Case Information
‐ UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE WITH THE NOTATION SUMMARY ORDER A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL
At stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City New York, th day October, two thousand sixteen. PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges
KATHERINE B. FORREST,
District Judge .* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x ALVIN WILSON,
Plaintiff Appellant
BROOKE MCKENNA,
Defendant Appellee
JOHN DOE, LT; CORRIGAN R CC, HARTFORD
SUPERIOR COURT, STATE MARSHAL LOCKUP
DEPARTMENT, JOHN AVER, JANE DOE, HARTFORD
* Honorable Katherine B. Forrest, United States District Court Southern District New York, sitting designation.
HCC, DOCTOR, MEDICAL STAFF, JOHN DOE,
HARTFORD HOSPITAL, emergency room doctor, JOHN WAYEN, JANE DOES, CORRIGAN ‐ R ‐ CC MEDICAL HEALTH CARE STAFF, JOHN WILLIAMS, JOHN ERFE,
WARDEN, JOHN HANNEY, JOHN DOE,
CORRIGAN ‐ R ‐ CC, DOC, MEDICAL HEALTH CARE
STAFF, SHARRON LAPLANTE, JOHN DOE, WARDEN,
HARTFORD HCC, DOC, F. GILLIG, OMPRAKASH PILLAI, MONICA J. FARINELLA, FORD, WARDEN, STATE OF
CONNECTICUT,
Defendants ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x FOR PLAINTIFF APPELLANT: Alvin Wilson, pro se Suffield,
Connecticut. DEFENDANT APPELLEE: Zenobia Graham Days, Assistant
Attorney General, George Jepsen, Attorney General State Connecticut, Hartford, Connecticut. Appeal from judgment United States District Court District Connecticut (Bryant, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED judgment district court AFFIRMED
Plaintiff appellant Alvin Wilson, proceeding pro se appeals from judgment favor defendant appellee Corrections Officer Brooke suit under U.S.C. alleging deliberate indifference needs. granted McKenna, concluding, inter alia
‐ ‐ had failed exhaust his administrative remedies. We assume parties ʹ
familiarity with facts, procedural history, and issues appeal.
As initial matter, does address exhaustion in his appellate brief, therefore has abandoned any challenge district court ʹ s determination failed exhaust administrative remedies. LoSacco v. City Middletown , 71 F.3d 92 93 (2d Cir. In any event, conclude district court determined as matter law exhaust administrative remedies. review de novo ʹ s grant judgment. Garcia
v. Hartford Police Dep ʹ t F.3d 2013) (per curiam). Summary judgment must be granted if ʺ there genuine dispute as any material fact movant entitled as matter law. ʺ Fed. R. Civ. P. 56(a).
Under Prison Litigation Reform Act (the PLRA ), ʺ [n]o action shall be brought respect prison conditions under [§ 1983] . prisoner confined jail, prison, other correctional facility until such administrative remedies available are exhausted. ʺ U.S.C. 1997e(a). PLRA requires proper exhaustion, meaning compliance agency deadlines critical procedural rules. ʺ Woodford Ngo U.S. (2006). Nevertheless, remedies be available. ʺ Blake *4 1850, (2016). An procedure is unavailable when (1) it operates a simple dead end ‐‐ officers unable or consistently unwilling provide relief aggrieved inmates ʺ ; (2) it is so opaque it becomes, practically speaking, incapable use ʺ ; or (3) prison administrators thwart inmates from taking advantage process through machination, misrepresentation, intimidation. ʺ Williams Priatno No. WL 3729383, at *4 July 12, 2016) (quoting Connecticut Department Correction ( ʺ ʺ ) requires inmates submit grievances accordance Administrative Directive 9.6 AD 9.6 Defendant Cross Motion Summary Judgment, Ex. A, No. cv (S.D.N.Y. May 2015), ECF No. 29. According directive, aggrieved inmate must seek informal resolution prior filing grievance. AD § 6.A. If attempts resolve issue verbally fail, then inmate must submit Request clearly stating problem requesting remedy. Id. If response from received within fifteen business days receipt if remedy offered through informal resolution unsatisfactory, inmate may file within incident giving rise grievance. 6.A, 6.C. To do so, submit *5 Remedy Form that covers requests for relief for both Grievance[s] ʺ ʺ Health Service Review[s]. ʺ Def. Cross Mot. Summ. J., Ex. A at 16.
When submitting a Level grievance, the inmate attach the previously filed to the Administrative Remedy Form explain why it attached. AD § 6.C When an inmate files a grievance fails to comply these procedural requirements, may either (1) return the grievance without disposition, at which point inmates permitted correct the error refile grievance, id. § 6.E, (2) reject outright without giving the inmate opportunity refile, id. § 6.F. provide a written response Level within business days receipt grievance. Id. § 6.I. An inmate may appeal disposition Level within five calendar receipt decision. 6.K.
As concluded, record shows Wilson exhaust remedies available him before filing suit federal court. alleges he injured denied necessary care on September 2012. filed Remedy September 2012. On this form, checked box indicating filing Grievance. ʺ Def. Cross Mot. Summ. J., Ex. I 1. He did check box requesting Review, but check boxes Diagnosis/Treatment ʺ and All Other Health Care Issues ʺ in the Health Services Review section form. Further, Wilson requested only medical care in the narrative portion form ‐‐ mention was made McKenna, guard that matter. form treated request for Review and denied on October 16, 2016, because, then, Wilson had been examined by medical staff on multiple occasions.
Wilson also submitted an Request Form on October 9, 2012, which he mentioned alleged incident McKenna, but complained only about his lack treatment. It not until October 17, 2012, one after he allegedly sustained injury, that Wilson filed an detailing complaint against McKenna. Although he also filed Grievance Appeal ‐‐ Levels 2/3 on October 17, 2012, never filed Level against McKenna. Hence, comply Directive: He did not submit timely appeals ʺ were premature. Therefore, he demonstrate proper entered favor McKenna. [M]andatory statutes like PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.
Because raise issue below appeal, we do consider whether process unavailable him, either because September Remedy treated request Review rather than Grievance, reason. 60; Guzman Local 32B 32J, Serv. Emps. Int ʹ l Union F.3d have considered remaining arguments conclude they without merit. Accordingly, AFFIRM court. THE COURT:
Catherine O’Hagan Wolfe, Clerk
[1] note record below indicates that never received forms purportedly filed October October 2012, fact does dispute. Nevertheless, assume purposes this appeal forms were indeed submitted.