Lev v. Lewin

EDWARD LEV, Plaintiff, v. DONNA LEWIN, in her individual and official capacitiesas Superintendent of Hudson Correctional Facility;ANTHONY J. ANNUCCI, in his individual and official capacitiesas Acting Commissioner of the New York Departmentof Corrections and Community Supervision; JOHN DOE 1,in his individual and official capacities as Deputy Commissionerof the New York Department of Corrections and Community Supervision;and JOHN DOE 2, in his individual and official capacitiesas Unit Supervisor for the Hudson Correctional FacilityAdolescent Offender Segregation Unit, Defendants.

9:19-cv-00061 (BKS/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

January 8, 2020

Appearances:

For Plaintiff:

Mario B. Williams

Dallas S. LePierre

NDH LLC

44 Broad Street, NW, Suite 200

Atlanta, GA 30303

For Defendants Donna Lewin and Anthony J. Annucci:

Letitia A. James

Attorney General of the State of New York

Helena O. Pederson

Shannan C. Krasnokutski

Assistant Attorneys General

The Capitol

Albany, NY 12224 Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Edward Lev, who is in the custody of the New York Department of Corrections and Community Supervision ("DOCCS") and allegedly suffers from severe mental illness, brings this action under 42 U.S.C. § 1983. (See generally Dkt. No. 1). The Complaint alleges that Plaintiff's confinement in a segregated unit at Hudson Correctional Facility ("Hudson") constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. (Id. at 1-2, 6-7, 15).¹ Plaintiff seeks declaratory and injunctive relief, as well as punitive damages, against four DOCCS officers: Defendant Donna Lewin, Hudson's Superintendent; Defendant Anthony J. Annucci, Acting Commissioner of DOCCS; an unnamed officer whose title is Deputy Commissioner of DOCCS; and another unnamed officer whose title is Unit Supervisor for Hudson's Adolescent Offender Separation Unit ("AOSU"). (Dkt. No. 1, at 17). In a Memorandum-Decision and Order entered on May 31, 2019, the Court granted Plaintiff's motion for preliminary injunctive relief and directed Plaintiff's release, who was then a minor, from disciplinary segregation. Paykina ex rel. E.L. v. Lewin, 387 F. Supp. 3d 225 (N.D.N.Y. 2019).

Presently before the Court is Defendants' motion for summary judgment on the ground that, inter alia, Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). (Dkt. No. 77). Plaintiff opposesDefendants' motion. (Dkt. No. 83). The Court held oral argument on the motion on December 19, 2019. For the reasons that follow, Defendants' motion is granted.

II. BACKGROUND²

The factual background is set forth in Paykina, 387 F. Supp. 3d at 230-39. The Court only recites those facts material to the present motion.

A. Grievance Procedure at Hudson

Plaintiff was incarcerated at Hudson from August 2, 2018 through June 3, 2019. (Dkt. No. 77-12, ¶ 1; Dkt. No. 83-4, ¶ 1). "Upon [his] placement in Hudson," Plaintiff received and reviewed "a copy of the grievance procedures available."³ (Dkt. No. 83-2, ¶¶ 3-4).

During the time period relevant to this action, Hudson had a "fully functioning inmate grievance process available." (Dkt. No. 77-12, ¶ 5; Dkt. No. 83-4, ¶ 5). The inmate grievance process established by 7 N.Y.C.R.R. § 701 et seq., DOCCS Directive 4040, involves three steps: (i) a complaint to the Inmate Grievance Resolution Committee ("IGRC") at the individual facility; (ii) an appeal to the Superintendent of the facility; and (iii) an appeal to the Central Office Review Committee ("CORC"). (Dkt. No. 77-12, ¶ 6; Dkt. No. 83-4, ¶ 6). Hudson, however, is subject to "DOCCS Directive 4041, titled 'Inmate Grievance Program—Modification Plan'"; the primary modifications contained in Directive 4041 "address the fact that the unique populations in certain facilities limit the availability of inmates to function as inmate representatives or to serve on inmate grievance review committees." (Dkt. No. 77-12, ¶ 7; Dkt. No. 83-4, ¶ 7). While "the purpose of Directive 4041 . . . is to modify the procedures contained in Directive 4040 for facilities subject to Directive 4041," such facilities "must [still] comply with the provisions of Directive 4040 to the extent that Directive is not otherwise modified by Directive 4041." (Dkt. No. 77-12, ¶ 8; Dkt. No. 83-4, ¶ 8 (citing 7 N.Y.C.R.R. § 702.2(b)). The inmate grievance process under Directive 4041, like Directive 4040, involves three steps: (i) a complaint to the "designated staff person"; (ii) an appeal to the Superintendent; and (iii) an appeal to CORC. (Dkt. No. 100-3, at 1-2). Thus, only the first step of Directive 4041, which requires submission of a grievance to a designated staff person, rather than the IGRC, is significantly different than Directive 4040.

B. Plaintiff's Placement in the AOSU at Hudson

In November 2018, Plaintiff "was placed in the AOSU as a result of a disciplinary hearing related to his cheeking medication." (Dkt. No. 83-4, ¶ 28; Dkt. No. 85-1, ¶ 27; Dkt. No. 83-1, at 2). Plaintiff did not file a grievance challenging his placement in the AOSU or the conditions of his confinement in the AOSU. (Dkt. No. 77-12, ¶ 22; Dkt. No. 83-4, ¶ 22). Plaintiff states that after reviewing Hudson's grievance procedures, it was his "understanding" that his "placement" in the AOSU "was not grievable." (Dkt. No. 83-2, ¶ 3-5).

C. Plaintiff's Grievances at Hudson

While he was at Hudson, Plaintiff filed three grievances. (Dkt. No. 77-12, ¶ 18; Dkt. No. 83-4, ¶ 18). The first grievance concerned his alleged failure to receive corrective eyeglasses. (Dkt. No. 77-12, ¶ 19; Dkt. No. 83-4, ¶ 19). The second and third grievances, which Plaintiff submitted while in the AOSU, concerned the form of Plaintiff's medication and Plaintiff'srequest "to move to a different cell within the AOSU," respectively. (Dkt. No. 77-12, ¶¶ 20-21; Dkt. No. 83-4, ¶¶ 20-21).

III. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248). The movant may meet this burden by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

If the moving party meets this burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys, 426 F.3d at 553-54 (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)).

IV. DISCUSSION

Defendants argue they are entitled to summary judgment because Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 77-11, at 7-12). Plaintiff responds that because "disciplinary infractions are non-grievable," there were no administrative remedies available to him. (Dkt. No. 83, at 5 (citing 7 N.Y.C.R.R. § 701.3(e)(2))).

The PLRA provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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." 42 U.S.C. § 1997e(a). This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). "As a juvenile in a resident facility, plaintiff is obligated to exhaust his administrative remedies per the PLRA."⁴ Molina v. New York, No. 1:09-cv-00467, 2011 WL 6010907, at *4, 2011 U.S. Dist. LEXIS 138188, at *12 (N.D.N.Y. Dec. 1, 2011) (citing Lewis ex rel. Lewis v. Gagne, 281 F. Supp. 2d 429, 433 (N.D.N.Y. 2003)).

To properly exhaust his administrative remedies, an inmate must complete the administrative review process in accord with the applicable state procedural rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007). Failure to exhaust administrative remedies is an affirmative defense; accordingly, a defendant bears the burden of persuasion on whether a plaintiff failed to satisfy the exhaustion requirements. See id. at 216; Hubbs v. Suffolk Cty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015); Nelson v. Plumley, No. 12-cv-422, 2015 WL 4326762, at *7, 2015 U.S. Dist. LEXIS 91905, at *20 (N.D.N.Y. July 14, 2015) ("As an affirmative defense, the partyasserting failure to exhaust administrative remedies typically bears the ultimate burden of proving its essential elements by a preponderance of the evidence." (...