Shepherd v. Fischer et al
Filing
256
DECISION AND ORDER: ORDERED that 252 Report and Recommendation is accepted in part and rejected in part, as set forth in this Decision and Order. The Court Clerk's Office shall now schedule three trials for the remaining claims in acco rdance with the Court's September 22, 2015 Decision and Order, Dkt. No. 202, taking into account claims and defendants that are dismissed from the action by this Decision and Order. To aid the Court Clerk's Office in scheduling these trials , each part shall submit, within thirty (30) days, a status letter indicating the claims and defendants that remain pending and that they contend should be tried in each of the trials ordered by the Court on September 22, 2015, Dkt. No. 202. Signed by Senior Judge Thomas J. McAvoy on 3/30/17. {order served via regular mail on plaintiff)(nas, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
EON SHEPHERD,
Plaintiff,
v.
9:10-CV-1524
SUPERINTENDENT LEMPKE, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.
David E. Peebles, Chief United States Magistrate Judge, for the purpose of holding an
evidentiary hearing and issuing a report and recommendation addressing exhaustion of
administrative remedies. In his October 28, 2016 Report and Recommendation, Dkt.
No. 252, Magistrate Judge Peebles provides a thorough review of the numerous claims
in this matter that are based on events occurring between April 2008 and November
2010 at five separate prison facilities operated by the New York State Department of
Corrections and Community Supervision ("DOCCS"),1 and of the procedural history of
1
“Generally speaking, Shepherd alleges that he was sexually and physically assaulted, and
deprived of his freedom of religion, procedural due process, access to the courts, and adequate medical
care.” Rep. Rec. p. 3.
1
this case.2 Magistrate Judge Peebles also placed the claims potentially implicated by
defendants' exhaustion defense, together with the circumstances surrounding plaintiff's
efforts to exhaust available administrative remedies, into four groupings, “each of which
includes common circumstances insofar as exhaustion is concerned.” Rep. Rec. p. 13.
Based upon the evidence adduced at the hearing, Magistrate Judge Peebles
recommends:
(1) The following claims should be deemed exhausted and remain pending for
trial:
Claim Defendant
No.
3
Artus
Nature of Claim
4
Artus
13
15
Carlee
Cioffa
Religious
Interference
Retaliation
Excessive Force
Facility
Medical Indifference Clinton
Clinton
Five Points
Five Points
Amended Complaint
¶
31, 104-05,
108-09
31, 104-05,
108-09
18
19, 20
2
Part of this procedural history is that the Court adopted Magistrate Judge Peebles’s previous
recommendation to grant defendants’ motion that plaintiff’s claims be divided into three categories with
each group being tried separately. See Rep. Rec. p. 6; see also Dkt. No. 202. At the time this decision
was entered, the three groups anticipated for purposes of trial were:
(1) All claims involving events at the Clinton Correctional Facility, plus a medical
indifference claim against Dr. Amatucci arising from events at the Downstate Correctional
Facility, and related claims against defendants Artus, Amatucci, Lashway, and Menard.
(2) All claims involving events at the Five Points Correctional Facility against defendants
Barber, Bower, Carlee, Cioffa, Jones, Evans, Prebalick, and Ramus, plus plaintiff's due
process claim against defendants Cunningham and Bezio arising from the events at the
Green Haven Correctional Facility.
(3) All remaining claims, including those relating to events at the Upstate Correctional
Facility, plus an excessive force cause of action against defendant Cambria based upon
the events at an undetermined location. This third trial will include the following
defendants: Belsio, Cambria, Colvin, Holmes, Fairchild, Atkinson, Chesbrough, Lempke,
Rock, Rowe, and Rozwell.
See Rep. Rec. p. 6; see also Dkt. No. 202.
2
16
17
18
19
20
23
26
27
28
Colvin
Colvin
Colvin
Cunningham
Evans
Jones
Lempke
Lempke
Lempke
Excessive Force
Religious
Retaliation
Due Process
Excessive Force
Failure to Protect
Excessive Force
Religious
Retaliation
32
34
35
Prebalick
Prebalick
Ramus
Retaliation
Excessive Force
Due Process
Upstate
86, 105, 108
Upstate
86, 105, 108
Upstate
86, 105, 108
Green
107
Five Points 20
Five Points 21
Upstate
86, 105, 108
Upstate
86, 105, 108
Upstate
86, 105, 10809
Five Points 19-22
Five Points 35
Five Points 107
(2) The following claims proceed to trial based on the parties' failure to
address them in connection with defendants' exhaustion defense:
Defendant
Amatucci
Barber
N. Bezio
Cambria
Chesbrough
Holmes
Rock
Lashway (formerly sued as
Hawthorne)
Cause of Action
Medical Indifference
Failure to Protect
Due Process
Excessive Force
Retaliation
Retaliation
Religious Interference
Medical Indifference
Prison Facility
Downstate
Five Points
DOCCS Hq.
Unknown
Upstate
Upstate
Upstate
Clinton
(3) The following claims should be dismissed based upon plaintiff's
representation that they are not being asserted in this action:
Claim
No.
10
11
1
Defendant Nature of Claim
Bower
Bower
Evans
Facility
Amended
Complaint ¶
Five Points 15
Five Points 15
Five Points
Failure to Protect
Retaliation
Religious
Interfer.
3
(4) The following claims should be dismissed based upon the fact that complete
exhaustion occurred only after this action was filed:
Claim
No.
6
8
25
31
36
37
38
Name
Nature of Claim
Facility
Belsio
Atkinson
Lashway
Prebalick
Rowe
Rozwell
Rozwell
Religious Interference
Retaliation
Medical Indifference
Religious Interference
Failure to Protect
Excessive Force
Religious Interference
Upstate
Upstate
Clinton
Five Points
Upstate
Upstate
Upstate
Amended
Complaint ¶
41, 42
90, 91
75, 76
35
43
43
43
(5) The following claims should be dismissed based upon plaintiff's failure to fully
exhaust them:
Claim
No.
5
7
9
12
14
22
24
29
30
33
Name
Nature of Claim
Facility
Belsio
Belsio
Bower
Carlee
Carlee
Fairchild
Jones
Menard
Menard
Prebalick
Excessive Force
Religious Interference
Excessive Force
Religious Interference
Excessive Force
Retaliation
Medical Indifference
Excessive Force
Religious Interference
Excessive Force
Upstate
Upstate
Five Points
Five Points
Five Points
Upstate
Five Points
Clinton
Clinton
Five Points
Amended Complaint
¶
41, 42
41, 42
15
34
34
92
87
28
28
16
and,
(6) The matter should be set down for trial involving the remaining
claims.
Plaintiff filed objections through appointed counsel, Dkt. No. 253, and on a pro
se basis, Dkt. No. 255; and defendants filed objections. Dkt. No. 254.
4
II.
STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged,
the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997) (The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate’s findings.). General or conclusory objections, or
objections which merely recite the same arguments presented to the magistrate judge,
are reviewed for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y.
2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009). After
reviewing the report and recommendation, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the matter to the magistrate judge
with instructions.” 28 U.S.C. § 636(b).
III.
DISCUSSION
a. Plaintiff’s Objections
1. Post-Commencement Exhaustion
Plaintiff objects through counsel and on a pro se basis to Magistrate Judge
Peebles’s conclusion that plaintiff’s claims that were exhausted after the action was
commenced but before an amended complaint was filed ("Group Two", Claim Nos. 6,
36, 37 and 38) are nonetheless unexhausted under the holding of Neal v. Goord, 267
F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter v.
5
Nussle, 534 U.S. 516 (2002). Plaintiff argues that although the Second Circuit stated in
Neal that "exhausting administrative remedies after a complaint is filed will not save a
case from dismissal,” the Circuit’s decision did not specifically address situations where,
as here, a claim is exhausted after commencement but prior to the filing of an amended
complaint. Pl. Obj., p. 2. The Court finds no basis to reject Magistrate Judge Peebles’s
conclusion in this regard.
As Magistrate Judge Peebles explained:
It is not clear from the court's decision in Neal that the plaintiff had
included new claims in his amended complaint that were not asserted in
his original complaint. In his amicus curiae brief to the Second Circuit,
however, the New York State Attorney General explained that the
plaintiff's amended complaint included newly asserted deliberate medical
indifference causes of action that were not originally pleaded. Amicus
Brief, Neal v. Goord, 267 F.3d 116 (2d Cir. 2001) (No. 99-0253), 2001 WL
34121400, at *2-4. The Second Circuit affirmed the district court's
dismissal of all of the plaintiff's claims, including the deliberate medical
indifference causes of action, because none of them had been fully
exhausted by the time the plaintiff filed his original complaint. Neal, 267
F.3d at 121-23.
Rep. Rec. p. 21, n. 16.
Thus, Magistrate Judge Peebles concluded that “[w]hile some circuits analyzing
this fact pattern have permitted plaintiffs to litigate the causes of action that were
newly included in an amended complaint and fully exhausted by the time the plaintiffs
filed the amended complaint, the Second Circuit squarely addressed those facts in Neal
and concluded otherwise.” Id. p. 22 (citing Rhodes v. Robinson, 621 F.3d 1002 (9th Cir.
2010); Barnes v. Briley, 420 F.3d 673 (7th Cir. 2005)). The Court agrees with
Magistrate Judge Peebles’s conclusion. Moreover, the courts in this District have
almost uniformly held that “a post-exhaustion amendment of the complaint cannot cure
6
an exhaustion defect existing at the time the action was commenced.” Guillory v.
Haywood, 2015 WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing Neal, 267 F.3d at
122) (other citation omitted); see Thousand v. Corrigan, 2017 WL 1093275, at *3
(N.D.N.Y. Mar. 23, 2017)(quoting Guillory); Reid v. Marzano, 2017 WL 1040420, at *2
(N.D.N.Y. Mar. 17, 2017)(quoting Guillory); Kearney v. Gebo, 2017 WL 61951, at *2
(N.D.N.Y. Jan. 4, 2017)(quoting Guillory); Toliver v. Fischer, 2016 WL 3351974, at *4
(N.D.N.Y. Mar. 22, 2016)(quoting Guillory), report and recommendation adopted sub
nom. Toliver v. Stefinik, 2016 WL 3349316 (N.D.N.Y. June 15, 2016); Klein v. Fischer,
2015 WL 5174031, at *19 (N.D.N.Y. Sept. 2, 2015) (“Furthermore, a post-exhaustion
amendment of the complaint cannot cure an exhaustion defect existing at the time the
action was commenced.”)(citing Kasiem v. Switz, 756 F. Supp.2d 570, 575 (S.D.N.Y.
2010) in turn citing Neal, 267 F.3d at 122); see also Stimpson v. Comm'r Correction
Off., 2017 WL 326314, at *2 (D. Conn. Jan. 23, 2017). 3 The Court finds that under
Neal, post-exhaustion amendment of the complaint does not cure an exhaustion defect
existing at the time the action was commenced. Thus, plaintiff’s objection on this
ground is overruled.
2. Challenge to Credibility Assessment
With respect to Groups 3 and 4, Magistrate Judge Peebles recommended
dismissal of claim nos. 5, 7, 9, 12, 14, 24, 29, 30 and 33, because he did not f ind
3
(“[P]risoners must comply with all procedural rules regarding the grievance process prior to
commencing an action in federal court. See Woodford v. Ngo, 548 U.S. 81, 83–85 (2006). Thus,
completion of the exhaustion process after a federal action has been filed does not satisfy the exhaustion
requirement. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). Accordingly, I instructed Stimpson that
any amended complaint must include allegations regarding any attempts by him to exhaust administrative
remedies with regard to his claims prior to filing this lawsuit.”)
7
plaintiff's testimony relative to exhaustion of those claims to be credible. Rep. Rec. at
26, see id., pp. 24-26. 4 Plaintiff argues through counsel that because the Court must
conduct a de novo determination when objections are filed, the Court has discretion to
conduct its own hearing in order to make its own assessment of credibility. Plaintiff
himself, in his pro se submission, also challenges Magistrate Judge Peebles’s credibility
determinations, arguing that all of his testimony should have been deemed credible.
4
In this regard, Magistrate Judge Peebles wrote:
Having reviewed the evidence and observed his demeanor, I conclude that, with limited
exception, which will be discussed more below, plaintiff was not credible insofar as he
testified that he submitted grievances concerning the incidents that are the basis for his
claims in groups three and four. It is worth noting that, while plaintiff was able to produce
alleged copies of the grievances and follow-up letters that relate to the claims in group
three at the exhaustion hearing, those documents were not provided to defendants during
the course of discovery. Dkt. No. 249-2 at 79. Plaintiff explained that he failed to produce
those documents earlier in the litigation because he had sent copies of the grievances
and letters to his family members for safekeeping but was only recently able to retrieve
them. Id. at 83-85. Plaintiff did not offer any explanation as to why copies of some but not
all of his grievances and letters were available from his family members. Moreover, his
explanation concerning which of his family members possessed those grievances has
been inconsistent. At the hearing, plaintiff testified that the copies were retrieved from his
son, id. at 84, but plaintiff testified under oath during his deposition that his wife was in
possession of any document that had not previously been produced during discovery. Id.
at 85-86.
Plaintiff's credibility must be measured with his prior grievance history as a backdrop.
Plaintiff is no stranger to the grievance process, and there is no evidence that, aside from
the grievances related to the claims in groups three and four, plaintiff has experienced
any difficulty in filing and pursuing grievances over the course of his incarceration. Indeed,
according to Jeffrey Hale, the Assistant Director of the DOCCS Inmate Grievance
System, as of one day prior to the start of the hearing, plaintiff had appealed 445
grievances to the CORC, with an additional nine appeals then-pending. Dkt. No. 249-2 at
128-29. The sheer number of grievances that plaintiff has pursued during his
incarceration leaves no doubt that he is well-versed in the grievance process.
In my view, the evidence adduced by the parties with regard to the claims in group three
and four support a recommended finding that, except with respect to claims 15, 20, 23,
and 32, all of the claims are unexhausted and subject to dismissal on that basis. Although
plaintiff adduced purported copies of grievances and/or letters regarding his exhaustion
attempts in connection with claims 9, 12, 14, 29, 30, and 33, all of which are part of group
three, there is no independent evidence to corroborate plaintiff's testimony in this regard.
In addition, there is no record evidence at all to support plaintiff's hearing testimony that
he filed grievances regarding claims 5, 7, and 24 in group four. Because I did not find
plaintiff's testimony credible for the reasons already discussed above, I recommend the
court dismiss claims 5, 7, 9, 12, 14, 24, 29, 30, and 33 as unexhausted.
8
Neither plaintiff’s counsel nor plaintiff himself have presented sufficient reasons
for the Court to exercise its discretion and conduct its own hearing. Because
Magistrate Judge Peebles was in a position to view plaintiff’s testimony and assess his
credibility based on his demeanor and in light of the other evidence presented in the
case, see Rep. Rec. 24-26, and because plaintiff has not presented sufficient reasons
to conclude that Magistrate Judge Peebles erred in his credibility determination, the
Court adopts those determinations and overrules plaintiff’s objection on this ground.
3. Burden of Proof
Plaintiff argues in his pro se submission that Magistrate Judge Peebles
improperly placed the burden upon him to prove that he exhausted his administrative
remedies. There is no merit to this contention. As Magistrate Judge Peebles
explained, the Prison Litigation Reform Act imposes several restrictions on the ability of
prisoners to maintain federal civil rights actions, including a mandatory requirement that
the inmate exhaust his administered of remedies. While exhaustion is a condition
precedent to bringing suit by an inmate, Magistrate Judge Peebles indicated that “[i]n
the event a defendant establishes that the inmate plaintiff failed fully comply with the
administrative process prior to commencing an action in federal court, the plaintiff's
complaint is subject to dismissal.” Rep. Rec., p. 8 (emphasis added). In light of this
statement clearly placing the burden on the defendants to establish plaintiff’s failure to
comply with administrative exhaustion procedures, plaintiff’s objection on the ground
that he was required to prove exhaustion in the first instance is disingenuous. The
objection is overruled.
9
b. Defendants’ Objections
1. Claim 4 against Artus
Claim 4 is a religious freedom claim in Group One against defendant Artus
stemming from incidents spanning from October-December 2009 at Clinton
Correctional Facility. Defendants argue that because plaintiff’s grievance list from 2009
at Clinton Correctional Facility reveals only two grievances, neither of which asserted
denial of religious freedom, plaintiff could not have exhausted his administrative
remedies on this claim. Def. Mem. Law, p. 2. For the reasons that follow, the objection
is overruled.
Magistrate Judge Peebles addressed defendants’ contention that plaintiff failed
to exhaust the available administrative remedies against defendant Artus (as well as
against defendants Colvin and Lempke) on the Group One claims because plaintiff did
not file any grievances that specifically identified Artus or complained of his conduct. In
denying the argument, Magistrate Judge Peebles correctly recognized that “the weight
of authority . . . suggests that inmate-plaintiffs need not file grievances identifying
particular individuals or articulating a particular theory of liability (much less specifically
grieve a supervisor theory of liability).” Rep. Rec. p. 19 (citing, inter alia, Brownell v.
Krom, 446 F.3d 305, 310 (2d Cir. 2006)("In determining whether exhaustion has been
achieved, we have drawn an analogy between the contents of an administrative
grievance and notice pleading, explaining that as in a notice pleading system, the
grievant need not lay out the facts, articulate legal theories, or demand particular relief.
All the grievance need do is object intelligibly to some asserted shortcoming.")(interior
10
quotation marks and alteration omitted)). However, Magistrate Judge Peebles also
indicated in a footnote: “In attacking the claims falling into group one, defendants have
not argued that plaintiff failed to file grievances regarding the underlying constitutional
deprivations. Accordingly, I have not scoured the available record to determine whether
plaintiff did, in fact, file grievances addressing those violations.” Rep. Rec. p. 19, n. 15.
Thus, defendants appear to be raising an issue that was not presented to Magistrate
Judge Peebles.
While the question of “[w]hether a party may raise a new legal argument ... for
the first time in objections to [a magistrate judge's report and recommendation] has not
yet been decided in this Circuit, . . . [s]ome courts in this circuit have stated, as a
general matter, that a ‘party waives any arguments not presented to the magistrate
judge. Levy v. Young Adult Institute, Inc., 2015 WL 1958889, at *4 (S.D.N.Y. Apr.30,
2015). Other courts have held that district courts should not consider belatedly made
arguments because doing so negates “efficiencies gained through the Magistrates Act
and would permit litigants to change tactics after the issuance of [a report and
recommendation].” Amadasu v. Ngati, 2012 WL 3930386, at *5 (E.D.N.Y. Sept. 9,
2012). District Judge D’Agostino has held that “[l]egal arguments may not be raised for
the first time in an objection.” Lewyckyj v. Colvin, 2014 WL 3534551, at *2 (N.D.N.Y.
July 17, 2014)(citing Abu–Nassar v. Elders Futures. Inc., 1994 WL 445638, *5 n. 2
(S.D.N.Y. Aug.17, 1994)(“If the Court were to consider ... untimely contentions, it would
unduly undermine the authority of the Magistrate Judge by allowing litigants the option
of waiting until a Report is issued to advance additional arguments.”).
11
The Court finds that the defendants have waived the argument that plaintiff’s
grievances from 2009 at Clinton Correctional Facility failed to assert the basis of a
denial of religious freedom claim against Artus. Defendants could have raised the
argument before Magistrate Judge Peebles who conducted an extensive review of the
claims in this matter and a thorough fact-finding hearing. To allow defendants to raise
the matter now would undermine the authority of Magistrate Judge Peebles, negate the
judicial efficiencies gained through the report and recommendation procedure, and
seemingly allow defendant to raise a new argument in a forum that does not ordinarily
invite adversarial responses. Moreover, defendants failed to attach to their objections
the two grievances to which they refer, nor do they point the Court to where in the
record the grievances could be found. Thus, efficiency and fairness does not militate in
favor of considering the matter now. Still further, the defendants fail to provide any
reason why the issue was not raised before Magistrate Judge Peebles, and the Court
does not find that manifest injustice will result if the new argument is not considered.
Accordingly, defendants’ objection in this regard is overruled.
2. Claims against Colvin & Lempke
Claims 16, 17, and 18 against defendant Colvin, and claims 26, 27, 28 against
defendant Lempke, are for excessive use of force, denial of religious freedom, and
retaliation allegedly occurring at Upstate Correctional Facility. See Am. Comp. ¶¶ 86,
105 and 108. Defendants argue that because (1) the Amended Complaint “generally
reads in chronological order; (2) paragraph 86 is embedded in the section entitled
"Denial of Medical Care;" and, (3) paragraph 86 encompasses paragraphs 62-109, “it
12
is clear from reading this section of the amended complaint as a whole that plaintiff is
referring to a time period prior to, or at most, to June 22, 2010. This is such because
the subsequent paragraph, 87, clearly begins with allegations stemming from June 22,
2010.” Def. Mem. L. p. 2. Defendants further assert that “Plaintiff's movement history
shows that between August 7, 2009 and June 22, 2010, he was not housed at Upstate.”
Id. From this, defendants argue that because “supervisors cannot be liable for the
conduct, policies or procedures of staff at a different facility,” id., Colvin and Lempke
cannot be held responsible for claims 16, 17, 18, 26, 27, and 28. See id. (“[I]rrespective
of whether [plaintiff] filed grievances regarding the underlying claims contained in
paragraph 86, plaintiff's claims against Colvin and Lempke are misplaced in their
capacity as supervisors because these defendants could not have had any control over
the conditions in another facility, and therefore they were not personally involved.”).
Thus, defendants contend that the Court should “dism iss these claims against Colvin
and Lempke.” Id.
Defendants’ argument is not addressed to Magistrate Judge Peebles’s
recommendation that dealt with whether plaintiff exhausted his administrative remedies,
but rather to whether claims 16, 17, 18, 26, 27, and 28 are legally viable. Because this
objection is not addressed to an alleged error by Magistrate Judge Peebles in
recommending whether plaintiff exhausted administrative remedies, but rather appears
to be an attempt to convert a 28 U.S.C. § 636(b)(1) objection into a Rule 56 sum mary
judgment motion, the objection is overruled. Defendants can challenge the sufficiency
of these claims at the time of trial.
13
3. Claims against Artus, Colvin, and Lempke
Defendants make similar arguments addressed to the legal sufficiency of claims
brought against Artus, Colvin, and Lempke in paragraphs 105 and 108. For the
reasons discussed above, defendants’ objections in this regard are overruled. Again,
defendants can challenge the sufficiency of these claims at the time of trial.
4. Claims 15, 20, 23, and 32
Claims 15, 20, 23, and 32 against Defendant Prebalick, Cioffa, Evans and Jones
allege excessive use of force and the failure to protect on May 6, 2010. With regard to
administrative exhaustion of these claims, Magistrate Judge Peebles found:
All of these claims relate to the same incident that allegedly occurred on
May 6, 2010, and involved the use of force by defendants Prebalick,
Cioffa, and Evans. Dkt. No. 45 at 5. Plaintiff also alleges that defendant
Jones was present for, and failed to protect him from, the use of force. Id.
In support of plaintiff's contention that he filed a grievance, dated May 7,
2010, regarding the excessive force and failure to protect claims asserted
against defendants Prebalick, Cioffa, Evans, and Jones, plaintiff adduced,
inter alia, a letter he addressed to Karen Bellamy, the DOCCS Director of
Inmate Grievance, dated August 13, 2010, inquiring about the status of
"several grievances [he had filed] in May 2010[.]" Exhs. P-E-6, P-G-6.
Bellamy responded to plaintiff in a letter dated September 22, 2010,
pointing out that her review of prison records demonstrated that plaintiff
had filed six grievances at Five Points in May 2010. Exhs. P-E-7, P-G-7.
By the time plaintiff sent his letter to Bellamy on August 17, 2010, he had
received a response to five other grievances he had filed in May 2010.
Exhs. D-7, D-8, D-9, D-10, D-11. It remains a mystery why some of the
grievances filed by plaintiff at Five Points in May 2010 were processed but
not the grievance allegedly relating to the incident involving defendants
Prebalick, Cioffa, Evans, and Jones on May 6, 2010. One possible
explanation is that plaintiff did not actually file a grievance. Another
possibility is that, assuming plaintiff filed the grievance, prison officials
interfered, intentionally or not, in a manner that resulted in plaintiff's
grievance never being processed. Unlike plaintiff's testimony regarding
other claims in groups three and four, his testimony regarding claims 15,
20, 23, and 32 is accompanied by his letter to Bellamy, which is stamped
as having been received by Bellamy's office, and Bellamy's response to
14
his letter. Exhs. P-E-6, P-E-7, P-G-6, P-G-7. Because the contents of
those letters plausibly suggest that plaintiff's grievance related to the
incident on May 6, 2010, involving defendants Prebalick, Cioffa, Evans,
and Jones was submitted but never processed, I have credited plaintiff's
testimony regarding the claims arising from that incident only. Accordingly,
I recommend defendants' motion to dismiss be denied with respect to
claims 15, 20, 23, and 32.
Rep. Rec. pp. 28-29.
Defendants argue, inter alia, that "[a]lthough the last line of plaintiff's letter to
Bellamy indicates ‘please find the enclosed unanswered grievances,' and even
affording plaintiff the benefit that the letters contained in [the various exhibits] are the
enclosure he is referring to, plaintiff still falls short of proper exhaustion. Respectfully,
[Magistrate Judge Peebles] did not address the next inquiry which is whether plaintiff
appealed the non-response to the Superintendent." Def. Mem. L., p. 3.
In Johnson v. Tedford, 616 F. Supp. 2d 321 (N.D.N.Y 2007), the court indicated
that "in light of the Second Circuit's [Hemphill v New York, 380 F.3d 680 (2d Cir. 2004)]
decision, several Southern District cases have recognized that when a prisoner asserts
a grievance to which there is no response, and it is not recorded or assigned a
grievance number, administrative remedies may be completely exhausted, as there is
nothing on record for the next administrative level to review." Id. at 326. However, and
despite that the exceptional circumstance exception of Hemphill has recently been
abrogated,5 Johnson has been repeatedly distinguished by the Northern District. As
5
In Ross v. Blake, –––U.S. –––– 136 S. Ct. 1850 (2016), the Supreme Court rejected the Second
Circuit's “extra-textual” exception to the PLRA's exhaustion requirement which allowed the taking into
account of “special circumstances” to justify a prisoner's failure to comply with administrative procedural
requirements. See Ross, 136 S. Ct. at 1856-57. Ross has been interpreted as abrogating the
special-circumstances exception set forth in Hemphill. See Riles v. Buchanan, 656 Fed. Appx. 577, 581
(2d Cir. 2016)(“Finally, to the extent Riles relies on our decision in Hemphill . . . to argue that special
(continued...)
15
Chief Judge Suddaby wrote in Smith v. Kelly, 985 F. Supp. 2d 275 (N.D.N.Y. 2013):
There appears to be a conflict in case law regarding whether the IGRC's
nonresponse must be appealed to the superintendent where the plaintiff's
grievance was never assigned a grievance number. After carefully
reviewing this case law, the Court finds that the weight of authority (and
better-reasoned authority) answers this question in the affirmative. The
Court notes that, if the plaintiff adequately describes, in his appeal to the
superintendent, the substance of his grievance (or if the plaintiff attaches,
to his appeal, a copy of his grievance), and the plaintiff adequately
describes the failure to process the grievance, there is something for the
superintendent to review.
Id. at 281–82 (N.D.N.Y. 2013)(collecting cases).
Based on the weight of authority, the Court agrees with defendants that the
failure by the IGRC or the Superintendent to timely respond to a grievance or first level
appeal must itself be appealed to the next level, including the CORC, in order to
properly complete the grievance process. See Simmon v. Uhler, 2015 WL 5655561, at
*4 (N.D.N.Y. Sept. 24, 2015) (“[T]he failure by the IGRC or the Superintendent to timely
respond to a grievance or first level appeal must be appealed to the next level, including
the CORC, in order to properly complete the grievance process.”)(citing Pacheco v.
Drown, 2010 WL 144400, at *19 & n. 21 (N.D.N.Y. Jan. 11, 2010); Smith v. Kelly, 985
F. Supp.2d at 281–82 & n. 8 (N.D.N.Y. 2013)); Goodson v Silver, 2012 U.S. Dist.
LEXIS 137177, at *11 (N.D.N.Y. Sept. 25, 2012) (stating that “any failure by the IGRC
or the superintendent to timely respond to a grievance or first-level appeal, respectively,
5
(...continued)
circumstances excuse his failure to exhaust available remedies, that avenue has been foreclosed.”)(citing
Williams v. Priatno, 829 F.3d 118, 123, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016)(explaining that
Ross abrogated the special-circumstances exception and “supplant[ed] our Hemphill inquiry by framing
the exception issue entirely within the context of whether administrative remedies were actually available”).
16
can – and must – be appealed to the next level, including CORC, to complete the
grievance process”); Veloz v New York, 339 F. Supp.2d 505, 516 (S.D.N.Y. 2004)
(holding that an inmate in the New York State system was required to appeal even if he
did not get a response to allegedly misplaced or destroyed grievances).
The law is clear that simply writing letters to supervisory officials is insufficient to
exhaust administrative remedies, Simmon, 2015 WL 5655561, at *4 n. 5 (citing Perez v.
Blot, 195 F. Supp. 2d 539, 544-45 (S.D.N.Y. 2002) (citing cases)); Masas v. Conte,
2015 U.S. Dist. LEXIS 50527 (N.D.N.Y Mar. 25, 2015), so plaintiff’s letter to Bellamy
does not satisfy his exhaustion obligation. Moreover, there is no evidence that plaintiff,
“an experienced pro se litigant who has filed multiple actions in this and other courts as
a New York State prison inmate,” Rep. Rec. 2, who undoubtedly was familiar with the
grievance and appeal process, see Hear Tr. pp. 113:15 – 116:6, 6 128:21-129:4, 7 Def.
Post-Hearing Mem. L. p. 10,8 appealed the non-response to his grievance addressed to
the facts underlying claims 15, 20, 23, and 32 against Prebalick, Cioffa, Evans and
Jones. Accordingly, these claims are dismissed for failure to exhaust administrative
remedies.
6
Jeffrey Hale, Assistant Director of the Central Office Review Committee, testified at plaintiff's
evidentiary hearing that there are safeguards in place in DOCCS' grievance process for inmates
specifically for this type of situation, as plaintiff purports to be. Hear Tr. pp. 113:15 – 116:6. That is, if an
inmate does not receive a response to a grievance, "[t]hey just write a simple note to the IGRC clerk or
they can address it to the inmate grievance program supervisor requesting to appeal that grievance to the
next level of review." Hear Tr. p. 113:15-23. Mr. Hale testified that inmates have a two week timeframe
within which to file an appeal of a non-response to the Superintendent, and, in addition, inmates also have
the same recourse for filing a late appeal as they would a timely appeal. Id. 114:9-115:25.
7
Mr. Hale testified that, at the time of plaintiff’s hearing, plaintiff had successfully exhausted 445
grievances and had 6 appeals pending. Hear. Tr. pp.128:21-129:4.
8
Defendants contend that Plaintiff successfully exhausted an estimated 300 grievances at the time
he filed this law suit. Def. Post-Hearing Mem. L., p. 10 (citing Hearing Ex. D-3).
17
IV.
CONCLUSION
For the reasons discussed above, Magistrate Judge Peebles’s October 28, 2016
Report and Recommendation, Dkt. No. 252, is accepted in part and rejected in part, as
follows:
(1) The following claims are deemed exhausted and remain pending for trial:
Claim Defendant
No.
3
Artus
4
Artus
13
16
17
18
19
26
27
28
Carlee
Colvin
Colvin
Colvin
Cunningham
Lempke
Lempke
Lempke
34
35
Prebalick
Ramus
Nature of Claim
Facility
Amended Complaint
¶
31, 104-05,
Medical Indifference Clinton
108-09
Religious
Clinton
31, 104-05,
Interference
108-09
Retaliation
Five Points 18
Excessive Force
Upstate
86, 105, 108
Religious
Upstate
86, 105, 108
Retaliation
Upstate
86, 105, 108
Due Process
Green
107
Excessive Force
Upstate
86, 105, 108
Religious
Upstate
86, 105, 108
Retaliation
Upstate
86, 105, 10809
Excessive Force
Five Points 35
Due Process
Five Points 107
(2) The following claims will also proceed to trial based on the parties' failure to
address them in connection with defendants' exhaustion defense:
Defendant
Amatucci
Barber
N. Bezio
Cambria
Cause of Action
Medical Indifference
Failure to Protect
Due Process
Excessive Force
Prison Facility
Downstate
Five Points
DOCCS Hq.
Unknown
Chesbrough
Holmes
Retaliation
Retaliation
Upstate
Upstate
Rock
Religious Interference Upstate
18
Lashway (formerly
sued as Hawthorne)
Medical Indifference
Clinton
(3) The following claims are dismissed based upon plaintiff's representation that
they are not being asserted in this action:
Claim
No.
10
11
21
Defendant Nature of Claim
Facility
Bower
Bower
Evans
Five Points
Five Points
Five Points
Failure to Protect
Retaliation
Religious
Interfer.
Amended
Complaint ¶
15
15
32
(4) The following claims are dismissed based upon the fact that complete
exhaustion occurred only after this action was filed:
Claim
No.
6
8
25
31
36
37
38
Name
Belsio
Atkinson
Lashway
Prebalick
Rowe
Rozwell
Rozwell
Nature of Claim
Facility
Amended Complaint
¶
41, 42
Religious Interference Upstate
Retaliation
Upstate
90, 91
Medical Indifference Clinton
75, 76
Religious Interference Five Points 35
Failure to Protect
Upstate
43
Excessive Force
Upstate
43
Religious Interference Upstate
43
(5) The following claims are dismissed based upon plaintiff's failure to fully
exhaust them:
Claim
No.
5
7
9
12
14
22
24
29
Name
Nature of Claim
Facility
Amended Complaint ¶
Belsio
Belsio
Bower
Carlee
Carlee
Fairchild
Jones
Menard
Excessive Force
Religious
Excessive Force
Religious
Excessive Force
Retaliation
Medical Indifference
Excessive Force
Upstate
Upstate
Five Points
Five Points
Five Points
Upstate
Five Points
Clinton
41, 42
41, 42
15
34
34
92
87
28
19
30
33
Menard
Religious
Prebalick Excessive Force
Clinton
Five Points
28
16
15
Cioffa
Excessive Force
Five Points
19, 20
20
Evans
Excessive Force
Five Points
20
23
Jones
Failure to Protect
Five Points
21
32
Prebalick
Retaliation
Five Points
19-22
The Court Clerk’s Office shall now schedule three trials for the remaining claims
in accordance with the Court’s September 22, 2015 Decision and Order, Dkt. No. 202,
taking into account claims and defendants that are dismissed from the action by this
Decision and Order. To aid the Court Clerk’s Office in scheduling these trials, each
part shall submit, within thirty (30) days, a status letter indicating the claims and
defendants that remain pending and that they contend should be tried in each of the
trials ordered by the Court on September 22, 2015, Dkt. No. 202.
IT IS SO ORDERED.
Dated:March 30, 2017
20
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