United States District Court, N.D. New York
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.
J. REID Plaintiff pro se
OF THE NEW YORKRYAN W. HICKEY, AAG Attorneys for Defendants
MEMORANDUM-DECISION AND ORDER
D'Agostino U.S. District Judge
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
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.
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.
before the Court is Magistrate Judge Hummel's January 19,
2017 Report-Recommendation and Order and Defendants'
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).
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.
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).
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
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