Opinion
9:19-CV-1314 (BKS/TWD)
04-22-2021
NAJI SANDERS, Plaintiff, v. CORRECTIONS OFFICER KEVIN ST. MARY, CORRECTIONS OFFICER TROY MATTHIE, Defendants.
APPEARANCES: NAJI SANDERS Plaintiff, pro se 18-A-0885 Great Meadow Correctional Facility Box 51 Comstock, New York 12821 HON. LETITIA JAMES Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224 LAUREN ROSE EVERSLEY, ESQ. Assistant Attorney General
| APPEARANCES: | OF COUNSEL: |
| NAJI SANDERSPlaintiff, pro se18-A-0885Great Meadow Correctional FacilityBox 51Comstock, New York 12821 | |
|---|---|
| HON. LETITIA JAMESAttorney General for the State of New YorkAttorney for DefendantsThe CapitolAlbany, NY 12224 | LAUREN ROSE EVERSLEY, ESQ.Assistant Attorney General |
Naji Sanders ("Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this pro se civil rights action under 42 U.S.C. § 1983, asserting claims arising out of his incarceration at Upstate Correctional Facility ("Upstate CF"). (Dkt. No. 11, Plaintiff's second amended complaint.) Correction Officers Kevin St. Mary and Troy Mathie (collectively "Defendants") now move for summary judgment, in lieu of an answer, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 25.) In short, Defendants argue Plaintiff commenced this action before completing the grievance process. (Dkt. No. 25-1.) For the reasons set forth below, the Court recommends that Defendants' motion be granted and Plaintiff's case be dismissed without prejudice.
I. DISCUSSION
A. Background
In his second amended complaint, Plaintiff alleges that, on September 25, 2019, Defendants tightened his handcuffs to a point where he suffered cuts and bruises and they slammed his thumb into a cell's feed slot. (Dkt. No. 11 at 3.) The District Court construed Plaintiff's second amended complaint as alleging Eighth Amendment excessive force claims against Defendants. (Dkt. Nos. 7, 12.)
Defendants now bring a motion for summary judgment in lieu of an answer. (Dkt. No. 25.) In their motion, Defendants argue Plaintiff's claims are the proper subject for a grievance under the applicable grievance procedures, but Plaintiff filed this action in federal court before he completed the grievance process. (Dkt. No. 25-1 at 9-10.) In declarations filed in connection with their motion, Defendants demonstrated that Plaintiff filed grievances related to the above-mentioned incident on October 7, 2019, the Superintendent denied these grievances on September 13, 2019, and the Central Office Review Committee ("CORC") denied the grievances on January 29, 2020. (Dkt. No. 25-3 at ¶¶ 16-19; Dkt. No 25-4 at ¶ 16.) Thus, according to Defendants, because Plaintiff commenced this action on October 11, 2019—before he completed the administrative grievance procedure—the second amended complaint should be dismissed for failure to exhaust. (Dkt. No. 25-1.)
Plaintiff's response to Defendants' motion for summary judgement does not address the substance of Defendants' arguments regarding exhaustion. Rather, he asserts in a conclusory fashion that the motion should be dismissed because it is, among other things, "a nefarious dilatory tactic insidiously calculated to eschew any accountability of the crimes committed against this . . . Plaintiff." (Dkt. No. 36 at 2.) He further argues that it is illegal to impose a condition precedent—such as exhaustion—on his right to access to the courts. Id. at 4. Further, Plaintiff appears to challenge the competency of the evidence Defendants provided in their motion. Specifically, he asserts that, because Donna Wilcox and Rachel Seguin are not parties of this action they cannot be fact witnesses and the Court should disregard their affidavits in support of Defendants' motion for summary judgment. Id. at 3-4.
B. Standard of Review
1. Plaintiff's Failure to Respond to Defendants' Statement of Material Facts
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). Here, Plaintiff failed to challenge the statement of material facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3).,
The Local Rules were amended effective January 1, 2021. In the amendment, L.R. 7.1 was dissected and various subsections were renumbered and relocated to correspond with the appropriate Federal Rule. The relevant substance of the rules did not change. In the currently operative version of the Local Rules, L.R. 56.1 deals with summary judgement motions. However, because these motions were filed in 2020, the Court refers to the Local Rules as they existed at that time.
Local Rule 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." N.Y.N.D. L.R. 7.1(a)(3).
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Defendants provided Plaintiff with the requisite notice of the consequences of his failure to respond to the motion. (Dkt. No. 58 at 3.)
Accordingly, the facts set forth in Defendants' Statement of Material Facts (Dkt. No. 25-2) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's second amended complaint and verified opposition submissions will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) ("Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts Pursuant to Rule 7.1(a)(3) . . . supplemented by Plaintiff's verified complaint . . . as true."). As to any facts not contained in Defendants' Statement of Material Facts, in light of the procedural posture of this case, the Court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of Plaintiff. Terry, 336 F.3d at 137.
As noted above, Plaintiff contends Defendants' statement of material facts should be ignored because he argues Donna Wilcox and Rachel Seguin are incompetent fact witnesses. (Dkt. No. 36.) Plaintiff is mistaken. These affidavits are from people who have personal knowledge of DOCCS' Inmate Grievance Program and they set out facts that would be admissible in evidence. See Fed. R. Civ. P. 56(c)(4). Thus, the Court finds these affidavits are acceptable evidence and can be used to support Defendants' motion for summary judgment.
Moreover, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has reviewed the entire record.
2. Summary Judgment Standard
A court "shall grant summary judgment if the movant shows 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
C. Analysis
The Prison Litigation Reform Act of 1995 ("PLRA"), provides, in pertinent part, "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is required for "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). "[E]xhaustion is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (stating that the mandatory language of § 1997e(a) forecloses judicial discretion to craft exceptions to the requirement). To properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the institution to which they are confined. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly"). Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing a failure to meet exhaustion requirements. See Jones, 549 U.S. at 216.
DOCCS has a well-established three-step administrative review process, Inmate Grievance Program ("IGP"), which oversees the manner in which issues are resolved by affording inmates "an orderly, fair, simple and expeditious method for resolving grievances." 7 N.Y.C.R.R. § 701.1(a). Concerns "about the substance or application of a written or unwritten policy, regulation, procedure or rule of [DOCCS]," as well as complaints of "employee misconduct meant to annoy, intimidate or harm an inmate" may be filed. Id. § 701.2(a)-(e).
First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. § 701.5(a). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance, id. § 701.5(b)(2), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's Superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the Superintendent must issue a written decision within twenty calendar days of receipt of the grievant' s appeal. Id. § 701.5(c)(3)(ii).
Third, a grievant may appeal to CORC within seven working days of receipt of the Superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
The Second Circuit has long recognized this procedure as an "available remedy" for purposes of the PLRA. See Hall v. Cty. of Saratoga, No. 10-CV-1120 (NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6, 2013). Generally, if a plaintiff, as here, fails to follow each of the required steps prior to commencing an action, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks and citations omitted)).
Nevertheless, while the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, Section 1997e(a) provides only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]" (quotation marks and citations omitted)). In the PLRA context, the Supreme Court has determined "availability" means "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 and citations omitted).
There are three circumstances in which a court may find a facility's internal administrative remedies are not available under the PLRA. Id. at 1859-60. 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. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
The question as to whether the plaintiff has exhausted his administrative remedies is a question of law. See Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999). Thus, an inmate's failure to exhaust administrative remedies is properly considered on a motion for summary judgment in lieu of an answer. Crichlow v. Fischer, No. 6:15-CV-06252 EAW, 2017 WL 920753, at *5 (W.D.N.Y. Mar. 7, 2017) (citing Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (granting a motion for summary judgment made in lieu of an answer where inmate failed to exhaust administrative remedies)).
Here, the record evidence in this case establishes the following timeline:
September 25, 2019 - Plaintiff alleges Defendants used excessive force against him during a cell extraction. (Dkt. No. 11.)Therefore, the undisputed facts demonstrate that Plaintiff commenced this action before he completed the administrative review process. (Dkt. No. 25-2 at ¶ 21.) When a prisoner fails to properly exhaust his administrative remedies before filing suit, the action must be dismissed. Burgos v. Craig, 307 F. App'x 469, 471 (2d Cir. 2008) ("[Exhaustion ] must be completed before suit is filed, and completing the exhaustion requirements only after filing suit is insufficient." (citation omitted)); Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter, 534 U.S. 516.
October 7, 2019 - Plaintiff filed two inmate grievances regarding the September 25, 2019 assault. (Dkt. No. 25-2 at ¶¶ 15, 16.)
October 11, 2019 - Plaintiff commenced this action in federal court. (Dkt. No. 1.)
November 13, 2019 - the Superintendent found both of Plaintiff's grievances were unsubstantiated. (Dkt. No. 25-2 at ¶¶ 17, 18.)
November 27, 2019 - Plaintiff appealed both grievances to CORC. Id. at ¶ 19.
January 29, 2020 - CORC issued a joint determination denying both grievances. Id. at ¶ 20.
Moreover, there is no evidence in the record showing the grievance procedure "operate[d] as a simple dead end" to Plaintiff, nor is there any evidence to establish an issue of fact as to unavailability due to an "opaque" administrative scheme. See Ross, 136 S. Ct. at 1859-60. There also is no evidence prison administrators prevented Plaintiff from using the grievance procedure due to "machination, misrepresentation, or intimidation." Id.
Dismissal is appropriate even if—as is the case here—the plaintiff's claim has since been exhausted. See Mateo v. Alexander, No. 08-cv-8797(RJH), 2010 WL 431718, at *3 (S.D.N.Y. Feb. 9, 2010); Mendez v. Artuz, No. 01-cv-4157(GEL), 2002 WL 313796, at *2 (S.D.N.Y. Feb. 27, 2002); Bowie v. Woodruff, No. 9:18-CV-0266 (BKS/ML), 2019 WL 7606078, at *5 (N.D.N.Y. Sept. 20, 2019), report and recommendation adopted, 2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019) ("The fact that Bowie subsequently exhausted his administrative remedies [in the sense that CORC issued a decision on his grievance] is irrelevant as he was required to properly exhaust before he sued"); Scott v. Uhler, No. 16-CV-403, 2019 WL 5197139, at *5, (N.D.N.Y. July 31, 2019) ("Receiving a decision from CORC after filing a federal lawsuit does not satisfy the PLRA's requirement that administrative remedies be exhausted before filing suit, and any such action must be dismissed without prejudice"). Furthermore, a post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the time the action was commenced. Livingston v. Hoffnagle, No. 9:17-CV-1158 (MAD/DEP), 2019 WL 409366, at *4 (N.D.N.Y. Feb. 1, 2019) (citation omitted). "Were the rule otherwise, prisoners would have little reason to wait for the administrative process to play itself out before filing suit, which would defeat the purpose of the exhaustion requirement 'to reduce the quantity and improve the quality of prisoner suits [and to afford] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Animashaun v. Afify, 470 F. Supp. 3d 294, 297 (W.D.N.Y. 2020) (quoting Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (alterations in original) (other citations omitted)).
In such a case as this, dismissal is without prejudice, and the case may be refiled. See Brown v. Napoli, 687 F. Supp. 2d 295, 298 (W.D.N.Y. 2009); Chisholm v. New York City Dep't of Correction, No. 08 Civ. 8795, 2009 WL 2033085, at *3 (S.D.N.Y. July 13, 2009); Doe v. Goord, No. 04 CV 0570, 2004 WL 2829876, at *8 (S.D.N.Y. Dec. 10, 2004) ("Dismissal of an action for failure to exhaust administrative remedies ordinarily is without prejudice."). Such a remedy is appropriate because "[f]ailure to exhaust administrative remedies is often a temporary, curable procedural flaw." Acosta v. Corrections Officer Dawkins, No. 04 Civ. 6678, 2005 WL 1668627, at *4 n.6 (S.D.N.Y. July 14, 2005) (quoting Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003)).
In sum, the Court finds Defendants have adequately demonstrated Plaintiff failed to exhaust his administrative remedies before filing suit in federal court, and Plaintiff has not plausibly explained why any exception to exhaustion should apply. Therefore, the Court recommends that this action be dismissed without prejudice.
II. CONCLUSION
After carefully considering the record, the Court finds Plaintiff failed to exhaust his administrative remedies.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 25) be GRANTED; and it is further
RECOMMENDED that Plaintiff's second amended complaint (Dkt. No. 11) be DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). Dated: April 22, 2021
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge