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‐ 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 FILE D 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 PAR TY 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 Stat es Courthouse, 40 Foley Square, in the City of New York, on the 29 th day of August, two thousand nineteen.

PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges , JANE A. RESTANI, Judge

. *

K ENNETH G RAFTON , Plaintiff-Appellant , M ICHAEL B LAYLOCK , B ILAL H ASSAM , Plaintiffs , v. No. 17-3346-cv

A SSISTANT D EPUTY U NDERSHERIFF H ESSE , C HIEF A DMINISTRATIVE O FFICER , L IEUTENANT M ILLER , G RIEVANCE C OORDINATOR , M ARCOLINO , G RIEVANCE I NVESTIGATOR , R ESHAD , G RIEVANCE I NVESTIGATOR , R ODRIGUEZ , G RIEVANCE I NVESTIGATOR , M ERRIWEATHER ,

* Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation.2 G RIEVANCE I NVESTIGATOR , C ORPORAL F IELDING , A REA S UPERVISOR , Defendants-Appellees

.

For Plaintiff-Appellant : C HARLES D. C OLE , J R ., Newman Myers Kreines Gross Harris, P.C., New York, NY. For Defendants-Appellees : J ARED A. K ASSCHAU , (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 Liti gation Reform Act (“ PLRA”), 42 U.S.C. § 1997e(a). Grafton asserts he was excused from exhausting his claim through NCCC’s prison grievance system beca use 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 reasonable3 inferences in favor of the non-moving party. Id. at 122. Because Grafton appeared pro se before the district court, we ar e “to conduct our examination with special solicitude, interpreting the complaint to ra ise 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 othe r 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 acknow ledges that he did not exhaust administrative remedies, but he maintains that he is excused because prison staff members had made thos e remedies unavailable to him.

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

are three circumstances in which an admini strative remedy is unavailable: (1) “it operates as a simple dead end—with offi cers 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 grievanc e 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 ar gument fails. We have held that where there has been no affirmative action by pr ison staff actually preventing prisoners4 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 grie vance at NCCC. The district court thus properly determined staff members’ intimi dation 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 “de ad end with [him] being asked to supply documents that he did not have and grieva nces 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 unwillin g 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 rega rding the outcome of his past grievances and indicating if or how other NCCC inmate s’ grievances had been resolved. The evidence Grafton does provide—several of hi s past grievances containing the notation “Grievance Accepted”—undermines his argu ment that prison staff had made the prison grievance system a dead end by no t collecting and processing grievances as required. Examining the complaint as a whole, we cannot say that Grafton plausibly5 pleaded that staff members were consistently unwilling to provide him with relief. Because there is no plausible basis for de termining otherwise, we conclude Grafton was not excused from exhausting his admini strative 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