United States District Court, W.D. New York
March 25, 2004.
JOSHUA LINER, Plaintiff,
GLENN S. GOORD, et al, Defendants
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Joshua Liner, formerly an inmate in the custody of the New
York State Department of Correctional Services ("DOCS"), commenced this
action pro se under 42 U.S.C. § 1983 on February 25, 1999,
against several DOCS employees and supervisory officials in connection
with two incidents that occurred at Attica Correctional Facility,
Plaintiff alleges that Corrections Officer J. Stanton assaulted him on
February 2, 1998 in violation of his Eighth Amendment rights. Plaintiff
also asserts that Corrections Officers R. Nutty, R. Bridger, L. Williams,
and John Doe #1*fn1 violated
his First, Eighth, and Fourteenth Amendment rights by assaulting
him on October 9, 1998, filing false misbehavior reports against him, and
conspiring to retaliate against him for filing a previous lawsuit against
Attica officials. Plaintiff claims that Corrections Sergeant Wright was
present for (but did not participate in) the October assault and failed
to intervene to protect him. Finally, plaintiff asserts claims against
former Attica Superintendent Walter Kelly and DOCS Commissioner Glenn
Goord for failure to protect based on letters plaintiff sent to them
complaining of alleged misconduct by Attica personnel in 1998,
Defendants have moved for summary judgment on the ground that plaintiff
has failed to exhaust his administrative remedies, as required by the
Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and the
Supreme Court's decision in Porter v. Nussle, 534 U.S, 516
(2002). Defendants Kelly and Goord argue that summary judgment is
warranted for the additional reason that they lacked personal involvement
in the alleged constitutional violations. Dkt. #47.
For the reasons set forth below, defendants' motion is granted in part
and. denied in part, and the claims against Goord and Kelly are
I. Exhaustion of Administrative Remedies
Section 1997e(a) provides 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," New York State regulations provide for a
three-step administrative review process. See 7 N.Y.C.R.R. §
701, 7. First, "an inmate must submit a complaint to the Grievance Clerk
within 14 calendar days of an alleged occurrence. . . ." 7
N.Y.C.R.R. § 701.7(a)(1). The grievance is then submitted to the
inmate grievance resolution committee ("IGRC") for investigation and
review. If the IGRC's decision is appealed, the inmate may appeal to the
superintendent of the facility, and if the superintendent's decision is
appealed, the Central Office Review Committee ("CORC") makes the final
administrative determination. See 7 N, Y.C.R.R. § 701, 7. In
general, it is only after exhausting all three levels of the
administrative review that a prisoner may seek relief pursuant to
42 U.S.C. § 1983 in federal court. Neal v, Goord, 267 F.3d 116,
122 (2d Cir. 2001); Santos v. Hauck, 242 F. Supp., 2d 257
However, there is an alternative procedure available to an inmate who,
like plaintiff, claims that he was harassed by corrections officers.
See 7 N.Y.C.R.R. § 701.11. The inmate "should first report
such occurrences to the immediate supervisor of [those] employee[s]." 7
N.Y.C.R.R. § 701.11(b)(1). The inmate's complaint must be given, a
grievance number and recorded in sequence. 7 N.Y.C.R.R. § 701.1
l(b)(2). Thereafter, the superintendent must determine whether, if true,
the grievance would represent a bona fide case of harassment, 7
N.Y.C.R.R. § 701.11(b)(3). If the superintendent determines that the
grievance does not represent a bona fide case of harassment, then the
grievance is submitted to the IGRC for resolution in conformance with the
usual IGP procedure found in Section 701.7, outlined above. Id.
If the superintendent finds that the grievance is a
harassment issue, he shall either initiate an internal
investigation or request an investigation at the State level. 7
N.Y.C.R.R. § 701.11(b)(4).
The Second Circuit has held "that under the administrative scheme
applicable to New York prisoners, resolution of an inmate's grievances
through informal channels can satisfy the exhaustion requirement of
42 U.S.C. § 1997e(a)," Ortiz v. McBride, 323 F.3d 191, 194 (2d
Cir. 2003) (citing Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.
2001) (per curiam)); see also Richardson v, Goord, 347 F.3d 431,
434-35 (2d Cir. 2003) (question of fact precluded summary judgment
regarding whether plaintiff's informal efforts to exhaust his
administrative remedies was sufficient to satisfy PLRA).
I find that defendants have not met their initial burden of proving
that plaintiff failed to exhaust his administrative remedies. In support
of their motion, defendants filed the affidavit of Thomas G. Eagen, the
Director of the Inmate Grievance Program, Eagen states that CORC has no
record or indication that plaintiff filed any appeals with CORC from
grievances he filed at Attica in 1998 regarding the claims he asserts in
this lawsuit. Dkt. #52. Relying solely on this fact, defendants argue
that they are entitled to summary judgment on the issue of exhaustion.
However, on the record before me, I cannot make this determination as a
matter of law.
With respect to the February 1998 incident, it is undisputed that
plaintiff wrote to Superintendent Kelly complaining about the alleged
assault, Dkt. #51, Ex. B. Further, the record shows that Kelly referred
the matter for an investigation at the facility level. Plaintiff and
Officer Stanton were interviewed, and DOCS officials prepared written
statements and investigative reports
concerning the incident. Dkt. #51, Exs, I, J, K, and L. It
appears, then, that plaintiff grieved the alleged assault through the
procedure outlined in 7 N.Y.C.R.R. § 701, 11.
What is not clear, and what the defendants have failed to show, is that
Kelly treated plaintiff's complaint as a "grievance" in accordance with
the regulations. Irrespective of whether plaintiff filed a grievance
pursuant to section 701.7 or 701.11, Kelly was required to respond to it
within twelve days, explain the basis for his decision, inform, plaintiff
of his right to appeal, and provide simple instructions on how to appeal.
See 7 N.Y.C.R.R. §§ 701.7(b)(6); 701.11(b)(5). In support of
the motion, defendants have failed to file Kelly's response to plaintiffs
grievance, and there is no other evidence that plaintiff received a
response, or was informed of his right to appeal.
Therefore, an issue of fact exists regarding what occurred at Attica
with respect to plaintiffs grievance which precludes summary judgment at
this time. See Morris v. Eversley, 205 F. Supp.2d 234, 240-41
(S.D.N.Y. 2002) (plaintiff exhausted her administrative remedies through
informal channels by writing letter to Superintendent, who failed to
comply with procedures set forth in 7 N.Y, C.R.R, § 701.11);
Arnold v, Goetz, 245 F. Supp.2d 527, 537 (S.D.N, Y. 2003) ("an
inmate's technical failure to exhaust administrative remedies before
commencing a § 1983 action may be excused where officials prevented
him from utilizing a grievance procedure"). It may be that Kelly fully
complied with the requirements of the regulations, and that plaintiff
simply failed to complete the review process. However, based on the
record presently before the Court, that determination cannot be made as a
matter of law.
Likewise, with respect to the alleged assault, conspiracy, and.
retaliation in. October 1998, the record is not clear regarding what
steps, if any, plaintiff took to grieve this claim, and whether Attica
personnel prevented him from doing so. In his complaint and the
exhibits attached to it, as well as his affidavit in. response to
defendants' motion, plaintiff states that he filed grievances concerning
the October 1998 incident, but that the grievance supervisor at Attica
obstructed his efforts or failed to process those grievances.
See Dkts. #1, Ex, A2; Dkt, #4, Ex. A2; Dkt #55. Defendants,
however, did not address plaintiffs allegations regarding his effort to
exhaust his claims in either their original motion or in a reply.
The Second Circuit recently held that the PLRA's exhaustion requirement
is not jurisdictional in nature, and is, therefore, subject to equitable
doctrines such as tolling, estoppel and waiver, Richardson, 347
F.3d at 434; see also Lane v. Doan, 287 F. Supp.2d 210, 212-13
(W.D.N.Y. 2003) (prisoner deemed to have exhausted administrative
remedies where record was clear that he made reasonable efforts to
exhaust but was impeded by prison officials); see also Miller v,
Norris, 247 F.3d 736, 740 (8th Cir. 2001) ("a remedy that prison
officials prevent a prisoner from `utiliz[ing]' is not an `available'
remedy under § 1997e(a)"); Thomas v. New York State DOCS,
No. 00 Civ. 7163, 2002 WL 31164546, at *3 (S.D.N.Y. Sept. 30, 2002)
("where a prisoner has made a `reasonable attempt" to file a grievance,
and prison officials have prevented the prisoner from, filing that
grievance, the grievance procedure is not `available' to the [inmate],
and thus the [PLRA] does not preclude the prisoner from suing in federal
court"); Arnold, 245 F. Supp.2d at 537 ("In essence, prison
officials cannot have it both ways they cannot obstruct an
inmate's pursuit of administrative exhaustion on the one hand and then
claim the Inmate did not properly exhaust these remedies on the other.").
Defendants have not put sufficient facts before the Court regarding
what occurred at the facility level relative to this grievance, or what
efforts, if any, plaintiff took to exhaust his administrative remedies
for the October 1998 incident. Therefore, the Court cannot address
plaintiffs allegations regarding obstruction or determine whether he is
entitled to equitable relief. Accordingly, defendants have not
established their entitlement to judgment as a matter of law on the
exhaustion issue at this time.
II. Personal Involvement of Defendants Kelly and Goord
Plaintiffs claims against Kelly and Goord, however, must he dismissed
for lack of personal involvement in the conduct about which plaintiff
complains. This Court may dismiss a claim with prejudice without first
ruling on. the exhaustion issue, where the claim clearly lacks merit.
See 42 U.S.C. § 1997e(c)(2); Milts v. Garvin, No,
99 Civ. 6032, 2001 WL 286784, *3 (S.D.N.Y. Mar. 2, 2001).
Where a prisoner asserts an Eighth Amendment claim, against a
supervisory official, he must show that the supervisor had sufficient
personal involvement in the alleged constitutional deprivation.
Gaston v. Coughlin, 249 F.3d 156, 164 (2d. Cir. 2001). Personal
involvement may be shown by evidence that; (1) the defendant participated
directly in the alleged constitutional violation; (2) the defendant,
after being informed of the violation through a report or appeal, failed
to remedy the wrong; (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of
such a policy or custom; (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful acts; or (5) the
exhibited deliberate indifference to the rights of inmates by
falling to act on information indicating that unconstitutional acts were
occurring. Colon v, Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
Construing plaintiffs pro se response liberally and
interpreting it to raise the strongest argument that it suggests, see
Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999)
(quotations omitted), plaintiff argues that Goord and Kelly are liable
for the October 1998 assault by failing to act on information that
unconstitutional acts were occurring, and by failing to remedy those
acts. Plaintiff seeks to impose supervisory liability based on the
informal complaints plaintiff sent to Goord and Kelly in 1998 alleging
that he had been assaulted by corrections staff at Attica on or about
February 1, 1998, and May 13, 1998,
However, "the fact that an official ignored a letter alleging
unconstitutional conduct is not enough to establish personal
involvement." Thomas v. Coombe, No. 95 Civ. 10342, 1998 WL
391143, *6 (S.D.N.Y. Jul. 13, 1998) (citing Gayle v. Lucas, No.
97 Civ. 0883, 1998 WL 148416 (S.D.N.Y. Mar. 30, 1998)); see also
Higgins v, Coobhe, No. 95 Civ. 3696, 1997 WL 323623 (S.D.N.Y. Jun,
16, 1997). Plaintiff cannot base liability solely on Goord's or Kelly's
supervisory capacity over the corrections officers involved in the
October 1998 incident, or the fact that they held the highest positions
of authority at DOCS or Attica. Thomas, 1998 WL 391143 at *6;
see also Black v, Coughlin, 76 F.3d 72, 74 (2d Cir. 1996);
Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.
1989); Hernandez v. Artuz, No. 94 Civ. 0212, 1996 WL 631707
(S.D.N.Y. Oct. 30, 1996).
Moreover, it is undisputed that, in accordance with DOCS procedures,
Goord never saw these letters. Rather, the letters were received in his
office, reviewed by his staff, and forwarded to the appropriate official
for investigation and response. Each of plaintiff's complaints were
investigated and found to be without merit. See Dkt. #50, Exs.
G, H, I, J, and K. There is no evidence that Goord had any other personal
involvement in the alleged unconstitutional violations.
Likewise, plaintiff does not allege that Kelly was personally involved
in the unconstitutional acts of October 9, 1998. Rather, he seeks to hold
Kelly liable based on his position as Attica's Superintendent and the
letters he sent to Kelly in 1998. Only one of those complaints alleged
excessive force by an officer involved in the October 1998 incident. That
complaint was investigated in February 1998 and found to be without
merit. The other complaints concerned mostly personal property issues.
Kelly did not receive notice of an imminent assault by defendants, and
there is no evidence in the record upon which a reasonable juror could
conclude that plaintiffs letters should have alerted Kelly that plaintiff
faced a substantial risk of serious harm from these defendants.
Where a supervisor's involvement in a prisoner's complaint is limited
to forwarding of correspondence to appropriate staff, the supervisor has
insufficient personal involvement to sustain a § 1983 cause of
action. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)
(summary judgment affirmed where commissioner referred plaintiffs letter
to the prison superintendent); Garvin v, Goord, 212 F. Supp.2d 123,
126 (W.D.N.Y. 2002) (granting summary judgment to DOCS Commissioner
based on lack of personal involvement); Farid v. Goord,
200 F. Supp.2d 220 (W.D.N.Y, 2002) (dismissing action against DOCS
Commissioner and Attica Superintendent for
lack of personal involvement where plaintiff merely sent petition
to them and each referred the petition down the chain of command for
investigation). Therefore, the claims against Goord and Kelly are
dismissed with prejudice.
Defendants* motion for summary judgment (Dkt, #47) is granted in part
and denied in part; the claims against Glenn Goord and. Walter Kelly are
dismissed with prejudice; the defendants' motion based on the failure to
exhaust administrative remedies is denied at this time, without
IT IS SO ORDERED.