Calloway v. GrimshawCalloway v. Grimshaw
- Reporters:
- ,
- Before:
- George H. Lowe
This pro se prisoner civil rights action, commenced pursuant to
Currently pending before the Court is Defendant‘s motion for summary judgment pursuant to
A. Summary of the Amended Complaint1
Plaintiff alleges the following: On July 4, 2008, at Clinton Correctional Facility, he experienced a “psychotic episode” after he was denied his medication. Dkt. No. 18 at ¶ 6. Defendant Grimshaw and three unknown correctional officers came to Plaintiff‘s cell. Id. at ¶ 7. Two officers pinned Plaintiff‘s arms to his side while Defendant Grimshaw punched him in the face and head and “rammed” Plaintiff‘s head into iron bars two or three times. Id. at ¶¶ 7-8. Plaintiff then was beaten by other unknown officers before he was taken to a holding cell in the Mental Health Satellite Unit. Id. at ¶ 7. He received medical attention. Id. He sustained, inter alia, a wound above his right eye, bruises, and scrapes. Id. He alleges that Defendant Grimshaw utilized excessive force, committed assault and battery, subjected Plaintiff to intentional infliction of emotional distress, and denied immediate emergency aid to Plaintiff. Id. at ¶¶ 8-13.
B. Summary of Grounds in Support of Defendant Grimshaw‘s Motion
Defendant argues that summary judgment should be granted because Plaintiff failed to exhaust administrative remedies prior to commencing this action. Dkt. No. 30. Defendant asserts that (1) Plaintiff did not avail himself of available administrative remedies; (2) Defendant should not be estopped from raising the exhaustion defense; and (3) no special circumstances were alleged that would excuse Plaintiff‘s non-compliance with the exhaustion requirement. Id.
C. Summary of Plaintiff‘s Letter
The only submission filed by Plaintiff following the filing of the motion was a one-page letter. Dkt. No. 31. In the letter, Plaintiff states, inter alia, that he is trying to find an attorney, that
II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Under
The nonmoving party must do more than “rest upon the mere allegations . . . of the [plaintiff‘s] pleading” or “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). Rather, a dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material2 fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008).
Where a plaintiff has failed to properly respond to a defendant‘s Statement of Material Facts (its “Rule 7.1 Statement“), the facts as set forth in that Rule 7.1 Statement will be accepted as true to the extent that (1) those facts are supported by the evidence in the record, and (2) the non-moving party, if he is proceeding pro se, has been specifically advised of the potential consequences of failing to respond to the movant‘s motion for summary judgment. See N.D.N.Y. L.R. 7.1(a)(3); Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 243 (2d Cir. 2004); Champion, 76 F.3d at 486.
Similarly, where a plaintiff has failed to respond to a defendant‘s properly filed and facially meritorious memorandum of law, the plaintiff is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3) of the Local Rules of Practice for this Court. Implied in this standard is the fact that, where a non-movant fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute, even if that non-movant is proceeding pro se. See Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002). This is because even pro se plaintiffs must
III. ANALYSIS
A. Exhaustion Requirement
Under the Prison Litigation Reform Act, (“PLRA“), inmates must exhaust all available administrative remedies before bringing a federal action.
In Jones v. Bock, the Supreme Court held that in order to properly exhaust administrative
The Department of Correctional Services (“DOCS“) maintains a three-tiered administrative review and appeals system for prisoner grievances. See
The Second Circuit has held that a three-part inquiry is appropriate where a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. First, “the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact ‘available’ to the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted). Second, if those remedies were available, “the court should . . . inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it . . . or whether the defendants’ own actions inhibiting the [prisoner‘s] exhaustion of remedies may estop one or
Here, in the amended complaint, Plaintiff indicated that he submitted a grievance. Dkt. No. 18 at ¶ 4(b). However, when asked to state the “final result” of that grievance, he stated that he was “surrounded by several Correctional Officer[s] and an [u]nknown [s]ergeant in D Block in the transitional Inmate Care Program” and was told that if he “didn‘t sign off on the grievance, they would set [him] up by placing a weapon in [his] cell and [] they could make it hard for [him] if [he] was transferred.” Id.
Regarding the first inquiry set forth in Hemphill, I note that an administrative remedy was available to Plaintiff. Plaintiff expressly states that there was a prisoner grievance procedure at Clinton Correctional Facility. Dkt. No. 18 at ¶ 4. Thus, an administrative remedy was available to Plaintiff.
Regarding the second inquiry set forth in Hemphill, the court is required to determine if Defendant may have forfeited the affirmative defense by failing to raise or preserve it or if Defendant took some affirmative action to prevent Plaintiff from using the grievance procedure, such as beating, denying grievance forms and writing implements, or threatening retaliation. Cisson v. Middaugh, No. 9:09-CV-260, 2011 WL 2579800, at *3 (N.D.N.Y. Feb. 2, 2011) (citing Ruggiero
First, Defendant did not forfeit the administrative defense of non-exhaustion by failing to raise or preserve it. Defendant‘s Answer timely asserted this affirmative defense. Dkt. No. 16 at ¶ 11.
Second, regarding Plaintiff‘s vague assertion that several correctional officers and an unknown sergeant threatened him to “sign off” on his grievance, Plaintiff provides only the most conclusory allegation on this topic. He provides no information as to the identity of these non defendants and when the alleged interaction took place.
“Notwithstanding the deference to which a pro se litigant is entitled, as well as the deference accorded to a non-movant on a summary judgment motion, [Plaintiff] must produce specific facts to rebut the movant‘s showing and to establish that there are material issues of fact requiring a trial.” See Bennett v. James, No. 08 Civ. 9979, 737 F. Supp. 2d 219, 226 (S.D.N.Y. Sept. 16, 2010) (quotation marks omitted) (citing Almanzar v. Newland, No. 08 Civ. 8612, 2010 WL 1379739, at *6 (S.D.N.Y. Mar. 26, 2010) (citation and internal quotations omitted) (finding plaintiff‘s “vague allegations” insufficient to demonstrate his efforts to exhaust); Winston v. Woodward, No. 05 Civ. 3385, 2008 WL 2263191, at *9 (S.D.N.Y. May 30, 2008) (allegations of threats and harassment that “stand alone and unsupported” insufficient to defeat summary judgment on question of exhaustion) (quoting Veloz, 339 F. Supp. 2d at 516); Veloz, 339 F. Supp. 2d at 516 (dismissing suit for failure to exhaust where plaintiff “offers no evidence that any particular officer thwarted his attempts to file“)).
Here, Plaintiff does not provide the Court with any evidence to support a finding that
Moreover, as pointed out by Defendant, Plaintiff made no mention of being surrounded and threatened during his deposition. Dkt. No. 30-10 at 8-9 (citing Dep. Tr. (Dkt. No. 30-8 at 43-54)).
Regarding the third inquiry set forth in Hemphill, when a prisoner plausibly alleges special circumstances that caused the prisoner‘s failure to comply with the grievance procedures, the court may waive the exhaustion requirement. See, e.g., Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006). “The special circumstances inquiry ‘must be determined by looking at the circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way.‘” Jones v. Fischer, No. 07 Civ. 7589, 2008 WL 3174510, at *4 (S.D.N.Y. 2008) (quoting Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004)). “Findings of special circumstances have been primarily established where plaintiffs acted pursuant to reasonable interpretations of the regulations, thus preventing exhaustion.” Winston, 2008 WL 2263191, at *10.
Here, Plaintiff has alleged no special circumstances that caused his failure to comply with the grievance procedures. “Indeed, ‘absent an allegation by the inmate that his failure to exhaust was based on a reasonable, but erroneous interpretation of prison regulations, the special circumstances exception is generally inapplicable.’ ” Almanzar, 2010 WL 1379739, at *6 (quoting McDowall v. Metropolitan Corr. Ctr., No. 08-Civ-8329, 2010 WL 64877, at *7 n.4 (S.D.N.Y. Feb. 22, 2010)).
ACCORDINGLY, it is
RECOMMENDED that Defendant‘s motion for summary judgment (Dkt. No. 30) be GRANTED; and it is further
ORDERED, that the Clerk serve copies of the electronically-available-only decisions cited herein on Plaintiff.
Pursuant to
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989));
Syracuse, New York
George H. Lowe
United States Magistrate Judge