Riccio v. Wezner

124 F. App'x 33
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 22, 2005
DocketNo. 03-0199-PR
StatusPublished

This text of 124 F. App'x 33 (Riccio v. Wezner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riccio v. Wezner, 124 F. App'x 33 (2d Cir. 2005).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the May 1, 2003 order of the United States District Court for the District of Connecticut (Dorsey, J.) is VACATED and the matter is remanded to the district court for further proceedings in light of this Court’s decisions in Johnson v. Testman, 380 F.3d 691 (2d Cir.2004), Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), Giano v. Goord, 380 F.3d 670 (2d Cir.2004), and Abney v. McGinnis, 380 F.3d 663 (2d Cir.2004).

Plaintiff-appellant Paul Riccio, pro se, appeals from a district court order, entered on May 1, 2003, denying his second motion to reopen his 42 U.S.C. § 1983 action based on a finding that Riccio failed to exhaust his administrative remedies. In November 2001, Riccio commenced a § 1983 action against various employees of the Connecticut Department of Correction claiming that they failed to protect him from an alleged assault. Specifically, Ric[35]*35cio alleged that, while he was held at New Haven Correctional Center (“NHCC”) on bond, he was threatened by corrections officers. He was subsequently transferred to Corrigan-Radgowski Correctional Center, but was frequently transported back to NHCC for his court appearances. Riccio alleged that, in July 2001, while he was in the bathroom at NHCC, he was cut on the back of his neck.

In his § 1983 complaint, Riccio indicated that he had written numerous letters to the defendants explaining that he was in danger at NHCC and asking that he not be transported there. He also stated that, in February 2001, he had filed a grievance stating that he did not want to go to NHCC for his next court date because he was scared that he would be attacked but that this grievance “was denied for transportation reasons.” Notations made by prison officials on this grievance form characterized Riccio’s grievance as raising an issue of “personal safety,” but rejected the grievance on the grounds that “transportation issues are not grievable.” These notations further indicated that a copy of the grievance would be forwarded to Major Deslauiers for investigation. Attached to Riccio’s § 1983 complaint were copies of Riccio’s February 2001 grievance, the letters he wrote to the defendants concerning his transport to NHCC, and the incident report and medical records regarding the July 2001 incident at NHCC.

In December 2001, before the defendants were served with Riccio’s § 1983 complaint, Riccio moved to withdraw his complaint so that he could pursue his claim in state court. On December 18, 2001, the district court subsequently dismissed the complaint without prejudice, pursuant to Fed.R.Civ.P. 41(a). On January 15, 2003, Riccio moved to reopen his case. In an order entered on March 10, 2003, the court denied Riccio’s motion without prejudice, holding that Riccio had failed to exhaust his administrative remedies. The court explained that there was no evidence that Riccio appealed the rejection and possible mischaracterization of his grievance to the next administrative level.

In April 2003, Riccio filed a second motion to reopen his case, in which he argued that he did not pursue his grievance to the next level and was not required to do so because: (1) his grievance was determined to be a transportation issue and rejected as non-grievable; (2) the language at the end of the disposition stating that “a copy will be forwarded to Major Deslauiers for investigation” suggested to him that the inmate grievance process was not an available remedy for his claim; and (3) if he had pursued his grievance to the next level, it would have been futile as the matter had been rejected as non-grievable, and it would have gone to the warden, to whom he had already written regarding the matter. In further support of his futility argument, Riccio asserted that, on March 8, 2001, he received a response to his letter to the warden, which stated he would not be returning to NHCC for safety and security reasons and he thought the matter had been resolved.

In an order entered on May 1, 2003, the court denied Riccio’s second motion to reopen, holding that, because Riccio did not appeal the rejection and possible mischaracterization of his grievance to the next level, he failed to exhaust his administrative remedies. The court further concluded that Riccio failed to file any grievances regarding the actions of the defendants that resulted in his July 2001 injury because Riccio’s February 2001 grievance concerned a court trip in February 2001, not the July 2001 trip that resulted in his injury, made no reference by name to any of the defendants, and did not indicate that [36]*36any of the defendants failed to protect him from harm.

In Johnson, we stated that in order to satisfy exhaustion requirements, “inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures.” 380 F.3d at 697. Nevertheless, the district court’s conclusion that Riccio’s motion to reopen should be denied because he failed to exhaust his administrative remedies runs contrary to this Court’s statement in Johnson that “[ujncounselled inmates navigating prison administrative procedures without assistance cannot be expected to satisfy a standard more stringent than that of notice pleading.” Id. The Johnson Court found that “[wjhether or not [prisoner’s] disciplinary appeals [were] enough to ‘[alert] the prison to the nature of the wrong for which redress [was] sought’ ... [was] not manifestly obvious,” id. (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.2002)), and thus remanded the issue to the district court for a determination. See id.

As in Johnson, this Court is not in a position to determine whether or not the allegations raised by Riccio were sufficient to notify the defendants of his grievance because the district court has not had an opportunity to consider the issue. The responses Riccio received to his letters and inquiries indicate that, in addition to filing a grievance, Riccio made multiple informal complaints, which resulted in an investigation of the claim and responses from the staff indicating that the matter was being addressed. Indeed, one response even indicated that Riccio would no longer be housed at NHCC. Accordingly, on remand, the district court shall determine whether Riccio’s allegations against the defendants in his grievance and his various letters and inquiries sufficed to put the defendants on notice and provided defendants the time and an opportunity to address Riccio’s complaints internally.1 See Johnson, 380 F.3d at 697.

The denial of Riccio’s grievance as non-grievable and the responses he received to his informal letters and inquiries to the various defendants were inconsistent and may have led Riccio to believe that the matter would be handled informally and that pursuing his grievance to the next level was either not permitted or unnecessary.

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Related

Booth v. Churner
532 U.S. 731 (Supreme Court, 2001)
Dion Strong v. Alphonso David
297 F.3d 646 (Seventh Circuit, 2002)
Abney v. Mcginnis
380 F.3d 663 (Second Circuit, 2004)
Giano v. Goord
380 F.3d 670 (Second Circuit, 2004)
Hemphill v. New York
380 F.3d 680 (Second Circuit, 2004)
Lawrence Johnson v. Ronald Testman, Lonnie James
380 F.3d 691 (Second Circuit, 2004)
Farmer v. Brennan
511 U.S. 825 (Supreme Court, 1994)

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Bluebook (online)
124 F. App'x 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riccio-v-wezner-ca2-2005.