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granting summary judgment where prisoner failed to appeal to the CORC
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No. 96 Civ. 6166 (LTS) (RLE)
August 3, 2001
REPORT AND RECOMMENDATION
I. INTRODUCTION
This matter was referred to the undersigned for resolution of dispositive motions on May 12, 1999. Patrick Graham ("Graham"), a New York State prisoner, alleges that officials of the Department of Correctional Services ("DOCS") violated his First and Fourteenth Amendment rights when they confiscated literature from his cell. All defendants except Commissioner Goord have been dismissed by prior orders. Defendant Goord now moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the grounds that Graham has failed to exhaust administrative remedies. For the following reasons, this Court recommends that the motion be GRANTED and Graham's complaint be DISMISSED WITHOUT PREJUDICE.
II. BACKGROUND
A. Procedural Background
Proceeding pro se, Graham filed this action on August 15, 1996, pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief and monetary damages. He alleges that the confiscation of Five Percenter Nation of Islam ("Five Percenter") literature from his cell by DOCS officials violated his rights under the First and Fourteenth Amendments and under state law. On June 9, 1999, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In a Report and Recommendation dated February 14, 2000 ("2/14/2000 RR"), this Court recommended that summary judgment be granted on Graham's retaliation, state law, equal protection, and monetary damages claims, but denied on his First Amendment and Fourteenth Amendment due process claims. The Court noted that defendants had failed to submit the materials confiscated from Graham's cell to a Media Review Committee, as mandated by previous rulings of the prison authorities, and that there might be viable alternatives to total ban on Five Percenter materials. 2/14/2000 RR.
By order dated March 30, 2000, District Judge Jed S. Rakoff adopted the Report and Recommendation. By subsequent Report and Recommendation, dated June 29, 2000, this Court recommended dismissal of the case against defendants Cochran, Jackson and Keane, as they were no longer proper parties for equitable relief. Judge Rakoff adopted that Report and Recommendation on September 14, 2000. Graham's remaining claim seeks injunctive relief against defendant Goord for violation of his First and Fourteenth Amendment due process rights.
The Report and Recommendation noted that Cochran and Keane are currently employed at other correctional facilities and Jackson is no longer employed by DOCS.
B. Factual Background
DOCS regulations establish a three-step inmate grievance program. See Def. Mem. at 2-3. First, a complaint must be filed with the inmate grievance resolution committee ("IGRC") within fourteen days of the events at issue. The IGRC must investigate and resolve the complaint informally or following a hearing to be held within seven days. A grievant may appeal to the Superintendent of the facility within four days of receipt of the committee's decision. Finally, within four days of receiving the Superintendent's response, an inmate may appeal to the Central Office Review Committee ("CORC"), which, in turn, must render a decision within twenty days. Id.
"Def. Mem." refers to defendant's memorandum of law in support of motion for summary judgment.
The Inmate Grievance Program Directive states that "decisions or dispositions of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered non-grievable." Reply Aff., Exh. A, III. E. Specifically, the "individual decisions or disposition" of Media Review and disciplinary proceedings are not grievable. Id. Although the IGRC may accept complaints concerning these issues as grievances, it must direct the grievant to the appropriate mechanism if it decides to dismiss the matter as non-grievable. Id.
"Rep. Aff." refers to the December 7, 2000 affidavit of Thomas Eagen, Director of the Inmate Grievance Program at the New York State Department of Correctional Services, submitted in reply to Graham's memorandum. Exhibit A attached to the affidavit is a copy of Directive #4040, which describes the grievance program. The Directive states that "decisions or dispositions of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered non-grievable." Rep. Aff. Exh. A., III.E. Examples include Media Review and disciplinary proceedings.
As fully documented in this Court's previous Report Recommendation, Graham complained about his right to possess and/or display materials on three separate occasions in 1996. 2/14/2000 RR at 2-8. The first complaint was a grievance Graham filed after correctional officers told him to remove the newspaper from his cell wall area on January 2, 1996. Graham filed a formal grievance with the IGRC, requesting that DOCS officials "not make or enforce any rules, regulations, policies or laws which infringes [sic] upon prisoners' right to read, receive and possess five percenter literature, publications. etc., in accordance with the law." Pl. Mem., Exh. 1:1/16/96 Inmate Grievance Report. In response, Graham was informed that he could keep the newspapers but not display them. The IGRC's ruling stated that "insignia that endorses the Five Percent religion is not approved and therefore cannot be openly displayed." Pl. Mem., Exh. 1:1/30/96 IGRC Report. Graham appealed this ruling to the Superintendent, who confirmed that Graham was allowed to receive the publications but could not display Five Percenter symbols. Pl. Mem., Exh. 1:2/6/96 Superintendent Report. Graham appealed the decision to the CORC, which confirmed the prior decisions and stated that Graham was allowed to receive publications in accordance with Directives #4572 and #4911. Pl. Mem., Exh. 1:4/3/96 CORC Report. Directive #4572 instructed each institution to establish a Media Review Committee to determine what materials may be denied to inmates. Pl. Mem., Exh. 1: Directive 4572.
"Pl. Mem." refers to Graham's memorandum of law, dated August 23, 1999, in response to defendant's first motion for summary judgment. Plaintiff's attachments are all included in Exhibit I; a short description designates the document cited.
Graham's second complaint pertained to the confiscation of his Five Percenter literature by correctional officers on April 16, 1996. Following the confiscation, Graham received a Tier II Misbehavior Report for being in possession of unauthorized materials. Two days later, he was transferred to the Elmira Correctional Facility. Graham was never disciplined on these charges. However, he did complain about the confiscation of his literature in a letter to the Superintendent. The letter was forwarded to the IGRC, which issued a report stating that Graham may receive the materials as long as he does not display them. Pl. Mem., Exh. 1: 10/31/96 IGRC Report. Consistent with policy directives referenced in the CORC decision in Graham's first complaint, the report stated that the confiscated materials would be forwarded to a Media Review Committee to determine whether the materials would be returned to Graham. Id. Graham appealed this decision to the Superintendent, who affirmed the IGRC's ruling. Graham did not appeal the decision to the CORC. In August, 1996, Graham complained a third time by filing a grievance requesting a definition of acceptable literature. The IGRC reiterated its position that Directive #4572 was controlling, and the Superintendent affirmed. See 2/14/2000 RR at 7.
The parties disagree as to whether this letter complaint qualifies as a "grievance" for exhaustion purposes.
C. The Instant Motion
Defendant Goord now seeks summary judgment dismissing this action on the ground that Graham failed to exhaust his administrative remedies as mandated by 42 U.S.C. § 1997e(a). See Def. Mem. at 5. In response, Graham argues that the confiscation incident was a disciplinary matter and therefore "non-grievable" under the prison grievance policy. Pl. Let. 11/6/2000. In support of his argument, he attached a copy of the misbehavior report he received for possession of unauthorized material. Id. Exh. 1.
This ground was not raised in the prior motion for summary judgment.
"Pl. Let. 11/6/2000" refers to plaintiff's letter memorandum dated November 6, 2000.
Goord counters that the misbehavior report Graham received was not a "non-grievable" disciplinary matter. According to the Directive on the Inmate Grievance Program, only a "decision or disposition" of specified matters are non-grievable. Rep. Mem. at 2. Here, Graham's misbehavior report is not a "decision or disposition," as it was never acted upon by the facility. Goord also argues that even if the misbehavior report itself were non-grievable, Graham nevertheless could have grieved the policies, rules and procedures of the DOCS programs at issue, namely the media and disciplinary proceedings. Rep. Mem. at 2. By letter dated July 10, 2001, Goord submitted for consideration recent decisions regarding the exhaustion requirement of the Prison Litigation Reform Act of 1995 ("PLRA"). Graham responded by letter dated July 16, 2001, that his complaint was a grievance for exhaustion purposes and the confiscation violated his due process rights. Pl. Let. 7/16/200l. Finally, on July 23, 2001, Goord submitted a supplemental memorandum ("Supp. Mem.") addressing arguments proffered by Graham in his July 16, 2001 letter.
"Rep. Mem." refers to Goord's December 7, 2000 reply memorandum in support of his motion for summary judgment.
"Pl. Let. 7/16/2001" refers to Graham's letter to the Court, dated July 16, 2001. and attached exhibits.
III. DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment only if it determines that there are no genuine issues of material fact based on a review of the pleadings, depositions, answer to interrogatories, admissions on file and affidavits. Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
B. Exhaustion Requirements
The Prison Litigation Reform Act of 1996 ("PLRA"), which became effective in April 1996, directs inmates complaining about "prison conditions" to avail themselves of institutional grievance procedures before filing their claims in federal court. The statute states in pertinent part:
Pub.L. No. 104-134, 110 Stat. 1321-66 (1996) (codified at 42 U.S.C. § 1997e(a) (Supp. 2000)).
"No action shall be brought with a respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted."42 U.S.C. § 1997e(a). Courts have interpreted the provision to require complete exhaustion in accordance with institutional procedures. See, e.g., Sutton v. Greiner, 2000 WL 1809284 (S.D.N.Y. Dec. 11, 2000) (granting summary judgment where prisoner failed to appeal to the CORC); Petit v. Bender, 2000 WL 303280, at *2-3 (S.D.N.Y. March 22, 2000) (prisoner who only partially complied with the grievance procedures failed to exhaust his administrative remedies.); Santiago v. Meinsen, 89 F. Supp.2d 435 (S.D.N.Y. 2000) (prisoners must challenge the conditions of their confinement through the highest level of available administrative avenues prior to filing suit). This requirement applies even when plaintiffs seek a remedy that cannot be awarded by the administrative body hearing the complaint. See Booth v. C.O. Churner, 121 S.Ct. 1819 (2001) (even if prison grievance procedures do not allow for the relief requested, a prisoner must still exhaust such procedures); Sonds v. St. Barnabas Hospital, 2001 WL 664402, *2 (S.D.N.Y. May 21, 2001); Calca v. Keefe, 2001 WL 256170 (D.Conn. March 8, 2001); Sulton, 2000 WL 1809284, *9; Majid v. Wilhelm, 110 F. Supp.2d 251, 257 (S.D.N.Y. 2000).
The exhaustion requirement in the PLRA does not define "prison conditions." The Second Circuit, holding that assault and excessive force claims are not prison conditions subject to the exhaustion requirement, noted that "`prison conditions' appear[s] to refer to circumstances affecting everyone in the area affected by them, rather than single momentary matters, such as beatings or assaults, that are directed at particular individuals." Nussle v. Willette, 224 F.3d 95, 101 (2d Cir. 2000) cert. granted, 69 U.S.L.W. 3399 (U.S. June 4, 2001) (No. 00-853). Even under this approach, First Amendment claims, including those alleging wrongful confiscation of literature, fall into the category of "prison conditions," and courts in this Circuit have treated such claims as challenges to prison conditions subject to the exhaustion requirement. See, e.g., Majid v. Wilhelm, 110 F. Supp.2d 251 (summary judgment granted in part because plaintiff had failed to exhaust his administrative remedies regarding his freedom of speech claim); Calca v. Keefe, 2001 WL 256170, *1, *9 (D. Conn. 2001) (plaintiffs first amendment claim was subject to the PLRA's exhaustion requirement).
C. Graham Failed to Exhaust the Second Complaint
Graham advances the following arguments in opposition to the instant motion: (1) his complaint qualifies as a grievance and was treated by DOCS officials as a grievance, Pl. Let. 7/16/2001; (2) the complaint raises non-grievable disciplinary issues, precluding him from properly exhausting his administrative remedies, Pl. Let. 11/6/2000; and (3) he was deprived of his right to dispose of the confiscated material. Id. of these, only the first two arguments are relevant here. As Goord points out, Graham's opposition papers present a new due process claim that he did not raise in his complaint. Supp. Mem. at 4. In any event, the claim is meritless because Graham had an adequate post-deprivation remedy. See Love v. Coughlin, 714 F.2d 207, 209 (2d Cir. 1983).
The Court agrees that, based on the record, Graham's complaint was treated as a grievance. The record shows that Graham addressed his second complaint concerning the confiscation of his Five Percenter literature on April 16, 1996, to Superintendent Keane, whose office received it some time in April. See 2/14/2000 RR at 5, n. 10. Although grievance proceedings are normally commenced by sending a grievance form to the IGRC rather than a letter to the Superintendent, Supp. Mem. at 2, it appears that the IGRC did treat Graham's letter as a grievance in this case. Following an investigation by the Superintendent's office, the IGRC held a hearing on October 31, 1996, and issued a report. 2/14/2000 RR at 6. Graham then appealed the committee's ruling to the Superintendent, who affirmed the ruling. Id. Graham did not appeal this decision to the CORC. Id.
However, the Court is not persuaded by Graham's second argument — that the confiscation was "non-grievable." As noted, Graham succeeded in initiating a grievance proceeding with his April 1996 letter to the Superintendent. He also successfully appealed the IGRC's decision to the Superintendent. Thus, the confiscation was indeed grievable. Moreover, the IGRC never directed Graham to address the letter elsewhere, as it is required to do when it receives complaints addressing non-grievable issues. See Rep. Aff., Exh. A, III. E. Graham cannot now characterize the incident as non-grievable in order to absolve himself of the statutory obligation to exhaust administrative remedies. Having fully appealed a grievance once before, Graham was familiar with the prison grievance process. Nothing in the record suggests that he was not capable of exhausting his administrative remedies by appealing to the CORC. In sum, none of Graham's arguments overcomes his failure to exhaust administrative remedies.
Graham's transfer to the Elmira facility did not prevent him from appealing the IGRO's decision to the Superintendent. It would not, therefore, have interfered with his ability to appeal to the CORC.
V. CONCLUSION
For the foregoing reasons, I respectfully recommend that defendant's motion for summary judgment be GRANTED and plaintiffs complaint be DISMISSED WITHOUT PREJUDICE.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Center Street, Room 426, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).
Respectfully Submitted,
______________________________ THE HONORABLE RONALD L. ELLIS United States Magistrate Judge