Feelings v. Stukes et al
OPINION AND ORDER: re: 58 MOTION for Summary Judgment filed by Walker, Johnson, Kenneth Stukes, Owens, Griffith. For the foregoing reasons, Defendants' motion for summary judgment is DENIED. The Clerk of Court is directed to close the motion at Docket Number 58. SO ORDERED. (Signed by Judge J. Paul Oetken on 8/21/2017) Copies Mailed By Chambers. (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EARL BRISTOW FEELINGS,
-vWARDEN KENNETH STUKES et al.,
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Plaintiff Earl Bristow Feelings, proceeding pro se, filed this action under 42 U.S.C.
§ 1983, alleging that he was unlawfully held in punitive segregation on Rikers Island for
seventy-one days. (Dkt. No. 2 at 30.) Previously, the Court granted in part and denied in part a
motion to dismiss filed by Defendants the City of New York, Warden Kenneth Stukes, Captain
Michelle Walker, Corrections Officer Sheila Owens, Captain Sheldon Johnson, and Civilian
Officer Keith Guerrant (“Defendants”). Feelings v. Stukes, No. 15 Civ. 1889, 2016 WL 2993202
(S.D.N.Y. May 23, 2016). Defendants now move for summary judgment on the ground that
Feelings failed to exhaust his administrative remedies as required by the Prison Litigation
Reform Act (“PLRA”). For the reasons that follow, Defendants’ motion for summary judgment
“A document filed pro se is ‘to be liberally construed’ . . . .” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “The rule favoring
liberal construction of pro se submissions is especially applicable to civil rights claims.” Cruz v.
Midwood Ambulance & Oxygen Serv., Inc., 136 F. App’x 414, 415 (2d Cir. 2005).
“Summary judgment is warranted when, after construing the evidence in the light most
favorable to the nonmoving party and drawing all reasonable inferences in its favor, there is no
genuine issue as to any material fact.” Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing
Fed. R. Civ. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986).
The Court may not grant summary judgment unless the record discloses “no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
“The moving party bears the burden of disproving the existence of any genuine issue of
material fact.” Loccenitt v. City of New York, No. 10 Civ. 8319, 2012 WL 5278553, at *3
(S.D.N.Y. Oct. 22, 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Once the
moving party has asserted facts showing that the non-movant’s claims cannot be sustained, the
opposing party must ‘set out specific facts showing a genuine issue for trial,’ and cannot ‘rely
merely on allegations or denials contained in the pleadings.’” Toshiba Corp. v. Am. Media Int’l,
LLC, No. 12 Civ. 800, 2012 WL 3822759, at *4 (S.D.N.Y. Sept. 4, 2012) (quoting Fed. R. Civ. P.
56(e)). “[A] party may not rely on mere speculation or conjecture as to the true nature of the
facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.
2010) (alteration in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)
(internal quotation mark omitted)). Even when a party is proceeding pro se, “mere ‘conclusory
statements, conjecture, or speculation by the party resisting the motion will not defeat summary
judgment.’” Cruz, 136 F. App’x at 415 (quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d
The Court presumes familiarity with the Plaintiff’s factual allegations, which are detailed
in the Court’s prior Opinion and Order at the motion-to-dismiss stage. See Feelings, 2016 WL
In considering this motion, the Court relies on facts that are undisputed, and where facts
are disputed and supported by evidence, views those facts in the light most favorable to
Feelings. 1 At this stage, the sole issue disputed by the parties is whether Feelings exhausted his
administrative remedies, as required by the PLRA. 2
In response to Defendants’ motion for summary judgment, Feelings submitted a
brief in opposition (Dkt. No. 71), but did not submit a statement of disputed factual issues.
Defendants argue that the Court should deem all facts in Defendants’ Rule 56.1 statement
admitted. (Dkt. No. 70 at 1–2.) While 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.” Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009); see also 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.”).
Because Feelings 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.” Geldzahler v.
N.Y. Med. Coll., 746 F. Supp. 2d 618, 620 n.1 (S.D.N.Y. 2010) (quoting Lee v. Coughlin, 902 F.
Supp. 424, 429 (S.D.N.Y. 1995)); see also, e.g., Anderson v. City of New Rochelle, No. 10 Civ.
4941, 2012 WL 3957742, at *7 (S.D.N.Y. Sept. 4, 2012). The Court carefully parses Feelings’s
submission to determine if it raises any genuine disputes of material fact that would preclude
summary judgment, as discussed below.
Feelings also argues that the discovery materials provided by Defendants have
been unresponsive and otherwise insufficient, especially considering his pro se status. (Dkt. No.
71 at 9–10.) Federal Rule of Civil Procedure 56(f) allows a party to move to obtain additional
discovery and postpone resolution of a motion for summary judgment “by describing: (i) the
information sought and how it will be obtained; (ii) how it is reasonably expected to raise a
genuine issue of material fact; (iii) prior efforts to obtain the information; and (iv) why those
efforts were unsuccessful.” Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139,
167 (2d Cir. 2003), rev’d on other grounds, 544 U.S. 197 (2005). Because the Court concludes
that a genuine dispute of material fact precludes summary judgment, this argument is moot at
The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under [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). “[T]hat language is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said
more conversationally, may not bring any action) absent exhaustion of available administrative
remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). And the requirement covers “all inmate
suits about prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
The Supreme Court has explained that the PLRA requires “proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 92 (2006). “The doctrine [of exhaustion of administrative
remedies] provides that no one is entitled to judicial relief for a supposed or threatened injury
until the prescribed administrative remedy has been exhausted.” Id. at 88–89 (quoting McKart v.
United States, 395 U.S. 185, 193 (1969)). A court may not take into account any “special
circumstances” it believes may justify a prisoner’s failure to exhaust his administrative remedies
and comply with the PLRA. Ross, 136 S. Ct. at 1856–58 (abrogating the holding of Giano v.
Goord, 380 F.3d 670 (2d Cir. 2004), which allowed for special-circumstances consideration). 3
Indeed, “[t]he PLRA allows only one ‘textual exception to mandatory exhaustion. Under
[42 U.S.C.] § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of
administrative remedies: An inmate, that is, must exhaust available remedies, but need not
The Supreme Court’s decision in Ross was issued approximately one month after this
Court issued its Order on Defendants’ motion to dismiss. While this Court previously indicated
that special circumstances may excuse a plaintiff’s failure to comply with the PLRA’s exhaustion
requirement, Ross definitively forecloses that avenue of relief.
exhaust unavailable ones.’” Galberth v. Washington, No. 14 Civ. 691, 2017 WL 3278921, at *7
(S.D.N.Y. July 31, 2017) (quoting Ross, 136 S. Ct. at 1858). “Grievance procedures are
‘available’ if they ‘are capable of use to obtain some relief for the action complained of.’” Id.
(quoting Ross, 136 S. Ct. at 1859).
After Ross, a grievance procedure is unavailable when “(1) ‘it operates as a simple dead
end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates’;
(2) it is ‘so opaque that is 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 v. Buchanan, 656 F. App’x 577, 580 (2d
Cir. 2016) (quoting Ross, 136 S. Ct. at 1859–60).
At issue here is the administrative grievance program known as the Inmate Grievance
Request Program (“IGRP”), established by the New York City Department of Correction
(“DOC”). 4 In particular, the question here is whether the IGRP was “available” to Feelings with
respect to the claim at issue in this case.
“Under the IGRP, a prisoner who wishes to file a grievance must file a form with IGRP
staff within ten business days of the condition giving rise to the grievance.” Garvin v. Rivera,
No. 13 Civ. 7054, 2015 WL 876464, at *3 (S.D.N.Y. Feb. 28, 2015) (citing DOC Directive 3376
§§ II.F, IV.B.1). An “informal resolution” must be provided to the inmate by IGRP staff within
five business days of receiving the form. Id. (citing DOC Directive 3376 § II.F). “If the inmate
does not accept the resolution that the IGRP staff proposes, the inmate shall indicate on the IGRP
Disposition Form, within five business days from notification of the proposed resolution, that the
The Court took judicial notice of the IGRP in its Order at the motion-to-dismiss
stage and does so again here. See Feelings, 2016 WL 2993202 at *4 n.1.
inmate does not accept the resolution and requests a formal hearing.” DOC Directive 3376
§ IV(G)(5)(b). Subsequent appeals may be taken to the Central Office Review Committee
(“CORC”), whose opinion constitutes the DOC’s final decision on an inmate’s grievance or
request. Id. § IV(J).
The IGRP Disposition Forms at issue have a section near the signature box that asks the
inmate: “Are you satisfied with the proposed resolution?” (Dkt. No. 60-5 at 2.) Under that
question are two boxes, one labeled “Yes, I accept the resolution,” and the other labeled “No.”
(Id.) Beneath the check boxes is a paragraph that begins, “I request a formal hearing of the
Inmate Grievance Resolution Committee . . . .” (Id.)
In connection with Feelings’s opposition to Defendants’ motion to dismiss the complaint,
Feelings attached two IGRP Disposition Forms, each of which contains a check next to the “No”
box, indicating that Feelings was requesting a formal hearing. (Dkt. No. 36 at 57–58; see also
Dkt. No. 61 ¶¶ 30–31.) According to Defendants, DOC is not in possession of the documents
submitted by Feelings and has no record of his ever requesting a formal hearing. (Dkt. No. 61
¶¶ 19, 24–25, 30–32.) Feelings argues that “correctional counsel for the grievance
committee . . . administratively documented [his] intent [and] signature requesting [an]
institutional hearing,” and that his “endorsed signature is confirmation of [his] expectations to be
present at the scheduled grievance hearing to contest . . . the unlawful solitary confinement.”
(Dkt. No. 71 at 12–13.) He also asserts that “[D]efendants apparently had fabricated false
disciplinary incidents reports with a conscious intent to deprive [him] of his right” to bring the
current suit. (Id. at 17.)
Defendants argue that Feelings was “required to appeal the IGRC’s decision to the
facility’s commanding officer and to then further appeal to the DOC CORC” by “sign[ing] and
check[ing] off a box on the disposition form . . . to indicate whether the inmate accepts the
disposition by the IGRC.” (Dkt. No. 70 at 4–5.) But this is precisely what Feelings claims he
did to “document [his] intent [and] signature requesting [an] institutional hearing.” (Dkt. No.
71 at 12; see also Dkt. No. 36 at 34–36, 57.) At the summary judgment stage, the Court
“constru[es] the evidence in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in its favor.” Sledge, 564 F.3d at 108 (2d Cir. 2009). Whether Feelings did
or did not request a formal hearing, therefore, is an issue of material fact that remains in dispute
at this stage.
Defendants further argue that even if Feelings did check the “No” box to request a formal
hearing, he failed to exhaust additional levels of the administrative procedures outlined in the
IGRP, including a further appeal to the CORC. (Dkt. No. 59 at 8.) Defendants argue that “the
law is well-settled that the failure to take an available administrative appeal, even when the
initial grievance receives no response, constitutes a failure to exhaust available administrative
remedies.” Mena v. City of New York, No. 13 Civ. 2430, 2016 WL 3948100, at *3 (S.D.N.Y. July
19, 2016) (quoting Garvin, 2015 WL 3999180, at *3 and collecting cases).
However, Mena, and the cases it discusses, are distinguishable from the present
circumstance. In those cases, the plaintiff’s initial grievance received no response. See, e.g.,
Johnson v. New York City Dep’t of Correction, No. 13 Civ. 6799, 2014 WL 2800753, at *6
(S.D.N.Y. June 16, 2014) (“Assuming that Plaintiff filed a timely grievance . . . and received no
response within five business days[,] Plaintiff . . . could have taken the next step and requested a
hearing.”). At the initial grievance stage, a plaintiff fails to exhaust his administrative remedies
by failing to take advantage of an appeal that is expressly available under the IGRP. See, e.g.,
Leacock v. New York City Health Hosp. Corp., No. 03 Civ. 5440, 2005 WL 483363, at *7
(S.D.N.Y. Mar. 1, 2005) (finding a failure to exhaust administrative remedies because “the IGRP
permitted [plaintiff] to appeal even if she did not receive a response to her grievance”); Burns v.
Moore, No. 99 Civ. 966, 2002 WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) (“New York State’s
Inmate Grievance program allows prisoners to appeal matters that are not addressed at a lower
grievance level within the prescribed time. Thus, even if Plaintiff received no response to his
initial grievance, Plaintiff could have sought the next level of review . . . .” (citation omitted)).
Here, in contrast, Defendants do not point to any provision of the IGRP that would permit
Feelings to appeal his case to the CORC in the event that (1) he checked the “No” box on the
appropriate form, requesting a formal hearing, (2) nothing was done in response, and (3)
Defendants “fail[ed to] secure [his] attendance” at any formal hearing. (Dkt. No. 71 at 17.)
Indeed, under the IGRP, “[i]f the inmate requests a hearing, the IGRP staff shall complete an
IGRC Hearing Notice , schedule the Inmate Grievance Resolution Committee hearing, and
ensure that the IGRC Hearing Notice form is served upon the inmate within one business day.”
(Dkt. No. 60-2 § IV(G)(5)(b)(i).) There is no evidence that these steps were taken in this case.
Importantly, the IGRP does not appear to provide any mechanism by which an inmate may
appeal a decision by prison authorities not to hold a hearing (or their failure to hold a hearing)
after one is requested.
Construing Feelings’s submission liberally, as this Court is required to do, see Erickson,
551 U.S. at 94, the Court cannot conclude beyond genuine dispute that Feelings failed to pursue
administrative grievance remedies that were “available” to him. Accordingly, Defendants’
motion for summary judgment is denied.
For the foregoing reasons, Defendants’ motion for summary judgment is DENIED. The
Clerk of Court is directed to close the motion at Docket Number 58.
August 21, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
A COPY OF THIS OPINION AND ORDER HAS BEEN MAILED TO THE PRO SE PARTY
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