Brooks v. Mullen et al

Filing 96

DECISION AND ORDER: Based on the credible testimony at the evidentiary hearing, see ECF No. 95 , the Court concludes that Defendants have met their burden of proof on their affirmative defense that Plaintiff failed to exhaust his administrati ve remedies as required by the PLRA. Plaintiff has not established that those administrative remedies are unavailable to him. Therefore, the Complaint is DISMISSED. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 10/21/2020. Order and NEF mailed to pro se Plaintiff.(BJJ)-CLERK TO FOLLOW UP-The Clerk of Court is directed to enter judgment and close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________
MARLAND BROOKS,
Plaintiff,

DECISION AND ORDER

v.

Case # 14-CV-6690-FPG

GREGORY L. MULLEN, et al.,
Defendants.
____________________________________________
INTRODUCTION
Pro se Plaintiff Marland Brooks is an inmate in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”). Plaintiff commenced the
instant action on October 29, 2014, in the United States District Court for the Southern District of
New York, pursuant to 42 U.S.C. § 1983, alleging constitutional violations arising from events
that occurred on January 4, 2012, while Plaintiff was housed at the Steuben County Jail. ECF No.
1. The case was transferred to this Court, ECF No. 5, and Defendants Gregory L. Mullen, Luke
Reinbold, and David Causer (collectively, “Defendants”) were served in the summer of 2015, but
they failed to answer. Over two years later, in response to an Order to Show Cause, ECF No. 21,
Defendants answered, and the parties commenced discovery.
Defendants did not provide Plaintiff with discovery he requested, and the Court held a
conference on February 19, 2020 to set a trial date. ECF No. 65. At that time, Defendants indicated
that they would provide discovery to Plaintiff and that they intended to file a motion for summary
judgment. Recognizing that this case had been pending for over five years, the Court set an
abbreviated briefing schedule and a trial date. The trial date was subsequently adjourned due to
the COVID-19 Pandemic.

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On March 6, 2020, Defendants moved for summary judgment, arguing that Plaintiff failed
to exhaust his administrative remedies. ECF No. 68. On May 15, 2020, the Court denied
Defendants’ motion for summary judgment. Plaintiff claimed that he had handed grievances to
unknown corrections officers, but the grievances were never formally filed, and he never received
a response to them. The Court concluded that Plaintiff had not exhausted his administrative
remedies by completing the grievance process, but that a hearing was required to determine if such
administrative remedies were in fact available to Plaintiff. ECF No. 81.
Thereafter, the Court sought to determine to whom Plaintiff gave the grievances. ECF No.
82. At the Court’s request, Defendants provided Plaintiff with records identifying the corrections
officers with whom he had contact on the dates in question. ECF No. 85. On August 6, 2020, the
Court received a letter from Plaintiff in which he stated that he believed he gave the grievances to
“Officer Thomas Roderick” and “Kevin Ames.” ECF No. 87. At a conference, defense counsel
indicated that Kevin Ames is employed by the Steuben County Jail, but that Officer Roderick had
retired. ECF No. 91. The Court set the matter down for an evidentiary hearing for October 1,
2020. In a letter dated September 11, 2020, defense counsel indicated that he had searched
employment records and that the Steuben County Jail never employed a “Thomas Roderick,” but
did employ a “Roderick Ford,” who defense counsel indicated he would produce for the hearing.
ECF No. 92.
Just days before the hearing, on September 28, 2020, the Court received a letter from
Plaintiff admitting that he did “not know where the name Roderick came but Thomas is the officer
last [sic] name” of the person to whom he gave the grievances. ECF No. 94. On September 30,
2020, Defendants wrote a letter to the Court, noting that Plaintiff had not asked that Officer

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Thomas be produced for the hearing, and that Officer Thomas had retired long ago and was no
longer a county employee who defense counsel could produce. ECF No. 93.
The Court held an evidentiary hearing on October 1, 2020. Plaintiff and Lieutenant Justin
Mills—who described the grievance process—testified.

ECF No. 95.

The Court reserved

decision.
For the reasons that follow, the Court concludes that Plaintiff’s administrative remedies
were not unavailable to him and he failed to exhaust them.

Therefore, the Complaint is

DISMISSED.
FACTUAL BACKGROUND
I.

Plaintiff’s Deposition Testimony
Plaintiff testified at his deposition that on January 4, 2012, while he was an inmate at the

Steuben County Jail, Defendants attacked him, causing serious injuries. That day, Plaintiff “took
somebody’s cake” during mealtime, and, as a result, Defendants escorted Plaintiff to keep lock.
ECF No. 68-9 at 19. Defendants handcuffed Plaintiff behind his back, and, when Mullen began
to remove the cuffs upon arriving at the cell, a struggle ensued. Id. at 20-21. According to Plaintiff,
Defendants told Plaintiff to get on his knees, and place his free hand on his head. Id. at 22. Not
satisfied with Plaintiff’s hand placement, Reinbold “started smushing [his] face into the mattress,
broke [his] glasses.” Id. Plaintiff “couldn’t breathe.” Id. Defendants tried to regain control of
Plaintiff’s free hand, causing his right shoulder to “pop.” Id. at 24-25. Defendants kicked, hit, and
pushed Plaintiff, and Plaintiff tried to defend himself. Id. at 24-27. Causer sprayed Plaintiff in the
mouth with pepper spray. Id. at 26. Once Defendants were able to remove the handcuffs, Plaintiff
lay on the floor and Defendants “really did what they had to do.” Id. at 27-28. Eventually,

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Defendants “carried [Plaintiff] out” of the cellblock and Plaintiff was able to wash off the spray.
Id. at 27-29. Later that day, Plaintiff was brought to a different cell. Id. at 30.
Plaintiff testified that he “wrote three grievances about this incident” but officers “ripped
them up and threw them in the garbage.” Id. at 32. Plaintiff indicated that he could not remember
who these officers were. Id. He spoke to the major or superintendent several times about the
incident, to no avail. Id. at 32-33. He retained a copy of one grievance, but it was misplaced when
he was transferred. Id. at 33. Plaintiff also testified—and the records bear out—that he had
submitted numerous grievances in the past, but none were ever destroyed. Id. at 33.
II.

Evidentiary Hearing Testimony
A.

Plaintiff’s Hearing Testimony

Plaintiff testified at the hearing that, after the incident on January 4, 2012, he requested and
received three grievance forms while he was in keep lock. He gave the first completed form to
Officer David Thomas on January 7, 2012 at around 4:00 p.m. Officer Thomas placed the
grievance on the desk and disappeared. At around 7:45 p.m., Officer Christopher Stewart looked
at the grievance on the desk and then ripped it up. The next afternoon, Plaintiff gave Officer
Thomas another completed grievance form. Plaintiff never received notice that either grievance
was received or that a decision had been rendered, despite that he was familiar with the grievance
process and successfully submitted grievances for other incidents.
When questioned about why Plaintiff had previously indicated in writing that he had given
the grievances to Officers Thomas Roderick and Kevin Ames, Plaintiff admitted that he did not
know to whom he gave the second grievance. He acknowledged that he had indicated at his
deposition that he gave three separate grievances involving the January 4, 2012 incident to three
separate officers on three separate days and that they were all ripped up. At the hearing, Plaintiff

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amended that statement, testifying that, in fact, he had submitted the third grievance about a
separate incident that did not involve the events of January 4, 2012. That grievance was filed.
B.

Lieutenant Justin Mills’s Testimony

Lieutenant Justin Mills testified that he has been employed by Steuben County for 17 years,
and he currently oversees policies, procedures, and inmate records at the Steuben County Jail. In
2012, at the time of the incident, he was assigned to the Steuben County Jail as a corrections
officer.
Lieutenant Mills testified that in January 2012, the Steuben County Jail maintained a
grievance procedure that was documented in an inmate handbook, which each inmate received
upon arrival at the Steuben County Jail. Plaintiff acknowledged receipt of the inmate handbook.
If an inmate wished to grieve an issue, he would work with the Housing Unit officers to try to
resolve the issue. If the Housing Unit officers could not resolve the issue, officers would provide
the inmate with a grievance form or a form to request a grievance form.
Lieutenant Mills reviewed the file containing all of the grievances Plaintiff submitted while
he was at the Steuben County Jail. Although there were 24 pages of grievances, none related to
the January 4, 2012 incident. Lieutenant Mills testified that he has never witnessed the destruction
or discarding of an inmate grievance.
At the time Plaintiff allegedly sought to file grievances about the January 4, 2012 incident,
he was under constant watch, meaning that corrections officers supervised his conduct 24 hours a
day because he had demonstrated that he was at risk for self-harm. Corrections officers sat directly
in front of Defendant’s cell and were required to log Defendant’s conduct every 15 minutes and
any other significant events that occurred.

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Lieutenant Mills testified that inmates can receive grievance forms or grievance request
forms from Housing Officers but that officers supervising constant watch do not have grievance
forms or requests slips available to distribute because they are not allowed to get up from their
post in front of the cell they are watching to retrieve a form. Furthermore, any medical request
form must be made directly to a medical professional, due to HIPAA. Constant watch officers are
directed not to accept medical requests.
DISCUSSION
I.

Exhaustion Generally
The Prison Litigation Reform Act (“PLRA”) requires an inmate to exhaust all available

administrative remedies before filing suit in federal court. 42 U.S.C. § 1997e(a); see also Ross v.
Blake, 136 S. Ct. 1850 (2016) (holding that exhaustion is “mandatory”). “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.’” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S.
516, 532 (2002)). To properly exhaust administrative remedies, an inmate must comply with the
facility grievance “system’s critical procedural rules,” Woodford v. Ngo, 548 U.S. 81, 95 (2006),
including time limits. Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011).
“Under New York regulations, an inmate at a local correctional facility”—such as the
Steuben County Jail—“must file a grievance within five days of the date of the act or occurrence
giving rise to the grievance.” Baez v. Rathbun, No. 16-CV-6552L, 2018 WL 3528311, at *4
(W.D.N.Y. July 23, 2018) (citing 9 N.Y.C.R.R. § 7032.4(d)); see also Hill, 657 F.3d at 124
(describing New York’s grievance process for county jails). The grievance procedure for inmates
at the Steuben County Jail is contained in an Informational Handbook, which is attached to

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Defendants’ motion for summary judgment. It provides—as Lieutenant Mills testified at the
hearing—that inmates must first attempt to resolve the matter with the Housing Officer. ECF No.
68-5 at 19. If the inmate receives an unsatisfactory response, he may request a Grievance Form
“in writing from the facility Grievance Coordinator,” which he must “complete . . . within five
days of the incident giving rise to the grievance.” Id. The Inmate Handbook provides that the
inmate “will receive a written determination within five business days of the Grievance
Coordinator’s response.” Id. The inmate then has two business days thereafter to appeal to the
Jail Superintendent, who will make a determination within five business days. Id. A decision by
the Jail Superintendent must be appealed in writing within three additional business days to “the
Commission of Corrections Civilian Policy and Complaint Review counsel.” Id.
Plaintiff admits that he did not exhaust his administrative remedies for any grievance filed
relating to the January 4, 2012 incident. ECF No. 1 at 2. Rather, he asserts that he tried to follow
the grievance procedure, but was unable to do so because the officers destroyed his grievances.
II.

Unavailability of Grievance Procedures
The PLRA’s mandatory exhaustion requirement “contains one significant qualifier: the

remedies must indeed be ‘available’ to the prisoner.” Ross, 136 S. Ct. at 1856. In Ross, the
Supreme Court identified “three kinds of circumstances in which an administrative remedy,
although officially on the books, is not capable of use to obtain relief”: (1) when the procedure
“operates as a simple dead end—with officers consistently unable or unwilling to provide any
relief to aggrieved inmates,” (2) when the procedure is “so opaque that it becomes, practically
speaking, incapable of use,” and (3) when prison administrators thwart the use of the procedure
“through machination, misrepresentation, or intimidation.” Id. at 1859-60; accord Stewart v.
Suffolk Cty. Sheriff’s Office, 792 F. App’x 136, 138 (2d Cir. 2020) (summary order). Aside from

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these circumstances, “the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—
irrespective of any ‘special circumstances.’” Ross, 136 S. Ct. at 1856.
The Second Circuit addressed the “opaqueness” unavailability exception in Williams v.
Priatno, 829 F.3d 118 (2d Cir. 2016).

There, the court held that a grievance program is

functionally unavailable in the “extraordinary circumstance[]” where a special housing unit inmate
hands a corrections officer a grievance but the corrections officer fails to file it. Id. at 124. The
court explained that “the regulations only contemplate appeals of grievances that were actually
filed,” rendering it “practically impossible for [the plaintiff] to ascertain whether and how he could
pursue his grievance.” Id. In other words, “some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it.” Id. (quoting another source). Therefore, “the
regulatory scheme . . . [was] so opaque and so confusing that . . . no reasonable prisoner can make
use of it.” Id. (quoting another source). The Second Circuit concluded that because the grievance
procedures were unavailable to the plaintiff, he had satisfied the PLRA’s exhaustion requirement.
Since Williams, multiple courts in this Circuit have concluded that a grievance procedure
may be unavailable where an inmate handed a grievance to an officer, but the officer failed to file
or process it. See Hamilton v. Westchester Cty., No. 18-CV-8361 (NSR), 2020 WL 917214, at *4
(S.D.N.Y. Feb. 25, 2020) (denying motion to dismiss where it appeared from face of the complaint
that officer refused to accept grievance); Hamlett v. Stotler, No. 917CV0939GLSTWD, 2019 WL
4306999, at *9 (N.D.N.Y. Aug. 15, 2019) (concluding, after holding a hearing, that plaintiff’s
failure to exhaust was excused where plaintiff testified that prison would not accept his grievance
because it was untimely), report and recommendation adopted, No. 917CV0939GLSTWD, 2019
WL 4305443 (N.D.N.Y. Sept. 11, 2019); Ortiz v. Annucci, No. 17-CV-3620 (RJS), 2019 WL
1438006, at *8-9 (S.D.N.Y. Mar. 29, 2019) (denying motion for summary judgment where

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plaintiff maintained that he drafted and attempted to file a grievance but the officer to whom he
handed it failed to file it).
III.

Burden of Proof
“The failure to exhaust administrative remedies is an affirmative defense which must be

raised by the defendants,” and it is Defendants’ burden to establish that Plaintiff failed to meet the
exhaustion requirement. Brown v. Dubois, No. 915CV1515LEKCFH, 2018 WL 2078823, at *5
(N.D.N.Y. Apr. 10, 2018), report and recommendation adopted, No. 915CV1515LEKCFH, 2018
WL 2077891 (N.D.N.Y. May 2, 2018). However, Plaintiff bears the burden of demonstrating that
such a process was unavailable. Henrius v. Cty. of Nassau, No. 13CV1192SJFSIL, 2019 WL
1333261, at *4-5 (E.D.N.Y. Mar. 22, 2019); see White v. Velie, 709 F. App’x 35, 38 (2d Cir. 2017)
(summary order).
In evaluating whether Plaintiff complied with the exhaustion requirement or whether that
exhaustion requirement should be excused, the Court must determine issues of a law and
credibility. “Exhaustion, even where the facts are disputed, is a matter of law for the Court to
decide.”

Brown, 2018 WL 2078823, at *5 (citing Engles v. Dougherty, 9:14-CV-1185

(TJM/ATB), 2017 WL 6466309, at *5 n.4 (N.D.N.Y. Aug. 22, 2017)).
IV.

Analysis
The Court had the ability to observe the witnesses and evaluate their credibility during the

exhaustion hearing. The Court finds credible the testimony of Lieutenant Justin Mills that a
grievance procedure was in place at the Steuben County Jail and available to Plaintiff, that Plaintiff
received and acknowledged the grievance procedure, that he had successfully filed grievances
before and after the incident, but that the record contained no grievances related to the January 4,
2012 incident. Moreover, the Court finds credible Lieutenant Mills’s testimony insinuating that,

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based on his knowledge of past events, it is extremely unlikely that a corrections officer destroyed
two of Plaintiff’s grievances, especially when Plaintiff’s grievance file contains multiple
grievances related to other incidents.
The Court simply does not find credible Plaintiff’s testimony that he gave two grievances
to Officer Thomas on two separate days, that Officer Stewart ripped up one grievance, and that the
other grievance was never filed. Over the course of the eight years since this incident, Plaintiff
has changed multiple aspects of his story regarding to whom he gave the grievances, who ripped
them up, and when all of this occurred several times.
At his deposition, Plaintiff insisted he gave three grievances to three separate officers on
three separate days, but he could not remember their names. In written submissions to the Court,
after reviewing discovery material provided to him revealing which officers he came into contact
with on the days he allegedly submitted the grievances, Plaintiff insisted that he gave the
grievances to only two officers: Officers Thomas Roderick and Kevin Ames. When Defendants
indicated to Plaintiff that there was no Thomas Roderick but that there was a Roderick Ford,
Plaintiff agreed that this was the correct officer. In a letter to the Court before the evidentiary
hearing, Plaintiff again changed his mind, insisting this time that he actually gave the grievance to
an Officer Thomas. At the hearing, Plaintiff raised for the first time that Officer Stewart destroyed
one grievance and he does not know what happened to the other one. This story is inconsistent
with the stories Plaintiff has been telling for the past eight years.
Importantly, the testimony clearly establishes that Plaintiff knew how the grievance
procedure operated. Indeed, Plaintiff acknowledged that he could have but did not pursue the
grievances further.

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Given Plaintiff’s confusing, disjointed, and inconsistent statements regarding the
grievances, the Court finds it more likely that Plaintiff never submitted a grievance for his alleged
injuries resulting from the January 4, 2012 incident. Plaintiff had filed multiple grievances about
multiple incidents, and it appears that he simply never pursued grievances for the January 4, 2012
incident.
Accordingly, the Court finds that Plaintiff has not satisfied his burden of establishing that
the grievance process was unavailable to him and he failed to exhaust his administrative remedies.
CONCLUSION
Based on the credible testimony, the Court concludes that Defendants have met their
burden of proof on their affirmative defense that Plaintiff failed to exhaust his administrative
remedies as required by the PLRA. Plaintiff has not established that those administrative remedies
are unavailable to him. Therefore, the Complaint is DISMISSED.
IT IS SO ORDERED.
Dated: October 21, 2020
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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