Peeler v. McGill et al

Filing 60

RULING AND ORDER granting 54 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 10/31/13. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RUSSELL PEELER,

:

Plaintiff,

:

V.

:

JEFFREY MCGILL, et al.,

:

Defendants.

CASE NO. 11-CV-327 (RNC)

:
RULING AND ORDER

Plaintiff Russell Peeler, an inmate at Northern
Correctional Institution ("NCI"), brings this action pro se
under 42 U.S.C. § 1983 against Captain Scott Salius and
Correctional Officers (COs) Robert Mihaliak, Wilbur
Strozier, Steven Viera, Anthony Chukwurah and D. Hovanec
claiming they were deliberately indifferent to a threat to
his safety in violation of the Eighth Amendment.

The

defendants have moved for summary judgment on the grounds
that the plaintiff failed to exhaust his administrative
remedies and cannot establish a constitutional violation.
I agree that the plaintiff's failure to exhaust
administrative remedies bars the suit and therefore grant
the motion without addressing the Eighth Amendment claim.
I. Background
The parties' submissions show the following.
1

On May

14, 2008, the plaintiff was assaulted by Daniel Webb, an
inmate housed in a cell next to the plaintiff's cell on
death row at NCI.

Two weeks before the assault, Webb

complained to Captain Salius about the plaintiff and asked
that the plaintiff be moved to another part of the unit.
Salius prepared a written report of his conversation with
Webb.

See Pl.'s Ex. A (ECF No.55-4).

Th report states that

when Salius told Webb the plaintiff would not be moved, Webb
replied: "that's OK, I will handle this another way."

Id.

Salius noted that unit staff had informed him that the
plaintiff and Webb argued constantly.

Id.

The report

concluded:
By directive and post order the inmates are to be moved
by themselves and are not to have any contact with each
other. I informed staff to use diligence when dealing
with these individuals and to ensure that all
procedures are being followed. I also verbally
informed staff and placed a[] note on the housing unit
board to ensure that the cell doors are being pulled on
to ensure they are secure after either inmate returns
to the cell. Staff were informed to ensure that the
inmates are placed into different recreation yards
during their rec period to safeguard against fluid
assaults.
Id.
On the day of the assault, Webb used his cell intercom
to call CO Mihaliak, the duty officer responsible for
opening and closing doors throughout the unit, to ask if he
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could take a shower.

Mihaliak opened Webb's cell door and

Webb walked to the shower unescorted.

When Webb signaled

that he was done showering, Mihaliak pressed a control
button to release him from the shower.

Webb walked

unescorted into his own cell, number 125, exited his cell
and stood in front of plaintiff's cell, number 124.

Webb

then signaled for cell 124 to be opened, and Mihaliak opened
the door.

Webb rushed into the cell, threw plaintiff out

and began attacking him with his fists, shouting "run your
mouth now."

Mihaliak called a Code Blue, and, after

approximately twenty seconds, responding staff arrived to
separate the inmates.

Plaintiff was taken to the emergency

room where he was treated for injuries to his head and face.
The incident was investigated by the Security Division.
A report of the investigation filed May 30, 2008, concluded
that Mihaliak had allowed Webb out of his cell without a
staff escort and inadvertently opened the plaintiff's cell.
These actions were contrary to prison directives requiring
"staff to use extreme caution when dealing with Death Row
Inmates" and to escort such inmates "to and from any in-unit
activities such as recreation, showers, or phone calls."
See Pl.'s Ex. D (ECF No. 55-4) at 6.

3

As a result, Mihaliak

was disciplined with a one-day suspension.
On June 11, 2008, plaintiff filed a Level 1 grievance.
In the section of the grievance form instructing inmates to
state the problem and the resolution requested, plaintiff
inserted the following:
Due to the fact I have a 30 day deadline that is about
to expire and my FOI request of the total incident
reports have been delayed, I can't give names of all
staff that was working during the attack on May 14,
2008. . . . On May 14, 2008 I was in my bed in 1 East
Area cell 124 and I was attacked by Daniel Webb he was
let in my cell by the CO that was working the bubble. .
. . If COs were out escorting Daniel Webb and if the CO
in the bubble wouldn't allowed Daniel Webb in my cell
or if the block COs were attentive they could have
assisted me with my protection. Deputy Warden
Rodriguez told me today again while on 1 East that the
material I requested aren't ready for the incident that
happen on 4-14-08.
Pl.'s Ex. J (ECF No. 55-4) at 1.
The record includes a letter dated July 10, 2008, from
the law firm Fernandez & Romano, P.C., informing the
Commissioner of the Department of Correction that the firm
was representing the plaintiff.

The letter stated:

On or about May 14, 2008, Mr. Peeler was attacked by
another inmate while he was sleeping in his locked
cell. Mr. Peeler filed a timely grievance regarding
this attack and to this day has not received a
response. This letter should serve to exhaust
[plaintiff's] administrative remedies under the Prison
Litigation Reform Act for the assault described above.
Pl.'s Ex. G (ECF No. 55-4).
4

The record also includes an email dated July 11, 2008,
from District Administrator ("DA") Wayne Choinski to Tracy
Hartshorn, apparently prompted by the Fernandez & Romano
letter.

The email states: "Find out from NCI if [plaintiff]

filed a grievance regarding the fight with Webb on May 14th.
I need a copy.
on this?"

Also, did he file a [Level 2 appeal] with us

Pl.'s Ex. I (ECF No. 55-4).

Handwritten on the

printed copy of the email is an unsigned note stating:
"Attached is the Level 1.
date.

Peeler has not filed a Level 2 to

However, his Level 1 was only responded to on Friday

7/11/08.

Certainly a Level 2 will be forthcoming."

Id.

The disposition of plaintiff's Level 1 grievance, dated
July 11, 2008, states, "[plaintiff's] grievance regarding
staff conduct is compromised.1

This incident is currently

under investigation. . . . This matter may be appealed to DA
Choinski."

Pl.'s Ex. J (ECF No. 55-4) at 2.2 On July 14,

2008, plaintiff filed a Level 2 appeal from this decision.

1

"Compromised" means that "the application for
administrative remedy has sufficient merit that some modification
of the existing decision is warranted." See Connecticut
Department of Correction Administrative Directive 9.6(3)(C)
(2012).
2

It is undisputed that this Level 1 decision was timely, as
it was issued within thirty business days of the receipt of the
grievance as provided by Department of Correction Administrative
Directive 9.6(6)(I).
5

The appeal stated: "I am appealing this because if the COs
were following policy and procedure on May 14, 2008 I
wouldn't have been attacked and my safety and security is at
risk still."

Pl.'s Ex. K (ECF No. 55-4).

On July 24, 2008, Choinski denied the appeal using a
standard form.

In the space for the decision, Choinski

inserted the following statement:
You are appealing a level 1 grievance concerning an FOI
request. Please be advised that FOI is a non-grievable
matter. However, my office has been advised that you
have received notice from D/W Rose that the documents
requested are now available. With regards to the
05/14/08 incident, you are vague in the action
requested. You may submit a new grievance outlining
the problem and requested resolution.
Id.

Below this statement, a check mark was inserted in a

box stating, "You have exhausted the Department's
Administrative Remedies."
second grievance.

Id.

Plaintiff did not file a

See Pl.'s Rule 56(a)(2) Statement (ECF

No. 55-2) at ¶ 35.
Approximately two and a half years later, plaintiff
filed this suit alleging that the defendants were
deliberately indifferent to his safety in violation of the
Eighth Amendment in that CO Mihaliak allowed Webb out of his
cell unescorted and granted him access to plaintiff's cell;
COs Strozier, Viera, Chukwurah and Hovanec failed to escort
6

Webb to and from his cell; and Captain Salius as unit
manager failed to supervise his officers and failed to take
action to separate the plaintiff and Webb prior to the
attack.
II. Summary Judgment
Summary judgment may be granted when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

To avoid summary

judgment, the plaintiff must point to evidence that would
permit a jury to return a verdict in his favor.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Anderson v.
In

determining whether this standard is met, the evidence must
be viewed in the light most favorable to the plaintiff.

Id.

at 255.
III. Discussion
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §
1997e(a), requires inmates to exhaust administrative
remedies before seeking relief in federal court 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."
7

Porter v.

Nussle, 534 U.S. 516, 532 (2002).

Taking informal steps to

put prison officials on notice "as to the nature of the
wrong for which redress is sought" does not constitute
proper exhaustion under the PLRA.
37, 44 (2d Cir. 2007).

Macias v. Zenk, 495 F.3d

"Section 1997e(a) 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).'"

Hernandez v. Coffey,

582 F.3d 303, 305 (2d Cir. 2009) (quoting Woodford v. Ngo,
548 U.S. 81, 90 (2006)).

Thus, "prisoners must complete the

administrative review process in accordance with the
applicable procedural rules - rules that are defined not by
the PLRA, but by the prison grievance process itself."
Jones v. Bock, 549 U.S. 199, 218 (2007) (internal quotation
marks and citation omitted).

Exhaustion may be excused when

the plaintiff shows that: (1) administrative remedies were
not in fact available; (2) prison officials have forfeited,
or are estopped by their own actions from raising the
affirmative defense of non-exhaustion; or (3) special
circumstances justify the prisoner's failure to comply with
administrative procedural requirements.
York, 380 F.3d 680, 686 (2d Cir. 2004).

8

Hemphill v. New

Connecticut Department of Correction Administrative
Directive 9.6 establishes the grievance procedure inmates
must follow.

See Melendez v. Gomez, 3:06CV964 (WWE), 2010

WL 3034292, at *2 (D. Conn. July 28, 2010).

Directive 9.6

provides that a "grievance must be filed within 30 calendar
days of the occurrence or discovery of the cause of the
grievance."

Directive 9.6(6)(C).

An inmate must file a

Level 1 grievance and appeal any unfavorable disposition to
Level 2.

Id. at *3.3

Directive 9.6 defines a grievance as

"a written complaint filed by an inmate on the inmate's own
behalf in accordance with the procedures stated herein,"
Directive 9.6(3)(F), and directs that "the request for an
administrative remedy and the action sought should be stated
simply and coherently."

Directive 9.6(5)(E).

In Melendez, the plaintiff filed a grievance alleging
excessive force.

He was informed that the grievance was

procedurally deficient and had to be resubmitted.
3034292, at *3.

2010 WL

The plaintiff appealed stating that the

disposition "failed to acknowledge his injuries and the
3

"Level 2 is the final level of appeal for all grievances
except appeals that challenge departmental policies; appeals of
emergency grievances which cannot be acted upon at a lower level;
appeals challenging the integrity of the grievance procedure; and
appeals for which a timely response to a Level 2 grievance has
not been received." Melendez, 2010 WL 3034292, at *3.
9

seriousness of the damage."

He was again informed that his

initial grievance was procedurally deficient and had to be
resubmitted.

Id.

The plaintiff subsequently submitted a

proper Level 1 grievance, which was denied on the merits.
Id.

Instead of appealing this decision to Level 2, the

plaintiff filed a lawsuit seeking damages for excessive
force.

Id.

The Court ruled that "plaintiff did not exhaust

his administrative remedies because . . . [the] grievance
was not fully addressed on the merits by an administrative
appeal."

Id. at 4.

Similarly here, plaintiff's grievance was determined to
be deficient because it was "vague in the action requested."
It is undisputed that plaintiff chose to file this suit
rather than submit another grievance.

As a result of

plaintiff's decision to forego filing a second grievance,
the merits of his grievance based on the assault have not
been addressed administratively.

Thus, as in Melendez, the

record establishes that the plaintiff failed to exhaust
available administrative remedies before filing this suit.
The issue is whether plaintiff's failure to exhaust
should be excused.

Plaintiff argues that it should be.

With regard to the exceptions set forth in Hemphill, he does

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not claim that administrative remedies were unavailable,
that he was deterred from filing another grievance by
threats or other inhibiting conduct, or that he relied on
the check mark in the box on the form stating, "You have
exhausted the Department's Administrative Remedies."

Nor

does he contend that his refusal to file a second grievance
was justified by a reasonable interpretation of prison
grievance regulations.

See Hemphill, 380 F.3d at 690

(citing Giano v. Goord, 380 F.3d 670 (2d Cir. 2004)).
Rather, he argues that he "didn’t file a second grievance
due to the fact [he] fulfilled [his] obligation pertaining
to the standards set out in the PLRA, despite the level II
assessment stating it is vague or [DA Choinski's] efforts to
sabotage my efforts."

Pl.'s Rule 56(a)(2) Statement ¶ 35.

Plaintiff states that he mentioned the Freedom of
Information Act request in his Level 1 grievance only "to
avoid any problems relating to processing the grievance due
to not providing the names of the officer[s] who were
working the day of the attack"; that "[t]he level one
grievance reviewer understood clearly the nature of
plaintiff's complaint"; and that "plaintiff's level II

11

grievance was straightforward."

Pl.'s Br. in Opp'n to Summ.

J. (ECF No. 55-1) at 8-9.
Plaintiff's disagreement with Choinski's disposition of
the grievance does not justify his failure to exhaust
administrative remedies.

Plaintiff justifiably believed

that his intention to file a grievance regarding the staff's
failure to protect him from the assault was sufficiently
clear.

Even so, the grievance was "vague in the action

requested," as Choinski stated at the time.

The Level 1

grievance stated that plaintiff was having difficulty
getting incident reports concerning the assault; the Level 2
appeal stated that his safety and security were still at
risk.

In response to those statements, Choinski informed

the plaintiff that reports of the assault had become
available and authorized him to "submit a new grievance
outlining the problem and the requested resolution."
Choinski's action was objectively reasonable.
Plaintiff's suggestion that Choinski tried to
"sabotage" his efforts is not sufficiently supported to
justify his failure to file another grievance.

Choinski's

disposition of the grievance authorized the plaintiff to
file a new grievance based on the assault in light of the

12

records plaintiff had requested, which were not available
when plaintiff filed the initial grievance at the deadline.
On its face, Choinski's action reflects good faith and
facilitated a process consistent with the purpose of the
PLRA's exhaustion requirement.

Plaintiff points to no

evidence justifying his reference to "sabotage."
Construing the pro se plaintiff's submissions
liberally, they do not raise a triable issue of fact with
regard to whether the plaintiff satisfied the PLRA's
exhaustion requirement.

Because the record establishes that

plaintiff failed to exhaust available administrative
remedies prior to commencing this action, and the
circumstances shown by the record do not justify his failure
to exhaust, the defendants are entitled to summary judgment
under the PLRA.4

4

Defendants contend that summary judgment is appropriate on
the merits because plaintiff has failed to establish that his
Eighth Amendment rights were violated and they are entitled to
qualified immunity. The defendants' arguments appear to be wellsupported. However, the Court does not address them in detail
because defendants prevail on their affirmative defense that
plaintiff failed to exhaust administrative remedies as required
by the PLRA.
13

IV. Conclusion
Accordingly, defendants' motion for summary judgment
(ECF No. 54) is hereby granted.

The Clerk will enter

judgment in favor of the defendants dismissing the action
without prejudice.

Plaintiff may file a new action if he is

able to demonstrate that he has exhausted administrative
remedies as required by the PLRA.
So ordered this 31st day of October 2013.

/s/RNC
Robert N. Chatigny
United States District Judge

14