Lewis v. Hanson et al

Filing 28

ORDER: ORDERS that Magistrate Judge Dancks's Order and Report-Recommendation (Dkt. No. 24 ) is ADOPTED as modified by this Order. ORDERS that Defendants' motion to dismiss (Dkt. No. 19 ) is GRANTED and this action is DISMISSED witho ut prejudice based on Plaintiff's failure to exhaust administrative remedies. ORDERS that the Clerk of the Court enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 9/28/17. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
RAYMOND LEWIS,
Plaintiff,
vs.

9:16-CV-804
(MAD/TWD)

J. HANSON, et al.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

RAYMOND LEWIS
Clinton Correctional Facility
P.O. Box 2000
Dannemora, New York 12929
Plaintiff, pro se
NEW YORK STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

HELENA O. PEDERSON, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
On July 5, 2016, pro se Plaintiff Raymond Lewis filed this prisoner civil rights action
against Defendants Sergeant Hanson, Corrections Officer Sharpe, Corrections Officer Mere,
Corrections Officer Peck, and two John Doe officers. See Dkt. No. 1. Defendants moved to
dismiss the complaint, arguing that Plaintiff failed to exhaust his administrative remedies prior to
filing the complaint. See Dkt. No. 19. Magistrate Judge Dancks issued an Order and ReportRecommendation recommending that the Court grant Defendants' motion without prejudice to
Plaintiff refiling his suit upon exhausting his administrative remedies. See Dkt. No. 24 at 10.

Defendants filed objections. See Dkt. No. 26. For the following reasons, the Order and ReportRecommendation is adopted as modified by this Order.
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).
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
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. See 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. 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).

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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
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 § 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)

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(internal quotation and citations omitted); see also Davis v. Barrett, 576 F.3d 129, 131-32 (2d Cir.
2009).
To the extent a civil rights claim must be exhausted by the grievance process, completion
of the three-tiered process, through and including a final decision by CORC, must be completed
before an action asserting that claim may be initially filed. See, e.g., Casey v. Brockley, No. 9:13CV-1271, 2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) ("Receiving a decision from CORC
after commencing litigation does not satisfy PLRA's requirement that administrative remedies be
exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must
be dismissed without prejudice") (citing Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001),
overruled on other grounds, Porter v. Nussle, 534 U.S. 516 (2002)); Rodriguez v. Rosner, No. 12CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012). "[A] post-exhaustion amendment of
the complaint cannot cure an exhaustion defect existing at the time the action was commenced."
Guillory v. Haywood, No. 9:13-CV-1564, 2015 WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing
Neal, 267 F.3d at 122) (other citation omitted).
Although administrative remedies generally must be exhausted, a prisoner need not
exhaust remedies if they are not "available." Ross v. Blake, 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
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thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.'" Id. at 124 (quoting Ross, 136 S. Ct. at 1860).1
In his July 5, 2016 complaint, Plaintiff states that his "grievance is pending." Dkt. No. 1
at 4. Therefore, it is clear from the face of the complaint that Plaintiff had not exhausted his
administrative remedies at the time he initiated this action. Defendants filed a motion to dismiss
for failure to exhaust administrative remedies, and Plaintiff submitted a response stating that his
administrative remedies were effectively exhausted because CORC did not render a decision on
his appeal within thirty days. See Dkt. No. 21 at 2. Judge Dancks recommended that the Court
grant Defendants' motion and dismiss the complaint without prejudice to Plaintiff refiling upon
fully exhausting his administrative remedies. See Dkt. No. 24 at 10. Judge Dancks further
recommended that the Court order CORC render a decision on Plaintiff's grievance within thirty
days, if it had not already done so.
Defendants filed objections to the Order and Report-Recommendation. See Dkt. No. 26.
The objections include a declaration from the Assistant Director of the Inmate Grievance
Program, Rachel Seguin, which states that the Superintendent of Plaintiff's facility denied his
grievance on August 8, 2016—over a month after Plaintiff filed the complaint in this case. See

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
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.
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Dkt. No. 26-1 at ¶ 11. The declaration goes on to state that she conducted a search of CORC's
records and discovered that there is no record of Plaintiff appealing the Superintendent's decision
to CORC. See id. at ¶¶ 12-14. Therefore, Defendants argue, Plaintiff failed to timely appeal the
Superintendent's decision and cannot properly exhaust his administrative remedies. See Dkt. No.
26 at 2. Accordingly, Defendants argue that Plaintiff's complaint should be dismissed with
prejudice, or that the Court should allow Defendants to file a pre-discovery motion for summary
judgment on the grounds that Plaintiff failed to properly exhaust his administrative remedies. See
id.
In response to Defendants' objections, Plaintiff submitted a letter stating that he attempted
to appeal the Superintendent's decision while he was in the special housing unit ("SHU"), but his
appeal was not delivered by the corrections officer who picked it up. See Dkt. No. 27. Because
Plaintiff appears to argue that administrative remedies were not available, the Court will not
dismiss his claims with prejudice or allow Defendants to file a pre-discovery motion for summary
judgment in this action. First, if administrative remedies were actually unavailable, then
dismissal with prejudice is not appropriate.
Second, the question of whether administrative remedies were available should not be
resolved by a motion for summary judgment in this action. The complaint in this action is subject
to dismissal because Plaintiff's administrative grievance was pending before the Superintendent at
the time the complaint was filed. Even if the Court were to find that administrative remedies
became unavailable when the corrections officer failed to deliver Plaintiff's appeal, there are no
allegations that administrative remedies were unavailable at the time that Plaintiff commenced
this action. Therefore, even if administrative remedies later became unavailable, Plaintiff still
cannot proceed with this action. See Pacheco v. Zurlo, No. 09-CV-1330, 2011 WL 1103102, *3
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(N.D.N.Y. Feb. 8, 2011) (citations omitted) ("It is also well settled that the grievance process
must be complete prior to the inmate filing suit in federal court. Completing the exhaustion
requirement after the federal action is filed is insufficient").
Accordingly, this action is dismissed without prejudice. If Plaintiff chooses to refile, his
complaint should include any allegations regarding the unavailability of administrative
grievances. The Court does not adopt Judge Dancks's recommendation that the Court order
CORC to render a decision within thirty days; such an order is no longer necessary given that
Plaintiff's appeal of the Superintendent's decision was never filed with CORC.
After carefully reviewing the parties' submissions, Magistrate Judge Dancks's Order and
Report-Recommendation, the applicable law and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Dancks's Order and Report-Recommendation (Dkt. No.
24) is ADOPTED as modified by this Order; and the Court further
ORDERS that Defendants' motion to dismiss (Dkt. No. 19) is GRANTED and this action
is DISMISSED without prejudice based on Plaintiff's failure to exhaust administrative
remedies; and the Court further
ORDERS that the Clerk of the Court enter judgement in Defendants' favor and close this
case; and the Court further
ORDERS that the Clerk of the Court serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.

Dated: September 28, 2017
Albany, New York

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