Butler v. Sgt. Lewis V. et al
Filing
85
ORDER granting 74 Motion for Summary Judgment. For the reasons contained herein, IT IS HEREBY ORDERED that defendants' motion for summary judgment is granted, and the amended complaint is dismissed with prejudice. The Clerk of the Court sha ll enter judgment accordingly and close the case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. SO ORDERED. A copy of this memorandum and order has been mailed to plaintiff by chambers. Ordered by Judge Joseph F. Bianco on 4/11/2014. (Lamb, Conor)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-4844 (JFB)(WDW)
_____________________
KEITH TERRELL BUTLER,
Plaintiff,
VERSUS
SERGEANT LEWIS V. ET AL.,
Defendants.
_______________________
MEMORANDUM AND ORDER
April 11, 2014
_______________________
JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Keith Terrell Butler
(“Butler” or “plaintiff”) brings this action
against defendants Sheriff Vincent F.
DeMarco (“DeMarco”), Sgt. Louis Viscusi
(s/h/a Sgt. Lewis V.) (“Viscusi”), Thomas
Sharkey (“Sharkey”), Rena Walker (s/h/a
Dr. Reena Walker) (“Walker”), and C.O.
Investigator Peter Cherouvis (s/h/a Security
Officer Sirusso) (“Cherouvis”) (collectively,
“defendants”), alleging violations of his
constitutional rights pursuant to 42 U.S.C.
§ 1983. Plaintiff claims that, while he was
incarcerated at the Suffolk County
Correctional Facility (“SCCF”), Viscusi and
Sharkey assaulted him on September 9,
2011; Cherouvis threatened plaintiff after
the alleged assault; Walker refused to
document that plaintiff was injured during
the alleged assault; and the conditions at
SCCF are unsanitary.
Defendants
move
for
summary
judgment, arguing that plaintiff failed to
exhaust his administrative remedies as
required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a), and
that he has no evidence with which to
sustain his allegations against DeMarco,
Cherouvis, and Walker. For the following
reasons, the Court concludes that plaintiff
failed to exhaust his administrative
remedies, and that there are no grounds for
excusing that failure.1 Accordingly, the
Court grants the defendants’ motion for
summary judgment.
I.
A.
BACKGROUND
Factual Background
The following facts are taken from the
parties’ depositions, declarations, exhibits,
and respective Local Rule 56.1 statements of
facts. Upon consideration of a motion for
summary judgment, the Court construes the
facts in the light most favorable to the
1
Given the Court’s ruling, the Court need not address
defendants’ alternative grounds in support of their
motion.
According to an IA Case Status Report
from February 9, 2012, Butler claimed that
he received a scratch behind his left ear, a
bruise to the upper right thigh, and back pain
on September 9. (Internal Affairs Case
Status Report, Butler Opp. Ex. 12.)
Investigators found no record of any
incident. (Id.) Butler was seen by medical
personnel on September 9, but IA concluded
that the medical records “suggest the
ecchymosis [on the thigh] is an older
resolving injury and the back pain is a
continuous issue.” (Id.)
nonmoving party. See, e.g., Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d
Cir. 2005). Unless otherwise noted, where a
party’s Rule 56.1 statement is cited, that fact
is undisputed or the opposing party has not
pointed to any evidence in the record to
contradict it.
1.
The Alleged Assault
Plaintiff entered SCCF on August 24,
2011, and was transferred to the Downstate
Correctional Facility on November 8, 2011.
(Def. 56.1 ¶ 1.) The complaint revolves
around an incident on September 9, 2011.
(Amended Complaint, at IV.)
2.
Grievance Procedure
SCCF has a three-tiered formal
grievance procedure, which is detailed in the
SCCF Inmate Rules and Regulations
Booklet (the “Inmate Handbook”). (See
Inmate Handbook, Declaration of Jason
Bassett (“Bassett Decl.”) Ex. C.) Each
inmate receives a copy of the Handbook
upon entering the facility. (See Affidavit of
Matthew Bogert (“Bogert Aff.”) ¶ 3, Bassett
Decl. Ex. A.) Plaintiff received the Inmate
Handbook on August 24, 2011. (Def. 56.1
¶ 2; see Bogert Aff. ¶ 4; Booking Sheet
Receipt, Bassett Decl. Ex. B (Butler
acknowledging receipt).)
According to a letter from Viscusi to
Internal Affairs (“IA”), on September 9,
2011, Butler allegedly said that “he couldn’t
live in the 3 S/E tier and he was relocated to
the E 2/N tier without incident [that day].
There was an incident that took place on
09/10/11 that involved inmate Butler,
incident report was filed.” (Viscusi Internal
Affairs Letter, Butler Opp. Ex. 5.) Plaintiff
claimed that he was beaten up during the
move on September 9. (Interview Notes,
Butler Opp. Ex. 6.) According to an Incident
Report from September 10, 2011, on that
day, a tied-up sheet was obstructing
Sharkey’s view of Butler’s cell. (Incident
Report, Butler Opp. Ex. 2.) Butler refused to
comply with Sharkey’s initial orders to take
the sheet down, but he eventually took it
down. (Id.) As Sharkey walked away, Butler
yelled, “Suck my dick.” (Id.) Sharkey
reported this to Viscusi, who ordered Butler
to come to the sally port. (Id.) Butler
refused. (Id.) Lieutenant Sammartino then
assembled an extraction team to relocate
Butler to disciplinary housing. (Id.)
According to Sammartino, the move was
videotaped, and Butler was relocated
without incident. (Id.)
According to the three-part grievance
process, an inmate with a grievance must
first complain to the correctional officer
located in the inmate’s cell block.2 This
grievance must be filed within five days of
the incident giving rise to the grievance. If
dissatisfied with the results of the first step,
the inmate may file a grievance form to be
2
According to Bogert, a Corrections Sergeant at
SCCF, inmates may submit grievances by (1)
handing them to an officer or sergeant, (2) going to
the law library and placing them in a box marked
“Grievances,” (3) putting them in the outgoing
mailbox on their tier for forwarding by the floor
sergeant, or (4) mailing them via the United States
Postal Services. (Bogert Aff. ¶ 8.)
2
reviewed by the Housing Sergeant assigned
to an inmate’s housing unit; if the issue is
not there resolved, the grievance will be
forwarded on to the Grievance Coordinator
for further investigation, leading to a
subsequent determination. The Grievance
Coordinator is required to make a written
determination within five business days. If
an inmate is dissatisfied with the results of
the preceding two steps, the inmate may
appeal the grievance board’s determination
to the Warden. If the appeal results in an
unfavorable decision, the inmate may appeal
that determination to the State Commission
of Correction.3 (See SCCF Handbook, at
15–16.)
3.
Plaintiff did file Grievance # R-2011523, which was received by the Grievance
Processing Unit on September 19, 2011.
(Def. 56.1 ¶ 8; see Grievance R-2011-523,
Bassett Decl. Ex. D (stamped “RECEIVED”
on September 19).) In that grievance, signed
on September 15, plaintiff complained that
“Sergeant Ski” never gave anyone the three
grievances plaintiff wrote on September 11,
and therefore, they were not on file and
nowhere to be found. (Grievance Form R2011-523.) Plaintiff did not identify the
nature of his earlier grievances. (Def. 56.1
¶ 9.) The grievance was denied on
September 21, 2011, because “Inmate
Butler’s grievances are being addressed and
are currently on file with the Grievance Unit
of the SCSO.” (R-2011-523 Denial, Bassett
Decl. Ex. E.) Plaintiff refused to sign the
denial, but he never appealed it to the
Warden or to the State Commission of
Correction. (Id.; Def. 56.1 ¶ 11.) Another
grievance, denied on September 21, 2011,
addressed mental health issues. (R-2011-524
Denial, Butler Opp. Ex. 4.)
Plaintiff’s Grievances
SCCF’s records contain no filed
grievances by plaintiff alleging an attack on
his person on September 9, 2011 (or another
date) by Viscusi, Sharkey, or other officers.
(Bogert Aff. ¶ 6.) SCCF also has no records
of any formal prisoner grievance alleging
medical neglect by Walker or any other
party on September 9, 2011 (or another
date); unsanitary conditions at the facility; or
a threat by Cherouvis or another individual
against plaintiff’s family or to place plaintiff
in administrative segregation.4 (Def. 56.1
¶¶ 5–7.)
Plaintiff attached purported grievances
to his opposition.5 The first grievance,
waste come up in each others toilet [sic].” (Amended
Complaint, at IV.)
5
Defendants question the authenticity of these
grievances and note that they have submitted
evidence that plaintiff did not file any grievance
regarding the alleged September 9, 2011 attack. (See
Defs.’ Reply, at 4 (“As supposed support for his
wholly conclusory allegations, the plaintiff attached
to his papers in opposition to defendants’ motion for
summary judgment a Suffolk County Sheriff’s Office
Grievance Form (without a Grievance Number
indicating it had ever been filed) dated next to
plaintiff’s signature as ‘9/22/11’. Even if this
Grievance was actually filed (which the Sworn
Affidavit of Matthew Bogert – ‘Exhibit A’ – clearly
refutes), it could not have been filed until September
22, 2011, well in excess of the five (5) day
requirement for prisoner grievances clearly laid out in
the Inmate Handbook (“Exhibit C”)[.] As stated in
defendantss [sic] original moving papers, the actual
evidence conclusively establishes that plaintiff did
3
Plaintiff argues that the Inmate Handbook submitted
by defendants is “not the actual handbook that the
institution issues to prisoners.” (Pl. Rule 56.1
Statement ¶ 2.) Plaintiff testified, however, that he
received a copy of the Handbook when he first
arrived at SCCF, and that the Handbook outlines the
grievance procedure. (Butler Deposition (“Butler
Dep.”) at 147:13–22, Bassett Decl. Ex. F.) Therefore,
plaintiff does not raise a genuine issue of fact as to
the steps in the three-part grievance process, or his
awareness of that process.
4
According to plaintiff, “[t]he living conditions are
unsanitary, theirs rusted bars and paint chips falling
into the food, the showers are disscusting caked up
milue & mole, the toilets are foul other inmates toxic
3
signed on September 22, 2011, does not
have a grievance number or a “RECEIVED”
stamp. (Lewis Grievance, Butler Opp. Ex.
7.) Butler complained that Viscusi, Sharkey,
and others beat him on September 9, and
that Viscusi threatened to throw plaintiff
down the elevator shaft. (Id.) The second
grievance, signed on September 22, 2011,
also does not have a grievance number or a
“RECEIVED” stamp. (Sirusso Grievance,
Butler Opp. Ex. 8.) Butler complained that
Viscusi threatened Butler’s family and said
he would put plaintiff in administrative
segregation. (Id.) Butler also sent a letter to
DeMarco on September 22, marked “Rec’d
09-27-2011,”
complaining
that
the
grievances he gave on September 11
apparently disappeared, and that he was told
he could not appeal other grievances. (Letter
to DeMarco, Butler Opp. Ex. 9.) Butler also
complained that Walker refused to
document that plaintiff was beaten up. (Id.)
B.
II.
STANDARD OF REVIEW
Pursuant to Rule 56(a), a court may
grant a motion for summary judgment only
if “the movant shows that there is no
genuine dispute as to any material fact and
the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The
moving party bears the burden of showing
that he or she is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). “A party asserting that
a fact cannot be or is genuinely disputed
must support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
Procedural Background
Plaintiff filed the original complaint on
September 27, 2011, and filed the amended
complaint on January 5, 2012. Defendants
answered on February 28, 2012. Following a
report and recommendation by Magistrate
Judge Wall, this Court dismissed the
complaint with prejudice for failure to
prosecute on April 2, 2013. The Court
reopened the case on May 29, 2013.
Defendants moved for summary judgment
on August 30, 2013. Plaintiff opposed on
November 15, 2013. Defendants replied on
December 13, 2013. The Court has fully
considered the submissions of the parties.
Once the moving party has met its
burden, the opposing party “must do more
than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.” Caldarola
not file any grievance(s) regarding any attack on his
person on September 9, 2011 (or any other date) by
Sgt. Louis Viscusi, C.O. Thomas Sharkey, and/or any
other Corrections Officers (See ‘Exhibit A’,
paragraph 4).”).)
4
III.
v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986)). As the Supreme Court stated in
Anderson, “[i]f the evidence is merely
colorable, or is not significantly probative,
summary judgment may be granted.” 477
U.S. at 249–50 (citations omitted). Indeed,
“the mere existence of some alleged factual
dispute between the parties” alone will not
defeat a properly supported motion for
summary judgment. Id. at 247–48. Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Grp., Inc. v. Horn
& Hardart Co., 751 F.2d 69, 77 (2d Cir.
1984) (quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, a party opposing summary
judgment cannot “merely . . . assert a
conclusion without supplying supporting
arguments or facts.” BellSouth Telecomms.,
Inc. v. W.R. Grace & Co., 77 F.3d 603, 615
(2d Cir. 1996) (quoting Research
Automation Corp., 585 F.2d at 33).
DISCUSSION
Plaintiff brings his claims pursuant to 42
U.S.C. § 1983. Section 1983 “is not itself a
source of substantive rights, but a method
for vindicating federal rights elsewhere
conferred by those parts of the United States
Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979). To prevail on a claim
under § 1983, a plaintiff must prove that
“(1) the challenged conduct was attributable
at least in part to a person who was acting
under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed
under the Constitution of the United States.”
Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.
1999). In addition, “a plaintiff must establish
a given defendant’s personal involvement in
the claimed violation in order to hold that
defendant liable in his individual capacity
under § 1983.” Patterson v. Cnty. of Oneida,
375 F.3d 206, 229 (2d Cir. 2004); see Gill v.
Mooney, 824 F.2d 192, 196 (2d Cir. 1987)
(“Absent some personal involvement by [a
defendant] in the allegedly unlawful conduct
of his subordinates, he cannot be held liable
under section 1983.”).
The Second Circuit has made clear that
an inmate is not entitled to a jury trial on
factual disputes regarding the failure to
exhaust administrative remedies under the
PLRA. See Messa v. Goord, 652 F.3d 305,
308 (2d Cir. 2011) (per curiam) (holding
that there is no “right to a jury trial on
factual disputes regarding an inmate’s
failure to exhaust administrative remedies as
required by the PLRA”); see also Abdur–
Rahman v. Terrell, No. 10-CV-3092, 2012
WL 4472119, at *5 (E.D.N.Y. Sept. 25,
2012) (“Determining whether an inmate has
exhausted his remedies is a threshold matter
for the court to decide, even where there is a
disputed issue of fact.”).
Defendants move for summary judgment
on the ground that plaintiff failed to exhaust
his administrative remedies. In the
alternative, defendants argue that there is no
evidence establishing any liability on the
part of DeMarco, Cherouvis, or Walker. As
set forth below, the Court concludes that
plaintiff did not exhaust his administrative
remedies and he has failed to show any
grounds for excusing that failure. Thus, the
Court grants summary judgment in favor of
defendants without addressing their
alternative argument.
A.
Failure to Exhaust
Defendants argue that plaintiff cannot
raise any claims under Section 1983 because
5
administrative proceedings
but has no means of
enforcing that result, or if the
inmate has been deterred by
intimidation; (2) similarly, if
prison officials inhibit the
inmate’s ability to seek
administrative review, that
behavior may equitably estop
them from raising an
exhaustion
defense;
(3)
imperfect exhaustion may be
justified
in
special
circumstances, for instance if
the inmate complied with his
reasonable interpretation of
unclear
administrative
regulations, or if the inmate
reasonably believed he could
raise
a
grievance
in
disciplinary proceedings and
gave
prison
officials
sufficient information to
investigate the grievance.
he failed to exhaust the available
administrative remedies. The Court agrees.
1. Legal Standard
The PLRA states that “[n]o action shall
be brought with respect to prison conditions
under [42 U.S.C. § 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.” 42 U.S.C.
§ 1997e(a).
“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.’ Prisoners must utilize
the state’s grievance procedures, regardless
of whether the relief sought is offered
through those procedures.” Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009)
(quoting Porter v. Nussle, 534 U.S. 516, 532
(2002)). “Proper exhaustion demands
compliance with an agency’s deadlines and
other critical procedural rules because no
adjudicative system can function effectively
without imposing some orderly structure on
the course of its proceedings” Woodford v.
Ngo, 548 U.S. 81, 90–91 (2006). Therefore,
the exhaustion inquiry requires a court to
“look at the state prison procedures and the
prisoner’s grievance to determine whether
the prisoner has complied with those
procedures.” Espinal, 558 F.3d at 124
(citing Jones v. Bock, 549 U.S. 199, 218
(2007); Woodford, 548 U.S. at 88–90).
Reynoso v. Swezey, 238 F. App’x 660, 662
(2d Cir. 2007) (summary order) (internal
citations omitted); see also Davis v. New
York, 311 F. App’x 397, 399 (2d Cir. 2009)
(summary order) (citing Hemphill v. New
York, 380 F.3d 680, 686, 691 (2d Cir.
2004)). Initially, it was unclear whether the
above-discussed considerations would be
impacted by Woodford. See, e.g., Reynoso,
238 F. App’x at 662 (“Because we agree
with the district court that [plaintiff] cannot
prevail on any of these grounds, we have no
occasion to decide whether Woodford has
bearing on them.”); Ruggiero v. Cnty. of
Orange, 467 F.3d 170, 176 (2d Cir. 2006)
(“We need not determine what effect
Woodford has on our case law in this area,
however, because [plaintiff] could not have
prevailed even under our pre-Woodford case
law.”). However, even after Woodford, the
Second Circuit has continued to hold that an
inmate’s failure to comply with the
Prior to Woodford, the Second Circuit
recognized some nuances in
the exhaustion requirement:
(1) administrative remedies
that are ostensibly ‘available’
may be unavailable as a
practical matter, for instance,
if the inmate has already
obtained a favorable result in
6
for failing to file on time. If the prison then
rejects the grievance as untimely, the
prisoner could proceed directly to federal
court. . . . We are confident that the PLRA
did not create such a toothless scheme.”).
exhaustion requirement may be excused on
these grounds. See Messa, 652 F.3d at 309
(citing the Hemphill factors).
As
the
Supreme
Court
has
held, exhaustion is an affirmative defense.
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
demonstrate
exhaustion
in
their
complaints.”); see also Key v. Toussaint,
660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009)
(Report and Recommendation) (“Failure to
exhaust administrative remedies under the
PLRA is an affirmative defense, and thus the
defendants have the burden of proving that
[plaintiff’s] retaliation claim has not been
exhausted.” (citations omitted)).
2.
a.
Plaintiff claims he filed three grievances
regarding the alleged assault on September
9, 2011. None of the grievances filed,
received, and addressed by SCCF, however,
mention any September 9 assault, threats by
Viscusi, actions by Walker, or unsanitary
conditions at SCCF. Further, the purported
grievances plaintiff attaches to his
opposition are dated September 22, 2011,
after the five day grievance filing deadline.
There also is no evidence that plaintiff
appealed any grievance to the Warden or the
State Commission of Correction, as
required. Therefore, because plaintiff failed
to file his grievances in a timely fashion (if
at all) in accordance with SCCF’s
procedures, failed to exhaust his appeals of
grievances, or both, plaintiff has failed to
properly
exhaust
his
administrative
remedies. See Medina v. Nassau Cnty.
Sheriff Dep’t, No. 11-CV-228 (JFB)(GRB),
2013 WL 4832803, at *5 (E.D.N.Y. Sept.
10, 2013) (holding that plaintiff failed to
exhaust remedies where grievances were
deemed insufficient and plaintiff failed to
supply necessary information, and plaintiff
otherwise failed to appeal any grievances);
Williams v. Metro. Detention Ctr., 418 F.
Supp. 2d 96, 101–02 (E.D.N.Y. 2005)
(dismissing pro se complaint where plaintiff
could only show he exhausted two steps of
four-step process mandated by prison’s
guidelines); see also Morrison v. Stefaniak,
523 F. App’x 51, 52 (2d Cir. 2013)
(summary order) (upholding dismissal
because plaintiff failed to appeal the Inmate
Grievance
Resolution
Committee’s
decision); Valentine v. Lindsay, No. 10-CV868 (JG)(JMA), 2011 WL 3648261, at *7
(E.D.N.Y. Aug. 17, 2011) (prisoner failed to
Analysis
Proper Exhaustion
“Proper exhaustion” requires a prisoner
to use “‘all steps that the agency holds out,
and doing so properly (so that the agency
addresses the issues on the merits).’”
Ruggiero, 467 F.3d at 176 (quoting
Woodford, 548 U.S. at 90) (emphasis in
original). Although the level of detail
necessary to properly exhaust a prison’s
grievance process will vary from system to
system, Jones, 549 U.S. at 218, “proper
exhaustion” under the PLRA “‘demands
compliance with [that] agency’s deadlines
and other critical procedural rules,’”
Ruggiero, 467 F.3d at 176 (quoting
Woodford, 548 U.S. at 90). Thus, the
PLRA’s exhaustion requirement is not
satisfied by “untimely or otherwise
procedurally defective attempts to secure
administrative remedies.” Id. (citing
Woodford, 548 U.S. at 83–84); see
Woodford, 548 U.S. at 95 (“For example, a
prisoner wishing to bypass available
administrative remedies could simply file a
late grievance without providing any reason
7
Suffolk Cnty., No. 11-CV-5198 (JFB)(AKT),
2012 WL 6727160, at *5–6 (E.D.N.Y. Dec.
28, 2012) (officials erroneously told plaintiff
that matter could not be pursued through
normal grievance process); Feliciano v.
Goord, No. 97-CV-263 (DLC), 1998 WL
436358, at *2 (S.D.N.Y. July 27, 1998)
(denying motion to dismiss because, inter
alia, officials told plaintiff that complaint
involved non-grievable security matter). Nor
has plaintiff shown that prison officials
purposefully lost the September 11
grievances in order to prevent plaintiff from
timely invoking his administrative remedies.
Plaintiff also does not demonstrate that he
was unaware of the appeals process, see
Ruggiero, 467 F.3d at 178 (holding that
inmate had not exhausted his administrative
remedies when he did not claim “that he was
unaware of the grievance procedures
contained within [the Inmate Handbook] or
that he did not understand those
procedures”), or that he reasonably believed
pursuing a grievance would be “futile or
impossible” through the introduction of
evidence regarding “prison officials’ threats,
beatings” or other misconduct, Kasiem v.
Switz, 756 F. Supp. 2d 570, 577 (S.D.N.Y.
2010) (citation and internal quotation marks
omitted).
exhaust his administrative remedies when he
untimely appealed grievance).
b.
Availability of Remedies
The Second Circuit has stated that, if a
prisoner has failed to exhaust, the Court
must determine “whether administrative
remedies were in fact ‘available’ to the
prisoner . . . or whether the defendants’ own
actions inhibiting the inmate’s exhaustion of
remedies may estop . . . the defendants from
raising the plaintiff’s failure to exhaust as a
defense.” Hemphill, 380 F.3d at 686
(internal citations omitted). It is clear that
“[a]n administrative remedy is not
‘available,’ and therefore need not be
exhausted, if prison officials erroneously
inform an inmate that the remedy does not
exist or inaccurately describe the steps he
needs to take to pursue it.” Pavey v. Conley,
663 F.3d 899, 906 (7th Cir. 2011) (citations
omitted); see also Smith v. Woods, No. 03CV-480, 2006 WL 1133247, at *15
(N.D.N.Y. Apr. 24, 2006) (Report and
Recommendation) (“[C]ase law exists
supporting the proposition that, assuming
plaintiff was instructed by prison officials,
contrary to prison regulations, that he could
not file a grievance, and plaintiff indeed did
not initiate the grievance process by filing
that grievance in reliance on that
misrepresentation, the formal grievance
proceeding required by the prison grievance
system was never ‘available’ to plaintiff
within the meaning of the PLRA.” (internal
alterations,
citations,
emphasis,
and
quotation marks omitted)).
Plaintiff also does not demonstrate that
special circumstances warrant excusal from
the exhaustion requirement. Findings of
special circumstances have been primarily
established where plaintiffs acted pursuant
to reasonable interpretations of the
regulations, thus preventing exhaustion. See
Ruggiero, 467 F.3d at 175 (describing
“special circumstances” as “a reasonable
misunderstanding
of
the
grievance
procedures, [thereby] justify[ing] the
prisoner’s failure to comply with the
exhaustion requirement” (emphasis added));
Hartry v. Cnty. of Suffolk, 755 F. Supp. 2d
422, 433 (E.D.N.Y. 2010) (“Among the
circumstances potentially qualifying as
Here, Butler does not show that SCCF’s
grievance procedure was not “available” to
him due to misrepresentations by prison
officials. See Hemphill, 380 F.3d at 686.
There is no evidence that Butler was told
that he could not file or appeal any
grievances, or that his complaints involved
non-grievable matters. Cf. Williams v.
8
with respect to the grievance[s],” Cruz, 2013
WL 4719086, at *7, he failed to exhaust all
statutory levels of appeal of those grievances
even though, in his view, the grievances
were misplaced or destroyed by corrections
officers. Therefore, plaintiff’s assertion that
his grievances were misplaced or destroyed
cannot be a basis to excuse exhaustion, and
summary judgment for defendants is
warranted. See, e.g., id. at *3–4 (granting
defendants’ motion for summary judgment
where plaintiff stated that his grievance was
“misplaced” but provided insufficient
evidence to support his assertion, and
plaintiff failed to follow up his complaint
pursuant to procedure set out by facility);
Rosado v. Fessetto, No. 09-CV-67
(DNH/ATB), 2010 WL 3808813, at *7
(N.D.N.Y. Aug. 4, 2010) (“Courts have
consistently held . . . that an inmate’s
general claim that his grievance was lost or
destroyed does not excuse his exhaustion
requirement.”) (collecting cases), report &
recommendation adopted, 2010 WL
3809991 (N.D.N.Y. Sept. 21, 2010);
LaBombard v. Burroughs-Biron, No. 09CV-136, 2010 WL 2264973, at *6 (D. Vt.
Apr. 30, 2010) (“[T]he lack of a response
did not excuse him from moving to the next
step in the process, and eventually appealing
to the Commissioner, if necessary, prior to
filing suit”), report & recommendation
adopted, 2010 WL 2265004 (D. Vt. June 2,
2010); George v. Morrison, No. 06 Civ.
3188 (SAS), 2007 WL 1686321, at *3
(S.D.N.Y. June 11, 2007) (“It is wellsettled . . . that even when an inmate files a
grievance and receives no response, he must
nevertheless properly exhaust all appeals
before his grievance is considered
exhausted.” (citation and internal quotation
marks omitted)); Veloz v. New York, 339 F.
Supp. 2d 505, 516 (S.D.N.Y. 2004)
(“[P]laintiff’s allegation that these particular
grievances were misplaced or destroyed by
correctional officers ultimately does not
‘special’ under this prong of the test is
where a plaintiff’s 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 cannot be grieved.”). No
such special circumstances are present here.
Instead, plaintiff argues that prison
officials misplaced or destroyed his
September 11 grievances. In Cruz v.
DeMarco, this Court found the inmate’s
allegations that his grievances “just
disappeared” to be conclusory and
insufficient to overcome the PLRA’s
exhaustion requirement. See No. 12-cv-4277
(JFB)(GRB), 2013 WL 4719086, at *7–8
(E.D.N.Y. Sept. 3, 2013). Unlike in Cruz,
plaintiff’s contention is not conclusory. He
details his attempt to file grievances on
September 11, states that he gave them to
Sergeant Ski, and introduces purported
versions of those grievances. Plaintiff’s
letter to DeMarco and Grievance Form R2011-523 also support his claim that he
submitted grievances to somebody at SCCF
on September 11. As a threshold matter,
plaintiff cannot rely on the copies of the
grievances submitted with his opposition,
because there is no record of them having
been filed with SCCF. See Harris v.
Loverde, No. 08-CV-6069, 2011 WL
5080089, at *4 (W.D.N.Y. Oct. 26, 2011)
(declining to rely on copy of grievance
submitted with opposition because, inter
alia, there was no evidence that it was ever
filed). In any event, even assuming
arguendo that all those grievances were
filed, the Court concludes that the alleged
misplacement or destruction of those
grievances does not provide special
circumstances warranting excusal from
exhaustion, where plaintiff never followed
the available procedure to challenge the
alleged failure to act on his grievances. In
other words, although plaintiff clearly took
“some action to determine what happened
9
IV.
relieve him of the requirement to appeal
these claims to the next level once it became
clear to him that a response to his initial
filing was not forthcoming.”), aff’d, 178 F.
App’x 39 (2d Cir. 2006); accord Martinez v.
Williams, 186 F. Supp. 2d 353, 357
(S.D.N.Y. 2002); Waters v. Schneider, No.
01-CV-5217 (SHS), 2002 WL 727025, at *2
(S.D.N.Y. Apr. 23, 2002).
CONCLUSION
For the foregoing reasons, the Court
grants defendants’ motion for summary
judgment, and dismisses the amended
complaint with prejudice.6 The Clerk of the
Court shall enter judgment accordingly and
close the case. The Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal
from this Memorandum and Order would
not be taken in good faith and, therefore, in
forma pauperis status is denied for purpose
of an appeal. See Coppedge v. United States,
369 U.S. 438, 444–45 (1962).
Accordingly, because the evidence
demonstrates that plaintiff did not exhaust
his administrative remedies as required by
the PLRA, and no grounds exist for
excusing that failure, the Court grants
defendants’ motion for summary judgment
for failure to exhaust.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
April 11, 2014
Central Islip, NY
***
Plaintiff proceeds pro se. Defendants are
represented by Jason Bassett and Richard T.
Dunne of the Suffolk County Department of
Law, H Lee Dennison Building, 100
Veterans Memorial Highway, Hauppauge,
NY, 11788.
6
The dismissal is with prejudice because the
“administrative remedies have become unavailable
after the prisoner had ample opportunity to use them
and no special circumstances justified failure to
exhaust.” Berry v. Kerik, 366 F.3d 85, 88 (2d Cir.
2004). Plaintiff is not at SCCF, and because any
appeal would be untimely, plaintiff would not be able
to pursue his administrative remedies as to the claims
against these defendants. See, e.g., Davis v. Reilly,
324 F. Supp. 2d 361, 366 (E.D.N.Y. 2004)
(“[D]ismissal of a section 1983 complaint with
prejudice is proper where the prisoner failed to
exhaust administrative remedies available after a
period of several months and those remedies are no
longer available, partly because of the prisoner’s
being transferred to another correctional facility.”).
10
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