Jackson v. Downstate Correctional Facility et al, No. 7:2016cv00267 - Document 46 (S.D.N.Y. 2018)
Court Description: OPINION & ORDER re: 37 MOTION for Summary Judgment on the ground that Plaintiff did not exhaust his administrative remedies filed by S. Reyes, Thoben. For the foregoing reasons, Defendants' Motion is DENIED. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 37. The parties are directed to confer and submit the attached Civil Case Management Plan to Chambers on or before August 17, 2018. The Clerk of the Court is further directed to mail a copy of this Opinion and Order to Plaintiff at his address as listed on ECF. (Signed by Judge Nelson Stephen Roman on 7/31/2018) (mro)
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Jackson v. Downstate Correctional Facility et al Doc. 46 'JSDC SDI\,' DC2UlVIEI\'T UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RAYMOND JACKSON, Plaintiff 16-CV-0267 (NSR) V. DOWNSTATE CORRECTIONAL FACILITY, S. REYES (C.O.), and C.O. THOBAN, OPINION & ORDER Defendants. NELSON S. ROMAN, United States District Judge Plaintiff Raymond Jackson ("Plaintiff') commenced this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants C.O. Reyes ("Reyes"), C.O. Thoban ("Thoban") (collectively, the "Defendants"), and Downstate Conectional Facility ("Downstate") 1 for alleged violations of his Eighth Amendment right to be free from cruel and unusual punishment. (See The Second Amended Complaint ("SAC") (ECF No. 22).). Presently before the Court is Defendants' motion for summary judgment on the basis that Plaintiff failed to exhaust his administrative remedies as mandated by the Prison Litigation Refonn Act, 42 U.S.C. § 1997e ("PLRA") ("Defendants' Motion"). (See Defendants' Brief in Support of their Motion for Summary Judgment ("Defs. Br.") (ECF No. 38) at 1-2.) For the following reasons, Defendants' Motion is DENIED. FACTUAL BACKGROUND 2 Plaintiff is an inmate incarcerated at Clinton Conectional Facility ("Clinton"), a prison operating under the auspices of the New York State Department of Conections -and Community 1 By order dated February 2, 2016, this Court dismissed all claims against Downstate and terminated it from the action, as it is not a proper party. (See ECF No. 8.) 2 The Court draws the recitation of facts from a review of the record available, including the SAC and the affidavits and evidence annexed to the parties' motion-related papers. Defendants argue that, in light of Plaintiff's failure to adequately respond to their Rule 56.1 Statement of Uncontested Material Facts, this Court should deem the facts admitted as stated. (See Reply in Further Support of Defendants' Motion ("Defs. Reply") (ECF No. 42) at 2.). · Though Dockets.Justia.com Supervision ("DOCCS"). (See SAC at 2.) Plaintiffs claims arise from an incident that occurred on October 8, 2015 while he was housed at Downstate. (Id. at 4.) Specifically, Plaintiff alleges that while he was in the "draft" room, he was attacked by Defendants. (See id.) The following day, Plaintiff was transferred to Clinton. (See Declaration of Bruce J. Turkle in Support of Defendants' Motion ("Turkle Deel.") (ECFNo. 39), Ex. 1 at 8.) Upon his arrival at Clinton, Plaintiff attended "Phase 1"; an orientation program at Clinton covering all aspects of incarceration, including a review of the grievance process and the remedies available to inmates under 7 N.Y.C.R.R. § 701 et seq. (See Turkle Deel., Ex. 1 at 12-13.) On October 21, 2015, Plaintiff completed an inmate grievance and sent it to Downstate complaining of the alleged assault that took place on October 8, 2015 when he was still housed there (the "Downstate Grievance"). (See Turkle Deel., Ex. 1 at 46-47; Ex. 4.) A letter dated October 27, 2015 was sent to Plaintiff from K. Watson, Inmate Grievance Program ("IGP") Supervisor at Downstate advising that she had received the October 21, 2015 grievance, but in light of Plaintiffs transfer to Clinton, he was required to file his grievance "at the facility where [he was] housed even ifit pertains to another facility." (Turkle Deel., Ex. 5.) The letter also noted that the original grievance was being returned to Plaintiff to "proceed as [he saw] fit." (Id.) On October 26, 2015, Plaintiff filed a grievance at Clinton (the "October Grievance"). (See Turkle Deel., Ex. 1 at 66-67; Ex. 6.) This grievance was not written on the standard grievance form, but a regular piece of paper. (See Turkle Deel., Ex. 1 at 67-69; Ex. 6.) Plaintiff testified that Plaintiff has failed to provide a Rule 56.1 response that explicitly addresses each of Defendants' purportedly uncontested facts, Plaintiff has nevertheless provided this Court with a document that purports to be in compliance with Rule 56.1, though read in context falls short of a Rule 56.1 Statement. Regardless, this Court has discretion to, and will, conduct a search of the record to ascertain whether the facts as alleged by the moving party are in fact supported by the record. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (noting that "while a court is 'not required to consider what the parties fail to point out' in their Local Rule 56.1 statements, it may in its discretion opt to 'conduct an assiduous review of the record' even where one of the parties has failed to file such a statement.") 2 as soon as he received Ms. Watson's letter, he used a piece of carbon paper to create the October Grievance and filed it the same day. (See Turkle Deel., Ex. 1 at 66-69.) 3 Plaintiff contends that his October Grievance was ignored and not acknowledged. (Id at 69, 90-91, 95, 102, 103.) Plaintiff repeatedly maintains that it was filed. (Id; See Plaintiffs Brief in Opposition to Defendants' Motion ("Plf. Br.") (ECF No. 44) at 2.)4 Plaintiff twice completed "requests for interview information" addressed to A. Sweeney, Assistant Superintendent at Clinton ("Sweeney"). (See Turkle Deel., Ex. 7.) The first was on October 20, 2015, the day before he drafted his Downstate Grievance, and merely requested to speak with Sweeney. (Id.) The second was on October 26, 2015, and stated that he was "told [he] can still pursue a Grievance against Downstate Conectional Facility from Clinton Annex? [sic] If so ma'm that is what I am asking permission to do." (Id) Sweeney sent Plaintiff a letter on October 29, 2015, acknowledging that he requested to speak with her and sought permission to pursue a grievance against Downstate conectional officers. (See Turkle Deel., Ex. 8.) Sweeney informed Plaintiff of the following: (1) as to his October 20, 2015 request, that he needed to provide a reason for meeting with her; and (2) with respect to the October 26, 2015 request, "if [he The parties appear to dispute the date on which the October Grievance was drafted. During his deposition, Plaintiff testified that the first time he learned that he had to file his grievance at Clinton, as opposed to Downstate, was when he received the Watson letter dated October 27, 2015. (See Turkle Deel., Ex. I at 66.) The October Grievance, which he purportedly drafted only after receiving the Watson letter, however, was dated October 26, 2015. (Id.) Defendants suggest that Plaintiff manufactured his grievance. (See Defs. Br. at 23 n.7.) Such an argument is wholly speculative, and thus rejected by this Court, as Defendants fail to demonstrate any other evidence that would support such a contention. Nevertheless, the inconsistency in Plaintiff's testimony is not material; Plaintiff insists that he filed this grievance, (see Turkle Deel., Ex. I at 69, 90-91, 95, 102, 103), that he did so as soon as he received Watson's letter, {id at 66), and that it is possible he got the dates wrong, or wrote the wrong date on the grievance, (id at 66-67.) Ultimately, the date the grievance was filed, whether October 26, 2015 or October 27, 2015, is immaterial for purposes of this motion, as both dates are well within the 21 day time frame for filing a grievance under 7 N.Y.C.R.R. § 701.S(a)(I). 4 By memorandum endorsement dated May 2, 2017, this Court granted Defendants' leave to file this motion for summary judgment. (ECF No. 30.) In addition to setting a briefing schedule, this Court directed Defendants to file all motion-related papers, including Plaintiff's opposition, on the Court's electronic filing system on the reply date, July 6, 2017. (Id) Thereafter, the Court extended the motion deadline to August 7, 2017. (ECF No. 33.) While Defendants did file their motion-related papers on the reply date, they failed to file a copy of Plaintiff's Opposition. For the record, Plaintiff's Opposition will be filed on ECF prior to the filing of this Opinion, and the Court notes that it was timely served, as Defendants address Plaintiff's arguments in opposition in their Reply. 3 3 had] any concerns [he felt were] in need of a grievance", that he could "pursue this through [the] formal grievance process." (Id) Sweeney also directed Plaintiff to address any of his concerns regarding the grievance process to Mrs. Brousseau, Clinton's IGP Supervisor. (Id) Plaintiff made no further contact with any prison administrators or IGP members to ascertain the status of his October Grievance before initiating this lawsuit in January 2016. (See Turkle Deel., Ex. 1 at 90-91.) Nevertheless, during the months of November and December of 2015, Plaintiff testified that other inmates were telling him that something was wrong with his grievance and that he should have already received a response or hearing by that point. (Id. at 90.) Plaintiff did not, however, reach out to Sweeney again, or contact Mrs. Brousseau as Sweeney had suggested. Instead, on January 7, 2016, Plaintiff initiated this Section 1983 lawsuit, (see ECF No. 1), because his October Grievance was not acknowledged and he thought "they were playing games", (see Turkle Deel., Ex. 1 at 103.) By letter dated February 1, 2016, Plaintiff finally reached out to Mrs. Brousseau, to ask why there was no response to his October Grievance. (See Turkle Deel., Ex. 9.) In response on February 4, 2016, Mrs. Brousseau advised Plaintiff that "[t]here is no record of a grievance on file for you at Clinton annex that concerns allegations of assault." (See Turkle Deel., Ex. 10.) Plaintiff also received a memorandum dated March 7, 2016 from Downstate in response to his request for records, which informed him that they did not have any grievance on file pertaining to an assault that took place on October 8, 2015. (Id Ex. 11.) During this time, Plaintiff spoke with two Inmate Grievance Resolution Committee ("IGRC") representatives, Cedrick and Beatha, who informed him that the evidence showed "that [he] filed the" October Grievance, (see Turkle Deel., Ex. 1 at 102), the Clinton IGP administrators "probably just didn't acknowledge it and they threw it out", (id), and he should file a new 4 grievance, (id. at 116-18.) Thereafter, on March 15, 2016, Plaintiff requested leave from this Court to withdraw his Complaint, as he did "not use the proper vehicle in this matter," but otherwise failed to explain the impetus for this request. (See ECF No. 9.) On April 15, 2016, this Court granted Plaintiffs application and dismissed his case without prejudice. (See ECF No. 14.) In the interim, Plaintiff filed a grievance on April 3, 2016 (the "April Grievance"). (See Turkle Deel., Ex. 12.) The April Grievance stated that Plaintiff had previously filed a grievance in October, but "got no response", he felt "this is in retaliation against [him] for filing a grievance against another officer" at Downstate, and that C.O. Reyes and C.O. Thoban "assaulted [him and] they hurt [his] elbow .... " (Id.) Plaintiffs April Grievance was dismissed as untimely on April 19, 2016. (See Turkle Deel., Exs. 13-15.) The decision indicated that there was no grievance on record regarding an alleged assault at Downstate and that Plaintiffs April Grievance was filed beyond the timefrarnes articulated in 7 N.Y.C.R.R. § 701; thus it could not be accepted or investigated. (See id.) Plaintiff appealed to the Clinton Superintendent, who affirmed the IGRC's decision on April 26, 2016, and reiterated that the April Grievance was untimely and "unsubstantiated." (See Turkle Deel., Ex. 16.) On April 29, 2016, Plaintiff appealed the Superintendent's decision to the Central Office Review Committee ("CORC"), (see Turkle Deel., Ex. I 7), and after a hearing on August 31, 2016, the CORC affirmed the Superintendent's decision, (see Turkle Deel., Ex. 18.) Approximately three months later, on November 16, 2016, Plaintiff made an application before this Court for leave to reinstate his action, based on the CORC's denial of his April Grievance. (See ECF No. 15.) Defendants opposed Plaintiffs application, arguing that if Plaintiffs reasoning for discontinuing the action was originally related to his need to exhaust his administrative remedies, his only recourse was to now initiate a new lawsuit, not reopen the action. 5 (See ECF No. 16.) By shott order dated January 26, 2017, this Court granted Plaintiffs application to reopen the case and directed Plaintiff to file an amended complaint on or before March 13, 2017. ' (See ECF No. 19.) Thereafter, on February 16, 2017, Plaintiff filed an amended complaint and amended his pleadings a second time on March 13, 2017. (See ECF Nos. 20, 22.) Plaintiffs March 13, 2017 second amended complaint is the operative complaint. In suppo1t of their motion, Defendants also provide the Court with affidavits from Michael Kirkpatrick, Superintendent at Clinton, Brousseau, and Karen Bellamy, Director of the Inmate Grievance Program at DOCCS, all demonstrating that no grievance dated October 26, 2015 or related to an October 8, 2015 assault at Downstate (aside from the April Grievance) was ever filed with the IGRC. (See Turkle Deel., Ex. 19'1['1[2-4; Ex. 20 '1['1[15-16; Ex. 21 '1['1[7-9.) LEGAL STANDARD Pursuant to Rule 56 of the Federal Rules of Civil Procedure, 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 oflaw." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of pointing to evidence in the record, "including depositions, documents ... [and] affidavits or declarations," see Fed. R. Civ. P. 56(c)(l)(A), "which it believes demonstrate[s] the absence ofa genuine issue of material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving paity may support an asse1tion that there is no genuine dispute of a particular fact by "showing . . . that [theJ adverse party cannot produce admissible evidence to supp01t the fact." Fed. R. Civ. P. 56(c)(l)(B). If the moving party fulfills its preliminary burden, 6 the onus shifts to the nonmoving party to raise the existence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(l)(A);Anderson v. Liberty Lobby, Inc., 477 U.S. 242,252 (1986). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; accord Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Benn v. Kissane, 510 F. App'x 34, 36 (2d Cir. 2013) (summary order). Courts must "draw all rational inferences in the non-movant's favor," while reviewing the record. Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Importantly, "the judge's function is not himself to weigh the evidence and determine the truth of the matter," nor is it to detennine a witness's credibility. Anderson, 477 U.S. at 249; see also Kaylor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). Rather, "the inquiry performed is the threshold inquiry of detetmining whether there is the need for a trial." Anderson, 477 U.S. at 250. Summary judgment should be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that patty's case." Celotex, 477 U.S. at 322. Critically, in an opposition to a motion for summary judgment"[s]tatements that are devoid of any specifics, but replete with conclusions" will not suffice. Bickerstaff v. Vassar Coll., 196 F.3d 435,452 (2d Cir. 1999); see also lvfatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (nonmoving party "may not rely ou conclusory allegations or unsubstantiated speculation" (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))). 7 DISCUSSION I. PLRA Exhaustion Defendants argue that they are entitled to summary judgment because Plaintiff has failed to exhaust his administrative remedies. (See Defs. Br. at 1-2.) Though Defendants are co1Tect that Plaintiff has failed to exhaust his administrative remedies, such failure is excusable. The PLRA mandates pre-litigation exhaustion of all complaints about inmate life by stating that "a prisoner confined in any jail, prison, or other co1Tectional facility" must exhaust "such administrative remedies as are available" prior to initiating a federal lawsuit. 42 U.S.C. § 1997e(a). To ascertain what remedies are available, courts must look to "the state prison procedures [available] and the prisoner's grievance" choices. Espinal v. Goard, 558 F.3d 119, 124 (2d Cir. 2009) (citing Jones v. Bock, 649 U.S. 199, 218 (2007)). Thereafter, courts consider whether a patticular plaintiff has exhausted his administrative remedies, and in circumstances where he has not, courts must then determine whether such a failure may be excused. See Williams v. Corr. Officer Priatno, 829 F.3d 118, 122-24 (2d Cir. 2016). In New York, the grievance process is governed by the three tiered IGP system. Id. at 125; see also 7 N.Y.C.R.R. § 701. Typically, an inmate must (I) "file[] a grievance with the [IGRC within 21 days of the incident]"; (2) "appeal an adverse decision by the IGRC to the Superintendent of the facility"; and (3) "appeal an adverse decision by the Superintendent to the [CORC]." See Espinal, 558 F.3d at 125; see also 7 N.Y.C.R.R. §701.5. In situations such as this, concerning a grievance of hai·assment, 5 there is an expedited procedure which mandates that the grievance be sent directly to the Superintendent on the day it Harassment grievances are defined as "those grievances that allege employee misconduct meant to annoy, intimidate, or hann an inmate," see N.Y.C.R.R. § 701.2(e), and have consistently been held to include grievances concerning excessive force, see Williams, 829 F.3d at 119-20 (discussing harassment grievance procedure section as relevant to 5 8 is filed. See N.Y.C.R.R. § 701.8. The Superintendent then has 25 days to "render a decision on the grievance and transmit said decision" to the inmate. Id § 70 l .8(f). "If the Superintendent fails to respond within the required 25 calendar time limit the grievant may appeal his or her grievance to CORC." Id. § 701.8(g). To do so, the grievant must "fil[e] a Notice of Decision to Appeal (Form #2133) with the inmate grievance clerk." Id. The regulations also provide that within 45 days of the incident, an inmate can seek an extension of the time to file a grievance beyond the 21 days prescribed by §701.5 or file an appeal "of an IGRC or superintendent's decision", based on "mitigating circumstances." See 7 N.Y.C.R.R. §701.6(g)(l)(i)(a), (b). No exceptions, however, are granted "if the request was made more than 45 days after" the incident. Id. 6 Prior to 2016, if a pro se inmate had failed to exhaust his administrative remedies, the Second Circuit urged comts to consider whether special circumstances existed "that justified a plaintiffs failure to exhaust remedies that were available and not subject to estoppel." Williams, 829 F.3d at 122 (discussing Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004)). In 2016, however, the Supreme Court held that the exhaustion analysis hinges on the functional availability of administrative remedies, and that non-textual exceptions to the exhaustion requirement would not stand. See Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). Thus, though a remedy is technically on the books, it is considered functionally unavailable if (1) "it operates as a simple dead endwith officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) the "administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use"; or plaintiff's claims of excessive force); see also Shaw v. Ortiz, No. 15-CV-8964(KMK), 2016 WL 7410722, at *3 (S.D.N.Y. Dec. 21, 2016) (discussing expedited procedure). 6 The Court acknowledges that§ 701.6(g)(l)(i)(b) provides that an extension of the time to appeal from the IGRC or a Superintendent's decision may be granted when filed outside the 45-day window, only if the "appeal asserts a failure to implement the decision." See 7 N.Y.C.R.R. § 701.6(g){l)(i)(b). Such an exception necessarily contemplates a situation where directives outlined in the IGRC or Superintendent's decision are not implemented and is thus predicated on the existence of a properly filed grievance. 9 (3) "prison administrators thwart imnates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id at 1859-60. Consequently, Ross explicitly rejected the special circumstances exception. Id at 1858. 7 A. The October Grievance After learning that his Downstate Grievance was rejected for failure to comply with 7 N.Y.C.R.R. § 701.5(a)(l), Plaintiff filed the October Grievance. (See Turkle Deel., Ex. 1 at 6668.) Such grievance is governed by 7 N.Y.C.R.R. § 701.8, as it is a harassment grievance. Plaintiffs grievance thus would have been sent directly to the Superintendent for immediate review. See 7 N.Y.C.R.R. § 701.8(b). Thereafter, the Superintendent had 25 days within which to "render a decision on the grievance and transmit said decision, with reasons stated to the grievant, the grievance clerk, and any direct party of interest." Id. § 701.8(f). After expiration of the 25 calendar day period, when "the Superintendent fail[ed] to respond", the procedures provide that Plaintiff could have "appeal[ed] his grievance to CORC," by completing a Notice of Decision to Appeal. Id § 701.8(g). Instead, he claims that he "tried to exhaust the grievance process by trying to have a personal conversation with Sweeney about the assault that happen [sic] at downstate, and at Clinton Annex, but she did not give me an interview." (Plf. Br. at 2.) Such conduct is insufficient for exhaustion, see Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (noting that after Woodfordv. Ngo, 548 U.S. 81 (2006), "notice alone is insufficient because '[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance .... "); see also Snyder v. Whittier, 428 F. App'x 89, 91 (2d Cir. 2011) (summary order) ("Merely alerting the prison officials as to the nature of the wrong ... does not 7 To the extent Plaintiff relies on Hemphill, to argue that certain special circumstances should excuse his failure to exhaust his administrative remedies, in light of the Supreme Court's outright rejection of such an exception to the PLRA in Ross, such an argument cannot stand. 10 constitute proper exhaustion.") (internal quotations and alterations omitted), and Plaintiffs failure to appeal to the CORC constitutes a failure to exhaust his administrative remedies, see Cicio v. Wenderlich, 714 F. App'x 96, 97-98 (2d Cir. 2018) (summary order) (finding that failure to take " an appeal provided for in the regulations "[w]hen a prisoner has filed a grievance, but receives no response" constitutes failure to exhaust); see also Shaw v. Ortiz, No. 15-CV-8964(KMK), 2016 WL 7410722, at *3 (S.D.N.Y. Dec. 21, 2016) (appeal required "even if [plaintiff] do[es] not receive a response from the IGRC or Superintendent"). The critical question, then, is whether the appeal was functionally unavailable to Plaintiff such that his failure to exhaust should be excused. Toward that end, Plaintiff argues that "administrative remedies were unavailable due to tlueats and being rough [sic] up by the guards at Clinton Annex, [that he) truly fear[ ed] for [his] safety and well being," (Plf. Br. at 3); as such, he "filed directly to the federal comt", (id) Such allegations appear to suggest the applicability of the third exception articulated in Ross. Moreover, in light of Defendants' argument that the October Grievance was not filed, this Court will also analyze whether the administrative remedies were so opaque as to render them incapable of use. 1. Threats and intimidation Plaintiffs argument that administrative remedies were unavailable to him because he was threatened and intimidated by prison officials fails to meet the third unavailability exception articulated in Ross. "[R]eliance upon conclusory statements or mere allegations is not sufficient to defeat a summary judgment motion." Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002); see also Medina v. Kaplan, No. 16-CV-7223(KMK), 2018 WL 797330, at *5 (S.D.N.Y. Feb. 8, 2018) (noting that conclusory allegations insufficient "to establish the unavailability of administrative remedies"). "Accusations which are 'unsupported' and 'stand alone' are similarly insufficient." 11 Medina, 2018 WL 797330, at *5; see also Khudan v. Lee, No. 12-CV-8147(RJS), 2016 WL 4735364, at *6 (S.D.N.Y. Sept. 8, 2016) (finding insufficient allegations regarding intimidation that "fail[] to specify the dates of any threats, ... [or] the locations" in which the threats took place). Plaintiffs argument that intimidation was the reason why he "didn't write another grievance or a letter to Ms. Brousseau ... ," (Plf. Br. at 3-4), is wholly unsupported by any evidence and is conclusory insofar as Plaintiff points to no facts regarding such intimidation to defeat summary judgment. 8 Moreover, Plaintiffs intimidation argument was raised for the first time in his opposition and is contradicted by his deposition testimony, in which he stated that he filed his federal court action in Januaiy of 2016 because his October Grievance had gone unanswered and he thought "they were playing games." (See Turkle Deel., Ex. 1 at 103; see also id. at 102 (testifying that they "didn't want to acknowledge [his] letters so [he] filed a 1983".) Consequently, though the Court acknowledges its role is not to make credibility determinations, it will discredit the intimidation argument as "insufficient to create a genuine dispute of fact." Khudan, 2016 WL 4735364, at *5; see also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) ("[F]actual allegations that might otherwise defeat a motion for summary judgment will not be pe1mitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment 8 To the extent that Plaintiffs intiniidation argument pertains to his being "roughed up by the guards", when he "first got to the facility", (see Turkle Deel., Ex. 1 at 44-45), such contentions are insufficient. That conduct, if believed, clearly did not make administrative remedies unavailable to Plaintiff, as he sent his Dowustate Grievance on October 21, 2015 and filed his October Grievance with Clinton on October 26, 2015, approxiniately two weeks after he arrived at the facility and was allegedly "roughed up". See Aikens v. Jones, No. 12-CV-1023(PGG), 2015 WL 1262158, at *6 (S.D.N.Y. Mar. 19, 2015) ("Where an inmate files a grievance or appeals a grievance determination after having received threats or suffered retaliation, the inmate's conduct "'directly cuts against' ... [an] argument that ... administrative remedies were unavailable") (alterations in original). 12 and that affidavit contradicts her own prior deposition testimony."); see also LionKingzulu v. Jayne, 714 F. App'x 80, 82 (2d Cir. 2018) (summary order). 9 2. Opaque Procedures The Second Circuit directly addressed the issue of opaque procedures in Williams; 10 a case that concerned a pro se inmate who gave a grievance to a corrections officer to file while he was housed in the Special Housing Unit (the "SHU"). Williams, 829 F.3d at 120. Thereafter, plaintiff learned (and subsequently alleged) that his grievance was never actually filed, was told that the Superintendent would look into it for him, and was transferred to another facility in the following days, ultimately never receiving a response to his grievance. Id at 120-21. The Court held that, despite the fact that an appeal was technically available to plaintiff insofar as it was "officially on the books", it was nevertheless functionally unavailable because "the regulatory scheme providing for that appeal [was] 'so opaque' and 'so confusing that ... no reasonable prisoner c[ould] use [it]." Id at 124 (quoting Ross, 136 S.Ct. at 1859) (alterations in original). The procedures were held "prohibitively opaque" because they "simply do not contemplate the situation in which Williams found himself', id at 124, as they only provide remedies for filed grievances, id. Consequently, the Court identified a deficiency in the regulations that rendered administrative remedies functionally unavailable to inmates in Williams' position. Astonishingly, Defendants fail to even mention Williams in their moving papers despite the obvious factual similarities presented by this case and their argument that the October 9 Plaintiffs situation does not meet the first exception articulated in Ross either-that the administrative remedies acted as a mere dead end. First, where, as here, an "initial grievance received no response, this alone is insufficient to show that the [IGP] acted as a mere dead end." Mena, 2016 WL 3948100, at *4. A plaintiff is also required to "introduce[ ] facts to indicate that prison officials ... are 'consistently unwilling to provide any relief to aggrieved inmates."' Id.; see also Crawfordv. Baltazar, No. 15-CV-9427(VB), 2018 WL 2041711, at *7 (S.D.N.Y. Apr. 30, 2018). Plaintiff failed to argue that this exception even applies to his case, and therefore fails to raise any facts in support thereof. Nevertheless, the facts belie any such contention, as they only demonstrate that each time Plaintiff sought help, prison officials provided him guidance. (See Turkle Deel., Exs. 5,7-9.) 10 Neither party addresses Williams, despite Defendants' argument that Plaintiffs October Grievance was never filed. 13 Grievance was never filed. Such a failure is disconcerting. While Williams is unquestionably unfavorable to Defendants' positon, it is nevertheless Second Circuit precedent by which this Court is bound, and which Defendants had an obligation to address. The Court is particularly troubled by such behavior where, as here, the opposing party is a pro se litigant who has neither the legal acumen nor means to stay abreast of developments in the law. At its core, this case is indistinguishable from Williams. While Plaintiff was not in the SHU or transferred after he filed his grievance, like Williams, he submitted a grievance, but that· grievance was never filed. Williams explicitly addressed such a situation by expressly holding that, though "an administrative remedy[-the appeal to CORC-]was officially on the books"; since the grievance was never filed, "the regulatory scheme providing for th[e] appeal [was] 'so opaque' and 'so confusing that ... no reasonable prisoner [could] use [it]." Williams, 829 F.3d at 124 (quoting Ross, 136 S.Ct. at 1859) (alterations in original); see also id. (where a grievance is not filed "the regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies"); Jenkins v. Cordero, No. 17-CV-1592(VB), 2018 WL 456311, at *3 (S.D.N.Y. Jan. 17, 2018) (noting that "the IGP's regulations are not clear regarding how a prisoner is to proceed when a grievance is submitted by the inmate but never filed with the IGRC"). Despite Plaintiffs insistence that he filed his grievance and it went unanswered, the DOCCS records demonstrate that no such grievance was ever filed. (See Turkle Deel., Ex. 19ifif2-4; Ex. 20 ififl516; Ex. 21 ,r,r7-9.) Instead, in Febrnary of 2016, almost three months after the expiration of the 45 day period, Plaintiff learned that his October Grievance was not on file. (See id. Exs. 9-10.) Consequently, the appeal was functionally unavailable to him. 14 Nevertheless, Defendants insist that Plaintiff should have appealed the nonresponse of his October Grievance to CORC. (See Defs. Br. at 20.) 11 Such a contention was considered and rejected by the Second Circuit in Williams. There, the defendants maintained that three options existed "to an imnate following his appeal ofan unfiled grievance: (1) ifit is still within 21 days of the incident, the inmate can re-file the complaint; (2) if it is beyond 21 days but within 45 days of the incident, the inmate can request an exception to the 21-day time limit if he can show mitigating circumstances; or (3) if it is more than 45 days since the incident, the imuate may file a separate complaint grieving the denial of an extension of the time limit." Williams, 829 F.3d at 125. The Second Circuit rejected each of these options, id at 125-26, and noted that "the regulations plainly do not describe a mechanism for appealing a grievance that was never filed." Id at 126. Even assuming Plaintiff submitted his grievance on October 26, 2015 related to an October 8, 2015 assault, at the expiration of the 25 day window provided by§ 701.8(g), Plaintiff would have had only two days to appeal to CORC, team that his grievance was never filed, and ask for an extension of time to file a grievance. Plaintiff thus falls into that small group of inmates that "took less than the allowed 21 days to submit [their] original complaint," see Williams, 829 F.3d at 125; the second option articulated by defendants in Williams. This was rejected as an option that, "to the extent ... available to an imuate in William's position, only increase[s] confusion regarding the avenues available to pursue an appeal." Id at 126. Additionally, Defendants' argument that Plaintiff never actually filed his grievance is of no moment. (See Defs. Br. at 21 (arguing that "the evidence establishes that the October 26, 2015 11 Defendants specifically argue that Plaintiff could have "sought the next level of review, in this case, to the Clinton Superintendent." (See Defs. Br. at 20.) Defendants apparently fail to acknowledge that Plaintiffs October Grievance was a harassment grievance, governed by the expedited procedures outlined in§ 701.8. Thus, the pe11inent appeal would be to the CORC. 15 Grievance was never filed".) The record demonstrates that Plaintiff made attempts to file a grievance in October of 2015, though there is no record of such a grievance with the IGRC. (See Turkle Deel., Ex. I at 66-67 ("once I seen this letter I filed it"), 69 ("I put it in the inmate grievance box and it just never got answered"), I 02-103 ("I see that my twenty days been lapsed. They never answered it."); Plf. Br. at 2; Exs. 4-7; Ex. 19'il'i12-4; Ex. 20 'il'il15-16; Ex. 21 'il'il7-9.) The Court declines to make any credibility determinations at this point; particularly because Williams addressed a situation akin to Plaintiffs-where an inmate discovers his grievance was never filed more than 45 days after the incident occurred. There, defendants contended that an inmate could simply "file a separate complaint grieving the denial of an extension of the time limit"; but the Court rejected that option as "wholly inapplicable as a mechanism to appeal an unfiled grievance." Williams, 829 F.3d at 125. Plaintiffs case demonstrates why: in February of 2016, after learning his October Grievance was never filed, Plaintiff attempted to remedy the deficiency by withdrawing his 1983 action and filing the April Grievance, which was repeatedly rejected as untimely. (See Turkle Deel., Exs. 12-18.) While not in keeping with the regulations, this conduct can only be described as an attempt to either appeal the nonresponse of the October Grievance or seek additional time to file a Grievance, both of which were flatly rejected. The procedures on the books provide no mechanism whereby an inmate can learn whether or not his grievance has been filed, and if not, how to proceed to properly grieving his concerns thereafter. It bears noting that had Plaintiff asked, he would not have been granted an extension of time to file his grievance in Febrnary, as the regulations prohibit extensions at such a later hour. See 7 N.Y.C.R.R. § 701.6(g)(l)(i)(a); see also Williams, 829 F.3d at 125 (noting that "the regulations state unequivocally that '[a]n exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence"'). It is therefore apparent that 16 administrative remedies were unavailable to Plaintiff. Plaintiff's failure to exhaust must be excused and Defendants' Motion denied. 12 DOCCS has been on notice since July of 2016 that there is a defect in their procedures which are prohibitively opaque insofar as they prescribe for appeals of grievances that were unanswered or never filed. See generally Williams, 829 F.3d 118. Indeed, the Second Circuit explicitly recommended "that DOCCS revise its grievance procedures to instrnct inmates how to appeal grievances that were not properly filed by prison staff, and how to appeal a grievance, to which the inmate never received a response, after being transferred." Id. at 126-27. DOCCS has yet to do so. Until such time as DOCCS revises its procedures, courts will continue to be faced with the prospect of making credibility determinations on whether or not the inmate actually filed his grievance and inmates will needlessly be trapped into positions in which they cannot properly adhere to the mandates of the PLRA, despite their best efforts. CONCLUSION For the foregoing reasons, Defendants' Motion is DENIED. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 37. The parties are directed to confer and submit the attached Civil Case Management Plan to Chambers on or before August 17, 2018. The Clerk of the Comt is further directed to mail a copy of this Opinion and Order to Plaintiff at his address as listed on ECF. Dated: July 31), 2018 White Plains, New York SO ORDERED: N ~ United States District Judge 12 In light of this Court's determination that Plaintiffs failure to exhaust the October Grievance must be excused because an appeal to CORC was unavailable to him, this Courl need not consider whether the Plaintiffs April Grievance was sufficient for exhaustion purposes. 17 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x Plaintiff(s), Rev. May 2014 CIVIL CASE DISCOVERY PLAN AND SCHEDULING ORDER - against - Defendant(s). CV (NSR) -------------------------------------------------------------x This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with counsel, pursuant to Fed. R. Civ. P. 16 and 26(f): 1. All parties [consent] [do not consent] to conducting all further proceedings before a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c). The parties are free to withhold consent without adverse substantive consequences. (If all parties consent, the remaining paragraphs of this form need not be completed.) 2. This case [is] [is not] to be tried to a jury. 3. Joinder of additional parties must be accomplished by ______________________. 4. Amended pleadings may be filed until _____________________. Any party seeking to amend its pleadings after that date must seek leave of court via motion. 5. Interrogatories shall be served no later than ___________________, and responses thereto shall be served within thirty (30) days thereafter. The provisions of Local Civil Rule 33.3 [shall] [shall not] apply to this case. 6. First request for production of documents, if any, shall be served no later than ____________________. 7. Non-expert depositions shall be completed by ____________________________. a. Unless counsel agree otherwise or the Court so orders, depositions shall not be held until all parties have responded to any first requests for production of documents. b. Depositions shall proceed concurrently. c. Whenever possible, unless counsel agree otherwise or the Court so orders, non-party depositions shall follow party depositions. 8. Any further interrogatories, including expert interrogatories, shall be served no later than _______________________. 9. Requests to Admit, if any, shall be served no later than ______________________. 10. Expert reports shall be served no later than ______________________. 11. Rebuttal expert reports shall be served no later than ______________________. 12. Expert depositions shall be completed by ______________________. 13. Additional provisions agreed upon by counsel are attached hereto and made a part hereof. 14. ALL DISCOVERY SHALL BE COMPLETED BY ______________________. 15. Any motions shall be filed in accordance with the Court’s Individual Practices. 16. This Civil Case Discovery Plan and Scheduling Order may not be changed without leave of Court (or the assigned Magistrate Judge acting under a specific order of reference). 17. The Magistrate Judge assigned to this case is the Hon. 18. If, after entry of this Order, the parties consent to trial before a Magistrate Judge, the Magistrate Judge will schedule a date certain for trial and will, if necessary, amend this Order consistent therewith. 19. The next case management conference is scheduled for _____________________, at ____________. (The Court will set this date at the initial conference.) . SO ORDERED. Dated: White Plains, New York _______________________ Nelson S. Román, U.S. District Judge
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