Ward v. LeClaire et al

Filing 105

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 65 Motion for Summary Judgment; denying 100 Motion to Amend or Correct. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 1/16/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KENNETH WARD,
DECISION AND ORDER
Plaintiff,
No. 07-CV-6145(MAT)
-vsLUCIEN LECLAIRE, Jr., et al.,
Defendants.

I.

Introduction
Kenneth Ward (“Ward” or “Plaintiff”), proceeding pro se,

instituted this action against Defendants alleging violations of
his

constitutional

rights

that

allegedly

occurred

between

October 5, 2005, and February 16, 2006, while he was in the custody
of the New York State Department of Corrections and Community
Supervision

(“DOCCS”),

housed

at

Gowanda

Correction

Facility

(“GCF”).1 Plaintiff, who has had asthma for more than twenty years,
contends that Defendants violated his Eighth Amendment rights by
acting with deliberate indifference in exposing him to dangerous
levels of environmental tobacco smoke (“ETS”). Plaintiff also
alleges that certain Defendants violated his First Amendment rights
by retaliating against him for complaining about his exposure to

1

Plaintiff was released from DOCCS’ custody on
January 28, 2008.
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ETS at GCF and about correctional officers’ alleged failure to
enforce the facility’s “no smoking” policy.
On August 14, 2008, the Court (Siragusa, D.J.) granted in part
Defendants’ motion to dismiss insofar as Plaintiff’s claims against
Defendants in their official capacities were dismissed; the claims
against defendants Gowanda Superintendent Richard Savage, Deputy
Superintendent of Programs Jose Melendez and Corrections Officer
Marcia Hessel were dismissed; Plaintiff’s claims against Defendants
Goord, LeClaire, Annucci and Eagen were dismissed; Plaintiff’s
conspiracy claim2 was dismissed; and Plaintiff’s pendent state law
claims were dismissed.
On
(Dkt

May

#65),

6,

2010,

arguing

Defendants
that

moved

Plaintiff

for

failed

summary
to

judgment

exhaust

his

administrative remedies; no triable issues of fact exist with
regard

to

the

Eighth

Amendment

and

retaliation

Defendants are entitled to qualified immunity.

claims;

and

Prior to Plaintiff

filing responsive papers, the case was transferred to mediation on
July 26, 2011, and counsel for Plaintiff was assigned. A mediation
2

Plaintiff asserted that “[a]ll the unnumber[ed] grievances in
paragraph (23) were never filed, logged or responded to by
Defendant Janish in violation of directive (4040) procedures as
well as Plaintiff[‘s] constitutional right to redress complaints.
The Defendants conspire[d] with one another to cover-up all the
smoking, harassment, and retaliation violations by depriving
Plaintiff of his constitutional rights then locking him up in the
box to keep him quiet and punish him for speaking out about the
smoking probl[e]ms at GCF.” Am. Comp. ¶ 24.

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conference was conducted on October 21, 2011, but the case did not
settle.
On December 31, 2012, Plaintiff, through counsel, filed papers
in opposition to Defendants’ summary judgment motion (Dkt #98).
Plaintiff also filed a motion to file a second amended complaint
(Dkt #100). Defendants have opposed the motion to amend.
For the reasons set forth below, the Court grants Defendants’
motion for summary judgment on the basis that Plaintiff has failed
to exhaust administrative remedies. Plaintiff’s motion to amend is
denied with prejudice.
II.

Summary Judgment Standard
Summary

judgment

is

appropriate

only

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . 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); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The party
seeking summary judgment has the burden to demonstrate that no
genuine issue of material fact exists.” Lucente v. International
Business Machines Corp., 310 F.3d 243, 253 (2d Cir. 2002) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); other
citation omitted). “In determining whether a genuine issue of
material fact exists, a court must examine the evidence in the
light most favorable to, and draw all inferences in favor of, the

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non-movant[.]” Id. (citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); other citation omitted).
Once the movant meets its initial burden of demonstrating the
absence of a genuine issue of material fact, the non-movant “must
do more than simply show that there is some metaphysical doubt as
to

the

material

facts”

in

order

to

defeat

summary

judgment.

Matsushita Elec. Indus. Co., 475 U.S. at 586. The non-movant “‘must
set forth specific facts showing that there is a genuine issue for
trial’” in order to avoid dismissal. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)).
III. Exhaustion
A.

General Legal Principles

Pursuant to the Prison Litigation Reform Act (“PLRA”), “[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 have been exhausted.”
42 U.S.C. § 1997e(a). Section 1997e(a) “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),
rev’g Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000). “Once within
the discretion of the district court, exhaustion in cases covered
by § 1997e(a) is now mandatory.” Porter, 534 U.S. at 524 (citing

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Booth v. Churner, 532 U.S. 731, 739 (2001)). The Supreme Court has
described § 1997(e)(a) as eliminating “judicial discretion to
dispense with exhaustion.” 534 U.S. at 529; see also Booth, 532
U.S. at 741 n. 6 (“[W]e stress the point that we will not read
futility or other exceptions into statutory exhaustion requirements
where Congress has provided otherwise.”). “Courts have interpreted
the

[PLRA’s

exhaustion]

to

require

complete

accordance with institutional procedures.”

exhaustion

in

Graham v. Cochran, 96

Civ. 6166(LTS)(RLE), 2002 WL 31132874 at *6 (S.D.N.Y. Sept. 25,
2002) (collecting cases).
B.

DOCCS’ Grievance Review Process

Section 1997e(a) requires a prisoner filing a § 1983 suit to
exhaust a claim prior to filing suit. Neal v. Goord, 267 F.3d 116,
121 (2d Cir. 2001); see also, e.g., Jackson v. Dist. of Columbia,
254 F.3d 262, 268–69 (D.C. Cir. 2001) (exhaustion must be complete
before suit filed). For inmates in DOCCS’ custody, the exhaustion
procedure entails the filing of grievances through the Inmate
Grievance Program (“IGP”), which consists of three levels of
review. First, the inmate must file a complaint with the Inmate
Grievance Resolution Committee (“IGRC”). See N.Y. COMP. CODES R. &
REGS. tit. 7, § 701.7(a). Second, after receiving a response from
the IGRC, the inmate may appeal to the facility superintendent.
Id., §

701.7(b).

Third, after

receiving

a

response

from the

superintendent, an inmate may file an appeal of that decision to

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the Central Office Review Committee (“CORC”). Id., § 701.7(c); see
also Cruz v. Jordan, 80 F. Supp.2d 109, 117–18 (S.D.N.Y. 1999)
(discussing prison administrative review process in detail).
If a prisoner has not followed each of steps detailed above
prior to commencing his federal litigation, he has failed to
exhaust

his

administrative

remedies.

See

Sulton

v.

Greiner,

No. 00 Civ. 0727(RWS), 2000 WL 1809284, at *3-4 (S.D.N.Y. Dec. 11,
2000)

(noting

that

DOCCS’

grievance

procedures

include

a

requirement that an inmate appeal a Superintendent’s decision to
the CORC by filing an appeal with the Grievance Clerk; granting
granting

summary

judgment

based

on

failure

to

exhaust

administrative remedies because prisoner failed to appeal to the
CORC)).
C.

Plaintiff’s Exhaustion Efforts

Plaintiff refers only to three grievances specifically by
number in his complaint. They are as follows: GWD 9294-05 on
December 1, 2005, contending that both inmates and staff members
violated the smoke-free policy, thereby exposing him to dangerously
high levels of ETS (Complaint (“Compl.”), ¶ 16, 16; GWD 9268-05 on
November 12, 2005, filed against Sergeant Hastings for harassment
(Compl., ¶ 16); and GWD 9152-05 on October 17, 2005, alleging
smoking violations by inmates and staff (Compl., ¶ 13). Plaintiff
also indicates that he filed a number of other grievances, which he
does not identify by grievance number. They are listed in his

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complaint as follows: December 9, 2005, “for officers [sic] threats
and physical assault”; December 19, 2005, for “staff misconduct”;
December 21, 2005, “for SGT. Boyce retaliation”; December 27, 2005,
for “c.o. Waldmiller retaliation”; December 29, 2005, for “c.o.’s
[sic] Waldmiller and Riggtione making threats”; January 3, 2006,
for “c.o.’s [sic] Waldmiller and Riggtone retaliation”; January 11,
2006, for “IGP Supervisor Janish misconduct”; January 17, 2006, for
“Sgt. Boyce retaliation”; and February 14, 2006, for “c.o. smoking
in van during medical trip.” Compl., ¶ 16. Plaintiff asserts claims
that for each grievance that was denied, he submitted an appeal
request to the Grievance Supervisor at GCF, who then wrongfully
failed to transfer the appeals to the CORC. Plaintiff’s Memorandum
of Law (“Pl’s Mem.”) at 5 (citing Affidavit of Kenneth Ward (“Ward
Aff.”), ¶ 9).
Defendants assert that although Plaintiff “filed grievances
about second hand smoke[,]” and although he “claims he appealed the
denial of the grievance, there is no record of such an appeal to
CORC.” Defendants’ Memorandum of Law (“Defs’ Mem.”) at 9 (Dkt #73).
In

support

of

their

non-exhaustion

argument,

Defendants

have

submitted the Declarations of Linda Janish (“Janish Decl.”) and
Chris Lindquist (“Lindquist Decl.”). Janish is the Inmate Grievance
Program Supervisor (“IGPS”) at GCF, and Lindquist is Assistant
Director of DOCCS’ IGP.

According to Janish and Lindquist, DOCCS

has no records of any appeals to the CORC with regard to the

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pertinent grievances. Defendants argue that Plaintiff’s case should
be

dismissed

based

upon

his

failure to

exhaust

his

remedies

completely by appealing the grievances to the CORC.
Only the three grievances identified by number (GWD 9294-05,
GWD 9268-05, and GWD 9152-05) relate to incidents and individuals
at issue in this proceeding. GWD 9268-05 and GWD 9152-05 were
denied, and

GWD 9294-05 was dismissed. Janish Decl., ¶ 3. As noted

above, Lindquist indicates that there are no records of appeals to
CORC with regard to GWD 9294-05; GWD 9268-05; and GWD 9152-05. See
Lindquist Decl., ¶ 5; see also Janish Decl., ¶ 3.
D.

Analysis

Defendants have adduced sufficient evidence to establish that
GCF had a functioning grievance system during the relevant time
period that was, in fact, available to Plaintiff. See Hemphill v.
State of New York, 380 F.3d 680, 686 (2d Cir. 2004) (“[T]he court
must ask whether [the] administrative remedies [not pursued by the
prisoner] were in fact ‘available’ to the prisoner.”). The Second
Circuit has explained that where remedies were available, “the
court should . . . inquire as to whether [some or all of] 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 [prisoner’s] exhaustion
of remedies may estop one or more of the defendants from raising

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the plaintiff’s failure to exhaust as a defense.” Id. (citations
omitted).
Defendants have searched their records and could find no
appeals of the pertinent grievances (GWD 9294-05, GWD 9268-05, and
GWD 9152-05).
9294-05

was

GWD 9268-05 and GWD 9152-05 were denied, and GWD
dismissed

and

ceased

to

be

pending

based

upon

Plaintiff’s wilful and unexcused failure to attend the hearing.
The Court finds that Defendants have met their “initial burden
of establishing the absence of any genuine issue of material fact
regarding exhaustion (which initial burden has been appropriately
characterized as ‘modest’).” Murray v. Palmer, No. 9:03-CV-1010
(DNH/GLS), 2008 WL 2522324, at *17 & n. 53 (N.D.N.Y. June 20, 2008)
(citing,

inter

alia,

Ciaprazi

v.

Goord,

02-CV-0915,

2005

WL

3531464, at *8 (N.D.N.Y. Dec. 22, 2005) (“[D]efendants’ decision to
rely instead upon the lack of evidentiary support for plaintiff’s
retaliation claims, . . . , is sufficient to cast the burden upon
the plaintiff to come forward with evidence demonstrating the
existence of genuinely disputed material issues of fact for trial
with regard to those claims.”) (citing Celotex, 477 U.S. at 32324)).
Plaintiff has attempted to show that Defendants’ actions
inhibited him from exhausting his remedies, asserting that the IGPS
at GCF purposely failed to transmit his appeal requests. Ward
Decl., ¶ 10. Plaintiff states that because his “individual appeal

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requests were not being transmitted,” he filed three “Notices of
Decision to Appeal [his] grievances, listing the dates of filing
and issues in regard to each of [his] grievances filed at Gowanda.”
Id. Plaintiff states that copies of the Notices of Decision to
Appeal are attached to his Declaration as Exhibit D (Dkt #98-5).
Exhibit D consists of two documents, which are described,
respectively, as Plaintiff’s “Second Notice of Decision to Appeal
all

[his]

grievances

to

(CORC)

do

[sic]

to

the

fact

he

Superintendent fail [sic] to respond as required within the twelve
(12) working days, time limit” (“the Second Notice of Appeal”) and
“Third Notice of Decision to Appeal all [his] grievances to (CORC)
do [sic] to the fact he Superintendent fail [sic] to respond as
required within the twelve (12) working days, time limit” (“the
Third Notice of Appeal”). See Dkt. #98-5 at 2, 3. The “Second
Notice of Appeal” (undated) lists nine grievances (not identified
by grievance number) ranging in date from October 13, 2005, to
January 3, 2006. The “Second Notice of Appeal” (also undated) lists
thirteen grievances (not identified by grievance number) spanning
the time period from October 13, 2005, to January 17, 2006. The
Court has checked the filing dates of the grievances listed in the
Notices, and the three grievances at issue (GWD 9294-05; GWD 926805; and GWD 9152-05) are contained therein. However, the undated
and unsigned Notices of Appeal do not constitute evidence that Ward
actually appealed the Superintendent’s denial of his grievances to

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the CORC. Moreover, the Notices of Appeal were not procedurally
correct or timely under the applicable regulations. See N.Y. Comp.
Code. R. & Regs, tit. 7, § 701.5(d)(1)(i) (“If the grievant or any
direct party wishes to appeal to the CORC, he or she must complete
and sign form #2133 and submit it to the grievance clerk within
seven calendar days after receipt of the superintendent’s written
response to the grievance. The superintendent’s response form
contains simple directions for appeal to the CORC.”) (emphasis
supplied). Plaintiff did not seek permission to extend the time to
appeal, which has long since passed. See id. (“An exception to this
appeal time limit may be approved by the IGP supervisor under
section 701.6(g) of this Part.”).
Plaintiff’s conclusory assertions that Defendants failed to
transmit his appeals to the CORC and the undated, unsigned Notices
of Appeal do not constitute specific facts showing that there is a
genuine issue for trial regarding exhaustion. In the absence of any
competent evidence proffered in opposition, the Court concludes
Plaintiff failed to employ the grievance procedure available to him
by properly and timely appealing to the CORC. The Court also
concludes that no special circumstances exist to excuse Plaintiff’s
failure to properly exhaust his remedies. See Hemphill, supra
(“[I]f the remedies were available and some of the defendants did
not forfeit, and were not estopped from raising, the non-exhaustion
defense, ‘the Court should consider whether “special circumstances”

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have been plausibly alleged that justify the prisoner’s failure to
comply

with

the

administrative

procedural

requirements.’”)

(citations and internal quotations omitted). In sum, the Court
finds as a matter of law, based upon the current record, that
Plaintiff has failed to exhaust his administrative remedies.
III. Motion to File a Second Amended Complaint
In support of his motion to file a second amended complaint,
Plaintiff states that he “mistakenly dropped Superintendent Savage
as a defendant in his Amended Complaint, not realizing that there
existed

a

valid

cause

of

action

for

retaliation

against

Superintendent Savage.” As noted above, however, Superintendent
Savage was dismissed as a defendant by the Court (Siragusa, J.) in
2008. Plaintiff avers that with the assistance of legal counsel, he
now “has reason to believe that Superintendent Savage retaliated
against Plaintiff for filing grievances” while at GCF by ordering
Supervising Physician John Piazza, M.D. to remove certain medical
restrictions

in

retaliation

for

Plaintiff

filing

grievances

regarding his exposure to ETS. In addition, Plaintiff states that
he inadvertently neglected to name Dr. Piazza as a defendant on the
basis the

Dr.

Piazza

also

retaliated

against

him

for

filing

grievances while at GCF.
In opposition to Plaintiff’s motion to amend, Defendants
correctly note that Plaintiff failed to comply with Local Rule of
Civil Procedure for the Western District of New York (“L.R.”) 15(a)

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which states, in part, that a movant must attach an unsigned copy
of the proposed amended pleading as an exhibit to the motion, and
that “the proposed amended pleading must be a complete pleading
superseding the original pleading in all respects.” Defendants note
that Plaintiff also failed to comply with L.R. 15(b) which requires
counsel to mark the changes in the proposed amended complaint.
Furthermore, Defendants argue, the specific retaliation claims
raised

in

the

proposed

second

amended

complaint

against

Superintendent Savage and Dr. Piazza were not the subject of any
grievance. Plaintiff’s Second and Third Notices of Appeal (Dkt #985 at 2, 3) do not list any grievances against Superintendent Savage
and Dr. Piazza. However, there is one grievance, GWD-9389-06, filed
on February 14, 2006, pertaining to “Medical Restriction Lifted”,
which is listed in the document titled “C.O.R.C. Appeals from
Gowanda” filed by Ward. This grievance, which ultimately was denied
by the CORC on March 15, 2006, could relate to the alleged
retaliation by Superintendent Savage and Dr. Piazza, based upon the
allegations in the proposed second amended complaint. See Dkt #101,
¶¶ 53-72.
In general, leave to amend pleadings shall be freely given
when justice so requires. Fed. R. Civ. P. 15(a). The grant or
denial of an opportunity to amend is within the sound discretion of
the District Court, Foman v. Davis, 371 U.S. 178, 182 (1962), and
is to be decided on the “particular facts and circumstances” of

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each case. Parness v. Lieblich, 90 F.R.D. 178, 182 (S.D.N.Y. 1981).
The Supreme Court has cited the following as reasons for denying a
motion to amend: “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of the
amendment, etc.,” Foman, 371 U.S. at 182. The Second Circuit has
identified

“[c]onsiderations

of

undue

delay,

bad

faith,

and

prejudice to the opposing party” as the “touchstones of a district
court'’ discretionary authority to deny leave to amend.” Barrows v.
Forest Laboratories, Inc., 742 F.2d 54, 58 (2d Cir. 1984).
Even if the claims against Dr. Piazza and Superintendent
Savage

were

exhausted,

the

Court

finds

that

amendment

is

unwarranted. First, Plaintiff’s delay in moving to amend to add
claims against Superintendent Savage and Dr. Piazza is inexcusable.
Counsel appeared in this action in July 2011, and engaged in a
mediation conference. There is no explanation given as to why
counsel required over a year to discover the premises of the claims
against Superintendent Savage and Dr. Piazza. In addition, as
Defendants point out, discovery would have to be extended and
Plaintiff

would

have

to

be

deposed

again

regarding

the

new

allegations. “Unexcused delay, coupled with the probability that
the addition of new claims would lead to a new wave of discovery,
is also an adequate basis for denying leave to amend.” Richardson

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Greenshields Securities, Inc. V. Mui-Hin Lau, 113 F.R.D. 608, 612
(S.D.N.Y. 1986) (citing Church of Scientology v. Siegelman, 94
F.R.D. 735, 740 (S.D.N.Y. 1982)). Accordingly, this case presents
a situation where it is appropriate for the Court in its discretion
to deny Plaintiff’s motion for leave to file a second amended
complaint.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion summary judgment

dismissing all claims against them is granted on the basis that
Plaintiff

has

failed

to

comply

with

the

PLRA’s

exhaustion

requirement. Plaintiff’s amended complaint is dismissed. Because it
is unnecessary to do so, the Court does not address Defendants’
alternative arguments that the claims in the amended complaint fail
as a matter of law and that they are entitled qualified immunity.
Plaintiff’s motion to file a second amended complaint is
denied.
The Clerk of the Court is directed to close the case.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

January 16, 2013
Rochester, New York

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