Dougherty v. County of Suffolk et al
Filing
60
MEMORANDUM & ORDER denying 49 Motion for Summary Judgment; granting 50 Motion for Summary Judgment; Since the availability of administrative remedies is a mixed question of law and fact, a hearing is necessary to determine whether administrati ve remedies were available to Plaintiff. Defendants are therefore directed to inform the Court on or before August 15, 2016, whether they intend to waive their exhaustion argument, or if they wish to participate in a factual hearing to resolve the i ssue. Defendants' motion for summary judgment (Docket Entry 49) is thus DENIED WITHOUT PREJUDICE and will be reinstated if Defendants prevail following the hearing. In addition, Defendants' request to substitute an exhibit (Docket Entry 50) is GRANTED. So Ordered by Judge Joanna Seybert on 7/25/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
WILLIAM A. DOUGHERTY,
Plaintiff,
-against-
MEMORANDUM & ORDER
13-CV-6493(JS)(AKT)
COUNTY OF SUFFOLK, SUFFOLK COUNTY
SHERIFF’S OFFICE, RAMONA TORRES,
Individually, JOHN GARGIULO,
Individually, DENISE NEEDHAM,
Individually, THOMAS WILSON,
Individually, SALVATORE SALVAGGIO,
Individually, MICHAEL PFENNIN,
Individually, KENNETH WARNER,
Individually, and JOHN and
JANE DOE 1 through 10, Individually,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Brett H. Klein, Esq.
Brett H. Klein, Esq. PLLC
305 Broadway, Suite 600
New York, NY 10007
Jason Leventhal, Esq.
Leventhal Law Group, P.C.
45 Main Street, Suite 230
Brooklyn, NY 11201
For Defendants:
Kyle O. Wood, Esq.
Brian C. Mitchell, Esq.
Susan A. Flynn, Esq.
Office of the County Attorney
H. Lee Dennison Building
100 Veterans Memorial Highway
PO Box 6100
Hauppauge, NY 11788
SEYBERT, District Judge:
Plaintiff William Dougherty (“Plaintiff”), an inmate at
the Suffolk County Correctional Facility (“SCCF”), commenced this
action
against
Suffolk
County,
the
Suffolk
County
Sheriff’s
Department, and numerous Correctional Officers who work at SCCF
(collectively, “Defendants”), claiming Defendants violated his
constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff
also brings several state law causes of action for negligence.
Pending
before
judgment.
the
Court
is
(Docket Entry 49.)
Defendants’
motion
for
summary
Defendants argue that this case
should be dismissed for lack of subject matter jurisdiction because
Plaintiff failed to exhaust his administrative remedies at SCCF.
Although Plaintiff admits he did not file a grievance concerning
the subject matter of this dispute, he argues that he was not
required to do so because SCCF’s administrative procedures were
never made available to him.
For the reasons that follow, a
hearing is necessary to determine whether administrative remedies
were available to Plaintiff following the incidents he complains
of.
BACKGROUND
Plaintiff alleges in the Amended Complaint that, while
he was incarcerated, he reported numerous threats of violence by
other inmates.
However, Plaintiff asserts that Defendants did
nothing to address the threats.
Plaintiff specifically alleges
that “throughout June, July and August 2012,” he reported that
three inmates housed within his “pod” were gang members; that they
accused him of being a “rat”; and that they threatened to “cut
2
[him],” “jump [him],” and generally “hurt” him. (Am. Compl., Docket
Entry 14, ¶¶ 13, 16.)
In addition, Plaintiff claims he showed
Defendant Ramona Torres a note left on his cell door which read,
“you’re dead rat,” and showed Defendant Denise Needham another
note which read, “you’re dead motherfucker.”
(Am. Compl. ¶¶ 18-
19.)
Although, Plaintiff repeatedly asked to be transferred
out of his pod because he feared for his safety, Plaintiff claims
his requests were ignored.
(Am. Compl. ¶¶ 21-22.)
Then, on
August 24, 2012, while his pod was allegedly “unmonitored and
unsupervised,” Plaintiff claims he was brutally assaulted by the
very inmates who threatened him.
upon
these
facts,
Plaintiff
(Am. Compl. ¶¶ 37-41.)
alleges
Defendants
Based
violated
his
constitutional rights and were negligent. (See Am. Compl. ¶¶ 54119.)
I.
SCCF’s Grievance Procedure
Defendants
argue
that
Plaintiff’s
case
should
be
dismissed because Plaintiff did not exhaust the administrative
remedies available to him at SCCF.
4, at 3-14.)
(Defs.’ Br., Docket Entry 49-
There is no dispute that Plaintiff did not file a
grievance concerning the incidents which are the subject of this
lawsuit.
(See Pl.’s 56.1 Counterstmt., Docket Entry 59, ¶ 3.)
However, Plaintiff asserts that because he was unaware of SCCF’s
3
grievance procedure, the grievance procedure was not available to
him.
(Pl.’s 56.1 Counterstmt. ¶ 3.)
According to an affidavit submitted by Matthew Bogert,
a Corrections Sergeant in the Suffolk County Sheriff’s Department,
SCCF’s grievance procedure is described within the Inmate Handbook
and
“Inmates are provided with the Inmate Handbook upon entering
the facility.”
(Bogert Aff., Docket Enty 50-1, ¶ 4.)
Plaintiff
signed forms acknowledging that he received the Inmate Handbook on
three different occasions--June 25, 2007, October 15, 2007, and
November 4, 2011.
49-7 - 49-12.)
(See Mitchell Decl. Exs. 3-8, Docket Entries
Plaintiff suggests these documents should be given
little weight, however, because he signed them during the “coercive
and intimidating” intake process.
58, ¶¶ 3-8.)
(Dougherty Decl., Docket Entry
Moreover, Plaintiff testified at his deposition that
he never received an Inmate Handbook, stating “I’ve never had a
handbook in my hand out of all the times I’ve been in jail.”
(Dougherty Dep., Docket Entry 57-1, 67:15-21, 68:8-10.)
The portion of the Inmate Handbook addressing SCCF’s
grievance procedure states that “[a]n inmate must file a grievance
within (5) five days of the date of the act or occurrence giving
rise to the grievance” to start the grievance process, and lists
several avenues of appellate review if an inmate receives an
unfavorable decision.
15-16.)
(Inmate Handbook, Docket Entry 49-14, at
According to Defendants Pfennin, Needham, and Torres,
4
inmates could obtain grievance forms by either asking a corrections
officer for one, or asking for one in the law library.
(See
Needham Dep. Docket Entry 57-3, 31:7-21; 31:22-32:2; Torres Dep.,
Docket Entry 57-4, 57:16-58:5; Pfennin Dep., Docket Entry 57-2,
86:22-87:20.
DISCUSSION
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.”
130, 134 (2d Cir. 1997).
McLee v. Chrysler Corp., 109 F.3d
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,
5
1320 (2d Cir. 1975)).
party
must
“come
Once that burden is met, the non-moving
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).
conclusory allegations or denials will not suffice.”
Smith,
781
F.2d
319,
323
(2d
Cir.
1986).
“Mere
Williams v.
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.
Exhaustion of Administrative Remedies
Defendants argue that Plaintiff’s Section 1983 claims
must be dismissed because he failed to exhaust his administrative
remedies, as required by the Prison Litigation Reform Act (the
“PLRA”).
(Defs.’ Br. at 3-14.)
Plaintiff argues, in opposition,
that administrative remedies were not available to him and thus
issues of fact exist regarding Defendants’ exhaustion defense.
(Pl.’s Br., Docket Entry 56, at 2.)
Under the PLRA, an inmate must exhaust all available
administrative remedies prior to commencing an action challenging
the conditions of his incarceration.
42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions under
6
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.”
25.
Id. at 524-
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.”
Jones v. Bock,
549 U.S. 199, 218, 127 S. Ct. 910, 922, 166 L. Ed. 2d 798 (2007)
(quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S. Ct. 2378, 2384,
165 L. Ed. 2d 368 (2006)).
However, “[t]he PLRA does not require the exhaustion of
all administrative remedies, but only those that are ‘available’
to the inmate.”
Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.
2004) (quoting 42 U.S.C. § 1997e(a)).
“Because failure to exhaust
is an affirmative defense, defendants bear the initial burden of
7
establishing, by pointing to ‘legally sufficient source[s]’ such
as
statutes,
regulations,
or
grievance
procedures,
that
a
grievance process exists and applies to the underlying dispute.”
Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir.
2015)
(internal
citations
omitted;
alterations
in
original).
Moreover, any factual disputes regarding Defendant’s failure to
exhaust must be decided by the Court as a matter of law.
Id.1
“The test for deciding the availability of grievance
procedures is an objective one: that is, the court asks whether ‘a
similarly situated individual of ordinary firmness’ would have
deemed them available.”
White v. Dep’t of Corr., No. 11-CV-9254,
2013 WL 1209567, at *3 (S.D.N.Y. Mar. 21, 2013) (quoting Davis v.
Goord, 320 F.3d 346, 353 (2d Cir. 2003)).
If Defendants can show
that administrative remedies were in fact available to Plaintiff,
“administrative remedies may nonetheless be deemed unavailable if
the plaintiff can demonstrate that other factors--for example,
threats from correction officers--rendered a nominally available
See also Messa v. Goord, 652 F.3d 305, 310 (2d Cir. 2011) (“the
Seventh Amendment does not guarantee a jury trial on factual
disputes regarding administrative exhaustion under the PLRA”);
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.”); Burgess
v. Garvin, No. 01-CV-10994, 2004 WL 527053, at *4 (S.D.N.Y.
Mar. 16, 2004) (“While the existence of a remedy is a matter of
law courts in this District treat the question of whether an
administrative remedy is available as a mixed question of law
and fact.”) (internal citation omitted).
1
8
procedure unavailable as a matter of fact.”
Hubbs, 788 F.3d at 59
(citation omitted).
“District Courts have have consistently held that an
administrative remedy is not available to an inmate who is not
informed of the grievance procedure.”
Rivera v. N.Y. City, No.
12-CV-0760, 2013 WL 6061759, at *5-7 (S.D.N.Y. Nov. 18, 2013);
Arnold v. Goetz, 245 F. Supp. 2d 527, 538 (S.D.N.Y. 2003) (“An
institution keeps an inmate ignorant of the grievance procedure
when correctional officials either fail to inform him of the
procedure
altogether
or
fail
to
provide
him
with
access
to
materials which could otherwise educate him about the use of that
process.”); Burgess v. Garvin, No. 01-CV-10994, 2004 WL 527053, at
*5 (S.D.N.Y. Mar. 16, 2004) (denying summary judgment on the issue
of exhaustion because Plaintiff presented evidence that prisoners
were unaware of relevant grievance procedures).
In Rivera, for
example, the plaintiff claimed he did not receive a copy of the
Inmate Handbook despite having signed a form indicating that he
did receive a copy.
Rivera, 2013 WL 6061759, at *5.
As evidence
of Defendants’ failure to provide the handbook, the plaintiff
submitted declarations from other prisoners who also claimed they
were not issued an Inmate Handbook despite having signed identical
forms.
Id.
In light of the competing evidence, the court held
that a genuine issue of material fact precluded granting summary
judgment in defendant’s failure on the issue of exhaustion.
9
Id.
Just like the facts of Rivera, in this case, Plaintiff
testified he was unaware of the grievance procedures at SCCF and
that he never received a copy of the Inmate Handbook.
However,
Defendants also submitted documentary evidence and an affidavit
from Sgt. Bogert which directly contradicts Plaintiff’s claim.
Sgt. Bogert asserts that Plaintiff signed forms acknowledging that
he received the Inmate Handbook and that inmates are issued a copy
of the Handbook upon entering SCCF. Given this competing evidence,
there is an issue of fact as to whether the grievance procedure at
SCCF was available to Plaintiff when the alleged assault took
place. A factual hearing is therefore necessary to allow the Court
to weigh the evidence and rule on Defendants’ exhaustion defense
prior to trial.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
10
CONCLUSION
Since the availability of administrative remedies is a
mixed question of law and fact, a hearing is necessary to determine
whether
administrative
remedies
were
available
to
Plaintiff.
Defendants are therefore directed to inform the Court on or before
August 15, 2016, whether they intend to waive their exhaustion
argument, or if they wish to participate in a factual hearing to
resolve the issue. Defendants’ motion for summary judgment (Docket
Entry 49) is thus DENIED WITHOUT PREJUDICE and will be reinstated
if
Defendants
prevail
following
the
hearing.
In
addition,
Defendants’ request to substitute an exhibit (Docket Entry 50) is
GRANTED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
July _25_ , 2016
Central Islip, New York
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?