UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
MICHAEL SILER,
Plaintiff,
-v- 9:19-CV-427
FLETCHER, RUSSELL, and HOLLENBACK,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
APPEARANCES: OF COUNSEL:
MICHAEL SILER Plaintiff, Pro Se 18-B-0821 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541
HON. LETITIA JAMES LAUREN ROSE EVERSLEY, ESQ. New York State Attorney General Attorney for Defendants The Capitol Albany, NY 12224
DAVID N. HURD United States District Judge
ORDER ON REPORT & RECOMMENDATION
On April 10, 2019, pro se plaintiff Michael Siler (“Siler” or “plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), filed this 42 U.S.C. § 1983 action alleging that Sergeant Fletcher, Corrections Officer Russell, and Corrections
Officer Hollenback (collectively “defendants”) subjected him to excessive force on February 8, 2019 while he was confined at Upstate Correctional Facility. On March 4, 2021, defendants moved for summary judgment on the grounds that Siler failed to fully exhaust his administrative remedies in
accordance with the requirements set forth in the Prison Litigation Reform Act (“PLRA”). Dkt. No. 54. According to defendants, plaintiff commenced this civil rights action before pursuing to completion an administrative appeal through DOCCS’s Inmate Grievance Program (“IGP”). Id.
On December 17, 2021, U.S. Magistrate Judge Thérèse Wiley Dancks advised by Report & Recommendation (“R&R”) that defendants’ motion for summary judgment be denied. Dkt. No. 62. As relevant here, Judge Dancks concluded that Siler had “raised a genuine issue of material fact as to the
availability of administrative remedies.” Id. Defendants have filed objections. Dkt. No. 65. Upon de novo review of those objections, the R&R will be accepted and adopted in all respects. 28 U.S.C. § 636(b)(1)(C). Although exhaustion under the PLRA is mandatory, in
Ross v. Blake, 578 U.S. 632 (2016), the Supreme Court emphasized that an inmate is only obligated to exhaust the administrative remedies that were actually “available” to him. Id. at 638. In Ross, the Supreme Court explained that an administrative remedy may be deemed “unavailable” when: (1) “it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use”; or (3) “when prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” 578 U.S. at 643–44. The Supreme Court’s holding in Ross upset the apple cart in the Second Circuit, which had previously adopted its own framework for determining when PLRA exhaustion should be excused. See Hemphill v. New York, 380
F.3d 680 (2d Cir. 2004). In an attempt to clarify how the lower courts should read and apply the unavailability analysis set out in Ross, the Second Circuit took up the PLRA exhaustion requirement in a case called Williams v. Correction Officer Priatno, 829 F.3d 118 (2d Cir. 2016).
In Williams, the pro se inmate-plaintiff filed a 42 U.S.C. § 1983 action alleging that various corrections officers “violated his Eighth Amendment rights when they brutally beat him for talking back to another officer when he was an inmate at Downstate Correctional Facility.” Id. at 119.
The Williams plaintiff, who was confined in Downstate’s Special Housing Unit (“SHU”) in the days following the excessive force incident, alleged in his pleading that he had given a written grievance “to a correction officer to forward to the grievance office on his behalf, in accordance with DOCCS grievance procedures that apply to inmates in the SHU.” Williams, 829 F.3d
at 120–21. The plaintiff further alleged that “[h]e never received a response to the grievance” because “the correction officer in the SHU never filed it for him.” Id. at 121. Importantly for present purposes, the Williams plaintiff did not try to
appeal the unanswered grievance through the IGP process but went ahead and filed his § 1983 action instead. 829 F.3d at 121. Thereafter, the defendants moved in the district court to dismiss the complaint based on the inmate-plaintiff’s failure to fully exhaust under the PLRA, since he had
admittedly never filed any appeal from the unanswered grievance. Id. The district court granted the motion to dismiss, reasoning that even if the plaintiff’s “grievance had never been filed, he still could have appealed the grievance to the next level because [DOCCS] regulations allow an appeal in
the absence of a response.” Williams, 829 F.3d at 121. The Second Circuit reversed. Writing for a unanimous panel, Chief Judge Katzmann rejected the defendants’ claim that the inmate-plaintiff should have attempted to appeal the unfiled, unanswered grievance. Williams, 829
F.3d at 124. Although it recognized that various IGP provisions might “technically” be read together to permit an inmate to appeal from an unanswered grievance, the panel concluded that DOCCS regulations “only contemplate appeals of grievances that were actually filed.” Id.
Applying the Supreme Court’s fresh guidance on unavailability, the Williams panel held that DOCCS’s current regulations left the process to appeal an unfiled grievance “prohibitively opaque, such that no inmate could actually make use of it.” 829 F.3d at 126. Accordingly, the panel held that
the inmate-plaintiff had complied with the PLRA because he had “exhausted all administrative remedies that were available to him.” Id. at 126. Williams was decided on a motion to dismiss. But the Second Circuit has endorsed the same kind of plaintiff-friendly exhaustion analysis on summary
judgment. See, e.g., Medina v. Napoli, 725 F. App’x 51, 54 (2d Cir. 2018) (summary order) (applying Ross and Williams in the summary judgment context and cautioning lower courts that the procedural posture does not change the relevant analysis).
Against this backdrop, Judge Dancks relied on Williams to conclude that Siler had created a fact question about whether administrative remedies were unavailable to him at Upstate. As relevant here, plaintiff testified under oath that on February 11, 2019, two days after the alleged date of the
excessive force incident, he was confined in the SHU at Upstate, where he claimed to have given a written grievance about defendants’ use of excessive force to a corrections officer (who “took it and put it in the mail”). According to plaintiff, he never received any notification confirming that this grievance had been received in the inmate grievance office at Upstate. Because of that,
he filed a second grievance and then two follow-up letters to the Superintendent at Upstate. He did not receive any response. Viewed in the light most favorable to him, Siler’s testimony establishes that his first grievance went unanswered because it went unfiled. See R&R,
Dkt. No. 62 at 14 (finding that plaintiff’s ability to successfully navigate the grievance system at a different DOCCS facility “could suggest that absent interference at Upstate, he could comply with the [grievance program]”).
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
MICHAEL SILER,
Plaintiff,
-v- 9:19-CV-427
FLETCHER, RUSSELL, and HOLLENBACK,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
APPEARANCES: OF COUNSEL:
MICHAEL SILER Plaintiff, Pro Se 18-B-0821 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541
HON. LETITIA JAMES LAUREN ROSE EVERSLEY, ESQ. New York State Attorney General Attorney for Defendants The Capitol Albany, NY 12224
DAVID N. HURD United States District Judge
ORDER ON REPORT & RECOMMENDATION
On April 10, 2019, pro se plaintiff Michael Siler (“Siler” or “plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), filed this 42 U.S.C. § 1983 action alleging that Sergeant Fletcher, Corrections Officer Russell, and Corrections
Officer Hollenback (collectively “defendants”) subjected him to excessive force on February 8, 2019 while he was confined at Upstate Correctional Facility. On March 4, 2021, defendants moved for summary judgment on the grounds that Siler failed to fully exhaust his administrative remedies in
accordance with the requirements set forth in the Prison Litigation Reform Act (“PLRA”). Dkt. No. 54. According to defendants, plaintiff commenced this civil rights action before pursuing to completion an administrative appeal through DOCCS’s Inmate Grievance Program (“IGP”). Id.
On December 17, 2021, U.S. Magistrate Judge Thérèse Wiley Dancks advised by Report & Recommendation (“R&R”) that defendants’ motion for summary judgment be denied. Dkt. No. 62. As relevant here, Judge Dancks concluded that Siler had “raised a genuine issue of material fact as to the
availability of administrative remedies.” Id. Defendants have filed objections. Dkt. No. 65. Upon de novo review of those objections, the R&R will be accepted and adopted in all respects. 28 U.S.C. § 636(b)(1)(C). Although exhaustion under the PLRA is mandatory, in
Ross v. Blake, 578 U.S. 632 (2016), the Supreme Court emphasized that an inmate is only obligated to exhaust the administrative remedies that were actually “available” to him. Id. at 638. In Ross, the Supreme Court explained that an administrative remedy may be deemed “unavailable” when: (1) “it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use”; or (3) “when prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” 578 U.S. at 643–44. The Supreme Court’s holding in Ross upset the apple cart in the Second Circuit, which had previously adopted its own framework for determining when PLRA exhaustion should be excused. See Hemphill v. New York, 380
F.3d 680 (2d Cir. 2004). In an attempt to clarify how the lower courts should read and apply the unavailability analysis set out in Ross, the Second Circuit took up the PLRA exhaustion requirement in a case called Williams v. Correction Officer Priatno, 829 F.3d 118 (2d Cir. 2016).
In Williams, the pro se inmate-plaintiff filed a 42 U.S.C. § 1983 action alleging that various corrections officers “violated his Eighth Amendment rights when they brutally beat him for talking back to another officer when he was an inmate at Downstate Correctional Facility.” Id. at 119.
The Williams plaintiff, who was confined in Downstate’s Special Housing Unit (“SHU”) in the days following the excessive force incident, alleged in his pleading that he had given a written grievance “to a correction officer to forward to the grievance office on his behalf, in accordance with DOCCS grievance procedures that apply to inmates in the SHU.” Williams, 829 F.3d
at 120–21. The plaintiff further alleged that “[h]e never received a response to the grievance” because “the correction officer in the SHU never filed it for him.” Id. at 121. Importantly for present purposes, the Williams plaintiff did not try to
appeal the unanswered grievance through the IGP process but went ahead and filed his § 1983 action instead. 829 F.3d at 121. Thereafter, the defendants moved in the district court to dismiss the complaint based on the inmate-plaintiff’s failure to fully exhaust under the PLRA, since he had
admittedly never filed any appeal from the unanswered grievance. Id. The district court granted the motion to dismiss, reasoning that even if the plaintiff’s “grievance had never been filed, he still could have appealed the grievance to the next level because [DOCCS] regulations allow an appeal in
the absence of a response.” Williams, 829 F.3d at 121. The Second Circuit reversed. Writing for a unanimous panel, Chief Judge Katzmann rejected the defendants’ claim that the inmate-plaintiff should have attempted to appeal the unfiled, unanswered grievance. Williams, 829
F.3d at 124. Although it recognized that various IGP provisions might “technically” be read together to permit an inmate to appeal from an unanswered grievance, the panel concluded that DOCCS regulations “only contemplate appeals of grievances that were actually filed.” Id.
Applying the Supreme Court’s fresh guidance on unavailability, the Williams panel held that DOCCS’s current regulations left the process to appeal an unfiled grievance “prohibitively opaque, such that no inmate could actually make use of it.” 829 F.3d at 126. Accordingly, the panel held that
the inmate-plaintiff had complied with the PLRA because he had “exhausted all administrative remedies that were available to him.” Id. at 126. Williams was decided on a motion to dismiss. But the Second Circuit has endorsed the same kind of plaintiff-friendly exhaustion analysis on summary
judgment. See, e.g., Medina v. Napoli, 725 F. App’x 51, 54 (2d Cir. 2018) (summary order) (applying Ross and Williams in the summary judgment context and cautioning lower courts that the procedural posture does not change the relevant analysis).
Against this backdrop, Judge Dancks relied on Williams to conclude that Siler had created a fact question about whether administrative remedies were unavailable to him at Upstate. As relevant here, plaintiff testified under oath that on February 11, 2019, two days after the alleged date of the
excessive force incident, he was confined in the SHU at Upstate, where he claimed to have given a written grievance about defendants’ use of excessive force to a corrections officer (who “took it and put it in the mail”). According to plaintiff, he never received any notification confirming that this grievance had been received in the inmate grievance office at Upstate. Because of that,
he filed a second grievance and then two follow-up letters to the Superintendent at Upstate. He did not receive any response. Viewed in the light most favorable to him, Siler’s testimony establishes that his first grievance went unanswered because it went unfiled. See R&R,
Dkt. No. 62 at 14 (finding that plaintiff’s ability to successfully navigate the grievance system at a different DOCCS facility “could suggest that absent interference at Upstate, he could comply with the [grievance program]”). In light of the Second Circuit’s holding in Williams, nothing more is required of
plaintiff to defeat summary judgment. Defendants object to this conclusion by focusing on Siler’s other filings and letters, including a third grievance that he eventually managed to file after he was transferred to Clinton. In defendants’ view, these filings distinguish
the facts of this case from those in Williams—“Plaintiff’s decision to actively engage in the grievance program demonstrates that the program was neither a dead-end nor so opaque that Plaintiff could not avail himself of it.” Defs.’ Obj. at 5 (cleaned up).
Those additional filings certainly make for a confusing timeline. But they operate as red herrings in this fact pattern. Siler has testified under oath that, on February 11, 2019, while confined in the SHU at Upstate C.F., he gave a written grievance to a corrections officer to be mailed out. For whatever reason, that grievance went unfiled. Thereafter, plaintiff sent
letters to the Superintendent at Upstate but failed to receive a response. And when he was moved to Clinton, copies of his first grievance and follow-up letters were lost. Taken together, these facts are sufficiently similar to the ones alleged in Williams so as to warrant the same outcome.
In reaching this conclusion, the Court recognizes that subsequent Second Circuit opinions have sown some doubt in the lower courts about the reach of Williams. For instance, in Cicio v. Wenderlich, a panel of the Second Circuit rejected on summary judgment an inmate-plaintiff’s argument that he was
not obligated to pursue any further administrative appeal under DOCCS’s IGP after he “received no response to the grievance he purportedly filed.” 714 F. App’x, 96 97–98 (2d Cir. 2018) (summary order). At first blush, that outcome seems hard to square with Williams. Perhaps
the court took it as an established fact that the Cicio plaintiff had actually filed the grievance in question. But see 714 F. App’x at 97 (referring to the grievance as “purportedly” filed). Perhaps, unlike Williams, it is because the plaintiff in Cicio was not being held in the SHU, where DOCCS grievance
regulations operate differently. See id. Or perhaps the Cicio panel just thought that Williams should be reserved for “extraordinary circumstances.” 829 F.3d at 119. After all, in addition to being held in the SHU immediately after the incident, the Williams plaintiff was transferred to another facility shortly after he tried to filed his grievance. Id. at 126. Ultimately, the answer is irrelevant. Speculation about the internal logic of a summary order cannot overcome on-point precedent from a published decision. That is especially so in this case, where—just as in Williams—Siler
was held in SHU and transferred to another facility a short time after he attempted to file his first grievance. As a final matter, defendants have requested an exhaustion hearing in the event the Court overrules their objections to the R&R. Defs.’ Obj. at 6—7. That request will be denied because an exhaustion hearing is unwarranted under the particular circumstances of this case. Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011). Therefore, it is ORDERED that 1. The Report & Recommendation is ACCEPTED; and 2. Defendants’ motion for summary judgment is DENIED. IT IS SO ORDERED. EUG David Nfoura’ “YP Dated: February 10, 2022 U.S. Disfrict Judge Utica, New York.
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