460 F. App'x 11
2d Cir.
2012

David JOHNSTON, Plaintiff-Appellant, v. Genesee County Sheriff MAHA, Superintendent Ronald Greer, Senior C.O. Zipfel, Correction Officer Wolff, Correction Officer Klometz, Deputy Zehler, Senior C.O. Luplow, Senior C.O. Cawkins, Correction Officer Lindsay, Genesee County, Genesee County Jail, Correction Officer Conway, Correction Officer Ridder, Correction Officer Smith, Nurse Terese Bryan, Correction Officer Hoy, Transportation Officer John Doe, Genesee County Jail Doctor John Doe 2, United Memorial Hospital Doctor Jane Doe, United Memoriаl Hospital Nurse Jane Doe, Jane-John Doe One-Fifteen, United Memorial Hospital, Defendants-Cross-Claimants-Cross-Defendants-Appellees.

No. 08-6048-pr.

United States Court of Appeals, Second Circuit.

Feb. 2, 2012.

Knight argues that the district court should not have applied the sophisticated means enhancement because his personal involvement was unsophisticated. The evidence, however, shows that Knight helped to construct an intricate façade of secrecy and a false image of success. Moreover, funds were often transferred through him to his co-consрirators or to investors. Knight also claims that he did not organize, lead, manage, or supervise the conspiracy. The Guidelines Manual, however, notes that “[a]n upward departure may be warranted” for someone who “exercised management responsibility over the property, assets, or activities of a criminal organization.” U.S.S.G. § 3B1.1, comment. This Court reviews a district court‘s application of § 3B1.1 for clear error because the issue is “predominantly factual rather than legal.” . The evidence and testimony amply demonstrated that Knight managed a significant amount of money for the conspirators; the district court did not clearly err in applying an enhancement for Knight‘s role in the offense.

IX. Ineffective Assistance of Counsel

Finally, Montana argues before this Court that his trial counsel was unconstitutiоnally ineffective because he failed to obtain investment experts and because he stipulated to the SEC testimony and related documents. “When faced with a claim for ineffective assistance of counsel on direct appeal, we mаy: (1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us.” . Because this Court has a “baseline aversion to resolving ineffectiveness claims on direct review,” (quoting ) (internal quotation marks omitted), we decline to consider the argument at this time.

We have considered all of Defendants-Appellаnts’ remaining arguments and find them to be without ‍​​‌​‌​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​‌‌‌‌‌​‌​​‍merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

David H. Reichenberg, (Jonathan M. Jacobson, Daniel P. Weick, on the brief), Wilson Sonsini Goodrich & Rosati, New York, NY, for Appellant.

Harry F. Mooney, Hurwitz & Fine, P.C., Buffalo, NY, for Appellee.

PRESENT: AMALYA L. KEARSE, JOSÉ A. CABRANES, CHESTER J. STRAUB, Circuit Judges.

SUMMARY ORDER

Plaintiff-appellant David Johnston appeals from a judgmеnt of the District Court granting summary judgment to defendants on all counts of a seventeen-count complaint (the “Complaint“). We assume the parties’ familiarity with the underlying facts and the procedural history.

This appeal arises out of three incidents that allegedly occurred when plaintiff was being held at the Genesee County Jail: his placement in isolation in February and March of 2005 while he was awaiting trial on burglary charges (Counts One and Two, respectively), and an alleged attack on plaintiff by a correctional оfficer in July 2005, shortly after his sentence was pronounced (Count Three).1 Plaintiff alleges in Counts One and Two that the stints in isolation, during which he was allegedly neither informed of the reason for his placement in isolation nor given an opportunity to challenge that plаcement, violated his right to due process of law. He also argues in Count Three that the alleged assault by the correctional officer, which occurred less than two days before plaintiff was to be transferred into State custody to begin serving his sentenсe, violated his Eighth Amendment right to be free from cruel and unusual punishment.

The proceedings in the District Court began when the plaintiff filed, pro se, a seventeen-count complaint alleging the above and other violations of his rights. After a period of discovery, dеfendants moved for summary judgment, which was granted by the District Court. The District Court found that , operated to bar plaintiff‘s due process claim with regard to Count One, as “there [was] no indication that [the placement into isolation] amounted to an ‘atypical and significant hardship’ compared to the burdens of ordinary jail or prison confinement.” (“Johnston I“) (order granting summary judgment to defendants). The District Court further found that plaintiff had failed properly to exhaust the claims asserted in Counts Two and Three as required by the Prison Litigation Reform Act (“PLRA“), 42 U.S.C. § 1997e(a), but thаt even if he had properly exhausted those ‍​​‌​‌​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​‌‌‌‌‌​‌​​‍counts, they would fail on the merits. .

Plaintiff argues on appeal that (1) the District Court applied an incorrect standard of law when it applied Sandin‘s “atypical and significant hardship” test to Count One and, in the altеrnative, Count Two, rather than the due process standard that is applicable to pretrial detainees; and (2) the District Court erred by finding that Counts Two and Three were unexhausted within the meaning of the PLRA.

DISCUSSION

A. Counts One and Two: The Due Process Standard

The District Court erred in applying , a case applying the Eighth Amendment to claims brought by convicted prisoners, to Johnston, who in February and March 2005 was a pretrial detainee. See (holding that Sandin v. Conner does not apply to pretrial detainees); see also (distinguishing the due process rights of pretrial detainees from those of convicted prisoners). The court should instead have evaluated Count One (and, putting aside the exhaustion issue for the moment, Count Two2) under the Fourteenth Amendment, which governs the due process rights of pretrial detainees. See (“A detainee‘s interest in freedom from unjustified infliction of pain and injury is ... substantial.“).

We decline to resolve the Fourteenth Amendment issue in the first instance. See ; . Although it seems not implausible to us that these claims will survive summary judgment, the question presented here—whether defendants are entitled to summary judgment on plaintiff‘s argument that he was twice placed in isolation as a form of punishment and was each time denied the opportunity to challenge his placement—must first be answered by the District Court. We vacate the District Court‘s ruling as to Count One and its alternative merits evaluation of Count Two and remand for the application of the correct legal standard to both counts.

B. Count Two: Exhaustion

The District Court erred when it determined that Count Two had not been properly exhausted. The plaintiff submitted a “Grievance Tracking Form“—which he received from the Genesee County Jail through the discovery process—purporting to demonstrate that he had properly exhausted his administrative remedies as to certain claims. Without explanation, the District Court found that plaintiff had not demonstrated proper exhaustion of Count Two. Defendants on appeal defend the District Court‘s decision, but do not specify any steps of the grievance process that were not properly followed by the plaintiff. Instead, they simply claim that plaintiff failed to provide copies of any follow-up to the initial rejection of his grievance.

The District Court‘s finding on summary judgment that the plaintiff had not exhausted Count Two was erroneous. To the contrary, ‍​​‌​‌​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​‌‌‌‌‌​‌​​‍the form submitted by the plaintiff, which showed the dates on which the plaintiff carried out each stage of the grievance process, was sufficient to raise an issue of material fact as to whether he had exhausted his remedies.3 The defendants appear not to have called into question the credibility of the document they themselves provided, nor do they give any explanation for their contention that the document does not show proper exhaustion. The defendants have the burden of showing that there is no genuine issue of material fact as to exhaustion that would preclude summary judgment. The court‘s conclusion that the document does not show proper exhaustion fails to properly allocate the burden of proof and must be reversed.4

C. Count Three: Exhaustion and Merits

The District Court erred when it found that the PLRA barred the plaintiff from pursuing Count Three. To the contrary, thе plaintiff was excused from the requirement of PLRA exhaustion as to Count Three, because the grievance process became unavailable to him when he was moved to a prison facility in a different jurisdiction less than two days after the alleged assаult.5 See ; see generally .6 The PLRA does not require prisoners to reach across jurisdictional lines to take advantage of grievance systems that are no longer available to them. See . Therefore, in such situations, courts are entitled to excuse the exhaustion requirement. We do so here.

Because there are several clearly material issues of disputed fact regarding the events that gave rise to Count Three,7 we reverse the District Court‘s grant of summary judgment on this count and remand for a trial on the merits.

CONCLUSION

We have considered plaintiff‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the November 7, 2008 judgment of the District Court as to Counts Four through Seventeen, VACATE the judgment ‍​​‌​‌​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​‌‌‌‌‌​‌​​‍with regard to Counts One, Two, and Three, and REMAND the cause for further pretrial and/or trial proceedings under the correct legal standard with respect to Counts One and Two, and for trial on Count Three.

Notes

1
Plaintiff, who brought this appeal while proceeding pro se, initially raised other issues on appeal, including claims related to an allegedly unconstitutional denial of medical care. We appointed counsel on April 13, 2011, whom we instructed to brief “as many nonfrivolous claims” as plaintiff desired to pursue on appeal. Counsel has briefed only the three claims arising out of the incidents described above: plaintiff‘s two stints in isolation and the alleged attack by the jail officer. To the extent plaintiff may raise any objections to the District Court‘s rulings that are not presented by his counsel, including the objections he initially raised on appeal, they are meritless and must be rejected. We therefore affirm the judgment of the District Court with regard to all but the three counts specifically discussed in this order. Accordingly, we do not discuss in this order the claims initially brought by plaintiff on appeal, except insofar as thеy overlap with the issues briefed by plaintiff in conjunction with appointed counsel.
2
Although the court did not specify that it would decide Count Two under Sandin, given the court‘s brief treatment of the merits of the “unexhausted” claims we assume it used the same incorrect standаrd for Count Two as it did for Count One.
3
The document is unclear as to which counts in the complaint, if any, the various exhausted claims listed on the sheet may support. Unless the parties can reach agreement on this issue, it is a material issue of fact to be resоlved at trial if and when the defendants raise their affirmative defense of nonexhaustion. See (holding that lack of PLRA exhaustion is an affirmative defense).
4
Of course, as noted above, should defendants wish to raise the affirmative defense of laсk of exhaustion under the PLRA at trial and therefore contest the genuineness or admissibility of the document at that time, they must be permitted to do so.
5
Defendants claim that this argument is not properly before us because the plaintiff did not raise it in the District Court. Indeed, рlaintiff, who was at the time proceeding pro se, did not specifically argue that his transfer exempted him from the requirements of the PLRA. Instead, he argued to the court that his transfer to from County to State custody took place less than two days after the alleged assault and that he could not complete the jail‘s grievance process in such a short period of time. Given our obligation, and the obligation of the District Court, to “construe liberally” the submissions of a pro se litigant and to ” ‘interpret them to raisе the strongest arguments that they suggest,’ ” (quoting ), we conclude that plaintiff‘s unavailability argument is properly before us.
6
Defendants argue that , abrogated the rule we set forth in Hemphill, which provides for an exemption to the PLRA for inmates to whom the normal grievance system was unavailable. Their argument is meritless: ‍​​‌​‌​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​​​​​​​‌‌​​​​​​‌‌‌‌‌​‌​​‍Although Ngo requires that prisoners “properly” exhaust the available remedies under the PLRA, it certainly does not abrogate the unavailability defense to nonexhaustion. See (evaluating plaintiff‘s unavailability defense under the Hemphill standard); see also .
7
Such issues include, but are not limited to, whether the corrections officer acted with malicious intent, whether his alleged use of force was excessive or improper, and the extent (if any) to which the other officers present were involved in the events that allegedly took place.
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