Flores v. The City of New York et al

Filing 68

OPINION & ORDER: re: 48 MOTION for Summary Judgment, filed by The City of New York. For the reasons stated above, Defendant's motion for summary judgment is granted. The Clerk of Court is directed to close all pending motions an d mark this case as closed. The Clerk of Court is further directed to mail a copy of this Opinion and Order to the Plaintiff and note service on the docket, and as further set forth in this order. (Signed by Judge William H. Pauley, III on 7/31/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FRANCISCO FLORES,
:
OPINION & ORDER
Plaintiff,

:
15-CV-2903

-against-

:
:

THE CITY OF NEW YORK,
:
Defendant.
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WILLIAM H. PAULEY III, United States District Judge:
Plaintiff Francisco Flores brings this federal civil rights action against the City of
New York, alleging violations under the Eighth Amendment, Title II of the Americans with
Disabilities Act, and § 504 of the Rehabilitation Act. Flores claims that the City was deliberately
indifferent to his medical needs during his incarceration at Rikers Island’s Anna M. Kross Center
(“AMKC”). The City moves for summary judgment. For the following reasons, the City’s
motion is granted and this action is dismissed.
BACKGROUND
Flores was incarcerated at AMKC from June 2013 to August 2015. (See
Defendant’s Rule 56.1 Statement of Undisputed Material Facts (“Def.’s 56.1 Stmt.”), EFC No.
52, ¶ 1.) Flores, an above-the-knee partial leg amputee, entered AMKC with a prosthesis and
was housed on the first floor of the facility for the first ten months of his incarceration. (See
Plaintiff’s Rule 56.1 Counter-Statement of Undisputed Material Facts (“Pl.’s 56.1 Stmt.”), ECF
No. 58, ¶ 4.) In late April 2014, he was housed temporarily for several days on AMKC’s fourth
floor due to flooding on the first floor. (Pl.’s 56.1 Stmt. ¶ 5.) Thereafter, Flores was transferred

back to the first floor and remained there until leaving the City’s custody. (Def.’s 56.1 Stmt. ¶
6.)
A. Flores’s Medical Treatment at AMKC
Between his admission to AMKC and the filing of this lawsuit on March 23,
2015, Flores attended forty-eight medical appointments at AMKC, visited sick call twenty times,
attended thirty-two mental health therapy or counseling sessions, received twenty-eight
appointments regarding his psychiatric medication, and visited the Bellevue Prosthetic Clinic
sixteen times. (Def.’s 56.1 Stmt. ¶ 14.) The records from these appointments consistently report
that Flores was not in acute distress (see Declaration of James M. Dervin (“Dervin Decl.”), ECF
No. 50, Ex. B at DEF_303, 318, 416, 525, 555, 623, 669, 694) and was generally “wellappearing.” (Dervin Decl., Ex B at DEF_252, 555, 669).
The prosthesis that Flores had when he entered AMKC contained electrical
hardware which, when not charged, would lock the device in an extended knee position. (Def.’s
56.1 Stmt. ¶ 8.) For security reasons, the City did not allow Flores to charge the battery in his
prosthesis and thus it became stuck in a locked position. (Def.’s 56.1 Stmt. ¶ 10.) The medical
records show that Flores was nonetheless ambulatory, although he walked slowly and with a
wide gait. (Def.’s 56.1 Stmt. ¶ 12.) The City provided a cane and crutches, which Flores used to
walk to the law library and medical clinic at AMKC, as well as chairs with arm support for use in
the prison showers. (Def.’s 56.1 Stmt. ¶ 13; Dervin Decl., Ex. F ¶¶ 15–16.)
Over the course of Flores’s many visits to the Bellevue Prosthetic Clinic,
specialists fitted him for a new, custom-built prosthetic leg. During this time, Flores fell in the
shower at AMKC and injured his knee. (Dervin Decl., ExB at DEF_317–18.) Although he was
later diagnosed with a torn meniscus, his doctors saw no significant swelling and noted a normal

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range of motion. (Dervin Decl., Ex B at DEF_272.) In March 2015 Flores received his custombuilt prosthesis, but was dissatisfied because he wanted one more suitable for running and
athletics. (Def.’s 56.1 Stmt. ¶ 39.) Shortly after receiving the prosthesis, Flores reported that it
had broken. (Def.’s 56.1 Stmt. ¶ 41.) The specialist who fabricated the device informed AMKC
medical staff that the prosthesis did not break as a result of normal usage and appeared to have
been tampered with. (Def.’s 56.1 Stmt. ¶ 41.)
B. Flores’s Housing at AMKC
Non-ambulatory inmates are typically housed in the North Infirmary Command
Annex (“North Infirmary”) at AMKC. (Def.’s 56.1 Stmt. ¶ 49.) The decision to place an inmate
in North Infirmary is within the exclusive discretion of the AMKC medical staff. (Def.’s 56.1
Stmt. ¶ 50.) Nowhere in Flores’s voluminous medical records is there any indication that
AMKC medical professionals believed Flores required specialized housing in North Infirmary.
(Def.’s 56.1 Stmt. ¶ 51.) Flores contends that he was not transferred to North Infirmary because
it was overcrowded. (Dervin Decl., Ex. A at 105:12–20.)
While housed on AMKC’s first floor, Flores had access to meals, commissary,
recreational facilities, the law library, showers, toilets, and transportation to medical
appointments and court appearances. (Dervin Decl., Ex. F ¶¶ 11–14.)
C. Flores’s Participation in the AMKC Grievance Process
Flores claims to have filed two grievances related to his housing status. First, he
alleges that he submitted a grievance in December 2013 requesting a transfer off of the fourth
floor. (See Plaintiff’s Exhibits, ECF No. 40, at 20.) Flores did not receive a receipt for this
grievance and, although he testified that he followed up with another grievance and a letter to the

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warden, he has not submitted copies of any other paperwork in connection with this grievance.
(Dervin Decl., Ex. A at 200:3–18; 201:2–4.)
The second grievance was dated March 23, 2015—the same date that Flores
signed the Complaint in this action. (Dervin Decl., Ex. C at 24.) In this grievance, Flores
complained about his prosthesis and again requested a transfer to North Infirmary. (Dervin
Decl., Ex. C at 24–25.) Flores testified that he tried to appeal this grievance by mailing
simultaneous letters to the warden and Central Office Review Committee at AMKC. (Dervin
Decl., Ex. A at 99:1–100:6.) The City’s records indicate that AMKC forwarded this grievance to
an ADA specialist on March 31, 2015. (Dervin Decl., Ex. C at 26.)
LEGAL STANDARD
Summary judgment is appropriate where the record 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The
moving party bears the burden of demonstrating the absence of any genuine dispute of material
fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has
made such a showing, the burden shifts to the non-moving party to set forth “specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). “Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris,
550 U.S. 372, 380 (2007) (internal citations omitted). On a motion for summary judgment,
courts resolve all factual ambiguities and draw all inferences in favor of the non-moving party.
See Anderson, 477 U.S. at 255.

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When, as here, a party is proceeding pro se, the court has an obligation to “read
[the pro se party’s] supporting papers liberally, and . . . interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, a
pro se litigant’s “‘bald assertion, completely unsupported by evidence’ is not sufficient to
overcome a motion for summary judgment.” D’Attore v. City of New York, No. 10-CV-6466,
2013 WL 1180395, at *3 (S.D.N.Y. Mar. 15, 2013) (quoting Carey v. Crescenzi, 923 F.2d 18, 21
(2d Cir. 1991)).
DISCUSSION
The City’s primary argument in support of its summary judgment motion is that
Flores failed to exhaust his administrative remedies prior to bringing this suit. The Prison
Litigation Reform Act (“PLRA”) bars an inmate from bringing a civil action relating to prison
conditions “until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). “It is the prison’s requirements, and not the PLRA, that define the boundaries of
proper exhaustion.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (citing Jones v. Bock,
549 U.S. 199, 219 (2007)). “[A] claim must be completely exhausted prior to commencing suit.
It is insufficient to take only limited steps towards exhaustion before commencing suit, or even
to exhaust a claim entirely during the pendency of a case.” Harris v. Gunsett, 2013 WL
3816590, at *4 (S.D.N.Y. July 22, 2013) (internal citations omitted).
Inmates at AMKC are subject to the Inmate Grievance and Request Program
(“IGRP”), which Flores acknowledged being “very familiar” with. (Dervin Decl., Ex. A at
198:15.) Under the IGRP, inmates must first file a written grievance using the IGRP Statement
Form. (Dervin Decl., Ex. J at 13.) If the inmate does not receive a receipt from the IGRP staff
within two business days of submitting the grievance, the inmate must re-submit his IGRP

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statement form. (Dervin Decl., Ex. J at 15.) The IGRP then reviews the grievance form and
proposes an informal resolution. (Dervin Decl., Ex. J at 17–18.) Alternatively, the IGRP may
decide that the conditions complained of in the grievance are not subject to the IGRP; in that
case, the staff must forward the complaint to the appropriate entity for review and resolution.
(Dervin Decl., Ex. J at 6, 18, 36.) Complaints about the conduct of prison medical staff are not
subject to the IGRP process. (Dervin Decl., Ex. J at 28, 36.)
If an inmate is dissatisfied with the resolution of a complaint under the IGRP, he
must request a formal hearing on the IGRP Disposition Form. (Dervin Decl., Ex. J at 19.)
Following a decision at the formal hearing, the inmate may appeal to the facility’s commanding
officer. (Dervin Decl., Ex. J at 22.) The final step in the IGRP process is an appeal of the
commanding officer’s decision to the Central Office Review Committee. (Dervin Decl., Ex. J at
24.) The Review Committee’s determination constitutes the final decision of the IGRP process,
at which point the inmate’s administrative remedies are exhausted. (Dervin Decl., Ex. J at 28.)
Flores’s first grievance, which he allegedly submitted in December 2013, cannot
establish exhaustion because it was not signed by any AMKC official, and Flores neither
received a receipt nor submitted any follow-up grievances as required by the IGRP. (See
Plaintiff’s Exhibits, ECF No. 40, at 20.) Moreover, the grievance’s request—that Flores be
transferred off the fourth floor due to his broken prosthesis—is plainly contradicted by the fact
that Flores was housed on the fourth floor for just a few days in April 2014, months after he
allegedly submitted the grievance. (See Pl.’s 56.1 Stmt. ¶ 5; Dervin Decl., Ex. A at 214:13–14.)
This lone, unsigned, and factually implausible grievance form is insufficient to show exhaustion
of Flores’s administrative remedies.

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The parties dispute whether the 2015 grievance, which contained complaints
about DOC’s response to Flores’s medical needs, was subject to the IGRP process. The Court
need not reach this issue, however, because the 2015 grievance was signed on the same day as
the Complaint in this action. As discussed above, grievances not subject to the IGRP are still
grievable—the IGRP staff is obligated to forward the complaint to the appropriate entity and
provide the inmate with the next steps in the relevant process. (Dervin Decl., Ex. J at 6, 18, 28,
36.) Because a grievance “must be completely exhausted prior to commencing suit,” a grievance
signed the same day as the related § 1983 action must fail for lack of exhaustion. Harris, 2013
WL 3816590, at *4. Accordingly, the record contains no genuine dispute of material fact as to
whether Flores exhausted his administrative remedies prior to bringing this suit. 1
CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is
granted. The Clerk of Court is directed to close all pending motions and mark this case as
closed. The Clerk of Court is further directed to mail a copy of this Opinion and Order to the
Plaintiff and note service on the docket.
Dated: July 31, 2017
New York, New York

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Nevertheless, while Flores’s claim must be dismissed because of his failure to exhaust administrative remedies, it
bears noting that shortly after he filed this action this Court scheduled a series of conferences and monitored the
City’s progress in fabricating a new prosthesis.

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