Ninortey v. Gibb et al
DECISION AND ORDER granting 38 Motion for Summary Judgment. This action is dismissed.. Signed by Hon. Charles J. Siragusa on 10/1/09. (KAP)
UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK
A N N A N G NINORTEY, P la in tif f , -v C .O . GIBB, et al., D e f e n d a n ts . D E C IS IO N AND ORDER 0 5 - C V -6 3 5 8 CJS
T h is is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, formerly a prison in m a te in the custody of the New York State Department of Correctional Services ("DOCS"), a lle g e s that Defendants, all employees of DOCS, violated his federal constitutional rights. N o w before the Court is Defendants' unopposed motion for summary judgment [#38]. For th e reasons that follow, Defendants' application is granted and this action is dismissed. BACKGROUND T h e facts of this case were set forth in a prior Decision and Order of the Court (Docket N o . [#12]), and need not be repeated here. It is sufficient to note that on or about May 1, 2 0 0 5 , Plaintiff was attacked by three inmates in the recreation yard at Attica Correctional F a cility ("Attica"). Plaintiff believes that the attack may have been orchestrated by
c o rre ctio n s staff, and that the motive for the attack was that staff and/or inmates were jealous o f his relationship with a female nurse employed at Attica. Plaintiff was subsequently issued a misbehavior report, based on his alleged failure to report the assault in a timely manner, a n d he was convicted of the charge, following a disciplinary hearing at which he maintains h is due process rights were violated. After serving a thirty-day disciplinary sentence in k e e p lo c k , Plaintiff was returned to his former cellblock. Plaintiff believed that he was in
d a n g e r there, so he faked a suicide attempt, in order to be placed in the Mental Health Unit ("M H U "). During his time in the MHU, Plaintiff alleges that he was assaulted by corrections s ta ff, while they were attempting to administer him medication. O n September 30, 2008, Plaintiff was deposed in connection with this action. During th e deposition, Plaintiff testified that he was familiar with the inmate grievance system, and th a t he utilized it in connection with unrelated matters that occurred both before and after the in c id e n ts at issue here. (Plaintiff's Dep. at 44). However, in connection with this action, the o n ly grievance that Plaintiff filed was a grievance requesting that he be transferred to a d iffe re n t facility. Id. at 44-45, 55-56. Plaintiff did not file a grievance concerning any of the m a tte rs complained of in this action. P la in tif f offered various reasons why he did not file a grievance. For example, he s ta te d that grievances were "basically used for problems that could be resolved and there w a s n 't anything that could be resolved if you file a grievance on being assaulted." (Pl. Dep. a t 44; see also, Id. at 58, 60-61).1 Plaintiff also indicated that he did not believe that he could file a grievance concerning the alleged false disciplinary charge. Id. at 59. In that regard, P la in tiff stated, "That's what I was told by most officials that I wrote to in Albany, from the C o m m is s io n e r, from the Inspector General's Office, is that there's certain things that you c a n 't investigate and that you had to file a claim to have it properly investigated." Id. at 59-60. Plaintiff further stated, in conclusory fashion, that complaints that he had written about other m a tte rs had been ignored. Id. at 56-57.
Plaintiff also stated that, during a subsequent period in his incarceration, while he was in the Special H o u s in g Unit ("SHU"), be believed that his grievances "went into the garbage." (Pl. Dep. at 45). However, he d o e s not claim that he attem p t e d to file grievances concerning the instant case that were discarded.
O n January 16, 2009, Defendants filed the subject summary judgment motion, c o n te n d in g , inter alia, that Plaintiff failed to comply with the exhaustion requirement found in 42 U.S.C. § 1997e(a).2 The Court issued a Motion Scheduling Order [#43], directing P la in tiff to file any opposing papers by June 5, 2009. To date, Plaintiff has not filed any re sp o n se . D IS C U S S IO N T h e standard for granting summary judgment is well established. Summary judgment m a y not be granted unless "the pleadings, depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any, show 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." F e d .R .C iv .P . 56(c). A party seeking summary judgment bears the burden of establishing that n o genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1 9 7 0 ) . "[T]he movant must make a prima facie showing that the standard for obtaining s u m m a ry judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (M a tth e w Bender 3d ed.). "In moving for summary judgment against a party who will bear th e ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an a b s e n c e of evidence to support an essential element of the nonmoving party's claim." G u m m o v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 4 7 7 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). The burden then shifts to the non-moving party to demonstrate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc.,
Plaintiff was served with an Irby notice. See, Docket [#39].
4 7 7 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P. 5 6 (e )("W h e n a motion for summary judgment is made and supported as provided in this rule, a n d adverse party may not rest upon the mere allegations or denials of the adverse party's p le a d in g , but the adverse party's response, by affidavits or as otherwise provided in this rule, m u s t set forth specific facts showing that there is a genuine issue for trial."). The underlying fa c ts contained in affidavits, attached exhibits, and depositions, must be viewed in the light m o s t favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). S u m m a ry judgment is appropriate only where, "after drawing all reasonable inferences in fa v o r of the party against whom summary judgment is sought, no reasonable trier of fact c o u ld find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d C ir .1 9 9 3 ) . The parties may only carry their respective burdens by producing evidentiary p ro o f in admissible form. FED. R. CIV. P. 56(e). Moreover, since Plaintiff is proceeding pro s e , the Court is required to construe his submissions liberally, "to raise the strongest a r g u m e n ts that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). Exhaustion of Administrative Remedies 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison c o n d itio n s 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 a v a ila b le are exhausted." Generally, in order to satisfy 42 U.S.C. § 1997e(a), a plaintiff must file a grievance with respect to the challenged behavior. Assuming that the grievance is
d e n ie d , he must then exhaust the grievance appeal process, by appealing to the facility S u p e rin te n d e n t, and then to CORC. However, the Second Circuit has identified circumstances in which an inmate's u n s u c c e s s f u l attempt to exhaust may still meet the exhaustion requirements of § 1997e(a). S e e Hemphill v. N.Y., 380 F.3d 680 (2d Cir.2004), Giano v. Goord, 380 F.3d 670 (2d C ir.2 0 0 4 ), Johnson v. Testman, 380 F.3d 691 (2d Cir.2004). In that regard, [w]hile the Second Circuit has recognized that the PLRA's exhaustion re q u ire m e n t is mandatory, it has also recognized three exceptions to the e x h a u s tio n requirement: "when (1) administrative remedies are not available to the prisoner; (2) defendants have either waived the defense of failure to e x h a u s t or acted in such a way as to estop them from raising the defense; or (3 ) special circumstances, such as reasonable misunderstanding of the g r ie v a n c e procedures, justify the prisoner's failure to comply with the e x h a u s tio n requirement." C h is h o lm v. New York City Dept. of Correction, No. 08 Civ. 8795(SAS), 2009 W L 2033085 a t *2 (S.D.N.Y. Jul. 13, 2009) (quoting Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d C ir . 2006)). H e re , Defendants have met their initial burden on summary judgment by establishing th a t Plaintiff never grieved or exhausted his administrative remedies concerning any of the c la im s in this action. Plaintiff did not respond to the motion. Moreover, at his deposition, P la in tiff offered only conclusory excuses for his failure to exhaust his remedies. None of th o se excuses qualifies as an exception to the exhaustion requirement. Plaintiff does not c la im that administrative remedies were unavailable or that Defendants prevented him from u s in g them, nor has he offered any reasonable explanation for his alleged belief that he c o u ld not file grievances over these matters. Consequently, the Court finds that Defendants a re entitled to summary judgment.
C O N C L U S IO N D e fe n d a n ts' motion for summary judgment [#38] is granted, and this action is d is m is s e d . 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). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
D a te d : O c to b e r 1, 2009 R o c h e s te r , New York /s / Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge
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