Taylor v. New York City Department of Corrections

T
    19-256-cv
    Taylor v. New York City Department of Corrections


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND 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 DATABASE (WITH THE NOTATION ASUMMARY [email protected]). A PARTY CITING TO 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 for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 8th day of March, two thousand twenty-one.

    PRESENT:
                AMALYA L. KEARSE,
                ROBERT A. KATZMANN,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    Roy Taylor,

                               Plaintiff-Appellant,

                      v.                                                  19-256

    New York City Department of Corrections, New
    York State Department of Corrections and
    Community Supervision, Otis Bantum
    Correctional Center Correction Officer Cruz,
    Coordinator Kelly, Santiago, Security
    Correction Officer Thompson, Otis Bantum
    Correctional Center Warden Wettenstein, Social
    Services Counselers, Berry and Hakim, Otis
    Bantum Correctional Center Captain Elam, Otis
    Bantum Correctional Center Clothes Box Correc
    Ellis, EMT/DEP Warden Nance, Social Services
    Counselers, Defendant Social Service Counselors
    Mr. Moore & Dentry, Administrative Law Judge
    Eva Urrutia, New York State Department of
    Corrections Paroe Chairman, Tina Stanford and
Senior Probation Officer B. Crome, Counselor
Berry, Counselor Hakim, Counselor Moore,
Counselor Gentry, Coordinator Mulvanny, Eric
M. Taylor Center Corredtion Officer Dunson,
Eric M. Taylor Center Clothes Box Correction
Offic Scipion, Otis Bantum Correctional Center
Grievance Coordina Kennedy, Otis Bantum
Correctional Center Correction Officer Smith,

                       Defendants-Appellees.

_____________________________________


FOR PLAINTIFF-APPELLANT:                            Roy Taylor, pro se, East Elmhurst, NY.

FOR DEFENDANTS-APPELLEES:                           Jamison Davies, Nwamaka Ejebe, Scott
                                                    Nathan Shorr, Melanie Tharamangalam
                                                    West, for James E. Johnson, Corporation
                                                    Counsel of the City of New York,
                                                    New York, NY.


       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Vitaliano, J.; Tiscione, M.J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Roy Taylor, pro se and incarcerated in New York State, sued various prison

officials under 42 U.S.C. § 1983 in 2014 after he was subjected to lockdown measures stemming

from violent conduct by other inmates. He principally alleged that he was given inadequate

clothing in prison, and that he experienced difficulty in mailing legal correspondence and

accessing legal services. He alleged further that although he filed numerous grievances about

these conditions, some of those grievances went unanswered. The Inmate Grievance and Request

Program (“IGRP”) in place at the facility where he was incarcerated allowed an inmate to appeal

grievances to which no response was received. It provided that, in such circumstances, the inmate
was to submit a written request for an appeal. D. Ct. ECF doc. 82-1 at 15 (“In the event that the

inmate does not receive a timely disposition at any stage of the IGRP process, the inmate may

submit a request for an appeal (to proceed to the next step of the IGRP process) through the use of

the IGRP Disposition Form . . . .”). Taylor concedes, however, that he did not appeal the denial

of, or lack of response to, any of his grievances. The district court granted the prison officials’

motion for summary judgment, holding that Taylor’s failure to exhaust his available administrative

remedies precluded him from pursuing his claims in court. We assume the parties’ familiarity

with the underlying facts, the procedural history, and the issues on appeal, and refer to them only

as needed to explain our decision to affirm the district court’s judgment.

       We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and

draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 

706 F.3d 120

, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing

the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff,

642 F.3d 334

, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

I.     Waiver

       On appeal, Taylor asserts that documents relied on by the district court in its ruling on

summary judgment were falsified and argues that the court’s ruling was erroneous as a result. He

did not raise this issue in the district court, however, and he does not identify which documents

were false or who falsified them. He also contends for the first time on appeal that the exhaustion

requirement of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), did not apply

to him because he had been “bailed out of jail.” Appellant’s Br. at 8. We decline to address

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these issues, which are raised for the first time on appeal. Harrison v. Republic of Sudan, 

838 F.3d 86

, 96 (2d Cir. 2016); Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 

728 F.3d 139

, 142 n.4

(2d Cir. 2013) (pro se appellant forfeited all claims against an appellee by mentioning the adverse

district court ruling only “obliquely and in passing.”); Norton v. Sam’s Club, 

145 F.3d 114

, 117

(2d Cir. 1998).

       In addition, in July 2019 this Court ordered the parties to brief the following issues in

connection with this appeal: “(1) whether administrative remedies were available to Appellant

after his August 2013 grievance resulted in an informal resolution providing the requested relief,

but this relief was not implemented, see Abney v. McGinnis, 

380 F.3d 663

, 669 (2d Cir. 2004); and

(2) whether, to exhaust his administrative remedies, Appellant was required to appeal the favorable

resolution of his November 2013 grievance.” 2d Cir. Dkt. 19-256, doc. 43. Taylor did not brief

these issues, and has therefore waived them as a basis for appeal. See generally United States v.

Olano, 

507 U.S. 725

, 733 (1993) (a right intentionally abandoned or relinquished is waived,

making appellate review unavailable).

II.    PLRA Exhaustion

       The PLRA provides that an inmate, before he brings a federal lawsuit complaining of

prison conditions, must exhaust administrative remedies and must do so in “compliance with an

agency’s deadlines and other critical procedural rules.” Woodford v. Ngo, 

548 U.S. 81

, 90 (2006);

see 42 U.S.C. § 1997e(a); see also Macias v. Zenk, 

495 F.3d 37

, 44 (2d Cir. 2007) (“Alerting the

prison officials as to the nature of the wrong for which redress is sought does not constitute proper

exhaustion under Woodford.”) (internal alterations, quotation marks, and citation omitted).




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       Prisoners need not comply with the exhaustion requirement, however, when administrative

remedies are “unavailable.” Ross v. Blake, 

136 S. Ct. 1850

, 1858 (2016). An administrative

procedure will be treated as unavailable for purposes of this exemption in at least three

circumstances: (1) when “‘it operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates’”; (2) when it is “‘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.’” Williams v. Priatno, 

829 F.3d 118

, 123–24 (2d Cir. 2016) (quoting Ross, 136 S.

Ct. at 1859–60); see also

id. at 123

n.2 (suggesting that this list may not be exhaustive).

       Taylor argues that the prison’s administrative remedies were unavailable to him because

prison officials did not respond to his grievances. He also maintains that the PLRA did not require

him to exhaust his administrative remedies because he sought a remedy that would have resulted

in the prison having to impose discipline on staff, and that such issues are “nongrievable.”

Appellant’s Br. at 6. He also argues that because he notified outside agencies of his grievances,

exhaustion was not required. Liberally construing his submission on appeal, we understand

Taylor to contend further that prison officials thwarted his efforts to take advantage of the

grievance process, although he does not elaborate on how they did so. We reject each of these

contentions.

       The prison officials’ failure to respond to some of Taylor’s grievances did not render the

IGRP administrative procedure unavailable.        See 

Williams, 829 F.3d at 123

–24. The IGRP

contemplates that prison officials might not always respond to inmates’ grievances. It sets forth

the procedure to follow in such circumstances. Further, Taylor testified that he was familiar with

                                                 5
these procedures. In other words, Taylor knew the steps that he was required to take to exhaust

his administrative remedies; he just chose not to follow them. The administrative exhaustion

process is not unavailable for purposes of the PLRA when an inmate simply chooses not to avail

himself of it. See 

Ross, 136 S. Ct. at 1856

(a court “may not excuse a failure to exhaust,” even to

take into account “special circumstances”). We also find no support for Taylor’s contention that

he was exempt from the exhaustion requirement because he attempted to resolve his issues by

contacting agencies outside the prison, such as the Prisoner’s Rights Project. The IGRP states

only that, before an inmate “seek[s] relief from an external entity, like the courts or another agency,

[he] should file [his] grievance or request with this program.” D. Ct. ECF doc. 82-1 at 37.

Contacts with outside entities have no bearing on an inmate’s fulfillment of his obligation to

exhaust remedies.

       Taylor next urges that his grievances seeking discipline of prison staff were

“nongrievable,” such that exhaustion was not required. The IGRP addresses staff discipline in

this context as follows:

       Requests for the removal of a Department employee from an assignment, or the
       censure, discipline or termination of a Department employee are not subject to the
       IGRP process. The grievance or request, including any substantive issue that
       prompted such a request, will otherwise be processed in the ordinary course as
       described in this directive. The IGRP staff shall forward the complaint seeking
       discipline of staff to the staff commander’s commanding officer.

D. Ct. ECF doc. 82-1 at 6.

       The summary judgment records shows that Taylor filed at least five grievances requesting

that prison staff be reprimanded or otherwise disciplined. It appears that the IGRP does not

outline an appropriate mechanism for seeking a remedy of staff discipline. But even if Taylor did



                                                  6
exhaust his administrative remedies for grievances that requested staff discipline (or was unable

to, because the IGRP does not set forth a procedure), these grievances did not form the basis of

this lawsuit. Rather, his lawsuit is predicated on his allegedly unconstitutional conditions of

confinement and lack of access to the courts. The substantive issues underlying grievances

requesting discipline are subject to the IGRP process. Since the conditions-of-confinement and

access-to-courts claims were grievable, and therefore subject to the IGRP appeals process,

Taylor’s failure to appeal the non-responses to these grievances constituted a failure to exhaust his

administrative remedies. Cf. Davis v. Barrett, 

576 F.3d 129

, 132–133 (2d Cir. 2009).

       Finally, even liberally construing Taylor’s assertion on appeal that prison officials thwarted

his attempts to take advantage of the grievance process, he has not provided any example as to

how they did so, except for their failure to respond to his grievances. He does not assert that

prison officials took any action to prevent him from utilizing the grievance process, let alone that

they engaged in “‘machination, misrepresentation, or intimidation’” to that end. 

Williams, 829 F.3d at 123

–24 (quoting 

Ross, 136 S. Ct. at 1860

). Further, his numerous grievances, some of

which were resolved in his favor, demonstrate that any such attempts to thwart him did not render

the administrative process unavailable.

       We have considered all of Taylor’s remaining arguments and find in them no basis for

reversal. Accordingly, we AFFIRM the judgment of the district court.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




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