1 11-1452 Dennis v. Hopkins



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 13 th** **day of June, two thousand twelve.** 4

**PRESENT: DENNIS JACOBS,** 5 **Chief Judge ,**  6 **DENNY CHIN,** 7 **CHRISTOPHER F. DRONEY,** 8 **Circuit Judges**

**.** 9
- - - - - - - - - - - - - - - - - - - -X 10 **KYLE DENNIS,** 11 **Plaintiff-Appellant ,**  12

**-v.- 11-1452** 13

**WESTCHESTER COUNTY JAIL CORRECTIONAL** 14 **DEPARTMENT, EMSA CORRECTIONAL CARE,** 15 **JANE DOE, NURSE, individually and in** 16 **their official capacities,** 17 **Defendants-Cross Defendants ,**  18

**C. HOPKINS, CORRECTIONAL OFFICER,** 19 **individually and in their official** 20 **capacities, JOHN DOE, OFFICER,** 21 **individually and in their official** 22 **capacities,** 23 **Defendants-Cross Defendants** 24 **Appellees ,**  252 **STUKES, OFFICER, individually and in** 1 **their official capacities, JENKINS,** 2 **CORRECTION OFFICER, individually and** 3 **in their official capacities,** 4 **Defendants-Cross Defendants** 5 **Cross Claimants-Appellees**

**.** 6
- - - - - - - - - - - - - - - - - - - -X 7

**FOR APPELLANT:** Andrew Frederick Plasse, Andrew 8 F. Plasse, P.C., New York, N.Y. 9

**FOR APPELLEES:** Justin R. Adin, Assistant County 10 Attorney, Of Counsel (Robert F. 11 Meehan, Westchester County 12 Attorney, on the brief ), White 13 Plains, N.Y. 14

Appeal from a judgment of the United States District 15 Court for the Southern District of New York (Stamp, J.
, 16 sitting by designation). 17

**UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 18 **AND DECREED**that the judgment of the district court be 19 **AFFIRMED IN PART**and **VACATED AND REMANDED IN PART**

. 20

Kyle Dennis appeals from a judgment granting summary 21 judgment in favor of defendants Christopher Hopkins, Risha 22 Stukes, and Taimeka Jenkins on Dennis’s 42 U.S.C. § 1983 23 action. The complaint alleges that the defendants failed to 24 protect Dennis from serious harm in violation of the Eighth 25 Amendment. We assume the parties’ familiarity with the 26 underlying facts, the procedural history, and the issues 27 presented for review. 28

“We review de novoa district court’s grant of summary 29 judgment, drawing all factual inferences in favor of the 30 non-moving party.” Collazo v. Pagano , 656 F.3d 131, 134 (2d 31 Cir. 2011) (per curiam). “Summary judgment is proper only 32 when, construing the evidence in the light most favorable to 33 the non-movant, ‘there is no genuine dispute as to any 34 material fact and the movant is entitled to judgment as a 35 matter of law.’” Doninger v. Niehoff , 642 F.3d 334, 344 (2d 36 Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). 373 Under the Prison Litigation Reform Act (“PLRA”), “‘[n]o 1 action shall be brought with respect to prison conditions 2 under section 1983 . . . by a prisoner confined in any jail, 3 prison, or other correctional facility until such 4 administrative remedies as are available are exhausted.’” 5 Porter v. Nussle , 534 U.S. 516, 524 (2002) (quoting 42 6 U.S.C. § 1997e(a)). Exhaustion is not required: “when (1) 7 administrative remedies are not available to the prisoner; 8 (2) defendants have either waived the defense of failure to 9 exhaust or acted in such [a] way as to estop them from 10 raising the defense; or (3) special circumstances, such as a 11 reasonable misunderstanding of the grievance procedures, 12 justify the prisoner’s failure to comply with the exhaustion 13 requirement.” Ruggiero v. County of Orange , 467 F.3d 170, 14 175 (2d Cir. 2006); see alsoMacias v. Zenk , 495 F.3d 37, 43 15 n.1 (2d Cir. 2007) (leaving open the question of whether 16 Woodford v. Ngo , 548 U.S. 81 (2006), affects the special 17 circumstances exception). 18

Dennis alleges that he attempted to file a grievance 19 with Officer Stukes and Sergeant Stallone but was advised 20 that the issue was non-grievable, and he was not given a 21 grievance form. The defendants contend that Dennis could 22 have obtained a grievance form from the law library. 23 However, the Westchester Department of Correction “Standard 24 Operating Procedure” and a United States Department of 25 Justice report suggest that, at the time of the events in 26 question, this was not the case. In concluding that Dennis 27 failed to exhaust his administrative remedies, the district 28 court made no finding as to whether Dennis attempted to file 29 a grievance, whether he was rebuffed, or whether the 30 Department of Correction afforded an alternative way to 31 file. We remand in part for the court to make any such 32 necessary findings to determine if the facts give rise to 33 special circumstances that may justify Dennis’s failure to 34 comply with the exhaustion requirement of the PLRA. See, 35
e.g. , Brownell v. Krom , 446 F.3d 305, 312-13 (2d Cir. 2006). 36

The district court ruled in the alternative that the 37 defendants were entitled to summary judgment on the merits. 38 “For a claim . . . based on a failure to prevent harm, the 39 inmate must show that he [wa]s incarcerated under conditions 40 posing a substantial risk of serious harm,” and that the 41 prison official was deliberately indifferent. Farmer v. 42 Brennan , 511 U.S. 825, 834 (1994). Deliberate indifference 43 exists when “the official knows of and disregards an 44 excessive risk to inmate health or safety; the official must 454 both be aware of facts from which the inference could be 1 drawn that a substantial risk of serious harm exists, and he 2 must also draw the inference.” Id. at 837. 3

As the district court correctly concluded, there is no 4 genuine dispute of fact as to whether Officers Stukes and 5 Jenkins were deliberately indifferent. Dennis testified 6 that while Stukes and Jenkins were within hearing-distance, 7 one of the soon-to-be assailants said to another (referring 8 to Dennis), “there go that faggot right there. Open the 9 gate for that dude, open the gate for him.” This statement 10 was insufficient to put Stukes or Jenkins on notice of a 11 substantial risk of serious harm. See generallyHines v. 12 Lacy , 189 F.3d 460, No. 98-2961, 1999 WL 642915, at *3 (2d 13 Cir. Aug. 20, 1999) (summary order) (“[A] sketchy 14 description of a verbal confrontation[--assailant yelled and 15 swore at inmate--]does not sufficiently allege conditions 16 posing a substantial risk of serious harm.” (internal 17 quotation marks omitted)); Desulma v. City of N.Y. , No. 98 18 Civ. 2078(RMB)(RLE), 2001 WL 798002, at *7 (S.D.N.Y. July 6, 19 2001) (“[T]he inmates told him he was ‘going to pay a price’ 20 and told him to get away from them because ‘he smell[ed].’ 21 These verbal statements alone do not indicate a substantial 22 threat of serious harm.” (second alteration in original) 23 (citation omitted)). Dennis testified that neither Jenkins 24 nor Stukes ordered the assailants to stop, but that 25 allegation is rendered immaterial by undisputed testimony. 26 Jenkins testified that by the time she became aware of the 27 assault, an alarm had been signaled, which indicated that 28 the Emergency Response Team (“ERT”) was on its way. She did 29 not recall if she gave a stop order, but noted her practice 30 of doing so. Stukes testified that she did not see the 31 incident until the ERT had terminated the assault. 32 Therefore, any failure by Jenkins or Stukes to give a stop 33 order does not indicate deliberate indifference to Dennis’s 34 safety. Dennis also testified that at some time after the 35 assault, Stukes taunted him. This too is insufficient to 36 create a material issue as to whether Stukes knew of a 37 substantial risk to Dennis prior to the assault. 38

The district court erred in granting summary judgment 39 in favor of Officer Hopkins. One of the assailants 40 testified that he informed Hopkins of the planned assault, 41 that Hopkins replied that “he wouldn’t mind, you know, do 42 what you got to do,” that Hopkins instructed another officer 43 to open a gate separating Dennis from the assailants, and 44 that, during the assault, Hopkins told the assailants: “you 455 all better hurry up and finish, because the [ERT] is 1 coming.” This evidence is sufficient to create a genuine 2 dispute of fact as to whether Hopkins was deliberately 3 indifferent to a substantial risk of serious harm to Dennis. 4 Hopkins is not entitled to qualified immunity: Correction 5 officers have a clearly established “duty . . . to protect 6 prisoners from violence at the hands of other prisoners,” 7 Farmer , 511 U.S. at 833 (alteration in original) (internal 8 quotation marks omitted), and we cannot conclude that it was 9 objectively reasonable for Hopkins to believe that his 10 actions (as they are alleged by Dennis) did not violate this 11 duty. SeeWarren v. Keane , 196 F.3d 330, 332 (2d Cir. 1999) 12 (“Defendants are entitled to qualified immunity if (1) their 13 actions did not violate clearly established law, or (2) it 14 was objectively reasonable for them to believe that their 15 actions did not violate such law.”). 16

Having considered all of Dennis’s arguments, we hereby 17
**AFFIRM** the judgement as to Officers Stukes and Jenkins; we 18 **VACATE**the judgment as to Officer Hopkins; and we **REMAND** 19 this case for further proceedings consistent with this 20 order. 21

FOR THE COURT: 22 CATHERINE O’HAGAN WOLFE, CLERK 23 24