Tapp v. Seppio et al

Filing 53

DECISION AND ORDER granting 37 Motion for Summary Judgment; denying 49 Motion for Summary Judgment. This action is dismissed. Signed by Hon. Charles J. Siragusa on 1/13/12. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SEAN TAPP,
Plaintiff,
-vs-

DECISION & ORDER
05-CV-6485-CJS-JWF

SGT. SEPPIO, et al.,
Defendants.

APPEARANCES
For plaintiff:

Sean Tapp, pro se
09-0432
625 E. King Street
Lancaster, PA 17602

For defendants:

Benjamin A. Bruce, A.A.G.
New York State Office of the Attorney General
144 Exchange Boulevard, Suite 200
Rochester, NY 14614
INTRODUCTION

Siragusa, J. Sean Tapp (“Plaintiff”), a prison inmate previously in the custody of the
New York State Department of Corrections and Community Supervision (“DOCCS”),1
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants
Stanley Sepiol (“Sepiol,” referred to in the Complaint as “Seppio”), Jeffrey Hale (“Hale”),
Richard Kwasnik (“Kwasnik”), Paul Chappius (“Chappius”), and Michael McGinnis
(“McGinnis”)

for alleged violations of his Constitutional rights under the Eighth

Amendment. Compl., Sept. 15, 2005, ECF No. 1. Now before the Court is Defendants’
Notice of Motion for summary judgment, Jan. 5, 2007, ECF No. 37, and Plaintiff’s Notice

1

The New York State Department of Correctional Services (DOCS) merged with
the New York State Division of Parole to become the DOCCS on April 1, 2011.

of Motion Opposing Summary Judgment, Feb. 1, 2007, ECF No. 49. For the reasons
stated below, Defendants’ motion is granted, Plaintiff’s cross-motion is denied, and this
action is dismissed.
BACKGROUND
The following facts are viewed in the light most favorable to the Plaintiff. From
December 22, 2003, to March 19, 2004, Plaintiff was housed in A Block, 6 Gallery, 20 cell
at Southport Correctional Facility (“Southport”). During the time period in question,
McGinnis was the Superintendent at Southport, Chappius was Deputy Superintendent for
Security, Sepiol was a Correction Sergeant, Kwasnik a Correction Officer, and Hale was
the Inmate Grievance Program (“IGP”) Supervisor.
On March 1, 2004, Correction Officer Kevin Aiken (“Aiken”),2 while assigned to A
Block, was escorting a nurse on 6 Gallery and observed what appeared to be feces on the
bars of 20 cell, which was then occupied by Plaintiff. After Aiken and the nurse completed
her rounds, Aiken returned to 6 Gallery with another Sergeant to examine the substance
on 20 cell more closely. Based on its odor, color, and appearance, Aiken determined that
the substance on the cell bars was fecal matter, which was also found on a towel and
blanket that had been hanging on the front of 20 cell. Aiken concluded that the feces could
have only been thrown from cell 21, which was occupied by another inmate. The inmate
admitted to Aiken that he had thrown the feces, and was subsequently moved to another
cell. The soiled blanket, towel, and a pillow case were removed from Plaintiff’s cell bars.
DOCS Directive 4912 states that inmates are responsible for cleaning the interior
of their cells, while cadre inmates, assigned as porters, cleaned the gallery floors and cell
2

Aiken is not a party to this action.

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fronts. Inmates are provided with materials to clean the inside of their cells. Chappius Decl.
Ex. F, Dec. 15, 2006, ECF No. 41. The exterior of Plaintiff’s cell was cleaned by Southport
cadre inmates at the direction of the correction officers. On March 19, 2004, Plaintiff was
transferred from Southport to Franklin County for a grand jury appearance, and was
returned to Southport on March 30, 2004, where he was then confined in A Block 3 Gallery
16 cell.
DOCCS records indicate that Plaintiff made one written complaint at Southport after
the March 1 incident concerning the condition of his cell dated March 1, 2004. That
complaint was received by the Division of Health Services on March 19, 2004 and by the
Deputy Superintendent’s Office on March 23, 2004. Id. Ex. D. Chappius, the Deputy
Superintendent for Security, received the complaint on March 29, 2004, and ordered the
A Block Sergeant to investigate Plaintiff’s claims. At that point, however, Plaintiff had
already moved out of A Block 6 Gallery 20 cell. On April 7, 2004, Lieutenant M. Sheehan,
on behalf of Chappius, sent Plaintiff a memo advising him that his complaint had become
moot in light of his transfer to another cell. Id. Ex. E.
The records of the Southport IGP also reflect that Plaintiff did not file a grievance
relating to the March 1, 2004 incident in the months that followed. A printout of grievances
filed by Plaintiff shows that Plaintiff did file a grievance in March 2004, but it concerned a
request to copy files and not the sanitary conditions of his cell. Hale Decl. Ex. B, Jan. 5,
2007, ECF No. 43. Likewise, a search of the DOCCS Central Office Review Committee
(“CORC”) database revealed that Plaintiff filed no grievance appeals in 2004 from
Southport in which he claimed that in March 2004 he had been confined in a fecessmeared cell. Eagen Decl. Ex. A, Jan. 5, 2007, ECF No. 42.
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ANALYSIS
Summary Judgment Standard
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless “the pleadings, depositions, answers to
interrogatories, and admissions 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.” Fed. R. Civ. P. 56(c). A party seeking summary judgment
bears the burden of establishing that no genuine issue of material fact exists. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “[T]he movant must make a prima facie
showing that the standard for obtaining summary judgment has been satisfied.” 11 Moore’s
Federal Practice, § 56.11[1][a] (Matthew Bender 3d ed.). “In moving for summary judgment
against a party who will bear the ultimate burden of proof at trial, the movant may satisfy
this burden by pointing to an absence of evidence to support an essential element of the
nonmoving party’s claim.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)
(citing Celotex Corp. v. Catrett, 477 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 that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Anderson v. Liberty
Lobby, Inc., 477 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. The
underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed
in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655
(1962). Summary judgment is appropriate only where, “after drawing all reasonable
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inferences in favor of the party against whom summary judgment is sought, no reasonable
trier of fact could find in favor of the non-moving party.” Leon v. Murphy, 988 F.2d 303, 308
(2d Cir. 1993). The parties may only carry their respective burdens by producing
evidentiary proof in admissible form. Fed.R.Civ.P. 56(c). Moreover, since Plaintiff is
proceeding pro se, the Court is required to construe his submissions liberally, “to raise the
strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir.1994).3
Exhaustion of Administrative Remedies
Defendants argue in their motion for summary judgment that Plaintiff’s Eighth
Amendment claim must be dismissed pursuant to 42 U.S.C. § 1997e(a),4 which 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.”
Generally, in order to satisfy 42 U.S.C. § 1997e(a), a plaintiff must file a grievance with
respect to the challenged behavior, using DOCCS’s Inmate Grievance Program procedures. Assuming that the grievance is denied, he must then exhaust the grievance
appeal process, by appealing to the facility Superintendent, and then to CORC.
However, the Second Circuit has identified circumstances in which an inmate’s
unsuccessful attempt to exhaust may still meet the exhaustion requirements of § 1997e(a).
See Hemphill v. N.Y., 380 F.3d 680 (2d Cir. 2004), Giano v. Goord, 380 F.3d 670 (2d Cir.
3

In their Notice of Motion, ECF No. 37, Defendants provided Plaintiff with the “Irby” Notice to Pro
Se Litigants as required by Local Rule of Civil Procedure 56(b).
4

Also referred to herein as the Prison Litigation Reform Act (“PLRA”) of 1995, § 101(a), 42 U.S.C.
§ 1997e(a).

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2004), 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
requirement is mandatory, it has also recognized three exceptions to the
exhaustion requirement: “when (1) administrative remedies are not available
to the prisoner; (2) defendants have either waived the defense of failure to
exhaust or acted in such a way as to estop them from raising the defense;
or (3) special circumstances, such as reasonable misunderstanding of the
grievance procedures, justify the prisoner’s failure to comply with the
exhaustion requirement.”
Chisholm v. New York City Dept. of Correction, No. 08 Civ. 8795(SAS), 2009 WL 2033085
at *2 (S.D.N.Y. Jul.13, 2009) (quoting Ruggiero v. County of Orange, 467 F.3d 170, 175
(2d Cir. 2006)).
Here, Plaintiff did not file a grievance concerning his claim that he was confined in
a feces-smeared cell at Southport from March 1 to March 23, 2004. In his cross-motion,
ECF No. 49, however, Plaintiff contends that he properly exhausted his administrative
remedies pursuant to DOCCS Directive 4040, which provides that “an inmate must submit
a complaint to the [clerk of the IGRC]” containing “a concise, specific description of the
problem and the action requested and indicate what actions the grievant has taken to
resolve the complaint.” N.Y. Comp. Codes R. & Regs. tit. 7, §701.5 (Jun. 13, 2006).
However, Plaintiff’s argument fails. Plaintiff’s belief that Defendants’ evidence
establishes that his complaint was sent to the IGRC is erroneous. The exhibit upon which
Plaintiff relies is his letter addressed “to whom it may concern,” and dated March 1, 2004,
Chappius Aff. Ex. D.

In that regard, that correspondence concerned Plaintiff’s cell

conditions and was marked received by the Division of Health Services, the Assistant
Commissioner, and the Deputy Superintendent of Security Services. There is no record of
it having been sent to or filed with the IGRC.
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Moreover, contrary to Plaintiff’s argument that his March 1, 2004, letter constitutes
a grievance for purposes of Directive 4040, it is well-settled that “[l]etters of complaint,
regardless of the addressee, are not part of the grievance process and do not satisfy the
exhaustion requirement.” Scott v. Gardner, 287 F. Supp. 2d 477, 488–89 (S.D.N.Y. 2003)
(citing Hemphill, 198 F. Supp. 2d at 549 (“The remedies afforded an aggrieved prisoner are
clear, and prisoners have no authority or ability to invent their own grievance
procedures.”)). It is therefore undisputed that Plaintiff did not follow the three-step IGP
exhaustion procedures set forth in the Directive and described above.
With regard to the Hemphill factors, the Court finds that there are no other
circumstances present on this record that would excuse Plaintiff’s failure to utilize and
exhaust the IGP procedures. Although Plaintiff’s contends that Kwasnik, Sepiol, Chappius
and McGinnis knew his cell was “covered in feces inside & out,” Pl.’s Mem. of Law at 5,
ECF No. 49, this contention does not relieve him from filing a formal grievance. He further
contends that because his complaint was dismissed as moot, there was no administrative
remedy available to him subsequent to his transfer to a new cell. This, though, does not
make the exhaustion remedy unavailable. Rather, it was Plaintiff who chose to direct his
complaints to various DOCCS administration officials in lieu of following the required IGP
procedures.5 Furthermore, Plaintiff’s follow-up letters to Defendant McGinnis dated March
1, March 4, April 4, and April 28, 2004, Compl. Exs. 1, 3–5, are unreliable. Although those
exhibits were produced with the Complaint, there is no record of them having been filed,

5

The Court notes that Plaintiff is no stranger to the IGP process; in 2004 Plaintiff filed dozens of
grievances and subsequent appeals relating to a variety of prison issues. (Docket Nos. [#42] Ex. A, [#43]
Ex. B.)

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and one, Exhibit 5, appears to have been redacted by Plaintiff (the addressee’s name is
blacked out).
Even if the Court were to accept that Plaintiff’s complaint to Chappius constitutes
a grievance for purposes of DOCCS Directive 4040, and that it was filed with the IGRC,
Plaintiff does not allege, nor is there any evidence, that he ever took an appeal to the
CORC regarding his complaint about his cell conditions, which is required under the PLRA.
See Veloz v. New York, 339 F. Supp. 2d 505, 514 (S.D.N.Y. 2004) (complete exhaustion
to the highest level is required for each claim).
The Court finds that because Plaintiff failed to file his complaint pursuant to the
procedure set out in the DOCCS Directive and required by the PLRA, DOCCS was not able
to address his claim on its merits. Therefore, Plaintiff was not justified in failing to exhaust
his administrative remedies prior to filing his § 1983 suit, and his Eighth Amendment claim
must be dismissed.
In the alternative, Defendants’ have argued that there is no material issue of fact for
trial because the Defendants were not personally involved and because the facts do not
support the conclusion that an Eighth Amendment violation occurred. Because the record
definitely establishes Plaintiff’s failure to exhaust his administrative remedies before
commencing suit, and has not made a showing that requirement of exhaustion should be
excused in this case, the Court finds it unnecessary to address Defendants’ remaining
arguments.
For all of the foregoing reasons, Defendant’s motion for summary judgment is
granted, and Plaintiff’s cross-motion for summary judgment is denied.

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CONCLUSION
Defendants’ summary judgment motion, ECF No. 37, is granted, and Plaintiff’s
cross-motion, also seeking summary judgment, ECF No. 49, is denied, and this action is
dismissed. 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.
IT IS SO ORDERED.
Dated: January 13, 2012
Rochester, New York
ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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