LABOUNTY v. JOHNSON, No. 99-CV-6353L (W.D.N.Y. 03/27/2003)

[1] United States District Court, Western District of New York

[2] 99-CV-6353L

[4] March 27, 2003

[5] MARK LABOUNTY, PLAINTIFF,
v.
SALLY B. JOHNSON, ET AL., DEFENDANTS.

[6] The opinion of the court was delivered by: David G. Larimer, United States District Judge

[7] DECISION AND ORDER

[8] INTRODUCTION

[9] Plaintiff, Mark LaBounty ("plaintiff"), an inmate incarcerated at the Collins Correctional Facility, brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights at Orleans and Collins Correctional Facilities ("Orleans" and "Collins"). For his first claim, plaintiff asserts that Orleans personnel failed to take steps to protect him from other inmates after correctional officers identified him as a gang member, in violation of his Eighth and Fourteenth Amendment rights. In his second claim, plaintiff alleges that certain correctional officers at Collins retaliated against him by identifying him as a gang member after he successfully pursued a grievance against the officers, in violation of his First Amendment rights.

[10] Defendants move for summary judgment on the ground that plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), and the Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002). Plaintiff argues that he sufficiently exhausted his administrative remedies, or was prevented from doing so by the correctional facility staff. Plaintiff also argues that Nussle should not be applied retroactively.

[11] For the reasons that follow, defendants' motion for summary judgment is granted as to the first claim because I find that plaintiff has failed to exhaust his administrative remedies. However, defendants' motion is denied as to the second claim because issues of fact exist regarding whether the defendants' conduct precluded plaintiff from exhausting his remedies.

[12] DISCUSSION

[13] Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (quotations omitted). Where, as here, the plaintiff is proceeding pro se, the court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quotations omitted). "Nonetheless, `[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment.'" Rodriguez v. Ames, 224 F. Supp.2d 555, 559 (W.D.N.Y. 2002), quoting Rodriguez v. Hahn, 209 F. Supp.2d 344, 348 (S.D.N.Y. 2002).

[14] The PRLA provides at 42 U.S.C. § 1997e(a) 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." In New York State, those remedies consist of a three-step review process. First, "an inmate must submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence. . . ." 7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then submitted to the inmate grievance resolution committee ("IGRC") for investigation and review. The IGRC's decision can be appealed to the superintendent of the facility, and the superintendent's decision can be appealed to the Central Office Review Committee ("CORC"), which makes the final administrative determination. See 7 N.Y.C.R.R. § 701.7. At each step, there are time limits within which the grievance or appeal must be decided, and "matters not decided within the time limits [prescribed by the regulations] may be appealed to the next step." 7 N.Y.C.R.R. § 701.8. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to 42 U.S.C. § 1983 in federal court. Santos v. Hauck, 242 F. Supp.2d 257 (W.D.N.Y. 2003).

[15] Prior to the Supreme Court's decision in Porter v. Nussle, the law in the Second Circuit was that the PLRA's exhaustion requirement did not apply to claims pertaining to isolated incidents affecting particular inmates. See Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000). In Nussle, however, the Supreme Court held that "§ 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences." Nussle, 534 U.S. at 520. The rule in Nussle extends to claims for retaliation by correction officers. Lawrence v. Goord, 304 F.3d 198, 199-200 (2d Cir. 2002) ("retaliation claim fits within the category of `inmate suits about prison life,' and therefore must be preceded by the exhaustion of state administrative remedies").

[16] Defendants argue that they are entitled to summary judgment because plaintiff did not satisfy the third level of the exhaustion requirement that requires filing an appeal with the CORC. In support of their motion, defendants submitted the affidavit of Thomas G. Eagen, the Director of the Inmate Grievance Program for the Department of Correctional Services. Dkt. #56. Eagen supervises the maintenance of grievance records and conducted a search of the CORC appeal records. He found no "record or indication" that plaintiff filed any appeals from the denial of any grievances concerning his identification as a gang member by the staff at Orleans or Collins. Nor did Eagan find an appeal from the denial of the grievance related to the failure of Johnson and Gilbert to protect him at Orleans. Id. at ¶¶ 6-7.

[17] Plaintiff makes numerous arguments in opposition to defendants' motion. First, plaintiff argues that defendants waived their right to raise the exhaustion issue at this stage of the case. However, "[s]tatutory exhaustion requirements are mandatory, and courts are not free to dispense with them." Hemphill v. New York, 198 F. Supp.2d 546, 549 (S.D.N.Y. 2002); see also Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 94 (2d Cir. 1998). Because Congress specifically mandated that all prisoners exhaust their administrative remedies prior to bringing suit, Nussle, 534 U.S. at 524, this Court lacks the authority to waive that requirement. Hemphill, 198 F. Supp.2d at 549. In any event, it appears that defendants moved for summary judgment on the exhaustion issue solely on the basis of the Supreme Court's decision in Nussle. Defendants filed their motion within four months of the decision. Therefore, even if the Court could waive the exhaustion requirements, there is nothing in the record to indicate that defendants delayed filing the motion or engaged in litigation tactics to warrant that equitable remedy.

[18] Plaintiff also contends that the Court should not apply Nussle retroactively because his action was filed before the Supreme Court's decision. Plaintiff argues he was entitled to rely on the law as it existed in the Second Circuit at the time his claim accrued. However, courts in this Circuit have repeatedly rejected this argument and held that claims filed prior to the Court's decision in Nussle must meet the exhaustion requirements. See Santos v. Hauck, 242 F. Supp.2d 257 (W.D.N.Y. 2003) (collecting cases); Khalild v. Reda, No. 00 Civ. 7691, 2003 WL 42145 (S.D.N.Y. Jan. 23, 2003); White v. New York, No. 00 Civ. 3434, 2002 WL 31235713, *2 (S.D.N.Y. Oct. 3, 2002) ("Courts in this Circuit have consistently applied [Nussle] retroactively"); Hemphill, 198 F. Supp.2d at 550. For the same reasons articulated in Hemphill, I find nothing peculiar about plaintiff's claims or the circumstances here that requires departure from the rule requiring the retroactive application of Nussle. See Hemphill, 198 F. Supp.2d at 550.

[19] Having found no equitable reason to deny defendants' motion, the Court must examine the steps plaintiff took to exhaust his claims and determine whether they meet the three step exhaustion requirements of the PLRA.

[20] A. Plaintiff's first claim against the Orleans defendants

[21] For his first claim, plaintiff alleges violations of his Eighth and Fourteenth Amendment rights. He asserts that correctional officers at Orleans falsely identified him as a member of the gang "Bloods" to other inmates, thereby putting his life in danger. Plaintiff claims that he complained to defendants Sally B. Johnson, the Superintendent of Orleans, and Captain Kirk Gilbert, but they failed to take steps to protect him. As a result, he was cut with a weapon by other inmates on June 25, 1998, and suffered physical injury. Dkt. #1, ¶ 5.A.*fn1

[22] Plaintiff does not allege that he complied with the requirements of 7 N.Y.C.R.R. § 701.7 for inmate grievances by filing a complaint with the Grievance Clerk at Orleans, appealing to the Superintendent, or appealing to CORC. Instead, in an affidavit submitted in response to defendants' motion, plaintiff claims that, prior to his attack, he complained in person and in writing to Johnson and Gilbert that he was wrongfully identified as a member of the gang and requested protective custody. Plaintiff then asserts that his "complaint was then sent to Albany," but the "Commissioner referred plaintiff back to defendant Johnson at Orleans." Dkt. #63, ¶ 3. Plaintiff was then attacked by other inmates and placed in the Special Housing Unit until his transfer to Collins in September 1998.

[23] These allegations are insufficient to overcome the defendants' showing that plaintiff never filed an appeal with the CORC regarding his failure to exhaust claim. According plaintiff every favorable inference, it appears that he may have taken certain steps informally with Johnson and Gilbert to resolve a grievance that he had been improperly named as a gang member. However, he never filed a written grievance with the IGRC that Johnson and Gilbert failed to take steps to protect him. Nor does plaintiff allege that he appealed to Johnson from any IGRC determination, or took an appeal to the CORC regarding such a claim. Instead, it appears he attempted to by-pass both the initial IGRC resolution process and first level appeal, and went directly "to Albany."*fn2 Plaintiff alleges that Albany returned his appeal and directed him instead back to Johnson. This procedure is consistent with the regulations that require that the other steps be exhausted before an appeal is taken. Plaintiff took no further steps to exhaust his remedies in accordance with § 701.7.

[24] Plaintiff's efforts were insufficient as a matter of law to exhaust his claims in accordance with the PLRA. Santos, 242 F. Supp.2d at 257 (plaintiff who filed only initial grievance did not exhaust his administrative remedies); Reyes v. Punzal, 206 F. Supp.2d 431, 434 (W.D.N.Y. 2002) (inmate failed to show that he went beyond first steps of exhaustion requirement requiring dismissal of his claims); Houze v. Segarra, 217 F. Supp.2d 394, 395-96 (S.D.N.Y. 2002) (plaintiff who wrote to the Superintendent of the facility and took other informal steps to grieve his complaint did not properly initiate the harassment grievance procedure); Kearsey v. Williams, No. 99 Civ. 8646, 2002 WL 1268014, *2 (S.D.N.Y. June 6, 2002) (exhaustion requirement not met where plaintiff did not complete appeals process); Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, *2 (S.D.N.Y. Apr. 23, 2002) (same).

[25] Moreover, the fact that plaintiff took some steps to exhaust does not save his claim. See Indelicato v. Suarez, 207 F. Supp.2d 216 (S.D.N.Y. 2002) (even where inmate makes some efforts to grieve his claim, his failure to avail himself of all available processes required finding that he did exhaust his claims); Nunez v. Goord, 172 F. Supp.2d 417, 428 (S.D.N.Y. 2001) (writing letter to Superintendent alleging a failure to protect claim is insufficient to satisfy exhaustion requirement); Beatty v. Goord, 210 F. Supp.2d 250, 255-56 (S.D.N.Y. 2000) ("writing letters to . . . the Superintendent . . . [is] not sufficient to comply with the Inmate Grievance Program").*fn3

[26] Additionally, after the incident, plaintiff does not allege that he filed a grievance against Johnson or Gilbert charging that their failure to protect him from other inmates resulted in his being injured. Nor does plaintiff claim that he filed either a level two or level three appeal on that issue. Instead, plaintiff alleges in his complaint that, after the incident, other administrative processes began that had the effect of exhausting his administrative remedies. Plaintiff refers to a misbehavior report filed against him. After the incident, plaintiff was charged with a Tier 3 misbehavior violation for allegedly failing to report the attack to prison officials. Plaintiff appealed to Albany after the hearing on the misbehavior report. On appeal, the hearing disposition was reversed and the report was expunged from plaintiff's record. Attached to plaintiff's complaint are two documents that show that the hearing on the misbehavior report was reversed. However, no explanation was given for the reversal.*fn4

[27] Plaintiff claims that his appeal on the report was sufficient to exhaust his administrative remedies regarding the underlying grievance that defendants Johnson and Gilbert failed to protect him. Id. at ¶ 5.A. I disagree. Plaintiff cannot effectively exhaust his administrative remedies for this claim by using the Tier III misbehavior hearing and appeal process. An appeal from a disciplinary hearing does not satisfy the grievance exhaustion requirement for an Eighth Amendment claim, even if the hearing is based on the same set of facts underlying the grievance. See McNair v. Sgt. Jones, No. 01 Civ. 3253, 2002 WL 31082948, *7 (S.D.N.Y. Sept. 18, 2002) (dismissing § 1983 where plaintiff failed to exhaust administrative remedies despite having appealed from disciplinary hearing on the same facts alleged in support of his excessive force claim); Benjamin v. Goord, No. 02 Civ. 1703, 2002 WL 1586880, *2 (S.D.N.Y. July 17, 2002) ("exhausting appeals of a disciplinary hearing determination does not constitute exhausting administrative remedies for his grievance, even if the underlying facts are the same."), citing Cherry v. Selsky, No. 99 Civ. 4636, 2000 WL 943436, *7 (S.D.N.Y. July 7, 2000). Therefore, whatever plaintiff may have done with respect to his misbehavior appeal is of no consequence here, even if it was somehow related to his allegations that Johnson and Gilbert failed to protect him.*fn5