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Atkins v. Menard

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Jul 3, 2012
Civ. Action No. 9:11-CV-0366 (GTS/DEP) (N.D.N.Y. Jul. 3, 2012)

Opinion

Civ. Action No. 9:11-CV-0366 (GTS/DEP)

07-03-2012

MICHAEL ATKINS, Plaintiff, v. D. MENARD, et al., Defendants.

MICHAEL ATKINS, pro se OF COUNSEL: FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York The Capitol CHRISTOPHER W. HALL, ESQ. Assistant Attorney General


APPEARANCES:

FOR PLAINTIFF: MICHAEL ATKINS, pro se

OF COUNSEL:

FOR DEFENDANTS:

HON. ERIC T. SCHNEIDERMAN
Attorney General of
the State of New York
The Capitol

CHRISTOPHER W. HALL, ESQ.

Assistant Attorney General

REPORT AND RECOMMENDATION

Plaintiff Michael Atkins, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983 alleging deprivation of his civil rights. In his complaint Atkins contends that, in violation of the Eighth Amendment, he was beaten by several corrections workers, who are named as defendants, and that when he was interviewed three days later after complaining about the incident he was struck in the face several times while Corrections Lieutenant Allen, who is also a defendant in the action, stood by and failed to protect him. As relief, plaintiff's complaint seeks damages in the amount of $5,000,000 and asks that all defendants be charged for hate crimes and violations of the Eighth Amendment.

Currently pending before the court is a motion for partial summary judgment brought by the defendants, seeking dismissal of plaintiff's failure to protect claim. In their motion defendants argue that Atkins is procedurally barred from pursuing that cause of action by virtue of his failure to file and pursue the necessary grievance in order to satisfy his exhaustion obligation before commencing suit. Having carefully reviewed defendants' motion and plaintiff's opposition, I conclude that plaintiff has failed to demonstrate the existence of triable issues of material fact surrounding the question of whether he did in fact exhaust administrative remedies with respect to the failure to protect claim, or should be excused from that requirement, and therefore recommend that the defendants' motion be granted. I. BACKGROUND

In light of the procedural posture of the case the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

Plaintiff is a prison inmate being held in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"); at the times relevant to his claims in this action, Atkins was designated to the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. See generally Complaint (Dkt. No. 1).

In his complaint plaintiff alleges that on July 18, 2008, he was retrieved from his cell by two unknown officers and escorted to the front of C-block, where Sergeant Menard as well as several corrections officers, including defendants Hayes, Russell, Moak, and Martin, were waiting. Complaint (Dkt. No. 1) § 6. Atkins claims the officers then proceeded to strike him in the face, back, and head, knock out a tooth, and threaten him with a razor. Id.

On July 21, 2008, Atkins approached Clinton Superintendent Dale Artus, as he was making his rounds, and reported the July 18, 2008 assault, claiming to be suffering from lingering health conditions attributable to the incident. Complaint (Dkt. No. 1) § 6. Superintendent Artus ordered that Atkins be escorted to the facility's medical unit for an examination. After being examined by a nurse, Atkins was interviewed by Lieutenant Allen and three unknown officers. Id. During the interview, Atkins claims he was "smacked" in the face by officers whenever he mentioned the names of staff members who assaulted him, and that Lieutenant Allen witnessed that conduct but nonetheless failed to protect him from it. Complaint (Dkt. No. 1) § 6, 7.

Atkins submitted a written inmate grievance complaint to prison officials, complaining of the alleged assault of July 18, 2008. Atkins Aff. (Dkt. 38) Exh. 2; Brousseau Aff. (Dkt. No. 34-2) ¶¶ 10-11 and Exh. B. While dated July 20, 2008, the grievance was not date-stamped as having been received until August 1, 2008, and was responded to by Superintendent Artus on September 17, 2008. Brousseau Aff. (Dkt. No. 34-2) ¶ 10 and Exh. B. Between the time that the grievance was submitted and the superintendent responded, Atkins wrote letters to Superintendent Artus, DOCCS Director of Inmate Grievance Program Karen Bellamy, and Tara Brousseau, the Inmate Grievance Program Supervisor at Clinton, complaining that he had not received a response to his grievance, advising that he wished to appeal the matter to a higher level, and alleging that prison staff members were playing "grievance games" with him. See Atkins Aff. (Dkt. No. 38) ¶ 6 and Exhs. 1, 3, 4, and 8. Atkins also filed several other grievances while at Clinton, although none pertained directly to the alleged assault on July 21, 2008 or the failure of defendant Allen to protect him, instead addressing such matters as corrections officers allegedly reading his legal mail and his requests for a CT scan, dentures, and a raise. See Brousseau Aff. (Dkt. 34-2) Exh. A.

Plaintiff also wrote to Superintendent Artus on September 26, 2008, inquiring as to why his Central Office Review Committee ("CORC") appeal of the Superintendent's denial of the July 20, 2008 grievance was never processed. Atkins Aff. (Dkt. No. 38) Exh. 6.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on April 4, 2011, and was thereafter granted leave to proceed in forma pauperis. Dkt. Nos. 1, 4. As defendants, plaintiff's complaint names Sergeant Menard, Corrections Officers B. Hayes, Russell, L. Martin, and Moak, and Corrections Lieutenant Allen. Complaint (Dkt. No. 1) § 3. In his complaint, plaintiff asserts claims of assault and failure to protect. See Complaint (Dkt. No. 1) § 7.

While the claim is nowhere mentioned in his complaint, in his memorandum of law plaintiff asserts that defendant Allen's actions, and those of the three corrections officers, taken on July 21, 2008, were in retaliation for his having reported the assault from three days earlier. See Plaintiff's Memorandum (Dkt. No. 38-1) ¶ 1.

On December 23, 2011, defendants moved for partial summary judgment seeking dismissal of plaintiff's failure to protect claim, arguing that he did not satisfy his statutory obligation to exhaust available administrative remedies before commencing suit. Dkt. No. 34. Plaintiff has since responded in opposition to that motion in papers filed on January 11, 2012. Dkt. No. 38. Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4; Security Ins., 391 F.3d at 83. In the event this initial burden is met the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). Summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Exhaustion of Remedies

In their motion, defendants assert that plaintiff's failure to protect claim is procedurally barred based upon his failure to exhaust administrative remedies with regard to that cause of action. In response, plaintiff claims to have submitted a grievance regarding the July 21, 2008 incident, but that due to interference by prison staff it was never processed and decided.

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 "[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 Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 2382 (2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007). "[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, 122 S. Ct. 983, 992 (2002) (citation omitted).

Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.

If the court finds that an inmate plaintiff failed properly to exhaust available remedies prior to commencing the action, his or her complaint is subject to dismissal. See Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 94-95, 126 S. Ct. at 2387-88 (holding that the PLRA requires "proper exhaustion" of available remedies). "Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95, 126 S. Ct. at 2388; see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (citing Woodford).

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 or her 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 a series of decisions rendered since the enactment of the PLRA, the Second Circuit crafted a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. Macias, 495 F.3d at 41; see Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). Under the prescribed catechism, a court must first determine whether administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. If such a remedy existed and was available, the court must next examine whether the defendants have forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it or whether, through their own actions in preventing the exhaustion of plaintiff's remedies, they should be estopped from asserting failure to exhaust as a defense. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event the proffered defense survives these first two levels of scrutiny, the court lastly must examine whether special circumstances nonetheless exist and "have been plausibly alleged" to justify the plaintiff's failure to comply with the applicable administrative procedural requirements. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686.

Whether the Hemphill test survives following the Supreme Court's decision in Woodford, has been a matter of some speculation. See, e.g., Newman v. Duncan, No. 04-CV-395, 2007 WL 2847304, at * 2 n.4 (N.D.N.Y. Sept. 26, 2007) (McAvoy, S.J. and Homer, M.J.) .

Defendants have preserved the defense of non-exhaustion by raising it in their answer. See Answer (Dkt. 17) ¶ 9 ("To the extent Plaintiff has failed to exhaust administrative remedies for any claim, such claim should be dismissed.").

In practicality these three prongs of the prescribed test, though perhaps intellectually distinct, plainly admit of significant overlap. See Hargrove, 2007 WL 389003, at *8 n.14; see also Giano v. Goord, 380 F.3d 670, 677 n.6 (2d Cir. 2004);

Plaintiff does not contest the availability of a mechanism for seeking internal administrative relief with respect to complaints regarding prison conditions at Clinton. New York prison inmates are subject to an Inmate Grievance Program ("IGP") established by the DOCCS and recognized as an "available" remedy for purposes of the PLRA. See Mingues v. Nelson, No. 96 CV 5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004) (citing Mojias v. Johnson, 351 F.3d 606 (2d Cir. 2003) and Snider v. Melindez, 199 F.3d 108, 112-13 (2d Cir.1999)). The IGP consists of a three-step review process. First, a written grievance is submitted to the Inmate Grievance Review Committee ("IGRC") within twenty-one days of the incident. 7 N.Y.C.R.R. § 701.5(a). The IGRC, which is comprised of inmates and facility employees, then issues a determination regarding the grievance. Id. at §§ 701.4(b), 701.5(b). If an appeal is filed, the superintendent of the facility next reviews the IGRC's determination and issues a decision. Id. at § 701.5(c). The third level of the process affords the inmate the right to appeal the superintendent's ruling to the CORC, which makes the final administrative decision. Id. at § 701.5(d). Ordinarily, absent the finding of a basis to excuse non-compliance with this prescribed process, only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to section 1983 in a federal court. Reyes v. Punzal, 206 F. Supp. 2d 431, 432 (W.D.N.Y. 2002) (citing, inter alia, Sulton v. Greiner, No. 00 Civ. 0727, 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000)).

The IGP supervisor may waive the grievance timeliness requirement due to "mitigating circumstances." 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a)-(b).

Defendants have submitted compelling evidence suggesting that plaintiff never filed a grievance regarding the July 21, 2008 incident and, in any event, clearly did not pursue that grievance through to the CORC. Plaintiff, in stark contrast, contends that he attempted to avail himself of the IGP by submitting a grievance regarding the July 21, 2008 incident, but that through the actions of prison officials he was thwarted in his efforts to pursue the grievance through to resolution. The issue in this case, then, can be distilled into the question of whether, as he asserts, plaintiff filed a grievance but was precluded from pursuing it by the actions of prison officials or, as defendants allege, he never submitted a grievance regarding July 21, 2008 events.

Ordinarily, these conflicting accounts would reflect the existence of a genuine issue of material fact precluding the entry of summary judgment concerning the exhaustion issue. However, there are two reasons why, in this instance, plaintiff's claim of having filed a grievance does not preclude the entry of summary judgment. First, the assertion is made in a document which is not notarized, and therefore does not constitute an "affidavit". Quintero v. Rite Aid of New York, Inc., No. 09 Civ. 6084(JLC), 2011 WL 5529818, at *5 (S.D.N.Y. Nov. 10, 2011) (citing Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985)); Soliman v. Daimler AG, No. 10 CV 408(SJF)(AKT), 2011 WL 1627009, at * 1 (S.D.N.Y. Apr. 27, 2011). The rule governing summary judgment motions requires that a party, to show that the fact is genuinely disputed,

. . . must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purpose of the motion only), admissions, interrogatory answers, or other materials". . .
Fed. R. Civ. P. 56(c)(1)(A); see Watson v. Wright, No. 9:08-CV-62, 2011 WL 4527789, at * 7 (N.D.N.Y. Aug. 4, 2011) (Baxter, M.J.), report and recommendation adopted, 2011 WL 4528931 (N.D.N.Y. Sep 28, 2011) (Mordue, C. J.).

It is, of course, true that a statement, though not formally notarized, can have the equivalent force of an affidavit provided that it complies with the requirements of 28 U.S.C. § 1746 and thus can be considered as having evidentiary value for purposes of a summary judgment motion. 28 U.S.C. § 1746 (1994); see Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1998). Section 1746, which is entitled "Unsworn Declarations under Penalty of Perjury", provides, that a statement stating that it is given under penalty of perjury substantially in the form "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct" may be considered as the functional equivalent of a sworn affidavit for purposes of summary judgment. 28 U.S.C. § 1746; Yearwood v. LoPiccolo, No. 95-CIV.2544 (DC), 1998 WL 474073, at *5 (S.D.N.Y. Aug. 10, 1998).

In this instance, plaintiff's statement is not notarized, nor does it contain the required language under section 1746 for consideration as a sworn declaration. Where a purported affidavit is neither notarized nor otherwise complies with the requirements of 28 U.S.C. § 1746, even when submitted by a pro se party, it should be disregarded. Yearwood, 1998 WL 474073, at *5. Plaintiff's statement is therefore not evidence of anything for purposes of opposing defendants' motion for summary judgment. LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999); Stewart v. Howard, No. 9:09-CV-0069, 2010 WL 3907227, at *11 (N.D.N.Y. Apr. 26, 2010) (Lowe, M.J.), report and recommendation adopted, 2010 WL 3907137 (N.D.N.Y. Sep. 30, 2010) (Sharpe, J.).

In addition, plaintiff's naked assertion that he filed a grievance regarding the July 21, 2008 incident is wholly lacking support anywhere in the record, and the documents which he himself has submitted strongly suggest that no such grievance was, in fact, filed. Plaintiff has not offered a copy of the grievance allegedly filed concerning the failure to protect incident. And, tellingly, the letters he wrote to prison officials inquiring concerning the status of his grievance refer only to the single grievance, related to an assault by officers, and certain of those letters specifically reference the July 18, 2008 assault. See, e.g., Atkins Aff. (Dkt. No. 38) Exhs. 1, 3, 4, and 6. None of those communications references a second grievance, nor do any make mention of the July 21, 2008 incident. Id. Similarly, a grievance filed by Atkins on September 29, 2008 accuses staff at Clinton of "playing grievance games and tampering with [his] mail", but refers only to his grievance related to the July 18, 2008 incident, which he desired to appeal to the CORC, and makes no mention of a subsequent grievance concerning the July 21, 2008 events. See id., Exh. 7.

Ordinarily, credibility determinations fall exclusively within the province of a jury, and such assessments are therefore inappropriately made by a court on a motion for summary judgment. Rule v. Brine, Inc. 85 F.3d 1002, 1011 (2d Cir. 1996) (citing, inter alia, Anderson, 477 U.S. at 255, 106 S. Ct. 2513). The Second Circuit has, however, created a very narrow exception to this rule. See Jeffreys, 426 F.3d 549; see also Slacks v. Gray, No. 9:07-CV-510, 2009 WL 3164782, at * 13 (N.D.N.Y. Sept. 29, 2009) (Mordue, C.J.). In Jeffreys, the Second Circuit held that summary judgment may be awarded in the rare circumstance where there is nothing in the record to support the plaintiff's allegations, other than his own contradictory and incomplete testimony, and even after drawing all inferences in the light most favorable to the plaintiff, the court determines that "no reasonable person" could credit the plaintiff's testimony. Jeffreys, 426 F.3d at 54-55. The Jeffreys court cited with approval the district court's opinion in Shabazz, 994 F. Supp. at 468-71, which granted summary judgment in an excessive force case based upon the absence of any evidence in the record to corroborate the plaintiff's version of the events, highlighting the "many inconsistencies and contradictions within the plaintiff's deposition testimony and affidavits." Slacks, 2009 WL 3164782, at *13 (citing Jeffreys, 426 F.3d at 555 and quoting Shabazz, 994 F. Supp. at 470).

The court in Shabazz found that when the facts alleged by the plaintiff are "so contradictory that doubt is cast upon their plausibility," the court may "pierce the veil of the complaint's factual allegations ... and dismiss the claim." Shabazz, 994 F. Supp. at 470. While approving of the lower court's reasoning in Shabazz, the Jeffreys court was careful to distinguish Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir.1997), another case it had previously decided, wherein it reversed the grant of summary judgment in an excessive force case. Jeffreys, 426 F.3d at 554-55. In doing so, the court emphasized that in Fischl the plaintiff's testimony that he was beaten was supported by photographs showing severe bruises, hospital records showing that he had fractures of the head; by a physician's opinion that plaintiff's injuries were consistent with having been kicked in the head; and that the plaintiff's eye socket fracture could not have been self-inflicted. Id.

In order to qualify for application of the Jeffreys exception a defendant must meet the following three requirements: 1) the plaintiff must rely "almost exclusively on his own testimony"; 2) the plaintiff's testimony must be "contradictory or incomplete"; and 3) the plaintiff's testimony must be contradicted by evidence produced by the defense. Benitez v. Ham, No. 9:04-CV-1159, 2009 WL 3486379, at *20-21 (N.D.N.Y. Oct. 21, 2009) (Mordue, C.J. and Lowe, M.J.) (citing and quoting Jeffreys).

Based upon a careful review of the entire record before the court, I have concluded that these elements have been met, and this case therefore presents one of those rare exceptions to the rule that credibility determinations are inappropriately made when ruling on a summary judgment motion. This finding is based upon the fact that, in the face of admissible evidence offered by defendantd showing that plaintiff did not properly exhaust his remedies, plaintiff has failed to come forward with evidence demonstrating a triable issue of fact. To the contrary, the plaintiff's allegations are made only in the form of an unsworn statement, he has failed to provide a copy of the alleged grievance filed concerning the July 21, 2008 incident, and the several letters written to DOCCS officials requesting information concerning the status of his grievance refer only to a single grievance and, in several instances, specifically refer to the July 20, 2008 grievance and the July 18, 2008 incident without any mention of the events of July 21, 2008. Simply put, careful review of the record now before the court shows that no reasonable jury could credit plaintiff's version of the events surrounding his claim of exhausting administrative remedies.

As was earlier noted, there is a third, catch-all factor under the Second Circuit's 2004 decisions addressing exhaustion, under which a plaintiff may be excused from failing to exhaust by demonstrating the existence of special circumstances justifying excusing his or failure to exhaust. Hemphill, 380 F.3d at 689; see also Giano, 380 F.3d at 676-77; Hargrove, 2007 WL 389003, at *10. Among the circumstances potentially qualifying as "special" under this prong of the test include 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 is not grievable. Giano, 380 F.3d at 676-77; see also Hargrove, 2007 WL 389003, at *10 (quoting and citing Giano). In this instance, plaintiff has not alleged the existence of any special circumstances of the type contemplated by the Second Circuit in Hemphill.

IV. SUMMARY AND RECOMMENDATION

Plaintiff's complaint arises out of an alleged assault by corrections officers and a lieutenant's subsequent failure to protect plaintiff during an investigation three days later. The record now before the court convincingly establishes that while plaintiff did file a grievance concerning the initial assault - although it does not appear to have been pursued to completion before the CORC - no such grievance was filed complaining of the failure of Corrections Lieutenant Allen to protect him during an interview conducted three days later. Having concluded that defendants have convincingly established plaintiff's failure to exhaust available administrative remedies regarding that claim, and finding no basis to excuse the exhaustion requirement, it is hereby respectfully

RECOMMENDED, that defendants' partial motion for summary judgment (Dkt. No. 34) be GRANTED, and that all claims by the plaintiff against defendant Allen be DISMISSED.

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).

It is hereby 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.

_________________

David E. Peebles

U.S. Magistrate Judge
Dated: July 3, 2012

Syracuse, NY


Summaries of

Atkins v. Menard

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Jul 3, 2012
Civ. Action No. 9:11-CV-0366 (GTS/DEP) (N.D.N.Y. Jul. 3, 2012)
Case details for

Atkins v. Menard

Case Details

Full title:MICHAEL ATKINS, Plaintiff, v. D. MENARD, et al., Defendants.

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Date published: Jul 3, 2012

Citations

Civ. Action No. 9:11-CV-0366 (GTS/DEP) (N.D.N.Y. Jul. 3, 2012)