Decolines v. HollenbeckDecolines v. Hollenbeck
- Reporters:
- ,
- Before:
- Mae A. D'Agostino
DECISION AND ORDER
Plaintiff Clive Decolines (“Plaintiff“) commenced this action pro se on December 7, 2020, against Defendants D. Hollenbeck, DA Hallock, JH Anctil, BJ Alvoie, and KD St. Mary (“Defendants“) and, pursuant to a Decision and Order from this Court issued on January 7, 2021, two of Plaintiff‘s claims survived. See Dkt. Nos. 1, 7. On March 22, 2021, Defendants moved for summary judgment on the remaining two claims, arguing that they should be dismissed because Plaintiff failed to exhaust administrative remedies prior to commencing this action. See Dkt. No.
When a party files specific objections to a magistrate judge‘s report-recommendation, the district court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”
A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted); see also Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When analyzing a summary judgment motion, the court “‘cannot try issues of fact; it can only determine whether there are issues to be tried.‘” Chambers, 43 F.3d at 36-37 (quotation and other citation omitted). It must be apparent that no rational finder of fact could find in favor
“[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.‘” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)) (other citations omitted). The Second Circuit has held that the court is obligated to “‘make reasonable allowances to protect pro se litigants‘” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Further, “[i]f the party opposing summary judgment is proceeding pro se, the court must read his opposition papers ‘liberally and interpret them to raise the strongest arguments that they suggest.‘” Rodriguez v. C.O. Reppert, No. 14-CV-671, 2016 WL 11483439, *2 (W.D.N.Y. Sept. 28, 2016) (quoting Morrison v. Parmele, 892 F. Supp. 2d 485, 487 (W.D.N.Y. 2012)). “This liberal standard, however, does not excuse a pro se litigant from following the procedural formalities of summary judgment.” Govan, 289 F. Supp. 2d at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, *1 (S.D.N.Y. May 16, 2001)). Specifically, “a pro se party‘s ‘bald assertion,’ completely unsupported by evidence is not sufficient to overcome a motion for summary judgment.” Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Defendants argue that they are entitled to summary judgment because Plaintiff failed to fully exhaust administrative remedies available to him prior to commencing this action. See Dkt. Nos. 17, 26, 30. The Prison Litigation Reform Act, (“PLRA“),
As Magistrate Judge Baxter correctly pointed out, until recently, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly exhausted his administrative remedies. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004)). The Hemphill inquiry asked (1) whether the administrative remedies were available to the inmate; (2) whether the defendants’ own actions inhibiting exhaustion estops them from raising the defense; and (3) whether “special
The Supreme Court in Ross stated that an administrative procedure in “unavailable” when (1) “it operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates“; (2) it is “so opaque that it becomes, practically speaking, incapable of use“; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643-44. If prison administrators “thwart” inmates from taking advantage of the grievance process through “machination, misrepresentation, or intimidation,” the administrative remedies are “unavailable,” and the inmate is excused from the exhaustion requirement, regardless of which “official” prevented the inmate from filing the grievance. Id. at 644. Where an inmate plausibly alleges that his failure to file a grievance was due to threats of physical harm by facility staff, there exists a material question of fact as to whether the defendant officers may rely upon the inmate‘s non-exhaustion as an affirmative defense. See, e.g., Hemphill, 380 F.3d at 688 (remanding for determination of availability of administrative remedies where an officer
Defendants correctly point out that a “‘generalized fear of retaliation,’ … is not sufficient to excuse the failure [of an inmate] to exhaust his administrative remedies.” Grant v. Kopp, No. 17-CV-1224, 2019 WL 368378, *7 (N.D.N.Y. Jan. 3, 2019) (quoting Bookman v. Lindstrand, No. 15-CV-1542, 2018 WL 3121688, *10–11 (N.D.N.Y. Feb. 14, 2018)). However, Plaintiff alleges reasonably specific allegations that he was threatened and assaulted because of his prior filing of a grievance, which was ripped up before him, and his failure to keep his “mouth shut“.
Defendants rely primarily on three cases (McNab, Pridgen and Grant) to support their contention that Plaintiff‘s fear was merely a generalized fear of retaliation and thus not sufficient to excuse his failure to exhaust. See Dkt. No. 30. However, the facts of McNab, Pridgen and Grant are distinguishable to those alleged in the present case.1 In McNab, the court held that the plaintiff failed to exhaust his administrative remedies, noting that he failed to appeal the denial of his informal grievance in accordance with the applicable procedural rules. McNab v. Doe, 686 Fed. Appx. 49, 51 (2d Cir. 2017). Defendants cite the portion of the opinion that concludes that “none of the actions allegedly taken by the defendants actually prevented [plaintiff] from submitting his complaint letter[,]” but fail to recognize the significance of this. Id. In McNab, the plaintiff reported the grievance in a “letter of complaint” received by Deputy Superintendent for Security Services Robert I. Morton, which was followed by an investigation, and follow-up letters
In Pridgen, the plaintiff alleged he was assaulted, threatened, placed in the Special Housing Unit (“SHU“) for eleven days, and “heard” officers “ripping up” the “grievance paper” he had given to the officers to file. Pridgen v. Beatie, No. 16-CV-535, 2018 WL 1402049, *2 (N.D.N.Y. Jan. 17, 2018). After being released from the SHU, the plaintiff was transferred to another correctional facility where he remained for eighteen months, where he could have timely filed a grievance but failed to do so because he said that other inmates told him he would suffer retaliation from other officers if he did. Id. The plaintiff in that case did not indicate that the officers at the new facility intimidated him into not filing a grievance. Id. In the instant case, Plaintiff was also transferred to another facility after being released from the SHU; however, as Magistrate Judge Baxter points out, the transfer was well after the time to pursue administrative remedies had elapsed. See Dkt. No. 27. Furthermore, as the court in Hunter noted while distinguishing the facts in that case, the plaintiff in Pridgen did attempt to file a grievance and his “contention that the grievance process was unavailable to him because of this fear of retaliation was ‘belied by his conduct after the incident.‘” Hunter v. Rouse, No. 20-CV-65, 2020 WL 8474744, *4 (N.D.N.Y. Sept. 17, 2020) (quoting Pridgen, 2018 WL 1402049, at *8).
Alleged threats and violence are sufficient to excuse the failure to exhaust administrative remedies when they are “such that a person of ordinary firmness would be deterred from using the facility‘s internal grievance process.” Hepworth v. Suffolk Cty., No. 2:02-CV-6473, 2006 WL 2844408, *5-6 (E.D.N.Y. Sept. 29, 2006); see also Hunter, 2020 WL 8474744, at *3-4. The court in Hunter held that a statement to the plaintiff that if he told “anyone what happened, the next time [the plaintiff] won‘t walk away” was a sufficiently specific threat of retaliation to excuse the plaintiff from failing to exhaust his administrative remedies. Hunter, 2020 WL 8474744, at *4. Similarly, in the instant case, Plaintiff alleges that one of the officers said “you like writing grievances” prior to an assault and one told him “you should‘ve kept your mouth shut n----r you wouldn‘t be going [through] this” while Plaintiff was being assaulted. Dkt. No. 25 at ¶ 8; see also Dkt. Nos. 22, 27. This experience would “deter a prisoner of ‘ordinary firmness’ from filing an internal grievance,” and Plaintiff implies it did actually deter him from filing a grievance while in the SHU at Upstate Correctional Facility. See Dkt. Nos. 22, 25; see also Hemphill, 380 F.3d at 689.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter‘s Report-Recommendation (Dkt. No. 27) is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants’ motion for summary judgment (Dkt. No. 17) is DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October25, 2021
Albany, New York
Mae A. D‘Agostino
U.S. District Judge