Opinion
6:16-CV-06596 EAW
2021-05-18
Wamel ALLAH, Plaintiff, v. L. LATONA, J. Woodworth, SHU Director Prack, and L. Adams, Defendants.
Wamel Allah, Collins, NY, Pro Se. Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants.
Wamel Allah, Collins, NY, Pro Se.
Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se plaintiff Wamel Allah ("Plaintiff"), an inmate at Collins Correctional Facility, filed this action seeking relief under 42 U.S.C. § 1983. (Dkt. 1). The Court previously screened Plaintiff's complaint under the 28 U.S.C §§ 1915(e)(2)(B) and 1915A criteria and concluded that the complaint was subject to dismissal, but granted Plaintiff leave to replead his claims. (Dkt. 13). Plaintiff filed an amended complaint (Dkt. 14), which the Court screened with respect to the §§ 1915(e)(2)(B) and 1915A criteria and permitted Plaintiff's First Amendment retaliation claim as asserted against defendants J. Woodworth, L. Latona, Special Housing Unit ("SHU") Director Prack, and L. Adams to proceed to service (Dkt. 19). Plaintiff alleges that he was retaliated against in violation of the First Amendment because he refused to admit that he was a sex offender during a Sex Offender Counseling and Treatment Program ("SOCTP"), and as a result he was threatened with special housing unit ("SHU") and received two false, retaliatory misbehavior reports, for which he received three months of SHU confinement. (Dkt. 14 at 3-4). Presently before the Court are a motion to dismiss and motion for summary judgment in lieu of an answer filed by defendants L. Latona, J. Woodworth, and SHU Director Prack (hereinafter, "Defendants"). (Dkt. 97; Dkt. 101). The Court issued scheduling orders on both motions (Dkt. 98; Dkt. 103), and Plaintiff filed responses to the motions (Dkt. 100; Dkt. 102; Dkt. 105; Dkt. 107; Dkt. 108; Dkt. 109; Dkt. 113). For the following reasons, Defendants’ motion for summary judgment in lieu of an answer (Dkt. 101) is granted and their motion to dismiss (Dkt. 97) is denied as moot.
Based on the Court's review of the docket, defendant L. Adams has not yet been served with the amended complaint, and counsel has not moved to dismiss or for summary judgment on his behalf. The Attorney General's Office subsequently identified this individual as defendant "Adams" and, at the direction of the Court (see Dkt. 115 at 6-7), on March 26, 2021, the Clerk's Office re-issued the summons for defendant Adams and forwarded service packets to the United States Marshal.
BACKGROUND
The following facts are taken from Defendants’ Statement of Undisputed Facts and Plaintiff's amended complaint. (See Dkt. 14; Dkt. 101-1). Plaintiff failed to submit an Opposing Statement of Material Facts, and therefore the factual statements contained in Defendants’ statements are "deemed admitted for purposes of the motion" because they are supported by admissible evidence in the record. See L. R. Civ. P. 56(a)(2); see also N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 648-49 (2d Cir. 2005) ("district courts have the authority to institute local rules governing summary judgment submissions" although "[r]eliance on a party's statement of undisputed facts may not be warranted where those facts are unsupported by the record").
The alleged retaliation occurred in May 2012, when Plaintiff was participating in SOCTP. (See Dkt. 14 at 3; Dkt. 101-1 at ¶ 5). Plaintiff alleges that in May 2012 he refused to admit that he was a sex offender during SOCTP, and thereafter defendant J. Woodworth removed him from the group and escorted him to SHU. (Dkt. 14 at 3). Plaintiff also received two misbehavior reports, which he alleges were fabricated by defendants J. Woodworth and L. Latona, and endorsed by defendant Adams. (Id. ). As a result of the fabricated misbehavior reports, Plaintiff was confined in SHU for three months. (Id. at 4). Defendant Prack reviewed Plaintiff's appeal of the disciplinary hearing and affirmed the decision of the hearing officer. (Id. ).
According to Defendants, Plaintiff was an "experienced grievant, having filed some 24 grievances to exhaustion prior to the date of the incidents alleged," but he did not exhaust a grievance pertaining to any alleged retaliation by Defendants, and he did not exhaust any grievances in 2012 or 2013. (Dkt. 101-1 at ¶¶ 1, 2, 4).
DISCUSSION
I. Defendants’ Motion for Summary Judgment
A. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact...." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown , 654 F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Federal Rule of Civil Procedure 56(b) provides that a party may file a motion for summary judgment "at any time until 30 days after the close of all discovery." A party may move for summary judgment in lieu of an answer. See, e.g., Anderson v. Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 202 (2d Cir. 2003) ; Crenshaw v. Syed , 686 F. Supp. 2d 234, 235 n.1 (W.D.N.Y. 2010). The standard for granting summary judgment is the same whether the motion is made in lieu of an answer or after discovery has occurred—the moving party must demonstrate that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. See Anderson , 337 F.3d at 206. "An inmate's failure to exhaust administrative remedies is properly considered on a motion for summary judgment made in lieu of an answer." Mckinney v. Prack , 170 F. Supp. 3d 510, 514 (W.D.N.Y. 2016) ; Crenshaw , 686 F. Supp. 2d at 236 (granting summary judgment motion made in lieu of an answer where inmate failed to file grievances or appeals).
B. Administrative Exhaustion
In support of their motion for summary judgment, Defendants argue that Plaintiff's claim must be dismissed because he failed to exhaust his administrative remedies against them. (Dkt. 101-4 at 5). Plaintiff's responses to Defendants’ motion relate mostly to the underlying events at issue, and in response to Defendants’ argument regarding exhaustion, Plaintiff does not dispute that he did not exhaust his claim—rather, he contends that "a Tier ‘3’ Disciplinary proceeding can never be grievable," citing to DOCCS Directive #4040, § 701.3(e). (See Dkt. 113 at 2; see also Dkt. 105 at 16 (arguing that he raised his retaliation claim in his Tier III administrative appeal and before the hearing officer, and he was not required to file any grievance complaints, because: the PLRA does not apply to the disciplinary administrative appeal process; according to DOCCS Directive #4400, issues relevant to Tier III appeals are never grievable; and the PLRA applies only to prisoner complaints relative to prison conditions, not the administrative disciplinary appeal process)).
Pursuant to the PLRA, "[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).
To satisfy that requirement, prisoners in New York must ordinarily follow a three-step DOCS grievance process. The first step in that process is the filing of a grievance with the Inmate Grievance Resolution Committee. Next, the inmate may appeal an adverse decision to the prison superintendent. Finally, the inmate may appeal the superintendent's decision to the Central Office Review Committee ("CORC"). In general, it is only upon completion of all three levels of review that a prisoner may seek relief in federal court under § 1983.
Crenshaw , 686 F. Supp. 2d at 236 (citations omitted). "Exhaustion is mandatory—unexhausted claims may not be pursued in federal court." Amador v. Andrews , 655 F.3d 89, 96 (2d Cir. 2011) ; see also Ross v. Blake , 578 U.S. 632, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016) ("mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion."). "[D]efendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity." McCoy v. Goord , 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003).
Plaintiff alleges that the actions forming the basis for his retaliation claim took place beginning in May 2012. (See Dkt. 14 at 3-4). In support of their motion, Defendants have submitted a copy of a two-page DOCCS document titled "Inmate Grievance, Closed Cases" for Plaintiff, which lists his exhausted grievance history. (Dkt. 101-3 at 5-6). While the grievance report reveals that Plaintiff filed grievances in 1988, 1989, 1994, 1995, 1996, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2009, 2014, and 2016, he did not exhaust any grievances in 2012, when the incidents alleged in the amended complaint occurred. (See id. at 5-6; see also Dkt. 101-1 at ¶ 4). As explained above, Plaintiff does not dispute that he failed to file a grievance; rather, he argues that he was not required to file a grievance because he challenged the false misbehavior reports at his disciplinary hearing and issues relevant to Tier III disciplinary proceedings are not grievable.
If Plaintiff had disputed the issue of exhaustion, the evidence submitted by Defendants in support of their motion would not be sufficient because it is not properly authenticated as a business record. However, because Plaintiff has not filed an opposing statement of facts contesting Defendants’ assertion that he failed to exhaust his claim, and in fact Plaintiff concedes that he did not grieve his claim, the Court will accept this documentation as evidence that Plaintiff did not grieve his retaliation claim. See Kaur v. N.Y.C. Health & Hosps. Corp. , 688 F. Supp. 2d 317, 323-24 (S.D.N.Y. 2010) (where the defendant failed to support records offered in support of summary judgment with a proper affidavit, but rather offered them with the affidavit of defense counsel, who lacked personal knowledge as to creation of maintenance of the defendant's records, exercising discretion over the plaintiff's objection to accept the evidence where "the circumstances surrounding their production ... indicate[d] that the documents are authentic and reliable."), reconsideration denied , 2010 WL 11589961 (S.D.N.Y. May 10, 2010). However, counsel is cautioned that the Court is only accepting the evidence as submitted because Plaintiff does not dispute that he did not grieve his claim, and if Plaintiff had contested this issue, the Court would deny summary judgment if sought based on the unauthenticated documents alone.
Plaintiff's argument that he was not required to exhaust his administrative remedies because Tier III disciplinary hearings are not grievable is misplaced. "Courts in this District have held that [t]hough a disciplinary appeal is sufficient to exhaust a claim that Plaintiff was deprived of due process at a disciplinary hearing, allegations of staff misconduct related to the incidents giving rise to the discipline must be grieved." Fox v. Lee , No. 9:15-CV-0390 (TJM/CFH), 2018 WL 8576600, at *8 (N.D.N.Y. Dec. 18, 2018) (quotations and citations omitted) (rejecting plaintiff's claim that he was not required to exhaust his claims concerning hearing officer bias because they were non-grievable pursuant to DOCCS Directive 4040, § 701.3(e)(1) ), adopted , 2019 WL 1323845 (N.D.N.Y. Mar. 25, 2019). Here, Plaintiff's claim in his amended complaint is not based on a denial of due process at his disciplinary hearing. Rather, Plaintiff's claim against Defendants is based on retaliatory conduct he alleges he experienced for refusing to admit that he was a sex offender during SOCTP, including that he received false misbehavior reports that resulted in disciplinary hearings. As explained in Toliver v. Adner , where the plaintiff argued that the result of his disciplinary hearing was not "grievable," citing to DOCCS Directive No. 4040; 7 NYCRR § 701.3(e)(1), (e)(2) :
Although plaintiff is correct that the "result" of the disciplinary hearing is not grievable because the disciplinary proceeding has its own appeal mechanism, plaintiff is not challenging the due process related to the result of the disciplinary hearing. He is challenging defendant Adner's alleged retaliation in issuing the misbehavior report against plaintiff, and her conduct in opening his mail.
The grievance process applies to all claims of retaliation and staff misconduct which are related to incidents giving rise to inmate discipline. The grievance process is separate from the process of appealing the outcome of a disciplinary hearing, and an inmate "cannot adequately exhaust his remedies for PLRA purposes through his administrative appeal of the hearing decision; he must separately grieve the [defendant's] alleged misconduct...."
No. 9:18-CV-1420 (DNH/ATB), 2019 WL 3503059, at *3 (N.D.N.Y. June 3, 2019) (internal citations omitted), adopted , 2019 WL 3497099 (N.D.N.Y. Aug. 1, 2019), aff'd , 836 F. App'x 68 (2d Cir. 2020), cert. denied , ––– U.S. ––––, 141 S.Ct. 2538, 209 L.Ed.2d 561, (2021). Another judge in this district recently addressed and rejected the same argument:
Plaintiff asserts that he "attempted to grieve the false charges of retaliation to violations of 1st Amendment concerns," but that under New York's regulatory scheme, the "hearing officer's handling of the hearing is non-grievable."
It is not clear what plaintiff means by "false charges of retaliation to violations of 1st Amendment concerns," but it seems that he may be confusing, or attempting to blur, the conduct of the hearing with the underlying charge. Under New York regulations, "an individual
decision or disposition resulting from a disciplinary proceeding ... is not grievable." 7 N.Y.C.R.R. § 701.3(e)(2). In addition, though a disciplinary appeal is sufficient to exhaust a claim that the inmate was deprived of due process at a disciplinary hearing, allegations of staff misconduct related to the incidents giving rise to the disciplinary proceeding must be separately grieved.
In any event, the regulations make clear that inmates are not procedurally barred from grieving matters relating to the conduct of a hearing on disciplinary charges, or to the factual matters giving rise to the charges. What is not grievable is the result of the hearing. In other words, a grievance is not meant to serve as a means to appeal from the outcome of the hearing, absent some procedural irregularities during the disciplinary proceedings. The New York regulatory scheme provides for administrative appeal from a hearing decision, which plaintiff successfully utilized here, based on the absence of a certain witness.
Defendants’ contention that plaintiff did not exhaust his remedies as to his claims of assault, improper searches, false misbehavior reports, and retaliation thus stand unrebutted.
Allah v. Ryan , 436 F. Supp. 3d 621, 627-28 (W.D.N.Y. 2020) (internal citations omitted). Accordingly, the Court concludes that Plaintiff has failed to grieve his First Amendment retaliation claim against Defendants.
C. Plaintiff's Failure to Exhaust His Administrative Remedies is Not Excusable
Although Plaintiff has not made an argument to this effect, in light of his pro se status, the Court also considers whether Plaintiff's failure to exhaust should be excused because, as he contends, issues relevant to Tier III disciplinary hearings are not grievable. See Banks v. United States , No. 10 Civ. 6613 (GBD) (GWG), 2011 WL 4100454, at *11 (S.D.N.Y. Sept. 15, 2011) ("[The plaintiff] has not demonstrated that he should be excused from having to comply with the PLRA's exhaustion requirements."), adopted , 2011 WL 5454550 (S.D.N.Y. Nov. 9, 2011) ; Hill v. Donoghue , No. 08-CV-1045 (JS) (AKT), 2010 WL 3924858, at *1 (E.D.N.Y. Sept. 30, 2010) ("[A] prisoner plaintiff may seek to counter [the] defendants’ contention that the prisoner has failed to exhaust available administrative remedies."). In Ross v. Blake , the Supreme Court explained that "[a]n inmate ... must exhaust available remedies, but need not exhaust unavailable ones." 136 S. Ct. at 1858.
Plaintiff has failed to demonstrate that the grievance process was unavailable to him. The only "excuse" Plaintiff offers for failing to grieve his claim is that he was not required to do so because Tier III disciplinary hearings are not grievable. Plaintiff's assertion is conclusory and incorrect, and he does not offer any meaningful argument that the grievance process was unavailable to him. See Ross , 136 S. Ct. at 1859-60 (explaining that an administrative remedy is functionally unavailable when: "it operates as a simple dead end"; is "so opaque that it becomes ... incapable of use"; or when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation."). Rather, the record reflects that Plaintiff knew how to file a grievance and, in fact, that he has filed several grievances dating back to 1988, including a grievance relating to alleged retaliatory conduct by prison staff. (See, e.g. , Dkt. 101-3 at 5). Accordingly, Plaintiff's explanation as to why he did not file a grievance relating to the alleged retaliation by Defendants does not excuse his failure to exhaust his administrative remedies, and therefore his claims against them are dismissed. See also Allah , 436 F. Supp. 3d at 628 (plaintiff not excused from compliance with exhaustion requirement); Fox , 2018 WL 8576600, at *9 (rejecting as meritless plaintiff's arguments that grievance procedures were not available to him because his claims pertaining to hearing officers were non-grievable).
Generally, a dismissal for failure to exhaust under the PLRA is dismissed without prejudice, particularly when the dismissal is based on a curable, procedural flaw. However, because Plaintiff has since been transferred from the Gowanda Correctional Facility where he alleges the "acts of retaliation occurred" (see Dkt. 14 at 3), and he can no longer cure his defect, the Court dismisses Plaintiff's claim with prejudice. See Hernandez v. Doe 1-7 , 416 F. Supp. 3d 163, 166 (E.D.N.Y. 2018) ("Where an inmate can no longer exhaust administrative remedies because he has been transferred, however, and had ample opportunity to exhaust prior to being transferred, but failed to do so, dismissal with prejudice is proper.").
II. Defendants’ Motion to Dismiss
Defendants have also moved to dismiss the amended complaint on the basis that Plaintiff has failed to state a claim upon which relief can be granted. (Dkt. 97-1 at 3). In the alternative, Defendants argue that Plaintiff should be required to file a second amended complaint, "describing which of the remaining Defendants did what and when." (Id. ). Because the Court has determined that Plaintiff failed to administratively exhaust his retaliation claim and therefore the case must be dismissed, the Court denies Defendants’ motion to dismiss as moot.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment in lieu of an answer (Dkt. 101) is granted, and their motion to dismiss (Dkt. 97) is denied as moot. Plaintiff's claims against defendants L. Latona, J. Woodworth, and SHU Director Prack are dismissed, and the Clerk of Court is directed to terminate them from the docket.
SO ORDERED.