Bowie v. Woodruff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

EDMUND BOWIE,

Plaintiff, 9:18-cv-00266 (BKS/ML)

v.

SERGEANT GARY WOODRUFF and CORRECTIONAL

OFFICER KYLE BROOKS,

Defendants.

Appearances:

Plaintiff pro se:

Edmund Bowie

14-B-0838

Auburn Correctional Facility

P.O. Box 618

Auburn, New York 13021

For Defendants:

Letitia James

Attorney General for the State of New York

Richard C. White

The Capitol

Albany, New York 12224

Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Edmund Bowie, a New York State inmate proceeding pro se, brought this action

under 42 U.S.C. § 1983, alleging that Defendants subjected him to excessive force in violation of

the Eighth Amendment. (Dkt. No. 1, at 2–3). On April 26, 2019, Defendants moved for summary

judgment on the ground that Plaintiff failed to exhaust his administrative remedies. (Dkt. No.

29). Plaintiff did not respond to the motion, although he requested and was granted an extension

Miroslav Lovric who, on September 20, 2019, issued a Report-Recommendation and Order

recommending that Defendants’ motion for summary judgment be granted and that Plaintiff’s

complaint be dismissed without prejudice. (Dkt. No. 35). Magistrate Judge Lovric advised the

parties that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written

objections to the report, and that the failure to object to the report within fourteen days would

preclude appellate review. (Dkt. No. 35, at 15–16). No objections were filed.

For the following reasons, Magistrate Judge Lovric’s Report-Recommendation is

adopted.

II. STANDARD OF REVIEW

As no objections to the Report-Recommendation have been filed and the time for filing

objections has expired, the Court reviews the Report-Recommendation for clear error. See

Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory

committee’s note to 1983 amendment.

III. DISCUSSION

Magistrate Judge Lovric recommended granting Defendants’ motion for summary

judgment because Plaintiff commenced this action before receiving a decision from the Central

Office Review Committee (“CORC”) on his appeal. Plaintiff sent his appeal to the CORC on

August 21, 2017. (Dkt. No. 29-3, at 7). The CORC received the appeal on August 29, 2017. (Id.

at 8). The CORC did not, however, decide the appeal within the applicable thirty-day time

period. See 7 N.Y.C.R.R. § 701.5(d)(3)(ii). Plaintiff commenced this action on March 1, 2018,

almost six months after the CORC had received his appeal. (Dkt. No. 1). The CORC denied

Plaintiff’s appeal on October 17, 2018, almost 14 months after the CORC had received it. (Dkt.

No. 29-3, at 9). Magistrate Judge Lovric determined that the CORC’s delay in rendering a

decision did not excuse Plaintiff from the exhaustion requirement. (Dkt. No. 35, at 14) (citing

Staples v. Patane, No. 17-cv-0703, 2018 WL 7361009, 2018 U.S. Dist. LEXIS 207971

(N.D.N.Y. Dec. 7, 2018), report and recommendation adopted, No. 17-cv-0703, 2019 WL

757937, 2019 U.S. Dist. LEXIS 26563 (N.D.N.Y. Feb. 20, 2019); Fox v. Lee, No. 15-cv-0390,

2018 WL 8576600, 2018 U.S. Dist. LEXIS 213705 (N.D.N.Y. Dec. 18, 2018), report and

recommendation adopted, No. 15-cv-0390, 2019 WL 1323845, 2019 U.S. Dist. LEXIS 48967

(N.D.N.Y. Mar. 25, 2019)).

There is a split of authority in this Circuit as to whether, under the Supreme Court’s

decision in Ross v. Blake, 136 S. Ct. 1850 (2016) and the Second Circuit’s decision Williams v.

Priatano, 829 F.3d 118 (2d Cir. 2016), this kind of delay by the CORC in issuing a timely

decision to a prisoner’s grievance renders exhaustion unavailable. Compare, e.g., Sherwood v.

Senecal, No. 17-cv-00899, 2019 WL 4564881, at *2–4, 2019 U.S. Dist. LEXIS 160295, at *4–8

(N.D.N.Y. Sept. 20, 2019); Mayandeunas v. Bigelow, No. 18-cv-1161, 2019 WL 3955484, at *4,

2019 U.S. Dist. LEXIS 142452, at *10–11 (N.D.N.Y. Aug. 22, 2019) (Suddaby, C.J.); Lovell v.

McAuliffe, No. 18-cv-0685, 2019 WL 4143361, 2019 U.S. Dist. LEXIS 74402 (N.D.N.Y. May 1,

2019), report and recommendation adopted, No. 18-cv-0685, 2019 WL 4142593, 2019 U.S.

Dist. LEXIS 147890 (N.D.N.Y. Aug. 30, 2019); Bell v. Napoli, No. 17-cv-850, 2018 WL

6506072, 2018 U.S. Dist. LEXIS 208503 (N.D.N.Y. Dec. 11, 2018); Yates v. Smith, No. 17-cv-

1227, 2018 WL 4635715, 2018 U.S. Dist. LEXIS 116276 (N.D.N.Y. July 11, 2018), report and

recommendation adopted, No. 17-cv-1227, 2018 WL 3727357, 2018 U.S. Dist. LEXIS 131450

(N.D.N.Y. Aug. 6, 2018); High v. Switz, No. 17-cv-1067, 2018 WL 3736794, 2018 U.S. Dist.

LEXIS 114403 (N.D.N.Y. July 9, 2018), report and recommendation adopted sub nom. High v.

PA Switz, No. 17-cv-1067, 2018 WL 3730175, 2018 U.S. Dist. LEXIS 131446 (N.D.N.Y. Aug.

6, 2018) with Staples, 2018 WL 7361009, 2018 U.S. Dist. LEXIS 207971; Berkley v. Ware, No.

16-cv-1326, 2018 WL 3736791, 2018 U.S. Dist. LEXIS 113521 (N.D.N.Y. July 6, 2018), report

and recommendation adopted, No. 16-cv-1326, 2018 WL 3730173, 2018 U.S. Dist. LEXIS

131445 (N.D.N.Y. Aug. 6, 2018). Although this Court has concluded that this kind of delay by

the CORC in responding to a prisoner’s appeal renders administrative remedies unavailable

under Ross, considering the intra-Circuit split on this issue, the Court cannot say that the

magistrate judge’s determination here rises to the level of clear error. See Warr v. Liberatore,

No. 13-cv-6508, 2018 WL 3237733, at *5, 2018 U.S. Dist. LEXIS 111126, at *13-14 (W.D.N.Y.

July 3, 2018) (explaining, in the context of a motion for reconsideration, that “considering the

split in authority . . . defendants have not demonstrated that [district court’s decision was] clearly

erroneous”).

Finally, the Court notes that, because the CORC has now rendered a decision on

Plaintiff’s grievance, (Dkt No. 29-3, at 9), his administrative remedies are now exhausted.

Plaintiff is therefore free to reinstitute his lawsuit, which is dismissed without prejudice. (Dkt.

No. 35, at 15). See Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (noting that where a plaintiff

fails to exhaust administrative remedies, and the defect can be cured, dismissal without prejudice

is proper)1

IV. CONCLUSION

For these reasons, it is

ORDERED that the Report-Recommendation (Dkt. No. 35) is ADOPTED; and it is

further

1The Court notes that Plaintiff has ample time to do so because the statute of limitations on Plaintiff’s claim tolled

for the duration of the mandatory administrative exhaustion process—that is, his limitations period tolled from the

time Plaintiff initiated his grievance process on June 23, 2017 until the CORC issued its final decision on October

17, 2018. (Dkt. No 29-3, at 3, 9). Gonzalez v. Hasty, 651 F.3d 318, 323–24 (2d Cir. 2011) (“[W]e join our sister

circuits and hold ‘that the applicable statute of limitations must be tolled while a prisoner completes the mandatory

exhaustion process.’” (quoting Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005))).

ORDERED that Defendants’ motion for summary judgment (Dkt. No. 29) is

GRANTED; and it is further

ORDERED that the complaint is DISMISSED WITHOUT PREJUDICE; and it is

further

ORDERED that the Clerk is directed to close this case; and it is further

ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with

the Local Rules.

IT IS SO ORDERED.

Dated: October 23, 2019 Aer ob cx Korres

Syracuse, New York ———_—

Brenda K. Sannes

U.S. District Judge