Rodriguez v. County of Suffolk et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that Magistrate Judge Brown's Report is adopted in its entirety as an order of the Court. Defts' motion for summary judgment is granted as to plaintiffs state law claims, and denied as t o the federal claims. Plaintiffs state law claims are dismissed. Plaintiffs federal law claims remain pending. A pretrial conference is scheduled before Judge Feuerstein in Courtroom 1010 at the Central Islip Courthouse, located at 100 Federal Plaza, Central Islip, New York 11722, on September 4, 2014 at 11:15 a.m.. Ordered by Judge Sandra J. Feuerstein on 7/14/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstCOUNTY OF SUFFOLK, SUFFOLK COUNTY
CORRECTIONAL CENTER, P.O. JOHN DOES,
(Rank Unknown) I through 3, sued in their
individual and official capacities,
IN CLERK"S OFFICE
U S DISTRICT COURT E D N Y
JUL 1 4 Z014
LONG ISLAND OFFICE
On April 9, 2013, plaintiff Miguel Rodriguez ("plaintiff') filed a civil rights complaint
pursuant to 42 U.S. C.§ 1983 ("Section 1983") against County of Suffolk ("Suffolk County"),
Suffolk County Correctional Center, and P.O. John Does (collectively, "defendants"). [Docket
Entry No. 1]. On September 27, 2013, defendants moved for summary judgment. [Docket Entry
No. 12]. Now before the Court is the Report and Recommendation of Magistrate Judge Gary R.
Brown dated June 30, 2014 (the "Report"), that defendants' motion for summary judgment be
granted as to the state law claims, and denied as to the federal claims. 1 [Docket Entry No. 16].
On July I, 2014, Suffolk County filed objections to the portion of the Report that recommends
the denial of summary judgment as to the federal claims ("Obj ."). [Docket Entry No. 17]. On
July 4, 2014, plaintiff filed a response to Suffolk County's objections. [Docket Entry No. 18].
For the reasons that follow, the Court accepts Magistrate Judge Brown's Report in its entirety.
The facts underlying this action are set forth in the Report. See Report, at 2-5.
A. Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct
proceedings of dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P.
72(b). Any portion of a report and recommendation on dispositive matters to which a timely
objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b).
However, "when a party makes only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report strictly for clear error." Frankel v. City of
NY, Nos. 06 Civ. 5450,07 Civ. 3436,2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009). The
Court is not required to review the factual findings or legal conclusions of the magistrate judge
as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). To
accept the report and recommendation of a magistrate judge on a dispositive matter to which no
timely objection has been made, the district judge need only be satisfied that there is no clear
error on the face of the record. See Fed. R. Civ. P. 72(b); Johnson v. Goard, 487 F. Supp. 2d
377, 379 (S.D.N.Y. 2007), aff'd, 305 F. App'x 815 (2d Cir. Jan. 9, 2009); Baptichon v. Nev.
State Bank, 304 F. Supp. 2d 451, 453 (E.D.N.Y. 2004), aff'd, 125 F. App'x 374 (2d Cir. Apr. 13,
2005). Whether or not proper objections have been filed, the district judge may, l!fier review,
accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C.
§ 636(b)(l); Fed. R. Civ. P. 72(b).
B. Objections to the Report
No parties have objected to the portion of the Report recommending that summary
judgment be granted to defendants on plaintiff's state law claims. Upon review, the Court is
satisfied that such recommendation is not facially erroneous. Accordingly, 'that portion of the
Report is adopted by the Court and summary judgment is granted to defendants on plaintiff's
state law claims.
Suffolk County objects to the portion of the Report recommending that defendants'
summary judgment motion be denied with respect to plaintiffs federal claims. Specifically,
Suffolk County contends that "the recommendation of Judge Brown that the plaintiff be excused
from the PLRA's exhaustion requirement because the administrative remedies were rendered
effectively unavailable based upon an alleged threat against the plaintiff and an alleged failure to
provide a grievance form upon request were clearly erroneous and contrary to the law." Obj., at
I. Accordingly, the Court is required to conduct a de novo review of Magistrate Judge Brown's
recommendation that plaintiff be excused from the exhaustion requirement of the Prison
Litigation Reform Act ("PLRA"). For the reasons that follow, upon de novo review, the Court
overrules Suffolk County's objections, and accepts Magistrate Judge Brown's recommendation
that defendants' summary judgment motion be denied as to plaintiffs federal claims.
C. Prison Litigation Reform Act
The PLRA prohibits a prisoner in any jail, prison, or correctional facility from initiating
an action "with respect to prison conditions under section 1983 ... or any other Federal law"
"until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The
"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. Nuss/e, 534 U.S. 516, 522, 122 S.Ct. 983, !52 L.Ed.2d 12 (2002).
To determine whether a plaintiff may be excused for failing to exhaust administrative
remedies as required by the PLRA, the Court must consider whether: (I) administrative
remedies were, in fact, "available" to the prisoner; (2) the defendants are estopped from raising
the non-exhaustion defense by failing to preserve it or by taking affirmative action to inhibit the
plaintiff's pursuit of available remedies; and (3) special circumstances "have been plausibly
alleged" to excuse the plaintiffs failure to comply with the applicable procedural requirements.
Hemphill v. New York, 380 F.3d 680, 686,689 (2d Cir. 2004); see also Ruggiero v. Cnty. of
Orange, 467 F.3d 170, 175 (2d Cir. 2006).
Availability of Administrative Procedures
The first prong of the Hemphill test, whether administrative remedies were "available," is
an objective test that asks if "a similarly situated individual of ordinary firmness [would] have
deemed [administrative remedies] unavailable." Hemphill, 380 F.3d at 668 (internal quotation
marks omitted). "[T]hreats or other intimidation by prison officials may well deter a prisoner of
'ordinary firmness' from filing an internal grievance," rendering administrative remedies
Magistrate Judge Brown concluded that "following the serious assault of plaintiff,
resulting in his hospitalization, a specific threat was issued that the beating could happen again at
'any time,"' which "could potentially justify waiver of the exhaustion requirement." Report, at
10. Suffolk County objects to Magistrate Judge Brown's interpretation of the sentence in
plaintiffs affidavit regarding the alleged threat, which states, in its entirety, that "[f]ollowing the
shakedown and the assault, the officers returned and the officer with the three stripes gave a
threatening warning that 'this' could happen again, and at any time." Affidavit of Miguel
Rodriguez ("Pl. Aff.") [Docket Entry No. 12-15], ~ 17. Suffolk County argues that the alleged
statement by the officer that '"this' could happen at any time" referred to further shakedowns,
and not further beatings. Obj., at 2. Furthermore, Suffolk County argues that because the
alleged threat was not related to the grievance procedures at the Suffolk County Correctional
Facility ("S.CC.F."), it should not render the grievance procedure unavailable. Id
Assuming, arguendo, that this Court agreed with Suffolk County regarding the alleged
threat, the Court still concludes that an independent reason rendered administrative remedies
unavailable to plaintiff. The Inmate Handbook provided to all inmates at the S.C.C.F. states that
"you may request and will receive a grievance form to fill out." Inmate Handbook (Docket
Entry No. 12-6), at 16. Suffolk County argues that "plaintiff made a single request for a prisoner
grievance form and he abandoned said request when a corrections officer asked him 'What for?'
in an allegedly 'intimidating manner."' Obj., at 2 (quoting Pl. Aff.,
24). However, Suffolk
County's characterization of these events does not alter the fact that plaintiff did not receive a
grievance form following his request, in direct contravention of the Inmate Handbook. This
Court agrees with Magistrate Judge Brown that "[i]f an inmate must properly follow the
prescribed grievance procedures, the correctional facility should certainly be held to the same
standards when making grievance forms available to inmates who request them." Report, at 1112.
Next, Suffolk County argues that "the alleged unavailability of an official grievance form
during the period during which a grievance must be filed is insufficient to excuse a failure to file
as New York law permits the filing of grievances on any plain piece of paper." Obj., at 2-3
(citing 7 N.Y.C.R.R. § 701.5(a)(l)). 2 However, the Inmate Handbook does not advise inmates
that they may file a grievance on any piece of paper if a grievance form is unavailable. There is
In support of this argument, Suffolk County relies on this Court's decision in Tomony v. County
ofSuffolk, No. 10 Civ. 5726,2013 WL 55821 (E.D.N.Y. Jan. 3, 2013). However, in Tomony, the
plaintiff's allegation that he was denied access to grievance forms was belied by the fact that he had filed
a grievance form during the relevant time period regarding an unrelated matter. 2013 WL 55821, at *6.
Here, there is no evidence in the record that plaintiff obtained or filed a grievance form in an unrelated
nothing in the record to indicate that plaintiff, or a "similarly situated individual of ordinary
firmness," would have known that New York law permits the filing of grievances on any plain
piece of paper. Hemphill, 380 F.3d at 668; cf Ceparano v. Cnty. ofSuffolk, No. 10 Civ. 2030,
2013 WL 6576817, at *5 n.5 (E.D.N.Y. Dec. 13, 2013) (noting that "[p]laintiffs submissions
demonstrate his knowledge of Section 70 1.5").
Magistrate Judge Brown properly concluded that "[i)n light of the correctional officer's
failure to provide a grievance form upon request, defendants rendered their administrative
remedies unavailable." Report at II. Accordingly, Suffolk County's objections are overruled
and defendants' motion for summary judgment as to plaintiffs federal claims is denied.
For the foregoing reasons, Magistrate Judge Brown's Report is adopted in its entirety as
an order of the Court. Defendants' motion for summary judgment is granted as to plaintiffs
state law claims, and denied as to the federal claims. Plaintiffs state law claims are dismissed.
Plaintiffs federal law claims remain pending. A pretrial conference is scheduled before Judge
Feuerstein in Courtroom 1010 at the Central Islip Courthouse, located at 100 Federal Plaza,
Central Islip, New York 11722, on September 4, 2014 at 11:15 a.m.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: July 14, 2014
Central Islip, New York
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