ANTHONY ROMANO, Plaintiff-Appellant, v. KEVIN ULRICH, C.O., JOSEPH CIANCI, C.O., GARY COVIELLO, C.O., DANIEL LEONARD, C.O., ROY BELL, C.O., GREGORY CARNEY, C.O., JEFFREY HAZARD, BRIAN FEENEY, JEFFREY LACAPRUCCIA, JEFFREY MILLER, MARK CUNNINGHAM, Defendants-Appellees.
Docket No. 21-1303-pr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 15, 2022
August Term, 2021
(Argued: May 26, 2022)
Before: LIVINGSTON, Chief Judge, POOLER, and SACK, Circuit Judges.
Reversed and remanded.
DAVID BENTIVEGNA, Prisoners’ Legal Services of New York (Karen Murtagh, James Bogin, Michael Cassidy, on the brief), New York, N.Y., for Plaintiff-Appellant.
JONATHAN D. HITSOUS, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, Albany, N.Y., for Defendants-Appellees.
POOLER, Circuit Judge:
Anthony Romano, a prisoner in New York, appeals from the judgment of the United States District Court for the Western District of New York (John L.
Romano alleges that while he was incarcerated at the Attica Correctional Facility in New York, a facility run by the New York Department of Corrections and Community Supervision (“DOCCS“), he was beaten by corrections officers who were attempting to break up a fight. Romano was then moved from his cell to the infirmary to recover from his wounds. From there, he was transferred first to a mental health observation cell, then to the Central New York Psychiatric Center (“CNYPC“) in the custody of the New York State Office of Mental Health (“OMH“). During his stay at CNYPC, Romano attempted to file a grievance for the alleged beating, but the grievance was refused for being untimely, for not being filed at the DOCCS facility at which he was housed, and because he was not allowed to file grievances with DOCCS while in OMH custody.
Romano challenged that finding in federal court, arguing that while the New York administrative code governing the filing of grievances for inmates provided him with twenty-one days to file a grievance, he was transferred to OMH custody after just thirteen days, rendering his administrative remedy unavailable to him. The district court granted defendants’ first motion for
However, on remand, the parties agreed that Romano was transferred to OMH custody pursuant to an emergency provision of
We conclude that the district court erred in holding that Romano failed to exhaust his administrative remedies. Romano‘s transfer out of DOCCS custody
BACKGROUND
I. Factual Background
On February 17, 2011, while incarcerated at Attica, Romano was allegedly beaten by corrections officers who were attempting to break up a fight. Romano‘s pro se complaint specifically alleges that ten officers took turns kicking and stomping on his body parts, “punching” him in the face several times resulting in four lacerations to his face, a black and blue right eye, as well as a broken right cheek bone that remained “fractured” at the time of filing the grievance on May 24, 2013. App‘x at 22. After the alleged assault, Romano was removed from the unit and taken to the emergency room.
The next day, Romano was moved from his cell to the infirmary, where he was held for five days until February 22, 2011. From February 22 to March 2, Romano was held in an OMH observation cell at Attica. While in the observation cell, Romano was forbidden from keeping a pen due to safety concerns.
Romano was evaluated by a physician who filed a Certificate of an Examining Physician dated March 1, 2011 to support the emergency admission of Romano to an OMH facility under
Romano attempted to file a grievance at Attica for the alleged beating in early May 2011, while housed at CNYPC. The grievance was refused for being untimely, because it was not filed at the facility at which he was housed, and because he was not allowed to file grievances with DOCCS while in OMH
II. Procedural Background
On August 28, 2017, Judge Elizabeth Wolford of the Western District of New York granted summary judgment to defendants. The district court held that Romano failed to exhaust his administrative remedies because he did not file his grievance within the twenty-one-day period after the alleged beating as required by DOCCS regulations. See Romano, 2017 WL 3701972. The district court reasoned that although Romano did not have twenty-one days before he was moved to CNYPC, where he was prohibited from submitting a grievance, he still “could have filed a grievance” while in the Attica infirmary for the five days immediately after the alleged beating. Id. at *4. In any event, the district court
On appeal, this Court vacated and remanded by summary order. See Romano, 773 F. App‘x 654. However, we did not address the question briefed by the parties: “[w]hether or not DOCCS‘s administrative procedures are ‘unavailable’ whenever DOCCS unilaterally and without notice transfers an inmate during a grieving period such that the inmate is no longer able to file a grievance, regardless of DOCCS‘s motivation.” Id. at 656. Instead, we observed that under
On remand, the matter was referred to Magistrate Judge Michael Roemer. The parties submitted supplemental briefing to address this Court‘s concerns. The magistrate judge recommended granting summary judgment to defendants. Romano v. Ulrich, No. 13-cv-633, 2021 WL 1740048, at *4 (W.D.N.Y. Mar. 29, 2021), report and recommendation adopted, 2021 WL 1739219. The parties agreed that Romano was not transferred out of DOCCS custody pursuant to
Because the district court could not resolve the exhaustion issue in the manner suggested by the Second Circuit, the magistrate judge returned to the original issue: whether Romano‘s impromptu transfer to OMH custody render the grievance procedures unavailable to him for exhaustion purposes. The magistrate judge found that Judge Wolford‘s reasoning that Romano had thirteen days to submit his grievance still applied. Therefore, the magistrate judge recommended granting summary judgment to defendants on that ground.
On April 30, 2021, the district court adopted the report and recommendation in its entirety and granted summary judgment to defendants. Romano, 2021 WL 1739219, at *1. Romano appealed.
DISCUSSION
We review de novo a district court‘s decision to grant summary judgment. See Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). Summary judgment is warranted when, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
I. Applicable Law
The Prison Litigation Reform Act‘s (“PLRA“) exhaustion provision instructs 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 prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
Ross overturned Second and Fourth Circuit case law that had adopted a “special circumstances” exception to the PLRA‘s exhaustion requirement, “permitting some prisoners to pursue litigation even when they ha[d] failed to exhaust available administrative remedies.” Ross, 578 U.S. at 635. The Supreme Court “reject[ed] that freewheeling approach to exhaustion as inconsistent with
Ross set out “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Id. at 643. 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. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. As the Solicitor General put the point: When rules are ‘so confusing that . . . no reasonable prisoner can use them,’ then ‘they‘re no longer available.‘” Id. at 643–44. Finally, “the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644.
The Second Circuit applied Ross shortly after it was handed down. Williams, 829 F.3d 118. In Williams, an inmate alleged that corrections officers
Applying Ross, we held that “even if Williams technically could have appealed his grievance,” the “regulatory scheme providing for that appeal [wa]s ‘so opaque’ and ‘so confusing that . . . no reasonable prisoner can use [it].‘” Id. at 124 (quoting Ross, 578 U.S. at 643-44). We reasoned that the regulations did not adequately outline the process to appeal or otherwise exhaust administrative remedies where the correction officer never actually filed Williams‘s grievance. The regulation provided that Williams could appeal a grievance that did not receive a response if there was no reply within twenty-five days of the superintendent receiving the grievance. But in Williams‘s case, the superintendent never received the appeal, so this provision was never triggered. Id. Importantly, in a footnote in Williams, we “note[d] that the three circumstances discussed in Ross do not appear to be exhaustive, given the Court‘s focus on three kinds of circumstances that were ‘relevant’ to the facts of that case. Because those circumstances are also relevant to the facts of this case, we do not opine on what other circumstances might render an otherwise available administrative remedy actually incapable of use.” Id. at 123 n.2 (citation omitted); see also Rucker v. Giffen, 997 F.3d 88, 93 (2d Cir. 2021) (citing the footnote in Williams).
In Hayes v. Dahlke, 976 F.3d 259 (2d Cir. 2020), we considered whether an inmate exhausted his administrative remedies when he completed every required step of the grievance procedure, yet the Central Office Review Committee (“CORC“), the last
And in Rucker v. Giffen, we considered whether an inmate who experienced extreme medical distress and was hospitalized did not exhaust his administrative remedies by failing to file a grievance when he was in a critical medical condition. 997 F.3d at 90. Under the DOCCS regulations, Rucker had five days to file a grievance against the prison staff who failed to take him to the hospital until he was in critically ill condition. However, he remained in the hospital for a month, undergoing numerous serious surgeries which almost
II. Application
The relevant DOCCS regulation here,
Time limit for filing. An inmate must submit a complaint to the clerk within 21 calendar days of an alleged occurrence on an inmate grievance complaint form (form #2131). If this form is not readily available, a complaint may be submitted on plain paper. The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility.
In this appeal, Romano argues he was placed into a situation DOCCS grievance regulations “simply d[id] not contemplate” because he still had eight days remaining in his grievance period but was prohibited from submitting a grievance. Appellant‘s Br. at 18 (quoting Williams, 829 F.3d at 124). By the time Romano was transferred back to DOCCS custody on September 22, 2011, months had passed, and he was well beyond the grievance deadlines.
Romano also argues that the lack of notice requires a ruling in his favor under the logic of our prior summary order. In that order, we determined that because Romano should have received five days’ notice of his transfer to OMH with access to information making clear that he would be unable to file a grievance once transferred, then “we cannot see how Romano could show that DOCCS‘s procedure was unavailable to him.” Romano, 773 F. App‘x at 657. Under our rationale, Romano argues, if he did not receive notice of his transfer, then it likewise could not be shown how the grievance procedure was available to him.
We agree with Romano and reverse the district court‘s conclusion that Romano failed to exhaust his remedies. Romano‘s transfer out of DOCCS custody cut short his time to file a grievance which rendered the remedy “unavailable” to him.
An administrative procedure is unavailable when “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 578 U.S. at 643. In Ross, the Supreme Court provided
This is precisely the situation here. Romano‘s transfer to OMH custody rendered him unable to file any grievance against DOCCS even though he was well within the twenty-one-day time limit under
This result is also in line with our prior decision in this case. There, we wrote that “Romano should have received at least five days’ notice of his transfer, as well as the ability to contest it. Provided the required notice was given and Romano had access to information that made clear that he would be unable to file a grievance upon his transfer outside of DOCCS, we cannot see how Romano could show that DOCCS‘s procedure was unavailable to him on
Defendants now concede that Romano was given no notice and had no opportunity to contest his transfer. Therefore, the inverse of our rationale applies—Romano was not given notice and did not have access to information that he would be unable to file a grievance upon being transferred outside of DOCCS, so the grievance procedure was unavailable to him. This is not a case where an inmate is the victim of his own procrastination; instead, Romano‘s time to file a grievance was prematurely curtailed by a sudden and unforeseeable transfer of which he had no notice.
It is of no import that Romano may have had thirteen days to file his grievance. First, it is not clear that Romano actually had thirteen days. He spent five days in the infirmary and eight days in an OMH observation cell. The time in the infirmary involved recovering from his serious injuries including four facial lacerations, black and blue eyes, and various fractures. While in the infirmary, Romano “faced substantial obstacles to filing a grievance including mental decompensation so severe that his delusions, paranoia, and impaired judgment left him a danger to himself and others such that emergency involuntary psychiatric hospitalization was warranted.” Appellant‘s Br. at 25 n.1.
Second, because Romano had no way of knowing if or when he would be transferred from DOCCS custody to OMH custody, he cannot be penalized for failing to file a grievance at the earliest possible moment, well before expiration of a grievance period that was cut short by prison officials. Romano was not able to exhaust his administrative remedies by completing the DOCCS grievance process “in accordance with the applicable procedural rules,” Jones, 549 U.S. at 205. The relevant DOCCS regulation provides that “[a]n inmate must submit a complaint to the clerk within 21 calendar days of an alleged occurrence on an inmate grievance complaint form.”
Defendants argue that Romano failed to request an exception to the twenty-one-day deadline pursuant to
CONCLUSION
For the reasons given above, we reverse the district court‘s order and remand for further proceedings consistent with this opinion.