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Smith v. Kelly

United States District Court, N.D. New York

October 30, 2013

JULIO ISLEY SMITH, Plaintiff,
v.
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.

OPINION

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DECISION and ORDER

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.

I. RELEVANT LEGAL STANDARD

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 extends review to outside the

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facility shall be considered non-grievable." 7 N.Y.C.R.R. § 701.3(e)(1). Similarly, " an individual decision or disposition resulting from a disciplinary proceeding . . . is not grievable." 7 N.Y.C.R.R. § 701.3(e)(2). However, " [t]he policies, rules, and procedures of any program or procedure, including those above, are grievable." 7 N.Y.C.R.R. § 701.3(e)(3); see also N.Y. Dep't Corr. Serv. Directive No. 4040 at III.E.

Generally, if a prisoner has failed to properly follow each of the required three steps of the above-described grievance procedure prior to commencing litigation, he has failed to exhaust his administrative remedies, and his claims are subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534 U.S. at 524; Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). However, a plaintiff's failure to exhaust does not end the inquiry. The Second Circuit has held that a three-part inquiry is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686, 691 (2d Cir. 2004), accord, Ruggiero, 467 F.3d at 175. First, " the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact 'available' to the prisoner." Hemphill, 380 F.3d at 686 (citation omitted). Second, if those remedies were available, " the court should . . . inquire as to whether [some or all of] 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 [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Id. [citations omitted]. Third, if the remedies were available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, " the Court should consider whether 'special circumstances' have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements." Id. [citations and internal quotations omitted].

With regard to this third inquiry, the Court notes that, under certain circumstances, an inmate may exhaust his administrative remedies by raising his claim during a related disciplinary proceeding. Giano v. Goord, 380 F.3d 670, 678-79 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004).[9] However, in essence, the circumstances in question include instances in which (1) the inmate reasonably believed that his " only available remedy" was to raise his claim as part of a tier disciplinary hearing,[10] and (2)

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the inmate articulated and pursued his claim in the disciplinary proceeding in a manner that afforded prison officials the time and opportunity to thoroughly investigate that claim.[11] Some district courts have found the first requirement not present where (a) there was nothing objectively confusing about the DOCCS regulations governing the grievability of his claim, (b) the inmate was specifically informed that the claim in question was grievable, (c) the inmate separately pursued the proper grievance process by filing a grievance with the IGRC, (d) by initially alleging that he did appeal his claim to CORC (albeit without proof), the inmate has indicated that, during the time in question, he understood the correct procedure for exhaustion, and/or (e) before and after the incident in question, the inmate pursued similar claims through filing a grievance with the IGRC.[12] Other district courts have found the second requirement not present where (a) the inmate's mention of his claim during the disciplinary hearing was so insubstantial that prison officials did not subsequently investigate that claim, and/or (b) the inmate did not appeal his disciplinary hearing conviction.[13]

Finally, two additional points bear mentioning regarding exhaustion hearings. First, the Second Circuit has ruled that a plaintiff in a lawsuit governed by PLRA is not entitled to a jury trial on disputed factual issues relating to his exhaustion of administrative remedies; rather, PLRA exhaustion is a matter of judicial administration. Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir. 2011). Second, given that non-exhaustion is an affirmative defense, the defendant bears the burden of showing that a prisoner has failed to exhaust his available administrative remedies.[14] However, once a defendant has adduced reliable evidence that administrative remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those administrative remedies, the plaintiff must then " counter" the defendant's assertion by showing exhaustion, unavailability, estoppel, or " special circumstances." [15] As a result, practically speaking, while the burden on this affirmative defense remains at all times on the defendant, the plaintiff may sometimes have to adduce evidence in order to defeat it.

II. ANALYSIS

As an initial matter, the Court finds that, before filing this action on April 17, 2006, Plaintiff failed to follow each of the required three steps of the grievance procedure described above in Part I of this Decision and Order. In making this finding, the Court relies on the following evidence: (1) Plaintiff's verified Complaint (Dkt. No. 1, at ¶ ¶ 4.a., 4.b., 4.c.); (2) the Hearing Exhibits including Exhibits D-10, D-11, D-17, D-18, D-19, P-10-a, and P-10-b;

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(3) the hearing testimony of Sergeant Murray (Hrg. Tr. at 7-17); (4) the hearing testimony of Inmate Grievance Supervisor Parmiter ( id. at 18-56); (5) the hearing testimony of Inmate Grievance Program Director Bellamy ( id. at 56-70); and (6) the hearing testimony of Plaintiff ( id. at 71-93).

The Court notes that there is no exhaustion where an inmate complains directly to the Inspector General (i.e., instead of complaining to the superintendent and having the complaint referred to the Inspector General pursuant to 7 N.Y.C.R.R. § 701.8[d]), the Inspector General renders a finding of unsubstantiation, and the inmate fails to appeal that finding to CORC.[16]

As a result, the Court proceeds to the three-part inquiry established by the Second Circuit for when a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. See, supra, Part I of this Decision and Order.

A. Availability of Administrative Remedies

After carefully considering the evidence submitted at the hearing, the Court finds that administrative remedies were " available" to Plaintiff during the time in question. The Court makes this finding for the following six reasons.

First, Hearing Exhibits D-8 and D-9 (containing copies of the version of Directive 4040 that was in effect at the time in question) mandate the existence of a grievance program at Auburn C.F. during the time in question. ( See Hrg. Exs. D-8, D-9.) Second, at the hearing on September 19, 2013, Sergeant Murray and Inmate Grievance Supervisor Parmiter testified credibly that there was a working grievance program at Auburn C.F. during the time in question, of which inmates at Auburn C.F. (including Plaintiff) were aware (including through an orientation program, the law library, and grievance clerks). ( See, e.g., Hrg. Tr. at 31-33, 58.) Third, in his verified Complaint, Plaintiff stated, " Yes," in response to the question, " Is there a prisoner grievance procedure at [his place of present confinement, i.e., Auburn C.F.]." (Dkt. No. 1, at ¶ 4.a.) Fourth, the relevant portions of Plaintiff's hearing testimony acknowledge that there was a working grievance program at Auburn C.F. during the time in question, and

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that he had filed more than 40 grievances before the time in question. ( See Hrg. Tr. at 63, 74-76, 79-80; Hrg. Ex. D-11.) Fifth, while Plaintiff claims that he " had not been made aware of the procedures for filing a formal complaint against the facility's superintendent" during the time in question, the Court finds that claim to be both incredible and immaterial for the reasons set forth below in Part II.C.2. of this Decision and Order. Sixth and finally, while Plaintiff claims that an " IGRC's supervisor" told him that a new prisoner does not file a grievance at Auburn C.F. if it pertains to the prisoner's previous facility, the Court finds that claim to be both incredible and immaterial for the reasons set forth below in Part II.C.3. of this Decision and Order.

B. Forfeiture/Estoppel

After carefully considering the evidence submitted at the hearing, the Court finds that Defendants did not forfeit the affirmative defense of non-exhaustion by failing to raise or preserve it, or that Defendants are estopped from raising the defense by taking actions that inhibited Plaintiff's exhaustion of remedies.

With regard to the forfeiture issue, Defendant's Answer timely asserted this affirmative defense, and Plaintiff's counsel made no argument regarding forfeiture at the hearing. (Dkt. No. 34, at 3; see generally Hr. Tr.)

With regard to the estoppel issue, a defendant in a prisoner civil rights action may not be estopped from asserting the affirmative defense of failure to exhaust administrative remedies (for purposes of the second part of the three-part inquiry established by the Second Circuit) based on the actions or inactions of other individuals.[17] Here, Plaintiff failed to offer sufficient credible evidence at the hearing that it was Defendants (as opposed to someone else) who purportedly inhibited Plaintiff from filing grievances during the time in question. (Hrg. Tr. at 71-93.) For example, while Defendant Kelly has acknowledged having recommended Plaintiff's transfer ( see Hrg. Ex. P-6), Plaintiff has not persuaded the Court that, at some unidentified time, Kelly contacted one or more unidentified correctional officers at Auburn C.F. and somehow persuaded them to threaten and/or intimidate Plaintiff not to exhaust his administrative remedies (or even that it was those communications, as opposed to something else, that caused Plaintiff not to exhaust his administrative remedies). ( See id ; see also Hrg. Tr. at 72, 78, 84-85, 94-95, 97.) Having observed Plaintiff's demeanor during the hearing, and noticed the vagueness of his testimony on the subject of Kelly's contact

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with Auburn C.F., the Court finds that testimony to be incredible.[18]

Moreover, the Court finds that the recommendation of the transfer, in and of itself, did not inhibit Plaintiff from filing grievances during the time in question. Setting aside the fact that the recommendation required approval in order for the transfer to occur, Plaintiff (purportedly) filed grievances following his transfer. ( See, e.g., Hrg. Exs. P-10-b, D-17.) More importantly, again, having observed Plaintiff's demeanor during the hearing, the Court finds his testimony on the subject of causation to be incredible.

C. Special Circumstances

Liberally construed, Plaintiff's original Complaint, hearing testimony and oral argument argue that the following four facts, either by themselves or combined, constitute special circumstances justifying his failure to properly exhaust his available administrative remedies before filing this action on April 17, 2006.

First, Plaintiff argues, through his transfer to Auburn C.F., his placement in S.H.U. and the remarks made to him by Auburn C.F. Captain John Rourke on March 17, 2006, he felt threatened to not fully grieve his retaliatory transfer and placement in S.H.U. ( See Hrg. Tr. at 72-74, 78, 84-87, 90-91; Hrg. Ex. D-14, at ¶ 14.)

Second, Plaintiff argues, he " had not been made aware of the procedures for filing a formal complaint against the facility's superintendent." ( See Dkt. No. 1, at ¶ 4.b.; Hrg. Tr. at 84.)

Third, Plaintiff argues, upon his admission to Auburn C.F., the " IGRC's supervisor" told him that a new prisoner does not file a grievance at Auburn C.F. if it pertains to the prisoner's previous facility, but that the new prisoner should file that grievance at his previous facility. (Hrg. Tr. at 88-89.)

Fourth and finally, Plaintiff argues, he has " substantially complied" with the grievance process. (Hrg. Tr. at 96-98.) More specifically, he argues that he submitted the following complaints regarding his claim of retaliatory transfer and placement in the Auburn C.F. Special Housing Unit (" S.H.U." ): (1) his Inmate Grievance Complaint dated April 28, 2006, complaining of his retaliatory transfer and placement in the Auburn C.F. S.H.U. ( see Hrg. Ex. P-10-b; Hrg. Tr. at 74-76, 79); (2) his complaint to the Inspector General's Office, dated June 2, 2006, complaining (buried in a single line of a three-page document) that " I wrote what I saw to several people and then they moved me out" ( see Hrg. Ex. D-17); (3) his Inmate Grievance Complaint dated October 15, 2010, complaining of his retaliatory transfer and placement in the Auburn C.F. S.H.U. ( see Hrg. Exs. P-10-a, P.-10-b; Hrg. Tr. at 76-78); [19] (4) his letter to the Auburn C.F. Deputy Superintendent of Program Services Thomas dated November 8, 2010, complaining that he had not received an acknowledgment of the receipt of his grievance of October 15, 2010 ( see Hrg. Ex. P-10-a; Hrg. Tr. at 76-78); (5) his letter to Deputy Commissioner of Facilities Operations Lucien J. LeClaire dated

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November 9, 2010, complaining that his grievance of October 15, 2010, had not yet been acted on; and (6) his two letters to Auburn C.F. Inmate Grievance Supervisor Parmiter dated December 2, 2010, and January 6, 2011, complaining that his grievance of October 15, 2010, had not yet been acted on ( see Hrg. Ex. P-10-b; Hrg. Tr. at 76-78). Moreover, Plaintiff argues, he received a response from the highest of the three levels in the grievance process, i.e., the Central Office Review Committee, through his receipt of a letter of November 29, 2010, from Inmate Grievance Program Director Bellamy ( see Hrg. Ex. P-10-a; Hrg. Tr. at 96-98).

1. Purported Threats and/or Intimidation

After carefully considering the evidence submitted at the hearing, the Court finds that this excuse does not constitute special circumstances justifying his failure to exhaust his available administrative remedies (either by itself or combined with the evidence discussed elsewhere in Part II.C. of this Decision and Order).

As explained above in Part II.B. of this Decision and Order, the Court finds that the transfer and placement in S.H.U. did not inhibit Plaintiff from filing grievances during the time in question. As for the transfer, Plaintiff's Amended Complaint reveals that, at some point before February 27, 2006, Plaintiff wrote to the superintendent of Great Meadows C.F. and actually requested a transfer (undermining his claim his transfer instilled in him a chilling fear). (Dkt. No. 10, at ¶ 13.) As for the placement in S.H.U., it appears Plaintiff's stay in S.H.U. lasted only one day. ( See Hrg. Ex. D-14, at ¶ ¶ 13, 14; Hrg. Tr. at 90.) As for the remarks made by Captain Rourke on March 17, 2006, for the sake of brevity, the Court will not linger on the vague and general nature of those remarks or the fact that, within six weeks of hearing them, Plaintiff (purportedly) filed a grievance. ( See, e.g., Hrg. Tr. at 85; Hrg. Exs. P-10-b, D-17.) More important is the fact that, having observed Plaintiff's demeanor during the hearing, the Court finds his testimony on the subject of causation to be incredible.

2. Purported Lack of Awareness

After carefully considering the evidence submitted at the hearing, the Court finds that this excuse does not constitute special circumstances justifying his failure to exhaust his available administrative remedies (either by itself or combined with the evidence discussed elsewhere in Part II.C. of this Decision and Order).

The lack of awareness asserted by Plaintiff is the lack of awareness of " the procedures for filing a formal complaint against the facility's superintendent." ( See Dkt. No. 1, at ¶ 4.b.; Hrg. Tr. at 84.) However, neither Defendant Kelly nor Defendant Levine was a facility superintendent during the time in question. (Hrg. Tr. at 84.) As a result, the lack of awareness in question is completely immaterial to why Plaintiff did not exhaust his administrative remedies regarding the claim asserted in this action.

Moreover, at the hearing, Inmate Grievance Supervisor Parmiter, and Inmate Grievance Program Director Bellamy testified credibly that inmates at Auburn C.F. were informed of the grievance procedure at Auburn C.F. during the time in question (including through an orientation program). ( See, e.g., Hrg. Tr. at 31-32, 58.) Furthermore, the grievance procedure (which was set forth Hgr. Exs. D-8 and D-9) was readily available to Plaintiff (who considered himself to be a " prison litigator" ) through both the law library and grievance clerks. ( See Hrg. Exs. D-8, D-9; Hrg. Tr. at 32-33, 79.) Indeed, at the hearing, Plaintiff admitted that he had filed more than 40 grievances before the

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time in question. ( See Hrg. Tr. at 63, 79-80; Hrg. Ex. D-11.) Based on these facts and Plaintiff's demeanor during the hearing, the Court finds his testimony on this (purported) lack of awareness to be incredible

3. Purported Misinformation

After carefully considering the evidence submitted at the hearing, the Court finds that this excuse does not constitute special circumstances justifying his failure to exhaust his available administrative remedies (either by itself or combined with the evidence discussed elsewhere in Part II.C. of this Decision and Order).

At the hearing, Plaintiff does not identify the name the " IGRC's supervisor" who purportedly told him that a new prisoner does not file a grievance at Auburn C.F. if it pertains to the prisoner's previous facility, nor does he specify the date, means or location of this purported communication. (Hrg. Tr. at 88-89.) Based on this fact and Plaintiff's demeanor during the hearing, the Court finds his testimony on the subject of the (purported) receipt of this misinformation to be incredible.

In any event, even if the Court believed that Plaintiff had received this misinformation, the Court would have difficulty believing that the misinformation would have persuaded an experienced " prisoner litigator" such as Plaintiff to disregard the plain language of the April 16, 2004, Revision to DOCCS Directive 4040, which expressly stated, " The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility" ( see Hrg. Ex. D-9 [emphasis in original]), which was followed at Auburn C.F. during the time in question ( see Hrg. Tr. at 26-28, 59-60). Again, that Revision was both communicated and available to Plaintiff. ( See Hrg. Tr. at 31-33, 58.) Furthermore, Plaintiff does not even argue that, in reliance on the alleged misinformation, he tried to file a grievance at Great Meadows C.F.[20]

4. Purported Substantial Compliance

As an initial matter, " substantial compliance" does not appear to be a fair characterization of the standard set forth in the third part of the three-part inquiry established by the Second Circuit. See, supra, Part I of this Decision and Order. Such a construction would appear to violate the PLRA.[21] It would also appear to violate Woodford v. Ngo, which held that PLRA exhaustion requires proper exhaustion. Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). In any event, Plaintiff's failures cannot be viewed as insubstantial noncompliance. See, e.g., Wilkinson v. Banks, 02-CV-0361, 2007 WL 2693636, at *10 (W.D.N.Y. Sept. 10, 2007) (" Wilkinson's failure to file his appeal with the Clerk should not be viewed as insubstantial noncompliance." ).

Out of special solicitude to Plaintiff, the Court will liberally construe his special-circumstances argument as arguing that, when taken together with the three previously discussed excuses proffered by him, his (alleged) unsuccessful attempts to file a timely grievance and appeal the denial of

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that grievance all the way to CORC justify his failure to comply with the administrative procedural requirements. After carefully considering the matter, the Court rejects this argument for the following three reasons.

First, the Court does not believe that Plaintiff ever submitted his Inmate Grievance Complaint dated April 28, 2006. In rendering this finding, the Court relies on the following: (1) the fact that Plaintiff's (purported) grievance contains no grievance number (Hrg. Ex. P-10-b); (2) Plaintiff's sworn statement that he never filed a grievance with either the IGRC or Superintendent at Auburn C.F. (Dkt. No. 1, at ¶ ¶ 4.b., 4.c.); (3) the absence of the grievance from DOCCS' records of Plaintiff's grievances (Hrg. Exs. D-10, D-11); (4) the Court's evaluation of Sergeant Murray' credibility during his hearing testimony (Hrg. Tr. at 7-17); (5) the Court's evaluation of Inmate Grievance Supervisor Parmiter's credibility during her hearing testimony ( id. at 18-56); (6) the Court's evaluation of Inmate Grievance Program Director Bellamy's credibility during her hearing testimony ( id. at 56-70); and (7) the Court's evaluation of Plaintiff's lack of credibility during his hearing testimony ( id. at 71-93).

Second, none of the (alleged) grievances and complaints relied on by Plaintiff were dated within fourteen (14) calendar days of the transfer and placement in S.H.U. on March 16, 2006, as required by DOCCS Directive 4040. (Hrg. Exs. D-8, D-9.) Rather, those grievances and complaints were (allegedly)filed on the following three dates: April 28, 2006; June 2, 2006; and October 15, 2010. (Hrg. Exs. P-10-a, P-10-b, D-17.) Moreover, none of those grievances and complaints was either preceded or accompanied by an application to Auburn C.F. Inmate Grievance Supervisor Parmiter for an exception to the time limit based on mitigating circumstances (which is the procedure described above in Part I of this Decision and Order).

Granted, the submission of the Inmate Grievance Complaint dated October 15, 2010, was followed by letters to supervisors complaining that the grievance had not been acted on. ( See Hrg. Ex. P-10-a, P-10-b.) However, those letters do not constitute complaints that an application for an extension of time was wrongfully denied. (Indeed, as explained in the preceding paragraph, there had been no such application.) Rather, those letters (which were addressed to Auburn C.F. Deputy Superintendent of Program Services Thomas, Deputy Commissioner of Facilities Operations LeClaire, and Auburn C.F. Inmate Grievance Supervisor Parmiter) complain that Plaintiff's Inmate Grievance Complaint of October 15, 2010, was never processed, essentially constituting an appeal from that decision. However, none of those letters was filed with the proper person (i.e., Auburn C.F. Superintendent). Even if they had been so filed, they could not achieve exhaustion, because, as explained by Inmate Grievance Supervisor Parmiter in her letter of November 12, 2010, Plaintiff's Inmate Grievance Complaint of October 15, 2010, was rejected for being more than four-and-a-half years late. (Hrg. Ex. P-10-b.) Nor could exhaustion have been achieved through the letter of November 29, 2010, from Inmate Grievance Program Director Bellamy, who did not address the merits of Plaintiff's grievance. (Hrg. Ex. P-10-a.)

It would eviscerate the exhaustion requirement to deem an inmate to have exhausted his available administrative remedies where he files a grievance four-and-a-half years late (while litigation is pending), then skips the superintendent and appeals the rejection of his grievance (based on untimeliness) to CORC, which

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never passes on the merits of his grievance. If exhaustion were permissible under such circumstances, every inmate could exhaust his available administrative remedies without fulfilling the functions of the exhaustion requirement: affording corrections officials the time and opportunity to quickly and economically correct its own mistakes internally, and producing a useful record for litigation, before allowing the initiation of a federal case. See, supra, Part I of this Decision and Order.

Third, none of the three grievances and complaints relied on by Plaintiff was filed before he filed his Complaint in this action on April 17, 2006. Moreover, while Plaintiff's (alleged) Inmate Grievance Complaint dated April 28, 2006, and letter to the Inspector General dated June 2, 2006, predate his Amended Complaint on December 1, 2006 ( see Dkt. No. 10, at 8), Plaintiff did not complete the exhaustion process with regard to either of those documents. The (alleged) non-processing of the first document was never appealed (in a timely fashion or otherwise) to the Superintendent and then CORC. Furthermore, the second document was neither caused by a referral by the Superintendent nor followed by an appeal to CORC (again, in a timely fashion or otherwise). To characterize Inmate Grievance Program's letter of November 29, 2010 (which expressly regarded Plaintiff's Inmate Grievance Complaint dated October 15, 2010), as an affirmance of either of the two documents dated 2006 would make a mockery of the exhaustion process.

Simply stated, Plaintiff knew the procedure; he simply did not follow it.

ACCORDINGLY, it is

ORDERED that, pursuant to note 1 of this Decision and Order, the Clerk of the Court shall amend the caption of the docket sheet in this action to reflect that the last name of Defendant " Levine" is actually spelled " Leavens" ; and it is further

ORDERED that Plaintiff's Amended Complaint (Dkt. No. 10) is DISMISSED in its entirety without prejudice for failure to exhaust his available administrative remedies before filing this action, pursuant to the PLRA; and it is further

ORDERED that the Clerk of the Court shall enter judgment for Defendants and close the file in this action.


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