14-4092-pr Heyliger v. Gebler UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 25 th day of September, two thousand fifteen.
PRESENT: JOHN M. WALKER, JR., ROBERT D. SACK, REENA RAGGI, Circuit Judges

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-------------------------------------- -------------------------------- JASON HEYLIGER, Plaintiff-Appellant , v. No. 14-4092-pr THOMAS GEBLER, Prison Gu ard, JEFFREY PILLEY, Prison Guard, Defendants-Appellees , D. O’CONNELL, Sergean t of the Guards, Defendant. 

---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: DAVID M. TANG (Paul F. Keneally, on the brief ), Underberg & Kessler LLP, Rochester, New York. APPEARING FOR APPELLEES: JONATHAN HITSOUS, Assistant Solicitor General (Barbara D. Underwood, Solicitor

 The Clerk of Court is directed to amend the caption as set forth above.2 General; Andrea Oser, Deputy Solicitor General, on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York. Appeal from a judgment of the United St ates District Court for the Western District of New York (Frank P. Geraci, Jr., Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on September 30, 2014, is AFFIRMED. Plaintiff Jason Heyliger, formerly inca rcerated at Attica Correctional Facility, appeals from an award of summary judgment in favor of defendants Thomas Gebler and Jeffrey Pilley on Heylig er’s claims under 42 U.S.C. § 1983. 1 Heyliger contends that the district court erred in granting summary judgment based on his failure to exhaust administrative remedies as required by th e Prison Litigation Refo rm Act (“PLRA”), 42 U.S.C. § 1997e(a). We review an award of summary judgment de novo, see Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012), and will affirm if the record, viewed in the light most favorable to the non-moving party, reveals no genuine issue of material fact, see Fed. R. Civ. P. 56(a); Lynch v. City of New York, 737 F. 3d 150, 156 (2d Cir. 2013). We assume the parties’ familiarity w ith the facts and proce dural history of this case, which we reference only as necessa ry to explain our decision to affirm.

1 In his second amended comp laint, Heyliger also named as a defendant Sergeant Denis O’Connell. The district court dismissed all claims against O’Conne ll by order dated July 30, 2010, which Heyliger does not challenge on appeal.3 1. Exhaustion The PLRA states: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Fede ral law, by a prisoner confined in any jail, pris on, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). It is undisputed th at Heyliger failed to exhaust all available administrative remedies becaus e he did not complete the se cond and third steps of the New York State Department of Correctiona l Services’ Inmate Grievance Procedure, which require an inmate to appeal an unf avorable decision of the Inmate Grievance Resolution Committee (“IGRC”) fi rst to the superintendent and, then, to the Central Office Review Committee (“CORC”). See N. Y. Comp. Codes R. & Regs. tit. 7, § 701.7(b)–(c) (2005) (n ow codified as amended at N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)–(d) (2015)). 2 Heyliger contends, however, that his fa ilure to exhaust shoul d be excused under Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). We have recognized that an inmate’s failure to exhaust administrati ve remedies may be excused where (1) administrative remedies were effectively no t “available to the pris oner,” (2) defendants are estopped from raising failure to exhaust as an affirmativ e defense because their “own actions inhibit[ed] the inmate’s exhaustion,” or (3) “special circumstances . . . justify the prisoner’s failure” to exhaust. Hemphill v. New York, 380 F.3d at 686 (internal

2 Because the alleged incidents occurred in 2005, we rely on the regulations that were in effect at that time. See Amador v. Andrews, 655 F.3d 89, 96 n.3 (2d Cir. 2011).4 quotation marks omitted); accord Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011). 3 None of these exceptions applies here. Heyliger argues that administrative re medies were rendered unavailable when Sergeant Denis O’Connell, the grievance prog ram supervisor, “threw . . . [Heyliger’s grievance form] in the garbage” on June 10, 2005 before it could be “processed.” J.A. 74. We are not persuaded. U nder the regulations in effect in 2005, if at any step of the grievance process, an inmate did not receiv e a response within th e specified timeframe, he was nonetheless permitted to “appeal[] to the next step.” N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8 (2005) (now codified at N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(g)(2) (2015)). Thus, wh en Heyliger did not receive a written response from the IGRC, appeal to the superintendent was still an available administrative remedy. 4 Nor did O’Connell’s alleged destruction of Heyliger’s grievan ce estop Gebler and Pilley from raising failure to exhaust as an affirmative defense. A prisoner may invoke “estoppel when defendants took affirmative action to prevent him from availing himself

3 We have previously noted that the Supreme Court’s deci sion in Woodford v. Ngo, which held that § 1997e(a) requires “prope r exhaustion,” 548 U.S. 81, 93 (2006), may call certain of these exceptions into question, see Amador v. Andrews, 655 F.3d at 102; Macias v. Zenk, 495 F.3d 37, 43 n.1 (2d Cir. 2007); Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006). As in those cases, however, we need not decide that issue here because Heyliger has failed to satisfy the PLRA even under our pre-Woodford precedents.

4 Heyliger also could have av ailed himself of the expedited procedure for grievances that allege “[e]mployee misconduct meant to annoy, intimidate, or harm an inmate.” N.Y. Comp. Codes R. & Regs. tit. 7, § 701.11(a) (2005) (now codified at N.Y. Comp. Codes R. & Regs. tit. 7, § 701.2(e) (2015)). Such grievances ar e forwarded directly to the superintendent and, if he fails to take ac tion within the required time limit, the inmate may appeal directly to the CORC. Id. § 701. 11(b)(6) (now codified as amended at N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8(g) (2015)).5 of grievance procedures,” such as “verbal a nd physical threats of retaliation, physical assault, [or] denial of grievance forms or writing implements.” Am ador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011) (internal quota tion marks omitted). Heyliger, however, has failed to adduce any evid ence that Gebler or Pilley were in volved in the destruction of his grievance form. See generally Macias v. Zenk, 495 F.3d 37, 4 5–46 (2d Cir. 2007) (“[D]epending on the facts pe rtaining to each defendant, it is possible that some individuals may be estopped, while others may not be.” (quoting Hemphill v. New York, 380 F.3d at 688)). Heyliger argues on appeal that his failu re to exhaust should be excused because threats made by Gebler on June 5, 2005, and a June 18, 2005 altercation with a fellow inmate—which Heyliger argues Gebler orch estrated—rendered administrative remedies unavailable, estop defendants from raising exhaustion as an affirmative defense, and establish special circumstances. But Heyliger failed adequate ly to raise these arguments below. Indeed, in opposing defendants’ motion for summary judgment before the district court, Heyliger argued only O’Connell’s alleged destruction of Heyliger’s grievance form as excuse for his failure to exhaust administrative remedies. 5 Thus, we deem forfeited the new grounds Heyliger cites to support excusal and decline to consider them on appeal. See Parada v. Banco Indus. de Venez., C.A., 753 F.3d 62, 70 (2d Ci r. 2014) (“[I]t is a well-established general rule th at an appellate cour t will not consider an issue raised for

5 We note that, although Heyliger proceeded pro se in this action for several years, he was assigned pro bono counsel prior to brie fing on defendants’ motion for summary judgment, and it was that counsel who filed the brief in opposition to defendants’ motion. We need not, therefore, affo rd Heyliger’s motion papers a “liberal construction.” Tracy v. Freshwater, 623 F.3d 90 , 101 (2d Cir. 2010).6 the first time on appeal.” (quoting Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2005))). Even absent forfeiture, we note that He yliger filed a grievance after Gebler allegedly threatened him on June 5, 2005. It is therefore clear from the record that the threat did not actually deter Heyliger from pursuing his administrative remedies. It follows that the threat cannot excuse exhaustion. Insofar as Heyliger relies on the June 18, 2005 altercation with anot her inmate to excuse his failu re to exhaust, he has not adduced sufficient facts connecting the alte rcation to Gebler to defeat summary judgment. Accordingly, we conclude, as the district court did, that Heyliger’s failure to exhaust available administrative re medies is not excused. Furt her, contrary to Heyliger’s contention, he was not entitled to trial on the issue of exhaustion. See Messa v. Goord, 652 F.3d at 310 (holding that “Seventh Ame ndment does not guarantee a jury trial on factual disputes regarding administrative e xhaustion under the PLRA”). The district court therefore properly granted su mmary judgment for defendants.
2. District Court’s Denial of Leave To Proceed In Forma Pauperis On Appeal Heyliger faults the district court for denying him leave to proceed on appeal in forma pauperis (“IFP”), see 28 U.S.C. § 1915(a)(3), without first affording him an opportunity to brief the issue. This argument fails because where, as here, the district court certifies that an appeal would not be taken in good faith, a party may nonetheless file “a motion to proceed on a ppeal in forma pauperis in th e court of appeals within 30 days after service of the notice” of the district court’s denial of IFP status. Fed. R. App.7 P. 24(a)(5). Indeed, the district court inform ed Heyliger that any request to proceed IFP on appeal should be made by motion to this cour t. Heyliger failed to file such a motion.
3. Conclusion We have considered Heyliger’s remaini ng arguments and conclu de that they are without merit. Therefore, the dist rict court’s judgment is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court