16-1183 White v. Velie 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A 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 15 th day of September, two thousand seventeen.
PRESENT: ROBERT A. KATZMANN, Chief Judge, ROBERT D. SACK, CHRISTOPHER F. DRONEY, Circuit Judges.

____________________________________________ John White, AKA John H. White, Plaintiff-Appellant , v. 16-1183 Eric P. Velie, RN Bruce, RN Atkinson, RN Wilson, RN Waterson, RN Lordi, RN Bergeron, RN Marlow, Michael Moore, Area Sergeant, Donald Uhler, Superindent, Donita E. Mc Intosh, Sandra Danforth, Earl Bell, Smith, Supervisor, Medical Personnel Defendants-Appellees , Alvin Gravlin, Melissa Cook, Counselor, Don Hoag, F.S.M., Defendants

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____________________________________________ FOR PLAINTIFF-APPELLANT: John H. White, pro se, Marcy, N.Y.FOR DEFENDANTS-APPELLEES: Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Victor Paladino, Allyson B. Levine, Assistant Solicitors General, Albany, N. Y.

Appeal from a judgment of the United States Di strict Court for the Northern District of New York (McAvoy, J .; Baxter, M.J. ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant John H. White, proceeding pro se , appeals the district court’s judgment dismissing some of his 42 U.S.C. § 1983 claims and granting summary judg ment to the defendants on his remaining claims because he had not exha usted his administrative remedies. We assume the parties’ familiarity with the underlying facts, the procedural hist ory of the case, and the issues on appeal. We review orders granting summary judgment de novo , focusing on whether the district court properly concluded that ther e was no genuine dispute as to a ny material fact and that the moving party was entitled to judgment as a matter of law. Sotomayor v. City of New York , 713 F.3d 163, 164 (2d Cir. 2013). The district court ru led that White had not exhausted his claims because, although he had asserted that he file d grievances and received no response, he was required to properly appeal an unanswered grievance. Our exhaustion case law has changed sin ce the district court’s decision. In Ross v. Blake , 136 S. Ct. 1850 (2016), the Supreme Court ruled that special circumstance s could not excuse a prisoner’s failure to exhaust, but an inmate need not exhaust his cl aims if administrative remedies are not available. “ Ross largely supplants our [special ci rcumstances] inquiry by framing the exception issue entirely within the context of whether administrative remedies were actually3 available to the aggrieved inmate.” Williams v. Priatno , 829 F.3d 118, 123 (2d Cir. 2016). White first argues that he did not need to exhaust the issues underlying his § 1983 complaint because he had previously filed grievan ces about similar incidents. This argument is meritless. Although we have held that an earlier grievance may be “sufficient to exhaust [a prisoner’s] administrative remedies with respect to the continuing” infringeme nt of his rights, that exception “is necessarily limited to cases in which a prior grievance identifies a specific and continuing complaint that ultimately becomes the basis for a lawsuit.” Johnson v. Killian , 680 F.3d 234, 239 (2d Cir. 2012) (emphasis added). Here, however, White has not shown that he previously exhausted a grievance about the “sp ecific and continuing complaint that ultimately” became the basis of this lawsuit. He has not identified any grievan ce that raised the same issues underlying this action—a correctional officer’s alle ged use of excessive force and the subsequent denial of medical care, nor has he identified any grievance that e xhausted claims of a pattern of such conduct. White generally refers to the defendants’ summa ry judgment evidence, which listed by title the grievances he has exhausted, bu t that does not demonstrate that he previously grieved and exhausted the same events underlying this action. See Davis v. New York , 316 F.3d 93, 100 (2d Cir. 2002) (“[R]eliance upon conclusory stat ements . . . is not sufficient to defeat a summary judgment motion.”). White also argues that the district court fa iled to consider a regul ation addressing “like grievances,” which are defined as “grievan ces emanating from a substantially similar situation/issue or with a similar action requested, or complaints which could be resolved with the same action.” 7 N.Y.C.R.R. § 701.2(d). But White’s reliance on 7 N.Y.C.R.R. § 701.5(a)(3) does not assist him because it provides only that “like grieva nces” can be consolidated and4 considered together when more than one inmate grieves the same issue, not when one inmate repeatedly grieves the same issue. Nothing in the regulations supports White’s position that he need not file a grievance to exhaust his claims in light of his prior grievances. Finally, White argues that the grievance proces s was unavailable to him for two reasons. First, he argues the regulations do not address how to file a grievanc e when “a prisoner has continually incurred consecutive ha rms of a[n] identical nature,” Appellant Br. at ¶ 19, suggesting that the procedure was “so opaque that it [became], practically speaking, incapable of use.” Ross , 136 S. Ct. at 1859. White’s argument that he did not understand how to file a grievance regarding a larger pattern of conduct is at odds with his as sertion that he did file an unexhausted grievance regarding the events in question th at did not receive a response. In any event, 7 N.Y.C.R.R. § 701 plainly provides a mechanism for exhausting excessi ve force and denial of medical care claims. See also, e.g. , Williams , 829 F.3d at 119-20 (describi ng grievance procedure). It is not apparent why the process for grieving repeated harms w ould be any more “opaque” than the process through which White filed dozens of grievances su ch that “no ordinary prisoner can discern or navigate” how to grieve a pattern of misconduct. Ross , 136 S. Ct. at 1859. Second, White argues that the grievance proce ss was unavailable to him because it “could provide no remedy & . . . no actual favorable out come to” him. Appellant Br. at ¶ 19. We construe White’s brief as arguing that the gr ievance process “operate[d] as a simple dead end—with officers unable or consis tently unwilling to pr ovide any relief to aggrieved inmates,” because it never granted him relief. Ross , 136 S. Ct. at 1859. Once defendants have met their initial burden of demonstrating that a grievanc e process exists, however, a plaintiff bears the burden of “demonstrat[ing] that other factors . . . rendered a nominall y available procedure5 unavailable as a matter of fact.” Hubbs v. Suffolk Cnty. Sheriff’s Dep’t , 788 F.3d 54, 59 (2d Cir. 2015); see also Ross , 136 S. Ct. at 1859 (“The modifier ‘availabl e’ requires the possibility of some relief. When the facts on the ground demonstrate that no such potential exists, the inmate has no obligation to exhaust the remedy.” (internal quot ation marks and citation omitted)). White has not satisfied his burden of establishing that the grievance proc ess was unavailable to him. Here, the summary judgment evidence (provided by the de fendants) lists only th e titles of White’s grievances and when they were filed, but it doe s not say whether White r eceived a ruling in his favor. Nor has White presented any evidence about the outcomes in the grievance system in general. On this record, he has not shown that prison officials are consis tently unwilling to grant relief. Because White did not exhaust his administra tive remedies, any error in the district court’s dismissal of some of his claims was harmless. We have considered all of White’s remaining ar guments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O = Hagan Wolfe, Clerk