17‐3346

Grafton v. Hesse

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 29th day of August, two thousand nineteen. 

PRESENT: 

PETER W. HALL, 

DEBRA ANN LIVINGSTON, 

Circuit Judges, 

JANE A. RESTANI, 

Judge.* 

KENNETH GRAFTON, 

Plaintiff-Appellant, 

MICHAEL BLAYLOCK, BILAL HASSAM, 

 

 Plaintiffs, 

v. No. 17-3346-cv 

ASSISTANT DEPUTY UNDERSHERIFF HESSE, CHIEF 

ADMINISTRATIVE OFFICER, LIEUTENANT MILLER,

GRIEVANCE COORDINATOR, MARCOLINO, GRIEVANCE 

INVESTIGATOR, RESHAD, GRIEVANCE INVESTIGATOR,

RODRIGUEZ, GRIEVANCE INVESTIGATOR, MERRIWEATHER,

                                                            

*Judge Jane A. Restani, of the United States Court of International Trade, sitting by 

designation. 
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GRIEVANCE INVESTIGATOR, CORPORAL FIELDING, AREA 

SUPERVISOR,

 Defendants-Appellees. 

 

For Plaintiff-Appellant: CHARLES D. COLE, JR., Newman Myers 

Kreines Gross Harris, P.C., New York, NY. 

For Defendants-Appellees: JARED A. KASSCHAU, (Robert F. Van der 

Waag, Deputy County Attorney, on the 

brief), County Attorney of Nassau County, 

Mineola, NY. 

Appeal from a judgment of the United States District Court for the Eastern 

District of New York (Feuerstein, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED. 

 Kenneth Grafton, formerly incarcerated at Nassau County Correctional Center 

(“NCCC”), appeals from the district court’s September 28, 2017 judgment granting 

defendants’ motion to dismiss based on his failure to exhaust administrative 

remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 

1997e(a). Grafton asserts he was excused from exhausting his claim through NCCC’s 

prison grievance system because prison staff made the grievance system unavailable 

to him. We assume the parties’ familiarity with the underlying facts, the procedural 

history of the case, and the arguments presented on appeal. 

We review de novo a district court’s grant of a motion to dismiss. Williams v. 

Correction Officer Priatno, 829 F.3d 118, 121 (2d Cir. 2016). In so doing, “we accept 

all of the factual allegations in the complaint as true,” drawing all reasonable 
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inferences in favor of the non-moving party. Id. at 122. Because Grafton appeared 

pro se before the district court, we are “to conduct our examination with special 

solicitude, interpreting the complaint to raise the strongest claims that it suggests.” 

Id. (internal citations and quotation marks omitted). 

The PLRA states, “No 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.” 42 U.S.C. § 1997e(a). Grafton acknowledges that he did 

not exhaust administrative remedies, but he maintains that he is excused because 

prison staff members had made those remedies unavailable to him. 

In Ross v. Blake, 136 S. Ct. 1850 (2016), the Supreme Court explained there 

are three circumstances in which an administrative remedy is unavailable: (1) “it 

operates as a simple dead end—with officers unable or consistently unwilling to 

provide any relief to aggrieved inmates;” (2) the remedy is “so opaque” that “no 

ordinary prisoner can make sense of what it demands;” and (3) “prison administrators 

thwart inmates from taking advantage of a grievance process through machination, 

misrepresentation, or intimidation.” Id. at 1859–60. 

 Grafton first argues that the grievance process was unavailable to him because 

NCCC staff members’ intimidation put him and his co-plaintiffs “under threat of 

retaliation” due to the grievances they had filed challenging prison conditions in the 

medical unit. Appellant’s Br. 13. This argument fails. We have held that where 

there has been no affirmative action by prison staff actually preventing prisoners 
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from pursuing administrative remedies, those remedies are not unavailable under 

the PLRA. Ruggiero v. Cty. of Orange, 467 F.3d 170, 178 (2d Cir. 2006). Here, Grafton 

and his co-plaintiffs, in their complaint, pleaded that they had filed grievances 

subsequent to the staff members’ threats. Based on the record before us, Grafton was 

never actually prevented from filing a grievance at NCCC. The district court thus 

properly determined staff members’ intimidation had not made the prison grievance 

system unavailable to Grafton. 

Next, Grafton asserts that prison staff were consistently unwilling to provide 

relief and that the grievance system was a “dead end with [him] being asked to supply 

documents that he did not have and grievances not being collected and processed as 

required.” Appellant’s Br. 8. Again, we are not persuaded. 

This circuit’s decision in White v. Velie, 709 F. App’x 35 (2d Cir. 2017) 

(summary order) provides guidance here. In White, the panel determined that prison 

staff members were not consistently unwilling to grant relief when the prisoner did 

not provide documentation of the outcomes of his past grievances or present “any 

evidence about the outcomes in the grievance system in general.” Id. at 38–39. Here, 

Grafton has not provided any evidence regarding the outcome of his past grievances 

and indicating if or how other NCCC inmates’ grievances had been resolved. The 

evidence Grafton does provide—several of his past grievances containing the notation 

“Grievance Accepted”—undermines his argument that prison staff had made the 

prison grievance system a dead end by not collecting and processing grievances as 

required. Examining the complaint as a whole, we cannot say that Grafton plausibly 
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pleaded that staff members were consistently unwilling to provide him with relief. 

Because there is no plausible basis for determining otherwise, we conclude Grafton 

was not excused from exhausting his administrative remedies and the district court 

properly dismissed Grafton’s claim. 

The district court’s judgment is AFFIRMED. 

 FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court