Wright v. City of New York et al

Filing 169

DECISION AND ORDER: On December 7, 2021, and December 8, 2021, the Court conducted an evidentiary hearing in this case on the issue of exhaustion of administrative remedies. At the conclusion of the hearing, the undersigned reserved decision and indi cated that a written decision would follow. For the reasons set forth in the Court's Decision and Order, Plaintiff is excused from exhausting his administrative remedies and this case will proceed to trial as scheduled on February 14, 2022. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 1/24/2022. (SFR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LEDARRIUS WRIGHT,
Plaintiff,
v.

Case # 13-CV-563-FPG
DECISION AND ORDER

JACQUELYN LEVITT, M.D., et al.,
Defendants.
INTRODUCTION
On December 7, 2021, and December 8, 2021, the Court conducted an evidentiary hearing
in this prisoner civil rights action brought pursuant to 42 U.S.C. § 1983 by Plaintiff Ledarrius
Wright against Defendants Carl Koenigsmann, Jacquelyn Levitt, and Christina Misa. The hearing
concerned Defendants’ affirmative defense that Plaintiff failed to exhaust his available
administrative remedies, as required by the Prison Litigation Reform Act of 1995 (“PLRA”).
At the hearing, documentary evidence was admitted, and testimony was taken of witnesses
called by Plaintiff and Defendants. At the conclusion of the hearing, the undersigned reserved
decision and indicated that a written decision would follow. For the reasons stated below, Plaintiff
is excused from exhausting his administrative remedies and this case will proceed to trial as
scheduled on February 14, 2022.
PROCEDURAL HISTORY
The Court assumes the parties’ familiarity with the underlying facts and the full record of
prior proceedings in this matter. On January 18, 2019, Defendants moved for summary judgment
arguing, inter alia, that Plaintiff had failed to sustain his burden of proving that the grievance

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procedure was unavailable to him. ECF No. 83 at 2. On June 27, 2019, Magistrate Judge Hugh
B. Scott issued a Report and Recommendation (“R&R”) recommending denial of Defendants’
summary judgment motion, ECF No. 92, and, on February 25, 2020, District Judge Lawrence J.
Vilardo issued an order adopting Judge Scott’s R&R on de novo review. ECF No. 97. In that
order, Judge Vilardo found that Plaintiff’s evidence—that even the prison officials in charge of the
process for appealing a denial of medical care were “not sure as to the appropriate procedure”—
was sufficient “to create an issue of fact as to whether the ‘administrative scheme [is] so opaque
that . . . no ordinary prisoner [could] make sense of what it demands.’” ECF No. 97 at 6 (citing
Ross v. Blake, 136 S. Ct. 1850, 1859 (2016)).
On January 7, 2021, Defendants moved in limine for a pretrial evidentiary hearing, arguing
that the Court, rather than a jury, should resolve the factual issue identified by Judge Vilardo—
i.e., whether Defendants’ administrative scheme is indeed obscure to such a degree that an ordinary
inmate could not avail himself of it. See ECF No. 124-1 at 7-9; ECF No. 97 at 6. “[T]he Second
Circuit has held that disputed facts do not convert exhaustion into a jury issue.” Sims v. Ellis, No.
15-CV-6355, 2019 WL 4918048, at *6 (W.D.N.Y. Oct. 4, 2019). “Instead, the appropriate remedy
[is] to hold a hearing on the issue of exhaustion.” Id.; see also Shepherd v. Fisher, No. 08-CV9297, 2017 WL 666213, at *24 (S.D.N.Y. Feb. 16, 2017) (“There continue to be factual disputes
that prevent the Court from deciding whether [plaintiff] exhausted his claims and/or whether the
administrative remed[ies], although officially on the books, were actually available to plaintiff.
Whether these claims were properly exhausted is a disputed issue of fact reserved for the Court
and not the jury.” (internal quotation marks & citation omitted)). Accordingly, the Court granted
Defendants’ motion and held a pretrial evidentiary hearing on administrative exhaustion. ECF No.
146; ECF No. 161; ECF No. 162.

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LEGAL STANDARD
Under the PLRA, “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title . . . 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).
In general, where a prisoner fails to properly follow an established grievance procedure
prior to bringing suit, “he has failed to exhaust his administrative remedies, and his claims are
subject to dismissal.” Wallace v. Fisher, No. 13-CV-1208, 2015 WL 9275001, at *3 (N.D.N.Y.
Dec. 18, 2015) (citing Woodford v. Ngo, 548 U.S. 81, 93 (2006)). “However, a plaintiff’s failure
to exhaust does not end the inquiry.” Id.
The Supreme Court has identified “three kinds of circumstances in which an administrative
remedy, although officially on the books, is not capable of use to obtain relief.” Ross v. Blake,
136 S. Ct. 1850, 1859-60 (2016). They are: (1) “when (despite what regulations or guidance
materials may promise) [the administrative procedure] operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when “an
administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use”—
that is, when “no ordinary prisoner can discern or navigate [the procedure]”; and (3) “when prison
administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidations.” Id.
Though “defendants bear the initial burden of establishing, by pointing to legally sufficient
sources such as statute, regulations, or grievance procedures, that a grievance process exists and
applies to the underlying dispute,” Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir.
2015) (alterations and citations omitted), it is plaintiff’s burden to show that “other factors . . . .
rendered a nominally available procedure unavailable as a matter of fact.” Id. Thus, “while the

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initial inquiry of nominal availability is a question of law, the subsequent inquiry of actual
availability is one of fact.” Wright v. Levitt, No. 13-CV-563, 2020 WL 897258, at *2 (W.D.N.Y.
Feb. 25, 2020).
As stated above, “the Second Circuit has held that disputed facts do not convert exhaustion
into a jury issue.” Sims, 2019 WL 4918048, at *6. Indeed, where factual disputes “prevent the
Court from deciding whether [a plaintiff] exhausted his claims and/or whether the administrative
remed[ies], although officially on the books, were actually available to [the plaintiff],” those
factual questions are “reserved for the Court and not the jury.” Shepherd, 2017 WL 666213, at
*24.
DISCUSSION
I.

Factual Findings
After carefully considering the evidence submitted at the hearing, the Court finds that an

ordinary prisoner in Plaintiff’s position, in the face of an ongoing medical review process, would
not be able to discern how to appeal the denial of medical care—either because he would have
understood the medical review process to have supplanted the standard grievance process, or he
would have reasonably understood the review process to be ongoing, or both.
The following represents the Court’s findings of fact. Plaintiff is deaf and was transferred
to Wende Correctional Facility because that facility is equipped to help inmates who are hearingimpaired. Tr. 26 at 14-16. 1 On April 30, 2010, Plaintiff was recommended by an audiologist to
have a consult with an ENT specialist to be evaluated for cochlear implants. Tr. 102-03 at 10-20.
APS Healthcare (“APS”) denied this consultation request. Tr. 27 at 6-10. APS is not part of the
Department of Corrections and Community Supervision (“DOCCS”) and is “an outside entity”
“Tr.” refers to the record from the pretrial administrative exhaustion hearing in this matter. ECF No. 161; ECF No.
162.

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that essentially acts as a health management organization (“HMO”), making determinations
regarding the medical necessity of treatment for DOCCS’ inmates. Tr. 83-84 at 1-9. Consult
requests for outside consultations were entered into the computer and then reviewed by APS using
evidence-based medicine in order to make medical decisions. Tr. 83 at 4-9.
DOCCS’ Regional Medical Director (“RMD”), Dr. Christina Misa (“Misa”), subsequently
approved APS’s denial of the April 2010 ENT consult request. Tr. 103 at 8-20. RMD review
occurs automatically after a denial by APS. Tr. 83 at 10-14. Misa’s reasoning was that traditional
hearing aids had not been attempted at that time. Tr. 103 at 8-12. After Misa’s denial, Plaintiff
tried hearing aids, which proved ineffective. Tr. 27 at 11-14. Thereafter, on November 9, 2010,
Plaintiff was once again recommended to have a consult with an ENT specialist to be evaluated
for cochlear implants. Tr. 27-28 at 17-1; ECF No. 166 at 7. Wende medical submitted a request
for an ENT consult for evaluation for cochlear implant surgery on November 23, 2010. Plaintiff’s
Exhibit 30; ECF No. 166 at 7.
On November 23, 2010, APS denied the second request to have Plaintiff consult with an
ENT specialist regarding cochlear implants. Tr. 84-85 at 21-10. APS’s denial again made its way
to Misa’s desk. She reviewed the denial on December 8, 2010, and requested that a report on
Plaintiff’s history of deafness, current functional status, and accommodations be sent to her and
Chief Medical Officer (“CMO”) Dr. Carl Koenigsmann (“Koengismann”). Tr. 86 at 10-21;
Plaintiff’s Exhibit 30. At that time, Misa decided it was appropriate to “send [ ] up” APS’s denial
to Koenigsmann because she “had never had to review a cochlear implant” request. Tr. 86-87 at
19-7. According to Misa, the review of the APS denial was “out of [her] hands” once she elevated
it to Koenigsmann. Tr. 88 at 7. It is unclear what occurred once Misa “elevated” the issue to
Koengismann. Koenigsmann has no recollection of Plaintiff’s request, but he testified at a

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deposition that the decisions of a DOCCS’ review agency (including APS) are reviewed by the
RMD. “If the regional medical director agrees with the denial, then the consultation is denied and
it goes no further. If the regional medical director disagrees with the denial, then they would
approve it.” ECF No. 125-3 at 36-37 (emphasis added); Plaintiff’s Exhibit 61. Koenigsmann
further testified that once APS had denied Plaintiff’s ENT consult request, “it is all up to [Misa] at
that point” to decide whether to agree or disagree with the denial. Id. at 39. From his standpoint,
it was “outside of normal practices” to have patient information sent to both the RMD and CMO.
See ECF No. 165 at 3 (citing Plaintiff’s Exhibit 61 at 40).
If Dr. Koenigsmann’s testimony is to be believed, he would have taken no action on
Plaintiff’s second request; review would have and should have ended with Misa. On the other
hand, there is some evidence that, contrary to Koenigmann’s testimony and consistent with Misa’s
testimony, Koenigsmann did review Plaintiff’s second request.
A January 21, 2011 memo sent by Deputy Superintendent Susan Post (“Post”) to
Koenigsmann. reads as follows:
Attached is a report from Wende Correctional Facility Manual Communicator C.
Zaluski which provides an overview of inmate Wright’s current ability to
communicate. It appears that at this time the reasonable accommodations provided
for Mr. Wright are adequate. Records indicate that Wright will not be Parole
eligible until September 12, 2045. Therefore, we will have ample opportunity to
continue to monitor Mr. Wright’s ability to communicate.
ECF No. 71-3. 2 Misa testified that this letter indicates that Koenigsmann made a determination
regarding Plaintiff’s second request. Tr. 87 at 8-24.
According to the testimony of Dr. Jacquelyn Levitt (“Levitt”), Lead Facility Health
Medical Officer at Wende, Post informed Levitt of the decision that Plaintiff’s second request was

This document was not admitted into evidence at the exhaustion hearing. However, it was part of the record before
the Court on Defendants’ motion for summary judgment. The Court takes judicial notice of it, as requested by
Defendants. See ECF No. 166 at 9.

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denied. She further testified that Post “apparently had received the response from Chief Medical
Officer, Dr. Koenigsmann.” Tr. 131 at 19-20; 154-155 at 21-1. However, when asked how Post
received a final determination from Koenigsmann, she testified that she was unaware of whether
any communication from Koenigsmann to Post occurred in writing or on the phone and that it
would not have been “common” for such a communication to occur orally. Tr. 155 at 2-8. There
is no evidence in the record of a written communication from Koenigsmann to Post. Levitt further
testified that once she learned from Post that the request had been denied, she communicated that
decision to Plaintiff in writing and verbally in her office. Tr. 155 at 9-11.
The written communication by Levitt to Plaintiff was a February 2, 2011 letter. In pertinent
part, the letter reads: “After a review of your records, it has been determined that the reasonable
accommodations that have been provided to you allow you to communicate adequately, obviating
the need to pursue a cochlear implants at this time.” ECF No. 71-5 at 1; Defendants’ Exhibit 413.
Plaintiff testified, and the Court credits, that he does not recall when he became aware of
the letter and did not understand the letter to mean that his second request for an ENT consult was
a closed issue. Tr. 52 at 4-7, 19-24. Indeed, Levitt herself testified that the letter was misleading.
Tr. 158 at 6-10. Because he believed medical review was ongoing, Plaintiff didn’t file a grievance,
and in April 2013, Plaintiff filed the present action challenging the denial of his consult request.
Tr. 28-29 at 21-23; ECF No. 1
The hearing unveiled important facts regarding whether Plaintiff was ever directed by
Defendants, or other prison officials, to the standard grievance process, despite the ongoing
medical review process. Post testified that although she sometimes referred inmates who made
medical requests to the “grievance people” to file a grievance, she did not recall doing so in
Plaintiff’s case. Tr. 218 at 14-23; Tr. 221 at 19-25. Additionally, on at least one occasion, Plaintiff

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was specifically directed by a prison official to make requests related to medical care to medical
personnel. He was not directed to the standard grievance procedure. This occurred when K.
Crowley, Deputy Superintendent for Programs, informed Plaintiff in a January 12, 2011 memo
that he “need[ed] to deal with Medical Staff on the issue of [him] getting implants as they have to
get the approval for this type of thing. I am sorry but there is nothing more I can do to assist you
in this matter.” Defendants’ Exhibit 415.
II.

Analysis
Defendants argue that Plaintiff did not exhaust his administrative remedies because he

could have filed a grievance at any time using DOCCs’ standard three-step grievance system—
regardless of the status of the review of Plaintiff’s ENT consult request by DOCCS’ medical
personnel. ECF No. 166 at 13, 16. Though it is undisputed that no one within the standard
grievance process had the authority to overrule a medical determination by the CMO, ECF No.
165 at 4 (citing Tr. 97-98 at 22-12), Defendants assert that the grievance process is not a dead letter
as it may provide some relief. Specially, they point out that medical personnel may “reconsider
the decision” or explain their decision more clearly to an inmate-complainant in response to a
standard grievance. ECF No. 166 at 22-23.
Plaintiff counters that the standard grievance program could not have been used because
the medical denial at issue was not grievable under DOCCS’ Directive 4040, Section 701(3)(1). 3
ECF No. 165 at 6-10. In the alternative, he contends that the grievance system was not available
to him because , inter alia, it was so opaque that it was incapable of use as a practical matter and
because he was misled by prison officials’ communications, which he asserts undermined his use

That Section provides that “[a]n individual decision or disposition of any current or subsequent program or procedure
having a written appeal mechanism which extends review to outside the facility shall be considered non-grievable.”
Defendants’ Exhibit 408.
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of the grievance process. Id. at 12-16. Because the Court finds that administrative remedies were
not actually available on Plaintiff’s latter point, it will simply assume that the grievance system
was theoretically an appropriate mechanism to make medical review complaints.
Though Defendants would have this Court interpret Plaintiff’s prior use of the grievance
procedure—and failure to use it in this instance—as evidence that Plaintiff was in a position to
grieve the denial of an ENT consult, Plaintiff’s decision is consistent with his documented belief
that he was still waiting for a decision about whether he would get cochlear implants through the
review of DOCCS medical personnel, separate and apart from the standard grievance process. See
Tr. 28 at 21-23; Tr. 32 at 4-15. More importantly, it underscores the possibility that Plaintiff
understood the medical review procedure to be the only review process available in this situation
or to have supplanted the standard procedure.
Furthermore, reliance on Dr. Levitt’s February 2, 2011 letter to Plaintiff to assert that
Plaintiff should have known he could grieve the denial of an ENT consult for cochlear implants is
misplaced. Levitt’s letter reads as follows: “After a review of your records, it has been determined
that the reasonable accommodations that have been provided to you allow you to communicate
adequately, obviating the need to pursue a cochlear implants at this time.” ECF No. 71-5 at 1;
Defendants’ Exhibit 413. It is unclear from Plaintiff’s testimony when he became aware of the
letter, and Plaintiff testified that he does not know the meaning of the word “obviating” and did
not understand this letter to close the issue. Tr. 52 at 4-7, 19-24.
If Plaintiff’s misunderstanding of the appropriate grievance procedure was the only basis
for his assertion that administrative remedies were unavailable, he would not be excused from
exhausting his remedies. See Richardson v. Jakubowski, No. 16-CV-6038, 2019 WL 4674199, at
*3 (W.D.N.Y. Sept. 25, 2019). (finding failure to exhaust unexcused where plaintiff asserted that

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he misunderstood the grievance procedures but failed to allege any false or misleading statements
by prison officials).

“Absent misleading statements by prison officials, an inmate’s

misunderstanding of a procedure does [not] mean the procedure has been misrepresented and is
therefore unavailable.” Id.
Here, Plaintiff has adduced evidence that DOCCS officials were confused about the proper
medical care review process and how to properly communicate the denial of the ENT consult
request to Plaintiff. More importantly, there is testimony from prison officials that they found
their own communications misleading—communications which purportedly closed the loop on
the denial of the ENT consult request.
Specifically, Levitt testified that her letter to Plaintiff “maybe . . . was a little misleading
to him.” Tr. 158 at 6-10. Post testified that while she sometimes referred inmates to the grievance
process when it applied, she had no recollection of doing so here. Tr. 218 at 14-23; Tr. 221 at 1925. On another occasion, Plaintiff was specifically directed to “Medical Staff”—not to the inmate
grievance procedure—by Deputy Superintendent for Programs K. Crowley. Defendants’ Exhibit
415. These facts set this case apart from cases where an inmate cries foul regarding the role prison
officials played in making a grievance process unavailable, but offers nothing to “back it up.” See
Belilie v. Griffin, No. 9:11-CV-0092, 2013 WL 1776086, at *8 (N.D.N.Y. Feb. 12, 2013) (finding
plaintiff's “mere threadbare allegations that his grievances were intercepted and discarded, without
evidence to support such allegation . . . insufficient to excuse his failure to comply with the IGP.”);
Veloz v. New York, 339 F.Supp.2d 505, 514 (S.D.N.Y. 2004) (“Even assuming [the plaintiff] did
submit grievances, he offers no evidence that any particular officer thwarted his attempts to
file[.]”).

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Based on the analysis above, and upon careful consideration of all of the evidence
submitted at the hearing, the Court finds that an ordinary prisoner in Plaintiff’s position could not
have discerned how to appeal the denial of medical care in this case. The one-two punch of the
discrepancies among prison officials regarding the appropriate procedure along with Plaintiff’s
belief that a medical review was (and still is) ongoing, rendered the standard grievance procedure
unavailable. See Ross, 136 S. Ct. at 1855, 1860-61 (remanding case for consideration of whether
administrative procedures were available to an inmate who (1) believed that an internal employee
misconduct investigation supplanted the standard inmate grievance process and (2) produced
evidence that prison officials dismissed standard grievances as procedurally improper when
employee investigations were pending).
CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff has met his burden to show
that other factors rendered Defendants’ nominally available administrative grievance procedure
unavailable to him as a matter of fact. Accordingly, this case will proceed to trial as scheduled on
February 14, 2022.
IT IS SO ORDERED.
Dated: January 24, 2022
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
District Judge
United States District Court

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