Case v. Smith et al

Filing 67

MEMORANDUM-DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 55 ) is accepted. ORDERED, that defendants motion (Dkt. No. 43 ) for summary judgment is denied. Signed by Judge Norman A. Mordue on 9/19/12. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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SAM CASE,
Plaintiff,
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9:10-CV-888 (NAM/TWD)

JOSEPH T. SMITH, J. STEFANIK, CUTLER,
CANE, C.O. KEYS, AUBE,
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Defendants.
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APPEARANCES:
Sam Case
09-B-2295
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821
Plaintiff pro se
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Hon. Eric T. Schneiderman, Attorney General of the State of New York
David L. Cochran, Esq., Assistant New York State Attorney
The Capitol
Albany, New York 12224
Attorney for Defendants

Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
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In this pro se action, commenced pursuant to 42 U.S.C. § 1983, plaintiff, an inmate in the
custody of the New York Department of Corrections and Community Services (“DOCCS”),
claims that defendants failed to protect him from sexual assault by another inmate or to provide
him with medical care thereafter. Defendants move (Dkt. No. 43) for summary judgment
dismissing the complaint on the ground of failure to exhaust administrative remedies. Plaintiff
does not dispute that he failed to complete the administrative process after filing a grievance
regarding the alleged sexual assault.

Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States
Magistrate Judge Thérèse Wiley Dancks issued a Report-Recommendation recommending that
the motion be denied. Defendant objects. Accordingly, the Court conducts de novo review. See
28 U.S.C. § 636(b)(1)(C).
In recommending denial of the motion, Magistrate Judge Dancks notes that, in the Second
Circuit, failure to exhaust may be excused on a number of grounds, including “special
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circumstances.” Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004). The Second
Circuit has not yet decided the question of whether the Hemphill framework survived Woodford
v. Ngo, 548 U.S. 81, 90 (2006) (requiring proper exhaustion of administrative remedies, including
properly using all steps that the agency holds out, so that the agency addresses the issues on the
merits). See Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011) (“We have questioned whether,

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in light of Woodford, the doctrine[] ... of special circumstances survived”; declining to decide the
question). In the absence of guidance from the Second Circuit, district courts generally continue
to apply Hemphill in the many cases in which the question has arisen. See, e.g., Malik v. City of
New York, 2012 WL 3345317, *7, n.7 (S.D.N.Y. Aug. 15, 2012) (citing cases); Gantt v. Lape,
2012 WL 4033729, *7 (N.D.N.Y. Jul. 31, 2012).
In his opposition to the motion, plaintiff alleges the following; that he filed a grievance at

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Shawangunk Correctional Facility, where the alleged incidents occurred; that the grievance was
ignored; that in an effort to appeal the lack of response, he wrote to the Commissioner of DOCCS,
the Superintendent of Shawangunk, and the grievance officer; that a member of the Inmate
Grievance Resolution Committee told him sexual assaults are not grievable; that the supervisor of
the committee “would not allow assistance of grievance procedure from the inmate

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representative”; that a few days later, plaintiff was transferred to the main Clinton Correctional
Facility; that upon arriving, plaintiff tried unsuccessfully to access the law library; that three
weeks later he was transferred to the Clinton Correctional Facility Annex; and that there, he
“received assistance and was told there was no remedies available.” On de novo review, applying
Hemphill, the Court agrees with Magistrate Judge Dancks that plaintiff’s allegations of special
circumstances are sufficient to resist summary judgment on the ground of failure to exhaust.
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It is therefore
ORDERED that the Report-Recommendation (Dkt. No. 55) is accepted; and it is further
ORDERED that defendants’ motion (Dkt. No. 43) for summary judgment is denied; and it
is further
ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum-

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Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Date: September 19, 2012
Syracuse, New York

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