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Second Circuit Reinstates N.Y. Prisoner’s Excessive Force Claim, Finding Grievance Procedure ‘Unavailable’ in Mental Health Unit

by David M. Reutter

On September 15, 2022, the U.S. Court of Appeals for the Second Circuit held that a New York prisoner was excused from exhausting administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. Why? Because his transfer to mental health confinement rendered the prison grievance system unavailable to him.

Before the Court was the appeal of Anthony Romano. His civil rights complaint alleged that guards at Attica Correctional Facility beat him on February 17, 2011, while trying to break up a fight. Romano’s pro se complaint said that 10 guards took turns kicking and stomping him, punching him in the face several times. After the assault, he was taken to an emergency room with lacerations on his face, a black and blue right eye, and a broken right cheek bone.

The next day, he was removed from his cell and placed in the prison infirmary. Five days later, on February 22, 2011, he was placed in a New York State Office of Mental Health (OMH) observation cell at Attica. He remained until March 2, 2011. Then, without notice, he was transferred to Central New York Psychiatric Center (CNYPC). There he remained until transferred to Great Meadow Correctional Facility (GMCF) on September 22, 2011.

While housed at CYNPC, Romano attempted to file a grievance in early May 2011 about the Attica assault. The grievance was refused because it was not filed at the facility where he was housed when it occurred. Also, he was not allowed to file a grievance with the New York Department of Corrections and Community Supervision (DOCCS) while in OMH custody. Romano’s attempt to file a grievance at GMCF was also rejected. He then filed his civil rights complaint in the U.S. District Court for the Western District of New York.

That court granted summary judgment to Defendants, finding Romano failed to exhaust administrative remedies as required under PLRA, since he had not filed his grievance within 21 days after the incident, as required by DOCCS regulations. On appeal, the Second Circuit reversed that decision, noting that Romano should have received a five-day notice before his transfer; if he didn’t, then the grievance system was unavailable to him. See: Romano v. Ulrich, 773 F.Appx 654 (2nd Cir. 2019).

On remand, the parties agreed that Romano was transferred to OMH custody under an emergency provision and received no notice. The district court then returned to the original issue, saying the matter could not be resolved based on notice as suggested by the Second Circuit. Judgment was again granted to Defendants because Romano had 13 days to file his grievance before his transfer, making administrative remedies available to him but unexhausted. Romano once again appealed.

Taking up the case once more, the Second Circuit said the rationale behind its prior opinion went like this: If Romano did not receive notice of his transfer, then the grievance procedure was not available to him. His transfer from DOCCS custody cut short his 21-day window to file a grievance – meaning he encountered a “dead end” that renders an administrative remedy incapable of use, as laid out in Ross v. Blake, 578 U.S. 632 (2016).

That Romano had 13 of those 21 days to file a grievance was “of no import,” the Court said. He was in the infirmary, held in an observation cell that prohibited possession of a pen. There was also no proof that staff visited Romano to assist in filing a grievance. Plus, he had no way of knowing he would be transferred. DOCCS policy gave him 21 days to file a grievance, and it was error to conclude that 13 days or any period less was sufficient. Thus the district court’s order was reversed. On appeal, Romano was represented by attorney David Bentivegna of Prisoners’ Legal Services of New York. See: Romano v. Ulrich, 49 F.4th 148 (2d Cir. 2022).

The case has now returned to the district court, which may finally get to the merits of Romano’s claim, a dozen years after his beat-down by guards. PLN will continue to update developments as they are available. See: Romano v. (IF) Off (Name Plate), USDC (W.D.N.Y.), Case No. 1:16-cv-00701. 

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