Wine v. Champdelaine et al
Filing
108
ORDER denying 67 Motion for Summary Judgment. For the reasons described in the attached ruling and order, Defendants' motion for summary judgment is DENIED. Signed by Judge Victor A. Bolden on 02/17/2023. (Jean-Jacques, Walter)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL WINE,
Plaintiff,
v.
No. 3:18-cv-00704(VAB)
LIEUTENANT DROLET, LIEUTENANT
DIAZ, and CAPTAIN BLACK,
Defendants.
RULING AND ORDER ON
MOTION FOR SUMMARY JUDGMENT
Daniel D. Wine (“Mr. Wine” or “Plaintiff”), currently incarcerated at the MacDougallWalker Correctional Institution (“MacDougall”), has filed a civil rights Complaint under 42
U.S.C. § 1983 against Lieutenant Drolet, Lieutenant Diaz, and Captain Black (together,
“Defendants”). Compl., ECF No. 1 (April 24, 2018); Am. Compl., ECF No. 20 (May 08, 2019)
(“Am. Compl.”).
Mr. Wine alleges that Defendants failed to protect him from an assault by another inmate
on June 10, 2015, in violation of his rights under the Eighth Amendment of the United States
Constitution. Id. He also alleges First and Fourteenth Amendment claims against Defendants. Id.
On July 19, 2020, the Court dismissed Mr. Wine’s Complaint in part. Initial Review
Order, ECF No. 23 (July 19, 2020) (“Initial Review Order”).
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Mr. Wine’s case was permitted to proceed on the Fourteenth Amendment failure to
protect claim against Lieutenant Drolet, Lieutenant Diaz, and Captain Black in their individual
capacities. Id. at 23.
Defendants now move for summary judgment on the remaining Fourteenth Amendment
claim. Defs.’ Mot. for Summ. J., ECF No. 67 (Apr. 08, 2022) (“Defs.’ Mot. for Summ. J.”);
Mem. of Law in Supp. of Defs.’ Mot. for Summ. J., ECF No. 67-4 (Apr. 08, 2022) (“Defs.’
Mem. in Supp. of Mot. for Summ. J.”).
For the following reasons, Defendants’ motion for summary judgment is DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Factual Background
1. Mr. Wine’s Grievances1
Mr. Wine entered MacDougall-Walker Correction Institution as a pretrial detainee on
June 30, 2014. Defs. Rule 56(d) Statement of Undisputed Mat. Facts ¶ 1 (“Defs. SMF”).
At some point before June 10, 2015, several other inmates at MacDougall, who were
allegedly known or suspected members of the Aryan Brotherhood Gang, including Robert
The facts are taken from Mr. Wine’s Amended Complaint, Defendants’ Rule 56(d) Statement (Defendant filed
Local Rule 56(d) Statement instead of Local Rule 56(a)(1) Statement), and supporting exhibits filed by all parties.
See D. Conn. L. Civ. R. 56(a)(1) (“Each material fact set forth in the Local Rule 56(a)(1) Statement and supported
by the evidence will be deemed admitted (solely for purposes of the motion) unless such fact is controverted by the
Local Rule 56(a)(2) Statement required to be filed and served by the opposing party in accordance with this Local
Rule, or the Court sustains an objection to the fact.”).
1
2
Krawczynski, allegedly made direct threats to harm or physically injure Mr. Wine. Am. Compl at
3.
On June 4, 2015, Officer Pennel allegedly instructed Mr. Wine to speak to Lieutenants
Drolet and Diaz regarding these allegedly serious and credible threats to his physical safety. Id.
Later that day, Mr. Wine allegedly pleaded with Lieutenants Drolet and Diaz to implement
measures to protect him from harm, but they allegedly took no action and advised him to return
to his housing unit. Id. at 3–4. Mr. Wine then allegedly spoke to Captain Black and informed him
that he feared that inmates who were members of the Aryan Brotherhood Prison Gang, including
Mr. Krawczynski, would assault him. Id. at 4. Captain Black allegedly suggested that Mr. Wine
“try to duck” if these inmates attempted to assault him. Id.
On June 10, 2015, Mr. Krawczynski allegedly viciously assaulted Mr. Wine. Id. The
assault allegedly rendered Mr. Wine “unconscious, bloody, and lifeless.” Id. Prison officials
allegedly transported Mr. Wine to an outside hospital, where a surgeon allegedly treated him for
a broken jaw and a stab wound to his lower lip. Id. Mr. Wine allegedly remained in the hospital
for an extended period. Id. On June 14, 2015, Mr. Wine allegedly was confined to the hospital
unit at MacDougall. Id.; Pl. Ex. A-1 at 2, ECF No. 1-2 (Conn. Dep’t of Corr. Inmate Request
Form (June 14, 2015)).
Mr. Wine allegedly made requests to contact the Connecticut State Police Department to
report the assault “in an effort to have the assailant criminally prosecuted” but correctional
officials, including Captain Black and Lieutenants Drolet and Diaz, allegedly denied his
requests. Id. at 5–6.
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Mr. Wine then allegedly made requests to contact his criminal attorney to inform him
about the assault, but correctional staff members allegedly repeatedly informed Mr. Wine that
they could not confirm his attorney’s telephone number. Id. at 5; Pl. Exs. A-1 to A-7 at 1–14,
ECF No. 1-2 (Conn. Dep’t of Corr. Inmate Request Forms (June 14, 2015, through July 1,
2015)).
Mr. Wine also allegedly could not contact his family by telephone because the
Department of Correction (“DOC”) “shut off his pin number” and allegedly could not contact his
family by mail because prison officials would not provide him with envelopes. Id. at 5. Mr. Wine
allegedly remained in the segregation unit at MacDougall for thirty-three days. Id.
2. Mr. Wine’s Grievance Process2
On June 10, 2015, Mr. Wine was brought to UConn Hospital where he remained until
June 12, 2012. Defs. SMF ¶ 2.
Mr. Wine entered MacDougall on June 12, 2015 and he remained at that institution until
October 7, 2015. Id. ¶ 3.
On October 7, 2015, Mr. Wine was transferred to Hartford Correctional Center. Id. ¶ 3.
2
To determine the undisputed facts in this case, the Court relies upon the Defendants’ Rule 56(d) Statement (to the
extent that it complies with the Federal Rules of Civil Procedure and the Local Rules of this District) and evidence
cited therein. Mr. Wine’s Local Rule 56(a)(2) Statement fails to deny the statements made by Defendants. “Where a
party asserts a fact and the opposing party either fails to deny the assertion or, in issuing a denial, the party does not
cite to evidence disputing its accuracy, the Court deems such fact admitted.” Malick v. J.P. Morgan Chase Bank,
N.A., No. 3:13-CV-00669 (VLB), 2015 WL 5797008, at *1 n.1 (D. Conn. Sept. 30, 2015); see also D. Conn. L. Civ.
R. 56(a)(1) (“Each material fact set forth in the Local Rule 56(a)(1) Statement and supported by the evidence will be
deemed admitted (solely for purposes of the motion) unless such fact is controverted by the Local Rule 56(a)(2)
Statement required to be filed and served by the opposing party in accordance with this Local Rule[.]”). The Court
deems admitted each material fact set forth in Defendants’ Rule 56(d) Statement, to the extent it is supported by the
evidence.
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Mr. Wine became a sentenced inmate on January 8, 2016. Id. ¶ 4.
On February 17, 2016, Mr. Wine was transferred back to MacDougall. Id. ¶ 5.
Mr. Wine was thereafter transferred to Corrigan-Radgowski Correctional Center on
March 15, 2016, to Hartford Correctional Center on March 18, 2016, and back to MacDougallWalker Correction Institution on April 26, 2016, where he remains confined to date. Id ¶ 6.
Correctional Counselor Bennett is the Administrative Remedies Coordinator at
MacDougall. Id. ¶ 7.
As the MacDougall Administrative Remedies Coordinator, Counselor Bennett is the
Keeper of Records of inmate administrative remedies, grievances, and appeals, and she
maintains the institution’s Grievance Log. Id.. ¶ 8
These records are maintained in the ordinary course of business, and it is Counselor
Bennett’s responsibility as the Administrative Remedies Coordinator to maintain these records.
Id. ¶ 10.
Counselor Bennett is familiar with the Administrative Directive 9.6, Inmate
Administrative Remedies that was in effect from August 15, 2013, until April 30, 2021, which
applied to Mr. Wine for his 2015 claims Id. ¶ 11.
Administrative Directive 9.6 set forth the required process an inmate was to follow when
filing a grievance pertaining to any aspect of the inmate’s confinement, and the manner such
grievances are processed by staff. Id. ¶ 12.
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Administrative Directive 9.6, ¶ 6(A), required an aggrieved inmate to first seek an
informal resolution of his issues, in writing, with the use of an Inmate Request Form CN 9601
before filing a formal grievance. Id. ¶ 13.
A response to the inmate’s informal request would be made within fifteen business days
from receipt of the written request. Id. ¶14.
If the inmate was not satisfied with the informal resolution offered or did not receive a
response to his attempt at informal resolution, the inmate must then file a grievance, using form
CN 9602, Inmate Grievance Form – Level 1, and attach the Inmate Request Form containing the
staff member’s response to it. Id. ¶ 15.
This must be completed within thirty calendar days of the occurrence or discovery of the
cause of the grievance. Id. ¶ 16.
All grievances, appeals, and property claims were submitted by depositing them in a
locked box clearly marked as ‘Administrative Remedies.’” Id. ¶ 17.
Each grievance was assigned an Inmate Grievance Procedure (“IGP”) number that was
generated from CN 9608, Grievance Log. Id.¶ 16.
Mr. Wine filed one disciplinary action appeal regarding a disciplinary report he received
dated June 11, 2015, for the class “A” offense of “Fighting”. Id. ¶ 17.
Mr. Wine received this disciplinary report for a fight that took place between him and
inmate Krawczynski. Id. ¶ 19.
Mr. Wine appealed his receipt of the disciplinary report as well as procedural issues
surrounding his disciplinary hearing. Id. ¶ 20.
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Mr. Wine did not file any Level One Administrative Remedy Grievance wherein he
stated that he informed any Department of Correction staff that he was being threatened or was
in danger of assault from another inmate, from inmate Krawczynski, or from members of any
Security Risk Group. Id. ¶ 21.
Mr. Wine did not file any Level One Administrative Remedy Grievance wherein he
stated that Captain Black, Lieutenant Drolet, or Lieutenant Diaz ignored his safety concerns or
requests for staff assistance in keeping him safe. Id. ¶ 22.
Mr. Wine did not file any Level One Administrative Remedy Grievance wherein he
stated that he was prevented from filing a grievance about any of these claims. Ex. B, ¶ 21.
Mr. Wine did not file any Level One Administrative Remedy Grievances from June 1,
2015, to October 7, 2015. Defs. SMF ¶ 23.
B. Procedural History
On April 24, 2018, Mr. Wine filed his pro se Complaint. Compl.
On May 8, 2019, Mr. Wine filed his Amended Complaint. Am. Compl.
On June 11, 2021, the Court issued an Initial Review Order dismissing Mr. Wine’s
Amended Complaint in part. Initial Review Order.
On April 8, 2022, Defendants filed their motion for summary judgment. Defs.’ Mot. for
Summ. J.; Defs.’ Mem. in Supp. of Mot. for Summ. J.
On the same day, Defendants filed their statement of material facts. Defs.’ 56(d)
Statement.
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On June 9, 2022, Mr. Wine filed his opposition to Defendants’ motion for summary
judgment. Mem. in Opp’n re Defs.’ Mot. for Summ. J., ECF No. 71(June 09, 2022) (“Pl’s Mem.
in Opp’n.”); Obj. re Defs.’ Mot. for Summ. ECF No. 72 (June 09, 2022) (“Pl’s Obj.”).
On October 24, 2022, Mr. Wine moved to withdraw counsel. Mot. to Withdraw Counsel,
ECF No.79 (Oct. 24, 2022).
On November 10, 2022, the Court denied Mr. Wine’s motion to withdraw counsel. Order,
ECF No.85 (Nov.10, 2022).
On December 06, 2022, Mr. Wine filed a supplemental statement of material facts in
response to the motion for summary judgment. Suppl. Statement of Material Facts, ECF No. 92
(Dec. 06, 2022) (“Suppl. Material Facts”).
On January 11, 2023, Mr. Wine filed an affidavit to establish the record in the event of an
appeal. Affidavit of Daniel Wine, ECF No. 97 (Jan. 11, 2023) (“Mr. Wine Aff.”).
On January 26, 2023, Mr. Wine’s counsel filed a declaration of Mr. Wine. Decl. of
Daniel D. Wine, ECF No. 98 (Jan. 26, 2023) (“Mr. Wine Decl.”).
On January 31, 2023, Defendants filed a reply to Mr. Wine’s response to the motion for
summary judgment. Def. Reply to Pl. Opp’n to Def.’s Motion for Summ.J, ECF No. 99 (Jan. 31,
2023) (“Def.’s Reply”).
On February 15, 2023, the Court held a hearing on the summary judgment motion. Min.
Entry, ECF No. 107 (Feb. 15, 2023).
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II.
STANDARD OF REVIEW
A court will grant a motion for summary judgment if the record shows no genuine issue
as to any material fact, and the movant is “entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The moving party bears the initial burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving
party may defeat the motion by producing sufficient specific facts to establish that there is a
genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “[T]he 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.” Id. at 247–48.
“[T]he substantive law will identify which facts are material.” Id. at 248. “Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id.; see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996) (“[M]ateriality runs to whether the dispute matters, i.e., whether it concerns facts that can
affect the outcome under the applicable substantive law.” (citing Anderson, 477 U.S. at 248)).
“The inquiry performed is the threshold inquiry of determining whether there is the need
for a trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. When a motion for summary judgment is supported by
documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of
material fact,” the nonmoving party must do more than vaguely assert the existence of some
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unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated
speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (internal
citation omitted).
The party opposing the motion for summary judgment “must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Id. “If the evidence
is merely colorable, . . . or is not significantly probative, . . . summary judgment may be
granted.” Anderson, 477 U.S. at 250 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 290 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 (1967)).
When deciding a motion for summary judgment, a court may review the entire record,
including the pleadings, depositions, answers to interrogatories, admissions, affidavits, and any
other evidence on file to determine whether there is any genuine issue of material fact. See Fed.
R. Civ. P. 56(c); Pelletier v. Armstrong, No. 3:99-cv-1559 (HBF), 2007 WL 685181, at *7 (D.
Conn. Mar. 2, 2007). In reviewing the record, a court must “construe the evidence in the light
most favorable to the non-moving party and to draw all reasonable inferences in [his]
favor.” Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir.
2013) (internal citation omitted). If there is any evidence in the record from which a reasonable
factual inference could be drawn in favor of the non-moving party for the issue on which
10
summary judgment is sought, then summary judgment is improper. See Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
III.
DISCUSSION
The remaining claim in this case is a Fourteenth Amendment failure to protect claim.
Defendants move for summary judgment on the Fourteenth Amendment claim on the
ground that Mr. Wine failed to exhaust all administrative remedies before commencing this
action, as required by the Prison Litigation Reform Act (“PLRA”). Defs.’ Mem. in Supp. of Mot.
for Summ. J. at 4–5.
The Court will address this argument.
The PLRA requires a prisoner pursuing a federal lawsuit to exhaust available
administrative remedies before a court may hear their case. See 42 U.S.C. § 1997e(a) (providing
in pertinent part that “[n]o action shall be brought with respect to prison conditions under section
1983 . . . 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”); see also Ross v.
Blake, 578 U.S. 632, 632–36 (2016) (applying the PLRA and noting that it “mandates that an
inmate exhaust ‘such administrative remedies as are available’ before bringing suit to challenge
prison conditions” (quoting 42 U.S.C. § 1997e(a))). “[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.
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Nussle, 534 U.S. 516, 532 (2002).
The PLRA requires “proper exhaustion”; the inmate must use all steps required by the
administrative review process applicable to the institution in which he is confined and do so
properly. See Jones v. Bock, 549 U.S. 199, 218 (2007) (“In Woodford, we held that to properly
exhaust administrative remedies 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.” (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006))); see
also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (stating that exhaustion necessitates
“using all steps that the [government] agency holds out and doing so properly” (quoting
Woodford, 548 U.S. at 90)). “Exhaustion is mandatory—unexhausted claims may not be pursued
in federal court.” Amador, 655 F.3d at 96; see also Jones, 549 U.S. at 211 (“There is no question
that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in
court.” (internal citation omitted)).
Special circumstances will not relieve an inmate of his obligation to comply with the
exhaustion requirement. An inmate’s failure to exhaust administrative remedies is only excusable
if the remedies are, in fact, unavailable. See Ross, 578 U.S. at 642 (“Under § 1997e(a), the
exhaustion requirement hinges on the availability of administrative remedies: An inmate, that is,
must exhaust available remedies, but need not exhaust unavailable ones.” (internal citation and
quotation marks omitted)). The Supreme Court has determined that “availability” in this context
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.” Id. (internal citation and
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quotation marks omitted).
The Supreme Court in Ross identified three circumstances in which a court may find that
internal administrative remedies are not available to prisoners under the PLRA. Id. at 643–44.
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 643. “Next, an administrative
remedy 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 644.
The Second Circuit has noted that “the three circumstances discussed in Ross do not
appear to be exhaustive.” Williams v. Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016). In
considering the issue of availability, however, the Court is guided by these illustrations. See
Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19,
2016) (“The Supreme Court described three scenarios in which administrative procedures could
be ‘officially on the books,’ but ‘not capable of use to obtain relief,’ and therefore unavailable.
While not exhaustive, these illustrations nonetheless guide the Court’s inquiry.” (quoting Ross,
578 U.S. at 643)).
Exhaustion of administrative remedies is an affirmative defense. Thus, Defendants bear
the burden of proof. See Jones, 549 U.S. at 216 (“We conclude that failure to exhaust is an
affirmative defense under the PLRA, and that inmates are not required to specially plead or
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demonstrate exhaustion in their complaints.”). Once Defendants establish that administrative
remedies were not exhausted before the inmate commenced the action, Plaintiff must establish
that administrative remedy procedures were not available to him under Ross, or present evidence
showing that he did exhaust his administrative remedies. See Smith v. Kelly, 985 F. Supp. 2d 275,
284 (N.D.N.Y. 2013) (“[O]nce a defendant has adduced reliable evidence that administrative
remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those
administrative remedies, the plaintiff must then ‘counter’ the defendant’s assertion by showing
exhaustion, unavailability, estoppel, or special circumstances.” (internal citation and quotation
marks omitted)).
A.
Administrative Directive 9.6
The Appeal of a Security Risk Group Member Designation is set forth in Administrative
Directive 9.6 and is applicable to Mr. Wine’s Fourteenth Amendment failure to protect claim.
See Ex. C to Defs. Mot. for Summ. J., ECF No.67-3 (“A.D. 9.6”). A Level 1 grievance must be
filed within thirty calendar days from the date of the occurrence or discovery of the cause of the
grievance. A.D. 9.6(6)(C). The grievance must include documentation of the inmate’s written
request to resolve the matter informally or an explanation why such documentation is not
attached. Id.
The Unit Administrator is required to respond in writing to a Level 1 grievance within
thirty business days of his or her receipt of the grievance. A.D. 9.6(6)(I). The Unit Administrator
may extend the response time by up to fifteen business days upon notice to the inmate on the
prescribed form. A.D. 9.6(6)(J). An inmate may appeal to Level 2 the Unit Administrator’s
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disposition of a Level 1 grievance or the Unit Administrator’s failure to dispose of the grievance
in a timely manner. A.D. 9.6(6)(G), (I), & (K). A Level 2 appeal of a disposition of a Level 1
grievance must be filed within five calendar days from the inmate’s receipt of the decision on the
Level 1 grievance. A.D. 9.6(6)(K).
An appeal of a Unit Administrator’s failure to dispose of a Level 1 grievance in a timely
manner must be filed within sixty-five days from the date the Level 1 grievance was filed by the
inmate. A.D. 9.6(6)(M). Level 3 appeals are restricted to challenges to department policy, the
integrity of the grievance procedure, or Level 2 appeals to which there has been an untimely
response by the District Administrator. A.D. 9.6(6)(L).
B.
Mr. Wine’s Grievances
Defendants argue that “[Mr. Wine] failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act.” Defs.’ Mem. in Supp. of Mot. for Summ. J. at 1.
Moreover, Defendants argue that Mr. Wine failed “to file any Level One Administrative Remedy
Grievances from June 1, 2015, to October 7, 2015[,]” Id. at 10 (citing Def. Ex. B ¶ 22), and
Mr. Wine failed “to file any Level One Administrative Remedy Grievance where he described
any Department of Correction staff of being threatened or in danger of assault from another
inmate, from inmate Krawczynski, or members of any Security Risk Group.” Id. (citing Def. Ex.
B ¶ 19). Additionally, Defendants argue that Mr. Wine failed “to file any Level One
Administrative Remedy Grievance describing the Defendants as neglecting his concerns for
assistance in safety measure.” Id (citing Def. Ex. B ¶ 20). Finally, Defendants argue that “[Mr.
Wine] did not file any Level One Administrative Remedy Grievance wherein he stated that he
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was prevented from filing a grievance about any of these claims.” Id (citing Def. Ex. B ¶ 21).
Mr. Wine argues that “[D]efendants admit that the plaintiff exhausted his administrative
remedies as to the guilty finding on a disciplinary report, dated June 11, 2015.” Pl’s Mem. in
Opp’n at 1 (quotations marks omitted).
In reply, Defendants further argue that Mr. Wine’s dispute of him “not exhaust[ing] his
administrative remedies with regard to his being threatened or [being] in danger of assault from
another inmate . . . is not the issue that the Plaintiff pled in his Amended Complaint, nor is it the
issue that this Court authorized to proceed in its IRO.” Defs.’ Reply at 10. Moreover, Defendants
argue that “the claim that is the subject of summary judgment is whether, with knowledge of
credible threats made against [Mr. Wine’s] life, the Defendants failed to act to protect him
leading to his violent assault on June 10, 2015.” Id.
Defendants argue that “there is no credible basis for . . . Mr. Wine to now argue that his
efforts to appeal his ticket for fighting, effectively addressed his failure to protect claim as well.”
Id. Thus, Defendants argue that “even if the Plaintiff had included allegations in his appeal
paperwork that DOC officials had failed to protect him from the assault, that would have been
the wrong forum to address that complaint and Defendants would still be entitled to summary
judgment for failure to exhaust.” Id.
In Mr. Wine’s supplemental filing to his objection, Mr. Wine argues that “[his]
Declaration makes clear that . . . he exhausted available administrative remedies.” Pl. Suppl.
Opp’n at 4 (citing Pl.’s Decl. ¶¶ 10–18). Mr. Wine contends that “[he] appealed the Disciplinary
Action and prepared an Administrative Remedy Form.” Id; (citing Administrative Report at 22–
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23, ECF No. 1-2). Moreover, Mr. Wine argues that “[his] Declaration indicates that his intent in
pursuing the appeal was to address all substantive and procedural issues related to receipt of the
disciplinary report,” thus “including [him] not being allowed to explain that he had requested
that the [D]efendants Drolet, Diaz, and Black provide protection from inmate Krawcyzynski and
failed to do so.” Id. (citing Pl.’s Decl. ¶ 14). Thus, Mr. Wine contends that “[t]he Administrative
Remedy Form itself confirms that the plaintiff exhausted administrative remedies.” Id. (citing
Administrative Report at 24, ECF No.1-2, (“You have exhausted DOC Administrative
Remedies.”)). In addition, Mr. Wine contends that he was not “permitted to speak at the socalled hearing” and “[a]s a result he was not allowed to discuss this matter with counsel and was
unable to and did not receive any legal advice.” Id. at 6. Mr. Wine argues that “[t]hese
circumstances indicate he was excused from exhausting administrative remedies because the
defendant’s conduct rendered an effective administrative remedy unavailable.” Id.
The Court agrees.
Mr. Wine has raised a genuine issue of material fact of whether he exhausted his
administrative remedies.
Defendants have satisfied their initial burden of establishing that grievance procedures
existed. See Def. Ex. B ¶ 5 (“As the MWCI Administrative Remedies Coordinator, Counselor
Bennett is the Keeper of Records of inmate administrative remedies, grievances, and appeals,
and she maintains the institution’s Grievance Log.”). Therefore, Mr. Wine must show that he
exhausted these procedures or that these procedures were unavailable. See Hubbs, 788 F.3d at 59
(“If the defendants meet this initial burden, administrative remedies may nonetheless be deemed
17
unavailable if the plaintiff can demonstrate that other factors . . . rendered a nominally available
procedure unavailable as a matter of fact.”). In Ross, the Supreme Court clarified that a grievance
procedure may be unavailable when it is “so opaque that it becomes, practically speaking,
incapable of use,” 578 U.S. at 643, or when “the correctional facility’s staff misled the inmate as
to the existence or rules of the grievance process,” id. at 644 (quoting Davis v. Hernandez, 798
F.3d 290, 295 (5th Cir. 2015)). Since Ross, district courts in this Circuit have generally
concluded that “grievance procedures are not ‘unavailable’ simply because a plaintiff was
unaware of the existence of the procedure,” although the Second Circuit has not resolved this
question definitively. Martinez v. Payne, No. 3:20-cv-231 (JAM), 2021 WL 3493616, at *5 (D.
Conn. Aug. 7, 2021).
Here, Mr. Wine allegedly filed an appeal to his disciplinary action with the intention of
pursing an appeal to address all substantive and procedural issues related to receipt of the
disciplinary report. See Pl.’s Decl. ¶ 14 (“Once I was issued the DR for fighting and the ticket the
proper AD to rectify all the issues in association with the DR fall under the AD 9.5 Code of
Penal Discipline Offenses.”). In addition, Mr. Wine asserts that he intended to explain within his
appeal why Defendants failed to protect him from Mr. Krawcyzynski. Id.
But leaving these assertions – and belated self-serving ones at that – it is undisputed that
Mr. Wine filed a timely appeal, triggering the administrative procedure under A.D. 9.6. Def.
Reply Ex. A. at 2, ECF No. 99-1 (the Administrative Remedy Receipt form, CN9603, noting that
“[t]he Admin Remedies Coordinator has received your: [appeal] and the appropriate procedure
will commence in accordance with AD 9.6, Inmate Administrative Remedies,” dated July 17,
18
2015). In that appeal, filed on July 13, 2015, Mr. Wine directly raised the issue of his physical
safety: “I was assaulted I didn’t even see it coming and it was never reported to the State Police
by the DOC; however my lawyer did report it and the State Police are now investigating this and
Officer Stebbins in handling the investigation.” Id. at 4. In other words, this filing creates a
genuine issue of fact as to whether the Defendants were sufficiently put on notice about Mr.
Wine’s alleged physical safety concerns. See Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 621
(2d Cir. 1996) (“[T]he district court . . . erred in concluding that there was not a genuine issue as
to the reasonableness of the defendants’ protective measures after the . . . attack[.]”); see also
Grant v. Hogue, No. 17-CV-3609, 2019 WL 3066378, at *7 (S.D.N.Y. July 12, 2019) (declining
to grant summary judgment on failure-to-protect claim where the “[p]laintiff’s testimony
arguably describe[d] a previous altercation with [the other inmate] coupled with a complaint by
[the] plaintiff to prison officials or a request to be separated from the attacker” (citations,
quotation marks, and alterations omitted)); cf. Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.
2004) (remanding to the district court because “[w]hether or not Johnson’s disciplinary appeals
was enough to alert . . . the prison to the nature of the wrong for which redress is sought, is not
manifestly obvious”) (citation and internal quotation mark omitted).
Alternatively, as in Ross: “The facts of this case raise questions about whether, given these
principles, [Wine] had an ‘available’ administrative remedy to exhaust.” Ross, 578 U.S. at 645;
see Booth v. Churner, 532 U.S. 731, 736 (2001) (“[W]here the relevant administrative procedure
lacks authority to provide any relief,” the inmate has “nothing to exhaust.”); cf. Johnson, 380 F.3d
at 697 (remanding case back to district court to determine, inter alia, whether “the BOP grievance
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regulations were sufficiently confusing so that a prisoner like Johnson might reasonably have
believed that he could raise his claim against Testman as part of his defense in disciplinary
proceedings”).
Therefore, there is a genuine issue of material fact as to whether Mr. Wine exhausted his
administrative remedies under PLRA. Id.
Of course, consistent with the caselaw noted above, if there is a genuine issue of fact as
to exhaustion arising out of the July 13, 2015 appeal filed by Mr. Wine, the resulting Fourteenth
Amendment failure to protect claim against Lieutenant Drolet, Lieutenant Diaz, and Captain
Black is limited to their alleged failure to protect Mr. Wine against this specific assault.
Accordingly, Defendants’ motion for summary judgment will be denied on exhaustion
grounds.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is DENIED.
SO ORDERED at Bridgeport, Connecticut this 17th day of February, 2023.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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