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Reid v. Marzano

United States District Court, N.D. New York

March 17, 2017

JOSEPH J. REID, SR., Plaintiff,
V. MARZANO, Correctional Officer, Watertown Correctional Facility; M. VERNE, Correctional Officer, Watertown Correctional Facility; and SGT. MATTHEW ROZANSKI, Watertown Correctional Facility, Defendants.

          JOSEPH J. REID Plaintiff pro se

          OFFICE OF THE NEW YORKRYAN W. HICKEY, AAG Attorneys for Defendants


          Mae A. D'Agostino U.S. District Judge


         Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision, commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the Eighth and Fourteenth Amendments. See Dkt. No. 1. After sua sponte review, the Court dismissed Plaintiff's due process claim against Defendant Rockwood and the supervisory liability claim against the Superintendent of the Watertown Correctional Facility ("Watertown C.F."). See Dkt. No. 8. Plaintiff's Eighth Amendment excessive force claims against Defendants Marzano and Verne, and failure to intervene claim against Defendant Rozanski survived sua sponte review. See Id. at 10-11.

         On July 1, 2016, the remaining Defendants moved for summary judgment, alleging that Plaintiff failed to exhaust his administrative remedies before commencing this action. See Dkt. No. 35. In a Report-Recommendation and Order dated January 19, 2017, Magistrate Judge Hummel recommended that the Court deny Defendants' motion. See Dkt. No. 45. Specifically, Magistrate Judge Hummel found that, although Plaintiff knew how to file a grievance, he did not know how to proceed when he did not receive a response. See Id. at 13. The report further found that Defendants failed to put forth any evidence showing that Plaintiff received information about how to pursue administrative remedies when a grievance is unfiled and unanswered. See Id. (citing Washington v. Westchester Cnty. Dep't of Corr., No. 13 Civ. 5322, 2014 WL 1778410, *4 (S.D.N.Y. Apr. 25, 2014)). Further, Magistrate Judge Hummel found that "the regulations that govern the appeal of an unfiled and unanswered grievance have not changed since the Second Circuit's decision in Williams, and remain as confusing and arduous as the Court explained in that decision." Id. (citing Williams v. Priatno, 829 F.3d 118, 124-25 (2d Cir. 2016)).

         On February 6, 2017, Defendants objected to the Magistrate Judge Hummel's Report-Recommendation and Order. See Dkt. No. 46. First, Defendants argue that the Court should reject the Report-Recommendation and Order because Plaintiff's "mere allegation that he submitted a grievance, unsupported by evidence, is not sufficient to excuse his failure to exhaust at the summary judgment stage." Id. at 1. Next, Defendants contend that the present matter is factually distinguishable from Williams since that case was before the court on a motion to dismiss, whereas here Defendants have filed a motion for summary judgment. See Id. at 2. As such, Defendants contend that Plaintiff's bald assertion that he filed two grievances, unsupported by any evidence other than his own conclusory allegations, are insufficient. See id.

         Currently before the Court is Magistrate Judge Hummel's January 19, 2017 Report-Recommendation and Order and Defendants' objections thereto.


         The Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. § 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). This exhaustion requirement applies to all suits brought by inmates regarding aspects of prison life. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust all available administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004), abrogated on other grounds by Ross v. Blake, 136 S.Ct. 1850 (2016). The failure to exhaust is an affirmative defense that must be raised by the defendants and, as such, it is the defendants' burden to establish that the plaintiff failed to meet the exhaustion requirements. See Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004); Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009) (citations omitted).

         The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. See Jones, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. See Woodford, 548 U.S. at 90-103.

         New York State has a three-step administrative review process. First, a grievance is submitted to the Inmate Grievance Resolution Committee ("IGRC") which reviews and investigates the formal complaint before issuing a written determination. See 7 N.Y.C.R.R. § 701.5(b). Second, an adverse decision by the IGRC may be appealed to the Superintendent of the Facility. See Id. at § 701.5(c). Third, an adverse decision by the Superintendent may be appealed to Central Office Review Committee ("CORC"), which makes the final determination within the administrative review process. See Id. at § 701.5(d). If all three of these levels of review are exhausted, then the prisoner may seek relief in federal court pursuant to section 1983. See Bridgeforth v. DSP Bartlett, 686 F.Supp.2d 238, 239 (W.D.N.Y. 2010) (citing Porter, 534 U.S. at 524); Singh v. Goord, 520 F.Supp.2d 487, 495-96 (S.D.N.Y. 2007) (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). When a plaintiff presents a claim arising "directly out of a disciplinary or administrative segregation hearing . . . (e.g., a claim of denial of procedural due process), he exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate grievance instead of or in addition to his ordinary appeal." Sweet v. Wende Corr. Facility, 514 F.Supp.2d 411, 413 (W.D.N.Y. 2007) (internal quotation and citations omitted); see also Davis v. Barrett, 576 F.3d 129, 131-32 (2d Cir. 2009).

         To the extent a civil rights claim must be exhausted by the grievance process, completion of the three-tiered process, through and including a final decision by CORC, must be completed before an action asserting that claim may be initially filed. See, e.g., Casey v. Brockley, No. 9:13- CV-1271, 2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) ("Receiving a decision from CORC after commencing litigation does not satisfy PLRA's requirement that administrative remedies be exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must be dismissed without prejudice") (citing Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001), overruled on other grounds, Porter v. Nussle, 534 U.S. 516 (2002)); Rodriguez v. Rosner, No. 12-CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012). "[A] post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the time the action was commenced." Guillory v. Haywood, No. 9:13-CV-1564, 2015 WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing Neal, 267 F.3d at 122) (other citation omitted).

         Although administrative remedies generally must be exhausted, a prisoner need not exhaust remedies if they are not "available." Ross v. Blake, __ U.S.__ 136 S.Ct. 1850, 1855 (2016). "First, an administrative remedy may be unavailable when 'it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates.'" Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 136 S.Ct. at 1859). "Second, 'an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.'" Id. (quoting Ross, 136 S.Ct. at 1859). "In other words, 'some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.'" Id. at 123-24 (quoting Ross, 136 S.Ct. at 1859). "Third, an administrative remedy may be unavailable 'when prison ...

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