The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Danyell Sandlin, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS") alleges that defendants, all of whom were at all relevant times employed by DOCS, violated his constitutional rights in a number of respects during 2002, while plaintiff was housed at Five Points Correctional Facility. Defendants have moved for summary judgment.
Defendants contend that with respect to all but one of plaintiff's claims--a claim alleging denial of proper medical treatment against defendants Furnia, Elizabeth Costello and Trudy Thornton--plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The PLRA provides in part 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." Id.
There are three stages to the DOCS grievance process, all three of which must usually be followed to satisfy the PLRA's exhaustion requirement. "First, a grievance is filed with the Inmate Grievance Resolution Committee ('IGRC'). Next, an inmate may appeal an adverse decision to the prison superintendent. Finally, an inmate may appeal the superintendent's decision to the Central Office Review Committee ('CORC')." Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006).
Defendants have identified six grievances that plaintiff filed during the time in which the events giving rise to this lawsuit occurred. Defendants state that each of those grievances was denied, but that plaintiff appealed only one of them to CORC. That was a grievance that plaintiff filed on August 29, 2002, alleging that Furnia, Costello and Thornton denied him adequate medical care. CORC affirmed the denial of that grievance on November 20, 2002. See Dkt. #51 Ex. F.
In response to defendants' motion, plaintiff asserts that he attempted to appeal each of his grievances to CORC, but that he was "impeded obstructed hindered; opposed; precluded and inhibited by the acts and conduct of Correctional Officers and Officials some of whom are defendants of this lawsuit." Dkt. #57 at 10. Specifically, plaintiff alleges that officials at Five Points did not provide grievance deposit boxes for inmates in the Special Housing Unit ("SHU"), where plaintiff was confined during the time in question, in contravention of state regulations. See 7 N.Y.C.R.R. § 701.7(b). He also alleges that the officers in SHU refused to accept inmates' grievance and grievance appeal forms or to forward them to the appropriate office. Plaintiff alleges that he "complained ... many times to the area supervisor that officers were blocking his grievances appeals and correspondences," to no avail. Id.
Plaintiff alleges that because no deposit boxes were available, he was forced to have his grievance and appeal forms collected by ordinary facility mailing services, which meant that the officers whose job it was to collect the forms were often "the very officers against whom the grievances were made." Id. at 11. He contends that those officers would often either refuse to collect the forms in the first place, or, if they did take them, would fail to send them on to the grievance office.
In addition, plaintiff contends that officers and officials at Five Points denied him access to books or other reference materials that set forth and explained the DOCS grievance procedures. He also alleges that he was denied grievance forms, again in violation of state regulations, see 7 N.Y.C.R.R. § 701.7(a), as well as ordinary writing paper. Id. at 12.
Plaintiff further alleges that he was retaliated against for attempting to exercise his constitutional rights with respect to his grievances. He alleges that a number of his legal documents, some of which included copies of his grievances and related documents, were confiscated from him. He also contends that some of the actions complained of in the instant lawsuit were retaliatory, and were intended to dissuade him from pursuing his grievances.
In Hemphill v. New York, 380 F.3d 680 (2d Cir 2004), the Court of Appeals for the Second Circuit set forth a three-part test "in cases where a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA":
Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact available to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.
Id. at 686. Failure to exhaust is an affirmative defense, and it is defendants' burden to establish non-exhaustion. Sease v. Phillips, No. 06 CIV. 3663, 2008 WL 2901966, at *4 (S.D.N.Y. July 24, 2008); Jackson v. Provost, No. 996-CV-1864, 2008 WL 2405715, at *9 (N.D.N.Y. June 11, 2008); Odom ...