Galberth v. Washington et al
OPINION AND ORDER re: 131 MOTION for Summary Judgment . filed by Washington. For the reasons outlined above, Defendant's motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 7/31/2017) Copies Mailed By Chambers. (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #: _________________
DATE FILED: July 31, 2017
14 Civ. 691 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Gregory Galberth contends that Defendant Captain Washington
showed deliberate indifference to Plaintiff’s medical needs during Plaintiff’s
brief period of incarceration at Rikers Island in April 2011. Defendant has
moved for summary judgment, contending that there is no genuine dispute of
material fact that Plaintiff was required to, and did not, fully exhaust the
available administrative remedies as required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e. For the reasons that follow, the Court agrees
and grants Defendant’s motion.
Plaintiff’s Treatment at Rikers Island
“Plaintiff was incarcerated at Rikers Island from April 4, 2011, until April
20, 2011.” (Def. 56.1 ¶ 20). Plaintiff claims that upon his arrival at the facility,
For convenience, the Court will refer to Defendant’s memorandum of law in support of
her motion for summary judgment as “Def. Br.” (Dkt. #135), Plaintiff’s opposition to
he “ask[ed] to see mental health [professionals] but was ignored by many shift
officers.” (AC 3).
On or around April 9, 2011, Plaintiff threatened and/or attempted to
hang himself. (Def. 56.1 ¶ 19; Def. Br. 2). Plaintiff alleges that afterward, he
Defendant’s motion as “Pl. Opp.” (Dkt. #147), and Defendant’s reply memorandum of
law in further support of her motion as “Def. Reply” (Dkt. #159). The materials Plaintiff
filed to supplement his opposition will be referred to “Pl. Supp’l Opp.” Defendant’s
memorandum in reply to this supplemental filing will be referred to as “Def. Supp’l
Reply” (Dkt. #165).
The facts in this Opinion are drawn from the Amended Complaint (the “AC” (Dkt. #45))
and the parties’ submissions in connection with Defendant’s motion for summary
judgment, including Defendant’s Local Rule 56.1 Statement (“Def. 56.1” (Dkt. #134));
the Supplement thereto (“Def. Supp’l 56.1” (Dkt. #166)); and the Declaration of
Defendant’s counsel Daniel Oliner (“Oliner Decl.” (Dkt. #133)). The exhibits attached to
defense counsel’s declaration will be referred to by their letter designation, e.g., “Oliner
Decl., Ex. [ ].” When the Court cites a particular page in one of Plaintiff’s submissions,
it is citing to the page numbers assigned by the Court’s electronic case filing (or “ECF”)
Citations to Defendant’s Local Rule 56.1 Statement incorporate by reference the
documents cited therein. Generally speaking, where facts stated in a party’s Local Rule
56.1 Statement are supported by testimonial or documentary evidence, and denied with
only a conclusory statement by the other party, the Court finds such facts to be true.
See Local Rule 56.1(c), (d); Biberaj v. Pritchard Indus., Inc., 859 F. Supp. 2d 549, 553
n.3 (S.D.N.Y. 2012) (“A nonmoving party’s failure to respond to a Rule 56.1 statement
permits the court to conclude that the facts asserted in the statement are uncontested
and admissible.” (internal quotation mark omitted) (quoting T.Y. v. N.Y.C. Dep’t of Educ.,
584 F.3d 412, 418 (2d Cir. 2009))).
In this case, Plaintiff did not oppose properly Defendant’s Rule 56.1 Statement despite
being provided with the guidance afforded by the “Notice to Pro Se Litigant” required
under Local Civil Rule 56.2. (See Dkt. #132). But “[w]hile pro se litigants are ‘not
excused from meeting the requirements of Local Rule 56.1,’ the Court nonetheless
‘retains some discretion to consider the substance of the [pro se party’s] arguments,
where actually supported by evidentiary submissions.’” Betts v. Rodriquez, No. 15 Civ.
3836 (JPO), 2017 WL 2124443, at *1 n.1 (S.D.N.Y. May 15, 2017) (quoting Wali v. One
Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009)) (citing Holtz v. Rockefeller & Co.,
258 F.3d 62, 73 (2d Cir. 2001) (“A district court has broad discretion to determine
whether to overlook a party’s failure to comply with local court rules” and may opt to
conduct an assiduous review of the record even where one of the parties has failed to
file a Rule 56.1 statement.)). Here, because Plaintiff is proceeding pro se, “this Court
has conducted an assiduous review of the record to determine if there is any evidentiary
support for his assertions of fact that do not cite to evidence and to determine if there
are any other material issues of fact.” Betts, 2017 WL 2124443, at *1 n.1 (internal
quotation marks omitted) (quoting Geldzahler v. N.Y. Med. Coll., 746 F. Supp. 2d 618,
620 n.1 (S.D.N.Y. 2010)); see also, e.g., Anderson v. City of New Rochelle, No. 10 Civ.
4941 (ER), 2012 WL 3957742, at *7 (S.D.N.Y. Sept. 4, 2012).
requested help from Defendant as she walked by his cell, but Defendant did
not take Plaintiff to see a mental health provider. (AC 9; Def. Br. 2; Pl. Br. 3233). Later, when Plaintiff was being escorted to the “bull pen,” he
encountered Defendant in the hallway, and tried to explain what had happened
earlier in the day. (AC 9; Pl. Br. 32-33). Defendant allegedly told Plaintiff that
no one had called her about the situation. (AC 9; Pl. Br. 32-33). Plaintiff
waited overnight in the “bull pen” with no bed and no pillow. (AC 9; Pl.
Br. 32-33). In the morning, Plaintiff was taken to a “mental observation
trailer,” where he saw a “doctor for mental health.” (AC 9; see also Pl. Br. 3233).
Beyond this visit, during Plaintiff’s 16-day stay at Rikers Island, “at least
13 different Correctional Health Services Staff members examined [P]laintiff.”
(Def. 56.1 ¶ 22 (citing Oliner Decl., Ex. I)). The parties dispute the results of
these examinations, and Plaintiff’s mental health condition during this time.
The nub of the dispute is the following: The parties agree that Plaintiff did not
file any grievances related to any of the claims Plaintiff brought in this case.
(Def. 56.1 ¶ 10; AC 4). They dispute, however, the reasons for that inaction.
The Court will consider the parties’ positions, and the record support therefor,
in the sections that follow.
According to Defendant, Plaintiff’s medical records “indicate that he was
not diagnosed with psychosis” at any of his many examinations, nor indeed at
any point during his 16 days at Rikers Island. (Def. 56.1 ¶ 23). Moreover, “no
clinicians observed plaintiff experiencing any perceptual disturbances at any
point during those 16 days.” (Id. at ¶ 24). And none of Plaintiff’s medical
records indicates that “he experienced any psychiatric decompensation.” (Id. at
Rather, Defendant argues, “Plaintiff’s medical records explicitly indicate
that clinicians observed no evidence/symptoms of psychosis during his
examinations on April 10, 11, 12, and 17.” (Def. 56.1 ¶ 25). “Plaintiff’s Global
Assessment of Functioning (‘GAF’) score was diagnosed on April 8, 11, and 14,
and assessed as being 60, 55-60, and, 55 on those dates, respectively, by three
different clinicians.” (Id. at ¶ 28). 2 Plaintiff was found to be alert and oriented.
(Id. at ¶ 27). Plaintiff was “aware of his impending transfer to a DOCCS facility
upstate” (id. at ¶ 31); his medication needs and schedule (id. at ¶¶ 32-33, 37);
and his medical history (id. at ¶¶ 34-36).
Moreover, on April 6, 2011, “[P]laintiff appeared before the Hon. Lewis
Bart Stone, Justice of the Supreme Court, New York County, for a resentencing
hearing.” (Def. 56.1 ¶ 38; see also id. at ¶¶ 39-44). At the hearing, “Plaintiff’s
counsel did not raise the issue of plaintiff’s competency/incompetency,” and
Plaintiff “chose to speak,” “spoke intelligibly,” and raised issues “pertaining to
the potential time he would serve.” (Def. 56.1 ¶¶ 41-44).
The Court understands that “[a]ccording to the version of the Diagnostic and Statistical
Manual of Mental Disorders applicable in April 2011 — the DSM-IV-TR — a GAF score
from 51 to 60 indicate[s] moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, work or school
functioning (e.g. few friends, conflicts with peers or co-workers).” (Def. 56.1 ¶ 29 (citing
Oliner Decl., Ex. J)).
Plaintiff’s Account 3
According to Plaintiff, Defendant’s depiction of Plaintiff’s medical records
and mental state during his April 2011 confinement at Rikers Island is
incorrect and “belied by the record.” (Pl. Br. 7). Instead, Plaintiff believes that
his medical records show that his “mental state of mind was consistently
depressed” and that he suffered from post-traumatic stress disorder (“PTSD”)
during his stay at Rikers Island. (Id. at 18). Plaintiff indicates that “he
consistently suffered from depressive disorder PTSD with symptoms of a brief
psychotic disorder with symptoms also related to psychosis.” (Id. at 19). And
he contends that the existence of these conditions is proven by the records of
the consultations performed by doctors Alan Kaye and Juan Medina, as well as
by Licensed Master Social Worker Laura Van Wyk.
According to Plaintiff, Dr. Kaye’s records indicate Plaintiff was
experiencing symptoms of psychosis and a perceptual disturbance. (Pl. Br. 7;
Pl. Supp’l Opp. 25 (“[Plaintiff] was diagnosed with having psychosis
symptom[s] ... by Dr. Kay[e].”)). Plaintiff’s medical records purportedly detail
Plaintiff’s history of auditory hallucinations and indicate that Plaintiff was
suffering from delusional thinking and psychosis. (Pl. Br. 7-8; Pl. Supp’l
Opp. 18-20). Dr. Kaye also documented that Plaintiff “was suffering from
intrusive thoughts,” a depressive disorder, an anxiety disorder, and a posttraumatic stress disorder, and was hypervigilant, delusional, and exhibiting
Except where otherwise noted, the Court will omit for the sake of clarity from its
quotations to Plaintiff’s briefing any capitalizations, emphases, misspellings, and
symptoms of hallucinations. (Pl. Br. 9). Plaintiff had been abused, and felt
afraid as a result, because he is “effeminate,” “feels female at times,” and
identifies as “transgender.” (Id. at 10).
Plaintiff further claims that the records kept by Dr. Juan Medina from
Plaintiff’s visit on April 10, 2011, demonstrate that Plaintiff “was agitated” and
“smashing his belonging[s] against [the] wall.” (Pl. Br. 10). Plaintiff was placed
in mental observation housing that was used for those at severe risk for selfharm and kept in this housing until April 20, 2011. (Id. at 11).
Plaintiff also sources his argument to Ms. Van Wyk’s notes, which
indicate that on April 14, 2011, Plaintiff reported experiencing auditory
hallucinations and delusional flashbacks, which were causing him to feel
depressed and irritable. (Pl. Br. 11-12, 14). According to Plaintiff, Ms. Van
Wyk believed Plaintiff would have serious symptoms, a serious impairment, or
functional limitation if he were not treated with medication and psychiatric
rehabilitation. (Id. at 17; Pl. Supp’l Opp. 23). And she purportedly indicated
that Plaintiff’s “functioning was concerning” and that Plaintiff was suffering
from “serious impairment [and was] functionally limited by mental illness.” (Pl.
Br. 17; see also Pl. Supp’l Opp. 23).
To the extent that his medical records indicate the contrary view — that
Plaintiff was not psychotic and delusional during his time at Rikers Island —
Plaintiff asserts that his “clinical records are contradictory” (Pl. Br. 14; see also
id. at 15-16), “inaccurate[,] and misleading” (id. at 23; see also id. at 30).
Plaintiff indicates that most of the clinicians who saw him did not fully assess
him, and as such “could not make an adequate judgment” with regard to
“Plaintiff’s overall mental state of mind in [the] 2-5 min[ute] assessment” they
performed in their single consultation with Plaintiff. (Pl. Supp’l Opp. 6).
Indeed, Plaintiff observes, most of the health services staff members Plaintiff
saw “were not related to mental health staff clinicians and did not make mental
health diagnos[es].” (Id. at 15). In Plaintiff’s estimation, only Dr. Kaye met
with Plaintiff for a sufficiently long period, accurately diagnosed him with
several mental disorders, and noted evidence of delusional thinking and
Plaintiff’s report of hallucinations. (Id. at 6-7). Plaintiff indicates that there
was no mental health assessment performed on April 11, 2011. (Pl. Br. 29).
And he disputes the GAF score that was assessed on April 14, 2011. (Pl.
Supp’l Opp. 22-23).
Given the mental and emotional issues he describes in his court
submissions, “filing a grievance never entered Plaintiff[’s] [mind],” which was
flooded with “consistent paranoia[,] depressive feelings[,]” fear, anxiety, and
PTSD. (Pl. Br. 21-22; see also Pl. Supp’l Opp. 9 (“[Plaintiff’s] emotional feelings
became to[o] much to handle.”)). Plaintiff asserts that “he did not file a
grievance” because he “was mentally unstable at the time,” and “suffering from
a mixed mental illness plus PTSD,” which caused him to experience
“flashback[s] to traumatic events.” (Pl. Supp’l Opp. 11; see also id. at 33).
“Plaintiff was unaware of the grievance procedure due to the fact he was not
mentally stable and he became mentally unstable when mental illness invaded
his mind to the point he began to hear voice[s].” (Id. at 13). Plaintiff believes
he was not “perceiving things very well” given his “mixed disturbance of
emotions,” “flashbacks[,] delusions[,] and hallucinations.” (Pl. Br. 15).
Moreover, “no one told [Plaintiff] that he should file a grievance.” (Pl. Supp’l
Finally, Plaintiff argues that no conclusions can be drawn regarding his
competency from his appearance and conduct at the April 6, 2011 resentencing
proceeding. (Pl. Br. 5-6; Pl. Supp’l Opp. 26-32). Because Plaintiff’s
competency was not at issue at the proceeding, he reasons that the proceeding
is entirely irrelevant to this litigation. (Pl. Br. 5-6; Pl. Supp’l Opp. 26-32).
Relevant Grievance Procedures
“The New York City Department of Correction has an established
administrative grievance process — the Inmate Grievance and Request Program
(‘IGRP’).” (Def. 56.1 ¶ 3). “The version of the IGRP that was in effect in April
2011 was No. 3375R-A,” the first step of which required an inmate “to submit a
complaint to the Inmate Grievance Resolution Committee within 10 business
days from the date the alleged issue took place.” (Id. at ¶¶ 4-5 (citing Oliner
Decl., Ex. C)). The IGRP ensured that inmates seeking to grieve who were
“disabled or expressed difficulty in communicating and/or understanding,” or
who “did not speak or write English sufficiently” were afforded special
assistance with the grievance process. (Id. at ¶¶ 6-7). And it permitted
extensions of the 10-day submission time where an inmate demonstrated that
he “was prevented by circumstances beyond his ... control from submitting the
request within the established time frame.” (Oliner Decl., Ex. C, at
Defendant claims that when Plaintiff was admitted to Rikers Island, he
was given a copy of an “Inmate Handbook.” (Def. 56.1 ¶ 8 (citing Oliner Dec.,
Ex. D)). And indeed, on April 4, 2011, Plaintiff signed an “Inmate Rule Book
and Inmate Handbook Receipt” indicating that he had received Rule Book
#228369 and Handbook #228309. (Oliner Dec., Ex. D). The handbook
“describe[s] the grievance procedures[,] including the assistance procedure in
the event an inmate, inter alia, suffered from a disability.” (Def. 56.1 ¶ 9 (citing
Oliner Decl., Ex. E)). Plaintiff disputes the fact that he was given an Inmate
Handbook, on the basis that “there’s no evidence provided that he received”
one. (Pl. Supp’l Opp. 10-11).
On January 27, 2014, Plaintiff initiated this action against employees of
two different correctional facilities in this District, Rikers Island and Downstate
Correctional Facility. (Dkt. #2). Initially, Plaintiff identified these employees in
his complaint (the “Complaint”) as “Captain Washington,” “Ms. Hurnst,” and
various John and Jane Does. (Id.). After this Court issued an order pursuant
to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the New York
City Law Department (the “Law Department”) sent Plaintiff additional
information about the individuals involved in his case. In response to that
information, Plaintiff filed an amended complaint that added “C.O. Soto” and
the City of New York as defendants (the “AC” (Dkt. #45)). In brief, the AC
alleged that the defendants showed deliberate indifference to Plaintiff’s medical
needs and/or used excessive force against him. (Id.).
On August 24, 2015, Defendants Washington and the City of New York
moved to dismiss many of Plaintiff’s claims. (Dkt. #82). On March 29, 2016,
the Court granted the motion in part and dismissed Plaintiff’s claims against
Ms. Hurnst, C.O. Soto, Ms. Green, the Doe Defendants, and the City of New
York (the “March 2016 Opinion” (Dkt. #112)). See generally Galberth v.
Washington, No. 14 Civ. 691 (KPF), 2016 WL 1255738 (S.D.N.Y. Mar. 29,
2016). The Court found that Plaintiff’s Claims against C.O. Soto, Ms. Green,
the Doe Defendants, and the City of New York were untimely; and that Plaintiff
had failed to state a deliberate-indifference claim against Ms. Hurnst. Id.
However, the Court denied Defendants’ motion with regard to Plaintiff’s claim
against Defendant Washington, leaving Plaintiff with a single viable deliberateindifference claim. Id.
As directed by the March 2016 Opinion, the parties proceeded with
limited discovery on the issue of Plaintiff’s ability to file a grievance during the
relevant time periods. (See Def. Br. 1). Because Defendant believed “the
undisputed evidence shows that [P]laintiff was capable of — but did not —
fully exhaust the available administrative remedies, as required by the [PLRA],
Defendant ... move[d] for summary judgment on [P]laintiff’s claim against
[Defendant]” on November 15, 2016. (Id.; see also Dkt. #131-34, 136-37). The
Court received Plaintiff’s opposition to Defendant’s motion on February 16,
2017 (Dkt. #146), which opposition was dated January 31, 2017 (Dkt. #147).
The motion was fully briefed when Defendant filed her reply in further support
of her motion on April 28, 2017. (Dkt. #159).
However, because Plaintiff is incarcerated and proceeding pro se, the
Court also accepted a package of materials dated May 2, 2017, as a
supplement to Plaintiff’s original opposition. (Dkt. #160). Defendant was given
the opportunity to file a sur-reply (id.), which she filed on June 2, 2017 (Dkt.
Much of the parties’ briefing was filed under seal, because it contained
Plaintiff’s sensitive medical information.
Rule 56 Motions for Summary Judgment
Rule 56(a) provides that a “court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Thus,
“[a] motion for summary judgment may properly be granted ... only where there
is no genuine issue of material fact to be tried, and the facts as to which there
is no such issue warrant the entry of judgment for the moving party as a
matter of law.” Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015)
(internal quotation marks omitted) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010)).
“The function of the district court in considering [a] motion for summary
judgment is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute exists.” Rogoz,
796 F.3d at 245 (quoting Kaytor, 609 F.3d at 545). And “‘[i]n determining
whether summary judgment is appropriate,’ a court must ‘construe the facts in
the light most favorable to the non-moving party and ... resolve all ambiguities
and draw all reasonable inferences against the movant.’” Kuhbier v.
McCartney, Verrino & Rosenberry Vested Producer Plan, –– F. Supp. 3d ––,
No. 14 Civ. 888 (KMK), 2017 WL 933126, at *7 (S.D.N.Y. Mar. 8, 2017)
(omission in original) (quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
A party moving for summary judgment “bears the initial burden of
demonstrating ‘the absence of a genuine issue of material fact.’” ICC Chem.
Corp. v. Nordic Tankers Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “[A] fact is material
if it ‘might affect the outcome of the suit under the governing law.’” Royal
Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746
F.3d 538, 544 (2d Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). And “[a] dispute is ‘genuine’ if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Negrete v.
Citibank, N.A., –– F. Supp. 3d ––, No. 15 Civ. 7250 (RWS), 2017 WL 758516, at
*6 (S.D.N.Y. Feb. 27, 2017) (quoting Liberty Lobby, 477 U.S. at 248).
Neither the movant nor the nonmovant may rest on allegations in the
pleadings; each party must point to specific evidence in the record to carry its
burden on summary judgment. Celotex, 477 U.S. at 324; Matsushita, 475 U.S.
at 586. 4 Nor may the non-moving party “rely on conclusory allegations or
unsubstantiated speculation” to defeat a motion for summary judgment.
Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (internal quotation
marks omitted) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428
(2d Cir. 2001); accord Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
“[T]he mere existence of a scintilla of evidence in support of the plaintiff’s
position [is] insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Jeffreys, 426 F.3d at 554 (internal alterations
and quotation marks omitted) (quoting Anderson, 477 U.S. at 252).
The PLRA’s Exhaustion Requirement
“The PLRA instructs that ‘[n]o action shall be brought with respect to
prison conditions under [42 U.S.C. § 1983] ... by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.’” Williams v. Corr. Officer Priatno, 829 F.3d 118,
122 (2d Cir. 2016) (alterations and omission in original) (quoting 42 U.S.C.
§ 1997e(a)). This “language is ‘mandatory’: An inmate ‘shall’ bring ‘no action’
(or said more conversationally, may not bring any action) absent exhaustion of
The Court is mindful of Plaintiff’s pro se status, and the “special solicitude” to which it
entitles him. See Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010); see also
McLeod v. Jewish Guild for the Blind, — F.3d —, No. 15-2898-cv, 2017 WL 3044626, at
*3 (2d Cir. July 19, 2017) (per curiam) (affirming “well-worn precedent concerning a
district court’s obligation to liberally construe pro se submissions”). The Court notes
however, that “[s]uch special solicitude is not unlimited.” Blalock v. Jacobsen, No. 13
Civ. 8332 (JMF), 2016 WL 796842, at *2 (S.D.N.Y. Feb. 22, 2016). “Provided the moving
party has met its initial burden of demonstrating the absence of a genuine issue of
material fact, a pro se party opposing summary judgment must still ‘come forward with
evidence demonstrating that there is a genuine dispute regarding material fact.’” Id.
(quoting Bennett v. Bailey, No. 07 Civ. 7002 (PKC), 2010 WL 1459192, at *3 (S.D.N.Y.
Apr. 9, 2010)).
available administrative remedies.” Ross v. Blake, — U.S. —, 136 S. Ct. 1850,
1856 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)).
Moreover, exhaustion must be “proper,” “which ‘means using all steps
that the agency holds out, and doing so properly (so that the agency addresses
the issues on the merits).’” Woodford, 548 U.S. at 90 (emphasis in original)
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). “Proper
exhaustion demands compliance with [a prison grievance system’s] deadlines
and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of
its proceedings.” Williams, 829 F.3d at 122 (internal quotation marks omitted)
(quoting Woodford, 548 U.S. at 90-91).
Accordingly, a court adjudicating issues of exhaustion under the PLRA
may not take into account any “special circumstances” that it might believe
justify a prisoner’s failure to comply with the requirements of the
administrative process available to him. Ross, 136 S. Ct. at 1856-58
(abrogating holding of Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), which
allowed for special-circumstance consideration); Williams, 829 F.3d at 123.
“[A] court may not excuse a failure to exhaust, even to take such
circumstances into account.” Ross, 136 S. Ct. at 1856.
The PLRA allows only one “textual exception to mandatory exhaustion.
Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of
administrative remedies: An inmate, that is, must exhaust available remedies,
but need not exhaust unavailable ones.” Ross, 136 S. Ct. at 1858; Williams,
829 F.3d at 123 (adopting Ross’s “framing [of] the exception issue entirely
within the context of whether administrative remedies were actually available
to the aggrieved inmate”). Grievance procedures are “available” if they “are
‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, 136
S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
In Ross, the Court provided three examples “of circumstances in which
an administrative remedy, although officially on the books, is not capable of
use to obtain relief.” Ross, 136 S. Ct. at 1859. The Ross Court held that
[a]n administrative procedure is unavailable when:
[i] “it operates as a simple dead end — with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates”; [ii] it is “so opaque that it becomes,
practically speaking, incapable of use”; or [iii] “prison
administrators thwart inmates from taking advantage
of a grievance process through machination,
misrepresentation, or intimidation.”
Riles v. Buchanan, 656 F. App’x 577, 580 (2d Cir. 2016) (summary order)
(quoting Ross, 136 S. Ct. at 1859-60). It is the province of the court to
determine whether such circumstances exist in a given case. See, e.g., Hubbs
v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (“Whether an
administrative remedy was available to a prisoner in a particular prison or
prison system is ultimately a question of law, even when it contains factual
elements.”); Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011); Rickett v.
Orsino, No. 10 Civ. 5152 (CS) (PED), 2013 WL 1176059, at *9 (S.D.N.Y.
Feb. 20, 2013) (“Factual disputes relating to whether a prisoner’s failure to
exhaust should be excused can generally be resolved by the court, and do not
ordinarily present a jury question.”), report and recommendation adopted, No.
10 Civ. 5152 (CS) (PED), 2013 WL 1155354 (S.D.N.Y. Mar. 21, 2013).
Plaintiff’s Deliberate-Indifference Claim Was Not Exhausted
An Administrative Remedy Was “Officially on the Books”
In its March 2016 Opinion, the Court found that “Plaintiff’s claims that
Rikers Island staff members were deliberately indifferent to his medical
needs ... were covered by the Rikers Island grievance procedure.” Galberth,
2016 WL 1255738, at *6. This is the law of the case. Because Plaintiff has not
indicated that “cogent and compelling reasons militate otherwise,” nor disputed
the procedure’s applicability to his claims (see Def. Reply 56.1 ¶¶ 3-7), the
Court will adhere to its prior decision. Johnson v. Holder, 564 F.3d 95, 99 (2d
Cir. 2009) (internal quotation marks omitted) (quoting United States v.
Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)). The Rikers Island grievance
procedure applied to Plaintiff’s deliberate-indifference claim against Defendant.
The Administrative Remedy Was “Available” to Plaintiff
Plaintiff does not dispute the fact of his noncompliance with the Rikers
Island grievance procedure; the parties agree that Plaintiff failed to grieve as
the procedure required. (Def. 56.1 ¶ 10; AC 4). But Plaintiff disputes the
implications of that failure. Plaintiff argues that his mental illness and lack of
awareness regarding the grievance procedure rendered the procedure
unavailable, such that (i) Plaintiff was not required by the PLRA to exhaust his
claims, and (ii) his failure to exhaust does not bar his deliberate-indifference
In making this argument, Plaintiff does not directly invoke any one of
Ross’s three unavailability examples. Plaintiff does not allege, for example, that
the applicable grievance procedure “operate[d] as a simple dead end — with
officers unable or consistently unwilling to provide any relief to aggrieved
inmates” or was “so opaque” as to be “practically speaking, incapable of use.”
See Ross, 136 S. Ct. at 1859. Nor does Plaintiff indicate that “prison
administrators thwart[ed] inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Id. at 1860.
Plaintiff’s argument is rather a variation on Ross’s themes. Plaintiff does
not critique the opacity of the Rikers Island grievance procedure in the
abstract, but argues that the grievance procedure was “so opaque” as to be
“practically speaking, incapable of use” with regard to Plaintiff specifically,
because of Plaintiff’s mental health condition in April 2011. (See generally AC;
Oliner Decl., Ex. L, 22-26; Pl. Br. 15, 21-22; Pl. Supp’l Opp. 9, 11, 13, 33).
Moreover, Plaintiff argues that the procedure was unavailable because Plaintiff
was unaware of it, not having been directed to utilize the procedure nor having
been given a copy of the Inmate Handbook. (Pl. Supp’l Opp. 10-11, 24; Def.
Reply 56.1 ¶ 8). In the remainder of this Opinion, the Court will explain why
these arguments fail.
The Grievance Procedure Was Not Unavailable Because of
Plaintiff’s Mental Illness
The Ross Court did not opine on the specific question at the heart of this
case: whether an inmate’s mental health condition can cause administrativeremedy unavailability. Nor is this Court aware of any court that has
considered this precise question in light of Ross’s clarification of PLRA
availability. But even assuming arguendo that an inmate’s mental health
condition can cause administrative-remedy unavailability, the Court finds that
Plaintiff has not introduced evidence sufficient to indicate that his mental
health condition did so in this case.
Plaintiff’s Evidence Is Insufficient to Permit a Jury
Reasonably to Find in His Favor
The Court agrees with Defendant that much of Plaintiff’s disagreement
with his medical records seems to result from a misunderstanding of them.
Plaintiff “appears to erroneously conflate long-term diagnoses with omnipresent
psychosis.” (Def. Reply 3-4 (citing Pl. Opp. 10-28)). Throughout his briefing,
Plaintiff emphasizes the longstanding nature of his mental health condition,
and his physicians’ documentation of his self-reported perceptual problems.
And this the Court entirely credits. Plaintiff’s medical records lay plain the fact
that Plaintiff has long struggled with a host of mental health problems, and
that Plaintiff felt paranoid, afraid, depressed, and anxious during his stay at
Rikers Island. But the Court also concurs with Defendant’s assessment that
“[n]othing in Plaintiff’s Opposition addresses the undisputed facts that —
despite any mental illness — [P]laintiff both described and sought assistance
with non-psychiatric issues of concern to him (e.g., missed medication, lower
back pain with a pre-existing condition and surgery, dry skin, and a rash) on at
least four separate occasions while at Rikers in 2011 (April 4, 13, 15, and 18,
2011).” (Def. Reply 4). And “if plaintiff was lucid enough to describe and seek
assistance with lower back pain — and provide the relevant history of that
condition — he was similarly capable of — at the very least — seeking
assistance with the grievance system as described in the Inmate Handbook.”
(Id. (emphasis in original) (citing Def. 56.1 ¶ 9)).
The Court agrees that even if Plaintiff’s symptoms were as severe as he
represents that they were, the evidence does not support a conclusion that they
were so severe as to render unavailable, at every moment, the Rikers Island
grievance procedure. Nor that they were so severe that Plaintiff could not at
any point seek an extension of the 10-day submission time permitted by that
procedure. Rather, the evidence indicates that Plaintiff experienced many
moments of lucidity in which he was able to recount his medical history and
medication needs and to participate intelligently in judicial proceedings.
Plaintiff’s habit of selective record citation — highlighting portions that he
believes to be favorable, while omitting mention of portions that contradict his
account of his condition — does him no favors in this regard. “[T]his Court has
conducted an assiduous review of the record to determine if there is any
evidentiary support for [Plaintiff’s] assertions of fact that do not cite to evidence
and to determine if there are any other material issues of fact.” Betts v.
Rodriquez, No. 15 Civ. 3836 (JPO), 2017 WL 2124443, at *1 n.1 (S.D.N.Y.
May 15, 2017) (internal quotation marks omitted) (quoting Geldzahler v. N.Y.
Med. Coll., 746 F. Supp. 2d 618, 620 n.1 (S.D.N.Y. 2010)). And the Court has
found that the portions of the record with which Plaintiff takes issue are largely
those portions in which Plaintiff himself told his treating physicians that he
was not experiencing delusional thinking, perceptual distortions, or
hallucinations. Plaintiff has not accounted for the discrepancy between what
he reported then and what he reports now. Thus, there is no evidence on
which a jury could reasonably conclude that Plaintiff’s mental health
conditions rendered the Rikers Island grievance procedure unavailable. The
procedure was “capable of use” by Plaintiff. Ross, 136 S. Ct. at 1859.
Indeed, even the records that Plaintiff does not dispute do not support a
finding of unavailability. For example, Plaintiff accepts the accuracy of
Dr. Kaye’s records, and commends them to the Court’s attention. (See Pl.
Br. 7-8; Pl. Supp’l Opp. 18-20, 25). The Court agrees with Plaintiff that the
records state that Plaintiff evidenced delusional thinking insofar as he felt
suspicious of correctional officers. (Oliner Decl., Ex. H, at Def. 39). But the
Court notes that the records also indicate that when he met with Dr. Kaye,
Plaintiff was alert and aware, spoke normally, concentrated adequately, and
evinced goal-directed and organized thought processes. (Id. at Def. 40).
Plaintiff was not experiencing perceptual or auditory hallucinations. (Id. at
Def. 40-41). Dr. Kaye diagnosed Plaintiff with depression, anxiety, and mood
swings. (Id. at Def. 41). And Dr. Kaye affirmed expressly that Plaintiff was “not
psychotic [and] not suicidal.” (Id. at Def. 98).
The Court finds therefore that Plaintiff has not proven that his mental
health condition caused the otherwise-available Rikers Island grievance
procedure to become unavailable. After Ross, for such an argument to
succeed — if even it can — a plaintiff must show more than Plaintiff has in this
Plaintiff’s Argument May Fail Even With Sufficient
Thus, the Court does not need to determine the precise showing that
Ross might require in order to resolve Defendant’s motion. However, Plaintiff’s
argument raises an interesting question regarding the scope of availability
post-Ross that the Court pauses here to consider: To what extent might a
category of “special circumstances” survive Ross, insofar as they are also
cognizable as circumstances determinative of availability?
Prior to Ross, courts in this Circuit utilized a three-part framework
established in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), to determine
whether the failure of an inmate to grieve a claim covered by a prison grievance
procedure could be excused. Id. at 686. Under this framework, considered as
separate inquiries were the determinations (i) whether the grievance procedure
was “in fact ‘available’ to the prisoner” id. (quoting Abney v. McGinnis, 380 F.3d
663, 667 (2d Cir. 2004)), and (ii) “whether ‘special circumstances’ have been
plausibly alleged that justify ‘the prisoner’s failure to comply with
administrative procedural requirements’” id. (quoting Giano, 380 F.3d at 676).
The first of these was an inquiry into the fact of availability: Did the prison
provide an administrative grievance procedure to inmates, both formally and in
practice? This inquiry was outward-facing, concerned with what a prison had
made available to its inmates. And the second inquiry — typically considered
as the third prong of the tripartite Hemphill framework — was more-inward
facing: Were there “special circumstances” relating to an inmate’s knowledge of
or experience with a grievance procedure that excused his failure to utilize it?
A court might consider, for example, whether the inmate had made a
“reasonable mistake about the meaning of a prison’s grievance procedures.”
Ross, 136 S. Ct. at 1858. This inquiry was concerned with what an inmate
believed or knew to be available, separate and apart from what was factually
available. But both inquiries were to be analyzed objectively, by comparison to
“a similarly situated individual of ordinary firmness.” Hemphill, 380 F.3d at
688 (availability); see also id. at 690 (special circumstances).
In Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), the Second Circuit took
note of the imprecision with which courts had considered these separate
questions. The Circuit observed
that the case law on the PLRA’s exhaustion requirement
does not always distinguish clearly between [i] cases in
which defendants are estopped from asserting nonexhaustion as an affirmative defense, [ii] situations in
which administrative remedies are not “available” to the
plaintiff, and [iii] circumstances in which administrative
remedies are “available,” but the prisoner’s original
failure to exhaust is nonetheless justified, and hence
does not bar the prisoner’s subsequent suit.
Id. at 677 n.6. But the Circuit did not endeavor to explain the differences
between these categories. Id. Instead, it simply speculated that the blurriness
between them might exist “because the same facts sometimes fit into more
than one of these categories.” Id.
In Ross, the Supreme Court rejected the possibility of multiple,
overlapping categories. The Supreme Court expressly and definitively
abrogated Giano and its recognition of a category of “special circumstances”
that could overlap with and enlarge the concept of “availability.” The Court
made clear that the only exception to the PLRA’s exhaustion requirement is the
statute’s textual, outward-looking “availability” exception, which requires a
court to determine only whether grievance procedures existed that were
“‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, 136
S. Ct. at 1859 (quoting Booth, 532 U.S. at 738). Courts adjudicating PLRA
exhaustion were no longer permitted to “look to all the particulars of a case to
decide whether to excuse a failure to exhaust available remedies.” Ross, 136 S.
Ct. at 1858. After Ross, “such wide-ranging discretion ‘is now a thing of the
past.’” Id. (quoting Booth, 532 U.S. at 739).
While the Ross Court rejected the concept of multiple, separate
categories, it did not address directly the overlap issue recognized by the
Second Circuit. Nonetheless, this Court believes it reasonable to conclude that
Ross precludes the inward-looking inquiry previously cognizable under
Hemphill’s “special circumstances” prong. In Ross, the Supreme Court rejected
the concept of “special circumstances,” in no uncertain terms, barring courts
from considering the “particulars of a case.” Ross, 136 S. Ct. at 1858. And the
Court proffered a trio of unavailability examples all concerned with what
remedies a prison made available to a reasonable prisoner, formally and in
practice. See Ross, 136 S. Ct. at 1859-60. In other words, the Court seems to
have affirmed the outward-looking inquiry focused on what is made available
by a prison, and rejected the inward-looking inquiry concerned with is
perceived to be available by a prisoner.
This Court is not aware of any cases post-Ross to have reached this
conclusion, or to have found to the contrary that a prisoner’s failure to exhaust
was excused because that prisoner’s mental health condition rendered
unavailable otherwise-available administrative remedies. But the post-Ross
case law appears to indicate that the latter argument would not succeed.
Where courts have been presented with inward-looking justifications for a
failure to exhaust, which are based in a prisoner’s subjective sense of what was
available, such justifications have been rejected. See Little v. Mun. Corp., City
of N.Y., No. 12 Civ. 5851 (KMK), 2017 WL 1184326, at *12 (S.D.N.Y. Mar. 29,
2017) (holding that plaintiff’s “allegations of generalized fear are insufficient to
excuse his failure to exhaust”); Millner v. Biter, No. 13 Civ. 2029 (AWI) (SAB)
(PC), 2017 WL 735688, at *7 (E.D. Cal. Feb. 24, 2017) (“While [p]laintiff’s pain
and/or mental distress may have made the grievance process more
challenging, it was not out of reach to [p]laintiff so as to be rendered
‘unavailable’ through no fault of his own.”); Aviles v. Tucker, No. 14 Civ. 8636
(NSR), 2016 WL 4619120, at *4 (S.D.N.Y. Sept. 1, 2016) (conclusory allegations
that plaintiff was afraid to file a grievance “cannot support a finding that the
grievance process was unavailable”); Whitley v. Tourtelot, No. 15 Civ. 377 (GTS)
(TWD), 2016 WL 4530740, at *5 (N.D.N.Y. Aug. 3, 2016) (rejecting plaintiff’s
argument that “his mental state could be construed as a special circumstance
which justified his failure to exhaust administrative remedies ... because the
Supreme Court has squarely rejected the ‘special circumstances’ exception to
administrative exhaustion”), report and recommendation adopted, No. 15 Civ.
377 (GTS) (TWD), 2016 WL 4532150 (N.D.N.Y. Aug. 29, 2016); Briscoe v.
D’Agata, No. 14 Civ. 7384 (KMK), 2016 WL 3582121, at *7 (S.D.N.Y. June 28,
2016) (finding jail’s grievance procedure was “available” despite plaintiff’s
assertion that he did not know about it, because “[t]he availability of
administrative remedies is adjudged not by whether the [p]laintiff was unaware
of them, but instead by whether ‘a similarly situated individual of ordinary
firmness’ would have deemed them available” (quoting Hemphill, 380 F.3d at
Ultimately, this issue is not dispositive here. For the reasons the Court
explained in the prior section of this Opinion, the Court believes that the Rikers
Island grievance procedure was available to Plaintiff in April 2011. But the
Court has considered this issue at length here because of its far-reaching
consequences for the mentally ill prison population. If Ross precludes
consideration of a prisoner’s subjective sense of availability, the Court fears
there may be situations in which a mentally ill prisoner is unable to satisfy the
PLRA’s exhaustion requirement. To be clear: The Court does not here hold
that mental illness, and treatment occasioned as a result thereof, could never
render an otherwise available grievance procedure unavailable for purposes of
PLRA exhaustion under Ross. But the Court does believe that there is a
tension between (i) the Ross Court’s definition of availability and rejection of
special-circumstance consideration and (ii) the question of administrativeprocedure availability with regard to mentally ill inmates that merits attention.
The Grievance Procedure Was Not “Unavailable” Simply
Because Plaintiff May Have Been Unaware of It
In dicta prior to Ross, the Second Circuit intimated that an inmate may
be able to demonstrate that grievance procedures were unavailable to him
because “he was not timely provided an inmate handbook” and therefore “was
unaware of the grievance procedures contained within it or ... did not
understand those procedures.” Ruggiero v. Cty. of Orange, 467 F.3d 170, 178
(2d Cir. 2006). In the wake of this suggestion, district courts considered the
fact of an inmate’s awareness when adjudicating availability for purposes of
PLRA exhaustion. See, e.g., Angulo v. Nassau Cty., 89 F. Supp. 3d 541, 552-53
(E.D.N.Y. 2015) (finding plaintiff had not shown grievance procedure was not
“available” because, among other things, plaintiff had not shown that he was
unware of it); Abdallah v. Ragner, No. 12 Civ. 8840 (JPO), 2013 WL 7118083,
at *3 (S.D.N.Y. Nov. 22, 2013) (“An administrative remedy is not ‘available’ for
purposes of the PLRA if prisoners are not informed that the remedy exists.”);
Walker v. Vargas, No. 11 Civ. 9034 (ER), 2013 WL 4792765, at *5 (S.D.N.Y.
Aug. 26, 2013) (same).
The Supreme Court’s holding in Ross curtailed significantly the
availability inquiry. Though the Court believes Ruggiero remains good law, it
also believes that the showing Ruggiero requires to satisfy availability is
heightened in Ross’s wake. A plaintiff post-Ross must show more than mere
unawareness of an existing grievance procedure; a plaintiff must show that he
was unaware because, for example, officers were unable or unwilling to make
him aware, or prevented him from becoming aware “through machination,
misrepresentation, or intimidation.” See Ross, 136 S. Ct. at 1859-60; see also
Briscoe, 2016 WL 3582121, at *7 (“The availability of administrative remedies is
adjudged not by whether the [p]laintiff was unaware of them, but instead by
whether ‘a similarly situated individual of ordinary firmness’ would have
deemed them available.” (quoting Hemphill, 380 F.3d at 688)). In other words:
A plaintiff must show “that other factors — for example, threats from correction
officers — rendered a nominally available procedure unavailable as a matter of
fact.” Briscoe, 2016 WL 3582121, at *7 (internal quotation mark omitted)
(quoting Hubbs, 788 F.3d at 59).
In this case then, Plaintiff would have to demonstrate that he was not
timely provided with an inmate handbook because corrections officers were
unwilling or unable to provide him with one, or prevented him from accessing
the handbook “through machination, misrepresentation, or intimidation.”
Ross, 136 S. Ct. at 1859-60. Plaintiff has not done so. Thus, even if the
parties dispute Plaintiff’s possession of the handbook, this dispute is not
material. Whether or not Plaintiff actually possessed the handbook, he
nowhere claims that the failure to provide him with the handbook rendered the
grievance procedures described therein incapable of use; that Plaintiff sought
and was unable to obtain a handbook for some reason; or that Plaintiff was
deprived of the handbook purposefully, as “through machination,
misrepresentation, or intimidation.” See Ross, 136 S. Ct. at 1860. Indeed,
Plaintiff has never deviated from his stance that it was “[d]ue to mental illness,”
and mental illness alone, “[that Plaintiff] did not file a grievance complaint.”
(Pl. Supp’l Opp. 11). The parties’ dispute regarding Plaintiff’s possession of the
inmate handbook is accordingly not material, and does not prevent the Court
from entering summary judgment for Defendant.
For the reasons outlined above, Defendant’s motion for summary
judgment is GRANTED. The Clerk of Court is directed to terminate all pending
motions, adjourn all remaining dates, and close this case.
July 31, 2017
New York, New York
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Marcy Correctional Facility
Marcy, NY 13403-3600
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