Hubbs v. County of Suffolk et al

Filing 37

MEMORANDUM & ORDER granting 32 Motion for Summary Judgment; Defendants' motion for summary judgment due to Plaintiff's failure to exhaust his administrative remedies is GRANTED, and Plaintiff's claims are DISMISSED WITHOUT PR EJUDICE. If exhaustion remains a possibility, Plaintiff may re-file his complaint upon exhaustion. The Clerk of the Court is directed to enter judgment accordingly and the mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 6/9/2014. C/ECF (Valle, Christine)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------X GREGORY HUBBS, Plaintiff, MEMORANDUM & ORDER 11-CV-6353(JS)(WDW) -againstCOUNTY OF SUFFOLK, SUFFOLK COUNTY SHERIFF’S DEPARTMENT, SERGEANT ANDREW WALTHER #S-63, DEPUTY SHERIFF KEITH MORAN #480, DEPUTY SHERIFF THOMAS GUYDISH #490, DEPUTY SHERIFF ALLISON ZACCINO #418, and JOHN DOE DEPUTY SHERIFF OFFICERS 1-2, Defendants. ----------------------------------------X APPEARANCES For Plaintiff: Leo Glickman, Esq. Stoll, Glickman & Bellina, LLP 475 Atlantic Avenue, Floor 3 Brooklyn, NY 11217 For Defendants Suffolk County Sheriff’s Dep’t & John Does: No appearances. Remaining Defendants: Brian C. Mitchell, Esq. Suffolk County Dep’t of Law-County Attorney 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788 SEYBERT, District Judge: Currently pending before the Court is defendants County of Suffolk (the “County”), Deputy Sheriff Sergeant Andrew Walther, Deputy Guydish, and Sheriff Deputy Keith Sheriff Moran, Allison Deputy Zaccino’s Sheriff Thomas (collectively, “Defendants”) motion for summary judgment dismissing the Amended Complaint by plaintiff Gregory Hubbs (“Plaintiff”). For the following reasons, Defendants’ motion is GRANTED. BACKGROUND 1 The case involves events that occurred on November 10, 2009. (Defs.’ 56.1 Stmt., Docket Entry 32-2, ¶ 1.) Plaintiff alleges that he began a conversation with an individual named Anthony Oddone while housed in a holding cell in the custody of the Suffolk County Sheriff’s Department. Entry 14, ¶¶ 17-18.) Plaintiff (Am. Compl., Docket apparently had a friendly conversation with Mr. Oddone, who Plaintiff later learned was accused of murdering an off-duty Department Correction Officer. Suffolk County (Am. Compl. ¶ 19.) Sheriff’s Plaintiff asserts that, after that conversation, Defendants subjected him to excessive force. Although (Defs.’ 56.1 Stmt. ¶ 1.) Plaintiff filed a grievance seeking reimbursement for property that was lost on November 10, 2009 after he was taken to the hospital, Plaintiff did not file a grievance relating to the use of force. ¶¶ 2-3.) Desir, (Defs.’ 56.1 Stmt. However, a witness to the alleged assault, Natalie informed Plaintiff’s mother, 1 Lillian Hubbs, of the The following facts are drawn from the parties’ Local Rule 56.1 Statement (“56.1 Stmt.”) and Counterstatement (“56.1 Counterstmt.”) and the exhibits attached thereto and submitted therewith. 2 incident. (Pl.’s 56.1 Counterstmt., Docket Entry 33, ¶ 11.) Ms. Hubbs then called Plaintiff’s criminal attorney, Christopher Cassar. (Pl.’s 56.1 Counterstmt. ¶ 12.) Ms. Hubbs also called the Suffolk County Correction Department at Yaphank Correctional Facility. (Pl.’s 56.1 Counterstmt. ¶ 13.) According to Ms. Hubbs, she was told to lodge her complaint with the internal affairs office at the Counterstmt. ¶ 13.) Sheriff’s Department. (Pl.’s 56.1 She followed up with a subsequent phone call on November 17, 2009. (Pl.’s 56.1 Counterstmt. ¶ 17.) On November 11 or 12, 2009, Mr. Cassar also faxed and sent a letter to the Suffolk investigation. County Sherriff’s Office requesting an (Pl.’s 56.1 Counterstmt. ¶¶ 14, 16.) Plaintiff November 11, 2009. was seen for a medical evaluation (Pl.’s 56.1 Counterstmt. ¶ 16.) on An Internal Affairs investigation was conducted; investigators interviewed Plaintiff, Ms. Desir, and others; and personnel Plaintiff’s medical records and other documents. Counterstmt. ¶¶ 20-22.) page report and the reviewed (Pl.’s 56.1 The investigation resulted in a five- investigation was closed. (Pl.’s 56.1 Counterstmt. ¶ 22.) Plaintiff now raises claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) for, inter alia, violation of his due process rights under the Fourteenth Amendment and violation of 3 his Eighth Amendment right to be free from cruel and unusual punishment. DISCUSSION Defendants seek Plaintiff’s claims exhaust administrative his are summary barred judgment, because remedies as arguing Plaintiff required that failed and that to he cannot recover against the County because he lacks evidence of a municipal policy or custom. The Court will first address the applicable legal standard before turning to Defendants’ motion and the parties’ arguments more specifically. I. Legal Standard Summary judgment is only appropriate where the moving party can demonstrate that there is “no genuine dispute as to any material fact” and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers “the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) (citation omitted); see also FED. R. CIV. P. 56(c). “In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” 4 McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). burden is met, the non-moving party must “come Once that forward with specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 218 (1986). “Mere allegations or denials will not suffice.” 781 F.2d 319, 323 (2d Cir. 1986). conclusory Williams v. Smith, And “unsupported allegations do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), superseded by statute on other grounds as stated in Ochei v. Coler/Goldwater Mem’l Hosp., 450 F. Supp. 2d 275, 282 (S.D.N.Y. 2006). II. Analysis Defendants are precluded primarily because he did assert not remedies prior to bringing suit. that exhaust Plaintiff’s his claims administrative The Court agrees. Under the Prison Litigation Reform Act (the “PLRA”), an inmate must exhaust all available administrative remedies prior to commencing an action challenging the conditions of his 5 incarceration. 42 U.S.C. § 1997e(a) (“No 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.”). The PLRA 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. L. 983, 992, 152 Ed. 2d 12 (2002). “Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Id. at 524- 25. The 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).” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175–76 (2d Cir. 2006) (internal quotation marks omitted) (emphasis in the original) (quoting Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 165 L. Ed. administrative 2d 368 (2006)). remedies Thus, prisoners “to must properly exhaust ‘complete the administrative review process in accordance with the applicable 6 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, 127 S. Ct. 910, 922, 166 L. Ed. 2d 798 (2007) (internal citations omitted) (quoting Woodford, 548 U.S. at 88). Here, the Suffolk County Correctional Facility has a formal grievance program Grievance Program (“IGP”). for inmates known as the Inmate The Inmate Handbook specifies that, if an inmate has a problem, he should first attempt to resolve it with an officer assigned to the unit. Defs.’ 56.1 Stmt. Ex. D, at 15.) If a (Inmate Handbook, resolution is not reached, the inmate may request a grievance form, which will then be forwarded to the Sergeant assigned to the housing unit upon completion. (Inmate Handbook at 15.) If the issue still is not resolved, the Housing Sergeant will forward the grievance to the Grievance Coordinator, who will conduct an investigation. (Inmate Handbook at 16.) The Handbook then goes on to detail the appeal process thereafter. (Inmate Handbook at 16.) “An inmate must file a grievance within (5) five days of the date of the act or occurrence giving rise to the grievance.” Handbook at 15.) (Inmate Just below the explanation of the procedures, the Inmate Handbook notes: “THE FOLLOWING DECISIONS WILL NOT BE SUBJECT OF A GRIEVANCE AND THEREFORE MAY NOT BE APPEALED TO THE WARDEN OR THE CITIZENS POLICY AND COMPLAINT REVIEW COUNCIL . . . 7 Issues that are outside the Warden’s control.” (Inmate Handbook at 16 (emphasis in original).) Plaintiff does not dispute that he failed to comply with the grievance procedures available at the Suffolk County Correctional Facility. “[W]hile the PLRA’s This does not end the inquiry, however. exhaustion certain caveats apply.” requirement is ‘mandatory,’ Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002)). In Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), the Second Circuit held that a “three-part inquiry is appropriate in cases where a prisoner plaintiff plausibly seeks to counter defendants’ contention that the prisoner has failed to exhaust available remedies as required by the PLRA.” determine “whether First, the court should administrative ‘available’ to the prisoner.” administrative remedies were in fact Id. (quoting Abney v. McGinnis, 380 F.3d 663, 667-69 (2d Cir. 2004)). Second, the court should ask “whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it” or “whether the defendants’ own actions inhibiting the inmate’s exhaustion of remedies may estop one or more of the defendants from raising the plaintiff’s failure to exhaust as a defense.” Id. (citing Johnson v. Testman, 380 F.3d 691, 695-96 (2d Cir. 2004)). Third, the court “should 8 consider whether ‘special circumstances’ prisoner’s have been failure requirements.’” to plausibly comply alleged with that justify administrative ‘the procedural Id. (quoting Giano, 380 F.3d at 689-91). Plaintiff asserts that his failure to exhaust should be excused. A. The Court will address each basis in turn. Whether Administrative Remedies Were Available to Plaintiff Plaintiff maintains Correctional Facility’s available him to that the administrative because he was Suffolk remedies assaulted County were outside not of jurisdiction. (Pl.’s Opp. Br., Docket Entry 33-3, at 9.) specifically, he its claims that, because he was More assaulted by Suffolk County Deputy Sheriffs inside the courthouse, even if he had grieved it, it would have been referred County Sheriff’s Office Internal Affairs. 9.) to the Suffolk (Pl.’s Opp. Br. at Defendants counter that the administrative remedies were available to him and that Plaintiff’s failure to grieve cannot be excused due to his mere speculation that his grievance would have been denied. (Def.’s Br., Docket Entry 32-4, at 8-9.) The Court agrees with Defendants. Initially, Defendants proffer admissible evidence in the form of an affidavit from the Grievance Coordinator at the Suffolk County Correctional Docket Entry 32-12.) Facility. (See Rosenblatt Craig Rosenblatt affirmed that 9 Aff., [a]ny grievance filed by an inmate within five (5) days of the act or occurrence giving rise to the grievance, concerning an act or occurrence that took place while the inmate was detained in the County Court Holding facility would be accepted by the grievance coordinator and a determination would be made regarding what action should be taken to resolve and rectify the matter. (Rosenblatt Aff. ¶ 10.) “The test for deciding the availability of grievance procedures is an objective one: that is, the court asks whether ‘a similarly situated individual have deemed them available.” CV-9254, 2013 WL 1209567, of ordinary firmness’ would White v. Dep’t of Corr., No. 11at *3 (S.D.N.Y. Mar. 21, 2013) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). Here, while the Inmate Handbook does reference issues outside of the warden’s control, that portion relates to appeals, not to commencement of the grievance process, and there is nothing to suggest that a similarly situated individual would have deemed the incident to be outside the warden’s control. (Inmate Handbook at 16.) Moreover, although Plaintiff takes issue with the fact that Mr. Rosenblatt was not disclosed in the parties’ Joint PreTrial Order (Pl.’s Opp. Br. at 10 n.2), Plaintiff proffers merely speculation to suggest that his grievance would not have 10 been accepted or would have been futile. 2 This is insufficient. See Magassouba v. Cross, No. 08-CV-4560, 2010 WL 1047662, at *10 (S.D.N.Y. Mar. 2, 2010) (“An inmate’s perception, based on past experience, does not that relieve the grievance an inmate of process the will be exhaustion unsuccessful, requirement.”) (collecting cases), adopted by 2010 WL 4908670 (S.D.N.Y. Nov. 30, 2010); cf. Harris v. NYC Dep’t of Corr. & The Inst. Mental Health Unit (St. Barnabas), No. 00-CV-7164, 2001 WL 845448, at *4 (S.D.N.Y. July 25, 2001) (“Such an assertion [that remedies were unavailable], with no support, in light of the elaborate statutory grievance scheme, is simply insufficient to overcome the motion to dismiss.”). B. Whether Defendants Have Forfeited the Defense of NonExhaustion Even if the grievance process was available, Plaintiff maintains that he should be excused from non-exhaustion because Defendants forfeited their affirmative defense by responding affirmatively and conducting an internal investigation without raising any deficiencies in the “form, content or timeliness of Mr. Cassar’s [or] Ms. Hubbs’ complaint prior to litigation.” (Pl.’s Opp. Br. at 14.) The Court disagrees. 2 While information Plaintiff received from his mother, or maybe even other detainees, may have led to Plaintiff’s belief that administrative remedies were not available to him, there is no evidence to suggest that this was anything other than Plaintiff’s belief. 11 First, even where officials are aware of the problem or issue, the plaintiff administrative remedies. CV-5198, 2012 WL must still formally exhaust See Williams v. Suffolk Cnty., No. 11- 6727160, at *4 (E.D.N.Y. Dec. 28, 2012) (finding that the plaintiff’s complaint to Internal Affairs did not constitute proper exhaustion). both Plaintiff’s mother and While it is undisputed that his criminal attorney made complaints to the Internal Affairs Section of the Suffolk County Sheriff’s Office and that an investigation was conducted, this means only that officials may have been aware of the alleged assault on complaint, Plaintiff. however, Awareness does procedural requirements. the substance equate not of to of compliance a with See Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007); Hill v. Tisch, No. 02-CV-3901, 2009 WL 3698380, at *8 (E.D.N.Y. Oct. 30, 2009); Toomer v. Cnty. of Nassau, No. 07-CV-1495, 2009 WL 1269946, at *9 (E.D.N.Y. May 5, 2009). Second, the internal investigation is separate and apart from the grievance process and cannot excuse compliance with grievance procedures. There is nothing to suggest that Defendants, or anyone else, stated that the investigation would substitute for the grievance procedures or at all refused to allow Plaintiff to exhaust. See Toomer, 2009 WL 1269946, at *7 (“Plaintiff’s conclusory assertion that he was led to believe his Complaint was not [a] grievable 12 issue because [it was] reported to and investigated by [the] Sheriff’s Bureau of Investigation, without any specific allegations or evidence of how defendants led plaintiff to incorrectly believe such, is insufficient . . . .” (internal quotation omitted)). At Plaintiff argues best, marks that, and when citation his mother called about the assault, she was told to talk with Internal Affairs. This is not the type of scenario sufficient to find that the defendants were estopped from raising non-exhaustion. See, e.g., Bailey v. Fortier, No. 09-CV-0742, 2012 WL 6935254, at *7 (N.D.N.Y. Oct. 4, 2012) (concluding that the defendant would not refused be to estopped provide because, the even plaintiff with where other necessary officials forms and cooperation, the defendant did not participate in such refusal), adopted by 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *9 (E.D.N.Y. Jan. 31, 2007) (“[D]efendants have not threatened [plaintiff] or engaged in other conduct preventing him from exhausting the available administrative remedies.”). Plaintiff cites to cases in which the grievance was untimely, but officials merits of the complaint. circumstance[s], nonetheless addressed the (Pl.’s Opp. Br. at 14-15.) ‘[c]ourts of this circuit have substantive “In these found that prison officials may not raise a non-exhaustion defense based on the alleged untimeliness of a 13 prisoner’s filing where they accepted that filing and considered it on the merits.’” Howard v. Bhatti, No. 08-CV-2645, 2010 WL 5067574, at *4 (E.D.N.Y. Dec. 6, 2010) (quoting Tyree v. Zenk, No. 05-CV-2998, 2007 WL 527918 (E.D.N.Y. Feb. 14, 2007)). Here, however, there was no untimely grievance, but rather no grievance at all. C. Whether Special Circumstances Exist Finally, should be Plaintiff excused asserts because that special his non-exhaustion circumstances exist. Specifically, he maintains that he reasonably believed that the Suffolk County Correctional Facility’s administrative remedies were not available. (Pl.’s Opp. Br. at 12.) The Court disagrees. “[A]mong ‘special’ include the circumstances those where that a may be plaintiff’s considered 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.” 2009 WL 1269946, at *8. Toomer, Plaintiff relies, in part, upon his alleged understanding that the issues he sought to grieve were outside of the warden’s control. (See Pl.’s Opp. Br. at 13 (referring to his “reasonable interpretation of the grievance procedures”).) However, Plaintiff’s deposition testimony demonstrates that he did not interpret the grievance procedure 14 at all at the relevant time. (Pl.’s Dep., Defs.’ 56.1 Stmt. Ex. C, at 50.) Moreover, Plaintiff also cites to information from his mother that she was told to lodge a complaint with Internal Affairs and reasonably to the believed actual investigation administrative remedies to show were that he unavailable. As already stated, though, the Internal Affairs investigation was independent of the grievance procedure and this case contains virtually no similarity to those in which courts have found special circumstances. See Brownell v. Krom, 446 F.3d 305, 313 (2d Cir. 2006) (finding special circumstances where prison official refused to investigate and, after the plaintiff conducted his own investigation, reasonably believed that he could not raise the new facts in administrative proceedings); contra Rodriguez v. Mount Vernon Hosp., No. 09-CV-5691, 2010 WL 3825736, at *18 (S.D.N.Y. Sept. 7, 2010) (“[Plaintiff’s] writing a letter to Dr. Wright instead of filing a formal grievance and his allegedly being told that it would be futile to appeal his grievance do not excuse or preclude him from exhausting administrative remedies.”), adopted by 2010 WL 3825715 (S.D.N.Y. Sept. 30, 2010). In addition, Plaintiff filed a grievance regarding his alleged lost property. (Defs.’ 56.1 Stmt. ¶ 2.) This demonstrates that Plaintiff had at least some concept that the 15 grievance Toomer, procedures 2009 WL may have 1269946, at been *8 available (finding a to lack him. of See special circumstances where the plaintiff had filed a prior grievance). Thus, the Court finds that Plaintiff failed to exhaust his administrative remedies, as required, and that his failure is not excused. D. Dismissal With Prejudice The only remaining issue, then, is whether this case should be dismissed with or without prejudice. prisoner’s failure to exhaust his Generally, a administrative requires dismissal of the action without prejudice. v. Melindez, 199 F.3d 108, 111-12 (2d Cir. when judgment.” the issue is decided on a See Snider 1998); Reilly, 324 F. Supp. 2d 361, 366 (E.D.N.Y. 2004). even remedies motion Davis v. “This is so for summary Mateo v. Corebine, No. 09-CV-4811, 2010 WL 3629515, at *7 (S.D.N.Y. Sept. 17, 2010). There are, however, situations where dismissal with prejudice is appropriate, such as where the prisoner has been transferred to another correctional facility or administrative remedies are no longer available. See Davis, 324 F. Supp. 2d at 366; see also Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2003). Here, although it is likely that Plaintiff has been transferred, the parties have not addressed this issue and the record is incomplete in this regard. Thus, 16 given the general rule, Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE. event that plaintiff has exhausted or does “In the exhaust his administrative remedies fully [if possible], he may refile his complaint and reinstitute his suit.” Mateo, 2010 WL 3629515, at *7. The Court also notes that this is a full dismissal of the action. Although the Suffolk County Sheriff’s Department has not appeared in the action, it is not a suable entity and claims against it are duplicative of those against the County. See Hayes (S.D.N.Y. v. Cnty. 2012) of (finding Sullivan, that the 853 F. Supp. Sullivan 2d County 400, 438 Sheriff’s Department is not a suable entity); Melendez v. Nassau Cnty., No. 10-CV-2516, 2010 WL 3748743, at *5 (E.D.N.Y. Sept. 17, 2010) (finding that the Nassau County Sheriff’s Department Division of Correction is not a suable entity); Barreto v. Suffolk Cnty., No. 10-CV-0028 (JS)(AKT), 2010 WL 301949, at *2 (E.D.N.Y. Jan. 20, 2010) (finding that the Suffolk County Sheriff’s Department is not a suable entity). Moreover, given that the Court has found a lack of exhaustion for individual liability, liability against the County cannot stand. See Daly v. Ragona, No. 11-CV- 3836, 2013 WL 3428185, at *10 (E.D.N.Y. July 9, 2013) (declining to impose liability against the County where claims against the individual County defendants could not stand). 17 CONCLUSION Defendants’ motion for summary judgment due to Plaintiff’s failure to exhaust his administrative remedies is GRANTED, and Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE. If exhaustion remains a possibility, Plaintiff may re-file his complaint upon exhaustion. The Clerk of the Court is directed to enter judgment accordingly and the mark this matter CLOSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: June 9, 2014 Central Islip, NY 18

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