Zafuto v. Okeefe et al

Filing 36

DECISION AND ORDER GRANTING Defendants' 27 Motion for Summary Judgment; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 1/24/2014. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRENT ZAFUTO,
Plaintiff,
v.

DECISION AND ORDER
11-CV-916S

Dr. OKEEFE, Oral Surgeon, and
Nurse THOMAS, Medical Staff, in their
individual capacities,
Defendants.

1.

Brent Zafuto was at all relevant times an inmate in the custody of the New

York Department of Corrections and Community Service (“DOCCS”). He brings this action
under 42 U.S.C. § 1983, alleging that dental care and follow-up treatment he received in
February of 2010 was deficient and violated his constitutional rights to be free from cruel
and unusual punishment. Presently before this Court is Defendants’ motion for summary
judgment. For the following reasons, Defendants’ motion is granted.
2.

Under Rule 56 of the Rules of Civil Procedure the court can grant summary

judgment “if the movant shows that there is no genuine dispute as to any material fact.”
A fact is “material” if it “might affect the outcome of the suit under governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
A “genuine” dispute exists “if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Id. In determining whether a genuine dispute regarding
a material fact exists, the evidence and the inferences drawn from the evidence “must be
viewed in the light most favorable to the party opposing the motion.” Adickes v. S. H. Kress
& Co., 398 U.S. 144, 158–59, 90 S. Ct.1598, 1609, 26 L. Ed. 2d 142 (1970) (internal

quotations and citation omitted). The function of the court is not “to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
3.

Zafuto alleges that on February 17, 2010 he was escorted from Collins

Correction Facility to Attica Correctional Facility for a dental procedure. (Am. Compl., ¶¶
15-16; Docket No. 4.) Defendant Dr. O’Keefe examined him and informed him that his
“lower ‘wisdom tooth’” required extraction.1 (Id., ¶ 17.) Dr. O’Keefe then performed the
procedure, but, according to Zafuto, “although Okeefe was fully aware that he would likely
suffer an infection . . . Okeefe acted with a conscious disregard of the substantial risk of
harm to Plaintiff, [by] refus[ing] to provide any antibiotics.” (Id., ¶ 21.)
Thereafter, according to Zafuto, a severe infection took hold, and he requested
medical care. (Zafuto Decl., ¶ 8; Docket No. 30.) But Nurse Thomas, who examined him
that night, failed to provide adequate medical care despite an obvious infection. (Am.
Compl., ¶ 37.) Instead, she instructed him to simply drink two glasses of water. (Id., ¶ 36.)
According to Zafuto, over the next few days the infection only grew worse. (Id., ¶¶
38-40.) And, on February 21, 2010, he submitted a grievance on plain paper (because it
was a Sunday and no designated grievance forms were available), stating that he “was in
need of medical services and had been refused treatment by Nurse Thomas.” (Zafuto
Decl., ¶¶ 12–13.) The next day, February 22, 2010, he awoke to “increased pain, now to
such a degree as to render [him] nearly unable to physically move any part of his body.”
(Am. Compl., ¶ 40.) He again requested that he be seen by the medical staff, and this time
he was examined and eventually escorted to the hospital. (Id., ¶¶ 45-51.)
1

Plaintiff and Defendants spell Dr. O’Keefe’s name differently. This Court will adopt Defendants’
spelling, unless quoting one of Plaintiff’s submissions.

2

Once there, he was forced to undergo a second surgery near the infection site to
correct a cyst “that was present during” his initial dental procure. (Zafuto Decl., ¶ 17.) He
remained in the hospital for close to a month, and, on March 14, 2010, was finally
released. (Id., ¶ 18.)
Nearly a year after this series of events, Zafuto was scheduled to have another
dental procedure performed on January 7, 2011. (Id., ¶ 21.) Based on his experience in
February of 2010, however, he refused treatment and submitted a grievance explaining his
refusal. (Id., ¶ 22.) That grievance, seeking to receive dental care from someone other than
Dr. O’Keefe, was denied – as was an appeal of that decision. (Id., ¶¶ 23-24.)
4.

Defendants do not presently contest the merits of Zafuto’s suit. Instead, they

move for summary judgment on grounds that he failed to exhaust administrative remedies
as required by the Prison Litigation Reform Act of 1995 (“PLRA”).
The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, 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). Exhaustion of administrative remedies in
cases covered by the PLRA is mandatory, even when the prisoner seeks relief not
available through grievance proceedings, such as monetary damages. Porter v. Nussle,
534 U.S. 516, 524, 122 S. Ct. 983, 988, 152 L. Ed. 2d 12 (2002).
The Nussle Court reasoned that requiring prisoners to utilize the administrative
grievance process would reduce the quantity of prisoner suits, filter out frivolous claims,
and clarify the legal issues in those cases that warrant federal court review. Id. at 524–25.
In the interest of furthering these objectives, the Supreme Court held that “the PLRA's

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exhaustion requirement applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive force or
some other wrong.” Id. at 532.
5.

The PLRA further requires “proper exhaustion,” which “means using all steps

that the agency holds out, and doing so properly (so that the agency addresses the issues
on the merits).” Ruggiero v. County of Orange, 467 F.3d 170, 175–76 (2d Cir. 2006)
(quoting Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006))
(“Proper exhaustion demands compliance with an agency'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.”). Thus, inmates “must complete
the administrative review process in accordance with applicable procedural rules – rules
that are defined not by the PLRA, but by the prison grievance process itself.” Jones v.
Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) (internal citation and
quotation omitted).
6.

The New York State Department of Corrections and Community Service

employs a three-step Inmate Grievance Program that requires an inmate to: (1) file a
grievance with the Inmate Grievance Review Committee within 21 days of the alleged
violation; (2) appeal to the superintendent within four working days of receiving the Inmate
Grievance Resolution Committee's adverse written response; and appeal to the Central
Office Review Committee in Albany, New York within four working days of receipt of the
superintendent's adverse written response. See 7 N.Y.C.R.R. § 701.5; Abney v. McGinnis,

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380 F.3d 663 (2d Cir. 2004).2
7.

Exhaustion under the PLRA, however, is not jurisdictional, Richardson v.

Goord, 347 F.3d 431, 434 (2d Cir.2003), but is an affirmative defense, Jenkins v. Haubert,
179 F.3d 19, 28–29 (2d Cir.1999), that is itself subject to certain defenses such as
estoppel, Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). In assessing exhaustion
of administrative remedies, the Second Circuit has determined that
a three-part inquiry is appropriate in cases where a prisoner
plaintiff plausibly seeks to counter defendants' contention that
the prisoner has failed to exhaust available administrative
remedies as required by the PLRA, 42 U.S.C. § 1997e(a).
Depending on the inmate's explanation for the alleged failure
to exhaust, the court must ask whether administrative
remedies were in fact “available” to the prisoner. The Court
should also inquire as to whether the defendants may have
forfeited the affirmative defense of non-exhaustion by failing to
raise or preserve it, or whether the defendants' own actions
inhibiting the inmate's exhaustion of remedies may estop one
or more of the defendants from raising the plaintiff's failure to
exhaust as a defense. If the court finds that administrative
remedies were available to the plaintiff, and that the
defendants are not estopped and have not forfeited their
non-exhaustion defense, but that plaintiff nevertheless did not
exhaust available remedies, the court should consider whether
“special circumstances” have been plausibly alleged that justify
“the prisoner's failure to comply with administrative procedural
requirements.”
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (internal citations omitted).
Unavailability of administrative remedies is governed by an objective test, which asks
whether “a similarly situated individual of ordinary firmness would have deemed [grievance
procedures] available.” Id. at 688 (internal quotation marks omitted).
8.

Zafuto first contends that the grievance he submitted in January 2011, and

2

DOCCS regulations are revised frequently. The appropriate regulations are those in effect at the
time Zafuto filed his grievances. See, e.g., Amador v. Andrews, 655 F.3d 89, 96 n. 3 (2d Cir. 2011). But
the 2010 and 2011 regulations do not differ in any relevant respect from the current regulations.

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the subsequent appeal, are sufficient for PLRA exhaustion purposes. Although he filed this
grievance close to one year after the relevant incident occurred, he argues that the 21-day
limitation period should not apply because he was hospitalized for the entire grievance
period.
But, putting aside that Zafuto claims he had the capacity to submit a plain-paper
grievance during this period (and didn’t use the designated form only because it was a
Sunday); and assuming that he had no “available remedy” during the 21-day period; and
assuming still that any such period would toll the DOCCS limitations period, Zafuto fails to
explain why those circumstances justify his delayed submission. Even if the 21-day period
did not begin to run until he was released from the hospital, he still missed the deadline by
nearly 10 months. Indeed, DOCCS’ regulations specifically provide for as much as 45 days
of tolling if “mitigating circumstances” are present. 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a).3 Thus
it is not the case, as Zafuto appears to argue, that if an inmate is incapacitated for the initial
21 days, he is ipso facto, subject to no limitation period whatsoever. Zafuto points to no
authority suggesting otherwise.
He does argue that Borges v. Piatkowski is “directly on point.” 337 F. Supp. 2d 424,
425 (W.D.N.Y. 2004). But it is not. In Borges, Judge Larimer found that the inmate-plaintiff
had no available remedies because he could not have known the basis for his claim until after
the then-applicable 14-day time period expired. But Judge Larimer also noted that the plaintiff
had been transferred to a new facility, and DOCCS’ regulations at the time provided that a
grievance would be considered moot when it only affected the specific grievant while he was

3

The 45-day limitation is not relevant here since Zafuto was released from the hospital on March
14, 2010 and placed back in the general population at Collins the next day – well within 45 days of
February 17, 2010.

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a resident at the previous facility. Under such circumstances, present in Borges, the grievance
committee was to “dismiss and close the grievance.” Id. at 427 n. 2. By contrast, Zafuto does
not contend that he was precluded from filing a grievance due to a facility transfer.
Accordingly, the January 2011 grievance, to the extent it is even sufficiently
connected to the February 2010 dental procedure, was untimely filed and therefore does
not satisfy PLRA’s exhaustion requirement.
9.

Zafuto also argues that he exhausted his remedies by informal means. He

contends that two requests for medical treatment in late February effectively “mirror the
grievance and appeals process of the DOCCS.” (Pl.’s Br. at 15; Docket No. 29). But this
argument is foreclosed by Woodford, where the Supreme Court held that “PLRA
exhaustion requirement requires proper exhaustion.” 548 U.S. at 93 (emphasis added).
DOCCS has established specific and detailed procedures that an inmate must utilize to
properly exhaust his grievance. As the Supreme Court found, “[p]roper exhaustion
demands compliance with an agency'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.” Id. at 91. The two informal requests for
treatment plainly do not amount to “compliance with . . . critical procedural rules.” And
although DOCCS’ regulations encourage inmates to pursue informal resolutions, if Zafuto
wished to pursue this matter in federal court, “he was required by the [] grievance
procedure to make a formal, or informal followed by formal, complaint of the prison officials'
acts of which he now complains.” See Toomer v. Cnty. of Nassau, No. 07-CV-01495
JFB/ETB, 2009 WL 1269946, at *7 (E.D.N.Y. May 5, 2009); see also Nussle, 534 U.S. at
524 (“Even when the prisoner seeks relief not available in grievance proceedings, notably

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money damages, exhaustion is a prerequisite to suit.”).
10.

Zafuto further argues that a February 21, 2010 grievance, submitted on “plain

paper,” satisfies his PLRA exhaustion requirement.4 In that grievance he purportedly
complained that he “was in need of medical services and had been refused treatment by
Nurse Thomas.” (Zafuto Decl., ¶¶ 12–13.)
11.

As an initial matter, Defendants contend that a search of their records

produced no evidence of a February 2010 grievance. But Zafuto has submitted sworn
testimony suggesting that such a grievance was in fact filed, (see Auleta Decl., ¶¶ 12–13;
Docket No. 30) and, drawing all inferences and viewing this evidence in his favor, there
remains a triable issue of fact on this issue.
Proceeding under the assumption that such a grievance was filed, this Court must
next determine whether that grievance was sufficient for exhaustion purposes under the
PLRA. This Court finds that it was not.
12.

As noted above, to properly exhaust administrative remedies, an inmate must

first file a grievance and then (1) appeal to the superintendent and (2) appeal to the Central
Office Review Committee. By his own admission, Zafuto executed neither of these
appeals. Nor does he contend that he attempted to execute them. Although the
correctional facility took no action on Zafuto’s grievance and may have ignored it or lost it,
courts “have dismissed complaints at the pleading stage when an inmate confronted with
facility inaction fails to proactively grieve a claim to completion.” Chambliss v. Rosini, No.
09 CIV. 7221 PKC, 2010 WL 1838868, at *4 (S.D.N.Y. May 4, 2010) (citing Martinez v.

4

DOCCS regulations expressly allow for such “plain paper” grievances. 7 N.Y.C.R.R. §
701.5(a)(1) (“If this [inmate-grievance-complaint] form is not readily available, a complaint may be
submitted on plain paper.”).

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Williams, 186 F. Supp. 2d 353, 357 (S.D.N.Y. 2002), Waters v. Schneider, 2002 WL
727025, at *2 (S.D.N.Y. Apr. 23, 2002), & Veloz v. New York, 339 F. Supp. 2d 505, 516
(S.D.N.Y. 2004)). As the Martinez court found, “Plaintiff's argument that he is excused
because defendants failed to act with respect to the grievance is unpersuasive. Plaintiff
could have and should have appealed the grievance in accordance with grievance
procedures.” 186 F. Supp. 2d at 357; see also Atkins v. Menard, No. 9:11–CV–0366
(GTS/DEP), 2012 WL 4026840, at *4 (N.D.N.Y. Sept.12, 2012) (finding that plaintiff failed
to exhaust where he had the “ability, and indeed the duty, to appeal the IGRC's
nonresponse (to his grievance) to the next level, including CORC, to complete the
grievance process.”); Murray v. Palmer, No. 03–CV–1010, (DNH/GLS), 2008 WL 2522324,
at *16, *18 (N.D.N.Y. June 20, 2008) (to exhaust available administrative remedies, plaintiff
had to file an appeal with the superintendent from the IGRC's nonresponse, which included
a failure to acknowledge the receipt of a grievance and assign it a number); Midalgo v.
Bass, No. 03–CV–1128 (NAM/RFT), 2006 WL 2795332, at *7 (N.D.N.Y. Sept. 26, 2006)
(plaintiff required to seek an appeal to the superintendent, even though he never received
a response to his grievance and was not assigned a grievance number).
13.

In fact, DOCCS’ regulations specifically contemplate such a situation. As the

Murray court pointed out, “[i]t is important to emphasize that any failure by the IGRC or the
superintendent to timely respond to a grievance or first-level appeal, respectively, can be
appealed to the next level, including CORC, to complete the grievance process.” 2008 WL
2522324 at *15 (quoting 7 N.Y.C.R.R. § 701.6(g)).
14.

Although other courts have found that an ignored grievance may render any

remedies “unavailable,” those cases concern situations where a corrections officer

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proactively impeded an inmate’s attempt to file a grievance, or where the inmate’s repeated
efforts to submit a grievance were rebuffed. See, e.g., Thomas v. New York State Dep't of
Corr. Servs., No. 00 CIV. 7163 (NRB), 2002 WL 31164546, at *1 (S.D.N.Y. Sept. 30, 2002)
(corrections officer told inmate not to file a grievance).
15.

Nor does any other part of the three-part analysis outlined in Hemphill save

Zafuto’s claim. There is no dispute that Defendants have not waived this defense; they
raised it in their answer. (Ans. ¶ 20; Docket No. 9.) And, as noted, there is no allegation
that any of the named Defendants, by their own actions, inhibited Zafuto’s attempt at
exhaustion.
Zafuto does argue, without citation to authority, that there is an “issue of fact as to
whether” Defendants are estopped from asserting the exhaustion defense because the
named defendants caused Zafuto’s injury, which caused him to go to the hospital and thus
caused him to be unable to complete a grievance form. (Pl.’s Br. at 18-19.) But without any
authority suggesting that this type of indirect causation can serve as grounds for estoppel,
this Court will not stray from settled law holding that estoppel only applies when a
defendant directly impedes an inmate’s attempts at exhaustion. See, e.g., Ziemba, 366
F.3d at 163 (estoppel may be applicable where corrections officers allegedly beat and
threatened the inmate, denied him access to grievance forms, and transferred him to
another correctional facility); Hemphill, 80 F.3d at 688 (estoppel may potentially bar an
exhaustion defense where corrections officer threatened to bring criminal charges if the
inmate filed a grievance).
16.

Finally, no special circumstances exist that would excuse Zafuto’s failure to

exhaust his claim. Indeed, aside from the circumstances already discussed and rejected,

10

Zafuto does not argue that special circumstances exist. Accordingly, Defendants’ motion
is granted in full.
****
IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment (Docket
No. 27) is GRANTED.
FURTHER, that the Clerk of Court shall close this case.
Dated: January 24, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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