Grant v. KoppGrant v. Kopp
- Reporters:
- ,
- Before:
- David E. Peebles
This is a civil rights action brought by pro se plaintiff Brandon Grant, a New York State prison inmate, pursuant to
In order to permit the court to resolve the exhaustion defense prior to trial, the assigned trial judge referred the matter to me for the purpose of holding an evidentiary hearing and issuing a report and recommendation addressing the issue. Based upon the evidence adduced at that hearing, I conclude that plaintiff failed to exhaust administrative remedies that were fully available to him prior to commencing this action. The following represents my recommended findings of fact and conclusions of law.
I. BACKGROUND
Plaintiff is currently being held in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS“). See generally Dkt. No. 1. While he is currently confined at another facility, at
On August 7, 2017, following a fall sustained by Grant while confined in a special housing (“SHU“) shower unit and in light of a suspected drug overdose, plaintiff was confined to an infirmary cell at Shawangunk. Dkt. No. 1 at 8. According to plaintiff, while in that cell after he pressed the call button twice for assistance, defendant Kopp, a corrections officer assigned to the infirmary unit, responded and proceeded to assault Grant. Id. at 8-9. Defendant Kopp then threatened plaintiff with further violence if he pressed the call button again. Id. at 8.
II. PROCEDURAL HISTORY
This action was commenced on or about November 8, 2017 by the filing of a complaint that is dated November 1, 2017, and, according to a postmarked envelope, was mailed to the court on November 7, 2017. Dkt. No. 1. Plaintiff‘s complaint was accompanied by a motion for leave to proceed in forma pauperis. Dkt. Nos. 2, 5, 6. On December 8, 2017, Senior District Judge Gary L. Sharpe issued a decision and order in which he granted plaintiff leave to proceed without the prepayment of fees and, following an initial review of the complaint pursuant to 28
On February 16, 2018, defendant Kopp filed a motion to dismiss plaintiff‘s excessive force claim, arguing that the face of plaintiff‘s complaint makes it clear that he did not fully exhaust the available administrative remedies prior to the commencement of this proceeding. See generally Dkt. No. 19. On May 17, 2018, I issued a report and recommendation, in which I stated, in relevant part, as follows:
In this case, defendant Kopp acknowledges that plaintiff alleges that he filed a grievance concerning defendant Kopp‘s actions. Dkt. No. 19-1 at 7. Citing page eight of plaintiff‘s complaint, defendant Kopp further argues that the grievance was “still pending at the time [plaintiff] brought suit[.]” Id. at 5. It is apparent from plaintiff‘s complaint, however, that his statement concerning a still-pending grievance was in reference to his grievance filed against the Shawangunk employees who allegedly dragged him out of the shower and failed to provide him with appropriate attention for his injuries. Dkt. No. 1 at 7-8. Plaintiff‘s complaint clearly makes a separate reference to a grievance filed by him against defendant Kopp. See id. at 9 (“[S]o I wrote [defendant Kopp] up myself and grieved it[.]“). Id. at 9. Plaintiff‘s complaint does not reveal the status of that grievance.
Plaintiff‘s opposition to defendant‘s motion is equivocal concerning the status of his grievance against defendant Kopp. On the one hand, plaintiff claims that the sixty-day deadline for the CORC to
respond to his grievance had expired by the time this lawsuit was filed, inferring that he had not yet received a response from the CORC. Dkt. No. 21 at 1. Further on in his response, plaintiff suggests that all of his papers concerning the grievance were confiscated or destroyed by corrections personnel, implying that the IGP may not have been available to plaintiff and triggering the PLRA‘s sole exception to the exhaustion requirement. Id. These uncertainties illustrate the danger of deciding the issue of exhaustion on a motion to dismiss in all but the clearest of cases. See, e.g., Kucharczyk v. Westchester Cnty., 95 F. Supp. 3d 529, 546 (S.D.N.Y. 2015). Given the circumstances of this case, I conclude that the issue of exhaustion is better determined on a motion for summary judgment, with the benefit of a fully developed record illuminating the circumstances surrounding plaintiff‘s efforts to grieve defendant Kopp‘s actions toward him. I therefore recommend that defendant‘s motion to dismiss be denied.
Dkt. No. 22 (footnote omitted). Judge Sharpe adopted that report and recommendation in its entirety on June 15, 2018. Dkt. No. 23.
On July 13, 2018, defendant requested an evidentiary hearing regarding the issue of exhaustion. Dkt. No. 26. Based upon that request, the matter was referred to me for the purpose of conducting an evidentiary hearing, pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011), in order to determine whether plaintiff did in fact exhaust available administrative remedies with respect to his claim before filing suit and, if
An evidentiary hearing was subsequently conducted by the court on November 30, 2018. See generally Dkt. No. 42. Plaintiff was represented at that hearing by pro bono counsel assigned by the court.1 Following the hearing and the filing of the transcript, the parties submitted post-hearing memoranda addressing the exhaustion issue. Dkt. Nos. 43, 44. The matter is now ripe for the issuance of a report and recommendation pursuant to
III. DISCUSSION
A. Exhaustion of Remedies: Controlling Legal Principles
The Prison Litigation Reform Act of 1996 (“PLRA“), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee (“CORC“), which must be taken within seven days after an inmate receives the superintendent‘s written decision.
Where an inmate‘s grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review.
While the PLRA mandates exhaustion of available administrative remedies, it also “contains its own, textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. More specifically,
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA.5 Ross, 136 S. Ct. at 1859-60. Under the 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. In addition, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. The Court explained that, “[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.
B. Burden of Proof with Respect to Exhaustion
Because the failure to exhaust administrative remedies is an affirmative defense and not a pleading requirement, see Jones v. Bock, 549 U.S. 199, 216 (2007); Williams, 829 F.3d at 123, the party asserting failure to exhaust administrative remedies typically bears the ultimate burden of proving its essential elements by a preponderance of the evidence. See, e.g., Hamlet v. Stotler, No. 17-CV-0939, 2018 WL 2729263, at *5 (N.D.N.Y. Apr. 27, 2018) (Dancks, M.J), report and recommendation adopted by 2018 WL 2727875 (N.D.N.Y. Jun 6, 2018) (Sharpe, J.); Soria v. Girdich, No. 04-CV-0727, 2007 WL 4790807, at *2 (N.D.N.Y. Dec. 6, 2007) (DiBianco, M.J.) (citing McCoy v. Goord, 255 F. Supp. 2d 233, 247 (S.D.N.Y. 2003)); Howard v. Goord, No. 98-CV-7471, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).
In Nelson v. Plumley, No. 12-CV-0422, 2015 WL 4326762 (N.D.N.Y. Jul. 14, 2015) and Bailey v. Fortier, No. 09-CV-0742, 2012 WL 6935254 (N.D.N.Y. Oct. 4, 2012), report and recommendation adopted by, 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013), I acknowledged the existence of an ambiguity with respect to the appropriate burdens of production and persuasion in the context of exhaustion. Nelson, 2015 WL 4326762, at *7; Bailey, 2012 WL 6935254, at *5-*6; see also Calloway v. Grimshaw, No. 09-CV-1354, 2011 WL 4345299, at *5 & n. 5 (N.D.N.Y. Aug. 10, 2011), report and recommendation adopted by 2011 WL 4345296 (N.D.N.Y. Sep. 15, 2011) (McAvoy, J.); Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at * 4 & n. 17 (N.D.N.Y. Mar. 31, 2010). In particular, several district court decisions, “while referencing the burden of proof applicable to an affirmative defense, seem to primarily address an inmate‘s burden of production, or of going forward, to show facts that would form the basis for finding of unavailability, estoppel, or special circumstances, rather than speaking to the ultimate burden of persuasion.” Nelson, 2015 WL 4326762, at *7 (emphasis in original); see Bailey, 2012 WL 6935254, at *6.
I ultimately concluded in Nelson that although the burden of
C. Evidence Adduced at the Hearing6
According to the evidence and testimony presented by the parties during the recent hearing, on or about August 20, 2017, while he was
Although the superintendent was required to issue a decision on plaintiff‘s grievance within twenty-five calendar days of receiving it, see
Despite not receiving the superintendent‘s determination until some
Such a finding would leave one final inquiry for the court: whether the IGP was not “actually available” to plaintiff, in which case he should be excused from his failure to fully exhaust the administrative remedies. Williams, 829 F.3d at 123 (citing Ross, 136 S. Ct. at 1858-59). In that respect, plaintiff‘s presents two separate arguments as to why
1. Intimidation or Threats of Retaliation
First, plaintiff claims that he was effectively prevented from utilizing the IGP because of intimidation by prison officials at Shawangunk. In Ross, the Supreme Court expressly acknowledged that specific threats of retaliation or intimidation by prison officials toward an inmate may render administrative remedies functionally unavailable to that individual. See Ross, 136 S. Ct. at 1860 n.3; see Hubbs v. Suffolk Cnty. Sheriff‘s Dep‘t, 788 F.3d 54, 59 (2d Cir. 2015) (holding “administrative remedies may . . . be deemed unavailable if the plaintiff can demonstrate other factors—for example, threats from correction officers—rendered a nominally available procedure unavailable“); Williams, 829 F.3d at 124
Even in the aftermath of Ross, however, the Second Circuit has concluded that when an inmate files a grievance, notwithstanding the threats of retaliation and intimidation of which that inmate complains, the failure to fully exhaust under the PLRA will not be excused on this ground. McNab v. Doe, 686 F. App‘x. 49, 51 (2d Cir. 2017), affirming 2016 WL 324994 (N.D.N.Y. Jan. 27, 2016) (Suddaby, C.J.); see also Grafton v. Hesse, 2017 WL 9487092, at *7 (E.D.N.Y. Aug. 25, 2017). In reaching that conclusion, the Second Circuit made the following observation:
[Plaintiff] asserted that defendants tried to intimidate him, and intimidation can excuse the failure to exhaust. Ross, 136 S.Ct. at 1860. However, none of the actions allegedly taken by the defendants actually prevented [plaintiff] from submitting his complaint letter. Ruggiero v. County of Orange, 467 F.3d 170, 178 (2d Cir. 2006) (failure to exhaust not excused by defendants’ actions where plaintiff ‘point[ed] to no affirmative act by prison officials that . . . prevented him from pursuing administrative remedies‘). [Plaintiff] was able to take the first step in the grievance process, and nothing in the record suggests he was intimidated from taking the next step (appealing the rejection of his informal grievance).
In this case, plaintiff testified that in the immediate aftermath of the alleged assault on August 7, 2017, and before he even filed the grievance, he was approached by defendant Kopp‘s supervisor and told to “leave it alone, [he would] handle it.”8 Tr. 15-17. Plaintiff believed that this meant he should “drop and leave it alone.” Tr. 17-18. Despite a vague warning to “leave it alone,” on August 20, 2017, plaintiff in fact proceeded to file a grievance regarding the underlying incident. Tr. 16-20; P-7, D-5. Plaintiff testified that after he did “get a chance to file a grievance” with prison officials at Shawangunk, he
was pulled out [of] my cell, harassed, papers missing, grievances ripped, . . . officers verbally threatening me or even try to bribe me with extra trays, extra food trays, and et cetera, going on, and food was tampered with when I denied certain things, it was ongoing things. My witnesses [were] told not to go along with it, they have extra rec time, extra TV time.
Tr. 17. Plaintiff‘s cell was left in disarray on multiple occasions. Tr. 19-20.
Plaintiff‘s testimony at the exhaustion hearing amounts to nothing more than a “generalized fear of retaliation,” which is not sufficient to excuse the failure to exhaust his administrative remedies. Bookman v. Lindstrand, No. 15-CV-1542, 2018 WL 3121688, at *10-*11 (N.D.N.Y. Feb. 14, 2018) (Peebles, M.J.) (collecting cases), report and recommendation adopted by 2018 WL 1470585 (N.D.N.Y. Mar. 26, 2018) (D‘Agostino, J.). Although plaintiff testified that a prison official told him on one occasion to “leave it alone” and that papers in his cell were either missing or in disarray at some unspecified point, the absence of any specific, affirmative threats of retaliation—particularly when these generalized threats did not actually prevent[]” plaintiff from successfully utilizing the grievance procedure—leads me to conclude that plaintiff has failed to meet his burden of production with respect to unavailability. See, e.g., Rodriguez v. Cnty. of Suffolk, No. CV 13-2070(SJF)(GRB), 2014 WL 3531897, at *5 (E.D.N.Y. June 30, 2014) (“Courts tend to find mere ‘generalized fear’ when no actual threat was made.” (quoting Brown v. Napoli, 687 F. Supp. 2d 295, 297 (W.D.N.Y. 2009))).
2. Lack of Understanding of the IGP
In addition to unspecified threats or intimidation, plaintiff also claims that he was unaware of or otherwise did not understand the mechanics of the IGP. Dkt. No. 43 at 7-13. However, “[p]laintiff‘s less than complete understanding of the purpose of the administrative remedies does not render them not ‘capable of use.’ ” Davis v. Doe, No. 16-CV-0994, 2017 WL 8640829, at *4 (N.D.N.Y. Dec. 29, 2017)
During the exhaustion hearing, plaintiff testified that reading and writing were difficult for him. Tr. 31. Plaintiff claimed that as a result of this, he did not have a “full understanding of everything that [he] had to do to make sure that [he] was complying with the grievance process,” and relied on other inmates to guide him through the process. Tr. 11, 24-25. This claim, however, is less than credible, particularly since plaintiff was able to successfully navigate the process by filing a grievance at Shawangunk and then file an appeal to the CORC while housed at an
Finally, during the exhaustion hearing, testimony was adduced that each facility had two copies of DOCCS Directive 4040, setting forth the IGP process and that in addition information regarding the grievance is also available in the inmate handbook. Tr. 49, 88. According to plaintiff, “it was very hard to receive anything” from the Shawangunk law library and that he “made [a] few attempts” to request grievance materials from the Auburn law library, but was “told that [he] had to wait for certain things.” Tr. 7-9, 24-25. Plaintiff conceded that he became impatient while waiting for materials and would simply “continue to ask another inmate to help [him].” Id. This testimony that plaintiff engaged in cursory efforts to obtain materials from the law library fails to support a finding that “prison
Based upon the foregoing, I conclude that defendant has sustained his burden of proving by a preponderance of the evidence the affirmative defense that plaintiff failed to exhaust his administrative remedies, which remained available to Grant at all times.
D. Dismissal Without Prejudice
In his memorandum, plaintiff argues that if the court finds he should not be excused from his failure to exhaust available remedies before commencing this action, any dismissal of his complaint should be without prejudice. Dkt. No. 43 at 13-14. While defendant has not responded this argument, see generally Dkt. No. 44, I agree with plaintiff on this final point.
More than seventeen years ago, the Second Circuit concluded that post-commencement exhaustion cannot salvage a prisoner‘s otherwise premature federal action. See Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter v. Nussle, 534 U.S. 516 (2002) (“[E]xhausting administrative remedies after a complaint
Here, dismissal would seem to run afoul of
Accordingly, although I recommend that plaintiff‘s complaint be dismissed, I further recommend that the dismissal be without prejudice to plaintiff‘s right to re-file once exhaustion has occurred. See McCoy v. Goord, 255 F. Supp. 2d 233, 246 (S.D.N.Y. 2003) (“A dismissal for failure to exhaust is usually without prejudice, because failure to exhaust is ordinarily a temporary, curable, procedural flaw.“).
Based upon the foregoing, I recommend a finding that plaintiff‘s remaining claim against defendant for excessive force should be dismissed based upon his failure to exhaust his available administrative remedies, which remained available to him at all times. Accordingly, it is hereby respectfully
RECOMMENDED that the court conclude that plaintiff‘s remaining claim in this action is barred by the PLRA based upon his failure to exhaust available administrative remedies before commencing suit, and that his remaining claim in this action should therefore be DISMISSED on this basis.
NOTICE: Pursuant to
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court‘s local rules.
David E. Peebles
U.S. Magistrate Judge
Dated: January 3, 2019
Syracuse, New York