Wilson v. McKenna

SUMMARY ORDER Plaintiff-appellant Alvin Wilson, proceeding pro se, appeals from a judgment in favor of defendant-appellee Corrections Officer Brooke McKenna in his suit under 42 U.S.C. § 1983, alleging deliberate indif [752] ference to Ms medical needs. The district court granted summary judgment to McKenna, concluding, inter alia, that Wilson had failed to exhaust his administrative remedies. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal. As an initial matter, Wilson does not address exhaustion in his appellate brief, and therefore has abandoned any challenge to the district court’s determination that he failed to exhaust his administrative remedies. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). In any event, we conclude that the district court properly determined as a matter of law that Wilson failed to exhaust his administrative remedies. We review de novo a district court’s grant of summary judgment. Garcia v. Hartford Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under the Prison Litigation Reform Act of 1995 (the “PLRA”), “[n]o action shall be brought with respect to prison conditions under [§ 1983] ... 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). The PLRA requires “proper exhaustion,” meaning exhaustion in “compliance with an agency’s deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Nevertheless, the administrative remedies must be “available.” Ross v. Blake, — U.S. -, 136 S.Ct. 1850, 1858, 195 L.Ed.2d 117 (2016). An administrative procedure is unavailable when (1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Williams v. Priatno, 829 F.3d 118, 122-24 (2d Cir. 2016) (quoting Ross, 136 S.Ct. at 1859-60). The Connecticut Department of Correction (“DOC”) requires inmates to submit grievances in accordance with Administrative Directive 9.6 (“AD 9.6”). Defendant’s Cross-Motion for Summary Judgment, Ex. A, Wilson v. McKenna, No. 12-cv-1581, (S.D.N.Y. May 5, 2015), ECF No. 29. According to that directive, the aggrieved inmate must seek informal resolution prior to filing a grievance. AD 9.6 § 6.A. If attempts to resolve the issue verbally fail, then the inmate must submit an Inmate Request Form clearly stating the problem and requesting a remedy. Id. If no response from DOC is received within fifteen business days of receipt of the Inmate Request Form or if the remedy offered through informal resolution is unsatisfactory, the inmate may file a Level 1 grievance within thirty days of the incident giving rise to the grievance. Id. § 6.A, 6.C. To do so, he must submit an Inmate Administrative Remedy Form that covers requests for relief for both “Grievance[s]” and “Health Service Review[s].” Def. Cross-Mot. Summ. J., Ex. A at 16. When submitting a Level 1 grievance, the inmate must attach the previously-filed Inmate Request Form to the Inmate Administrative Remedy Form or explain why it is not attached. AD 9.6 § 6.C When an inmate files a grievance that fails to comply with these procedural requirements, DOC may either (1) return the grievance without disposition, at which point inmates are permitted to correct the error and refile the grievance, id. § 6.E, or (2) reject the grievance outright without giving the [753] inmate an opportunity to refile, id. § 6.F. DOC is to provide a written response to the Level 1 grievance within thirty business days of receipt of the grievance. Id. § 6.1. An inmate may appeal a Level 1 disposition to Level 2 -within five calendar days of his receipt of the 'decision. Id. § 6.K. As the district court concluded, the record shows that Wilson failed to properly exhaust the administrative remedies available to him before filing suit in federal court. Wilson alleges he was injured and denied necessary medical care by McKen-na on September 16, 2012. Wilson filed an Inmate Administrative Remedy Form on September 20, 2012. On this form, Wilson checked a box indicating that he was “filing a Grievance.” Def. Cross-Mot. Summ. J., Ex. I at 1. He did not check the box for “requesting a Health Services Review,” but did check boxes for Diagnosis/Treatment” and “All Other Health Care Issues” in the Health Services Review section of the form. Id. Further, Wilson requested only medical care in the narrative portion of the form—no mention was made of McKenna, or any other guard for that matter. The form was treated as a request for Health Services Review and denied on October 16, 2016, because, by then, Wilson had been examined by medical staff on multiple occasions. Wilson also submitted an Inmate Request Form on October 9, 2012, in which he mentioned the alleged incident with McKenna, but complained only about his lack of medical treatment. It was not until October 17, 2012, thirty-one days after he allegedly sustained an injury, that Wilson filed an Inmate Request Form detailing his complaint against McKenna. Although he also filed an Inmate Grievance Appeal Form—Levels ⅜ on October 17, 2012, Wilson never filed a Level 1 grievance against McKenna.1 Hence, Wilson failed to comply with the Administrative Directive: He did not submit a timely Level 1 grievance and his “appeals” were premature. Therefore, he did not demonstrate “proper exhaustion” and the district court properly entered summary judgment in favor of McKenna. See Ross, 136 S.Ct. at 1857 (“[Mjandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion”). Because Wilson did not raise the issue below or on appeal, we do not consider whether the grievance process was “unavailable” to him, either because his September 20, 2012 Inmate Administrative Remedy Form was treated as a request for Health Services Review rather than a Grievance, or for any other reason. See Ross, 136 S.Ct. at 1859-60; Guzman v. Local 32B-32J, Serv. Emps. Int’l Union, 151 F.3d 86, 93 (2d Cir. 1998). We have considered Wilson’s remaining arguments and conclude they are without merit. Accordingly, we AFFIRM the judgment of the district court. Footnotes [1] We note that the record below indicates that DOC never received the forms Wilson purportedly filed on October 9, 2012, and October 17, 2012, a fact that he does not dispute. Nevertheless, we assume for the purposes of this appeal that the forms were indeed submitted.