Carleton v. AnnucciCarleton v. Annucci
- Reporters:
- ,
- Before:
- Thrse Wiley Dancks
WILLIAM C. CARLETON
Plaintiff pro se
13461 Allis Road
Albion, New York 14411
BARBARA D. UNDERWOOD, ESQ.
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
OF COUNSEL:
OMAR J. SIDDIQI, ESQ.
Assistant Attorney General
ORDER AND REPORT- RECOMMENDATION
I. INTRODUCTION
Plaintiff William C. Carleton has commenced this pro se civil rights action under
Defendants Leddick, Cook, and Annucci now move for summary judgment pursuant to
II. FACTUAL BACKGROUND
A. Inmate Attacks on Plaintiff on December 24 and 25, 2014
On December 24, 2014, two weeks after he had arrived at Marcy, Plaintiff was jumped by
After hearing someone had been jumped on the walkway, corrections personnel began a house-to-house search to locate the inmate who had been jumped. Id. They saw gravel and pebbles embedded in Plaintiff‘s hands and asked him why he had not mentioned anything about being jumped on the walkway. Id. Plaintiff stated he did not want any more problems for himself, and based on what he had seen at Marcy he had put in a letter to be moved to another facility. Id. Plaintiff was taken to be checked out by the nurse and then questioned by Leddick. (Dkt. No. 1 at 5.) According to Plaintiff, he told Leddick he was not safe in Marcy, and Leddick told Plaintiff to “suck it up and take it like a man.” Id.
When Leddick told Plaintiff he was being moved to housing unit C-2, Plaintiff told Leddick he would not be safe there, and there would be problems that night because some of the inmates who had jumped him as well as gang related inmates were in that housing unit, and Plaintiff or someone else was going to get hurt.2 (Dkt. Nos. 1 at 5; 27-1 at 26.) Plaintiff was
At approximately 12:05am on December 25, 2014, a number of inmates, including inmate Cecchini who subsequently admitted to the assault, began kicking and stomping Plaintiff as he slept, smashing his face, with Plaintiff suffering multiple facial injuries. (Dkt. Nos. 1 at 6; 27-3; 28-1 at 27-28.) According to Plaintiff, Defendant John Doe, a young corrections officer on duty in the housing until was not at his post in the housing unit at the time of the assault on Plaintiff because he was in housing unit C-1 talking to another corrections officer. (Dkt. No. 1 at 6.) Plaintiff was taken to the infirmary and then sent to St. Elizabeth Hospital where it was determined that the damage to Plaintiff‘s face was sufficiently severe that he should be transferred to Upstate University Hospital in Syracuse, New York for treatment. (Dkt. Nos. 27-1 at 29-30; 27-3.) Imaging done at Upstate revealed injuries to the left side of Plaintiff‘s face including a minimally displaced left ZMC fracture, minimally displaced left LeFort I fracture, Right Pterygoid plate fracture, left medial orbital wall fractures, and significant overlying soft tissue swelling on the left. (Dkt. No. 1-1 at 11.)
After the assault, Leddick recommended Plaintiff be placed in involuntary protective custody and the placement was authorized by Cook. (Dkt. No. 27-4 at 2.) After release from Upstate, Plaintiff was taken to the hospital boxing unit at Midstate Correctional Facility for three or four weeks and then sent to the Special Housing Unit (“SHU“) in Marcy and subsequently to the SHU in Washington Correctional Facility (“Washington“) where he was held in protective custody. (Dkt. No. 27-1 at 31-32.)
Plaintiff testified at his deposition that he has been legally blind his entire life. (Dkt. No. 27-1 at 33.) According to Plaintiff, he has Buri Von Drusens disease, where the lens in the optic part of the eye dis-shapens or cracks or tears, which reduces and ultimately stops vision. Id. at 34. Plaintiff is totally blind in his left eye and has tunnel 20/400 vision in his right eye. Id. Plaintiff testified at his deposition that his vision cannot be improved by wearing glasses. Id. Although Defendants have described Plaintiff‘s statements regarding his vision as conclusory, with no supporting evidence, the review of systems in the Upstate medical records annexed to Plaintiff‘s complaint state that Plaintiff has “congenital blindness in left eye,” and the report on Plaintiff‘s ophthalmology consult indicates that Plaintiff reported his legal blindness and “tunnel vision” and family history of drusen to the examining ophthalmologist. (Dkt. No. 1-1 at 5, 12.) The records of Plaintiff‘s examination list Plaintiff‘s visual acuity for his right eye as 20/400 PH NI, with a visual field “restriction in all quadrants with central island of vision.” Id. at 14. The records for Plaintiff‘s left eye, which was found to have congenital blindness, list his visual acuity as LP, which stands for “light perception“; the ability to distinguish light from dark.3 Id. The report on the dilated fundus examination reveals “disc drusen” in both eyes. Id. at 15.
Plaintiff has also alleged he has dyslexia and claims that DOCCS should have accommodated both his vision impairment and dyslexia. (Dkt. No. 1 at 12.)
III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. 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). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (“It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.“) (citation and internal quotation marks omitted). A plaintiff‘s verified complaint is to be treated as an affidavit.4 Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (“A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions “[t]he mere existence of a scintilla of evidence in support of the plaintiff‘s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” “To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation.” Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). “At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). “[T]o satisfy
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to “read [the pro se party‘s] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, “a pro se party‘s ‘bald assertion,’ unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999)5555 (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
IV. PLAINTIFF‘S FAILURE TO RESPOND
Plaintiff‘s failure to oppose Defendants’ summary judgment motion does not mean the motion is to be granted automatically. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (citations and internal quotation marks omitted). An unopposed motion for summary judgment may be granted “only if the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law.” Champion, 76 F.3d at 486; see also Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (where “the nonmoving party ‘chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party‘s submissions to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.‘“)
Where, as in this case, a party has failed to respond to the movant‘s statement of material facts as required by L.R. 7.1(a)(3), the L.R. provides that facts in the movant‘s statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion.6 Champion, 76 F.3d at 486. In light of Plaintiff‘s failure to
Although this Circuit adheres to the view that nothing in
A. Exhaustion of Administrative Remedies on Plaintiff‘s Eighth Amendment Failure to Protect Claims Against Leddick and Cook and Plaintiff‘s ADA and Rehabilitation Act Claims
Defendants Leddick and Cook seek summary judgment on Plaintiff‘s Eight Amendment failure to protect claims on the grounds that Plaintiff failed to exhaust his administrative remedies under the DOCCS Inmate Grievance Program (“IGP“). Annucci seeks summary judgment on Plaintiff‘s ADA and Rehabilitation Act claims for failure to exhaust.
1. Legal Standard for Exhaustion for § 1983 Claims
Under the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
The PLRA requires “proper exhaustion,” which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates “using all steps that the [government] agency holds out, and doing so properly“) (internal quotations omitted).
First, an inmate must file a complaint with the facility IGP clerk within twenty-one days of the alleged occurrence.
Second, a grievant may appeal the IGRC‘s decision to the facility superintendent within seven calendar days of receipt of the IGRC‘s written decision.
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent‘s written decision.
There are special procedures that may be used when, as in this case, the relevant grievances are code 49 involving staff misconduct.
As set forth above, at each step of the IGP, a decision must be rendered within a specified time period. “Where the IGRC and/or superintendent do not timely respond, an inmate must appeal ‘to the next step,‘” assuming there is another step in the IGP. Eleby v. Smith, No. 9:15-CV-0281 (TJM/DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017) (quoting
Generally, if a plaintiff fails to follow each of the required steps of the IGP, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (“[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits.“) (internal quotations and citations omitted)).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. More specifically,
The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859. “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Finally, an administrative remedy is not “available” when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.
In Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that, “the three circumstances discussed in Ross do not appear to be exhaustive[.]” The illustrations of unavailability in Ross nonetheless guide the Court‘s inquiry. See Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
Because non-exhaustion is an affirmative defense, defendants bear the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216; Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). Plaintiff must then establish that the IGP grievance procedure was unavailable to him under Ross. Jones, 549 U.S. at 216.
Erin Pfendler (“Pfendler“), DOCCS IGP supervisor at Marcy, submitted a declaration in which she states that Marcy retains all grievance related documents for a period of four years and has on file documents from January 1, 2014, to the present. (Dkt. No. 30 at ¶¶ 1, 14.7) Pfendler conducted a search of the IGP files at Marcy for any grievance filed by Plaintiff regarding Leddick and Cook‘s failure to protect him in connection with the December 25, 2014, assault. Id. at ¶ 21. Pfendler‘s search confirmed that Plaintiff had not filed any grievance related to the failure to protect claim against Leddick and Cook, nor had he filed any grievances while at Marcy. Id. at ¶¶ 20, 21.
Rachel Seguin, Assistant Director of the DOCCS IGP, states in her declaration that she is Assistant Director of the DOCCS IGP and is custodian of records maintained by CORC. (Dkt. No. 29 at ¶¶ 1, 4.) On June 19, 2018, Seguin conducted a search for appeals received by CORC from Plaintiff and discovered that CORC had no record of receiving any appeals of facility-level grievances from Plaintiff during his entire period of incarceration. Id. at ¶¶ 9-11. Moreover, CORC has no record of receiving any correspondence from Plaintiff between 2010 and 2017 regarding any grievance related matters. Id. at ¶ 12.
The Court finds that Leddick and Cook have satisfied their burden of showing that Plaintiff failed to exhaust his administrative remedies under the IGP with regard to his Eighth Amendment failure to protect claim against them. Moreover, Plaintiff has not claimed, nor has he submitted any evidence that the IGP was not available to him or that he was in any way
Based on the foregoing, the Court recommends that Defendants Leddick and Cook be granted summary judgment on the ground that Plaintiff has failed to exhaust his administrative remedies with regard to his Eighth Amendment failure to protect claim against the two Defendants.8
3. ADA and Rehabilitation Act Claims Against Annucci in his Official Capacity
Plaintiff alleges in his complaint that “because of his crime and conviction, which is frowned upon by the general inmate population, and with plaintiff‘s disabilities with reading, writing, comprehending, dyslexic and blind in one eye and [20/400] tunnel vision in the other that the NYDOCCS should have had accommodation that would adequately assist the plaintiff in his disabilities. . . .” (Dkt. No. 1 at 12.) He has asserted claims for violation of the ADA and Rehabilitation Act based largely upon that allegation. Id. at 14. Defendants argue that Plaintiff
Claims under the ADA and Rehabilitation Act are subject to the PLRA‘s exhaustion requirements. See Colon v. New York State Department of Corrections and Community Supervision, No. 15 Civ. 7432 (NSR), 2017 WL 4157372, at *4 (S.D.N.Y. Sept. 15, 2017); Carlson v. Parry, No. 06-CV-6621P, 2012 WL 1067866, at *12 (W.D.N.Y. Mar. 29, 2012) (under the PLRA, ADA and Rehabilitation Act claims must be exhausted prior to raising them in federal court); see also O‘Guinn v. Lovelock Corr. Center, 502 F.3d 1056, 1061-62 (9th Cir. 2007) (The ADA and Rehabilitation Act are subject to the exhaustion requirements of the PLRA).
Pfendler has established that Plaintiff did not file a grievance for violation of his rights under the ADA and Rehabilitation Act while he was at Marcy. (Dkt. No. 30 at ¶¶ 19-21.) Although Plaintiff‘s complaint might be liberally construed to allege violations of the ADA and Rehabilitation Act during his incarceration at Washington, Defendants have not submitted evidence with regard to whether Plaintiff filed a grievance at Washington. However, Sequin has established in her declaration that CORC has no record of receiving any appeal from Plaintiff of a facility level grievance during his entire period of incarceration. (Dkt. No. 29 at ¶ 11.) Therefore, the Court finds that Defendants have satisfied their burden of establishing that Plaintiff failed to exhaust his administrative remedies under the DOCCS IGP before commencing this action and recommends that Defendant Annucci be granted summary judgment on Plaintiff‘s ADA and Rehabilitation claims for failure to exhaust administrative remedies under the DOCCS IGP.
Dismissal without prejudice on a failure to exhaust administrative remedies grant of summary judgment is appropriate when “a prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit.” Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)). Conversely, dismissal with prejudice is appropriate “where a plaintiff is effectively barred from administrative exhaustion.” McCoy v. Goord, 255 F. Supp. 2d 233, 252 (S.D.N.Y. 2003); see also Berry, 366 F.3d at 88. Here it is impossible for Plaintiff to exhaust his administrative remedies under the DOCCS IGP, as he was required to file his grievances regarding the Eighth Amendment failure to protect against Leddick and Cook, and violation of the ADA and Rehabilitation Act against Annucci in his official capacity with the facility IGP clerk within twenty-one days of the alleged occurrence. See
B. Prima Facie Claim under the ADA or Rehabilitation Act
Defendant Annucci also seeks summary judgment on the grounds that Plaintiff cannot establish a prima facie claim for violation of the ADA and Rehabilitation Act. Because the Court is recommending summary judgment with prejudice in Defendants’ favor on failure to exhaust administrative remedies grounds, the Court finds it unnecessary to address Defendants’ motion for summary judgment in Annucci‘s favor on the ground that Plaintiff cannot state a prima facie claim.
RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 26) be GRANTED for failure to exhaust administrative remedies, and that the action be DISMISSED with prejudice against Defendants Leddick, Cook, and Annucci; and it is further
RECOMMENDED that the action be sua sponte dismissed with prejudice against Defendant John Doe for failure to exhaust administrative remedies; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to
Dated: November 21, 2018
Syracuse, New York
Therese Wiley Dancks
United States Magistrate Judge