White v. VelieWhite v. Velie
- Reporters:
- , , ,
- Before:
- Robert A. Katzmann, Robert D. Sack, Christopher F. Droney
Plaintiff-Appellant John H. White, proceeding pro se, appeals the district court‘s judgment dismissing some of his
We review orders granting summary judgment de novo, focusing on whether the district court properly concluded that there was no genuine dispute as to any material fact and that 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). The district court ruled that White had not exhausted his claims because, although he had asserted that he filed grievances and received no response, he was required to properly appeal an unanswered grievance.
Our exhaustion case law has changed since the district court‘s decision. In Ross v. Blake, — U.S. —, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016), the Supreme Court ruled that special circumstances could not excuse a prisoner‘s failure to exhaust, but an inmate need not exhaust his claims if administrative remedies are not available. ”Ross largely supplants our [special circumstances] inquiry by framing the exception issue entirely within the context of whether administrative remedies were actually available to the aggrieved inmate.” Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016).
White first argues that he did not need to exhaust the issues underlying his
White also argues that the district court failed to consider a regulation addressing “like grievances,” which are defined as “grievances emanating from a substantially similar situation/issue or with a similar action requested, or complaints which could be resolved with the same action.”
Finally, White argues that the grievance process was unavailable to him for two reasons: First, he argues the regulations do not address how to file a grievance when “a prisoner has continually incurred consecutive harms of a[n] identical nature,” Appellant Br. at ¶ 19, suggesting that the procedure was “so opaque that it [became], practically speaking, incapable of use.” Ross, 136 S.Ct. at 1859. White‘s argument that he did not understand how to file a grievance regarding a larger pattern of conduct is at odds with his assertion that he did file an unexhausted grievance regarding the events in question that did not receive a response. In any event,
Second, White argues that the grievance process was unavailable to him because it “could provide no remedy & ... no actual favorable outcome to” him. Appellant Br. at ¶ 19. We construe White‘s brief as arguing that the grievance process “operate[d] as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates,” because it never granted him relief. Ross, 136 S.Ct. at 1859. Once defendants have met their initial burden of demonstrating that a grievance process exists, however, a plaintiff bears the burden of “demonstrat[ing] that other factors ... rendered a nominally available procedure unavailable as a matter of fact.” Hubbs v. Suffolk Cnty. Sheriff‘s Dep‘t, 788 F.3d 54, 59 (2d Cir. 2015); see also Ross, 136 S.Ct. at 1859 (“The modifier ‘available’ requires the possibility of some relief. When the facts on the ground demonstrate that no such potential exists, the inmate has no obligation to exhaust the remedy.” (internal quotation marks and citation omitted)). White has not satisfied his burden of establishing that the grievance process was unavailable to him. Here, the summary judgment evidence (provided by the defendants) lists only the titles of White‘s grievances and when they were filed, but it does not say whether White received a ruling in his favor. Nor has White presented any evidence about the outcomes in the grievance system in general. On this record, he has not shown that prison officials are consis
We have considered all of White‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.