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Animashaun v. Regner

United States District Court, N.D. New York

September 26, 2019


          DAMILOLA ANIMASHAUN, Plaintiff, pro se

          KONSTANDINOS D. LERIS, Asst. Attorney General for Defendant



         This matter has been referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). This action was originally filed by plaintiff in the Western District of New York on January 25, 2017. (Dkt. No. 1). Defendant's motion to transfer the case to the Northern District of New York was granted on August 14, 2018, and the case was transferred on September 18, 2018. (Dkt. Nos. 25, 26). Plaintiff's motion for “default judgment” was denied on October 29, 2018, and a Mandatory Pretrial Discovery and Scheduling Order was issued by this court on November 8, 2018. (Dkt. Nos. 29, 30). Plaintiff's motion for reconsideration was denied on January 28, 2019. (Dkt. No. 34).

         Presently before this court is the defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 36). Plaintiff has responded in opposition to the motion, and defendant has replied. (Dkt. Nos. 38, 39). On September 3, 2019, this court accepted plaintiff's “sur-reply” and has considered the arguments therein. (Dkt. Nos. 41, 42). For the following reasons, this court agrees with defendant and will recommend dismissal of the complaint.

         I. Summary Judgment

         Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). “Only disputes over [“material”] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).

         The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin, 467 F.3d at 272.

         II. Facts

         In his complaint, plaintiff alleges that on August 18, 2016, he was incarcerated in C-Block at Auburn Correctional Facility. (Complaint (“Compl.”) at 5). Plaintiff states that defendant Regner was “upset” because plaintiff was incarcerated for a crime that defendant Regner “disliked.” Plaintiff states that defendant Regner came to plaintiff's cell at approximately 2:00 a.m. and “spat multiple times on [him].” (Id.) Defendant Regner then left, but came back shortly thereafter and threw an “unknown substance” on plaintiff which immediately irritated plaintiff's skin, causing itching, burning, reddening, discoloration, and a rash. (Id.)

         Plaintiff states that he is asserting “Failure to Protect, ” which this court has interpreted as an Eighth Amendment excessive force/cruel and unusual punishment claim. Plaintiff seeks ninety million dollars in damages for his injuries. (Id.)

         Defendant's recitation of the events of August 18, 2016 is very different than plaintiff's description. Defendant Regner states that he was working the overnight shift, assigned to C-Block, and at approximately 2:05 a.m., during one of his rounds of the block, defendant Regner noticed that plaintiff had a blanket hanging from his cell gate which was obstructing the view into plaintiff's cell. (Regner Decl. ¶ 6) (Dkt. No. 36-10). It is against facility rules to obstruct visibility into an inmate's cell, room, or cube. Defendant Regner gave plaintiff a direct order to remove the blanket. (Id.) However, plaintiff refused to do so. (Id.) After plaintiff refused to remove the blanket, defendant Regner removed the blanket himself by grasping it from outside plaintiff's cell. (Regner Decl. ¶ 7). As defendant Regner took the blanket down, plaintiff threw the contents of a lotion bottle on defendant Regner.[1] (Id.) The substance covered parts of defendant Regner's upper body, lower body, and head.[2] (Id.)

         As a result of plaintiff's conduct, defendant wrote a misbehavior report against the plaintiff. The misbehavior report described the incident and charged plaintiff with six rule violations, including refusing a direct order, disorderly conduct, obstructing the visibility into his cell, and assault. (Regner Decl. ¶ 8 & Ex. A). The misbehavior report indicates that plaintiff was taken to the Special Housing Unit (“SHU”) as a result of the incident. (Regner Decl. Ex. A) (Dkt. No. 36-11). Defendant Regner asserts that he did not verbally harass or physically assault plaintiff in any way, nor did he ever throw any type of substance on plaintiff.[3] (Regner Decl. ¶ 10).

         III. Exhaustion of Administrative Remedies

         A. Legal Standards

         The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C. §1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim.[4] See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004), abrogated on other grounds by Ross v. Blake, 380 F.3d. 670 (2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675.

         The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g., 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. 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. 548 U.S. at 90-103.

         The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee (“IGRC”). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee (“CORC”). Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to “resolve his/her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance.” Id. § 701.3(a) (Inmate's Responsibility). There is also a special section for complaints of harassment. Id. § 701.8. Complaints of harassment are handled by an expedited procedure which provides that such grievances are forwarded directly to the Superintendent of the facility, after which the inmate must appeal any negative determination to the CORC. Id. §§ 701.8(h) & (i), 701.5.

         Until recently, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly exhausted his administrative remedies. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own actions inhibiting exhaustion estops them from raising the defense; and (3) whether “special circumstances” justify the inmate's failure to comply with the exhaustion requirement. Id.

         The Supreme Court has now made clear that courts may not excuse a prisoner's failure to exhaust because of “special circumstances.” Ross v. Blake, __ U.S. __, 136 S.Ct. 1850, 1857 (June 6, 2016). “‘[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.'” Riles v. Buchanan, 656 Fed.Appx. 577, 580 (2d Cir. 2016) (quoting Ross, __ U.S. at __, 136 S.Ct. at 1857). Although Ross has eliminated the “special circumstances” exception, the other two factors in Hemphill - availability and estoppel - are still valid. The court in Ross referred to “availability” as a “textual exception” to mandatory exhaustion, and “estoppel” has become one of the three factors in determining availability. Ross, __ U.S. at __, 136 S.Ct. at 1858. Courts evaluating whether an inmate has exhausted his or her administrative remedies must focus on whether those remedies were “available” to the inmate. Id; see also Riles, 2016 WL 4572321 at *2. Defendants bear the burden of proving the affirmative defense of failure to exhaust. Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016).

         B. Application

         Defendant argues that plaintiff failed to exhaust his administrative remedies because he never filed a grievance regarding the alleged “assault, ” notwithstanding his prior knowledge and use of the grievance process. Defendant supports his argument with a declaration from Cheryl Parmiter, the IGP Supervisor at Auburn. (Parmiter Decl. ¶ 1) (Dkt. No. 36-3). IGP Supervisor Parmiter states that plaintiff successfully attended Auburn's orientation program, wherein inmates are introduced to grievance procedures and how to use them at Auburn, including how the grievance program may be accessed by inmates incarcerated in a Special Housing Unit (“SHU”). (Parmiter Decl. ¶¶ 6, 11 & Ex. A).

         IGP Supervisor Parmiter also states that she reviewed plaintiff's grievance files, and that plaintiff never filed a grievance related to the claim that he was assaulted by defendant Regner on August 18, 2016 at Auburn. (Parmiter Decl. ¶ 15). However, on August 25, 2016, plaintiff filed a grievance - AUB-69938-16 - in which he complained that his property was not given to him when he was brought to SHU on August 18, 2016, after defendant Regner issued the misbehavior report. (Parmiter Decl. ¶ 16 & Ex. D). A review of the grievance shows that it is coherent, detailed, and expresses great concern for his property. (Parmiter Decl. Ex. D). In fact, plaintiff went to great lengths to list each item of missing property, together with the cost of each item. (Ex. D at 1-3). Plaintiff also claimed that the officer who packed the property, C.O. Thomas, “purposely discarded everything that was of value to me.” (Id. at 4). There is no mention of the alleged assault or the incident which was the reason that plaintiff was brought to SHU on August 18, 2016. The IGRC investigated plaintiff's allegations and sent the findings to plaintiff on September 1, 2016. (Id. at 5-6).

         Defendant has also filed the declaration of Rachael Seguin, the Assistant Director of the IGP for the New York State Department of Corrections and Community Supervision (“DOCCS”). (Seguin Decl.) (Dkt. No. 36-6). Assistant Director Seguin is the custodian of the records maintained by the CORC. (Seguin Decl. ¶ 3). Her records reflect that plaintiff was incarcerated at Auburn from March 16, 2015 until September 22, 2016. (Seguin Decl. ¶ 14). Assistant Director Seguin's records show that, from 2015 until the date of Seguin's declaration, the plaintiff appealed a total of four grievances to the CORC, including two grievances that plaintiff filed at Auburn prior to the August 18, 2016 incident. (Seguin Decl. ¶ 14 & Ex. A).

         Assistant Director Seguin's Exhibit A shows that, on October 10, 2015, while incarcerated at Auburn, plaintiff filed a grievance complaining about disciplinary policies, and that on June 1, 2016, plaintiff filed a grievance complaining about a search and seizure. (Seguin Decl. Ex. A at 2). Each of these grievances was appealed to the CORC. On December 27, 2016, after plaintiff was moved to Southport Correctional Facility, he filed a grievance related to religion, and on September 26, 2017, plaintiff filed a grievance relating to “staff conduct.” (Id.) Each of these grievances was appealed to the CORC. However, there are no appeals of any grievances relating to the alleged assault by ...

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