Bailey v. Fortier

Filing 54

MEMORANDUM-DECISION AND ORDER: ORDERED that Michael J. Sciotti, Esq. is TERMINATED as counsel for Bailey effective immediately. ORDERED that 49 Report and Recommendation is adopted in its entirety. ORDERED that Bailey's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 1/25/13. (Attachments: # 1 r&r of Judge Peebles) {order served via regular mail on plaintiff}(nas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
________________________________
EVERTON BAILEY,
Plaintiff,
Civ. Action No.
9:09-CV-0742 (GLS/DEP)
v.
M. FORTIER,
Defendant.
_________________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
HANCOCK ESTABROOK LLP
1500 AXA Tower I
Syracuse, NY 13221

MICHAEL J. SCIOTTI, ESQ.
ROBERT THORPE, ESQ.

FOR DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 South Clinton Street
Syracuse, NY 13261-7168
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE

CHARLES E. ROBERTS, ESQ.
Assistant U.S. Attorney

REPORT AND RECOMMENDATION
Plaintiff Everton Bailey, a federal prison inmate, has commenced
this Bivens1 action against defendant Michelle Fortier, a corrections officer
stationed at the prison facility in which Bailey was confined at the relevant
times, alleging deprivation of his civil rights. Bailey’s claims are based
upon Fortier’s alleged failure to protect him from an assault by a cellmate,
despite having registered prior complaints expressing fear for his safety.
Currently at the forefront of the action is the threshold question of
whether Bailey, who admits that he did not file a grievance following the
procedures in place at Bureau of Prisons (“BOP”) facilities, should be
excused from the requirement of exhausting administrative remedies
before commencing suit due to the alleged refusal of prison officials to
provide him with the forms necessary to file a grievance. Because I find,
based upon an evidentiary hearing conducted, that Bailey was not
prevented by the actions of prison officials from filing a grievance
regarding his claim against Fortier, and that he has offered no special
circumstances providing a basis to excuse his failure to exhaust
administrative remedies, I recommend that his complaint be dismissed on

1

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 91 S. Ct. 1999 (1971).
2

this procedural basis, without addressing its merits.
I.

BACKGROUND
Bailey is a federal prison inmate currently being held in the custody

of the BOP as a result of a 2007 criminal conviction entered in the United
States District Court for the Eastern District of Pennsylvania. See
generally Complaint (Dkt. No. 1); see also VanWeelden Decl. (Dkt. No. 104) ¶ 5; June 20, 2012 Hearing Transcript (Dkt. No. 44) at p. 84.2 While he
is presently housed in another BOP facility, at times relevant to this
litigation Bailey was designated by the BOP to the Ray Brook Federal
Correctional Institution (“FCI Ray Brook”), located in Ray Brook, New
York. Id.
On the morning of February 23, 2009, while housed in a six-person
cell in the Mohawk Housing Unit at FCI Ray Brook, Bailey was confronted
and physically assaulted by one of his cellmates after being accused of
stealing that inmate’s prayer oil. Complaint (Dkt. No. 1) ¶¶ 8-9; see also
VanWeelden Decl. (Dkt. No. 10-4) Exh. D. Bailey reported the incident to
Fortier, and requested that he be moved to another cell. Complaint (Dkt.
No. 1) ¶ 10. That request was denied, and Bailey was directed by Fortier

2

The June 20, 2012 Hearing Transcript (Dkt. No. 44) will hereinafter be
cited as “Tr. ___”.
3

to return to his cell in light of an impending inmate count. Id. at ¶ 11.
Following the inmate count, Bailey again was accosted by the same
inmate, who on this occasion threw hot oil from a ceramic mug onto his
face.3 Complaint (Dkt. No. 1) ¶ 13; VanWeelden Decl. (Dkt. No. 10-4)
Exh. D; Tr. 100, 145. Bailey suffered second degree burns to his face
resulting in his being hospitalized at an outside medical facility for a period
of fourteen days. Complaint (Dkt. No. 1) ¶¶ 13-14; Tr. 32, 84-85. Upon
his return to FCI Ray Brook, Bailey was placed in a special housing unit
(“SHU”) cell, where he remained until he was transferred to another BOP
facility. Tr. 59-60, 85.
The BOP has established an Administrative Remedy Program
(“ARP”), comprised of a four-step administrative process through which
inmates can seek formal internal review of any complaint regarding any
aspect of their imprisonment. Tr. 10; 28 C.F.R. § 542.10 et seq.; see also
Macias v. Zenk, 495 F.3d 37, 42 (2d Cir. 2007). In accordance with the
established ARP protocol, an inmate must first attempt informal resolution
of his or her complaint by presenting the issue informally to staff, and staff
must attempt to resolve the issue. 28 C.F.R. § 542.13(a); see also

3

According to Bailey, there were no corrections officers present in his cell
unit at the time of the assault. Complaint (Dkt. No. 1) ¶ 13.
4

Johnson v. Testman, 380 F.3d 691, 693 (2d Cir. 2004). This informal,
initial procedure typically begins with the filing of a “cop-out,” which can be
submitted either on a BP-8 form available to inmates through several
sources, including their assigned counselors, or on paper of any other
description. Tr. 10, 22, 27, 66-67, 129, 142.
If the complaint cannot be resolved informally, the inmate may next
submit a formal written Administrative Remedy Request (“ARR”) to the
warden of the facility, utilizing a BP-9 form, within twenty calendar days of
the event that generated the inmate’s complaint.4 Tr. 22, 32, 44; 28 C.F.R.
§ 542.14(a); see also Johnson, 380 F.3d at 693. That twenty-day period,
however, can be extended in appropriate circumstances.5 Tr. 33, 54, 144.
If that formal request is denied, the inmate may next appeal the matter to
the appropriate BOP Regional Director, utilizing a BP-10 form, within
twenty calendar days of the date the grievance is denied by the facility

4

Plaintiff was aware of the twenty-day limitation for filing a BP-9 form to
initiate the formal grievance process. Tr. 103.
5

Here, the record demonstrates that in light of his circumstances, including
the fourteen-day period of hospitalization following the incident, Bailey almost certainly
would have been granted relief from that requirement had such a request been made.
See Tr. 43, 144. I note, parenthetically, that the handbook provided to inmates at FCI
Ray Brook does not address the possibility of requesting an extension of the twentyday time limit for filing a BP-9. See Tr. 34, 43.
5

warden. Tr. 22; 28 C.F.R. § 542.15(a); see also Johnson, 380 F.3d at
693. An unfavorable decision from the Regional Director can then be
appealed to the General Counsel’s office, utilizing a BP-11 form, within
twenty calendar days of the date of the Regional Director’s response. Tr.
22; 28 C.F.R. § 542.15(a).
Despite the existence of the ARP, Bailey did not avail himself of that
process by filing a grievance regarding the assault or the defendant’s
alleged failure to protect him from it. Tr. 101-02, 106. Bailey claims that
he requested the appropriate forms for commencing the grievance
process from several prison workers, including Hawley Snyder, Barbara
Darrah, and the warden at FCI Ray Brook. Tr. 86-88, 91, 93-95, 107-09.
Employees at FCI Ray Brook, however, uniformly testified that Bailey
never requested the appropriate grievance forms from them. See Tr. 72,
131, 146-47, 153, 155, 168; see also Tr. 49 (Robin Van Weelden); 161
(Jean Marie Diehl); 166 (Michelle Gonyea). I credit the testimony of
defendant’s witnesses and find that Bailey failed to ask his corrections
counselor, or any other BOP employee at FCI Ray Brook, for the
necessary forms to commence the grievance process.
The record also reflects that Bailey had abundant opportunity to

6

secure the necessary grievance forms. In February and March of 2009,
he was assigned a unit team that included Barbara Darrah, his unit
manager; Michelle Gonyea, a case worker; Hawley Snyder, his assigned
corrections counselor; and one other corrections counselor.6 Tr. 46, 86,
140-41. Members of Bailey’s unit team, particularly his corrections
counselor, were in frequent contact with him. See, e.g., Tr. 126, 129-30,
140-41, 165.
Various other BOP officials were also in regular contact with Bailey,
making periodic rounds of the FCI Ray Brook SHU. Tr. 35. For example,
at the times relevant to this litigation, the facility’s warden typically visited
the SHU every Wednesday morning, normally accompanied by Robin Van
Weelden, who in February 2009 served as a legal assistant, as well as
one or two associate wardens, a corrections captain, and unit team
members. Tr. 35, 55. When making those rounds the group would
proceed from cell to cell, knocking on doors and asking whether an inmate
in a particular cell wished to voice any needs. Tr. 57. In addition, Barbara
Darrah, as a unit manager, was required to visit inmates in the SHU twice
weekly, although she testified that she was in that portion of the facility

6

Jean Marie Diehl took over as plaintiff’s correction counselor in or about
September 2009, shortly before Snyder’s retirement from the BOP. Tr. 140, 163.
7

“pretty much daily.” Tr. 126. When visiting the SHU, Darrah generally
carried with her a folder of various forms, including BP-8, BP-9, BP-10,
BP-11 and cop-out forms, earning her the nickname “the form lady.” Tr.
70-71, 120, 124-27, 131. Like the warden and the warden’s group, when
visiting the SHU facility Darrah normally would proceed from cell-to-cell.
Tr. 128. Similarly Michelle Gonyea, as plaintiff’s case manager during
February and March of 2009, was required to visit the SHU at least once
weekly. Tr. 165.
Despite all of those visits and requests as to whether he needed
anything, Bailey did not ask any of those individuals for the forms
necessary to grieve Fortier’s alleged failure to protect him from harm. Tr.
161-62, 166, 49-50, 72, 132, 144, 154-55, 161, 166.
As previously indicated, plaintiff was absent from FCI Ray Brook
receiving outside treatment for his injuries during the fourteen-day period
immediately following the inmate assault. In accordance with FCI Ray
Brook policy requiring visits by prison officials to any inmate hospitalized
for more than five days, Darrah, as plaintiff’s unit manager, visited him in
or about March of 2009, while he was a patient at the Adirondack Medical
Center in Saranac Lake, in order to insure that his needs were being met.

8

Tr. 133. When asked on that occasion whether he needed anything,
Bailey replied, “No.”7 Id.
II.

PROCEDURAL HISTORY
Bailey commenced this action on June 29, 2009. Dkt. No. 1. His

complaint identifies Corrections Officer M. Fortier as the sole named
defendant, and alleges that she violated his constitutional rights by failing
to protect him from foreseeable harm. Id.
On January 8, 2010, prior to answering, Fortier moved to dismiss
Bailey’s complaint for failure to state a claim upon which relief may be
granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
or, alternatively, for summary judgment pursuant to Rule 56. Dkt. No. 10.
The sole basis for Fortier’s motion was her contention that Bailey’s
complaint is subject to dismissal based upon his failure to exhaust
available administrative remedies before commencing suit, as required
under 42 U.S.C. § 1997e(a). That motion resulted in my issuance of a
report on August 30, 2010, recommending that the motion be denied,
based upon the existence of genuine disputes of material fact to be

8

During the hearing Bailey testified that he did not recall Darrah visiting
him. See Tr. 114. Once again, I credit the testimony of Darrah over that of the Bailey
with respect to this issue.
9

resolved before addressing whether a proper basis for excusing the
governing exhaustion requirement had been demonstrated. Dkt. No. 19.
That recommendation was adopted by Chief District Judge Gary L. Sharpe
on October 12, 2010. Dkt. No. 21.
Following the issuance and acceptance of my report and
recommendation, the parties were afforded the opportunity to engage in
discovery, and a scheduling order was entered requiring, inter alia, that
any additional dispositive motions be filed on or before October 3, 2011.
See Dkt. No. 23. All deadlines under that scheduling order have passed,
without the filing of any additional motions, and the case is now trialready. In light of the existence of a threshold procedural issue regarding
exhaustion, the matter was referred to me for the purpose of conducting
an evidentiary hearing, pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir.
2011), in order to develop the record concerning Bailey’s efforts to satisfy
his exhaustion requirement. See Text Entry 11/02/11. That hearing was
conducted on June 20, 2012, see Text Entry 6/20/12, and, following the
close of the hearing, decision was reserved pending briefing by the
parties.8 9
,

8

The hearing was conducted by video conference, with Bailey participating
and testifying from the Kentucky federal correctional facility in which he is currently
10

III.

DISCUSSION
A.

Governing Legal Principles

The Prison Litigation Reform Act of 1996 (“PLRA”), Pub. L. No. 104134, 110 Stat. 1321 (1996), which imposes several restrictions on the
ability of prisoners to maintain federal civil rights actions, expressly
requires that “[n]o 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.” 42 U.S.C. §
1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 2382
(2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6
(E.D.N.Y. Jan. 31, 2007). “[T]he 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

being held, pursuant to Rule 43(a) of the Federal Rules of Civil Procedure. See Rivera
v. Santirocco, 814 F.2d 859, 862 (2d Cir. 1987). At the outset of the hearing I placed
upon the record the factors which I considered in declining to exercise my discretion to
require that Bailey be produced in person for the evidentiary hearing. See Tr. 3.
9

Attorney Michael J. Sciotti, Esq., of the firm of Hancock & Estabrook,
LLP, was appointed in January 2012 to represent the plaintiff in this action, pro bono,
at the hearing. The court wishes to express its thanks to Attorney Sciotti and his cocounsel, Robert Thorpe, Esq., for their energetic and diligent efforts on behalf of the
plaintiff.
11

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.
Ct. 983, 992 (2002). An inmate plaintiff’s complaint is subject to dismissal
if the evidence establishes that he or she failed to properly exhaust
available remedies prior to commencing the action, his or her complaint is
subject to dismissal. See Pettus v. McCoy, No. 04-CV-0471, 2006 WL
2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also
Woodford, 548 U.S. at 94-95, 126 S. Ct. at 2387-88 (holding that the
PLRA requires “proper exhaustion” of available remedies). “Proper
exhaustion” requires a plaintiff to procedurally exhaust his or her claims by
“compl[ying] with the system’s critical procedural rules.” Woodford, 548
U.S. at 95, 126 S. Ct. at 2388; see also Macias, 495 F.3d at 43 (citing
Woodford). Complete exhaustion has not occurred, for purposes of the
PLRA, until all of the steps of that available process have been taken.
Macias, 495 F.3d at 44; see also Johnson v. Rowley, 569 F.3d 40, 45 (2d
Cir. 2009); Strong v. Lapin, No. 90-CV-3522, 2010 WL 276206, at *4
(E.D.N.Y. Jan. 15, 2010) (“Until the BOP’S Central Office considers the
appeal, no administrative remedy is considered to be fully exhausted.”).
In a series of decisions rendered since the enactment of the PLRA,
the Second Circuit has crafted a three-part test for determining whether

12

dismissal of an inmate plaintiff’s complaint is warranted in the event of a
failure to satisfy the PLRA’s exhaustion requirement. Macias, 495 F.3d at
41; see Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). Under
the prescribed rubric, a court must first determine whether administrative
remedies were available to the plaintiff at the relevant times. Macias, 495
F.3d at 41; Hemphill, 380 F.3d at 686. If such a remedy existed and was
available, the court must next examine whether the defendant should be
deemed to have forfeited the affirmative defense of non-exhaustion by
failing to properly raise or preserve it, or whether, through the defendant’s
own actions preventing the plaintiff from exhausting otherwise available
remedies, he or she should be estopped from asserting failure to exhaust
as a defense. Id. In the event the proffered defense survives these first
two levels of scrutiny, the court must determine whether the plaintiff has
established the existence of special circumstances sufficient “to justify the
failure to comply with applicable administrative procedural
requirements.10,11 Id.
10

In Macias, which, like this action, involved an Eighth Amendment claim under
Bivens, as well as claims under the Federal Court Claims Act, 28 U.S.C. § 2671 et
seq., defendants asserted that plaintiff’s complaint was subject to dismissal under the
PLRA based upon his failure to exhaust available administrative remedies. Macias,
495 F.3d at 40. Reiterating the importance of exhaustion in both a substantive and a
procedural sense, the Second Circuit concluded that, while a prisoner may have
substantively exhausted remedies by making informal complaints regarding the
13

B.

Burden of Proof

Before applying the foregoing legal principles, I must first consider
who bears the burden of proof, and whether that burden shifts throughout
the analysis prescribed under Hemphill.
As an affirmative defense, Jones v. Bock, 549 U.S. 199, 216, 127 S.
Ct. 910 (2007), exhaustion is a claim upon which the party asserting it
typically bears the ultimate burden of proving its essential elements by a
preponderance of the evidence. Soria v. Girdich, No. 9:04-CV-727, 2007
WL 4790807, at *2 (N.D.N.Y. Dec. 2007) (DiBianco, M.J.) (citing McCoy
v. Goord, 255 F. Supp. 2d 233, 247 (S.D.N.Y. 2003)); McEachin v. Selsky,

conditions at issue, the PLRA, as illuminated by Woodford, 548 U.S. 81, 126 S. Ct.
2378, requires proper procedural exhaustion through the available grievance channels.
Id. at 41. The court left open, however, the possibility that, notwithstanding the
Supreme Court’s decision in Woodford, a defendant could be precluded from asserting
failure to exhaust available administrative remedies in the event of a finding that threats
by prison officials may have deterred compliance with the PLRA exhaustion
requirements, including under Hemphill. Id. at 44-45. The court in Macias also noted
that the plaintiff in that case did not assert that the available internal remedial scheme
was so confusing as to excuse his failure to avail himself of that process, thereby
obviating the need for the court to determine what effect, if any, Woodford would have
upon the Hemphill holding to the effect that a reasonable misinterpretation of the
available scheme could justify an inmate’s failure to follow the procedural rules. See
Amador v. Superintendents of Dep’t of Correctional Serv., No. 03 CIV. 0650
(KTD/CWG), 2007 WL 4326747, at *6 (S.D.N.Y. Dec. 4, 2007). It therefore appears
that the teachings of Hemphill remain intact, at least with regard to the first two points
of inquiry. Id. at *7.
11

In practicality, these three prongs of the prescribed test, though perhaps
intellectually distinct, plainly admit of significant overlap. See Hargrove, 2007 WL
389003, at *8 n.14; see also Giano v. Goord, 380 F.3d 670, 677 n.6 (2d Cir. 2004).
14

No. 9:04-CV-83(FJS/RFT), 2005 WL 2128851, at *4 (N.D.N.Y. Aug. 30,
2005) (Scullin, C.J.) (citing Howard v. Goord, No. 98-CV-7471, 1999 WL
1288679, *3 (E.D.N.Y. Dec. 28, 1999)), aff’d in part, vacated in part, 225
F. App’x 36 (2d Cir. 2007). The issue is somewhat complicated, however,
by consideration of the three-part analysis mandated by Hemphill and
related cases because that line of cases incorporates concepts – such as
estoppel, for example – that typically require the party asserting them to
bear the ultimate burden of proof. See e.g., Abbas v. Dixon, 480 F.3d
636, 642 (2d Cir. 2007) (“The plaintiff bears the burden of showing that the
action was brought within a reasonable period of time after the facts giving
rise to the equitable tolling or equitable estoppel . . . .”); In re Heflin, 464
B.R. 545, 554 (D. Conn. 2011) (“The burden of providing every element of
an estoppel is upon the party seeking to set up the estoppel.”) (citing
Comm’r v. Union Pac. R.R. Co., 86 F.2d 637, 640 (2d Cir.1936)).
Also complicating matters is the fact that several courts have held
that once a defendant satisfies the burden of demonstrating that an inmate
has failed to exhaust administrative remedies, it then becomes incumbent
upon the plaintiff to counter with a showing of unavailability, estoppel, or
special circumstances. See, e.g., Murray v. Palmer, No. 9:03-CV-1010

15

(GTS/GHL), 2010 WL 1235591, at * 4 and n.17 (N.D.N.Y. Mar. 31, 2010)
(Suddaby, J.); see also Calloway v. Grimshaw, No. 9:09-CV-1354, 2011
WL 4345299, at *5 and n.5 (N.D.N.Y. Aug. 10, 2011) (Lowe, M.J.) (citing
cases); report and recommendation adopted, 2011 WL 4345296 (N.D.N.Y.
Sep. 15, 2011) (McAvoy, S.J.); Cohn v. KeySpan Corp., 713 F. Supp. 2d
143, 155 (E.D.N.Y. 2010) (finding that, in the employment discrimination
context, defendants bear the burden of establishing the affirmative
defense of failure to timely exhaust his administrative remedies, but once
defendants have done so, the plaintiff must plead and prove facts
supporting equitable avoidance of the defense.). Those decisions, while
referencing the burden of proof on an affirmative defense, seem to
primarily address an inmate’s burden of production, or of going forward, to
show facts that would form the basis for finding of unavailability, estoppel,
or a finding of special circumstances, rather than speaking to the ultimate
burden of persuasion.
I have been unable to uncover any cases squarely holding that the
defendant bears the ultimate burden of proof with regard to all elements of
a Hemphill analysis. In the final analysis, however, Hemphill addresses all
of the elements a court is required to consider when analyzing an

16

exhaustion defense. See Macias, 495 F.3d at 41 (“In Hemphill we “read
together” [a series of cases] and formulated a three-part test . . . .”)
(emphasis added). Therefore, I recommend a finding that, while the
burden of production may shift to the plaintiff when a court undertakes a
Hemphill analysis, the ultimate burden of proof with respect to the
exhaustion defense remains, at all times, with the defendant. See Soria,
2007 WL 4790807, at *2 (“[A]s with other affirmative defenses, the
defendant has the burden of proof to show that plaintiff failed to exhaust
his administrative remedies.”).
C.

Application of Governing Legal Principles
1.

Availability of Administrative Remedy

In this instance, the question of whether the ARP was available to
Bailey is at the heart of the exhaustion analysis. The hearing testimony
confirmed, and Bailey admitted, that at all times relevant to this litigation,
there was an inmate grievance procedure in place at FCI Ray Brook.
This, however, does not necessarily mean that it was “available” to the
plaintiff.
Bailey contends that the grievance process was not available to him
in light of the alleged refusal of prison officials to provide him with the

17

forms necessary to file an ARR and pursue the grievance to culmination.
Having considered the competing testimony, however, I conclude that
Fortier has established, by a preponderance of the evidence, that the
forms necessary to pursue a grievance in accordance with the ARP in
place at FCI Ray Brook were available to Bailey through several sources,
but were not requested. As such, Fortier has satisfied the first Hemphill
factor.
2.

Presentation of Defense/Estoppel

The focus of the second prong of the Hemphill analysis is upon
“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.” Hemphill, 380 F.3d at 686 (citations omitted).
In her answer, Fortier raised exhaustion as a defense in a timely fashion.
See Answer (Dkt. No. 22) Second Defense (“Plaintiff clearly failed to
exhaust his administrative remedies, as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a).”). Bailey argues, however, that his
failure to follow the prescribed grievance process was a direct result of the

18

refusal of prison officials to cooperate in his efforts to grieve the matter.
“‘Generally, a defendant in an action may not be estopped from
asserting the affirmative defense of failure to exhaust administrative
remedies based on the actions (or inactions) of other individuals.’” Atkins
v. Menard, No. 9:11-CV-9366, 2012 WL 4026840, at *3 (N.D.N.Y. Sept.
12, 2012) (Suddaby, J.) (citing Murray, 2010 WL 1235591, at *5 and n.26
(collecting cases)). Put differently, a plaintiff must allege that a defendant
named in the lawsuit acted to interfere with his ability to exhaust in order
to establish a basis to estop that defendant from invoking the exhaustion
defense. Calloway, 2011 WL 4345299, at *4 (citing Bennett v. James, 737
F. Supp. 2d 219, 226 (S.D.N.Y. 2010), aff’d, 441 F. App’x 816 (2d Cir.
2011)) (other citations omitted).
The question of whether, in this instance, prison officials should be
estopped from asserting failure to exhaust as an affirmative defense as a
result of their conduct is inextricably intertwined with the question of
availability of the remedy. Assuming, however, that this presents a distinct
inquiry, the court must examine whether, through her conduct, Fortier has
provided a basis to estop her from asserting an exhaustion defense.
In this instance, Bailey does not allege that Fortier engaged in a

19

campaign to preclude him from filing a grievance regarding her actions.
Instead, his focus is upon the alleged refusal of other officials at FCI Ray
Brook to provide him with necessary forms and cooperate in his efforts to
present his grievance against Fortier. Accordingly, Bailey has failed to
present any evidence that would support an estoppel against the
defendant from raising the issue of exhaustion. Atkins, 2012 WL
4026840, at * 3. Therefore, I conclude that Fortier has proven, by a
preponderance of the evidence, that she did not, through her own actions,
preclude Bailey from taking advantage of the ARP and therefore should
not be estopped from asserting the defense.
3.

Special Circumstances

The third, catchall factor that must be considered under the Second
Circuit’s prescribed exhaustion rubric centers upon whether special
circumstances sufficient to justify excusing the plaintiff’s failure to exhaust
administrative remedies have been demonstrated. Hemphill, 380 F.3d at
689; see also Giano, 380 F.3d at 676-77; Hargrove, 2007 WL 389003, at
*10. Among the circumstances potentially qualifying as “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

20

prison officials and leads him or her to conclude that the dispute is not
grievable. Giano, 380 F.3d at 676-77; see also Hargrove, 2007 WL
389003, at *10 (quoting and citing Giano). Special circumstances may
also exist when a facility’s “[f]ailure to provide grievance deposit boxes,
denial of forms and writing materials, and a refusal to accept or forward
plaintiff’s appeals-which effectively rendered the grievance process
unavailable to him.” Murray, 2010 WL 1235591, at *6 (quoting Sandlin v.
Poole, 488 (W.D.N.Y. 2008) (noting that “[s]uch facts support a finding that
defendant’s are estopped from relying on exhaustion defense as ‘special
circumstances’ excusing plaintiff’s failure to exhaust”)).
During the evidentiary hearing, Bailey testified to his awareness of
the existence of the ARP at FCI Ray Brook. See, e.g., Tr. 102. Bailey’s
testimony regarding his alleged efforts to secure the forms necessary to
pursue the grievance plainly evidences his knowledge of the requirement
that he exhaust available administrative remedies, and negates a finding
of any reasonable belief on his part that the dispute in issue was not
grievable and could not have been presented through the BOP’s internal
grievance process. Accordingly, again allocating the ultimate burden of
proof on the issue of special circumstances to the defendant, I

21

nonetheless conclude that she has demonstrated, by a preponderance of
the evidence, the absence of any special circumstances that would serve
to excuse plaintiff’s failure to exhaust administrative remedies.
IV.

SUMMARY AND RECOMMENDATION
The credible testimony and evidence adduced at the recent hearing,

held to address the merits of defendant’s exhaustion defense, establishes
that (1) Bailey failed to avail himself of the BOP grievance process, which
was available to him, before commencing this action; (2) Fortier did not,
through her actions, preclude Bailey from filing a grievance regarding the
claims set forth in his complaint, or otherwise engage in conduct for which
she should be estopped from asserting failure to exhaust as an affirmative
defense; and (3) Bailey has offered no special circumstances warranting
that he be excused from the PLRA’s exhaustion requirement. Accordingly,
it is therefore hereby respectfully
RECOMMENDED, that plaintiff’s complaint in this action be
DISMISSED, based upon his failure to comply with the exhaustion
requirements of 42 U.S.C. § 1997e(a).

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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge
written objections to the foregoing report. Such objections must be filed
with the Clerk of the Court within FOURTEEN days of service of this
report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this
report and recommendation upon the parties in accordance with this
court’s local rules.

Dated:

October 4, 2012
Syracuse, NY

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