The opinion of the court was delivered by: Thomas J. McAvoy, Senior U.S. District Judge
MEMORANDUM-DECISION and ORDER
Pro se Plaintiff William E. Hooks brings this civil rights action pursuant to 42 U.S.C. § 1983 alleging that the defendants violated his constitutional rights during his confinement at Upstate Correctional Facility ("Upstate"). Dkt. No. 1. Defendants have filed a motion for summary judgment under Federal Rule of Civil Procedure 56 dismissing the complaint in its entirety. Dkt. No. 49. Plaintiff has submitted papers in opposition. Dkt. No. 51. For the reasons set forth herein, defendants' motion for summary judgment is granted in part and denied in part. With the exception of plaintiff's claims against defendants McGaw, Willette, Galiger and Green arising out of the alleged use of excessive force against plaintiff on August 7, 2006, all of plaintiff's claims are dismissed. In light of the foregoing, defendant C.O. Howard is dismissed as a defendant in this action.
At all relevant times concerning this action, plaintiff was an inmate at Upstate in the custody of the New York State Department of Correctional Services ("DOCS"). Plaintiff filed his complaint on July 12, 2007. Dkt. No. 1. Plaintiff alleges that defendants, Correction Officers Howard, McGaw, Galiger, Green and Willette, engaged in misconduct in violation of his constitutional rights on eleven separate occasions during the period 2005-2007, each of which is addressed in defendants' summary judgment motion.
Defendants argue that plaintiff's claims with respect to eight of the eleven incidents complained of are subject to dismissal because plaintiff failed to exhaust his administrative remedies as required under law. Dkt. No. 49. In support of their motion, defendants rely upon the supporting affidavits of Christine Gregory, Inmate Grievance Program ("IGP") Supervisor at Upstate ("Gregory Aff." and "Gregory Supp. Aff."), and Karen R. Bellamy, Director of DOCS IGP ("Bellamy Aff."). Bellamy is the custodian of records maintained by the Central Office Review Committee ("CORC"). Bellamy Aff. ¶ 2. As to the three exhausted claims, defendants argue that those claims must be dismissed because the facts alleged by plaintiff are not sufficient to state claims for the violation of his constitutional rights upon which relief may be granted by this Court. Defendants have submitted a statement of material facts as required by Local Rule 7.1 ("Defs. Stmt."), and a supporting memorandum of law ("Defs. MOL").
Plaintiff has responded in opposition to defendants' motion. Dkt. No. 51. In that response, plaintiff admits that five of his claims are unexhausted, but argues that he properly exhausted his administrative remedies with respect to three of the claims on which defendants seek summary judgment. Plaintiff has not responded to defendants' arguments in support of the requested dismissal of plaintiff's three exhausted claims. Plaintiff has submitted a statement of material facts as required by Local Rule 7.1 ("Pl. Stmt."), and a supporting memorandum of law ("Pl. MOL").
A. Summary Judgment Standard
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under Rule 56, the entry of summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" only if it would have some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that there is no genuine issue of material fact to be decided with respect to any essential element of the claim in issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In meeting this burden, the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).
In the event this initial burden is met, the nonmoving party must produce evidence demonstrating that genuine issues of material fact exist. Celotex, 477 U.S. at 324; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, the opposing party must proffer admissible evidence that "set[s] out specific facts" showing a genuinely disputed factual issue that is material under the applicable legal principles. Fed. R. Civ. P. 56(e); see, e.g., Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all justifiable factual inferences in favor of the nonmoving party. Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); Jeffreys, 426 F.3d at 553. The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Exhaustion of Administrative Remedies
The Prisoner Litigation Reform Act of 1995 ("PLRA") requires that prisoners who bring suit in federal court must first exhaust their available administrative remedies: "No action shall be brought with respect to prison conditions under [§ 1983], 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." 42 U.S.C. § 1997(e)(a). This 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." Porter v. Nussle, 534 U.S. 516, 532 (2002).
"Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 95 (2006); see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (citing Woodford). The Supreme Court explained in Woodford that the PLRA requires "proper exhaustion," which "'means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Woodford 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "in a substantive sense," an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his or her available administrative remedies within the established grievance system in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004)) (emphasis omitted).
The New York State Department of Correctional Services (DOCS) has created a three- step grievance process known as the Inmate Grievance Program (IGP). See Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004).*fn1 First, the inmate must file a grievance complaint with the facility's IGP Clerk within twenty-one (21) calendar days of the incident. If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. The grievance complaint is then submitted to the Inmate Grievance Resolution Committee (IGRC), which has sixteen (16) calendar days from receipt to informally resolve the issue or conduct a hearing.*fn2 The IGRC must issue a written decision within two (2) working days of the conclusion of the hearing. Second, the inmate may appeal the IGRC decision to the Superintendent within seven (7) calendar days of receipt of the IGRC's decision. The superintendent is to issue a written decision within twenty (20) calendar days of receipt of the appeal. Third, the inmate may appeal to CORC within seven (7) calendar days of receipt of the superintendent's written decision. CORC is to render a final administrative determination within thirty (30) calendar days of receipt of the appeal. It is important to note that any failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can be appealed to the next level, including CORC, in order to complete the grievance process. Upon the completion of all three steps, "a prisoner may seek relief pursuant to 42 U.S.C. § 1983 in federal court." Colon v. Harvey, 344 F. Supp.2d 896, 897 (W.D.N.Y. 2004) (citing Neal v. Goord 267 F.3d 116, 122 (2d Cir. 2001)).
The Second Circuit has suggested a three-pronged inquiry when the inmate plaintiff opposes a defendant's assertion that the inmate failed to exhaust his or her available administrative remedies. In Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), the Second Circuit stated:
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.
Abney v. McGinnis, 380 F.3d 663, [667-68 (2d. Cir. 2004)]. 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, Johnson v. Testman, 380 F.3d 691, [695 (2d. Cir. 2004)], 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, Ziemba [v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004)]. 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." Giano v. Goord, 380 F.3d 670, [675 (2d Cir. 2004)] (citing Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2003)[.]
Hemphill, 380 F.3d at 686. While recognizing that the Supreme Court's decision in Woodford may cast some doubt on the continued viability of the Hemphill analysis, the Second Circuit has continued to scrutinize failure to exhaust claims with reference to these three prongs. See Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("We need not determine what effect Woodford has on our case law in this area, however, because [plaintiff] could not have prevailed even under our pre- Woodford case law."); Reynoso v. Swezey, 238 Fed.Appx. 660, 662 (2d Cir. 2007), cert. denied, __ U.S. __, 128 S.Ct. 1278 (2008) (noting that Hemphill recognized "nuances in the exhaustion requirement," the Court found that "[b]ecause we agree with the district court that [plaintiff] cannot prevail on any of these grounds, we have no occasion to decide whether Woodford has bearing on them."); Macias, 495 F.3d at 43 n.1 (we need not decide what effect Woodford has on Hemphill's holding that where administrative procedures are confusing "a reasonable interpretation of prison grievance regulations may justify an inmate's failure to follow procedural rules to the letter."). As has the Second Circuit, as well as the other district courts in this Circuit, this Court will apply the Hemphill three-part inquiry to the exhaustion claims. See e.g., Butler v. Martin, 07-CV-521 (FJS/GHL), 2010 WL 980421, *1 (N.D.N.Y. Mar. 15, 2010) (the magistrate judge "correctly applied the Second Circuit's three-part inquiry" for analyzing claims of non-exhaustion); Winston v. Woodward, 05 Civ. 3385, 2008 WL 2263191, *6 (S.D.N.Y. May 30, 2008) (collecting cases).
To be "available" for purposes of the PLRA, an administrative remedy must afford "the possibility of some relief for the action complained of." Booth v. Churner, 532 U.S. 731, 738 (2001). In addition, a court deciding this issue must apply an objective test and determine whether a similarly situated person of ordinary firmness would have deemed the administrative remedy available. Hemphill, 380 F.3d at 688.
"A plaintiff's failure to exhaust . . . may be excused on the grounds of estoppel where the plaintiff was misled, threatened, or otherwise deterred from fulfilling the requisite procedures." Winston, 2008 WL 2263191 at *9 (citing Hemphill, 380 F.3d at 688-89) (other citation omitted). However, alleged intimidation will provide a basis to excuse the filing of a grievance only against the person alleged to have engaged in the intimidation. Snyder v. Whittier, 05-CV-1284 (TJM/DEP), 2009 WL 691940, *9 (N.D.N.Y. Mar. 12, 2009); Larry v. Byno, 01-CV-1574 (TJM), 2006 WL 1313344, **3-4 (N.D.N.Y. May 11, 2006).*fn3
In addition, the Court must also consider whether "special circumstances" have been plausibly alleged, that justify "the prisoner's failure to comply with administrative procedural requirements." Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004). Justification "must be determined by looking at the circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way." Id. at 678. Special circumstances may be found to exist, for example, where prison officials "inhibit an inmate's ability to utilize administrative grievance procedures;" where the prisoner received a favorable disposition from his grievance but the time to appeal had expired and no relief was forthcoming; and where all appeals were undertaken but prison officials did not respond within the required time period. Id. at 677. The effect of a plaintiff's justification as to why there was no exhaustion "is that, though the administrative remedies are no longer available for reasons of timing or other procedural restrictions, such restrictions cannot serve to keep the plaintiff's suit from proceeding." Id. at 676.
Here, it is undisputed that administrative remedies were available to plaintiff through the Upstate IGP, which plaintiff has acknowledged and, in fact, utilized by filing numerous grievances. See Mingues v. Nelson, 96 CV 5396, 2004 WL 324898, *4 (S.D.N.Y. Feb. 20, 2004) (the record is unmistakably clear "that an appropriate administrative procedure was available" to plaintiff who did not deny knowledge of the IGP). It is also clear that defendants have not forfeited the administrative remedy defense in this action. Defendants asserted plaintiff's failure to exhaust in their answer to the complaint. Dkt. No. 16 at 2.
Accordingly, the Court will consider whether plaintiff exhausted his administrative remedies with respect to the eight claims identified by defendants in their motion and, if not, whether defendants are estopped from asserting this defense or whether any "special circumstances" exist which might excuse plaintiff's failure to exhaust. These issues are addressed with respect to ...