1

11-1452

Dennis v. Hopkins

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 13th 4 day of June, two thousand twelve.

5 PRESENT: DENNIS JACOBS,

6 Chief Judge,

7 DENNY CHIN,

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges.

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11 KYLE DENNIS, 

12 Plaintiff-Appellant,

13 -v.- 11-1452

14 WESTCHESTER COUNTY JAIL CORRECTIONAL

15 DEPARTMENT, EMSA CORRECTIONAL CARE,

16 JANE DOE, NURSE, individually and in

17 their official capacities,

18 Defendants-Cross Defendants,

19 C. HOPKINS, CORRECTIONAL OFFICER,

20 individually and in their official

21 capacities, JOHN DOE, OFFICER,

22 individually and in their official

23 capacities,

24 Defendants-Cross Defendants25 Appellees,
2

1 STUKES, OFFICER, individually and in

2 their official capacities, JENKINS,

3 CORRECTION OFFICER, individually and

4 in their official capacities,

5 Defendants-Cross Defendants6 Cross Claimants-Appellees.

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8 FOR APPELLANT: Andrew Frederick Plasse, Andrew

9 F. Plasse, P.C., New York, N.Y. 

10 FOR APPELLEES: Justin R. Adin, Assistant County

11 Attorney, Of Counsel (Robert F.

12 Meehan, Westchester County

13 Attorney, on the brief), White

14 Plains, N.Y.

15 Appeal from a judgment of the United States District

16 Court for the Southern District of New York (Stamp, J.,

17 sitting by designation).

18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

19 AND DECREED that the judgment of the district court be

20 AFFIRMED IN PART and VACATED AND REMANDED IN PART.

21 Kyle Dennis appeals from a judgment granting summary

22 judgment in favor of defendants Christopher Hopkins, Risha

23 Stukes, and Taimeka Jenkins on Dennis’s 42 U.S.C. § 1983

24 action. The complaint alleges that the defendants failed to

25 protect Dennis from serious harm in violation of the Eighth

26 Amendment. We assume the parties’ familiarity with the

27 underlying facts, the procedural history, and the issues

28 presented for review.

29 “We review de novo a district court’s grant of summary

30 judgment, drawing all factual inferences in favor of the

31 non-moving party.” Collazo v. Pagano, 656 F.3d 131, 134 (2d

32 Cir. 2011) (per curiam). “Summary judgment is proper only

33 when, construing the evidence in the light most favorable to

34 the non-movant, ‘there is no genuine dispute as to any

35 material fact and the movant is entitled to judgment as a

36 matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d

37 Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). 
3

1 Under the Prison Litigation Reform Act (“PLRA”), “‘[n]o

2 action shall be brought with respect to prison conditions

3 under section 1983 . . . by a prisoner confined in any jail,

4 prison, or other correctional facility until such

5 administrative remedies as are available are exhausted.’” 

6 Porter v. Nussle, 534 U.S. 516, 524 (2002) (quoting 42

7 U.S.C. § 1997e(a)). Exhaustion is not required: “when (1)

8 administrative remedies are not available to the prisoner;

9 (2) defendants have either waived the defense of failure to

10 exhaust or acted in such [a] way as to estop them from

11 raising the defense; or (3) special circumstances, such as a

12 reasonable misunderstanding of the grievance procedures,

13 justify the prisoner’s failure to comply with the exhaustion

14 requirement.” Ruggiero v. County of Orange, 467 F.3d 170,

15 175 (2d Cir. 2006); see also Macias v. Zenk, 495 F.3d 37, 43

16 n.1 (2d Cir. 2007) (leaving open the question of whether

17 Woodford v. Ngo, 548 U.S. 81 (2006), affects the special

18 circumstances exception). 

19 Dennis alleges that he attempted to file a grievance

20 with Officer Stukes and Sergeant Stallone but was advised

21 that the issue was non-grievable, and he was not given a

22 grievance form. The defendants contend that Dennis could

23 have obtained a grievance form from the law library. 

24 However, the Westchester Department of Correction “Standard

25 Operating Procedure” and a United States Department of

26 Justice report suggest that, at the time of the events in

27 question, this was not the case. In concluding that Dennis

28 failed to exhaust his administrative remedies, the district

29 court made no finding as to whether Dennis attempted to file

30 a grievance, whether he was rebuffed, or whether the

31 Department of Correction afforded an alternative way to

32 file. We remand in part for the court to make any such

33 necessary findings to determine if the facts give rise to

34 special circumstances that may justify Dennis’s failure to

35 comply with the exhaustion requirement of the PLRA. See,

36 e.g., Brownell v. Krom, 446 F.3d 305, 312-13 (2d Cir. 2006).

37 The district court ruled in the alternative that the

38 defendants were entitled to summary judgment on the merits.

39 “For a claim . . . based on a failure to prevent harm, the

40 inmate must show that he [wa]s incarcerated under conditions

41 posing a substantial risk of serious harm,” and that the

42 prison official was deliberately indifferent. Farmer v.

43 Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference

44 exists when “the official knows of and disregards an

45 excessive risk to inmate health or safety; the official must
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1 both be aware of facts from which the inference could be

2 drawn that a substantial risk of serious harm exists, and he

3 must also draw the inference.” Id. at 837.

4 As the district court correctly concluded, there is no

5 genuine dispute of fact as to whether Officers Stukes and

6 Jenkins were deliberately indifferent. Dennis testified

7 that while Stukes and Jenkins were within hearing-distance,

8 one of the soon-to-be assailants said to another (referring

9 to Dennis), “there go that faggot right there. Open the

10 gate for that dude, open the gate for him.” This statement

11 was insufficient to put Stukes or Jenkins on notice of a

12 substantial risk of serious harm. See generally Hines v.

13 Lacy, 189 F.3d 460, No. 98-2961, 1999 WL 642915, at *3 (2d

14 Cir. Aug. 20, 1999) (summary order) (“[A] sketchy

15 description of a verbal confrontation[--assailant yelled and

16 swore at inmate--]does not sufficiently allege conditions

17 posing a substantial risk of serious harm.” (internal

18 quotation marks omitted)); Desulma v. City of N.Y., No. 98

19 Civ. 2078(RMB)(RLE), 2001 WL 798002, at *7 (S.D.N.Y. July 6,

20 2001) (“[T]he inmates told him he was ‘going to pay a price’

21 and told him to get away from them because ‘he smell[ed].’ 

22 These verbal statements alone do not indicate a substantial

23 threat of serious harm.” (second alteration in original)

24 (citation omitted)). Dennis testified that neither Jenkins

25 nor Stukes ordered the assailants to stop, but that

26 allegation is rendered immaterial by undisputed testimony. 

27 Jenkins testified that by the time she became aware of the

28 assault, an alarm had been signaled, which indicated that

29 the Emergency Response Team (“ERT”) was on its way. She did

30 not recall if she gave a stop order, but noted her practice

31 of doing so. Stukes testified that she did not see the

32 incident until the ERT had terminated the assault. 

33 Therefore, any failure by Jenkins or Stukes to give a stop

34 order does not indicate deliberate indifference to Dennis’s

35 safety. Dennis also testified that at some time after the

36 assault, Stukes taunted him. This too is insufficient to

37 create a material issue as to whether Stukes knew of a

38 substantial risk to Dennis prior to the assault. 

39 The district court erred in granting summary judgment

40 in favor of Officer Hopkins. One of the assailants

41 testified that he informed Hopkins of the planned assault,

42 that Hopkins replied that “he wouldn’t mind, you know, do

43 what you got to do,” that Hopkins instructed another officer

44 to open a gate separating Dennis from the assailants, and

45 that, during the assault, Hopkins told the assailants: “you
5

1 all better hurry up and finish, because the [ERT] is

2 coming.” This evidence is sufficient to create a genuine

3 dispute of fact as to whether Hopkins was deliberately

4 indifferent to a substantial risk of serious harm to Dennis. 

5 Hopkins is not entitled to qualified immunity: Correction

6 officers have a clearly established “duty . . . to protect

7 prisoners from violence at the hands of other prisoners,”

8 Farmer, 511 U.S. at 833 (alteration in original) (internal

9 quotation marks omitted), and we cannot conclude that it was

10 objectively reasonable for Hopkins to believe that his

11 actions (as they are alleged by Dennis) did not violate this

12 duty. See Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999)

13 (“Defendants are entitled to qualified immunity if (1) their

14 actions did not violate clearly established law, or (2) it

15 was objectively reasonable for them to believe that their

16 actions did not violate such law.”).

17 Having considered all of Dennis’s arguments, we hereby

18 AFFIRM the judgement as to Officers Stukes and Jenkins; we

19 VACATE the judgment as to Officer Hopkins; and we REMAND

20 this case for further proceedings consistent with this

21 order.

22 FOR THE COURT:

23 CATHERINE O’HAGAN WOLFE, CLERK

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