Slip Opinion
N.D.N.Y.2019Background
- Pro se plaintiff Joshua Sheffer, an incarcerated person at Upstate Correctional Facility, alleges DOCCS staff failed to protect him from repeated sexual assaults by his bunkmate in September 2017 and filed suit under 42 U.S.C. § 1983.
- After initial screening, failure-to-protect claims proceeded against CO Bond, CO Fleury, Sgt. (Doe/Walantus), Rehab Counselor Luann Smith, Deputy Commissioner Martuscello, and Director of SHU Prack; some defendants later moved to dismiss or for summary judgment.
- Defendants sought summary judgment solely on PLRA exhaustion grounds, arguing the DOCCS PREA-related relaxed exhaustion rule (§701.3(i) of Directive 4040) does not apply to Sheffer’s failure-to-protect claim.
- Magistrate Judge Stewart recommended denying summary judgment (finding §701.3(i) applied because the failure-to-protect claim was necessarily intertwined with the sexual assaults), denying Smith’s motion to dismiss (personal involvement plausibly alleged), and granting dismissal of unopposed defendants.
- District Court reviewed objections de novo where made, adopted the R&R in full, denied defendants’ summary judgment motion, denied Smith’s 12(b)(6) motion, granted dismissal of Martuscello and Prack, and denied requests to depose plaintiff / hold a Messa evidentiary hearing without prejudice to renewal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sheffer exhausted administrative remedies under PLRA given DOCCS Directive 4040 §701.3(i) (PREA exception) | Sheffer filed PREA grievance and reported sexual abuse to staff; that exhausted remedies under §701.3(i) | §701.3(i) does not cover failure-to-protect claims because they are not necessarily intertwined with the sexual assaults; IGP treatment shows PREA portions were narrow | Court held §701.3(i) applies: failure-to-protect here is necessarily intertwined with the sexual assaults and Sheffer’s PREA report/grievance sufficed to exhaust |
| Whether factual finding that Sheffer told CO Bond he feared sexual assault is supported | Sheffer says he told Bond he ‘can’t live’ with bunkmate and feared assault; letters and grievance support fear of sexual abuse | Defendants say record lacks explicit statement that he feared sexual assault (only ‘assault’) and dispute Magistrate’s factual wording | Court inferred, liberally construing pro se filings, that communications about fear of assault encompassed fear of sexual assault; no contrary evidence submitted by defendants |
| Whether Smith is plausibly alleged to have been personally involved (Rule 12(b)(6)) | Sheffer alleges he told Smith he feared for his life/safety and sent letters; this supports deliberate indifference/personal involvement | Smith argues plaintiff never told her he feared sexual assault, did not place him with bunkmate, and no facts show Smith knew bunkmate was dangerous | Court denied dismissal: liberally construed allegations (in-person statements + letters) plausibly show Smith had notice and could be deliberately indifferent; personal involvement is a fact question |
| Whether defendants may depose plaintiff and obtain a Messa evidentiary hearing on exhaustion | Sheffer’s documented PREA report and IGP letter exhausted remedies; deposition/hearing unnecessary now | Defendants requested leave to depose confined plaintiff and a Messa hearing to resolve exhaustion facts | Court denied deposition and Messa hearing as unnecessary at this time but left defendants free to renew if they later produce evidence contesting PREA report documentation |
Key Cases Cited
- Ross v. Blake, 136 S. Ct. 1850 (exhaustion under PLRA is mandatory)
- Woodford v. Ngo, 548 U.S. 81 (exhaustion must be proper, follow agency rules)
- Messa v. Goord, 652 F.3d 305 (court, not jury, resolves factual disputes about exhaustion; Messa hearing procedure)
- Jones v. Bock, 549 U.S. 199 (exhaustion is an affirmative defense; plaintiffs need not name every defendant in grievances)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for Rule 12(b)(6))
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden on movant)
- Salahuddin v. Goord, 467 F.3d 263 (deliberate indifference standard for prison officials)
- Farrell v. Burke, 449 F.3d 470 (personal involvement prerequisite for §1983 damages)
- Bass v. Jackson, 790 F.2d 260 (requirement of a tangible connection between defendant's acts and plaintiff's injury)