Zulu v. Barnhart et al
Filing
66
MEMORANDUM-DECISION AND ORDER: ORDERS that 63 Magistrate Judge Peebles' August 22, 2018 Report and Recommendation is ADOPTED in its entirety for the reasons set forth herein. ORDERS that 51 Defendants' motion for summary judgment is DENIED. ORDERS that the Clerk of the Court shall schedule an exhaustion hearing. Signed by U.S. District Judge Mae A. D'Agostino on 9/12/18. {order served via regular mail on plaintiff}(nas, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ARKIL LIONKING ZULU,
Plaintiff,
vs.
9:16-CV-1408
(MAD/DEP)
JOHNATHAN M. BARNHART, et al.,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
ARKIL LIONKING ZULU
96-A-4462
Elmira Correctional Facility
P.O. Box 500
Elmira, New York 14902
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants
MATTHEW P. REED, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983,
alleging that Defendants violated his constitutional rights under the Eighth Amendment. See Dkt.
No. 1. Plaintiff alleges that he was assaulted by Defendant corrections officers, causing injuries
to his face that required medical treatment. See id. After sua sponte review, the Court dismissed
Plaintiff's Eighth Amendment claim against Defendant Dischiavo. See Dkt. No. 8. Plaintiff's
Eighth Amendment excessive force claims against Defendants Barnhart, Muha, Hubal, Gebo, and
Leddick survived sua sponte review. See id.
On January 9, 2018, the remaining Defendants moved for summary judgment, alleging
that Plaintiff failed to exhaust his administrative remedies before commencing this action. See
Dkt. No. 51. In a Report and Recommendation dated August 22, 2018, Magistrate Judge Peebles
recommended that the Court deny Defendants' motion, and that an evidentiary hearing be
conducted to address the disputed issues; namely, the facts surrounding Plaintiff's alleged failure
to exhaust his administrative remedies. See Dkt. No. 63 at 2. Magistrate Judge Peebles found
that there are "squarely conflicting accounts" concerning whether Plaintiff attempted to file or
appeal multiple grievances connected to the events that gave rise to this action. See id. at 16. If
Plaintiff can establish that Defendants blocked his efforts to exhaust his administrative remedies,
then it is likely that the Court will hold that the grievance process was unavailable to Plaintiff,
and excuse the exhaustion requirement. See Ross v. Blake, 136 S. Ct. 1850, 1860 (2016);
Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016).
II. BACKGROUND
Plaintiff has been an inmate in the custody of DOCCS since July 1996. Dkt. No. 51-3 at
12. Plaintiff was previously confined within the Marcy Correctional Facility ("Marcy") between
September 12, 2014 and February 6, 2015, and from there was transferred into the Upstate
Correctional Facility ("Upstate"), arriving at the facility on February 9, 2015. Id. at 141; Dkt. No.
51-6 at 3.
Plaintiff's claims are centered on the alleged events of January 18, 2015, where he claims
that he was assaulted by corrections officers while incarcerated at Marcy. Dkt. No. 1 at 2-5.
Specifically, Plaintiff alleges that in the bathroom at the facility, and during subsequent
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transportation to the facility's special housing unit ("SHU"), he was repeatedly assaulted by
Defendants Barnhart, Muha, Hubal, Gebo, and Leddick. Dkt. No. 51-3 at 14-26. As a result of
these alleged assaults, Plaintiff was taken to St. Elizabeth's Hospital, in Utica, New York, where
he required multiple stitches for his wounds. Dkt. No. 51-3 at 27, 72, 104.
Plaintiff alleges that the first grievance he filed concerning these events was on January
22, 2015 at Marcy. Dkt. No. 51-3 at 106-07; Dkt. No. 59-5 at 1; Dkt. No. 59-7 at 2. Plaintiff
claims that thereafter he also submitted amendments to that grievance through the proper
channels on January 25, 2015, and February 1, 2015, also at Marcy. Dkt. No. 51-3 at 105,
108-10. After his transfer to Upstate, Plaintiff alleges that he filed a cover letter and a second
grievance concerning these events on February 15, 2015. Id. at 111-14. Copies of the
aforementioned grievances were also allegedly sent to various parties, including the Federal
Bureau of Investigation and the DOCCS Office of Special Investigation. Id. at 56-57, 112-14,
122-31.
On or about March 9, 2015, Plaintiff alleges that he sent a letter concerning the alleged
assaults to Marcy Superintendent Justin Thomas, stating that he was appealing the grievances he
had previously sent on January 22, 2015 and February 15, 2015. Dkt. No. 51-3 at 115.
Subsequently, Plaintiff alleges he sent three letters to the Director of the DOCCS Inmate
Grievance Program ("IGP"), Karen Bellamy. Id. at 116-19. The first, allegedly sent on April 4,
2015, referenced the March 9, 2015 letter and stated that Plaintiff wished to appeal the matter to
the Central Office Review Committee ("CORC"). Id. at 116-17. The second letter, allegedly sent
on May 16, 2015, referenced the same March 9, 2015 letter as the previous, and stated that
Plaintiff had yet to receive a response to his previous grievances, appeals, and letters. Id. at 11819. A third letter was sent on May 18, 2015, containing copies of the relevant grievances and
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appeals. Id. at 120. In response to this last letter, Plaintiff received a letter from Bellamy which
acknowledged receipt of Plaintiff's May 18, 2015 letter, returned his grievance materials to him,
and stated that the IGP did not allow for inmates to refer their grievances directly to the CORC.
Id. at 121.
Currently before the Court is Magistrate Judge Peebles' August 22, 2018 Report and
Recommendation. No objections have been filed.
III. DISCUSSION
When a party files specific objections to a magistrate judge's report-recommendation, 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." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections, or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the 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).
A court may grant a motion for summary judgment only if it 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 movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 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). Moreover, it is well-settled that a party opposing a
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motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
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 inferences in favor of the
nonmoving party. See Chambers, 43 F.3d 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 non-movant 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 Rule 56.1 statement; 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) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").
In reviewing 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). The Second Circuit has opined that the court
is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently
forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983)). However, this does not mean that a pro se litigant is excused
from following the procedural requirements of summary judgment. See id. (citing Showers v.
Eastmond, 00 CIV. 3725, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001)). Specifically, "a pro
se party's 'bald assertion,' completely unsupported by evidence" is not sufficient to overcome a
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motion for summary judgment. Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing
Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
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) (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.
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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 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 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)).
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).
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Although administrative remedies generally must be exhausted, a prisoner need not
exhaust remedies if they are not "available." Ross, 136 S. Ct. at 1855. "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, 829 F.3d at 123
(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).
In the present matter, the Court finds that Magistrate Judge Peebles correctly determined
that Defendants' motion for summary judgment should be denied. It is well established that the
exhaustion requirement can be excused where prison officials have prevented legitimate efforts
from the inmate to file a grievance. See Ross, 136 S. Ct. at 1860; Williams, 829 F.3d at 123.
Plaintiff has submitted evidence that he did in fact attempt to file and pursue grievances for this
matter but his attempts were frustrated by prison officials. See Dkt. No. 51-3 at 56-57, 105-31.
Defendants have also submitted evidence that Plaintiff has never actually filed grievances at all
concerning this matter. See Dkt. No. 51-2 at 2-4. This competing evidence necessitates an
evidentiary hearing on whether the PLRA's exhaustion requirement can be excused as
unavailable. See Ross, 136 S. Ct. at 1860; Williams, 829 F.3d at 123. Accordingly, there exists a
genuine dispute as to a material fact, preventing Defendants from being entitled to summary
judgment as a matter of law. This Court will schedule an evidentiary hearing to address the
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material issues of fact that are preventing resolution of the exhaustion defense as a matter of law.
See Messa v. Goord, 652 F.3d 305 (2d Cir. 2011).
IV. CONCLUSION
After carefully considering the entire record in this matter, the parties' submissions and the
applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Peebles' August 22, 2018 Report and Recommendation is
ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that Defendants' motion for summary judgment is DENIED; and the Court
further
ORDERS that the Clerk of the Court shall schedule an exhaustion hearing; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 12, 2018
Albany, New York
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