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Ceara v. Deacon

United States District Court, S.D. New York

January 24, 2017

RAFAEL CEARA, Plaintiff,

          Rafael Ceara Ossining, NY Pro Se Plaintiff

          Bradley Gordon Wilson, Esq. Frederick Hongyee Wen, Esq. Attorney General of the State of New York New York, NY Counsel for Defendant

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Rafael Ceara (“Plaintiff”) brought the instant pro se Action pursuant to 42 U.S.C. § 1983 against New York State Department of Corrections and Community Supervision (“DOCCS”)

         Officer Joseph Deacon (“Deacon” or “Defendant”), alleging that Defendant subjected Plaintiff to excessive force when Defendant pushed Plaintiff down several stairs, and then threatened Plaintiff to deter him from filing a grievance about the incident, in violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution. (See Am. Compl. (Dkt. No. 7).) Before the Court is Defendant's Motion For Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (See Notice of Mot. for Summ. J. (Dkt. No. 44).) The Motion advances only the arguments that Plaintiff's Action is time-barred and that Plaintiff failed to exhaust his administrative remedies. For the following reasons, Defendant's Motion is granted.

         I. Background

         A. Factual Background

         Plaintiff arrived at Downstate Correctional Facility (“Downstate”) on August 13, 2010 and was placed in D Block in Complex 1. (See Def.'s Statement Pursuant to Local Rule 56.1 (“Def.'s 56.1”) ¶¶ 1, 2 (Dkt. No. 48); Pl.'s Opposing Statement Pursuant to Local Rule 56.1 (“Pl.'s 56.1”) ¶ 1 (Dkt. No. 51).)[1] Plaintiff stayed in D Block until he was transferred to Elmira Correctional Facility (“Elmira”) on or around September 24, 2010. (See Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶ 2.)[2] Defendant was a regular block officer on D Block in Complex 1 when Plaintiff lived in D Block. (See Def.'s 56.1 ¶ 3; Pl.'s 56.1 ¶ 3.) As the block officer, Defendant would normally walk around and check cells on D Block. (See Def.'s 56.1 ¶ 3; Pl.'s 56.1 ¶ 3.) Defendant's brother also regularly worked as an officer on D Block. (Dep. of Rafael Ceara (Nov. 20, 2015) (“Pl.'s Dep.”) 27-28 (Dkt. No. 45-1).)

         On September 5, 2010, Plaintiff either fell, (Def.'s 56.1 ¶ 4), or was pushed by Defendant, (Pl.'s 56.1 ¶ 4), down a set of stairs. This disagreement is immaterial for purposes of this Motion. After the incident, Plaintiff went to the medical unit and filled out an Inmate Injury Report, in which he stated that “C.O. Deagon pushed me down the stairs with extreme force.” (See Def.'s 56.1 ¶ 4; Pl.'s 56.1 ¶ 4; Pl.'s Ex. N-1 (Dkt. No. 53-12).) The next day, Plaintiff wrote to Ada Perez, the Superintendent of Downstate (“Perez”), and stated that “Officer Deagan” pushed him down the stairs. (See Def.'s 56.1 ¶ 5; Pl.'s 56.1 ¶ 5; Pl.'s Ex. E-1 (Dkt. No. 53-5).)

         On September 9, 2010, Plaintiff filed a grievance relating to the September 5 incident, which stated that “C.O[.] Deagan” pushed him down the stairs. (See Def.'s 56.1 ¶ 6; Pl.'s Ex. D-2 (Dkt. No. 53-4).) On September 17, 2010, Plaintiff drafted an Inmate Grievance Complaint, which stated that “officers” threw Plaintiff down several flights of stairs and, in the subsequent days, threatened his life and well-being. (See Def.'s 56.1 ¶ 8; Pl.'s 56.1 ¶ 8; Pl.'s Ex. D-3 (Dkt. No. 53-4).)[3] The grievance complaint read at the top: “Note: this is my second grievance on this matter.” (Pl.'s 56.1 ¶ 6; Pl.'s Ex. D-3.) Plaintiff averred that he wrote this second grievance because he “had not heard [anything] or receive[d] any response from [the] first grievance [filed] 8 day[s] prior.” (Pl.'s 56.1 ¶ 8.) On or about September 27, 2010, Lieutenant McKeon (“McKeon”) interviewed Plaintiff regarding Plaintiff's grievance. (Def.'s 56.1 ¶ 9; Pl.'s 56.1 ¶ 9; Pl.'s Dep. 132-134.)

         On October 5, 2010, Perez decided Plaintiff's grievance. (Pl.'s Ex. A-3 (Dkt. No. 53-1).) The decision stated that the “[i]nvestigation reveals no evidence to support [Plaintiff's] allegations of staff misconduct.” (Id.) The decision also included a form appeal statement. (Id.)[4] It is undisputed that Plaintiff did not appeal Perez's decision to the Central Office Review Committee (“CORC”). (Def.'s 56.1 ¶ 11; Pl.'s 56.1 ¶ 11.)[5] However, Plaintiff avers that he never received Perez's decision or any appeal form. (Pl.'s 56.1 ¶¶ 11, 13.)

         On October 28, 2010, Plaintiff met with Investigator Todd (“Todd”) from the Department of Corrections and Community Supervision Inspector General's Office, and Plaintiff told Todd that Defendant pushed him down the stairs. (See Def.'s 56.1 ¶ 7; Pl.'s 56.1 ¶ 7.) Todd's notes contain multiple references to “C.O. Deagan.” (See Pl.'s Ex. H-1 (Dkt. No. 53-7).) The notes indicate that Defendant's brother also works in the same area at Downstate and that Defendant is the “taller” of the two brothers. (Id.)

         On or around July 25, 2012, Plaintiff sent a letter to Karen Bellamy (“Bellamy”), Director of the Inmate Grievance Program (“IGP”). (Def.'s 56.1 ¶ 12; Pl.'s 56.1 ¶ 12; Pl.'s Ex. B-2 (Dkt. No. 53-2).)[6] The letter referred to Plaintiff's grievance related to the September 5 incident and stated “I would like a response by CORC on behalf of such grievance. I had never gotten a response on such grievance and it was never brought up.” (Pl.'s Ex. B-2.) On September 14, 2012, Jeffrey Hale (“Hale”), Assistant Director of IGP, responded to Plaintiff's letter and told Plaintiff that his grievance “was answered by the Superintendent on September 10, 2010 and [Plaintiff] did not appeal.” (Def.'s 56.1 ¶ 13; Pl.'s 56.1 ¶ 13; Pl.'s Ex. B-1 (Dkt. No. 53-2); Pl.'s Ex. D-3.) Hale avers that he recently reviewed CORC records to determine whether Plaintiff appealed the relevant grievance to CORC and the records demonstrate that Plaintiff “did not appeal to CORC any grievances that he filed while at Downstate Correctional Facility, ” including the grievance at issue here. (Decl. of Jeffery Hale (“Hale Decl.”) ¶¶ 4-5, 7 (Dkt. No. 46).)

         B. Procedural History

         Plaintiff filed his original Complaint on August 22, 2013. (See Compl. (Dkt. No. 2).) The original Complaint named “Correctional Officer John Doe which [sic] worked at Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5, 2010 on [sic] the 7[] a[.]m[.] [to] 3[] p[.]m[.] shift in D-Block, Complex 1” as the defendant. (Id. at 1.) Directly below the information provided about the defendant, Plaintiff stated that he “wrote to [the] Inspector General for [the] full names and have had no respon[s]e.” (Id.) In parenthesis, the Complaint notes “C.O. Deagan, [h]e has [an] old[er] brother by [the] same name.” (Id.) As “Defendant No. 1, ” Plaintiff listed “John Doe (C[.]O. Deagan younger brother).” (Id.)

         On September 5, 2013, the Court issued an Order pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), directing the New York State Attorney General (the “Attorney General”) to ascertain the identity and address of the John Doe Defendant that Plaintiff named in the original Complaint within 60 days.[7] (See Order of Service (Dkt. No. 5).) The Order provided that “Plaintiff must file an amended complaint naming the John Doe Defendant” within 30 days of receiving information about the defendant from the Attorney General. (Id. at 2.) In response, the Attorney General notified the Court and Plaintiff by letter dated October 25, 2013, that “Officer John Haag and Officer Joseph Deacon were on duty during the 7:00 a.m. to 3:00 p.m. shift on September 5, 2010.” (Letter from Richard W. Brewster, Esq., to the Court (Oct. 25, 2013) (Dkt. No. 6).) Plaintiff then filed the Amended Complaint on November 22, 2013, substituting “Joseph Deacon, D.O.C.C.S., Officer” for “Correctional Officer John Doe.” (Am. Compl. 1.)

         Defendant filed a Motion To Dismiss, which was fully briefed on September 19, 2014, and sought to dismiss the Complaint on timeliness grounds only. (Dkt. Nos. 17-20.) On November 25, 2014, the Court issued an Opinion and Order denying Defendant's motion. (See Op. & Order (“Opinion”) (Dkt. No. 21).) The Court found that Plaintiff sufficiently alleged that his Amended Complaint, filed after the statute of limitations had run, related back to the filing of the original Complaint under Federal Rule of Civil Procedure 15(c)(1)(A). (Id. at 17.)

         Defendant filed the instant Motion For Summary Judgment, (Notice of Mot. for Summ. J.), and accompanying memorandum of law on February 5, 2016, (see Mem. of Law in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Mem.”) (Dkt. No. 49)). Plaintiff submitted a memorandum of law in opposition to the Motion on April 5, 2016. (See Mem. of Law in Supp. of Pl.'s Opposing [sic] Def.'s Mot. for Summ. J. (“Pl.'s Opp'n”) (Dkt. No. 53).) Defendant filed his reply on April 19, 2016. (See Reply Mem. of Law in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Reply”) (Dkt. No. 56).) Pursuant to an Order issued August 8, 2016, the Court requested supplemental briefing on the issue of whether Plaintiff's Amended Complaint should relate back to his original Complaint under Federal Rule of Civil Procedure 15(c)(1)(C). (See Dkt. No. 60.) Defendant filed a supplemental memorandum of law on August 26, 2016, (see Suppl. Mem. of Law in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Suppl. Mem.”) (Dkt. No. 61)), and Plaintiff filed his supplemental response on September 28, 2016, (see Mem. of Law in Supp. of Pl.'s Suppl. Briefing (“Pl.'s Suppl. Mem.”) (Dkt. No. 67)).

         II. Discussion

         A. Standard of Review

         Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). “In determining whether summary judgment is appropriate, ” a court must “construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y. 2014) (same). Additionally, “[i]t is the movant's burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim, ” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion . . ., [a nonmovant] need[s] to create more than a ‘metaphysical' possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial, '” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings, ” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)).

         “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court's goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Finally, the Second Circuit has instructed that when a court considers a motion for summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at *7 (S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics and internal quotation marks omitted).

         B. Analysis

         1. Exhaustion of Administrative Remedies

         The Prison Litigation Reform Act (“PLRA”), provides that “[n]o action shall be brought with respect to prison conditions under [§] 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.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all personal incidents while in prison. Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding exhaustion is required for “all inmate suits about prison life, whether they involve general circumstances or particular episodes”); see also Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (same), and includes actions for monetary damages despite the fact that monetary damages are not available as an administrative remedy, Booth v. Churner, 532 U.S. 731, 741 (2001) (holding exhaustion is required “regardless of the relief offered through administrative procedures”). Moreover, the PLRA mandates “‘proper exhaustion'-that is, ‘using all steps that the agency holds out, and doing so properly, ' . . . . [which] entails . . . ‘completing the administrative review process in accordance with the applicable procedural rules.'” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting Woodford v. Ngo, 548 U.S. 81, 88, 90 (2006) (alteration omitted)). Finally, the PLRA applies even to a plaintiff who is not currently incarcerated, provided that he had been incarcerated when he brought his initial suit. See Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (“Because [the ...

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