1 17-218-pr Kearney v. D. Gebo 

## 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 DATA BASE (WITH 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 Cour t of Appeals for the Second Circuit, held at 1 the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 2 York, on the 13 th day of November, two thousand seventeen. 3 4 PRESENT: 5 GERARD E. LYNCH, 6 SUSAN L. CARNEY, 7 Circuit Judges , 8 ERIC N. VITALIANO,* 9 District Judge. 10

_____________________________________ 11 12 Richard Kearney, 13 14 Plaintiff-Appellant , 15 16 v. 17-218-pr 17 18 D. Gebo, Correction Officer, Great Meadow 19 Correctional Facility, M. Ross, Correction 20 Officer, Great Meadow Correctional Facility, 21 Rae, Sgt., Coxsackie Correctional Factility, FKA 22 Roe, 23 24 Defendants-Appellees , 25 26

* Judge Eric N. Vitaliano, of the United States District Court for the Eastern District of New York, sitting by designation.2 NYS DOCCS, Jon Miller, M.D., Coxsackie 1 Correctional Facility, Jane Doe, Nurse, 2 Coxsackie Correctional Facility, 3 4 Defendants . ** 5

_____________________________________ 6 7 FOR PLAINTIFF-APPELLANT: Richard Kearney, pro se, Stormville, NY. 8 9 FOR DEFENDANTS-APPELLEES: Eric T. Schneiderman, Attorney General of 10 the State of New York (Jonathan D. Hitsous, 11 Assistant Solicitor General, Barbara D. 12 Underwood, Solicitor General, Andrea Oser, 13 Deputy Solicitor General, on the brief ), 14 Albany, NY. 15 16 Appeal from a judgment of the United States Di strict Court for the Northern District of 17 New York (D’Agostino, J .). 18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 19 DECREED that the judgment of the District Court entered on January 5, 2017, is AFFIRMED

. 20 Appellant Richard Kearney, incarcerated a nd proceeding pro se, appeals the District 21 Court’s judgment dismissing his claims, brought pur suant to 42 U.S.C. § 1983, in which he alleges 22 that on March 9, 2012, at Coxsackie Correctiona l Facility in Coxsackie, New York, two 23 corrections officers beat him and another officer aware of the assault improperly failed to 24 intervene. Kearney alleges that he complained about the incident to the New York State 25 Department of Corrections and Community Supe rvision (“DOCCS”) Inspector General’s Office 26 and to the New York State Commission of Correction. 1 After holding an evidentiary hearing, the 27

** The Clerk of Court is directed to amend the official caption to conform to the above.

1 Kearney’s pro se complaint states that he also wrote to Coxsackie’s superintendent regarding the alleged assault. Kearney does not, however, mention this comm unication in his brief on appeal, and thus any3 District Court ruled in favor of defendants on th eir exhaustion-of-remedies defense and dismissed 1 Kearney’s claims. The District Court concluded th at Kearney was subject to the Prison Litigation 2 Reform Act’s (“PLRA”) requirement that he exhaust his administra tive remedies before bringing 3 suit, and that he failed to do so. The District Court noted that Kearney’s complaints to the Inspector 4 General’s Office and Commission of Correction did not comply with New York’s inmate 5 grievance procedures, and found that the regular inmate grieva nce procedures remained available 6 to him even when he was in the facility’s Spec ial Housing Unit (“SHU”). We assume the parties’ 7 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, to 8 which we refer only as necessary to explain our decision to affirm. 9 We review de novo a district court’s ruling as to whether a plaintiff has exhausted 10 administrative remedies as required by the PLRA. Williams v. Corr. Officer Priatno , 829 F.3d 118, 11 121–22 (2d Cir. 2016). We review for clear error a district court’s findin gs of fact and its 12 credibility determinations made following an evidentiary hearing. Anderson v. City of Bessemer 13 City , 470 U.S. 564, 573, 575 (1985). 14 The PLRA requires prisoners to exhaust availa ble administrative remedies before bringing 15 a Section 1983 action related to “prison conditions.” 42 U.S. C. § 1997e(a). The exhaustion 16 requirement applies to “all inmate suits about prison life, whether they involve general 17 circumstances or particular epis odes, and whether they allege excessive force or some other 18 wrong.” Porter v. Nussle , 534 U.S. 516, 532 (2002). The PLRA further demands compliance with 19 the prison grievance system’s procedural rules regarding admi nistrative remedies. See Woodford 20 v. Ngo , 548 U.S. 81, 93–95 (2006). New York law calls for prisoners generally to follow a 21
argument that the District Court insuffici ently addressed this allegation is waived. See Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998).4 grievance procedure comprised of three steps: (1) filing a complain t to be resolved by the Inmate 1 Grievance Resolution Committee (“IGRC”); (2) app ealing an adverse decision by the IGRC to the 2 superintendent of the facility; and (3) appealing any further adverse decision by the superintendent 3 to the prison system’s Central Office Review Committee (“CORC”). N.Y. Comp. Codes R. & 4 Regs. (“NYCRR”) tit. 7, §§ 701.1(c) (setting out complaint filing and appeals framework), 701.5 5 (“Procedure”); see also NYCRR tit. 7, §§ 701.7 (“Procedures for in mates in special housing units 6 (SHU’s)”), 701.8 (setting forth “expedited proce dure” for review of “employee harassment” 7 allegations). 8 Exhaustion is mandatory, however, only as long as a grievance process is actually 9 “available” to the prisoner. Ross v. Blake , 136 S. Ct. 1850, 1858 (2016). Courts treat a prison 10 grievance procedure as not available in three circ umstances: when (1) it “operates as a simple dead 11 end—with officers unable or consis tently unwilling to provide any relief to aggrieved inmates”; 12 (2) it is “so opaque that it becomes, practica lly speaking, incapable of use”; and (3) “prison 13 administrators thwart inmates from taking adva ntage of a grievance process through machination, 14 misrepresentation, or intimidation.” Id. at 1859–60. 15 Kearney does not dispute that he failed to comply with the state’s prison grievance 16 procedures. Kearney argues, instead, that exhaustion is an affirmative defense, see Jones v. Bock , 17 549 U.S. 199, 216 (2007), and that defendants did not establish the defense; indeed, he says, the 18 grievance procedures were not “a vailable” to him, as that term has been interpreted by the 19 Supreme Court, see Ross , 136 S. Ct. at 1858–60. 20 Kearney first observes that defendants offere d no testimony about the availability of the 21 ordinary prison grievance procedures and the st andard grievance forms from correction officers 225 who worked in the SHU where Kearney was housed, within the Coxsackie prison. We are 1 unconvinced. Whether or not the standard inmate grievance form was available to Kearney when 2 he lived in the SHU, New York regulations expr essly allow for grievances to be submitted “on 3 plain paper” when the grievance form is not readily available. See NYCRR tit. 7, § 701.5(a)(1). 4 The unrebutted testimony offered by defendants esta blished that inmates could and sometimes did 5 submit grievances on many different kinds of pa per, rather than on the preprinted form. 6 Furthermore, Kearney testified th at he had access to writing supplies while in the SHU and that he 7 was able to send complaints to the Inspector General’s Office and to the Commission of 8 Correction. The District Court thus had befo re it evidence that inmate grievances could be filed on 9 any kind of paper, that Kearney had access to wr iting materials while in the SHU, and that 10 Kearney’s written complaints to the Inspector General’s Office and the Commission of Correction 11 reached their intended recipients. We see no error in the District Court’s conclusion on the basis of 12 this evidence that defendants established th at Kearney could have filed a grievance. 13 Kearney also contends that the inmate grie vance procedure was “unavailable” to him under 14 Ross v. Blake , 136 S. Ct. 1850 (2016), because he complained about the alleged beating to the 15 Inspector General’s Office and Commission of Correction and was assu red that they were 16 investigating his complaint—sugge sting, he claims, that no more was required. Kearney’s pursuit 17 of alternative relief from the Inspector Gene ral’s Office and Commissi on of Correction did not 18 render the ordinary inmate grievance procedures “ unavailable” to him, such that he is excused 19 from complying with those ordinary procedures. Their pendency did not preclude him from filing 20 a grievance. Nor do any assuranc es Kearney received that these offices were considering his 21 complaint warrant a finding that prison admini strators thwarted Kearney from pursuing the 226 ordinary grievance procedures “through machination, misrepre sentation, or intimidation.” Ross , 1 136 S. Ct. at 1859–60. There may be circumstances, such as those presented in Ross , see id. at 2 1860–62, in which an inmate is foreclosed from s ubmitting a grievance by virtue of a concurrent 3 administrative investigation, but the record here does not support such a finding

. We therefore 4 reject Kearney’s argument that the District Cour t erred in finding that the inmate grievance 5 procedures were available to him. 6 We have considered all of Kearney’s remain ing arguments and conclude that they are 7 without merit. Accordingly, we AFFIRM the judgment of the district court. 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10