevant times. See Ross, 136 S. Ct. at 1858
Based upon the hearing testimony, I recommend a finding that none of the defendants did anything to discourage plaintiff from filing grievances, and took no retaliatory action against plaintiff for filing grievances. Addressing Woodward's specific claim that he was removed from his law library clerk position in retaliation for filing grievances or assisting others in doing so, defendant Gaffney credibly testified, and I recommend that the court find, that plaintiff's removal from that position was based upon his poor work performance, and in particular due to the fact that he was ignoring the needs of fellow inmates and spending his time working on his personal, legal matters. Tr. 12-13, 16-17; Exh. D-8. That testimony and the testimony of Gaffney's fellow defendants concerning the fact that they did not threaten plaintiff or retaliate against him for filing of grievances stand uncontradicted in view of plaintiff's decision failure to testify at the evidentiary hearing.
In addition, Ms. Hartz testified concerning her duties and responsibilities as the Inmate Grievance Supervisor at Cape Vincent. According to Ms. Hartz, she was required to make rounds at least weekly, in the Cape Vincent special housing unit ("SHU"), where plaintiff was confined at the relevant times. Tr. 91. A redacted excerpt from a log book received in evidence reveals that on July 15, 2015, the date on which plaintiff has alleged having had a conversation with Ms. Hartz concerning a grievance that he attempted to file, revealed that she entered the SHU on that date and remained there for a total of nine minutes. Exh. D-1. Ms. Hartz credibly testified that while she did not specifically recall plaintiff, she would never have refused to file a grievance, nor would she have told plaintiff or any other inmate that she would not file a grievance. Tr. 98. It was noted during cross-examination of Ms. Hartz that plaintiff in fact filed grievances at Cape Vincent on April 21, 2015 (No. CV-10162-15) and July 24, 2015 (No. CV-10239-15), related to "delay transfer funds and commissary buy" and "feed up tray compartments," respectively. Exh. D-3. Based upon her uncontroverted and credible testimony, I recommend a finding that Ms. Hartz took no action on inhibit or prevent plaintiff from filing a grievance regarding the claims raised in this action.
In papers submitted in opposition to defendants' motion for summary judgment, plaintiff alleged that "when the Inmate Grievance Program Supervisor made her rounds[,] she told [him] that she was not filing [his] grievances because she knew some of the officers and did not believe what [he] was saying." Dkt. No. 52-2 at 1-2.
Despite bearing the burden of doing so, during the hearing plaintiff provided no evidence, much less "reliable evidence," showing either (1) that the IGP was unavailable to him, (2) defendants should be estopped from asserting his failure to file a grievance, or (3) the existence of other "special circumstances" that would warrant excusing him from the requirement of exhaustion. See Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013) (Suddaby, J.). Significantly, plaintiff who bore the burden of production to demonstrate unavailability of the grievance process failed to meet that burden in failing to present any evidence, including his own testimony, that would indicate that Ms. Hartz, or any defendants, refused to file a grievance while he was housed in the SHU at Cape Vincent. See Adams, 2019 WL 652409, at *4 ("[W]hile the burden of proving this affirmative defense remains at all times on the defendant, the plaintiff may sometimes have to adduce evidence in order to defeat it.").
Accordingly, it being uncontroverted plaintiff failed to file and pursue to completion a grievance concerning the claims raised in this case, I recommend a finding that defendants have carried their burden of proving that administrative remedies concerning the claims now being raised were available to the plaintiff, and that his claims in this action should be dismissed based upon his failure to exhaust.
IV. SUMMARY AND RECOMMENDATION
The record now before the court reflects that plaintiff failed to file and pursue to completion a grievance concerning his claims in this action before commencing suit. The evidence adduced at the recent evidentiary hearing failed to yield any evidence of unavailability of the IGP to the plaintiff or any other basis to excuse him from the PLRA's exhaustion requirement. Accordingly, it is hereby respectfully
RECOMMENDED that plaintiff's complaint (Dkt. No. 1) in this action be DISMISSED based upon his failure to exhaust available administrative remedies before filing suit.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and 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).
It is hereby ORDERED that the clerk of the court is respectfully directed to modify the court's records to change defendants' names, as reflected in footnote one, above; and it is further respectfully
ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: May 24, 2019
Syracuse, NY