Hubbs v. County of Suffolk et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-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
Leo Glickman, Esq.
Stoll, Glickman & Bellina, LLP
475 Atlantic Avenue, Floor 3
Brooklyn, NY 11217
& John Does:
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:
County of Suffolk (the “County”), Deputy Sheriff Sergeant Andrew
“Defendants”) motion for summary judgment dismissing the Amended
Complaint by plaintiff Gregory Hubbs (“Plaintiff”).
following reasons, Defendants’ motion is GRANTED.
The case involves events that occurred on November 10,
(Defs.’ 56.1 Stmt., Docket Entry 32-2, ¶ 1.)
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.
(Am. Compl., Docket
conversation with Mr. Oddone, who Plaintiff later learned was
Department Correction Officer.
(Am. Compl. ¶ 19.)
asserts that, after that conversation, Defendants subjected him
to excessive force.
(Defs.’ 56.1 Stmt. ¶ 1.)
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.
(Defs.’ 56.1 Stmt.
However, a witness to the alleged assault, Natalie
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
(Pl.’s 56.1 Counterstmt., Docket Entry 33, ¶ 11.)
Ms. Hubbs then called Plaintiff’s criminal attorney, Christopher
(Pl.’s 56.1 Counterstmt. ¶ 12.)
Ms. Hubbs also called
the Suffolk County Correction Department at Yaphank Correctional
(Pl.’s 56.1 Counterstmt. ¶ 13.)
According to Ms.
Hubbs, she was told to lodge her complaint with the internal
Counterstmt. ¶ 13.)
She followed up with a subsequent phone
call on November 17, 2009.
(Pl.’s 56.1 Counterstmt. ¶ 17.)
November 11 or 12, 2009, Mr. Cassar also faxed and sent a letter
(Pl.’s 56.1 Counterstmt. ¶¶ 14, 16.)
November 11, 2009.
(Pl.’s 56.1 Counterstmt. ¶ 16.)
Affairs investigation was conducted; investigators interviewed
Plaintiff’s medical records and other documents.
Counterstmt. ¶¶ 20-22.)
The investigation resulted in a five-
Counterstmt. ¶ 22.)
§ 1983 (“Section 1983”) for, inter alia, violation of his due
process rights under the Fourteenth Amendment and violation of
his Eighth Amendment right to be free from cruel and unusual
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.
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
FED. R. CIV. P.
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.”
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)).
specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.
reasonable jury could return a verdict for the nonmoving party,”
Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505,
allegations or denials will not suffice.”
781 F.2d 319, 323 (2d Cir. 1986).
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).
remedies prior to bringing suit.
The Court agrees.
Under the Prison Litigation Reform Act (the “PLRA”),
prior to commencing an action challenging the conditions of his
42 U.S.C. § 1997e(a)
brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in
administrative remedies as are available are exhausted.”).
PLRA exhaustion requirement applies to “all inmate suits about
particular episodes, and whether they allege excessive force or
some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532, 122 S.
§ 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-
using all steps that the agency holds out, and doing so properly
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,
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, 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
Grievance Program (“IGP”).
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.
reached, the inmate may request a grievance form, which will
then be forwarded to the Sergeant assigned to the housing unit
(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.)
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.)
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 . . .
Issues that are outside the Warden’s control.”
at 16 (emphasis in original).)
Plaintiff does not dispute that he failed to comply
with the grievance procedures available at the Suffolk County
This does not end the inquiry, however.
certain caveats apply.”
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
remedies as required by the PLRA.”
First, the court should
‘available’ to the prisoner.”
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
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.
Id. (quoting Giano, 380 F.3d at 689-91).
Plaintiff asserts that his failure to exhaust should
The Court will address each basis in turn.
Whether Administrative Remedies Were Available to
(Pl.’s Opp. Br., Docket Entry 33-3, at 9.)
Suffolk County Deputy Sheriffs inside the courthouse, even if he
County Sheriff’s Office Internal Affairs.
(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.)
Court agrees with Defendants.
Initially, Defendants proffer admissible evidence in
the form of an affidavit from the Grievance Coordinator at the
Docket Entry 32-12.)
Craig Rosenblatt affirmed that
[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
have deemed them available.”
White v. Dep’t of Corr., No. 11at
(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
Handbook at 16.)
Moreover, although Plaintiff takes issue with the fact
that Mr. Rosenblatt was not disclosed in the parties’ Joint PreTrial
merely speculation to suggest that his grievance would not have
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
(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.”).
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
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.
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
First, even where officials are aware of the problem
See Williams v. Suffolk Cnty., No. 11-
(finding that the plaintiff’s complaint to Internal Affairs did
not constitute proper exhaustion).
While it is undisputed that
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
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).
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
Investigation, without any specific allegations or evidence of
how defendants led plaintiff to incorrectly believe such, is
. . . .”
called about the assault, she was told to talk with Internal
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
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
Plaintiff cites to cases in which the grievance was
merits of the complaint.
(Pl.’s Opp. Br. at 14-15.)
prison officials may not raise a non-exhaustion defense based on
accepted that filing and considered it on the merits.’”
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.
Whether Special Circumstances Exist
Specifically, he maintains that he reasonably believed that the
Suffolk County Correctional Facility’s administrative remedies
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.
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
demonstrates that he did not interpret the grievance procedure
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
As already stated, though, the Internal Affairs investigation
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
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
administrative remedies.”), adopted by 2010 WL 3825715 (S.D.N.Y.
Sept. 30, 2010).
In addition, Plaintiff filed a grievance regarding his
demonstrates that Plaintiff had at least some concept that the
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.
Dismissal With Prejudice
The only remaining issue, then, is whether this case
should be dismissed with or without prejudice.
requires dismissal of the action without prejudice.
Reilly, 324 F. Supp. 2d 361, 366 (E.D.N.Y. 2004).
“This is so
Mateo v. Corebine, No. 09-CV-4811, 2010 WL 3629515,
at *7 (S.D.N.Y. Sept. 17, 2010).
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
Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE.
administrative remedies fully [if possible], he may refile his
complaint and reinstitute his suit.”
Mateo, 2010 WL 3629515, at
The Court also notes that this is a full dismissal of
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.
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).
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.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
June 9, 2014
Central Islip, NY
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