14-3365 

Richardson v. New York State Department of Corrections

 

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 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 

22nd day of February, two thousand sixteen. 

Present: AMALYA L. KEARSE, 

 ROSEMARY S. POOLER, 

 ROBERT D. SACK, 

 Circuit Judges. 

_____________________________________________________ 

ROLAND RICHARDSON, 

 Plaintiff-Appellant, 

 v. 14-3365 

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 

SUPERVISION EMPLOYEES, in their individual capacities, PATRICK J. GRIFFIN, 

Superintendent of Sullivan Correctional Facility, C.O. R. LORDO, SERGEANT WILLIAM 

HAAS, CAROL LICIAGO, Facility Nurse - RN, C.O.D. LAWRENCE, LIEUTENANT 

SIPPLE, C.O. BRUNO, Visit Room Officer, 

 Defendants-Appellees.

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_____________________________________________________ 

 

Appearing for Appellant: Ellyde R. Thompson (William B. Adams, on the brief), Quinn 

Emanuel Urquhart & Sullivan, LLP, New York, NY. 

Appearing for Appellee: David Lawrence III, Assistant Solicitor General (Barbara D. 

Underwood, Solicitor General, and Steven C. Wu, Deputy Solicitor 

 

1 The Clerk of Court is directed to amend the official caption to conform with the caption above.
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General, on the brief), for Eric T. Schneiderman, Attorney General 

of the State of New York, New York, NY. 

Appeal from the United States District Court for the Southern District of New York (Schofield, 

J.). 

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

 Roland Richardson appeals from the August 12, 2014 judgment of the United States 

District Court for the Southern District of New York (Schofield, J.), dismissing his complaint for 

failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act of 1995 

(PLRA), 42 U.S.C. §§ 1997e et seq. On appeal, Richardson argues that the district court erred in 

granting summary judgment to Defendants because, according to Richardson, there are disputed 

factual issues concerning whether Richardson’s failure to exhaust is excused under the three-part 

inquiry articulated in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). We assume the 

parties’ familiarity with the underlying facts, procedural history, and specification of issues for 

review. 

 “We review de novo a district court’s ruling on whether a plaintiff has exhausted 

administrative remedies under the [PLRA].” Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009). 

In reviewing the district court’s grant of summary judgment, we “constru[e] all evidence in the 

light most favorable to the non-moving party, and affirm[] only where ‘there is no genuine issue 

as to any material fact and the movant is entitled to judgment as a matter of law.’” Hubbs v. 

Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (citation omitted) (quoting Fed. R. 

Civ. P. 56(a)). 

 The PLRA’s exhaustion provision provides that “[n]o 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). In Woodford v. Ngo, 548 U.S. 81 (2006), the 

Supreme Court interpreted this provision to require “proper exhaustion.” Id. at 84. “[A]n 

untimely or otherwise procedurally defective administrative grievance or appeal” will not 

suffice. Id. at 83-84. 

 Here, there is no serious dispute that Richardson failed to properly exhaust his 

administrative remedies, as he failed to take an administrative appeal to the central office review 

committee. Richardson argues, however, that his failure to exhaust should be excused under the 

three-part inquiry articulated in Hemphill, 380 F.3d at 686. Under Hemphill, to determine 

whether an inmate’s failure to exhaust should be excused, we ask, first, “whether administrative 

remedies were in fact ‘available’ to the prisoner.” Id. Second, we “inquire as to whether the 

defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or 

preserve it, or whether the defendants’ own actions inhibiting the inmate’s exhaustion of 

remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust 

as a defense.” Id. (citations omitted). Third, if we “find[] that administrative remedies were 

available to the plaintiff, and that the defendants are not estopped and have not forfeited their 

non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, 
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[we] should consider whether ‘special circumstances’ have been plausibly alleged that justify 

‘the prisoner’s failure to comply with administrative procedural requirements.’” Id. (quoting 

Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004)). While we have questioned the “continued 

viability” of these exceptions after Woodford, see Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 

2011), there is no need to address that issue here because Richardson has not demonstrated that 

his failure to exhaust is justified even under pre-Woodford caselaw. 

 With respect to the first part of the Hemphill inquiry, Richardson’s failure to properly 

exhaust is not excused because administrative remedies were in fact available to him. Although 

Richardson claims that he never received the superintendent’s decision denying his grievance, 

this fact is ultimately irrelevant because department of corrections regulations expressly provide 

that “[i]f the superintendent fails to respond within the required 25 calendar day time limit[,] the 

grievant may appeal his/her grievance to [the central office review committee].” N.Y. Comp. 

Codes R. & Regs. tit. 7, 701.8(g). The fact that Richardson was transferred to a different facility 

after he filed his grievance does not affect this analysis because Richardson retained the ability to 

appeal his grievance to the central office review committee even after he was transferred. Nor 

does the fact that Richardson may have believed an appeal to be futile excuse his failure to 

exhaust. See Giano v. Goord, 250 F.3d 146, 150-51 (2d Cir. 2001) (“[T]he alleged 

ineffectiveness of the administrative remedies that are available does not absolve a prisoner of 

his obligation to exhaust such remedies when Congress has specifically mandated that he do 

so.”). 

 Second, Defendants are not estopped from raising Richardson’s failure to exhaust. 

Richardson has never contended that he failed to appeal because of threats from prison officials, 

and any such contention would be implausible given that Defendants’ conduct did not deter 

Richardson from submitting a grievance to the grievance committee. 

 Third, there are no “special circumstances” that justify Richardson’s failure to exhaust. 

Richardson argues that special circumstances exist essentially for the same reasons that he argues 

exhaustion is excused under the first two parts of the Hemphill inquiry. For the same reasons that 

Richardson has not demonstrated that exhaustion is excused under the first two parts of the 

Hemphill inquiry, he has not demonstrated that special circumstances justify his failure to 

exhaust. 

 We have considered the remainder of Richardson’s arguments and find them to be 

without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk