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United States District Court, N.D. New York

August 3, 2004.

EDWARD AKAM, Plaintiff,

The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



  Plaintiff, formerly an inmate at Mt. McGregor Correctional Facility, commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the Fourteenth Amendment. Specifically, Plaintiff asserts that, while he was an inmate at Mt. McGregor, Defendants improperly removed him from a temporary release program based upon false misbehavior reports, denied him due process at hearings concerning those reports, improperly docked his merit time, and retaliated against him when he complained to a supervisor.


  Plaintiff alleges that on June 12, 1998, while he was a participant in a work-release program, which required him to travel to a Menands warehouse facility, he entered the breakroom at the warehouse to use the microwave. An inmate in the room at the time, Mr. Estrella, yelled at Plaintiff and ordered him to leave the room. A guard, Defendant O'Malley, intervened and told Plaintiff to "`get the fuck out' while [Estrella] moped [sic] the floor." See Transcript of Tier II Disciplinary Hearing, Exhibit "C" to Defendants' Motion for Summary Judgment, at 2. Plaintiff contends that Defendant O'Malley then observed without intervening while Mr. Estrella made profane statements toward Plaintiff.

  Plaintiff alleges that he immediately reported the confrontation to a work-release supervisor, Bud Saddlemire, and to another supervisor, Andy Orcot. Shortly thereafter, Defendant O'Malley verbally harassed Plaintiff, swore at him, and created a false disciplinary ticket (report) about the incident. In the disciplinary ticket, Defendant O'Malley charged Plaintiff with creating a disturbance, harassment, and refusing a direct order. Plaintiff contends that, later that same day, he overheard Defendant O'Malley threaten Daryl Keels, another inmate, and warn him not to act as a witness on Plaintiff's behalf. Upon Plaintiff's return to Mt. McGregor, administrators immediately removed him from the work-release program.

  On June 15 and 18, 1998, Plaintiff received disciplinary tickets from Defendant Brown. The June 15 ticket charged Plaintiff with falsely stating that he had permission to visit the Mt. McGregor library. The June 18 ticket charged Plaintiff with failing to comply with discipline that officers imposed in a June 17 hearing, described below.*fn1 As punishment for the tickets, Plaintiff had to perform a seven-day work detail under Defendant Waite's supervision. Plaintiff alleges that, while Defendant Waite supervised him, he verbally abused him for several hours each day.

  On June 17, 1998, Defendant Batchelder, a corrections lieutenant, convened a Tier II disciplinary hearing to allow Plaintiff to answer Defendant O'Malley's June 12, 1998 charges. Plaintiff alleges that he planned to call a witness at the hearing, but Defendant Batchelder denied his request. Defendant Batchelder refused to overturn the June 12 charges. Plaintiff contends further that he was never able to obtain a tape of the hearing in order to perfect his appeal. On June 19, Defendant Battiste, an industrial training counselor, informed Plaintiff via memorandum that he would not schedule a Temporary Release Committee ("TRC") hearing, which would determine whether Plaintiff could remain in the industrial training/temporary release program, until the June 15 and the June 18 charges were finally resolved.

  On June 23, 1998, Defendant Batchelder convened another disciplinary hearing to review the June 18 disciplinary charge. Defendant Batchelder found Plaintiff guilty, verbally reprimanded him, and suspended his telephone privileges. Plaintiff appealed this disposition, and administrators rejected his appeal.

  On June 25, Defendants Kirker, a corrections counselor, and Byers, a corrections lieutenant, convened a TRC hearing to allow Plaintiff to answer the pending order to remove him from the work release program. Plaintiff contends that the hearing lasted barely three minutes and was a sham. As a result of the series of hearings and disciplinary measures, Defendant Recore denied Plaintiff access to the work release program permanently. Plaintiff also lost merit time. Plaintiff then sent letters protesting his removal to various administrators, including Defendant Quinones, Mt. McGregor Superintendent; Defendant Garcia, Mt. McGregor Deputy Superintendent; and Defendant Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"). Plaintiff contends that his letters remained unanswered, that Defendants deliberately hid or delayed sending him the transcripts that he requested, and that he received perfunctory responses to his inquiries.

  Plaintiff filed the present action on May 5, 1999, and filed an amended complaint on March 30, 2000. In his amended complaint, Plaintiff alleges that Defendants' actions regarding the above-cited events violated his constitutional rights. On June 27, 2000, Defendants moved to dismiss Plaintiff's amended complaint for failure to state a claim. Magistrate Judge Randolph Treece issued a Report-Recommendation, in which he recommended that the Court grant the motion in part and deny the motion in part. Neither Plaintiff nor Defendants filed objections. By Order dated April 12, 2002, this Court adopted the Report-Recommendation in its entirety.*fn2

  As a result, the remaining claims in this action are (1) Plaintiff's claim against Defendants Kirker and Byers for due process violations arising from the June 25, 1998 hearing, (2) Plaintiff's claim against Defendant Batchelder concerning the denial of his due process rights at the June 17, 1998 disciplinary hearing, (3) Plaintiff's retaliation claim against Defendants O'Malley, Waite and Brown,*fn3 and (4) Plaintiff's due process claims against Defendants Brown, Waite, Battiste, Quinones and Garcia.

  Presently before the Court is Defendants' motion for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies with respect to his due process claims arising from the June 25, 1998 hearing.*fn4 III. DISCUSSION

  A. Summary Judgment Standard

  A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non — moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)).

  With these standards in mind, the Court will address Plaintiff's claims.

  B. Whether Plaintiff exhausted his administrative remedies with respect to his due process claims*fn5

  The Prison Litigation Reform Act ("PLRA") requires an inmate challenging prison conditions to exhaust available administrative remedies before commencing suit in federal court. See 42 U.S.C. § 1997e(a). The exhaustion requirement applies to due process and retaliation claims. See Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (citation omitted); see also Rosales v. Bennett, 297 F. Supp.2d 637, 639 (W.D.N.Y. 2004) (citations omitted). The Second Circuit has held that an inmate can satisfy the exhaustion requirement by interceding with prison officials to resolve the claim informally or by proceeding through the statutory prison grievance system. See 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)).*fn6 The PLRA requires exhaustion even when an inmate believes that it would be futile. See Wagnoon v. Johnson, No. 02 Civ. 10282, 2004 U.S. Dist. LEXIS 4722, *8 (S.D.N.Y. Mar. 23, 2004) (citation omitted).

  An inmate exhausts procedural due process claims by presenting his claims in the administrative appeals process. See, e.g., Flanagan v. Maly, No. 99 CIV 12336, 2002 WL 122921, *2 (S.D.N.Y. Jan. 29, 2002) ("Once the alleged deprivation of rights has been approved at the highest level of the state correctional department . . . resort to additional internal grievance mechanisms [is] pointless."). Under New York law, an inmate may appeal his removal from a temporary release program within thirty days of his receipt of the superintendent's decision to remove him from the program. See 7 N.Y. Comp. R. & Regs. tit. 7, § 1904.4(a) (1998). In order to perfect an appeal, an inmate must complete an appeal form and submit it to the central office director of the temporary release program. See id. An inmate may only exhaust claims relating to misconduct of the hearing officers by filing an officer misconduct grievance within fourteen days of the alleged occurrence. See Rosales, 297 F. Supp.2d at 639; see also 7 N.Y. Comp. R. & Regs. tit. 7, § 701.7(a)(1) (1998).

  Despite the clear language of the PLRA and cases interpreting that statute, Plaintiff contends first that he need not exhaust his administrative remedies before bringing suit under 42 U.S.C. § 1983. He also contends that his attempts to appeal were futile, as he attempted to appeal the June 17 hearing and the TRC determination but could not perfect his appeal because state authorities deliberately refused his requests for a transcript or electronic recording of the hearing. Plaintiff alleges further that an appeal would have been unsuccessful because Defendant Recore, who would have reviewed his appeal, conspired with Defendant corrections officers to deny him his temporary release privileges.

  Finally, Plaintiff alleges that he took several informal measures, such as writing to Defendant Goord and to Defendant Leonard, the Director of the Department of Earned Eligibility, which would potentially have been more fruitful than an appeal. Plaintiff argues that Defendant Goord responded with a letter stating that New York law provided him with no power to review the TRC hearing determination, and Defendant Leonard declined to return Plaintiff's merit time; therefore, he exhausted his remedies.

  Plaintiff's first argument, that he need not exhaust his administrative remedies prior to bringing a § 1983 suit, is incorrect, as the PLRA applies to § 1983 suits. See Ziemba, 366 F.3d at 162. Plaintiff's other arguments are similarly unavailing. First, courts generally excuse the exhaustion requirement only where an inmate could not take advantage of the administrative relief process because of physical intimidation or because of prison authorities' misrepresentations to an inmate regarding the process. See Wagnoon, 2004 U.S. Dist. LEXIS 4722, at *7-*8 (citations omitted); see also Ziemba, 366 F.3d at 163-64. Although Plaintiff states in his submissions that he was afraid to follow through on a grievance that he filed because he believed that he might receive additional disciplinary tickets, he does not allege that he was in any physical danger or that he did not understand the grievance process. Defendants acknowledge that Plaintiff sent a notice of intent to appeal the decision to Defendant Recore, the Director of the DOCS' Temporary Release Programs. However, as Defendants point out, Plaintiff never sent any information stating any grounds for his appeal, and he therefore failed to perfect it. In addition, even if Plaintiff did not receive the transcript of the TRC hearing in a timely manner, he ultimately received a copy of the transcript because he attached it to his submissions. Moreover, this Court's review of the transcript reveals that Plaintiff articulated his potential grounds for appeal during the hearing — he stated on the record that he believed that the hearing was too short and biased, and he further stated that his witnesses should have been permitted to testify outside the presence of guards. However, Plaintiff never drafted an appeal on these grounds, even though he is obviously capable of writing and articulating an argument. Plaintiff also failed to articulate any reason why he needed the transcript of the TRC hearing in order to file an appeal, as New York law does not require an inmate to submit a transcript in order to appeal an unfavorable TRC decision. Finally, Plaintiff's contention that he believed the appeal would be futile is an insufficient reason for the Court to excuse the exhaustion requirement in light of Ziemba and other Second Circuit cases.

  As stated above, Plaintiff's final argument seems to be that Defendants acted in concert to deny him his right to appeal the result of the June 25 hearing. However, even if a conspiracy between prison guards and administrators is sufficient to estop Defendants from raising failure to exhaust as an affirmative defense, Plaintiff has not provided any facts that show that Defendants Leonard and Recore, the administrators who ultimately approved the decision to cut Plaintiff's merit time and temporary release privilege, were involved in a conspiracy. Furthermore, with respect to this alleged misconduct, Plaintiff states broadly that he filed grievances. However, he ultimately acknowledges that he abandoned the grievance process altogether because he thought it was futile.

  Finally, although Plaintiff may have exhausted his remedies with respect to some of his other claims, courts in the Northern District of New York hold that a "mixed complaint" is subject to a complete dismissal. See Law v. Bergamini, No. 01-CV-463, 2003 WL 133272, *1 (N.D.N.Y. Jan. 14, 2003). Accordingly, since Plaintiff has not exhausted his administrative remedies with respect to his due process claims, the Court grants summary judgment to Defendants with respect to all of Plaintiff's claims.*fn7 IV. CONCLUSION

  After carefully considering the file in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court hereby

  ORDERS that Defendants' motion for summary judgment is GRANTED in its entirety; and the Court further

  ORDERS that Plaintiff's motion to proceed in forma pauperis is DENIED as moot; and the Court further

  ORDERS that the Clerk of the Court enter judgment in favor of Defendants and close this case.


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