Thomas v. Wood

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JAMES THOMAS,

Plaintiff, 19-CV-6915-FPG

v.

DECISION AND ORDER

T. WOOD, et al.,

Defendants.

INTRODUCTION

Plaintiff filed this action on December 23, 2019, asserting claims under both the Eighth

and Fourteenth Amendments. ECF No. 1. On February 5, 2020, Plaintiff filed an Amended

Complaint. ECF No. 10. On March 31, 2020, the Court entered an Order indicating that both

Plaintiff’s initial Complaint and Amended Complaint were active pleadings, but the Court

dismissed Plaintiff’s Fourteenth Amendment claims. ECF No. 16.

Defendants answered the Complaint on June 10, 2020, ECF No. 20, and the case was

referred to United States Magistrate Judge Mark W. Pedersen, for all pretrial matters excluding

dispositive motions. ECF No. 21. On March 3, 2021, Defendants filed a motion for judgment on

the pleadings, ECF No. 39, and after the Court appointed limited scope pro bono counsel, Plaintiff

responded in opposition. ECF No. 44. Defendants timely replied. ECF No. 46.

In their initial motion, Defendants argue that Plaintiff failed to exhaust his claims and

therefore, pursuant to the Prison Litigation Reform Act, the case must be dismissed. See ECF No.

39-2 at 4-5. In response, Plaintiff, through counsel, notes that the failure to exhaust is not a basis

upon which the Court may grant a motion for judgment on the pleadings as it is not a jurisdictional

issue, and that Plaintiff’s Complaint includes assertions that his administrative remedies were, in

fact, exhausted. See ECF No. 44 at 5-9. Defendants, recognizing the error in asserting that

exhaustion under the Prison Litigation Reform Act was grounds for dismissal, requested that the

Court convert the motion to a motion for summary judgment and provide Plaintiff with proper

notice. ECF No. 46 at 2. The Court agreed and entered a Decision and Order indicating that the

motion would be construed as one for summary judgment and sent Plaintiff notice on October 13,

2021. ECF No. 48.

On October 22, 2021, Plaintiff filed an Objection to the Court’s Decision and Order arguing

that the Court should not have converted the pending motion into one for summary judgment

because Defendants did not comply with the specific pleading requirements for a Rule 56 motion.

ECF No. 49 at 2. More specifically, Plaintiff argued that Defendants’ submission failed to include

a statement of material facts. Id. Nevertheless, on November 8, 2021, Plaintiff filed his response.

ECF No 50. In addition, on November 15, 2021, Plaintiff filed a Motion to Appoint Counsel. ECF

No. 51.

For the reasons set forth below, the Motion for Summary Judgment, ECF No. 39, is

GRANTED and Plaintiff’s Complaint is DISMISSED. Because the Court was able to decide the

motions on the submitted papers, including Plaintiff’s counseled brief, Plaintiff’s Motion to

Appoint Counsel, ECF No. 51, is DENIED.

BACKGROUND

At the times relevant to this claim, Plaintiff James Thomas was an inmate at Wende

Correctional Facility (“Wende”) in Alden, New York. ECF No. 1 at 1. On December 23, 2019,

Plaintiff filed this Complaint against two correctional officers from Wende—J. Wood and J.

Klepp. Id. On February 5, 2020, Plaintiff filed an Amended Complaint, again asserting claims

against Wood and Klepp and adding claims against Deputy Superintendent K. Brown. ECF No.

10. This Court construed both complaints as being operative in its March 31, 2020 Order. ECF

No. 16.

According to Plaintiff, on November 23, 2019, Defendant Wood allowed two inmates to

enter Plaintiff’s cell and assault him by cutting him in the head and face. ECF No. 1 at 5.

Defendant Wood was allegedly aware of the violence and did not attempt to stop it. Id. Plaintiff

indicates that he filed a grievance and appealed this claim. In particular, he alleges that he received

no response after filing the initial grievance and wrote to the Superintendent and OSI. Id.

Then, on November 24, 2019, Plaintiff asserts that at 6:22 p.m. his cell gate was opened

and another inmate entered and stabbed him in his face and head while Defendant Klepp and

Defendant Wood watched. Id. at 6. Plaintiff was later taken to the hospital. Id. Plaintiff again

indicates that he filed a grievance, appealed the claim, received no response, and wrote to the

Superintendent and OSI. Id.

Sometime thereafter, Plaintiff was placed in the Special Housing Unit (the “SHU”) where

he spent 30 days. ECF No. 10 ¶ 7. During those 30 days, Plaintiff states that he “wrote over 6

[l]etter[s] to defendant that a hit has been put out on him.” Id. ¶ 8. On December 23, 2019, Plaintiff

filed this claim. See ECF No. 1.

On January 17, 2020, Plaintiff was released from SHU and placed in a housing block. ECF

No. 10 ¶ 13. On January 29, 2020, Plaintiff was again assaulted. Id. ¶ 14. As a result, Plaintiff

filed the amended complaint on February 5, 2020, containing such factual allegations. Id.

DISCUSSION

I. Conversion to Motion for Summary Judgment

A district court’s “conversion of a Rule 12[c] motion into one for summary judgment is

governed by principles of substance rather than form.” Hawkins v. GM Components Holdings

LLC, 405 F. Supp. 3d 483, 485 (W.D.N.Y. 2019) (quoting Sahu v. Union Carbide Corp., 548 F.3d

59, 67 (2d Cir. 2008) (quotations omitted)). Meaning, despite Plaintiff’s objection, it is not

necessary for the parties to submit a statement of material facts as required by the Local Rules of

Civil Procedure for the Court to convert the instant motion into one for summary judgment. Id.;

see also, e.g., G & A Books, Inc. v. Stern, 770 F.2d 288, 295 (2d Cir. 1985) (“Even where only the

party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the

opposing party may be deemed to have had adequate notice that the motion to dismiss would be

converted.”); Bd. of Trs. of Teamsters Local 918 Pension Fund v. Freeburg & Freeburg, C.P.A.,

No. 98-CV-4895(SJ), 1999 WL 803895, at *4 (E.D.N.Y. Sept. 28, 1999) (“[I]n a motion to dismiss

under 12(b)(6), where affidavits and exhibits in addition to the pleadings are presented to and not

excluded by the court, the court must convert the 12(b)(6) motion into a motion for summary

judgment.” (collecting cases)). Regardless, Defendants filed a response to Plaintiff’s statement of

material facts indicating which factual assertions they agree with and which they do not. See ECF

No. 52.

II. Motion for Summary Judgment

A. Legal Standard

Summary judgment is appropriate when the record shows that there is “no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material

facts are genuine where the evidence is such that a reasonable jury could return a verdict for the

non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding

whether genuine issues of material fact exist, the court construes all facts in a light most favorable

to the non-moving party and draws all reasonable inferences in the non-moving party’s favor. See

Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).

“The moving party bears the burden of showing the absence of a genuine dispute as to any

material fact[.]” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014).

Once the moving party has met its burden, the opposing party “must do more than simply show

that there is some metaphysical doubt as to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d

42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)).

Specifically, the non-moving party “must come forward with specific evidence demonstrating the

existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the mere

existence of some alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no genuine issue of

material fact.” Anderson, 477 U.S. at 247-48.

B. Exhaustion

Under the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “[n]o action

shall be brought with respect to prison conditions under section 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.” The administrative exhaustion requirement “applies to

all inmate suits about prison life, whether they involve general circumstances or particular

episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002). If an inmate fails to exhaust his

administrative remedies, he is barred from commencing a federal lawsuit. Martin v. Niagara Cty.

Jail, No. 05-CV-00868, 2012 WL 3230435, at *6 (W.D.N.Y. Aug. 6, 2012). In other words, to

commence a lawsuit “prisoners must complete the administrative review process in accordance

with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison

grievance process itself.” Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (internal quotations

and citation omitted). Exhaustion necessitates “using all steps that the [government] agency holds

out, and doing so properly.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting

Woodford v. Ngo, 548 U.S. 81, 90 (2006)). To be “[p]roper,” exhaustion must comply with all of

the agency’s “deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90-91.

To satisfy the PLRA’s exhaustion requirement, an inmate in New York is generally

required to follow the prescribed grievance procedure, which is set forth at 7 N.Y.C.R.R. § 701.5.

The grievance process begins with filing a complaint within 21 days of the alleged incident. Id. at

§ 701.5(a)(1). Typically, inmates file the grievances directly with the grievance clerk.1 Id. The

inmate’s administrative remedies consist of a three-step grievance and appeal procedure: (1)

investigation and review of the grievance by the Inmate Grievance Resolution Committee

(“IGRC”); (2) if appealed, review of the IGRC’s determination by the superintendent of the

facility; and (3) if the superintendent’s decision is appealed, review and final administrative

determination by the Central Office Review Committee (“CORC”). See § 701.5. All three steps

of this procedure must ordinarily be exhausted before an inmate may commence suit in federal

court. See Morrison v. Parmele, 892 F. Supp. 2d 485, 488 (W.D.N.Y. 2012).

However, the Supreme Court has identified several situations in which administrative

remedies are deemed “unavailable”: (1) when the procedure operates as a simple dead end, with

officers consistently unwilling to provide any relief; (2) when an administrative scheme is so

opaque that it becomes essentially incapable to use; and (3) when prison administrators prevent

1 However, in situations where, as alleged here, the inmate is housed in the SHU, he may give the grievance complaint

to a correction officer to file for him. See 7 N.Y.C.R.R. § 701.7.

inmates from using the grievance process.2 See Ross v. Blake, 578 U.S. 632, 642-44 (2016) 136

S. Ct. 1850, 1859-60.

As an initial matter, to the extent Plaintiff is asserting a claim due to the alleged January

29, 2020 incident, his claim must be dismissed. Indeed, Plaintiff makes no allegation that he

exhausted his administrative remedies or even began the administrative process as a result of the

January 29, 2020 incident, nor does he assert that the administrative remedies were unavailable to

him. Rather, Plaintiff alleges that he would have “more proof” of the incident once a hearing had

taken place. See ECF No. 10 ¶ 15. It is unclear to this Court whether the alleged hearing was

occurring in relation to a grievance that was filed due to this incident or for some other purpose.

Therefore, Defendants’ Motion for Summary Judgment for failure to exhaust concerning the

January 29, 2020 incident is GRANTED as Plaintiff has provided no evidence or factual assertion

from which the Court may find that a material question of fact exists.

Plaintiff’s allegations regarding the grievances concerning the events that occurred on

November 23, 2019 and November 24, 2019 are less clear. In his initial Complaint, ECF No. 1,

Plaintiff asserts that he grieved the claims and further provides that after receiving no response, he

wrote to the Superintendent and OSI. See ECF No. 1 at 5-6. In his Amended Complaint, Plaintiff

asserts that he notified a defendant of his safety concerns and wrote over six letters to Defendant

Brown “that a hit has been put out on him and that he needed PC[.]” ECF No. 10 ¶ 8. In opposition

to the summary judgment motion, Plaintiff asserts in a conclusory manner that he submitted all

necessary grievances to facility administration. ECF No. 50 at 2. He further argues that the

2 Because the failure to exhaust is an affirmative defense, Defendants bear the initial burden of establishing that the

grievance process exists and applies to the underlying dispute. See Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir.

2003). If Defendants meet that burden, remedies may still be deemed unavailable if Plaintiff can demonstrate that

other factors rendered the procedure unavailable as a matter of law. Hemphill v. New York, 280 F.3d 680, 688 (2d

Cir. 2004).

absence of such grievances in the prison’s file system demonstrates that exhaustion remedies were

unavailable as the officials may have disposed of the grievances as a means of inconveniencing

him. Id. at 3.

As an initial matter, the Court recognizes that the regulations provide that inmates in the

SHU may file grievances by giving the complaint to a correction officer to forward to a grievance

clerk and that courts have further found that the regulations do not sufficiently outline the process

to appeal where a grievance is never filed. See Williams v. Correction Officer Priatno, 829 F.3d

118, 124 (2d Cir. 2016). Thus, where an inmate attempts to timely file a grievance by handing it

to an officer while in the SHU and the officer fails to file the grievance, the inmate’s avenues for

pursuing the grievance would be deemed unavailable. Id.

However, those are not the circumstances that Plaintiff alleges here. While Plaintiff claims

that during his time housed in the SHU he wrote various letters to Defendant Brown, he does not

allege that the letters were grievances for alleged improper conduct or that they were not properly

filed. Rather, Plaintiff expressly states that the letters informed Defendant Brown that a “hit” had

been placed on him and requested he be placed in protective custody. ECF No. 50 at 10 ¶ 19

(“Thomas Decl.”). Those requests were later denied. See ECF No. 10 ¶ 8, 11. At no point does

Plaintiff assert that such letter requests also included complaints of the November 23, 2019 or

November 24, 2019 misconduct, or that such letters were meant to be filed with the grievance

clerk.3 Indeed, letters cannot simply be treated as a “grievance.” See 7 N.Y.C.R.R. § 701.2(a) (“A

letter addressed to facility or central office staff is not a grievance.”); see, e.g., Timmons v. Schriro,

3 Additionally, Plaintiff asserts that these letters were written during his 30 days in the SHU, which ended with a

release on January 17, 2020. Thomas Decl. ¶ 11. Therefore, accepting Plaintiff’s allegations as true, he was placed

in the SHU sometime around December 18, 2019. The grievance process begins with filing a complaint within 21

days of the alleged incident. 7 N.Y.C.R.R. § 701.5(a)(1). December 15, 2019 is 21 days after the November 24, 2019.

Thus, it is unclear to this Court whether a grievance filed while Plaintiff was in the SHU would even be rendered

timely.

No. 14-CV-6606 RJS, 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law is well-

settled that informal means of communicating and pursuing a grievance, even with senior prison

officials, are not sufficient under the PLRA.”); Muhammad v. Pico, No. 02-CV-1052, 2003 WL

21792158, at *8 (S.D.N.Y. Aug. 5, 2003) (“District court decisions in this circuit have repeatedly

held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy

the PLRA’s exhaustion requirements.”) (footnote omitted).

In any event, Plaintiff continues to assert that he “submitted all necessary grievances to

facility administration,” ECF No. 50 at 2, and points to his own testimony in support, see Thomas

Decl. ¶ 29. However, Plaintiff only alleges that after grievances went unanswered, he wrote letters

to the Superintendent. Even assuming these letters could constitute grievance appeals under the

regulations, Plaintiff does not assert he appealed or attempted to appeal through the CORC—a

necessary step to exhaustion. See 7. N.Y.C.R.R. § 701.5(d); Omaro v. Annucci, 68 F. Supp. 3d

359, 364 (W.D.N.Y. 2014) (“It is well established that an inmate who does not appeal to CORC

has failed to exhaust his administrative remedies.”). Defendants, in fact, provide a certified

printout of database results listing all grievances filed by Plaintiff while detained at Wende, which

they argue demonstrates that no such grievance was filed concerning the events at issue here. ECF

No. 39-1 at 6-8 (“Ex. A”).

Nevertheless, Plaintiff maintains that Defendants’ claim that no evidence of exhaustion

exists is simply evidence of their own “mismanagement of records,” Thomas Decl. ¶ 30, and

creates a question of fact that must be resolved at a hearing. ECF No. 44 at 8 (relying on Ortiz v.

Annucci, No. 17-CV-3620 (RJS), 2019 WL 1438006, at *9 (S.D.N.Y. Mar. 29, 2019)). However,

the circumstances in Ortiz v. Annucci are easily distinguished from the circumstances present here.

In Ortiz, the plaintiff claimed that he completed each step in the grievance process. Specifically,

the plaintiff asserted that while he was in the SHU he asked for a grievance form and was denied.

Ortiz, 2019 WL 1438006 at *3. Following the denial, he wrote a grievance on plain stationery,

made a contemporaneous copy, placed the original in an envelope addressed to the IGRC, and

dropped it into a mailbox. Id. He claims that at that point, it was either thrown out or destroyed

and never filed. Id. After failing to receive a response, plaintiff asserts he requested an appeal

form and was again denied access. Id. Again, he wrote an appeal on plain stationery, made a

contemporaneous copy, and sent the original to the grievance committee. Id. After receiving a

response indicating that no initial grievance was received, Plaintiff appealed to CORC. Id. After

no response was sent by CORC, he wrote a letter to the Governor, District Attorney, and

Commissioner of DOCCS. Id.

In support of his satisfaction of the exhaustion requirement, the plaintiff in Ortiz pointed

to his own testimony and copies of the grievance and appeal. Id. The defendants, on the other

hand, relied on various declarations which attested that a records review failed to uncover any

grievance or other documentation concerning the incident. Id. at *2.

In finding that plaintiff sufficiently demonstrated a genuine dispute of material fact existed,

the court in Ortiz noted that the plaintiff not only relied on his own testimony but on a copy of the

grievance itself. Id. at *9. Additionally, the court determined that plaintiff’s theory that officers

were interfering with his attempts to file grievances was further supported by the fact that the

grievance was submitted on ordinary stationery and that the affidavits from fellow inmates

indicated issues of harassment involving defendants and plaintiff were frequent. Id. Indeed, the

court also found that defendants’ evidence suggested the same—the absence of records of

plaintiff’s appeal demonstrated that officers failed to file the grievance or otherwise obstructed it.

Id.

Though the Court does not diminish the severity of Plaintiff's allegations, the Court does

not find that Plaintiff—even construing allegations in his favor—has supplied any evidence from

which the Court may find a question of material facts exists. Brown, 654 F.3d at 358 (the non-

moving party “must come forward with specific evidence demonstrating the existence of a genuine

dispute of material fact”). Plaintiff does not point to any evidence other than his own conclusory

testimony that all necessary grievances were filed. He makes no allegations that Defendants or

other officers attempted to interfere with the grievance procedure. He does not claim that the

letters provided to Defendant Brown contained complaints of misconduct or were meant to be filed

with the grievance clerk. Instead, without any evidence or support, Plaintiff asserts that

Defendants’ lack of record demonstrates their own mismanagement of such. Thomas Decl. § 30.

It would be improper for this Court to alone rely on Plaintiffs conclusive assertion that he filed

all necessary grievances without any factual support, and instead conclusively assert Defendants’

mismanagement. Therefore, Defendant’s Motion for Summary Judgment, ECF No. 39, is

GRANTED.

CONCLUSION

For the reasons discussed, Plaintiff's Motion to Appoint Counsel, ECF No. 51, is DENIED

and Defendants’ Motion for Summary Judgment, ECF No. 39, is GRANTED and Plaintiff's claims

are DISMISSED. The Clerk of Court is directed to enter judgment and close this case.

IT IS SO ORDERED.

Dated: December 8, 2021 ;

Rochester, New York :

¢ FRANK P. th JR.

United States District Fudge

Western District of New York

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