Galberth v. Durkin, et al

Filing 79

ORDER adopting 76 Report and Recommendations with respect to the availability of administrative remedies; dismissing 69 Motion for Summary Judgment without prejudice to renewal. The dispositive motion filing deadline is extended to 8/15/2016. Signed by Judge Brenda K. Sannes on 7/14/16 (served on plaintiff via regular mail). (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
GREGORY GALBERTH,
Plaintiff,
v.
9:14-CV-115 (BKS/ATB)
C. DURKIN, Sergeant, Clinton Correctional
Facility, et al.,
Defendants.
________________________________________________
Appearances:
Gregory Galberth
03-A-0661
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403
Plaintiff, pro se
Denise P. Buckley, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Gregory Galberth brought this action under 42 U.S.C. § 1983 alleging that
defendants used excessive force against him, in four separate incidents at the Clinton
Correctional Facility, in violation of the Eighth Amendment. Dkt. No. 1. On January 29, 2016,
Defendants filed a motion for partial summary judgment, seeking dismissal of three of the

excessive force claims on the grounds that Plaintiff failed to exhaust his administrative remedies
as to those claims. Dkt. No. 69. Plaintiff filed a response in opposition (Dkt. No. 71) and
Defendants filed a reply (Dkt. No. 72). Plaintiff later filed two supplemental responses. Dkt.
Nos. 74, 75. This matter was assigned to United States Magistrate Judge Andrew T. Baxter who,
on April 21, 2016, issued an Order and Report-Recommendation recommending that defendants’
motion be dismissed without prejudice to renewal. Dkt. No. 76, p. 20. 1 Magistrate Judge Baxter
advised the parties that under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), they had fourteen
days within which to file written objections to the report, and that the failure to object to the
report within fourteen days would preclude appellate review. Id.
Defendants have filed objections to the Report-Recommendation. Dkt. No. 77. Plaintiff
has not filed objections or responded to Defendants’ objections. For the reasons set forth below,
the recommendation in the Report-Recommendation is adopted.
II. Standard of Review
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Id.
Summary judgment may be granted only if all the submissions taken together “show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d
202, 210 (2d Cir. 2014). A fact is material if it “might affect the outcome of the suit under the
1

Magistrate Judge Baxter ordered that to the extent Plaintiff’s filing constituted a motion for leave to amend his
complaint under Fed. R. Civ. P. 15 or to consolidate proceedings under Fed. R. Civ. P. 42, it was denied. Dkt. No.
76, pp. 2, 20.

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v.
City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A fact is genuinely in dispute “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In
ruling on a summary judgment motion, the court “must construe the facts in the light most
favorable to the non-moving party and must resolve all ambiguities and draw all reasonable
inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d
Cir. 2003).
III. Discussion
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires an inmate to
exhaust all available administrative remedies prior to bringing a federal civil rights action. See
Espinal v. Goord, 558 F.3d 119, 123-24 (2d Cir. 2009). To properly exhaust his administrative
remedies an inmate must complete the administrative review process in accord with the
applicable state procedural rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford
v. Ngo, 548 US 81, 88 (2006)). “Proper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90-91.
The grievance procedure in New York is a three-tiered process. The inmate must first
file a grievance with the Inmate Grievance Resolution Committee (IGRC). 7 N.Y.C.R.R. §§
701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of
the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent’s level may be appealed to
the Central Office Review Committee (CORC). Id. § 701.5(d).
Recently, in Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1857-58 (2016), the Supreme
Court held that there is no “special circumstances” exception to the PLRA exhaustion

requirement. 2 While exhaustion under the PLRA is mandatory, the Court ruled that “the PLRA
contains its own, textual exception . . . [because] the exhaustion requirement hinges on the
‘availab[ility]’ of administrative remedies.” Id. at 1858 (quoting 42 U.S.C. § 1997e(a)). The
Supreme Court identified three circumstances in which administrative remedies are unavailable.
Ross, 136 S. Ct. 1859-60. One of these is “when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation or
intimidation.” Id. at 1860. The administrative process is unavailable, and the PLRA “poses no
bar” when officials “threatened individual inmates so as to prevent their use of otherwise proper
procedures.” Id.
The Second Circuit has noted that Ross “largely supplants [the] Hemphill inquiry by
framing the exception issue entirely within the context of whether administrative remedies were
actually available to the aggrieved inmate.” Williams v. Correction Officer Priatno, __F.3d__,
No. 14-4777, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016). The Second Circuit has held that
the inquiry into whether a threat is sufficient to render the grievance procedure unavailable is an
objective one, asking whether “a similarly situated individual ordinary firmness” would have
deemed the procedures unavailable. Hemphill, 380 F.3d at 688. The Court recognized that
“threats or intimidation by prison officials may well deter a prisoner of ‘ordinary firmness’ from
filing an internal grievance.” Id.
B. Analysis
In this case two of the excessive force incidents occurred on May 15, 2001; the third
excessive force incident at issue occurred on November 7, 2011, all while Plaintiff was
incarcerated at the Clinton Correctional Facility. Dkt. No. 76, pp. 3-8. There is no dispute that
2

The Second Circuit had recognized a “special circumstances” exception as well as an
“estoppel” exception. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004).

Plaintiff fully grieved an excessive force incident which occurred there on November 5, 2011.
Dkt. No. 76, pp. 14-15. 3 In the Report-Recommendation, Magistrate Judge Baxter concluded
that defendants’ motion for summary judgment for failure to exhaust the three excessive force
claims should be denied because there are material issues of fact “as to whether a similarly
situated inmate of ‘reasonable firmness,’ having been beaten and threatened with physical harm
if he told anyone, would have considered prison grievance procedures to be unavailable.” Dkt.
No. 76, p. 20. 4 Defendants have objected to that determination. Dkt. No. 77.
Specifically, Defendants argue that Magistrate Judge Baxter “appears to have
overlooked” facts in concluding that there are material questions of fact. Dkt. No. 77, p. 2.
Defendants argue that Magistrate Judge Baxter: (1) overlooked the fact that “Plaintiff did not
testify at deposition that he was afraid to grieve the November 7, 2011 incident,” but instead
testified that “he fully grieved the incident” and then “materially altered” that testimony; and (2)
overlooked “material submissions with respect to the plausibility of fear of retaliation as an
excuse for” Plaintiff’s failure to pursue administrative remedies. Dkt. No. 77, p. 2. Defendants
also argue that this case is distinguishable from the case law cited in the ReportRecommendation. Id.
After carefully reviewing Defendants’ objections and the record in this case the Court
rejects Defendants’ contention that there was any error in overlooking facts or submissions.
Magistrate Judge Baxter did not, as Defendants argue, “overlook” the fact that Plaintiff filed a
3

The facts in Magistrate Judge Baxter’s Order and Report-Recommendation for which there is
no objection are not clearly erroneous, and are adopted and incorporated here. Dkt. No. 76. The
Court also incorporates herein the facts in Magistrate Judge Baxter’s previously-adopted ReportRecommendation, Dkt. Nos. 39, 41.
4
Magistrate Judge Baxter also concluded that “even if grievance procedures were available to
plaintiff, there is a material question of fact whether such threats should estop one or more of the
defendants from relying on the non-exhaustion defense,” but in light of Ross, the Court has
limited its consideration to whether administrative remedies were available. Dkt. No. 76, p. 14.

grievance regarding the November 5, 2011 incident while he was at the Clinton Correctional
Facility. Dkt. No. 77, p. 3. The Report-Recommendation expressly cited to this grievance, and
noted that the grievance is reflected in Clinton and CORC records. Dkt. No. 76, p. 14. The
portion of the Report-Recommendation to which Defendants cite refers to the fact that Plaintiff
later filed an untimely grievance regarding the three other incidents, upon being transferred to
another facility. Dkt. No. 76, p. 18; see Dkt No. 76, p. 15.
The Court also rejects Defendants’ claim that there was any error in connection with
“overlooking” the Plaintiff’s deposition testimony and the argument Plaintiff made in responding
to the summary judgment motion. Defendants cite to Plaintiff’s deposition testimony that he
filed a grievance regarding the November 7, 2011 incident and appealed from the denial. Dkt.
No. 77, p. 2. Defendants argue that this testimony is “flatly contradicted” by the DOCCS
records and the declarations. Dkt. No. 77, p. 2. The DOCCS evidence was not overlooked by
Magistrate Judge Baxter: the Report-Recommendation cites to those records and the
declarations from individuals at the Clinton Correctional Facility and the Central Office Review
Committee (“CORC”) stating that they did not find records of a grievance of the November 7,
2011 incident. Dkt. No. 76, p. 14.
Defendants argues that Plaintiff “materially altered” his deposition testimony “by
claiming” that he filed a combined (untimely) grievance of all three excessive force incidents.
Dkt. No. 77, p. 2; see Dkt. No. 76, p. 15; Dkt. No. 71. Defendants contend that “[a]t no point in
Plaintiff’s opposition to Defendant’s motion for partial summary judgment did Plaintiff claim
that fear of retaliation played any role in his failure to file a timely grievance” regarding the
November 7, 2011 incident. Dkt. No. 77, p. 3. However, when Defendants made this same
argument in their reply memorandum, Plaintiff filed supplemental memoranda arguing that he

has not abandoned his fear of retaliation claim, and that he did not grieve the “the first and 3rd
incident” 5 until after he had been moved to Auburn Correctional Facility because he feared for
his life. Dkt. No. 74, pp. 3-4; see Dkt. No. 75, pp. 3-4.
After reviewing the record, the Court does not find any error in overlooking evidence or
submissions. As Magistrate Judge Baxter has noted, Plaintiff’s grievance of the November 5th
incident is inconsistent with the alleged fear that prevented him from grieving the other
incidents. Dkt. No. 39, p. 14. Plaintiff explains this inconsistency in his supplemental
memoranda by stating “[t]his is the way he felt after the incidents took place.” Dkt, No. 74, p. 3.
As Magistrate Judge Baxter found, Plaintiff has alleged “more than a generalized fear of
retaliation” in the verified complaint. Dkt. No. 39, p. 14. Plaintiff alleged that when he was
beaten on May 16, 2011, by Officer Sears and Sergeant Bisson, Plaintiff was afraid to tell the
nurse what “really happened” because Sergeant Bisso said “we break bones you better not tell on
us.” Dkt. No. 1, p. 13. Plaintiff alleged that during the beating by Officers Plumbly and Sears
on November 7, 2011, Officer Plumbly said “I will beat you a Inch from life . . . And you tell
who you want, my word is like gold around here.” Id., p. 20. In the next paragraph Plaintiff
alleged that he “was unable to file Grievance for fear of his life.” Id., p. 20. Plaintiff further
alleged that his “life has been threatened several times,” and “prays that the court understands
why he was unable to griev [sic] the first and third incidents.” Id., p. 21.
The Court has reviewed Defendants’ argument regarding the factual differences in the
district court cases cited by Magistrate Judge Baxter, Dkt. No. 77, pp. 3-4, and does not find that
any error in the determination that under the facts of this case and the record now before the
court, that there are material issues of fact as to whether a similarly situated inmate of reasonable
5

The November 7th incident is referred to as “the third incident” in the complaint. Dkt. No. 1,
pp. 19-21.

firmness would have considered prison grievance procedures to be unavailable for the excessive
force incidents at issue.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 76) with
respect to the availability of administrative remedies is ADOPTED; and it is further
ORDERED that defendant’s summary judgment motion (Dkt. No. 69) is DISMISSED
without prejudice to renewal; and it is further
ORDERED that the dispositive motion filing deadline is extended to August 15, 2016;
and it is further
ORDERED that the Clerk of Court shall provide Plaintiff with copies of the unpublished
decisions cited in this Memorandum-Decision and Order; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: July 14, 2016

Williams v. Correction Officer Priatno, --- F.3d ---- (2016)

2016 WL 3729383
United States Court of Appeals,
Second Circuit.
Mark Williams, Plaintiff–Appellant,
v.
Correction Officer Priatno, Correction
Officer Gammone, Defendants–Appellees,
Correction Officer John DOE, State of New
York, New York State Department of Corrections
and Community Service, Defendants. *
*

The Clerk of Court is directed to amend the caption
to conform to the listing above.

Docket No. 14-4777
|
August Term, 2015
|
Argued: February 29, 2016
|
Decided: July 12, 2016
Plaintiff–Appellant Mark Williams appeals from an order
of the District Court for the Southern District of New
York that dismissed his claim under 42 U.S.C. § 1983
and the Eighth Amendment for failure to exhaust all
available administrative remedies as required by the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
We conclude that administrative remedies beyond the
submission of his initial complaint were unavailable to
Williams because the applicable grievance procedures are
“so opaque” and confusing that they were, “practically
speaking, incapable of use.” Ross v. Blake, 136 S. Ct.
1850, 1859 (2016). Accordingly, we reverse the decision
of the district court and remand for further proceedings
consistent with this opinion.
Attorneys and Law Firms
BRIAN M. FELDMAN (Michael J. Rooney, on the
brief), Harter Secrest & Emery LLP, Rochester, NY, for
Plaintiff–Appellant.
HOLLY A. THOMAS (Barbara D. Underwood and
Anisha S. Dasgupta, on the brief), for Eric T.
Schneiderman, Attorney General of the State of New
York, New York, NY, for Defendants–Appellees.

Before: KATZMANN, Chief
LOHIER, Circuit Judges.

Judge,

SACK

and

Opinion
KATZMANN, Chief Judge:
*1 Plaintiff–Appellant Mark Williams alleges in this 42
U.S.C. § 1983 case that Defendants–Appellees Correction
Officer Priatno and Correction Officer Gammone violated
his Eighth Amendment rights when they brutally beat
him for talking back to another officer when he was an
inmate at Downstate Correctional Facility (“Downstate”)
in New York. We are presented with the threshold
question of whether Williams exhausted all available
administrative remedies prior to filing this lawsuit in the
United States District Court for the Southern District of
New York, as required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a). More specifically,
we must decide whether the prison's grievance process
was actually “available” to Williams in light of the
extraordinary circumstances of his case. We conclude
that that process was not available to Williams because
the applicable grievance procedures are “so opaque” and
confusing that they were, “practically speaking, incapable
of use.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016).
We reverse the decision of the district court that granted
defendants' motion to dismiss and remand for further
proceedings consistent with this opinion.

I. BACKGROUND
A. Department of Corrections and Community
Supervision Grievance Procedures
The New York State Department of Corrections and
Community Supervision (“DOCCS”) regulations outline
the procedures that apply to the Inmate Grievance
Program (“IGP”) at Downstate. The grievance process
begins with the filing of a complaint within 21 days
of an alleged incident. N.Y. Comp. Codes R. & Regs.
(“NYCRR”) tit. 7, § 701.5(a)(1). Typically, inmates file
grievances with the grievance clerk. Id. However, if an
inmate is housed in the special housing unit (“SHU”), and
therefore segregated from the regular prison population,
he may give the grievance complaint to a correction officer
to file for him. See id. § 701.7. Upon filing, the grievance
clerk numbers and logs the grievances. Id. § 701.5(a)(2).

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Williams v. Correction Officer Priatno, --- F.3d ---- (2016)

Ordinarily, there are three levels of review of a grievance.
The first is by the inmate grievance resolution committee
(“IGRC”); the second is by the facility superintendent;
and the third is by the central office review committee
(“CORC”). Id. §§ 701.1(c), 701.5. However, “harassment
grievances”—those that involve “employee misconduct
meant to annoy, intimidate or harm an inmate,” id. §
701.2(e)—are subject to expedited first–level review by the
facility superintendent, id. § 701.8. When the grievance
clerk identifies a harassment grievance, the clerk must
forward the grievance to the superintendent on the same
day that the grievance was filed. Id. § 701.8(b). If the
grievance presents a bona fide harassment issue, then the
superintendent must initiate an investigation, render a
decision on the grievance, and inform the inmate of the
decision within 25 days of receipt of the grievance. Id. §
701.8(d), (f). “If the superintendent fails to respond within
the required 25 calendar day time limit the grievant may
appeal his/her grievance to CORC.” Id. § 701.8(g); see also
id. § 701.6(g)(2) (stating generally that matters not decided
within designated time limits “may be appealed to the next
step”).
*2 If an inmate is transferred to another facility while
a grievance is pending, a response to the grievance shall
be mailed to the inmate at the new facility. Id. § 701.6(h)
(1). “If the grievant wishes to appeal, he or she must mail
the signed appeal form back to the IGP supervisor at
the facility where the grievance was originally filed within
seven calendar days after receipt.” Id. § 701.6(h)(2). If an
inmate wishes to file a new grievance about an incident
that occurred prior to a transfer, he must file the grievance
in the facility where he is currently housed, “even if it
pertains to another facility.” Id. § 701.5(a)(1).

B. Facts and Procedural History
Williams was formerly incarcerated at Downstate. He
alleges that, on December 31, 2012, he was in a search
room (also known as a “drafting” room) while his
personal items were being searched. A correction officer
was “thoroughly probing [his] legal work” and he asked
her to stop. Joint App. at 32. Williams explains that the
legal papers were related to a separate action seeking
damages for an assault he experienced while an inmate
at Rikers Island. The officer instructed Williams to sit
down, which he did while “admonishing” her. Id. At
that point, defendant correction officers Priatno and
Gammone approached Williams. They grabbed Williams
and dragged him to another room that had no cameras,

where they were out of eyesight of the other 15 to 20
inmates who were seated in the drafting room. Williams
alleges that the officers proceeded to assault him—
thrusting his forehead against the wall, causing him to
fall to the ground, and then kicking and stomping on
any uncovered part of his body. Defendant Gammone
allegedly picked him up and said, “this is what running
your mouth gets you,” and punched him on his right eye.
Id. at 37. Williams fell to the floor again, and defendant
Priatno allegedly kicked his face and head. Following the
assault, the officers sent him to the infirmary. He suffered
injuries to his head, knee, eye, elbow, lower back, jaw, and
nose, and he now takes medication for anxiety and panic
attacks.
Williams alleges that on January 15, 2013, while he
was housed in the SHU at Downstate, he drafted a
grievance detailing the officers' misconduct. 1 He gave
the grievance to a correction officer to forward to the
grievance office on his behalf, in accordance with DOCCS
grievance procedures that apply to inmates in the SHU.
See NYCRR tit. 7, § 701.7. One week later, Downstate
superintendent Ada Perez was making rounds in the SHU.
Williams told her about the incident and said he had
not yet received a response to his grievance. Perez told
him she had no knowledge of the grievance and that she
would look into it. About a week after that conversation,
Williams was transferred to another facility. He never
received a response to the grievance and alleges that the
correction officer in the SHU never filed it for him. There
is no dispute that Williams never appealed the grievance.
1

Some allegations concerning the circumstances of
Williams's attempted filing of his grievance are taken
from his pro se opposition to the motion to dismiss,
which we may consider in resolving this appeal. See
Wright v. Comm'r of Internal Revenue, 381 F.3d 41,
44 (2d Cir. 2004) (construing pro se submissions
“liberally”); Oritz v. McBride, 323 F.3d 191, 194 (2d
Cir. 2003) (“The rule favoring liberal construction
of pro se submissions is especially applicable to civil
rights claims.”).

Proceeding pro se, Williams filed a complaint in the
United States District Court for the Southern District
of New York on January 13, 2014, asserting a claim
under 42 U.S.C. § 1983 and the Eighth Amendment. The
initial complaint named as defendants Correction Officer
Priatno, Correction Officer John Doe, the State of New
York, and DOCCS. Pursuant to screening procedures

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Williams v. Correction Officer Priatno, --- F.3d ---- (2016)

that apply to pro se complaints under 28 U.S.C. §
1915A, the district court dismissed the claims against the
State and DOCCS and directed the Attorney General's
Office to ascertain the identity of defendant John Doe
and provide that information to Williams. Williams filed
an amended complaint on February 19, 2014, naming
correction officers Priatno and Gammone as defendants.
*3 Defendants moved to dismiss the complaint on
the basis that Williams failed to exhaust administrative
remedies as required by the PLRA, citing records that
show Williams never filed an appeal. In a decision dated
December 10, 2014, the district court (Seibel, J.) granted
defendants' motion. The court reasoned that, even if
Williams's grievance had never been filed, he still could
have appealed the grievance to the next level because the
regulations allow an appeal in the absence of a response.
The district court also sua sponte denied Williams leave to
file a second amended complaint, concluding that “better
pleading would not lead to a different result.” Joint App.
at 66.
Williams filed a timely notice of appeal and subsequently
moved for appointment of pro bono counsel. In granting
his motion, we directed pro bono counsel to brief, among
other issues, the following questions:
(1) whether the framework in Hemphill v. New York, 380
F.3d 680 (2d Cir. 2004) for excusing non–compliance
with exhaustion of administrative remedies is still
good law in light of Woodford v. Ngo, 548 U.S.
81 (2006); and (2) if so, whether a prison's failure
to respond to a grievance renders an administrative
remedy “unavailable” so as to excuse the prisoner's
non–compliance with administrative exhaustion.
Motion Order, filed Mar. 18, 2015, Docket No. 33. While
this case was pending, the Supreme Court decided Ross
v. Blake, 136 S. Ct. 1850 (2016), which clarified the
framework under which courts should assess whether
a prisoner has complied with the PLRA exhaustion
requirement. Because that framework can be easily
applied to the parties' arguments and the record on appeal,
we review the district court's decision under Ross and
conclude that the court erred in granting defendants'
motion to dismiss. Accordingly, we reverse and remand
for further proceedings.

II. DISCUSSION
We review a grant of a motion to dismiss de novo.
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
Specifically, the issue of “[w]hether a plaintiff has
exhausted administrative remedies under the [PLRA] is
also a question reviewed de novo.” Amador v. Andrews, 655
F.3d 89, 94–95 (2d Cir. 2011). For purposes of this review,
we accept all of the factual allegations in the complaint
as true, see Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and, because Williams appeared pro se before the district
court, we are “constrained to conduct our examination
with ‘special solicitude,’ interpreting the complaint to raise
the ‘strongest claims that it suggests,’ ” Hill, 657 F.3d
at 122 (alterations omitted) (quoting Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006) (per
curiam)).
The PLRA instructs that “[n]o action shall be brought
with respect to prison conditions under [42 U.S.C. §
1983] ... 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). Failure to exhaust administrative remedies is
an affirmative defense under the PLRA, not a pleading
requirement. Jones v. Bock, 549 U.S. 199, 216 (2007);
Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir.
2013). Accordingly, “inmates are not required to specially
plead or demonstrate exhaustion in their complaints.”
Jones, 549 U.S. at 216. However, a district court still may
dismiss a complaint for failure to exhaust administrative
remedies if it is clear on the face of the complaint
that the plaintiff did not satisfy the PLRA exhaustion
requirement. See id. at 215.
In Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004),
we set forth a three–part inquiry to guide our analysis
of whether a plaintiff has satisfied the PLRA. See id.
at 686–91. The first part involves an assessment whether
administrative remedies were in fact available to the
plaintiff; the second part instructs courts to consider
whether defendants forfeited the affirmative defense of
exhaustion by failing to preserve it or should be estopped
from raising it because their own actions inhibited the
plaintiff's ability to exhaust administrative remedies; and
the third part directs courts to determine whether special
circumstances existed that justified a plaintiff's failure
to exhaust remedies that were available and not subject

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3

Williams v. Correction Officer Priatno, --- F.3d ---- (2016)

to estoppel. See Amador, 655 F.3d at 102 (summarizing
Hemphill inquiry).
*4 Two years later, in Woodford v. Ngo, 548 U.S. 81
(2006), the Supreme Court weighed in on the importance
of the PLRA exhaustion requirement without directly
opining on the validity of the exceptions we outlined in
Hemphill. In Woodford, a prisoner's grievance was denied
because it was not timely filed. Id. at 86–87. He then filed
a lawsuit in federal court and argued he should be relieved
from the PLRA exhaustion requirement on the basis that,
as a result of his untimely filing, the grievance process was
no longer available to him. Id. The Court rejected this
position, emphasizing that the PLRA “requires proper
exhaustion,” id. at 93, “which ‘means using all steps that
the [prison grievance system] holds out, and doing so
properly (so that the [prison grievance system] addresses
the issues on the merits),” id. at 90 (emphasis in original)
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th
Cir. 2002)). “Proper exhaustion demands compliance
with [a prison grievance system's] deadlines and other
critical procedural rules because no adjudicative system
can function effectively without imposing some orderly
structure on the course of its proceedings.” Id. at 90–91.
In the aftermath of Woodford, we were left to determine
the extent to which our Hemphill framework remained
intact. The text of the statute convinced the court that the
first part of our inquiry—the determination of whether
an administrative remedy was in fact “available” to the
inmate—was still valid. See, e.g., Macias v. Zenk, 495
F.3d 37, 44–45 (2d Cir. 2007) (discussing Woodford and
analyzing whether the grievance process was actually
available to the plaintiff); Johnston v. Maha, 460 F. App'x
11, 15 n.6 (2d Cir. 2012) (summary order) (“Although
[Woodford] requires that prisoners ‘properly’ exhaust the
available remedies under the PLRA, it certainly does not
abrogate the unavailability defense to nonexhaustion.”);
see also Woodford, 548 U.S. at 85 (focusing its analysis
on “all ‘available’ remedies”). However, the continued
viability of Hemphill's inquiries regarding estoppel and
special circumstances was less clear. See, e.g., Amador, 655
F.3d at 102; Macias, 495 F.3d at 43 n.1; Ruggiero v. Cty.
of Orange, 467 F.3d 170, 176 (2d Cir. 2006).
The Supreme Court's recent decision in Ross v. Blake,
136 S. Ct. 1850 (2016), squarely addresses that ambiguity
and guides our decision here. In Ross, the Court held
that, aside from the “significant” textual qualifier that

“the remedies must indeed be ‘available’ to the prisoner,”
there are “no limits on an inmate's obligation to exhaust
—irrespective of any ‘special circumstances.’ ” Id. at 1856.
The Court stressed “the mandatory nature of [the PLRA's]
exhaustion regime,” id. at 1857, noting that the text of the
PLRA and its legislative history refute the existence of a
special circumstances exception to the statute's exhaustion
requirement, id. at 1857–58. Therefore, to the extent that
our special circumstances exception established in Giano v.
Goord, 380 F.3d 670, 675–76 (2d Cir. 2004), and Hemphill,
380 F.3d at 689–91, permits plaintiffs to file a lawsuit
in federal court without first exhausting administrative
remedies that were, in fact, available to them, those aspects
of Giano and Hemphill are abrogated by Ross. Indeed,
Ross largely supplants our Hemphill inquiry by framing
the exception issue entirely within the context of whether
administrative remedies were actually available to the
aggrieved inmate. See Ross, 136 S. Ct. at 1858–59.
Accordingly, we will shift our focus to an analysis of
whether the PLRA's textual “unavailability” exception
applies here. Our decision in Hemphill touches on that
question, noting that “the behavior of the defendants
may render administrative remedies unavailable.” 380
F.3d at 686. But we are significantly aided by Ross
in interpreting the meaning of the word “available” as
used in the PLRA. In Ross, the Court highlights “three
kinds of circumstances in which an administrative remedy,
although officially on the books, is not capable of use
to obtain relief.” Ross, 136 S. Ct. at 1859. 2 First,
an administrative remedy may be unavailable when “it
operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates.” Id. Second, “an administrative scheme might be
so opaque that it becomes, practically speaking, incapable
of use.” Id. In other words, “some mechanism exists to
provide relief, but no ordinary prisoner can discern or
navigate it.” Id. Third, an administrative remedy may be
unavailable “when prison administrators thwart inmates
from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at
1860.
2

We note that the three circumstances discussed in
Ross do not appear to be exhaustive, given the Court's
focus on three kinds of circumstances that were
“relevant” to the facts of that case. Ross, 136 S. Ct. at
1859. Because those circumstances are also relevant
to the facts of this case, we do not opine on what other

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Williams v. Correction Officer Priatno, --- F.3d ---- (2016)

circumstances might render an otherwise available
administrative remedy actually incapable of use.

*5 Turning to the facts of this case, we assume for
purposes of our analysis that an administrative remedy
was “officially on the books.” Id. at 1859. Prison
regulations provide that inmates in the SHU may file
grievances by giving the complaint to a correction officer
to forward to the grievance clerk. See NYCRR tit. 7, §
701.7. The regulations also provide that an inmate may
appeal a grievance “to the next step” if he does not receive
a timely response. Id. § 701.6(g)(2); see also id. § 701.8(g).
Defendants assert that, even if Williams's grievance had
not been filed and despite the fact that he had been
transferred to a new facility prior to receiving a response,
he still could have attempted to appeal the grievance in
accordance with sections 701.6(g)(2) and 701.8(g).
However, even if Williams technically could have
appealed his grievance, we conclude that the regulatory
scheme providing for that appeal is “so opaque” and “so
confusing that ... no reasonable prisoner can use [it].”
Ross, 136 S. Ct. at 1859 (quoting Tr. of Oral Arg. 23).
The regulations simply do not contemplate the situation
in which Williams found himself, making it practically
impossible for him to ascertain whether and how he could
pursue his grievance.
We accept as true Williams's allegation that the correction
officer never filed his grievance. 3 See Erickson, 551
U.S. at 94. Under that circumstance, the regulations
do not adequately outline the process to appeal or
otherwise exhaust administrative remedies. On their face,
the regulations only contemplate appeals of grievances
that were actually filed. For example, if the grievance had
never been filed, the superintendent would never have
received it and the timeline for her to provide a response
within 25 days “of receipt of the grievance” would never
have been triggered. NYCRR tit. 7, § 701.8(f). In turn,
the textual provision allowing a grievant to appeal to
the CORC would never have come into effect. See id. §
701.8(g) (“If the superintendent fails to respond within
the required 25 calendar day time limit the grievant may
appeal his/her grievance to CORC.”). Accordingly, the
regulations give no guidance whatsoever to an inmate
whose grievance was never filed.
3

We consider this claim to be plausible given
Williams's allegations that he asked superintendent
Perez about his grievance one week after giving it to

the correction officer and Perez said that she had no
knowledge of it. There is no question that Williams's
grievance was a harassment grievance. See NYCRR
tit. 7, § 701.2(e) (defining harassment grievances).
Had the correction officer filed it, it should have been
forwarded to Perez the same day in accordance with
procedures that govern the processing of harassment
grievances. See NYCRR tit. 7, § 701.8(b). At the
motion to dismiss stage, the allegation that she had
no knowledge of the grievance supports Williams's
allegation that it was not filed.

Defendants assure us, however, that if Williams had
attempted to appeal his grievance, it would have
“allow[ed] the facility to alert the inmate that his
original complaint ha[d] not been received, and to inform
him about how to proceed with his complaint.” Post–
Argument Letter from Holly A. Thomas, Special Counsel
to the Solicitor Gen., State of N.Y. Office of the Attorney
Gen. (“Defendants' Post–Argument Letter”) (Mar. 16,
2016), Docket No. 97, at 1. At oral argument, counsel for
defendants stated that there is no time limit to appeal to
the next step if an inmate does not receive a response to a
grievance. See Oral Arg. Recording at 1:59:13–38. In their
post–argument letter, defendants explain how this would
work in practice by outlining three options that would be
presented to an inmate following his appeal of an unfiled
grievance: (1) if it is still within 21 days of the incident,
the inmate can re–file the complaint; (2) if it is beyond 21
days but within 45 days of the incident, the inmate can
request an exception to the 21–day time limit if he can
show mitigating circumstances; or (3) if it is more than
45 days since the incident, the inmate may file a separate
complaint grieving the denial of an extension to the time
limit. Defendants' Post–Argument Letter, at 2–3; see also
id., App. 1b, 2c. 4
4

Defendants offer a fourth option for an inmate
to address an unfiled grievance: submitting “a new
complaint grieving the alleged willful mishandling
of his original complaint by DOCCS's personnel.”
Defendants' Post–Argument Letter at 3. However,
because such a grievance would not itself address
the substantive allegations in the original unfiled
grievance—and it is unclear how prevailing on the
former would affect the ability to pursue the latter
—under the circumstances of this case, it is at a
minimum a roundabout, if not ineffectual, means for
an inmate to attain relief.

*6 These options are pieced together from various
provisions in the regulations that do not involve appeals

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Williams v. Correction Officer Priatno, --- F.3d ---- (2016)

of grievances but provide instructions on the timelines
that apply to the filing of new complaints. See NYCRR
tit. 7, § 701.5(a)(1); id. § 701.6(g)(1)(i)(a); id. § 701.6(g)(1)
(ii). A close review of the regulations shows, contrary to
defendants' assertions at oral argument, that an “appeal”
in Williams's circumstance is, indeed, subject to time
limitations and procedural hurdles that in all but the rarest
of circumstances would preclude him from pursuing his
unfiled and unanswered grievance, and that are, in any
event, “so confusing that ... no reasonable prisoner can use
them.” Ross, 136 S. Ct. at 1859 (quoting Tr. of Oral Arg.
23).
Looking at the first option, an inmate does not even have
the right to appeal a grievance to the next step until the
time for the superintendent to respond has already passed
—a date which, in the case of a harassment grievance,
is already well beyond 21 days of the incident. See id.
§§ 701.5(a)(1), 701.8(g). Regarding the second option,
for similar reasons, the window to request an extension
between 21 and 45 days of the incident will occur only
where the inmate took less than the allowed 21 days to
submit his original complaint. If the inmate took full
advantage of the time the regulations give him to act
and then had to wait 25 days for a response, 46 days
will have passed before he learns with certainty that
the superintendent failed to respond. 5 Finally, where
options one and two are unavailable, the third option is
wholly inapplicable as a mechanism to appeal an unfiled
grievance, because the regulations state unequivocally
that “[a]n exception to the time limit may not be granted
if the request was made more than 45 days after an
alleged occurrence.” Id. § 701.6(g)(1)(i)(a). Therefore, even
though option three suggests that an inmate could file
a separate complaint grieving the denial of an exception
to the filing deadline, such a grievance would be futile
given that the regulations do not give the IGP supervisor
authority to grant an exception beyond 45 days of the
initial incident.
5

Even when an inmate submits his initial grievance
before the 21–day deadline specified in section
701.5(a)(1), and, therefore, it is possible that he could
have filed a request for an extension under the second
option, he would still not learn of that option until
the prison responds to his “appeal” of the unanswered
grievance and informs him of these options. In the
examples provided by defendants, the amount of
time the prison takes to provide a response to these

types of inquiries varies. See, e.g., Defendants' Post–
Argument Letter, App. 1 (1 day); App. 2 (7 days);
App. 3 (3 days); App. 4 (1 day); App. 5 (17 days).

In sum, the regulations plainly do not describe a
mechanism for appealing a grievance that was never filed.
Moreover, the purported options for relief provided by
defendants, to the extent they are even available to an
inmate in Williams's situation, only increase confusion
regarding the avenues available to pursue an appeal.
For these reasons, the process to appeal an unfiled and
unanswered grievance is prohibitively opaque, such that
no inmate could actually make use of it. 6
6

Defendants argue that an inmate's claim that
he submitted a grievance that was unfiled and
unanswered (which the district court would accept as
true at the motion to dismiss stage), and that was not
appealed, cannot excuse compliance with the PLRA's
exhaustion requirement. If the inmate's allegation to
that effect alone sufficed for purposes of the PLRA,
he could thereby “avoid the prison grievance process
altogether ... without the administrative process ever
having been initiated.” Defendants' Br. at 22–23.
Indeed, many district courts have concluded that a
“nonresponse” to a grievance “must be appealed” in
order to exhaust administrative remedies under the
PLRA. See, e.g., Smith v. Kelly, 985 F. Supp. 2d
275, 281 (N.D.N.Y. 2013); see also id. at 281 n.8
(collecting cases). Nonetheless, defendants bear the
initial burden of establishing the affirmative defense
of non–exhaustion “by pointing to ‘legally sufficient
sources' such as statutes, regulations, or grievance
procedures” which demonstrate 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) (alteration omitted) (quoting Mojias v.
Johnson, 351 F.3d 606, 610 (2d Cir. 2003)). Because,
as we explained above, the process of appealing an
unfiled grievance is practically unavailable to inmates
under current DOCCS regulations, defendants have
not met their initial burden here.

*7 Furthermore, if the regulations outlined above, as
applied to a prisoner in Williams's situation, were not
already “so confusing” that “no ordinary prisoner can
discern or navigate [them],” Ross, 136 S. Ct. at 1859,
their obscurity was compounded by the fact that Williams
was transferred to another facility approximately two
weeks after giving his grievance to the correction officer.
Defendants contend that a transfer does not affect an
inmate's ability to appeal his grievance to the next step,

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Williams v. Correction Officer Priatno, --- F.3d ---- (2016)

pointing to a provision in the regulation that provides: “If
the [transferred] grievant wishes to appeal, he or she must
mail the signed appeal form back to the IGP supervisor
at the facility where the grievance was originally filed
within seven calendar days after receipt.” NYCRR tit. 7,
§ 701.6(h)(2). However, this provision presumes not only
that the grievance was actually filed, but also that the
inmate received an appeal form that he can sign and mail
back. The regulations plainly do not provide guidance on
how a transferred inmate can appeal his grievance with the
original facility without having received a response.

DOCCS revise its grievance procedures to instruct inmates
how to appeal grievances that were not properly filed by
prison staff, and how to appeal a grievance, to which the
inmate never received a response, after being transferred.

For the foregoing reasons, we conclude that the grievance
procedures that were technically available to Williams
are so opaque and confusing that they were, “practically
speaking, incapable of use.” Ross, 136 S. Ct. at 1859.
Accordingly, in giving his grievance to the correction
officer, Williams exhausted all administrative remedies

Having concluded that Williams satisfied the PLRA's
exhaustion requirement, we REVERSE the judgment of
the district court and REMAND for further proceedings
in accordance with this opinion.

that were available to him. 42 U.S.C. § 1997e(a). 7 To
avoid confusion going forward, we recommend that

All Citations

End of Document

7

In light of this conclusion, we need not decide
whether administrative remedies also may have been
unavailable to Williams for other reasons, such as
officer misconduct. See Ross, 136 S. Ct. at 1860.

III. CONCLUSION

--- F.3d ----, 2016 WL 3729383
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