Keitz v. Terragnoli et al

Filing 13

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 11 Motion to Dismiss. Defendants motion to dismiss [#11] is granted. Plaintiffs claims are dismissed without prejudice, for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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. The Clerk of the Court is directed to terminate this action.Signed by Hon. Charles J. Siragusa on 1/5/16. (KAP) COPY OF THIS ORDER AND THE NEF SENT TO PRO SE PLAINTIFF (Michael James Keitz, 6037 Route 96, Farmington, NY 14425)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
MICHAEL JAMES KEITZ,
Plaintiff
DECISION AND ORDER
-vs14-CV-6600 CJS
REV. JOEL TERRAGNOLI, ANTHONY J.
ANNUCI and UNNAMED DIRECTOR,
MINISTERIAL & FAMILY SERVICES,
Defendants
__________________________________________
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”) 42 U.S.C. § 2000cc et seq., in which
Michael James Keitz (“Plaintiff”), formerly an inmate in the custody of the New York
State Department of Corrections and Community Supervision (“DOCCS”), proceeding
pro se, alleges that after he was placed in the punitive Special Housing Unit (“SHU”) at
Collins Correctional Facility (“Collins”), Defendants refused to allow him to immediately
change his religious designation to receive kosher meals, pursuant to a DOCCS
directive (Directive 4202) that prevents inmates confined in the SHU from changing
their religious designation for a period of one year. Now before the Court is
Defendants’ motion (Docket No. [#11]) to dismiss the action for failure to exhaust
administrative remedies as required by 42 U.S.C. § 1997e(a). Plaintiff admits in his
Complaint [#1] that he filed this action without attempting to exhaust his administrative
remedies, and the reason he offers is legally insufficient to excuse such failure.
Accordingly, the application to dismiss is granted.

1

BACKGROUND
On October 21, 2014, Plaintiff commenced this action. The Complaint indicates
that approximately one month earlier, on September 25, 2014, Plaintiff was placed in
the SHU at Collins to serve a disciplinary sentence. Prior to that date, Plaintiff had
selected the religious designation, “Not Specified.” However, the same day Plaintiff
arrived at Collins he filed a “Change of Religious Designation” form, indicating that he
was “Jewish” and that he wanted to receive the kosher “Cold Alternative Diet.”
However, defendant Joel Terragnoli (“Terragnoli”), the Chaplain at Collins, informed
Plaintiff that he could not change his religious designation until one year had passed,
pursuant to DOCCS Directive 4202, which, Plaintiff maintains, directs that “changes of
religious designation shall not be permitted while a Superintendent’s Proceeding is
pending and for the duration of an inmate’s confinement to a cell, room of special
housing unit, but not to exceed 12 months from the commencement of such
confinement.”
With regard to exhaustion of administrative remedies, the body of the Complaint
states:
Plaintiff has not filed a grievance in the instant matter for the following
reasons: A. Administrative Remedies are, in fact, unavailable. B. Special
circumstances negate the PLRA requirement. C. Defendants’ own
actions estop the exhaustion defense. Plaintiff is prepared to
demonstrate specifically, at any pretrial evidentiary hearing on exhaustion,
that the inmate grievance program in NYS is systematically flawed, one
sided & intentionally unfair; in violation of ‘fairness’ requirements of
Corrections Law § 139 & DOCCS Directive 4040. Furthermore, prison
employees were demonstrably advised & directed by Acting
Commissioner & Defendant, Anthony J. Annucci, in his decades long
capacity as DOCCS Counsel, to refrain from writing or ‘documenting’ any
supporting facts, which may be ‘discoverable’ in a civil proceeding, such
2

as the instant matter; via defendant Annucci’s written advisement to
create ‘systematic protocols’ such as these, which are designed to thwart
litigation. Grievance documents or decisions, therefore, are not allowed to
contain conclusions which support any inmate assertions of statutory or
constitutional violations by DOCCS staff. This ‘Annucci Protocol,’ if you
will, renders administrative remedy unavailable by executive fiat, &
DOCCS would not ‘address the merits’ as described & envisioned in
Woodford. Plaintiff believes this misconduct & result falls within the
parameters of the 2d Circuit’s exhaustion exemption criteria as delineated
in Hemphill (et al), & that Annucci’s own actions inhibiting ‘fair’ process as
required by law warrant estoppel.
Complaint [#1] at p. 12.
On December 24, 2014, Plaintiff notified the Court that “the dynamics of the case
ha[d] changed,” because he was released from the SHU on October 30, 2014, and was
then allowed to change his religious designation.
On July 30, 2015, Defendants filed the subject motion to dismiss, which is based
solely on failure to exhaust administrative remedies. On August 21, 2015, the Court
issued a Motion Scheduling Order [#12], directing Plaintiff to file and serve any
opposing papers by September 11, 2015. Plaintiff never filed a response, though he
notified the Court that he has been released from prison.
DISCUSSION
Exhaustion of Administrative Remedies
It is undisputed that Plaintiff failed to exhaust his administrative remedies before
commencing this action, and Defendants maintain that the Court should reject the
excuse he has offered. The relevant legal principles are clear:
The Prison Litigation Reform Act of 1995 (“PLRA”) states that “[n]o action
shall be brought with respect to prison conditions under [42 U.S.C. §
1983], or any other Federal law, by a prisoner confined in any jail, prison,
3

or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA 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. Prisoners must utilize the
state's grievance procedures, regardless of whether the relief sought is
offered through those procedures.
***
The exhaustion inquiry thus requires that we look at the state prison
procedures and the prisoner's grievance to determine whether the prisoner
has complied with those procedures.
***
The IGP has a regular three-tiered process for adjudicating inmate
complaints: (1) the prisoner files a grievance with the Inmate Grievance
Resolution Committee (“IGRC”), (2) the prisoner may appeal an adverse
decision by the IGRC to the superintendent of the facility, and (3) the
prisoner then may appeal an adverse decision by the superintendent to the
Central Officer Review Committee (“CORC”). N.Y. Comp.Codes R. &
Regs., tit. 7, § 701.7.
Espinal v. Goord, 558 F.3d 119, 123-125 (2d Cir. 2009) (citations and internal quotation
marks omitted).
Failure to exhaust as required by 42 U.S.C. § 1997e(a) is an affirmative defense,
and inmates are therefore not required to plead that they have exhausted administrative
remedies before commencing the action. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct.
910, 921 (2007). Nevertheless, an inmate’s complaint is subject to dismissal where “the
allegations in the complaint suffice to establish” a failure to comply with § 1997e(a).
Jones v. Bock, 549 U.S. at 215, 127 S.Ct. at 921.
However, an inmate’s duty to exhaust administrative remedies under § 1997e(a)
may be excused in certain cases:
Though exhaustion is generally mandatory, we have explained that a
failure to exhaust administrative remedies may be excused where: (1) the
4

administrative remedies were not in fact available; (2) prison officials have
forfeited, or are estopped from raising, the affirmative defense of
non-exhaustion; or (3) “special circumstances ... justify the prisoner's
failure to comply with administrative procedural requirements.” Hemphill v.
New York, 380 F.3d 680, 686 (2d Cir.2004) (internal quotation marks
omitted).
Dabney v. Pegano, 604 Fed.Appx. 1, 3, 2015 WL 664562 at *1 (2d Cir. Feb. 17, 2015).
An inmate, though, cannot avoid the exhaustion requirement merely because he
believes, however unreasonably, that it would be futile to file a grievance. See, e.g,
Turnage v. Dzurenda, No. 3:13-CV-838 (VLB), 2015 WL 4978486, at *4 (D. Conn. Aug.
20, 2015) (“Here, Plaintiff acknowledged that he never attempted to pursue
administrative remedies and offered as justification only his subjective belief that an
administrative proceeding would have been futile. This is insufficient to meet the legal
requirement for futility.”); Mena v. City of New York, No. 12 CIV. 0028 CM, 2014 WL
2968513, at *6 (S.D.N.Y. June 27, 2014) (“A prisoner's perception that the facility's
grievance program was ineffective or that the filing of grievances was futile is
insufficient to negate the PLRA's exhaustion requirement.”) (citation and internal
quotation marks omitted).
Here, Plaintiff does not claim that any person at Collins, let alone any defendant,
prevented him personally from exhausting his claim. Nor does Plaintiff claim that he
was unfamiliar with the exhaustion requirements or with DOCCS’ inmate grievance
system. To the contrary, Plaintiff indicates that the subject claim arose while he was
serving his third term of incarceration in New York State’s prison system. Indeed,
Plaintiff claims to be very knowledgeable about the DOCCS grievance program, so
much so that he has concluded that DOCCS’s entire state-wide grievance process is

5

“systematically flawed, one sided & intentionally unfair.”1 He maintains that such
unfairness “renders administrative remed[ies] unavailable.” However, the Court
disagrees, and finds, from the face of the Complaint, that Plaintiff unjustifiably failed to
exhaust his administrative remedies before commencing this action. Consequently,
Plaintiff’s claims under Section 1983 and RLUIPA are dismissed for failure to comply
with 42 U.S.C. § 1997e(a). To the extent that Plaintiff is attempting to assert state law
claims, they are dismissed pursuant to 28 U.S.C. § 1367(c)(3).
CONCLUSION
Defendants’ motion to dismiss [#11] is granted. Plaintiff’s claims are dismissed
without prejudice, for failure to exhaust administrative remedies as required by 42
U.S.C. § 1997e(a). The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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. The Clerk of the Court is directed
to terminate this action.
SO ORDERED.
Dated:

Rochester, New York
January 5, 2016
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
1

Even if the Court were to accept Plaintiff’s theory that DOCCS employees have been instructed
not to make factual admissions when responding to grievances, it is difficult to see how that would affect
Plaintiff, since his case involves the constitutionality of an undisputed policy.
6