692 F. App'x 668
2d Cir.2017Background
- Plaintiff Mark Gizewski, incarcerated at Five Points (May 2012–Jan 2014), suffers significant physical disabilities from in utero thalidomide exposure and requested multiple accommodation items (electric wheelchair, pressure-relief cushion, in-cell assistance, shower grab bars, grabber, shower brushes).
- Requests made in Feb–Apr 2013 were approved; in Aug/Sept 2013 most accommodations were substantially approved but an electric wheelchair was denied (prison found his non-electric chair adequate).
- Gizewski appealed administratively through the three-step inmate grievance process; his Superintendent appeal was denied and he appealed to the Central Office Review Committee, but the final determination was delayed (partly due to a clerical error) and not issued until about a year later.
- While his final administrative appeal was pending he was transferred to a medical unit and later released; he filed this federal suit while the appeal remained pending alleging ADA claims (denial of benefits, failure to accommodate, retaliation) against the Department and an Eighth Amendment § 1983 deliberate-indifference claim against Superintendent Sheahan and two John Doe defendants.
- The district court granted summary judgment dismissing the complaint, holding Gizewski failed to exhaust available administrative remedies under the PLRA, the ADA claims lacked merit (no triable issue showing accommodations were constitutionally inadequate), and Sheahan lacked demonstrated personal involvement in any constitutional violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gizewski exhausted administrative remedies under the PLRA before suing | He used the grievance process and the long delay (including clerical error) made remedies effectively unavailable | Remedies were available, he used them, but his final appeal was still pending when he filed suit, so he failed to exhaust | Court: Failed to exhaust; administrative remedies were available and suit was premature; eventual denial after suit does not cure failure to exhaust |
| Whether the ADA claims (failure to accommodate / denial of benefits) raise triable issues | Provided accommodations were deficient in form/placement (e.g., cushion, grabber, shower bars) and thus violated ADA | Defendants provided the requested accommodations; plaintiff points to no record evidence creating a genuine dispute that items were adequate | Court: Even if exhaustion excused, plaintiff failed to show a genuine issue of material fact on ADA merits |
| Whether plaintiff stated an Eighth Amendment deliberate-indifference claim against Sheahan (personal involvement) | Supervision liability or responsibility as superintendent suffices for § 1983 liability | Sheahan lacked demonstrated personal involvement in the alleged violations | Court: Plaintiff failed to show personal involvement by Sheahan; claim dismissed |
| Whether delay or clerical error made administrative remedies unavailable (excusing exhaustion) | Long delay and clerical error rendered remedies effectively unavailable (constructive denial) | Administrative process existed and plaintiff used it; delay does not automatically make remedies unavailable | Court: Plaintiff did not persuasively show remedies were unavailable; even assuming constructive denial, exhaustion would cover only issues raised in final appeal and those raised were not shown to have triable merit |
Key Cases Cited
- Ross v. Blake, 136 S. Ct. 1850 (2016) (administrative remedies are unavailable under PLRA when officers are unable/unwilling to provide relief, process is opaque, or administrators thwart use)
- Neal v. Goord, 267 F.3d 116 (2d Cir. 2001) (post-filing exhaustion does not cure failure to exhaust before suit)
- Young v. County of Fulton, 160 F.3d 899 (2d Cir. 1998) (standard of review for summary judgment; draw inferences for non-moving party)
- Porter v. Nussle, 534 U.S. 516 (2002) (summary of PLRA exhaustion principles)