McGowan v. Schuck et al

Filing 78

DECISION AND ORDER: Defendants' Summary Judgment Motions 69 71 are GRANTED and the Amended Complaint is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to close this case. SO ORDERED. A copy of this NEF and Decision and Order have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 9/11/2018. (AFM)-CLERK TO FOLLOW UP-

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JOSEPH MCGOWAN,
Plaintiff,
Case # 12-CV-6557-FPG
v.
DECISION AND ORDER
JOHN A. SCHUCK., et al.
Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff Joseph McGowan filed this civil rights action against Defendants pursuant
to 42 U.S.C. § 1983. ECF No. 1. Plaintiff alleges that Defendants violated his Eighth Amendment
right to be free from cruel and unusual punishment while he was incarcerated at Attica Correctional
Facility. ECF No. 4 (the “Amended Complaint”). The Court previously dismissed several of
Plaintiff’s claims. ECF Nos. 3, 5, 25. Plaintiff’s remaining claims include excessive force claims
against Correction Officers Hibsch, Rademacher, and Hulton and an inadequate medical care claim
against Nurse Jelonek and Sgt. Meegan. ECF No. 4.
On September 14 and 22, 2017, Defendants moved for summary judgment (ECF Nos. 69
and 71), and on November 22, 2017, Plaintiff submitted a memorandum in opposition to
Defendants’ motion with a number of attached exhibits (ECF No. 75). For the reasons that follow,
Defendants’ motions are GRANTED because Plaintiff failed to exhaust his administrative
remedies as to each of his remaining claims before he filed this action.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
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an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original). While the court must view the inferences to be drawn from the facts in the
light most favorable to the nonmoving party, see Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), a party may not “rely on mere speculation or conjecture as to the
true nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986).
The non-moving party may defeat the summary judgment motion by making a showing
sufficient to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). However, “mere conclusory allegations or denials” are not evidence
and cannot by themselves create a genuine issue of material fact where none would otherwise exist.
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).
Because Plaintiff is proceeding pro se, his submissions are read liberally and interpreted
to raise the strongest claims they suggest. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(citation omitted). Nevertheless, proceeding pro se does not relieve a litigant from the usual
summary judgment requirements. See Wolfson v. Bruno, 844 F. Supp. 2d 348, 354 (S.D.N.Y.
2011).
DISCUSSION
The Amended Complaint includes two excessive force claims, arising out of Defendants’
use of force on May 16 and July 26, 2011, and a denial of medical care claim from July 26, 2011.
Defendants argue that they are entitled to summary judgement on all three claims because Plaintiff
failed to exhaust his administrative remedies before he filed this action. Defendants filed a sworn
transcript of Plaintiff’s deposition testimony to support their motion. ECF No. 69-3.

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The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, 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.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s
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). Under the PLRA, before bringing a case in
federal court, an inmate “must complete the administrative review process 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) (quoting Jones v. Bock, 549
U.S. 199, 218 (2007) (internal citation and quotation marks omitted)).
To satisfy [the exhaustion] requirement, prisoners in New York must ordinarily
follow a three-step [DOCCS] grievance process. The first step in that process is the
filing of a grievance with the Inmate Grievance Resolution Committee. Next, the
inmate may appeal an adverse decision to the prison superintendent. Finally, the
inmate may appeal the superintendent’s decision to the Central Office Review
Committee (“CORC”). Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006). In
general, it is only upon completion of all three levels of review that a prisoner may
seek relief in federal court under § 1983.
Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (citing Neal v. Goord, 267 F.3d
116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002)).
The Supreme Court recently noted in Ross v. Blake that apart from “one significant
qualifier,” that is, the availability of administrative remedies, “the PLRA’s text suggests no limits
on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’” 136 S. Ct.
1850, 1856 (2016) (internal quotation marks omitted) (“[M]andatory exhaustion statutes like the
PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.”). There are three
“circumstances in which an administrative remedy, although officially on the books, is not capable
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of use to obtain relief:” (1) prison officials are “unable or consistently unwilling to provide any
relief to aggrieved inmates;” (2) the “administrative scheme” is “so opaque that . . . no ordinary
prisoner can discern or navigate it;” or (3) “prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or intimidation.”
Williams v. Corr. Officer Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (quoting Ross, 136 S. Ct.
at 1859-60).
Here, Plaintiff acknowledged in his deposition testimony that he did not file a “formal
grievance” concerning the May 16 or July 26, 2011 incidents because he was afraid of being
assaulted. ECF No. 69-3 at 42, 44-45, 50-51, 88. By way of explanation, Plaintiff noted that he
filed a grievance in 2009 concerning an incident that happened on October 30 of that year. Id. at
32-33, 56. As a result of an ensuing disciplinary proceeding, he was transferred from Attica to
Southport Correctional Facility in 2010 to serve an 18-month sentence in the Special Housing
Unit. Id. at 53.
In 2011, Plaintiff was transferred back to Attica and transported to the C Block area where
the 2009 incident occurred. Upon his arrival at C Block, CO Hibsch asked him, “why did they
send you back?” and then “struck” Plaintiff “in the face” with a clipboard. Id. at 51-52, 64, 67-68,
70-71. Shortly thereafter, a group of correction officers, including Defendants Rademacher and
Hibsch, assaulted Plaintiff. Id. at 77-85. During Plaintiff’s deposition, when asked “how” he knew
that he “was assaulted in 2011 for filing a grievance in 2009,” Plaintiff replied that he could not
“speak for the mind frame of . . . another individual.” Id. at 51, 58-59. Plaintiff further testified
that, instead of filing formal grievances concerning the incidents alleged in his Complaint, he sent
letters complaining of Defendants’ conduct to the Attica superintendent, the Inspector General’s
Office, and “various people.” Id. at 42, 48.

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Upon moving for summary judgment, Defendants contend that Plaintiff did not attempt to
comply with any of the grievance and appeal procedure steps directed by DOCCS in N.Y. Comp.
Codes R. & Regs. tit. 7, § 701.5. They further contend that sending a letter to the facility’s
superintendent or the Inspector General’s Office does not satisfy a prisoner’s exhaustion
obligations. Plaintiff responds that “he had no potential to obtain any real remedy” through the
grievance process, arguing that he “pursued legal recourse through the filing of legal papers, dating
back to 2009,” but “[n]ot one of these legal resource avenues provided any relief.” ECF No. 75 at
10. He contends that “any remedy that [he] could and/or potentially attempt was futile . . . and
accomplish[ed] nothing that could provide any ordinary means of relief.” Id. at 11.

Plaintiff

further argues: “The ONLY PURPOSE ACCOMPLISHED was the excessive force used against
[him] by Attica C.F. C.O. staff.” Id.
It is undisputed that there was an inmate grievance procedure program in place at Attica
during the period alleged in the Amended Complaint and that Plaintiff was familiar with, and had
previously participated in, the grievance process. ECF No. 69-3 at 28-33, 44-47; see generally 42
U.S.C. § 1997e(a). It is also undisputed that Plaintiff failed to file a grievance related to the
challenged conduct, as noted above. ECF No. 75 at 17. Consequently, the Court must conclude
that Plaintiff failed to exhaust his administrative remedies before filing this action. Even assuming
that the grievance process was “ineffective,” as Plaintiff contends, he is nonetheless subject to the
administrative remedy exhaustion requirement under § 1997e(a). Plaintiff has not introduced any
evidence that the grievance process was unavailable to him.
First, Plaintiff’s claim that he failed to file grievances regarding the alleged assaults
because he feared a retaliatory assault by the Attica COs “amounts to nothing more than a
‘generalized fear of retaliation,’ which is insufficient to excuse his failure to exhaust his

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administrative remedies.”

Bookman v. Lindstrand, No. 915CV1542MADDEP, 2018 WL

3121688, at *10 (N.D.N.Y. Feb. 14, 2018) (collecting cases), report and recommendation adopted,
No. 915CV1542MADDEP, 2018 WL 1470585 (N.D.N.Y. Mar. 26, 2018). Here, Plaintiff has
“failed to adduce any evidence that he was subjected to any specific, affirmative threats of
retaliation for utilizing the grievance procedure.” Id. He states only that he was assaulted in 2011
after filing a grievance in 2009 against some of the same individuals. Moreover, Plaintiff’s
allegation that he was afraid to file a formal grievance against the accused officers is contradicted
by his admissions that he made several informal complaints to the Attica superintendent, who he
notes to be the COs’ “immediate supervisor” (ECF No. 75 at 13), as well as the Inspector General’s
Office and “various” other individuals.
Second, Plaintiff’s claim that he failed to file grievances because he perceived the process
to be futile or “ineffective” because his 2009 grievance was an “attempt to have further relief or
some type of effective relief” (ECF No. 69-3 at 44), does not excuse his failure to comply with the
exhaustion requirement.

See Lee v. Carson, 310 F. Supp. 2d 532, 537 (W.D.N.Y. 2004)

(“[W]hether plaintiff believed that his efforts to use the grievance process would be futile is of no
consequence.”). Allegations of
past problems with the grievance procedure, and that he did not receive responses
to prior grievances that he filed in unrelated matters . . . are irrelevant as there is no
evidence in the record to even suggest-much less demonstrate-that Plaintiff even
attempted to comply with the grievance procedure as it relates to this action.
Mims v. Yehl, No. 13-CV-6405-FPG, 2014 WL 4715883, at *4 (W.D.N.Y. Sept. 22, 2014); see
also Lee, 310 F. Supp. 2d at 537 (“If a statute mandates exhaustion of administrative remedies,
even a futile administrative process must be utilized.”) (citing Giano v. Goord, 250 F.3d 146, 15051 (2d Cir. 2001) (holding that the alleged ineffectiveness or futility of pursuing administrative
remedies does not excuse an inmate from his obligation to exhaust his administrative remedies
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pursuant to the PLRA). Moreover, the unfavorable result of one past grievance is insufficient to
raise a material issue of fact as to whether prison officials were “unable or consistently unwilling
to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859.
Third, Plaintiff’s suggestion that his letters or communications with prison officials and
the Inspector General’s Office satisfy the exhaustion requirement is also unavailing. Even before
Ross, “decisions in this circuit have repeatedly held that complaint letters to the DOCCS
commissioner or the facility superintendent do not satisfy the PLRA’s exhaustion requirements.”
Mims, 2014 WL 4715883, at *5 (quoting Muhammad v. Pico, No. 02 Civ. 1052(AJP), 2003 WL
21792158, at *8 (S.D.N.Y. Aug.5, 2003) (collecting cases) and citing Stephenson v. Dunford, 320
F. Supp. 2d 44, 46, 52 (W.D.N.Y. 2004) (finding no exhaustion where inmate complained directly
to Inspector General), vacated on other grounds, 139 F. App’x 311 (2d Cir. 2005)). “The Second
Circuit has made clear that even if prison officials have notice of a prisoner’s claims as a result of
such informal communications, the purposes of the PLRA’s exhaustion requirement can only be
realized through strict compliance with the applicable administrative procedures.” Mims, 2014
WL 4715883, at *5 (internal quotation marks omitted); see also Macias v. Zenk, 495 F.3d 37, 44
(2d Cir. 2007) (holding that making informal complaints to prison officials “does not constitute
proper exhaustion”) (internal quotation marks omitted).
For these reasons, the Court finds that there are no genuine issues of material fact as to
whether Plaintiff exhausted his administrative remedies. Consequently, Defendants’ Motions for
Summary Judgement are GRANTED, and the Amended Complaint is DISMISSED WITH
PREJUDICE.

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CONCLUSION
Defendants’ Summary Judgment Motions (ECF Nos. 69, 71) are GRANTED and the
Amended Complaint is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to close
this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and that leave to appeal to the Court of Appeals as a poor person
is denied. Coppedge v. United States, 369 U.S. 438 (1962). Plaintiff should direct further requests
to proceed on appeal as a poor person to the United States Court of Appeals for the Second Circuit
on motion in accordance with Federal Rule of Appellate Procedure 24.
IT IS SO ORDERED.
Dated: September 11, 2018
Rochester, New York
__________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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