McMillian v. Graham et al

Filing 91

ORDER granting 44 Motion for Summary Judgment; adopting Report and Recommendations re 82 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No. 82) is ADOPTED in its en tirety for the reasons stated therein; and the Court further ORDERS that Defendant's motion for summary judgment (Dkt. No. 44) is GRANTED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 2/14/2018. (Copy served via regular to plaintiff)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
HERMAN CARLEE MCMILLIAN,
Plaintiff,
vs.

9:16-cv-277
(MAD/DJS)

DANIEL WALTERS, Correctional Officer,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

HERMAN CARLEE MCMILLIAN
90-T-5238
Auburn Correctional Facility
P.O. Box 618
Auburn, New York 13021
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

MICHAEL F. MCCARTIN, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff pro se Herman Carlee McMillian, an inmate in the custody of the New York
State Department of Corrections and Community Supervision ("DOCCS"), commenced this civil
rights action against Defendant Daniel Walters ("Defendant") pursuant to 42 U.S.C. § 1983
asserting claims arising from an incident that allegedly occurred while he was incarcerated at the
Auburn Correctional Facility ("Auburn"). See generally Dkt. No. 82.
On March 7, 2017, Defendant filed a motion for summary judgment seeking dismissal of
Plaintiff's Eighth Amendment excessive force and First Amendment retaliation claims. See Dkt.
No. 44. Defendant argues that Plaintiff failed to exhaust all administrative remedies available to

him under the Prison Litigation Reform Act ("PLRA"). See Dkt. No. 44-2 at 8.1 In a December
2017 Report-Recommendation and Order, Magistrate Judge Stewart recommended granting
Defendant's motion for summary judgment after finding that it was uncontested that Plaintiff
failed to initiate any administrative proceeding prior to filing his complaint in federal court. See
Dkt. No. 82 at 2.
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
On December 27, 2017, Plaintiff submitted objections to Magistrate Judge Stewart's
Report-Recommendation and Order. See Dkt. No. 84. The first paragraph of Plaintiff's
objections addressed the issue of exhaustion. See id. at 1. Plaintiff argued that he was not
required to file an administrative grievance because this is a civil action based upon a violation of
his constitutional rights which "is not an administration violation." Id. at 1. The remainder of the
objections dealt with the merits of Plaintiff's constitutional claims, which are irrelevant to the
issues before the Court.
A court may grant a motion for summary judgment only if "the court determines that there
is no genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law." Chambers v. TRM Copy Ctrs. Corp.,

The cited page numbers for docket entries in this Order refer to those assigned by the
Court's electronic filing system ("ECF").
1

2

43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion,
the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'"
Id. at 36-37 (quotation and other citation omitted).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable factual inferences in favor of
the nonmoving party. See id. at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the nonmovant either does not respond to the motion or fails to dispute the movant's statement of material
facts, the court may not rely solely on the moving party's statement of material facts; rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003).
Moreover, "in a pro se case, the court must view the submissions by a more lenient
standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)) (other citations omitted). "Indeed, the Second Circuit has stated that
'[i]mplicit in the right to self-representation is an obligation on the part of the court to make
reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights
because of their lack of legal training.'" Govan, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983)). "This liberal standard, however, does not excuse a pro se litigant
from following the procedural formalities of summary judgment." Id. (citing Showers v.
Eastmond, No. 00 CIV. 3725, 2001 WL 527484, at *1 (S.D.N.Y. May 16, 2001)).
The Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with
respect to prison conditions under section 1979 of the Revised Statutes of the United States (42
U.S.C. § 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other
3

correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.
§ 1997e(a). This exhaustion requirement applies to all suits brought by inmates regarding aspects
of prison life, including allegations of constitutional deprivations such as "excessive force or
some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust all
available administrative remedies even if they are seeking only money damages that are not
available in prison administrative proceedings. See Giano v. Goord, 380 F.3d 670, 675 (2d Cir.
2004), abrogated on other grounds by Ross v. Blake, 136 S. Ct. 1850 (2016). The failure to
exhaust is an affirmative defense that must be raised by the defendants and, as such, it is the
defendants' burden to establish that the plaintiff failed to meet the exhaustion requirements. See
Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004);
Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted).
The Supreme Court has held that in order to properly exhaust an inmate's administrative
remedies, the inmate must complete the administrative review process in accordance with the
applicable state rules. See Jones, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81
(2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must
complete the administrative review process in accordance with the applicable procedural rules,
including deadlines, as a prerequisite to bringing suit in federal court. See Woodford, 548 U.S. at
90-103.
New York State has a three-step administrative review process. First, a grievance is
submitted to the Inmate Grievance Resolution Committee ("IGRC") which reviews and
investigates the formal complaint before issuing a written determination. See 7 N.Y.C.R.R. §
701.5(b). Second, an adverse decision by the IGRC may be appealed to the Superintendent of the
Facility. See id. at § 701.5(c). Third, an adverse decision by the Superintendent may be appealed
to Central Office Review Committee ("CORC"), which makes the final determination within the
4

administrative review process. See id. at § 701.5(d). If all three of these levels of review are
exhausted, then the prisoner may seek relief in federal court pursuant to section 1983. See
Bridgeforth v. DSP Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing Porter, 534 U.S.
at 524); Singh v. Goord, 520 F. Supp. 2d 487, 495-96 (S.D.N.Y. 2007) (quoting Hemphill v. New
York, 380 F.3d 680, 686 (2d Cir. 2004)). When a plaintiff presents a claim arising "directly out of
a disciplinary or administrative segregation hearing . . . (e.g., a claim of denial of procedural due
process), he exhausts his administrative remedies by presenting his objections in the
administrative appeals process, not by filing a separate grievance instead of or in addition to his
ordinary appeal." Sweet v. Wende Corr. Facility, 514 F. Supp. 2d 411, 413 (W.D.N.Y. 2007)
(internal quotation and citations omitted); see also Davis v. Barrett, 576 F.3d 129, 131-32 (2d Cir.
2009).
Although administrative remedies generally must be exhausted, a prisoner need not
exhaust remedies if they are not "available." Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1855
(2016). "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.'"
Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 136 S. Ct. at 1859).
"Second, 'an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use.'" Id. (quoting Ross, 136 S. Ct. at 1859). "In other words, 'some mechanism
exists to provide relief, but no ordinary prisoner can discern or navigate it.'" Id. at 123-24
(quoting Ross, 136 S. Ct. at 1859). "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 124 (quoting Ross, 136 S. Ct. at 1860).2
In Ross, the 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
2

(continued...)
5

After de novo review, it is clear that Plaintiff was required to exhaust his administrative
remedies. As a general matter, the Supreme Court in Porter established that even civil claims
based on constitutional deprivations still require inmates to exhaust administrative remedies. See
Porter, 534 U.S. at 532. Turning to the recognized exceptions to the administrative exhaustion
requirement, Plaintiff has failed to establish that any of them apply. Plaintiff did not provide any
evidence that would suggest that the administrative procedures act as a dead end. Although
Plaintiff stated in his deposition that the grievance process "didn't do anything" for him in the
past, Dkt. No. 44-10 at 29:22-23, a record of administrative defeats for a single prisoner is not
sufficient evidence to effectively indict the system. Similarly, the fact that Plaintiff had initiated
the grievance procedures in the past but failed to do so here demonstrates that at least the initial
step of the process, which Plaintiff failed to engage in, was not so opaque as to be unavailable.
See id.; Dkt. No. 44-6 at 3. Finally, Plaintiff has failed to provide any evidence suggesting that
the prison administrators thwarted his attempts to utilize the process. Instead, Plaintiff admits
that he actively chose to forgo the IGRC processes because he believed the nature of the crime
underlying his incarceration would prejudice the IGRC against him. See Dkt. No. 44-10 at 31:217. However, other than this statement, which merely demonstrates Plaintiff's subjective belief of
bias, Plaintiff introduced no evidence to support this belief. As such, the Court is unable to find a
question of fact over whether the administrators were interfering with Plaintiff's access to
2

(...continued)

justify a prisoner's failure to comply with administrative procedural requirements. See Ross, 136
S. Ct. at 1856-57. Rather, it held that the only limit to the PLRA's exhaustion requirement "is the
one baked into its text: An inmate need exhaust only such administrative remedies as are
'available.'" Id. at 1862; see also Williams, 829 F.3d at 123 (recognizing that the framework set
forth in Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) and Hemphill v. New York, 380
F.3d 680 (2d Cir. 2004), setting forth a "special circumstances" exception to the PLRA's
exhaustion requirement has been abrogated in part by Ross). As such, the Supreme Court
specifically found that an inmate's mistaken belief that he has exhausted his administrative
remedies, even where that belief seems reasonable, does not make the administrative remedy
unavailable. See id. at 1858.
6

administrative remedies. Therefore, after de novo review, the Court concludes that Plaintiff was
not excused from exhausting his administrative remedies prior to bringing this action in federal
court. As it is undisputed that Plaintiff did not exhaust his administrative remedies, the Court
adopts Magistrate Judge Stewart's Report-Recommendation and Order.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No.
82) is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant's motion for summary judgment (Dkt. No. 44) is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 14, 2018
Albany, New York

7