McNab v. John Doe # 1McNab v. John Doe # 1
- Reporters:
- ,
- Before:
- Jon O. Newman, Dennis Jacobs, Lewis A. Kaplan
“[I]n the absence of prejudice to an appellee, we read a pro se appellant‘s appeal from an order closing the case as constituting an appeal from all prior orders.” Elliott v. City of Hartford, 823 F.3d 170, 173 (2d Cir. 2016). Seeing no prejudice here, we have jurisdiction to review the district court‘s orders dismissing Appellant‘s complaint in part, as well as the final order adopting the magistrate judge‘s report and recommendation and granting defendants summary judgment on all remaining claims.
Sua sponte dismissals are reviewed de novo. Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). To survive dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
We review de novo the order granting summary judgment, and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013). We construe evidence and draw all reasonable inferences in the non-moving party‘s favor. Id. Summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In dismissing Appellant‘s Eighth Amendment claim, the district court relied on Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997), for the proposition that a single incident of sexual abuse does not constitute cruel and unusual punishment. Our decision in Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015), which did not overrule Boddie, held that “contemporary stan
Nevertheless, as the district court ruled, Appellant failed to exhaust his administrative remedies. The Prison Litigation Reform Act (“PLRA“) bars prisoners from bringing suit “until such administrative remedies as are available are exhausted.”
Even assuming that Appellant‘s letter to a supervisory official was sufficient to initiate the inmate grievance process, he does not dispute that he failed to appeal the rejection of that complaint as “without merit.” He thus failed to properly exhaust his administrative remedies by “complet[ing] the administrative review process in accordance with the applicable procedural rules.” Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
Appellant 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 Appellant from submitting his complaint letter. Ruggiero v. Cnty. 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“). Appellant 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).
We have considered all of Appellant‘s remaining arguments and find in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.