McNab v. C.O. John Doe 1, 686 F. App'x 49

Plaintiff Radcliffe O’Brian McNab, a pro se state prisoner, sued under 42 U.S.C. § 1983 alleging a corrections officer sexually abused him, violating the Eighth Amendment.
The district court dismissed parts of his complaint sua sponte and adopted a magistrate judge’s report, later granting summary judgment to defendants for failure to exhaust administrative remedies under the PLRA.
McNab appealed the dismissal and the grant of summary judgment; the Second Circuit treated the appeal as encompassing prior orders.
At the pleading stage, the court acknowledged McNab’s allegations could plausibly state an Eighth Amendment claim under Crawford v. Cuomo (single sexual contact can violate the Eighth Amendment).
However, the court found McNab failed to complete the required grievance appeals after an informal grievance was rejected as "without merit," and he did not show that defendants’ conduct made administrative remedies unavailable.
The Second Circuit affirmed the district court’s judgment dismissing the complaint and granting summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether McNab pleaded an Eighth Amendment sexual-abuse claim	McNab alleged a single instance of sexual contact by a corrections officer that served no penological purpose	Defendants relied on precedent that single incidents may not suffice	Court: Under Crawford, McNab’s allegations were plausibly an Eighth Amendment claim at pleading stage
Whether McNab exhausted administrative remedies under the PLRA	McNab argued he initiated the grievance process and claimed intimidation by defendants	Defendants argued McNab failed to complete the grievance appeal procedure	Court: McNab failed to properly exhaust because he did not appeal the informal grievance rejection
Whether alleged intimidation excused failure to exhaust	McNab asserted defendants intimidated him, preventing exhaustion	Defendants denied any conduct that made remedies unavailable	Court: Alleged actions did not prevent filing or appeal; no evidence remedies were actually unavailable, so exhaustion not excused
Whether summary judgment for defendants was appropriate	McNab contended factual disputes existed and exhaustion was excused	Defendants moved for summary judgment based on undisputed failure to exhaust	Court: Affirmed summary judgment because no genuine issue that McNab failed to complete grievance process

Elliott v. City of Hartford, 823 F.3d 170 (2d Cir. 2016) (treating pro se appeal from case-closing order as appeal from prior orders absent prejudice)
Giano v. Goord, 250 F.3d 146 (2d Cir. 2001) (de novo review of sua sponte dismissals)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must permit reasonable inference of liability)
Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015) (single instance of sexual contact by an officer can violate the Eighth Amendment)
Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997) (earlier decision on single-incident sexual abuse)
Ross v. Blake, 136 S. Ct. 1850 (2016) (PLRA exhaustion mandatory unless remedies were actually unavailable)
Woodford v. Ngo, 548 U.S. 81 (2006) (exhaustion requires compliance with procedural rules)
Ruggiero v. Cnty. of Orange, 467 F.3d 170 (2d Cir. 2006) (failure to exhaust not excused absent affirmative acts preventing exhaustion)
Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016) (Ross frames exception inquiry as whether remedies were actually available)