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Green v. Schmelzle

United States District Court, W.D. New York

March 8, 2017

SHAWN GREEN, Plaintiff,
v.
SCHMELZLE, Defendant.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD UNUTED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff 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 denied.

         BACKGROUND

         Plaintiff 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).

         Plaintiff 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))).

         DISCUSSION

         I. Standard of Review

         Federal 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)).

         Once 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).

         II. Exhaustion

         Defendant's 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 ...


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