Bell v. Napoli et al

Filing 63

MEMORANDUM DECISION AND ORDER. ORDERED, that the defendants' motion for summary judgment based on plaintiff's alleged failure to exhaust (Dkt. No. 48 ) is DENIED. Signed by US Magistrate Judge Andrew T. Baxter on 12/11/2018. (Memorandum Decision and Order served on plaintiff via regular mail). (rar)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

AMAR BELL,
Plaintiff,
v.

9:17-CV-850
(ATB)

J. NAPOLI et al.,
Defendants.
AMAR BELL, Plaintiff, pro se
AIMEE M. COWAN, Asst. Attorney General, for defendants.
ANDREW T. BAXTER
United States Magistrate Judge
MEMORANDUM DECISION and ORDER
On April 10, 2018, this matter was referred to me, for all proceedings and entry
of a final judgment, pursuant to the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P.
73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 38, 39).
Plaintiff has filed this civil rights complaint alleging that on April 4, 2017, at Marcy
Correctional Facility, defendants used excessive force against him in the course of
extracting plaintiff from his cell. (Complaint (“Compl.”) ¶ 6, Facts). Plaintiff originally
named four corrections officers: J. Napoli, A. Farina, R. Rugari, and M. Music. (Compl.
at 1). On September 18, 2017, defendant M. Music was dismissed by Order of District
Court Judge David N. Hurd. (Dkt. No. 11).
Presently before the court is a motion for summary judgment filed by the
remaining defendants, arguing only that plaintiff has failed to exhaust his
administrative remedies. (Dkt. No. 48). Plaintiff has responded in opposition to the

motion, and defendants have filed a reply. (Dkt. Nos. 52, 54). Plaintiff filed an
additional letter in support of his opposition. (Dkt. No. 55). For the following reasons,
this court agrees with plaintiff and will deny the defendants’ motion for summary
judgment.
DISCUSSION
I.

Summary Judgment
Summary judgment is appropriate where there exists no genuine issue of material

fact and, based on the undisputed facts, the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272–73 (2d Cir.
2006). “Only disputes over [“material”] facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no
rational finder of fact could find in favor of the non-moving party for a court to grant a
motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219,
1224 (2d Cir. 1994).
The moving party has the burden to show the absence of disputed material facts
by informing the court of portions of pleadings, depositions, and affidavits which
support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party satisfies its burden, the nonmoving party must move forward with specific facts
showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273.
In that context, the nonmoving party must do more than “simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.,

2

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in determining
whether there is a genuine issue of material fact, a court must resolve all ambiguities,
and draw all inferences, against the movant. See United States v. Diebold, Inc., 369
U.S. 654, 655 (1962); Salahuddin, 467 F.3d at 272.
II.

Exhaustion of Administrative Remedies
1.

Legal Standards

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. The exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and regardless of the
subject matter of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004)
(citing Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust their
administrative remedies even if they are seeking only money damages that are not
available in prison administrative proceedings. Id. at 675.
The failure to exhaust is an affirmative defense that must be raised by the
defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d
691, 695 (2d Cir. 2004). As an affirmative defense, it is the defendants’ burden to
establish that plaintiff failed to meet the exhaustion requirements. See, e.g., 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. Jones, 549 U.S. at 218-19 (citing Woodford

3

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. 548 U.S. at 90-103.
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”). N.Y.
Comp. Codes R. & Regs., tit. 7 §§ 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).
There is a special section for complaints of “harassment.” Id. § 701.8.
Harassment grievances are defined in another section of the regulations as “those
grievances that allege employee misconduct meant to annoy, intimidate, or harm an
inmate.” Id. § 701.2(e). Based on this definition, section 701.8 has been found
applicable to claims of excessive force by staff. Terry v. Hulse, No. 16-CV-252, 2018
WL 4682784, at *7 n.7 (S.D.N.Y. Sept. 28, 2018) (citing Torres v. Carry, 691 F. Supp.
2d 366, 369-70 (S.D.N.Y. 2009)).
Complaints of harassment are handled by an expedited procedure which provides
that such grievances are forwarded directly to the superintendent of the facility,1 after
which the inmate must appeal any negative determination to the CORC by filing a form
within seven calendar days of the inmate’s receipt of the Superintendent’s response. Id.
1

The regulation states that “[a]llegations of employee harassment are of particular concern to
the administrators of department facilities.” 7 N.Y.C.R.R. § 701.8 (emphasis added).
4

§§ 701.8(h) & (i), 701.5. The regulations then provide that “unless otherwise stipulated
in this section, all procedures, rights, and duties pertaining to the processing of other
grievances as set forth in section 701.5 of this Part shall be followed.” Id. § 701.8(i).
Thus, if a procedure is not described in 701.8, the inmate must refer to section 701.5.2
Until recently, the Second Circuit utilized a three-part inquiry to determine
whether an inmate had properly exhausted his administrative remedies. See Hemphill v.
State of New York, 380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked (1)
whether the administrative remedies were available to the inmate; (2) whether
defendants’ own actions inhibiting exhaustion estops them from raising the defense;
and (3) whether “special circumstances” justify the inmate’s failure to comply with the
exhaustion requirement. Id.
However, the Supreme Court has now made clear that courts may not excuse a
prisoner’s failure to exhaust because of “special circumstances.” Ross v. Blake, 136 S.
Ct. at 1857. “‘[M]andatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.’” Riles v. Buchanan, No. 15-3336pr, 2016 WL 4572321, at *2 (2d Cir. Sept. 1, 2016) (quoting Ross, __ U.S. at __, 136 S.
Ct. at 1857). Although Ross did away with the “special circumstances” exception, the
other two factors in Hemphill–availability and estoppel–are still valid. The court in
Ross referred to “availability” as a “textual exception” to mandatory exhaustion, and

2

The court also notes that the regulations governing the Inmate Grievance Program (“IGP”)
encourage the inmate to “resolve his/her complaints through the guidance and counseling unit, the
program area directly affected, or other existing channels (informal or formal) prior to submitting a
grievance.” Id. § 701.3(a) (Inmate's Responsibility).
5

“estoppel” has become one of the three factors in determining availability. Ross, __
U.S. at __, 136 S. Ct. at 1858. Courts evaluating whether an inmate has exhausted his
or her administrative remedies must focus on whether those remedies were “available”
to the inmate. Id.; see also Riles, 2016 WL 4572321 at *2. An administrative
procedure is “unavailable” when
(1) “it operates a simple dead end – with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates; (2) it is “so opaque that is [sic] becomes, practically
speaking, incapable of use”; or (3) “prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.”
Riles, supra (quoting Ross, __ U.S. at __, 136 S. Ct. at 1859-60).
In Ross, the Supreme Court gave examples of the circumstances under which
each of the above would apply. Ross, __ U.S. at __, 136 S. Ct. at 1859-60. The first
circumstance listed above involves a case in which the relevant “administrative
procedure” lacks the authority to provide “any” relief. Id. at 1859. The second
example is when the administrative procedure “exists,” but is so complicated or
“opaque” that no ordinary prisoner could “discern or navigate it.” Id. Finally,
administrative remedies are not available if prison administrators prevent inmates from
taking advantage of the grievance process by misleading or threatening them,
preventing their use of the administrative procedure. Id. at 1860. Thus, if a plaintiff
fails to exhaust his administrative remedies, the court must consider whether those
remedies were “available” to him.
In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir. 2016), the Second Circuit
considered whether administrative remedies had been “actually available” to an inmate
6

plaintiff under Ross, after the district court granted the defendants’ motion to dismiss
for failure to exhaust. The plaintiff alleged that, while housed in the special housing
unit (“SHU”), he drafted a grievance that he delivered to a correction officer to forward
to the grievance office on his behalf. Id. at 120-121. Approximately two weeks later,
the plaintiff was transferred to a different facility. Id. at 121. He never received a
response to his grievance, and alleged that it was never filed by the officer to whom he
had given it. It was undisputed that plaintiff never appealed the grievance. Id.
The defendants in Williams argued that even if the grievance was never filed, the
plaintiff was required to appeal it and complete the grievance process. Id. at 124. The
defendants relied on a Department of Corrections and Community Services (“DOCCS”)
regulation that provided that “an inmate may appeal a grievance ‘to the next step’ if he
does not receive a timely response.” Id. (quoting N.Y. Comp. Codes R. & Regs. tit. 7, §
701.6(g)(2)).
The Second Circuit rejected this argument and held that, for an inmate in the
plaintiff’s situation, the regulatory scheme was so “opaque” and “confusing” as to be
practically unavailable. Id. The Second Circuit found that DOCCS regulations “only
contemplate appeals of grievances that [have been] actually filed . . . [and] give no
guidance whatsoever to an inmate whose grievance was never filed.” Id. Thus,
Williams holds that “the process to appeal an unfiled and unanswered grievance is
prohibitively opaque, such that no inmate could actually make use of it.” Id. at 126.3

3

My summary of Williams tracks that of Magistrate Judge Stewart in Berman v. Durkin, No.
9:13-CV-136 (LEK/DJS), 2017 WL 1215814, at *8 (N.D.N.Y. Mar. 10, 2017), (Rep’t-Rec.), adopted,
2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017).
7

See also Medina v. Napoli, 725 F. App’x 51, 53-54 (2d Cir. 2018) (following Williams
in the context of a summary judgment motion).
2.

Application

In this case, unlike Williams, it is undisputed that plaintiff filed a grievance
regarding the alleged incident of excessive force. Defense counsel has filed the Case
History and Record of the excessive force grievance. (Cowan Decl. Ex. B) (Case
History and Record) (Dkt. No. 48-4). The case history indicates that, on April 18,
2017, plaintiff filed his grievance, claiming that the defendants used excessive force
against plaintiff. (Id.) The case history further indicates that, on the same day, the
grievance was “passed through” to the Superintendent. (Id. at 2). On May 16, 2017 the
grievance was “passed through” by the Superintendent to the CORC. (Id.) Under the
heading “Appeal to CORC,” the document states that “Grievant states he wishes to
appeal as passed through to CORC.” (Id.) This notation is dated May 18, 2017. (Id.)
Thus, plaintiff brought a grievance and expressed his desire to appeal the
grievance to both the Superintendent and the CORC, even though it is clear that no
investigation was done at either the IGRC or the Superintendent level.4 In fact,
defendants have attached a letter from plaintiff to the Grievance Clerk of the IGRC,
dated May 9, 2017, in which plaintiff observes that twenty days had passed without
response by the Superintendent, and without an extension request from the
Superintendent. Because of this, plaintiff stated that he wished to appeal his grievance
4

The court understands that the incident took place at Marcy, and at the time of the appeal,
plaintiff was at Five Points. Additionally, as stated above, complaints of employee “harassment” are
handled by an expedited process whereby the grievance is passed through the IGRC, directly to the
Superintendent. However, in this case, the grievance was additionally passed through to the CORC.
8

to the CORC. (Cowan Decl. Ex. B at 3). The last line of plaintiff’s letter specifically
states “I want my appeal sent on to the CORC.” The plaintiff’s letter is stamped
“received” by the IGRC on May 12, 2017, and defendants do not dispute this fact. The
letter also contains the initials “JB,” with May 18, 2017, written next to the initials.
(Id.) May 18, 2017 is the date that the other facility documents, and the receipt that
plaintiff was sent in June of 2018, indicate that the grievance was “passed through” to
the CORC. (Cowan Decl. Ex. B at 2; Seguin Decl. Ex. B at 1). The CORC received
plaintiff’s appeal on May 26, 2017. (Seguin Decl. Ex. A at 2).
It is also undisputed that the CORC had not rendered a decision when plaintiff
filled this action on August 4, 2017, nor had the CORC rendered a decision by July 19,
2018, when Rachel Seguin signed her declaration, which has been filed as an exhibit in
this case. (Seguin Decl. ¶ 10) (Dkt. No. 48-5). Rachel Seguin is the Assistant Director
of the IGP, whose duties include being the custodian of records maintained by the
CORC. (Seguin Decl. ¶¶ 1, 2). Although the CORC documents submitted by Rachel
Seguin indicate that the “Sched Date” for the grievance was August 8, 2018, there is no
indication, and defendants do not argue, that the grievance was ever addressed. (Seguin
Decl. Ex. A at 1).
Thus, the CORC has failed to issue a decision or even investigate plaintiff’s
grievance from May 26, 2017 until at least August 8, 2018, and there is no indication
that the CORC has ever addressed the grievance, even to the present day.5 Although
5

The court also notes that, though Assistant Director Seguin states that plaintiff’s grievance
was “denied,” the grievance documents state that the grievance was “passed through” to the
Superintendent and then “passed through” to the CORC. (Cowan Decl. Ex. B at 2). That notation is
not a denial because the grievance was never investigated.
9

Assistant Director Seguin states that plaintiff was sent a “Receipt of Appeal” on July 6,
2018,6 it is clear from that receipt, that plaintiff’s appeal was passed through to the
CORC on May 18, 2017, and the CORC received plaintiff’s appeal on May 26, 2017.
(Seguin Decl. Ex. B).
Defendants argue that plaintiff did not exhaust his administrative remedies
because he filed this federal action before the CORC issued a decision on his
administrative appeal. Plaintiff does not dispute that the CORC has failed to issue a
decision. This court has recommended dismissal for failure to exhaust when a plaintiff
files his federal lawsuit before the CORC has decided plaintiff’s appeal. See Scott v.
Miller, No. 9:17-CV-520 (MAD/ATB) (Dkt. No. 54) (Rep’t Rec. (6/25/18)) (adopted,
Dkt. No. 56 (8/13/18). However, often, in such cases, the federal action was filed
before the deadline for the CORC decision. Id. (Rep’t Rec. at 9-10).
In this case, plaintiff waited from May 26, 2017 until August 4, 2017, with no
response from the CORC, to file this action. The CORC has thirty days to decide an
inmate’s appeal or ask for an extension, which may only be granted with the “written
consent of the grievant.” 7 N.Y.C.R.R. §§ 701.5(d)(3); 701.6(g)(2). The regulations
provide that if there is no timely response, for either the IGRC or the Superintendent’s
appeal, plaintiff may appeal to the “next step.”7 Williams v. Priatno, 829 F.3d 118, 124
(2d Cir. 2016) (citing 7 NYCRR §§ 701.6(g)(2), 701.8(g)). If the CORC received
plaintiff’s appeal on May 26, 2017, unless there was an extension of time, a decision
6

(Seguin Decl. ¶ 9).

7

Section 701.6(g)(2) specifically provides that, “[a]bsent [an] extension, matters not decided
within the time limits may be appealed to the next step.”
10

should have been rendered by June 26, 2017. Although the regulations specifically
discuss what the “next step” is in cases of IGRC and Superintendent’s review, it is less
clear whether the language applies to the CORC, and if so, what the “next step is.”
In Williams, the court found that the administrative remedies were “unavailable”
because the regulations did not explain how an inmate should appeal a grievance that
was never filed, because the time limits provided in the regulations for “appeal to the
next step” did not apply when a grievance was never filed. In this case, there is no
specific indication what the inmate must do if the CORC (the last step) received the
appeal, but failed to render a timely decision, or any decision. The regulations do
provide that if the plaintiff does not get a “receipt” from the CORC within 45 days of
the date he filed his appeal, he should contact the IGP to make sure that his appeal was
“received.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). Contacting the IGP could afford the CORC
the opportunity to obtain plaintiff’s appeal if the appeal had somehow failed to reach
the CORC.
In Gizewski v. New York State Dep’t of Corr. & Cmty. Supervision, No. 9:14-CV124, 2016 WL 3661434, at *13 (N.D.N.Y July 5, 2016), Chief U.S. District Judge
Glenn Suddaby held that plaintiff did not exhaust his administrative remedies because
he failed to take further action under section 701.5(d)(3)(i) when he did not receive
written notice of receipt by the CORC within 45 days of filing his appeal.8 In Gizewski,
the CORC did not receive the plaintiff’s appeal for five months due to a “clerical error.”

8

The court notes that, unlike this case, in Gizewski, if plaintiff had contacted the IGP after 45
days, it would have been determined that the CORC had not received the appeal, and the defendants
would have had the opportunity to cure the problem.
11

Id.
Although the Second Circuit affirmed Judge Suddaby’s dismissal of Gizewski’s
complaint, the Second Circuit did not specifically decide the issue of inordinate delay
by the CORC. Gizewski v. New York State Dep’t of Corr. & Cmty. Supervision, 692 F.
App’x 668 (2d Cir. 2017). The Second Circuit stated that “even if we assume arguendo
that the long delay occasioned in part by clerical error constituted constructive denial,”
there was no genuine issue of material fact because the issues raised on that final
administrative appeal to CORC pertained to requests for items that had already been
provided to the plaintiff as part of a reasonable accommodation. Id. at 670.
In High v. Switz, No. 9:17-CV-1067, 2018 WL 3736794 (N.D.N.Y. July 9, 2018),
(Rep’t-Rec.), adopted, 2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018), Magistrate Judge
Daniel Stewart distinguished Gizewski and cited a split in the Second Circuit regarding
whether a failure to respond by the CORC constitutes unavailablity under Ross v.
Blake. 2018 WL 3736794 at *4-5 (citing cases). Magistrate Judge Stewart cited
Williams and found that
[s]imilarly, here, while the regulations at the preliminary stages
contemplate a next step for a grievant to take in the event he does not
receive a response, there is no direction on any action a grievant may take
if he does not receive a response from CORC. Indeed, “the regulations
give no guidance whatsoever” regarding what a grievant should do in this
circumstance.
Id. at *5 (quoting Williams, 829 F.3d at 126). Magistrate Judge Stewart found that
High’s failure to exhaust aligned more with Williams than with Gizewski, because High
had taken all the steps that he could regarding the status of his appeal, the CORC
continued to ignore him, and although the CORC ultimately decided the appeal, it was a
12

year later, “after the motion to dismiss had been filed.” Id. Judge Stewart made it clear
that under “the hopefully unique facts of [that] case,” plaintiff’s failure to exhaust
would be excused.
In Rodriguez v. Reppert, No. 14-CV-671, 2016 WL 6993383, at *2 (W.D.N.Y.
Nov. 30, 2016), the court found that plaintiff’s failure to exhaust should be excused in a
situation somewhat similar to that in this case. In Rodriguez, plaintiff filed his appeal
with the CORC, but the CORC did not decide the appeal within the thirty-day period
required by DOCCS regulations. Id. at *1. Plaintiff in Rodriguez filed his complaint
before the CORC issued a decision, and the CORC ultimately decided the plaintiff’s
appeal two weeks after the plaintiff filed his federal complaint, but nearly two months
after the DOCCS regulations’ requirement. Id. Magistrate Judge Roemer,
recommended denying the motion for summary judgment, finding that the CORC’s
failure to decide the appeal, together with the absence of any mechanism to ask the
CORC to issue a decision after thirty days elapsed, meant that the inmate’s remedies
were “unavailable.” Id.
District Judge Richard Arcara adopted the Magistrate Judge Roemer’s
recommendation in Rogriguez, citing Ross and Priatno, stating that after the CORC
neglected to decide Rodriguez’s appeals within thirty days, administrative remedies
were no longer available to him, and his only option was to file the federal action. Id.
There was simply no more that the plaintiff could do to force the CORC to follow its
own deadline for deciding an appeal. Id. The defendants belatedly raised the argument
that the plaintiff should have contacted the IGP supervisor if he did not receive written

13

notice of the receipt of the appeal within 45 days. Id. at 2. The court did not consider
the argument because it was not raised before the Magistrate Judge.9 Id. The court cited
Williams’s holding that administrative remedies are “opaque,” and therefore
“unavailable - when those remedies do not address the situation in which a prisoner
finds himself.” Id. at 3. The regulations do not address a situation in which the CORC
fails to render a decision within the deadline after receiving an appeal.10
In this case, there is no question that plaintiff’s appeal was received by the
CORC in May of 2017; however, it was neither investigated, nor decided. There is no
evidence in the record of plaintiff contacting the IGP after 45 days,11 although plaintiff
testified at his deposition that he wrote to the CORC “multiple times.” (Pl.’s Dep. at
133). Contacting the IGP would not have changed the situation in this case because the

9

The court must point out that defendants in this case argued only that plaintiff failed to
exhaust because he did not wait for the CORC’s decision. They did not raise the argument that
plaintiff should have written to the IGP supervisor if he did not receive a receipt for his appeal.
10

Most of the cases cited by defendants predate Ross, and defendants’ argument is based upon
the absence of “special circumstances,” which is no longer the appropriate analysis after Ross.
However, defendants do cite a recent decision in their reply (Dkt. No. 54), written by Magistrate Judge
Christian Hummel, in which he found that delay in the CORC decision does not constitute
“unavailability.” See Berkley v. Ware, No. 9:16-CV-1326, 2018 WL 3736791 (N.D.N.Y. July 6, 2018)
(Rep’t-Rec.), adopted 2018 WL 3730173 (N.D.N.Y. Aug. 6, 2018). The facts in Berkley are
distinguishable from this case. Plaintiff in Berkley filed his federal action six days before the CORC
ruled on his grievance, and the delay was five months. Id. at *6. Judge Hummel specifically
distinguished a case in which the court held that administrative remedies were no longer “available” to
a plaintiff who had been awaiting a decision from the CORC “for more than two years.” Id. (citing
Henderson v. Annucci, No. 14-CV-445A, 2016 WL 3039687, at *10 (W.D.N.Y. Mar. 14, 2016)). This
facts in this case are more similar to Henderson than to Berkley in that the CORC has still not decided
plaintiff Bell’s grievance appeal more than 18 months after it received the appeal.
11

Contacting the IGP to determine whether an appeal was received is not an “appeal.” The IGP
would only inform the plaintiff whether the appeal was received. If the appeal was not received, then
presumably the plaintiff would resubmit his appeal. If the appeal was received, there is no further
action contemplated.
14

response to plaintiff’s inquiry would simply have been that the CORC did receive the
appeal. The 30 days within which the CORC had to answer plaintiff’s grievance would
already have run without extension. That is essentially what happened in June of 2018
when plaintiff was told that the CORC received his appeal in May of 2017, and nothing
further was done. Although according to the documents the grievance was “sched” for
August 8, 2018, there is no indication that an extension was requested or consented to
by the plaintiff. The regulations contain no instructions on how an inmate should
proceed if the CORC continues to ignore him after he has been informed that his appeal
was “received.”12
The “next step” after the CORC may be a federal action. However, if the “next
step” language does not apply to the CORC’s decision, an inmate who never receives a
decision from the CORC, after the appeal is filed, will be unable to exhaust his
administrative remedies. In addition by ignoring an inmate’s appeal, as it appears to
have done in this case, the CORC could delay a plaintiff’s exhaustion indefinitely,

12

Plaintiff’s deposition on this subject was unclear. Plaintiff stated that he appealed to the
CORC, but after he filed the lawsuit, he received the printout of his grievance history, indicating that
the appeal was sent to the CORC on May 18, 2017. (Pl.’s Dep. at 131-32) (Dkt. No. 48-3). Plaintiff
states that he never got a receipt for the appeal, and he speculated that an IGP employee “falsified it
and said she sent it and never sent it.” (Id. at 132). It is unclear what plaintiff means by that statement,
but he then states that “a couple of weeks later . . . , she sends me the appeal form from the
Superintendent, with the current date on it. (Id.) Plaintiff was confused because the CORC was sent
his appeal approximately one year earlier. (Id. at 133). Plaintiff also claims that he wrote to the CORC
“multiple times,” although there is no indication of any of these letters in the records. (Id. at 133).
Defense counsel asked plaintiff if he filled out the appeal form that he was sent “in the last few weeks”
before the deposition. (Id. at 134). Plaintiff first states that he filled out the appeal, but then hesitated,
and wondered why he would fill out the form when the appeal was filed a year before with the CORC.
(Id. at 135). It appears that DOCCS began sending plaintiff appeal forms, and “scheduling” the
grievance after this lawsuit was filed. Although the court does not find that anyone “falsified”
documents, it is clear that plaintiff’s appeal was ignored for whatever reason.
15

making the remedy “unavailable” by thwarting plaintiff’s attempt to exhaust.13 See
Ross, 136 S. Ct. at 1860 (administrative remedies are unavailable when “prison
administrators thwart inmates from taking advantage of the grievance process by
machination, misrepresentation, or intimidation”). In this case, unlike the plaintiff in
Williams, plaintiff tried to appeal his grievance to the “next step,” after the
Superintendent level, but was not able to do so because the CORC appears to have
ignored his grievance until after he filed the lawsuit, and it has apparently continued to
ignore his grievance to this day. Thus, I find that plaintiff’s failure to exhaust may be
excused, and defendants’ motion for summary judgment is denied.
This court must point out that my finding that the administrative remedy was
“unavailable,” and that plaintiff’s failure to exhaust should be excused, is based upon a
review of the specific facts in this case.
WHEREFORE, based on the findings above, it is
ORDERED, that the defendants’ motion for summary judgment based on
plaintiff’s alleged failure to exhaust (Dkt. No. 48) is DENIED.
Dated: December 11, 2018

13

The court must point out that Ross uses the term “prison administrators” in its analysis of
unavailability, clarifying that it does not have to be one of the defendants who prevents plaintiff from
using or completing the grievance process. 136 S. Ct. at 1860.
16