Scott v. Miller et al

Filing 56

ORDER: ORDERS that Magistrate Judge Baxter's June 25, 2018 Report-Recommendation is ADOPTED in its entirety. ORDERS that Defendants' converted motion for summary judgment (Dkt. No. 28 ) is GRANTED, and this action is DISMISSED without pr ejudice for failure to exhaust administrative remedies. ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 8/13/18. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
RANDOLPH R. SCOTT,
Plaintiff,
vs.

9:17-CV-00520
(MAD/ATB)

CHRISTOPHER MILLER, Superintendent,
Great Meadow Correctional Facility; P. BRADY,
Correctional Officer, Great Meadow Correctional
Facility; SGT. REYNOLDS, Sergeant, Great Meadow
Correctional Facility, formerly known as John Doe;
MEDICAL DEPARTMENT OF GREAT MEADOW
CORRECTIONAL FACILITY; DR. PAOLANO, Great
Meadow Correctional Facility; JANE DOE, Nurse
Administrator, Great Meadow Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

RANDOLPH R. SCOTT
15-B-2127
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

DAVID A. ROSENBERG, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER1

For a complete statement of the underlying facts in this case, the Court refers the parties
to Magistrate Judge Baxter's Report-Recommendation. See Dkt. No. 54.
1

Plaintiff filed a complaint on May 10, 2017 as a result of conduct which allegedly
occurred at Great Meadow Correctional Facility. See Dkt. No. 1. Plaintiff alleges violations of
42 U.S.C. § 1983, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101,
and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. Id. On June 29, 2017, Judge
D'Agostino issued a Memorandum-Decision and Order dismissing all of Plaintiff's claims except
(1) the ADA and RA claims against Superintendent Miller; (2) the Eighth Amendment excessive
force claims against Defendants Brady and Reynolds; and (3) the Eighth Amendment claims
against Defendant Miller for an alleged denial of recreation. See Dkt. No. 8; Dkt. No. 54 at 2. On
September 27, 2017, Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
See Dkt. No. 28. After reviewing the parties' submissions, Magistrate Judge Andrew T. Baxter
converted Defendants' motion to dismiss into a motion for summary judgment under Fed. R. Civ.
P. 56(a) and provided both parties with an opportunity to supplement their submissions. In a June
25, 2018 Report-Recommendation, Magistrate Judge Baxter recommended that the Court grant
Defendants' converted motion for summary judgment without prejudice and dismiss Plaintiff's
claims for failure to exhaust administrative remedies.
Currently before the Court is Magistrate Judge Baxter's June 25, 2018 ReportRecommendation, in which he recommended that the Court grant Defendants' converted motion
for summary judgment without prejudice and dismiss the claim for failure to exhaust
administrative remedies. See Dkt. No. 54.
When 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). While pro se litigants are given more
2

deference by the court, they must still provide competent evidence to support their claims to
survive a motion for summary judgment. See 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)). Therefore, a pro se litigant,
while still given some reasonable allowances, must follow the procedural requirements for
summary judgment. See Govan, 289 F. Supp. 2d at 295 (citing Showers v. Eastmond, 00 CIV.
3725, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001)). Furthermore, "a pro se party's 'bald
assertions,' completely unsupported by evidence" will not be enough to survive a motion for
summary judgment. Lee, 902 F. Supp. at 429 (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.
1991)).
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
motion for summary judgment may not simply rely on the assertions in its pleading. 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 (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 must be satisfied that
the citations to evidence in the record support the movant's assertions. See Giannullo v. City of
3

New York, 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").
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.
4

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 the 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 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).
5

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
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 the present matter, Plaintiff alleges that he filed a grievance dated April 27, 2017, titled
"Inmate Complaint Grievance" in response to alleged incidents occurring on April 25, 2017. See
Dkt. No. 1 at 25. Defendants note that the document is not stamped indicating it was received by
the IGRC and argue that the IGP at Great Meadow has no record of any such grievance ever
being filed. See Dkt. No. 1 at 25; Dkt. No. 54 at 8. As Magistrate Judge Baxter correctly found,

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.
2

6

the administrative remedy process was available to Plaintiff, as evidenced by the numerous
grievances filed. See Dkt. No. 54 at 10-11. Even if Plaintiff did in fact file the April 27, 2017
grievance, there was insufficient time for Plaintiff to exhaust his administrative remedies or for
Defendants to prevent Plaintiff from doing so before Plaintiff's complaint was filed on May 10,
2017. See id. Although Plaintiff filed a grievance on May 16, 2017, it was filed after Plaintiff's
complaint in this case. See Dkt. No. 1; Dkt. No. 54 at 10.
Plaintiff filed numerous grievances related to his ADA and RA claims on March 9, 2017,
March 21, 2017, April 17, 2017, April 18, 2017, April 19, 2017, June 15, 2017, and June 23,
2017. See Dkt. No. 54 at 11-12. Magistrate Judge Baxter correctly concluded that the June 15,
2017 and June 23, 2017 grievances are not relevant to exhaustion because they were filed after
Plaintiff initiated this action. See id. at 11.
The grievances dated April 18, 2017 and April 19, 2017 were consolidated with the March
9, 2017 grievance and appealed to the Superintendent who issued a response on May 25, 2017.
See id. at 12-13. Plaintiff then appealed the Superintendent's adverse decision which was
received by CORC on June 5, 2017. See id. at 13. Plaintiff filed his federal complaint on May
10, 2017, prior to the issuance of the Superintendent's decision dated May 25, 2017. See id.
Plaintiff appealed the Superintendent's decision regarding his March 21, 2017 grievance, which
was received by CORC on May 26, 2017. See id. Finally, Plaintiff appealed the Superintendent's
decision regarding his April 17, 2017 grievance, which was received by the CORC on May 31,
2017.
Based on the foregoing, the Court finds that Magistrate Judge Baxter correctly determined
that Plaintiff failed to complete the appeals process with respect to any of his grievances prior to
filing his federal complaint and, therefore, did not exhaust his administrative remedies. See id. at
7

14. Upon review of Magistrate Judge Baxter's thorough and well-reasoned ReportRecommendation, the Court hereby affirms and adopts the Report-Recommendation as the
opinion of the Court.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's June 25, 2018 Report-Recommendation is
ADOPTED in its entirety; and the Court further
ORDERS that Defendants' converted motion for summary judgment (Dkt. No. 28) is
GRANTED, and this action is DISMISSED without prejudice for failure to exhaust
administrative remedies; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 13, 2018
Albany, New York

8