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Smith v. Kelly

United States District Court, N.D. New York

October 30, 2013

C.F. KELLY, JR., Captain, Great Meadow Corr. Facility; and JAMES LEVINE, Prison Guard, Great Meadow Corr. Facility, [1] Defendants

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MARTIN A. LYNN, ESQ., OF COUNSEL, LYNN LAW FIRM, Pro Bono Trial Counsel for Plaintiff, Syracuse, New York.

JAMES SEAMON, ESQ., Assistant Attorney General, OF COUNSEL, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York.


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Hon. Glenn T. Suddaby, United States District Judge.

Currently before the Court is a prisoner civil rights action filed by Julio Isley Smith (" Plaintiff" ) asserting a claim of retaliation against Great Meadow Correctional Facility Captain C.F. Kelly and Prison Guard James Levine (" Defendants" ) pursuant to the First Amendment and 42 U.S.C. § 1983, alleging that, because Plaintiff sent a written " racial assault charge" to the Office of the New York State Inspector General on February 27, 2006 (complaining that a nonparty correctional officer assaulted another inmate earlier that day), Kelly placed him on a " 72 hour investigation" on March 15, 2006, Kelly and Levine transferred him to Auburn Correctional Facility on March 16, 2006, and Levine told the guards at Auburn Correctional Facility that the transfer was punishment for complaining, which caused Plaintiff to be transferred to a restrictive unit within Auburn Correctional Facility (" Auburn C.F." ). (Dkt. No. 10; Dkt. No. 114.) On September 19, 2013, the Court held an evidentiary hearing regarding Defendants' affirmative defense that Plaintiff failed to exhaust his available administrative remedies before filing this action, as required by the Prison Litigation Reform Act, before filing this action on April 17, 2006.[2] At the two-and-a-half-hour-long hearing, documentary evidence was admitted, and testimony was taken of Plaintiff as well as of Defendants' three witness--Auburn C.F. Sergeant Michael Murray, Auburn C.F. Inmate Grievance Supervisor Sheryl Parmiter, and New York State Department of Corrections and Community Supervision Inmate Grievance Program Director Karen Bellamy--whom Plaintiff was able to cross-examine through pro bono trial counsel. At the conclusion of the hearing, the undersigned indicated that a

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written decision would follow. This is that written decision. For the reasons set forth below, Plaintiff's Amended Complaint is dismissed because of his failure to exhaust his available administrative remedies.


The Prison 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 . . . 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. § 1997e. The PLRA was enacted " to reduce the quantity and improve the quality of prisoner suits" by " afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In this regard, exhaustion serves two major purposes. First, it protects " administrative agency authority" by giving the agency " an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency's procedures." Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Second, exhaustion promotes efficiency because (a) " [c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court," and (b) " even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration." Woodford, 548 U.S. at 89. " [T]he PLRA's 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, 534 U.S. at 532.

In accordance with the PLRA, the New York State Department of Corrections and Community Supervision (" DOCCS" ) has made available a well-established inmate grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the DOCCS Inmate Grievance Program (" IGP" ) involves the following three-step procedure for the filing of grievances. 7 N.Y.C.R.R. § 701.5, 701.6(g), 701.7.[3] First, an inmate must file a complaint with the facility's IGP clerk within a certain number of days of the alleged occurrence.[4] If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. A representative of the facility's inmate grievance resolution committee (" IGRC" ) has a certain number of days from receipt of the grievance to informally resolve the issue. If there is no such informal resolution, then the full IGRC conducts a hearing within a certain number of days of receipt of the grievance, and issues a written decision within a certain number of days of the conclusion of the hearing. Second, a grievant may appeal the IGRC decision to the facility's superintendent within a certain number of days of receipt of the IGRC's written decision. The superintendent

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is to issue a written decision within a certain number of days of receipt of the grievant's appeal. Third, a grievant may appeal to the central office review committee (" CORC" ) within a certain number of days of receipt of the superintendent's written decision. CORC is to render a written decision within a certain number of days of receipt of the appeal.

Moreover, there is an expedited process for the review of complaints of inmate harassment or other misconduct by corrections officers or prison employees. 7 N.Y.C.R.R. § 701.8. In the event the inmate seeks expedited review, he or she may report the misconduct to the employee's supervisor. The inmate then files a grievance under the normal procedures outlined above, but all grievances alleging employee misconduct are given a grievance number, and sent immediately to the superintendent for review. Under the regulations, the superintendent or his designee shall determine immediately whether the allegations, if true, would state a " bona fide" case of harassment, and if so, shall initiate an investigation of the complaint, either " in-house" (by the Inspector General's Office) or by the New York State Police Bureau of Criminal Investigations. An appeal of the adverse decision of the superintendent may be taken to the CORC as in the regular grievance procedure. A similar " special" procedure is provided for claims of discrimination against an inmate. 7 N.Y.C.R.R. § 701.9.

It is important to note that these procedural requirements contain several safeguards. For example, if an inmate could not file such a complaint within the required time period after the alleged occurrence, he or she could apply to the facility's IGP Supervisor for an exception to the time limit based on mitigating circumstances. If that application was denied, the inmate could file a complaint complaining that the application was wrongfully denied.[5] Moreover, any failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can--and must--be appealed to the next level, including CORC, to complete the grievance process.[6] There appears to be a conflict in case law regarding whether the IGRC's nonresponse must be appealed to the superintendent where the plaintiff's grievance was never assigned a grievance number.[7] After carefully reviewing this case law, the Court finds that the weight of authority (and better-reasoned authority) answers this question in the affirmative.[8] The

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Court notes that, if the plaintiff adequately describes, in his appeal to the superintendent, the substance of his grievance (or if the plaintiff attaches, to his appeal, a copy of his grievance), and the plaintiff adequately describes the failure to process the grievance, there is something for the superintendent to review.

It is also important to note that DOCCS has a separate and distinct administrative appeal process for inmate misbehavior hearings:

A. For Tier III superintendent hearings, the appeal is to the Commissioner's designee, Donald Selsky, D.O.C.S. Director of Special Housing/Inmate Disciplinary Program, pursuant to 7 N.Y.C.R.R. § 254.8;

B. For Tier II disciplinary hearings, the appeal is to the facility superintendent pursuant to 7 N.Y.C.R.R. § 253.8; and

C. For Tier I violation hearings, the appeal is to the facility superintendent or a designee pursuant to 7 N.Y.C.R.R. § 252.6.

" An individual decision or disposition of any current or subsequent program or procedure having a written appeal mechanism which ...

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