LUCY AMADOR, BOBBIE KIDD, BETTE JEAN MCDONALD, JEANETTE PEREZ, Plаintiffs-Counter-Defendants, STACIE CALLOWAY, TONIE COGGINS, LATASHA DOCKERY, TANYA JONES, KRISTINA MUEHLEISEN, LAURA PULLEN, CORILYNN ROCK, DENISE SAFFIOTI, SHENYELL SMITH, HOPE SUSOH, NAKIA THOMPSON, Plaintiffs-Counter-Defendants-Appellants, STEPHANIE DAWSON, SHANTELLE SMITH, Plaintiffs-Appellants, v. ANGINELL ANDREWS, Superintendent, ROBERTA COWARD, DENNIS CROWLEY, ALEXANDREENA DIXON, ELAINE LORD, Superintendent, RONALD MOSCICKI, Superintendent, MELVIN WILLIAMS, Superintendent, DONALD WOLFF, DOCS Deputy Superintendent, TERRY BAXTER, DOCS Director of Personnel, RICHARD ROY, DOCS Inspector General, BARBARA D. LEONE, DOCS Director of the Sex Crimes Unit of the Inspector General‘s Office, PETER BROWN, DOCS Director of the Bureau of Labor Relations, GLENN S. GOORD, DOCS Commissioner, JAMES STONE, Office of Mental Health Commissioner, MICHAEL EVANS, DOCS Correction Officer, MICHAEL GALBREATH, SERGEANT SMITH, MARIO PIQUE, JEFFREY SHAWVER, ROBERT SMITH, OFFICER STERLING, DELROY THORPE, PETE ZAWISLAK, RICK LARUE, RICO MEYERS, FREDERICK BRENYAH, CHARLES DAVIS, Defendant-Cross-Defendants-Appellees, CLARENCE DAVIS, DOCS Correctional Officer, Defendant-Appellee, JOHN E. GILBERT III, Officer, Defendant-Counter-Claimant-Cross-Defendant-Appellee, CHRIS STERLING, Defendant-Counter-Defendant-Appellee, JAMES HUDSON, Cross-Claimant, DELROY THORPE, Department of Correctional Services, Cross-Defendant.
Docket No. 08-2079-pr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 19, 2011
August Term, 2008 (Argued: June 15, 2009)
Amador v. Superintendents of Dep‘t of Corr. Servs.
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B e f o r e: WINTER, CABRANES, and HALL, Circuit Judges.
Interlocutory appeal from a dismissal of Section 1983 claims by various present or former female inmates of New York state prisons, individually and on behalf of a class, for injunctive and declaratory relief, largely for protective measures against sexual abuse and harassment, and a dismissal of individual claims for damages entered by the United States District Court for the Southern District of New York (Kevin T. Duffy, Judge). We lack jurisdiction over the claims for damages but hold that the class claims for injunctive and declaratory relief are not moot because they fall within the exception for claims capable of repetition, yet evading review. We vacate the judgment of the district court in part and remand for further proceedings.
DORI LEWIS (Lisa A. Freeman, on the brief), Prisoners’ Rights Project Legal Aid Society, New York, New York, and ALISON M. MIKKOR (Maeve O‘Connor, John S. Craig, Donna Krouzman, Lauren Sypek on the
RICHARD O. JACKSON (Andrew M. Cuomo, Attorney General, Barbara D. Underwood, Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, on the brief), Office of the Attorney General, New York, New York, for Supervisory Appellees.
JOSEPH M. LATONA, Buffalo, New York for Appellee Charles Davis.
CHRISTOPHER KENNEDY (David W. Novak, on the brief), Hinman Straub, P.C., Albany, New York, for Appellees Michael Evans and Jeffrey Shawver.
LINDA M. CRONIN (Rocco G. Avallone, on the brief), Cronin & Byczek LLP, Lake Success, New York, for Appellees Rick Larue and Rico Meyers.
Hogan Willig and Diane R. Tiveron, of Counsel, Amherst, New York, for Appellee John E. Gilbert III.
Rachel Meeropol, Center for Constitutional Rights, New York, New York, and Giavanna Shay, Springfield, Massachusetts, for Amici Curiae The National Prison Project of the American Civil Liberties Union Foundation, National Prison Rape Elimination Commissioner, Professor of Law Brenda V. Smith, Stop Prisoner Rape, and Legal Momentum, in support of Appellants.
WINTER, Circuit Judge:
Thirteen present and former female inmates of various New York state prisons appeal from Judge Duffy‘s dismissal of their class action complaint. The complaint, brought under
We do not address appellants’ arguments with respect to its claims against the Commissioner of the Office of Mental Health (“OMH“). The supervisory appellees state, without contradiction, that the district court‘s decision could not have addrеssed the appellants’ claims against the OMH as neither their motion to dismiss nor their opposition to appellants’ motion to reconsider purported to address appellants’ claims against the OMH. Accordingly, our disposition of this appeal does not encompass this claim and is rendered without prejudice to either parties’ arguments with respect to that claim on remand.
a) The Complaint
Appellants’ complaint seeks redress as individuals and as a class for alleged sexual abuse and harassment in violation of rights secured by the First, Fourth, Eighth, and Fourteenth Amendments pursuant to
b) Procedural History
Each of the appellants was in DOCS custody when the complaint was filed on January 28, 2003. A motion for class certification was filed six months later, followed by an amended complaint adding the claims of two new inmates, Stephanie Dawson and Shantelle Smith. Shortly thereafter, appellees filed various motions to dismiss.
On September 13, 2005, the district court granted the motions in part, dismissing five plaintiffs’ injunctive claims on the ground that they lacked standing because they had been released from prison before joining the amended complaint. Two of these plaintiffs, Corilynn Rock and Laura Pullen, now appeal. The district court also converted defendants’ motion to dismiss to one for summary judgment on the limited issue of exhaustion and reserved judgment on the motion for class certification. See
On December 4, 2007, the district court granted the motion for summary judgment. See Amador v. Superintendents of Dep‘t of Corr. Servs., No. 03 Civ. 0650 (KTD)(GWG), 2007 WL 4326747 (S.D.N.Y. Dec. 4, 2007). It dismissed as moot the injunctive claims of Stephanie Dawson and Shantelle Smith because they had been released from prison while the motion for class certification was pending. The district court then dismissed for failure to exhaust, the claims of Stacie Calloway, Tonie Coggins, Latasha Dockery, Tanya Jones, Kristina Muhleisen, Denise Saffioti, Hope Susoh, and Nakia Thompson. Finally, the district court dismissed the injunctive claims of Shenyell Smith against the supervisory appellees on the ground that she failed to identify any defendant other than the officer who was alleged to have sexually assaulted her. Having dismissed all the claims against the supervisory appellees for mootness оr failure to exhaust, the district court concluded that class certification was not warranted. The district court dismissed all claims for damages save those of Shenyell Smith against Officer Delroy Thorpe. Id.
On plaintiffs’ motion for reconsideration, the district court amended its order without explanation, to, among other
This appeal followed.
DISCUSSION
We review a district court‘s grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006). Whether a plaintiff has exhausted administrative remedies under the Prison Litigation Reform Act,
a) Jurisdiction Over The Damages Claims
We have appellate jurisdiction over non-final orders of the district courts’ “granting, continuing, mоdifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”
Appellants ask that we exercise pendent jurisdiction to review the interlocutory orders dismissing some of their individual claims for damages. They argue that our review of the district court decision dismissing the injunctive claims entails resolution of the same issue as the dismissed damages claims: whether appellants satisfied the PLRA‘s exhaustion requirements. See, e.g., Lamar Adver. of Pa., LLC v. Town of Orchard Park, 356 F.3d 365, 371-72 (2d Cir. 2004); Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 576 (2d Cir. 2005).
“[W]here our jurisdiction is properly founded upon the district court‘s ruling on a preliminary injunction under
The PLRA provides in pertinent part:
No action shall be brought with respect to prison conditions under section 1983 of this title, 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.
The purpose of the PLRA is “to reduce the quantity and imрrove the quality of prisoner suits . . . [and to afford] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 524-25 (2002)) (modifications in original). Section 1997e(a) requires “proper exhaustion” -- that is, “using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis omitted). This entails both “complet[ing] the administrative review process in accordance with the applicable procedural rules,” Woodford, 548 U.S. at 88, and providing the “level of detail necessary in a grievance to comply with the grievance procedures.” Jones v. Bock, 549 U.S. 199, 218 (2007); see also Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). Exhaustion is mandatory -- unexhausted claims may not be pursued in federal
We turn now to the various written materials concerning New York‘s Inmate Grievance Procedure3 (“IGP“) and to various practices that have developed under it. We discuss the application of the procedure and practices to appellants infra.
The IGP defines a grievance as “a complaint about the substance or application of any written or unwritten policy, regulation, procedure or rule of the [DOCS] or any of its program units, or the lack of a policy, regulation, procedure or rule.” N.Y.C.R.R. § 701.2(a) (1994); cf. N.Y.C.R.R. § 701.2(a) (2006) (“[A] complaint, filed with an IGP clerk, about the substance or application of any written or unwritten policy, regulation, procedure or rule . . . or the lack [thereof]“). The pertinent IGP provides a three step process for the handling of such complaints.
This scheme specifically contemplates challenges to DOCS policies and procedures. For example, when a grievance involves “changes in policy,” the IGRC is required to submit a recommendation to the superintendent, which, if accepted, can be appealed. N.Y.C.R.R. § 701.7(a)(4)(vi) (1998) (now codified as amended and renumbered at N.Y.C.R.R. § 701.5(b)(3)(ii) (2007)). Of particular importance to the proceeding before us is the provision that only those inmates who are affected by a policy or
In addition, grievances alleging employee harassment, that is “employee misconduct meant to annoy, intimidate or harm an inmate,” see N.Y.C.R.R. § 701.11(a) (1994) (now codified and renumbered at N.Y.C.R.R. § 701.2(e) (2006)), can be processed through an expedited procedure created for the review of such grievances. N.Y.C.R.R. § 701.11(b) (1994) (now codified at N.Y.C.R.R. § 701.8(b)-(h) (2006)); Directive No. 4040, VIII. Pursuant to this expedited procedure, an inmate can report an alleged incident of harassment to the employee‘s supervisor. Such a report does not, however, “preclude submission of a formal grievancе.” N.Y.C.R.R. § 701.11(b)(1) (1994) (now codified as amended and renumbered at N.Y.C.R.R. § 701.8(a) (2006)); Directive No. 4040, VIII(A). Any allegation of employee misconduct or harassment is to be given a grievance number, recorded with all other grievances in the grievance log and forwarded to the superintendent for his consideration. N.Y.C.R.R. § 701.11(b)(2) (1994) (now codified as amended and renumbered at N.Y.C.R.R. § 701.8(b) (2006)); Directive No. 4040,
The class action complaint contains allegations about the actual practices followed under the IGP. Upon arrival at DOCS, it is alleged, female prisoners receive an orientation to DOCS policies and practices. The orientation encourages inmates to lodge sexual misconduct complaints with any official, including
According to appellants, inmates at DOCS facilities are provided with various materials regarding DOCS policies and procedures with respect to sexual abuse complaints.4 For example, at Bedford Hills, the intake facility for all female inmates, see DOCS Directive No. 0046, the Orientation Manual urges female inmates to “report [sexual abuse] . . . to a
The Bedford Hills Orientation Manual also describes the IGP, explaining that a “grievance is a complaint about the substance or application of any written or unwritten policy, regulation, procedure, or rule of the facility or department, or the lack of a policy or procedure.” Bedford Hills Correctional Facility Inmate Orientation Manual 36 (1999); see also Bedford Hills Correctional Facility Inmate Orientation Manual 41 (2000);
On this record, it is clear that, under DOCS policies and procedures, an IG investigation of alleged acts of sexual abuse is an integral part of the internal grievance procedure. The record contains testimony and email correspondence indicating that DOCS instructs its staff not to conduct any investigation into sexual abuse and that the grievance procеdure operates only as a pass-through to the Sex Crimes Unit. Indeed, women prisoners who did pursue relief through the IGP were told that their complaints had been forwarded to the IG for investigation and appropriate action. All thirteen appellants had their allegations of sexual misconduct investigated by the IG, no matter how initiated.5
It is clear, therefore, that the first step in the grievance procedure for an inmate alleging sexual abuse is an IG investigation, whether or not a request for policy/procedure reform is included. Such allegations, when presented to a
The grievance procedures are further complicated when challengеs to DOCS policies concerning sexual misconduct are made. As noted, the regulations governing the IGP specifically contemplate its use to pursue challenges to existing policies as well as challenges that a policy should be created where one does not exist. See N.Y.C.R.R. § 701.2(a) (defining grievance as “a complaint about the substance or application of any written or unwritten policy . . . or the lack of a policy“). As noted, appellants’ complaint asserts just such a challenge.
However, an inmate may not challenge a policy, or lack thereof, without a showing of concrete injury, N.Y.C.R.R. § 701.3(b), in this case an act of sexual abuse. Three appellants filed such grievances and appealed through all levels of the IGP procedure: Shenyell Smith, Stephanie Dawson, and Shantelle Smith. All three had their grievances investigated by the IG. When the allegation оf an act of abuse is combined with a claim for reform of policies and the abuse determination is unfavorable to the inmate, both claims can be pursued on appeal from the IG or superintendent to CORC. But, it appears on this record that
c) Mootness of the Injunctive Claims
Of course, a class action cannot be sustained without a named plaintiff who has standing. Kendall v. Emps. Ret. Plan of Avon Prods., 561 F.3d 112, 118 (2d Cir. 2009) (“In a class action, once standing is established for a named plaintiff, standing is established for the entire class.“) The district court held that the claims of those appellants who have been released are moot and that the relation-back doctrine does not preserve those claims for judicial review. Because the claims of all plaintiffs were then dismissed for either mootness or a failure to exhaust, the district court stated “[t]here is no need to grant Plaintiffs’ motion for class certification, which is hereby denied.” Amador, 2007 WL 4326747 at *9.
We conclude that the relation-back doctrine applies to the claims of the plaintiffs who have been released and preserves their claims for adjudication for purposes of a class action.
The relation-back doctrine, however, has unique application in the class action context, preserving the claims of some named plaintiffs for class certification purposes that might well be moot if asserted only as individual claims. For example, in Gerstein v. Pugh, a class challenged Florida‘s practice of pretrial detention without a probable cause hearing. 420 U.S. 103 (1975). Although the named class representatives had been convicted after the district court‘s certification of the class and before the court was able to pass on the claims, the Court
In both Sosna and Gerstein, the mootness of the named representative‘s claim arose after certification of a class. Each decision noted that the usual case required a live controversy at the time of the filing of the complaint and the class certification. Sosna, 419 U.S. at 398, 402; Gerstein, 420 U.S. at 110 n.11. Sosna, however, recognized that in certain cases, the claims of the named plaintiffs might become moot before the district court had ruled on a certification motion: “In such instancеs, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.” 419 U.S. at 402 n.11.
We have also applied the relation-back doctrine to class claims of racial discrimination and segregation in public housing in New York by low-income minority individuals. Comer, 37 F.3d at 797-801. We held that, because of the particular combination of a highly fluid public housing population, whose claims were “acutely susceptible to mootness,” and a two-year delay before the district court denied class certification, the class certification, which was granted on appeal, related back to the complaint. Id.
Whether claims are inherently transitory is an inquiry that must be made with reference to the claims of the class as a whole as opposed to any one individual claim for relief. See U.S. Parole Comm‘n v. Geraghty, 445 U.S. 388, 399-400 (1980);
We have previously observed that “a significant characteristic” of claims subject to the “capable of repetition, yet evading review” exception is that the mootness resulted from “a factor closely related to the essence of the claim.” Swan v. Stoneman, 635 F.2d 97, 102 n.6 (2d Cir. 1980). As such, these claims “involve[] issues that [are] likely to evade review, no matter who prosecute[s] them.” Id. Although a close issue, we conclude that this exception applies.
This action is brought on behalf of all women inmates in DOCS custody, alleging constitutionally defective policies and procedures in failing to protect female inmates from sexual harassment, abuse, and assault by male staff. While the entire class may be exposed to the risks caused by the constitutiоnally defective policies and procedures alleged, as noted, the grievance procedure may be triggered only by an inmate who has been a victim of sexual misconduct. Because the number of
Accordingly, we сonclude that it was error for the district court to dismiss as moot the claims of the individual plaintiffs who had been released from prison after the filing of the amended complaint. See Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir. 1987) (“It would seem to us that the principle espoused in Geraghty is applicable whether the particular claim of the proposed class plaintiff is resolved while a class certification motion is pending in the district court (as in the present case)
d) Exhaustion by Appellants
Having held that the relation-back theory applies, we now address whether any of the individual plaintiffs have properly exhausted internal prison remedies.
Of the thirteen appellants, nine made internal complaints, investigated by the IG, that sought redress only for the alleged actions of the particular officer and did not seek a change in policies or procedures.9 These nine have, therefore, not exhausted their internal remedies with regard to the complaint in the present action.
Another appellant, Stacie Calloway, complained about a
In Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), we established a three-part inquiry to guide the analysis of whether a plaintiff has met the requirements of
Subsequent decisions have questioned the continued viability of this framework following the Supreme Court‘s decision in Woodford v. Ngo, 548 U.S. 81 (2006). In Woodford the Court addressed whether “a prisoner can satisfy the [PLRA‘s] exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 83-84. The Court resolved the question in the negative, explaining that PLRA requires “proper exhaustion,” that is “using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Id. at 90 (emphasis omitted). We have questioned whether, in light of Woodford, the doctrines of estoppel and special circumstances survived. See Macias v. Zenk, 495 F.3d 37, 43 n.1 (2d Cir. 2007) (“[W]e need not decide what effect Woodford has on Hemphill‘s holding that where administrative procedures are confusing a reasonable interpretation of prison grievance regulations may justify an inmate‘s failure to follow procedural rules to the letter.“) (internal quotations omitted); Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (noting that “[w]e need not determine what effect Woodford has on our case law in this area” because the prisoner‘s estoppel and special circumstances arguments nonetheless failed).
We too decline to reach the issue, concluding that, even under pre-Woodford caselaw, Calloway has failed to establish that defendants are estopped from raising exhaustion as a defense or that special circumstances excuse her failure to exhaust.
A prisoner may invoke the doctrine of estoppel when “defendants took affirmative action to prevent him from availing himself of grievance procedures.” Ruggiero, 467 F.3d at 178. Prior cases have held that verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers constitute such affirmative action. See, e.g., Hemphill, 380 F.3d at 688; Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir. 2004). No such conduct prevented Calloway from appealing to CORC. Nor were there special circumstances relieving Calloway of the obligation to exhaust the IGP procedures. It is clear that challenges to DOCS policies or lack thereof, the subject matter of this lawsuit -- where coupled with a claim of sexual abuse -- must be pursued through the CORC level. While this is a somewhat complex scheme, it hardly
Two other appellants, whose complaints were dismissed as moot but to which we have applied the relation-back doctrine, Shantelle Smith and Sheynell Smith, alleged both assaults and a failure to protect and completed the grievance procedure. Shenyell Smith wrote a letter addressed “To Whom It May Concern” that was logged as a grievance on January 3, 2002. The lеtter alleged that she had been harassed for a period of three months, retaliated against, and sexually assaulted by an officer. With respect to the relief sought, she stated, “This officer is still working on this unit and its not right. I feel that [the officer] should seek counseling [and be] removed . . . , fired and any other [precaution] that is there.” The superintendent responded that “[a] significant portion of this complaint has to do with issues turned over to the Inspector General‘s Office for investigation in accordance with Departmental procedures. Grievance denied in that no basis was found for your allegations.” She appealed the grievance. On February 20, 2002, CORC denied it, stating, “Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby denied. CORC upholds the determination of the Superintendent for the reasons stated.”
Each of these inmates completed the IGP procedure. The issue is whether a claim of a failure to protect is sufficient
A fourth appellant, Stephanie Dawson, clearly alleged an act of sexual misconduct, clearly sought systemic reform along the lines of the class action complaint, and clearly exhausted the IGP procedure. Her claim was dismissed as moot by the district court but is now revived by application of the relation-back doctrine.
Dawson filed her grievance with the IGRC on February 25, 2003. She alleged that she was raped by an officer at the prison
The parties agree that Dawson‘s grievance was both procedurally and substantively exhausted. Because Dawson‘s role as plaintiff is not mooted by her release for reasons stated supra, she is entitled to pursue a role as class representative.
Our conclusion that the district court erred when it failed to relate those claims it deemed moot back to the filing of the complaint does not automatically establish that the three
CONCLUSION
We dismiss the damages claims for lack of jurisdiction. We vacate the judgment of the district court with respect to the claims designated in this opinion, and remand for further proceedings consistent with the opinion.