United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD UNUTED STATES DISTRICT JUDGE
Shawn Green ("Plaintiff) commenced this action on
February 7, 2011. (Dkt. 1). The operative pleading is the
second amended complaint filed on August 26, 2012. (Dkt. 44).
All named Defendants except for Defendant Schmelzle
("Defendant") were dismissed by the Court on
December 23, 2015. (Dkt. 65). Currently pending before the
Court is Defendant's motion for summary judgment. (Dkt.
78). For the reasons stated below, Defendant's motion is
is an inmate formerly housed at the Elmira Correctional
Facility ("Elmira"). Plaintiffs second amended
complaint is brought pursuant to 42 U.S.C. § 1983. (Dkt.
44). In relevant part, Plaintiff alleges that Defendant
conducted a discriminatory investigation into Plaintiffs
grievance EL34-054-08, which Plaintiff filed on March 7,
2008. (See Id. at 7-8; Dkt. 78-3 at 8). Plaintiff is
a diabetic. (See Dkt. 44 at 7). In the grievance,
Plaintiff claimed that he was denied recreation, showers, and
the opportunity to use the phone because he was required to
report to the prison infirmary for insulin injections during
the only hour those opportunities were available. (Dkt. 78-3
at 8). Plaintiff asserted that he was forced to be in the
infirmary and forfeit the other "services and
privileges because the facility [had] no procedures in
effect for those who have medical priorities at the time of
one hour recreation. . . ." (Id.). Defendant
investigated Plaintiffs grievance and reported that Plaintiff
had other opportunities to use the showers and phones.
(Id. at 13). Based on Defendant's investigation,
Plaintiffs grievance was denied. (Id. at 10). The
New York Department of Correctional Services Central Office
Review Committee ("CORC") upheld the denial on
appeal. (Id. at 5). Later, Plaintiff became aware
that another inmate, Michael Bennett ("Bennett"),
filed a substantially similar grievance. (Dkt. 80 at 3). The
outcome of Bennett's grievance-number EL36-155-09, filed
on August, 20, 2009-was different than Plaintiffs. In
response to Bennett's grievance, Elmira changed its
policy to "ensure that inmates who are eligible for one
hour of recreation will be seen first by medical staff to
allow them to participate in recreation." (Id.
at 14). Plaintiff asserts that the differing outcome is
because Plaintiff is "black" and Bennett is not.
(Dkt. 49 at 13).
admits he did not file a grievance relating to
Defendant's allegedly discriminatory treatment. (Dkt. 80
at 4 (incorporating the "Facts" section from
Defendant's memo of law (Dkt. 78-4 at 2))).
Standard of Review
Rule of Civil Procedure 56 provides that summary judgment
should be granted if the moving party establishes "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). The court should grant summary judgment
if, after considering the evidence in the light most
favorable to the nonmoving party, the court finds that no
rational jury could find in favor of that party. See
Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)).
the moving party has met its burden, the opposing party
"must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . [T]he
nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial." Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis
in original) (quoting Matsushita Elec., 475 U.S. at
586-87). "[T]he mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary
judgment....." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original).
only argument on summary judgment is that Plaintiff failed to
exhaust administrative remedies. (Dkt. 78-4 at 4-5). Pursuant
to 42 U.S.C. § 1997e, "[n]o 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. § 1997e(a).
To satisfy that requirement, prisoners in New York must
ordinarily follow a three-step [Department of Corrections and
Community Supervision] grievance process. The first step in
that process is the filing of a grievance with the Inmate
Grievance Resolution Committee. Next, the inmate may appeal
an adverse decision to the prison superintendent. Finally,
the inmate may appeal the superintendent's decision to
the [CORC]. In general, it is only upon completion of all
three levels of review that a prisoner may seek relief in
federal court under § 1983.
Crenshaw v. Syed,
686 F.Supp.2d 234, 236 (W.D.N.Y.
2010) (citations omitted). Allegations of discrimination can
be brought through an expedited grievance process. N.Y. Comp.
Codes R. & Regs. tit. 7, § 701.9; see, e.g.,
Smith v. Kelly,985 F.Supp.2d 275, 281 (N.D.N.Y. 2013).
"Exhaustion is mandatory-unexhausted claims may not be
pursued in ...