Pettiford v. Fischer et al
Filing
48
DECISION AND ORDER: Defendants' Motion for Summary Judgment 39 is GRANTED and this action is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in goo d faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Any request to proceed in forma pauperis on appeal should be directed by motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of Court is directed to enter judgment and to close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/19/16. -CLERK TO FOLLOW UP-(SCE)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PARIS PETTIFORD,
Plaintiff,
Case # 13-CV-436-FPG
v.
DECISION AND ORDER
C.O. MICHAEL HOSMER and
C.O. MATTHEW WILLIAMS,
Defendants.
Plaintiff Paris Pettiford (“Pettiford”) has brought this suit under 42 U.S.C. § 1983,
alleging that Defendants Michael Hosmer and Matthew Williams (collectively, the
“Defendants”), who are Corrections Officers employed by the New York State Department of
Corrections and Community Supervision (“DOCCS”), violated his constitutional rights by
failing to protect him on April 1, 2013 at the Elmira Correctional Facility. ECF No. 1. Because
Plaintiff failed to exhaust his administrative remedies before commencing this action,
Defendants’ Motion for Summary Judgment (ECF No. 36) is GRANTED, and this case is
dismissed with prejudice.
DISCUSSION
I.
Summary Judgment Standard
The standard for ruling on a summary judgment motion is well known. A party is
entitled to summary judgment “if the movant shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file.” Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986) (internal quotation marks omitted).
When considering a motion for summary judgment, all genuinely disputed facts must be
resolved in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). To
establish a material issue of fact, the non-movant need only provide “sufficient evidence
supporting the claimed factual dispute” such that a “jury or judge [is required] to resolve the
parties’ differing versions of the truth at trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968)). Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the
proof in order to see whether there is a genuine need for trial.’” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory
committee’s note on 1963 amendments). If, after considering the evidence in the light most
favorable to the non-moving party, the Court finds that no rational jury could find in favor of that
party, a grant of summary judgment is appropriate. Scott, 550 U.S. at 380 (citing Matsushita,
475 U.S. at 586-587).
II.
The Exhaustion Requirement
Under the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “[n]o action
shall be brought with respect to prison conditions under section 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.”
The administrative 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.”
Porter v. Nussle, 534 U.S. 516, 532 (2002).
If an inmate fails to exhaust his
administrative remedies, he is barred from commencing a federal lawsuit. Martin v. Niagara
County Jail, No. 05-CV-00868(JTC), 2012 WL 3230435, at *6 (W.D.N.Y. Aug. 6, 2012). In
other words, to commence a lawsuit, “prisoners must complete the administrative review process
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in accordance with the applicable procedural rules – rules that are defined not by the PLRA, but
by the prison grievance process itself.” Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012).
Exhaustion necessitates “using all steps that the [government] agency holds out, and doing so
properly.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting Woodford v. Ngo, 548
U.S. 81, 90 (2006)).
To be “[p]roper,” exhaustion must comply with all of the agency’s
“deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90–91.
To satisfy the PLRA’s exhaustion requirement, an inmate in New York is generally
required to follow the prescribed DOCCS grievance procedure, which is set forth at 7
N.Y.C.R.R. § 701.5. In short, a prison inmate’s administrative remedies consist of a three-step
grievance and appeal procedure: (1) investigation and review of the grievance by the Inmate
Grievance Resolution Committee (“IGRC”), which is comprised of inmates and DOCCS
employees; (2) if appealed, review of the IGRC’s determination by (or, if the committee is
unable to reach a determination, referral to) the superintendent of the facility; and (3) if the
superintendent’s decision is appealed, review and final administrative determination by the
Central Office Review Committee (“CORC”). See Id. All three steps of this procedure must
ordinarily be exhausted before an inmate may commence suit in federal court. See Morrison v.
Parmele, 892 F. Supp. 2d 485, 488 (W.D.N.Y. 2012) (citing Porter, 534 U.S. at 524).
It is undisputed that Plaintiff filed a grievance relating to this matter, and that it was
presented to the facility superintendent. It is also undisputed that Plaintiff never filed an appeal
with the CORC1, and therefore did not complete the third step in the grievance process.
1
The Defendants Rule 56 Statement of Material Facts (ECF No. 36-1) contains the following
relevant statements:
43.
A further review of the grievance records indicated that the plaintiff did not file an
appeal of the grievance to the C.O.R.C. as required under directive 4040. This is
indicated upon review of the unsigned appeal statement. Hale Dec. ¶¶ 6.
44.
A review of the CORC database list shows that there are no grievances listed for
plaintiff’s DIN Number 09-A-6253. Hale Dec. ¶ 8.
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Despite not filing the required appeal with the CORC, Plaintiff argues that summary
judgment is inappropriate for two reasons. First, he argues that the affidavits submitted in
support of the summary judgment motion are from individuals not previously disclosed by the
Defendants, so that evidence should be excluded pursuant to Fed. R. Civ. P. 37. Second, he
argues that he should be excused from the exhaustion requirement because he was not
represented by counsel when he filed his grievance.
III.
Disclosure of Witnesses
Plaintiff argues that the witnesses (William A’Brunzo, Raymond Coveny, Jeffrey Hale
and Paul Piccolo) who provided declarations to the Court regarding DOCCS’ grievance records
and confirming that CORC has no record of any grievance appeal from the Plaintiff should be
precluded because they were not previously disclosed by Defendants. The Court disagrees.
Fed. R. Civ. P. 37(c)(1) permits the Court to preclude witnesses if a party fails to identify
a witness if they are required to do so under Fed. R. Civ. P. 26(a) or (e). However, this case was
exempt from the directives of Rule 26(a), since it was “an action brought without an attorney by
a person in the custody of the United States, a state, or a state subdivision.” See Fed. R. Civ. P.
26(a)(1)(B)(iv). Even though Defendants were not required to initially2 provide a Rule 26
disclosure, they nevertheless did so on February 28, 2014 (ECF No. 17), and while these specific
individuals were not listed, the Court finds that to be of no moment. First, while the witnesses
were not listed by name, the disclosure does state that Defendants’ possible witnesses included
“any and all correctional or medical personnel identified in plaintiff’s medical record, grievances
or correctional records may provide testimony and information to support defendants’ defenses
Plaintiff has not submitted a statement of material facts to counter Defendant’s Statement of Material
Facts, and the Court therefore considers these facts alleged by Defendants – which are supported by
citations to evidence in admissible form – to be undisputed, in accordance with Local Rule of Civil
Procedure 56(a)(2). See Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998).
2
The Complaint was filed pro se by Plaintiff on April 30, 2013. ECF No. 1. It was not until
almost a year later, on March 31, 2014, that Plaintiff was represented by counsel. See ECF No. 20.
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to plaintiff’s claims and as to their involvement with regard to plaintiff's claims.” ECF No. 17, at
2.
Further, the Defendants’ initial disclosure indicates that they intended to rely on the
affirmative defense of non-exhaustion. That the disclosure did not list the exact names of the
witnesses who provided affidavits regarding DOCCS’ records is not material in this case. The
complained of witnesses are not traditional fact witnesses, in that they did not see an incident
take place and are not being presented to testify in that capacity. Rather, they are simply records
custodians, who have prepared affidavits to authenticate records maintained by DOCCS.
Further, the initial disclosures that Defendants provided include the Plaintiff’s grievance records
from DOCCS, including the Superintendent’s grievance decision dated April 19, 2013. ECF No.
17, at 95 (Bates page 92).
Notably, that document contains a section entitled “Appeal
Statement” which provides that:
If you wish to refer the above decision of the Superintendent, please sign below
and return this copy to your inmate Grievance Clerk. You have seven (7)
calendar days from receipt of this notice to file your appeal. Please state why you
are appealing this decision to C.O.R.C.
Id.
Below that language is a place for the inmate to advance his appeal to the CORC, and
there are sections for the inmate and the grievance clerk to sign and date the form. Id. That
section of the document is conspicuously blank. Id. Far from concealing the facts to support
their affirmative defense of non-exhaustion, the record demonstrates that Defendants disclosed
the relevant documents to Plaintiff. The Court finds that the failure to disclose the specific names
of the records custodians who authenticated the documents for the purpose of this summary
judgment motion was not required, and, in any event, was harmless.
Finally, while Plaintiff argues that he “may well have conducted additional discovery had
these witnesses been disclosed in a timely fashion” (ECF No. 39, at 4), this conclusory statement
is insufficient to defeat a summary judgment motion. The need for additional discovery to
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properly contest a summary judgment motion is specifically addressed in Fed. R. Civ. P. 56(d),
and “to request discovery under [Rule 56(d)], a party must file an affidavit describing: (1) what
facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to
raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and
(4) why the affiant’s efforts were unsuccessful.” Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir.
2004). Here, Plaintiff has submitted no such affidavit, and the memorandum of law fails to state
any specific facts Plaintiff seeks to obtain, or how taking discovery from a records custodian
could reasonably be expected to raise a genuine issue of material fact. For these reasons, the
Court finds Plaintiff’s arguments unpersuasive, and sees no basis to either preclude the record
custodian witnesses or to find that additional discovery from these witnesses would have any
material effect on the summary judgment motion.
IV.
Excusing the Failure to Exhaust
Plaintiff also argues that “because plaintiff was not represented by counsel at the time he
filed his initial grievance, or the time he filed his initial complaint in this Court, and failure to
comply with the rules regarding exhaustion should be forgiven.” ECF No. 39, at 8. Plaintiff
provides no legal authority to support this argument.
It is beyond dispute that exhaustion under the PLRA is mandatory. Woodford, 548 U.S.
at 85; Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is
mandatory under the PLRA.”). The PLRA is also clear that exhaustion must occur before
bringing suit in district court. See 42 U.S.C. § 1997e(a). The Supreme Court explained the
importance of this pre-suit exhaustion requirement:
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Congress afforded corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case. In some
instances, corrective action taken in response to an inmate’s grievance might
improve prison administration and satisfy the inmate, thereby obviating the need
for litigation. In other instances, the internal review might filter out some
frivolous claims. And for cases ultimately brought to court, adjudication could be
facilitated by an administrative record that clarifies the contours of the
controversy.
Porter, 534 U.S. at 525 (internal quotations marks and citations omitted).
Notably, there is no requirement that an inmate be provided with counsel to file an
internal grievance, nor is there any exception to the PLRA’s mandatory language for grievances
filed without the assistance of counsel. Nor can this Court excuse the Plaintiff’s non-exhaustion
based on this argument. As the Supreme Court recently held, the mandatory language of the
PLRA “means a court may not excuse a failure to exhaust, even to take [special] circumstances
into account.” Ross v. Blake, --- U.S. ---, 136 S. Ct. 1850, 1856 (2016). Rather, “the only limit
to [the PLRA’s] mandate is the one baked into its text: An inmate need exhaust only such
administrative remedies as are ‘available.’” Id. at 1862.
Plaintiff has not argued that
administrative remedies were unavailable to him, and indeed, the undisputed facts of this case
reveal that Plaintiff filed a grievance and appeal that was taken to the Superintendent. As a
result, Plaintiff’s failure to completely exhaust his administrative remedies by appealing to the
CORC is fatal to his case, and Defendants are entitled to summary judgment.
CONCLUSION
Defendants’ Motion for Summary Judgment (ECF No. 36) is GRANTED and this action
is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that
any appeal from this Order would not be taken in good faith and leave to appeal to the Court of
Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Any
request to proceed in forma pauperis on appeal should be directed by motion to the United States
7
Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of
Appellate Procedure. The Clerk of Court is directed to enter judgment and to close this case.
IT IS SO ORDERED.
Dated: September 19, 2016
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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