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Civil Action No. 9:16-CV-1408 (MAD/DEP) (N.D.N.Y. Aug. 22, 2018)

Civil Action No. 9:16-CV-1408 (MAD/DEP)


ARKIL LIONKING ZULU, Plaintiff, v. JOHNATHAN M. BARNHART, et al., Defendants.

APPEARANCES: FOR PLAINTIFF: ARKIL LIONKING ZULU, Pro se 96-A-4462 Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 FOR DEFENDANT: HON. BARBARA D. UNDERWOOD New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: MATTHEW P. REED, ESQ. Assistant Attorney General

Elmira Correctional Facility
P.O. Box 500
New York State Attorney General
The Capitol


This is a civil rights action brought by pro se plaintiff Arkil LionKing Zulu ("Zulu"), a New York State prison inmate, pursuant to 42 U.S.C. § 1983, against several corrections employees stationed at the prison facility in which he was confined at the relevant times. In his complaint, Zulu alleges that he was assaulted by those corrections officers, causing injuries to his face that required medical treatment.

Now that discovery is complete, the remaining five defendants in the action have moved for the entry of summary judgment dismissing plaintiff's claims against them. In their motion, defendants argue that plaintiff failed to exhaust available administrative remedies before commencing suit as required under the Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). For the reasons set forth below, I conclude that there are genuine disputes of material fact that must be resolved before defendants' exhaustion defense can be adjudicated. Accordingly, I recommend that defendants' motion be denied and an evidentiary hearing be conducted to address the disputed issues. 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 the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

A. Facts Surrounding Plaintiff's Substantive Claims

Since July 1996, Zulu has been an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Dkt. No. 51-3 at 12. Prior to changing his name, plaintiff was known as Arkil Johnson. Id. Plaintiff was designated to the Marcy Correctional Facility ("Marcy") between September 12, 2014 and February 6, 2015, and from there was transferred into the Upstate Correctional Facility ("Upstate"), arriving at the facility on February 9, 2015. Id. at 141; Dkt. No. 51-6 at 3.

Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined for twenty-three hours each day, primarily for disciplinary reasons. Samuels v. Selsky, No. 01-CV-8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002). (All unreported decisions cited to in this report have been appended for the convenience of the pro se plaintiff.)

Plaintiff claims that on January 18, 2015, while confined at Marcy, he was assaulted by prison officials. Dkt. No. 1 at 2-5; see also Dkt. No. 51-3 at 14-26. Specifically, plaintiff alleges that while he was in the bathroom on that date, defendant Barnhart turned off a fan in the bathroom and then began acting hostile towards plaintiff. Dkt. No. 1 at 2-3; Dkt. No. 51-3 at 14-15. Defendant Barnhart ordered plaintiff to stand against a wall and then radioed for assistance. Dkt. No. 1 at 3; Dkt. No. 51-3 at 15. Defendants Liddick, Muha, Hubal, and Gebo arrived on the scene, and when plaintiff asked defendant Barnhart a question, the officer slammed plaintiff's face into the wall twice. Dkt. No. 1 at 3-4; Dkt. No. 51-3 at 17. Immediately thereafter, defendant Muha told plaintiff he was going to the facility's special housing unit ("SHU"). Dkt. No. 1 at 4. During the transport, while plaintiff was handcuffed, defendant Muha allegedly struck plaintiff in the nose, defendant Hubal allegedly struck plaintiff in the right "eyebrow with a lock around his hand," and defendant Gebo allegedly struck plaintiff in the face. Id.; Dkt. No. 51-3 at 18-20.

After arriving at the SHU and being removed from the transport van, plaintiff was assaulted by defendant Leddick, who grabbed plaintiff by the hair, pulled his head back, and struck him on the left side of his eyebrow with a sharp instrument. Dkt. No. 1 at 4; Dkt. No. 51-3 at 20-21. Defendant Leddick then rammed plaintiff's face into the wall. Dkt. No. 1 at 5; Dkt. No. 51-3 at 21.

As a result of the events of January 18, 2015, plaintiff was taken to St. Elizabeth's Hospital, located in Utica, New York, where he received three stitches to each of his left and right eyebrows. Dkt. No. 51-3 at 27, 72, 104. Plaintiff maintains that he has experienced migraine headaches as a residual result of the incident. Id. at 72.

B. Facts Concerning Exhaustion

Plaintiff claims that he filed a grievance on January 22, 2015, concerning the above-described use-of-force incident that occurred on January 18, 2015, at Marcy. Dkt. No. 51-3 at 106-07; Dkt. No. 59-5 at 1; Dkt. No. 59-7 at 2. Plaintiff alleges that he amended that grievance, and that it was then forwarded through the proper channels on January 25, 2015. Dkt. No. 51-3 at 105. Plaintiff claims that yet another amended grievance regarding the use-of-force incident at Marcy was submitted on February 1, 2015. Id. at 108-10.

Plaintiff claims that, during that same timeframe, he sent letters or copies of letters regarding the assault to other outside agencies, including Human Rights Watch, the New York State Office of Criminal Justice, Acting DOCCS Commissioner Anthony Annucci, the Office of the DOCCS Inspector General ("IG"), and the Federal Bureau of Investigation ("FBI"). Dkt. No. 51-3 at 56-57, 112-14, 122-31. With the exception of Laurie Youngblood, who works with the FBI Prison Correction Unit, and who may have answered Zulu's letter, plaintiff did not receive responses to those communications. Id. at 59-62.

Plaintiff maintains that on February 15, 2015, following his transfer into Upstate, he filed a cover letter and a second grievance concerning the events of January 18, 2015. Dkt. No. 51-3 at 111-14. Copies of that grievance were sent to the FBI and to the Office of the DOCCS IG. Id. at 114.

The Office of the DOCCS IG has been renamed, and is currently known as the Office of Special Investigations. New York State, DOCCS, Office of Special Investigations, http://www.doccs.ny.gov/OSI.html (last visited Aug. 13, 2018).

Plaintiff alleges that he sent a letter concerning the incident to Marcy Superintendent Justin Thomas on or about March 9, 2015. Dkt. No. 51-3 at 115. In that letter, Zulu advised that he was appealing the grievances sent on January 22, 2015 and February 15, 2015. Id.

Plaintiff alleges that on April 4, 2015, he sent a letter to Karen Bellamy, Director of the DOCCS Inmate Grievance Program ("IGP"), expressing a desire to appeal the matter to the Central Office Review Committee ("CORC"), referencing his March 9, 2015 letter to Superintendent Thomas. Dkt. No. 51-3 at 116-17. On May 16, 2015, plaintiff allegedly sent a second letter to Bellamy, referencing the March 9, 2015 letter to Superintendent Thomas and informing Bellamy that he had not yet received a response to his grievance or appeal to the facility superintendent. Id. at 118-19.

Two days later, on May 18, 2015, plaintiff sent a third letter to Bellamy, forwarding copies of the relevant grievance and appeals. Dkt. No. 51-3 at 120. In response, plaintiff received a letter, dated May 21, 2015, from Bellamy acknowledging his letter of May 18, 2015. Id. at 121. In her letter, Bellamy stated that the IGP did not permit inmates to refer their grievances directly to the CORC and, accordingly, advised Zulu that his grievance materials were being returned to him. Id.


Plaintiff commenced this action on or about November 28, 2016, and was granted leave to proceed in the action in forma pauperis. Dkt. Nos. 1, 8. In an order dated December 30, 2016, following sua sponte review of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A, District Judge Mae A. D'Agostino's determined that, while plaintiff's claims against defendant Dischiavo should be dismissed without prejudice, the remaining causes of action set forth in plaintiff's complaint were sufficiently stated and should go forward. Dkt. No. 8. Following service of process, an answer was filed on behalf of the defendants on May 10, 2017. Dkt. No. 36.

On January 9, 2018, following the completion of discovery, defendants moved for the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 51. The sole basis for defendants' motion is their contention that plaintiff did not properly comply with the requirement that he exhaust available administrative remedies before filing suit. Dkt. No. 51-2. Plaintiff has since responded in opposition to defendants' motion. Dkt. No. 59. That motion, which is now fully briefed and 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 Fed. R. Civ. P. 72(b).


A. Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. 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; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). 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.

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; Sec. Ins. Co., 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 dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Exhaustion of Available Administrative Remedies

The lynchpin of defendants' motion currently before the court is that plaintiff did not properly file a grievance concerning the events on January 18, 2015, and pursue that grievance through to completion of the internal DOCCS administrative grievance process. Dkt. No. 51-2.

1. Exhaustion Legal Principles Generally

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 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 process, 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)." (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.

2. Analysis

In support of their motion, defendants have submitted evidence demonstrating plaintiff's familiarity with the IGP, and revealing that plaintiff has appealed twenty-three grievances to the CORC throughout the course of his incarceration. Dkt. No. 51-6 at 3, 7-8. None of those grievances related to the incident on January 18, 2015. Id. at 7-8. Also included in defendants' motion papers are declarations from Erin Pfendler and Donna Wilcox, the IGP supervisors at Marcy and Upstate, respectively. Dkt. Nos. 51-4, 51-5. In those declarations, the two IGP supervisors state that plaintiff did not file any grievances regarding the incident at Marcy on January 18, 2015, at either facility. Dkt. No. 51-4 at 3; Dkt. No. 51-5 at 3. In response to defendants' motion, plaintiff claims to have made efforts, while confined in Marcy, to grieve the alleged assaults of January 18, 2015, but that those efforts were rebuffed when he attempted to forward the grievances through the prison mail system. Dkt. Nos. 59-6 at 2; Dkt. No. 59-7 at 2.

It is well-established, particularly in the wake of Ross, and even under earlier case law in this circuit pursuant to the Second Circuit's Hemphill suite of decisions, that the requirement of exhaustion can be excused if prison officials have thwarted an inmate's legitimate efforts to file a prison grievance. Ross, 136 S. Ct. at 1860; see also Williams, 829 F.3d at 123. In this case, there are squarely conflicting accounts of whether plaintiff did, or attempted to, file a grievance concerning the January 18, 2015 incident. Compare Dkt. Nos. 51-4 at 3, Dkt. No. 51-5 at 3, Dkt. No. 51-6 at 3 with Dkt. No. 59-7 at 2-3. Indeed, plaintiff has submitted evidence that, if credited, could support a finding that he attempted to file a grievance regarding the alleged assaults, but his attempts were frustrated by prison officials. Dkt. No. 59-7 at 2-3. If plaintiff can succeed in establishing that prison officials blocked his efforts to file a grievance regarding the events of January 18, 2015, then the court will likely hold that DOCCS inmate grievance process was not available to him, therefore providing a basis to excuse the PLRA's exhaustion requirement.

Hemphill v. N.Y., 380 F.3d 680 (2d Cir. 2004); Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004); Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004).

The record now before the court presents a dispute of material fact that cannot be resolved on summary judgment. Accordingly, I recommend that defendants' motion be denied, without prejudice, and that the court schedule an evidentiary hearing to address the disputed issues of fact that exist and currently preclude resolution of the exhaustion defense as a matter of law in accordance with Messa v. Goord, 652 F.3d 305 (2d Cir. 2011).


The basis for defendants' pending motion - plaintiff's alleged failure to exhaust available administrative remedies before filing suit - cannot be adjudicated until the court has first resolved genuine disputes of material fact surrounding plaintiff's claimed efforts to file a grievance regarding the incident at Marcy on January 18, 2015. Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment dismissing plaintiff's complaint (Dkt. No. 51) be DENIED, and that the court instead schedule an evidentiary hearing to address the defendants' exhaustion of remedies defense in this action.

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 serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 22, 2018

Syracuse, New York


David E. Peebles

U.S. Magistrate Judge