Osborn v. Williams ( 2019 )

18‐340‐pr
Osborn v. Williams, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING 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 11th day of December, two thousand nineteen.
PRESENT: JOHN M. WALKER, Jr.,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
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EARL OSBORN,
Plaintiff‐Appellant,
v. 18‐340‐pr
Lieutenant CHRISTOPHER WILLIAMS, Correctional
Officer LYNDON STANDARD, Lieutenant RUBEN
BURGOS, Clinical Social Worker JAMES CASTRO,
Lieutenant JASON BEEBE, In their Individual
Capacities,
Defendants‐Appellees.1
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1 The Clerk of Court is respectfully directed to amend the official caption as set forth
above.
FOR PLAINTIFF‐APPELLANT: CHARLES D. COLE, Jr., Newman Myers
Kreines Gross Harris, P.C., New York, New
York.
FOR DEFENDANTS‐APPELLEES: MATTHEW B. BEIZER, Assistant Attorney
General, for William Tong, Attorney General,
Hartford, Connecticut.
FOR AMICI CURIAE: Jennifer Wedekind, ACLU National Prison
Project, Washington, D.C.; David M. Shapiro,
Roderick & Solange MacArthur Justice Center,
Chicago, Illinois; Robert Quackenbush and
Mary Lynne Werlwas, The Legal Aid Society,
Prisonersʹ Rights Project, New York, New
York; and Dan Barrett, ACLU Foundation of
Connecticut, Hartford, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Bolden, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Earl Osborn appeals a judgment entered December 29,
2017 dismissing his claims against defendants‐appellees Lieutenant Christopher
Williams, corrections officer Lyndon Standard, Lieutenant Ruben Burgos, clinical social
worker James Castro, and Lieutenant Jason Beebe (ʺdefendantsʺ) under 42 U.S.C. § 1983
for violations of the Eighth and Fourteenth Amendments. The district court granted
summary judgment in favor of defendants on December 29, 2017, dismissing Osbornʹs
2
claims on the ground that he failed to exhaust his administrative remedies as required
under the Prison Litigation Reform Act (the ʺPLRAʺ). 42 U.S.C. § 1997e. We assume the
partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.
We review de novo a district courtʹs grant of summary judgment. See
Hancock v. County of Rensselaer, 882 F.3d 58, 64 (2d Cir. 2018). ʺ[S]ummary judgment
may be granted only if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. In determining whether there is a
genuine dispute as to a material fact, we must resolve all ambiguities and draw all
inferences against the moving party.ʺ Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135
(2d Cir. 2013) (internal quotation marks and citations omitted).
Osborn alleged that he was attacked and injured by his cellmate at
MacDougall‐Walker Correctional Institution, and that prison officials failed to protect
him by not moving him from his cell prior to the attack, even though he had alerted
several prison officials that his cellmate had threatened to kill him. The alleged attack
occurred on October 13, 2013, but Osborn did not initiate the first of several grievances
about the incident until February 17, 2014. Inmates in Connecticut seeking to lodge a
complaint relating to an aspect of their confinement under the purview of the
Commissioner of the Department of Corrections (the ʺDOCʺ) must first seek informal
resolution and then, if that fails, file a grievance within thirty days of the cause of the
grievance. Osborn, who suffers from schizophrenia and experienced a decompensation
3
at the time of the incident, contended that his mental illness rendered him incapable of
filing a timely grievance.2
The PLRA provides that ʺ[n]o action shall be brought with respect to
prison conditions under section 1983 . . . until such administrative remedies as are
available are exhausted.ʺ 42 U.S.C. § 1997e(a). While the PLRAʹs exhaustion
requirement is ʺmandatory,ʺ inmates are exempt from the requirement when
administrative remedies are unavailable. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). An
administrative procedure is unavailable when (1) it ʺoperates as a simple dead endʺ; (2)
it is ʺso opaque that it becomes, practically speaking, incapable of useʺ; and (3) where
ʺprison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.ʺ Id. at 1859‐60. Questions of
fact with respect to whether an inmate has exhausted or is capable of exhausting
administrative remedies are to be decided by the court and not the jury. See Messa v.
Goord, 652 F.3d 305, 309 (2d Cir. 2011) (per curiam) (noting that ʺ[m]atters of judicial
administration often require district judges to decide factual disputes that are not
bound up with the merits of the underlying disputeʺ). The DOCʹs administrative
2 According to the deposition of Deborah Eddinger, a clinical social worker who worked
at MacDougall‐Walker Correctional Institution, ʺdecompensating means that [the patient is] not
able to make decisions on their own. They are actively hearing voices, theyʹre actively suicidal,
theyʹre actively ‐‐ their mental health diagnosis is not under control, and it needs to ‐‐ they need
to have either medication to get it back under control, or see a therapist to work with them to
try to get it back.ʺ Appʹx at 499.
4
directive governing the inmate grievance process provides that ʺ[s]pecial provisions
shall be made to ensure access for the impaired or disabled, illiterate, or those with
language barriers.ʺ Appʹx at 53 ¶ 5(B). Further, ʺ[a]ny inmate who needs assistance in
using the Inmate Administrative Remedies Process shall receive assistance upon
request.ʺ Appʹx at 53 ¶ 5(B)(1).
Whether mental illness can render an administrative remedy unavailable
under Ross is an open question in this Circuit. Even assuming without deciding,
however, that an inmateʹs mental illness can obviate his obligation to exhaust
administrative remedies, we are not persuaded that administrative remedies were
unavailable to Osborn here. As a preliminary matter, Osborn does not allege that
DOCʹs administrative process operated as a ʺdead endʺ or was opaque, or that
administrators kept Osborn from engaging in the process. Indeed, Osborn had been
incarcerated within the DOC for over eighteen years by the time of the alleged attack
and had availed himself of the grievance process as recently as May 2013, five months
prior to the incident.
Further, the record does not contain sufficient evidence to permit a court
to find that Osborn was incapable of filing a grievance during the relevant period,
which ran from the date of the incident through November 12, 2013. First, Osborn
observes that he was placed under the care of the prison psychiatrist starting on
November 8, 2013, but provides no evidence that he was unable to file a complaint
5
during the period between the October 13, 2014 incident and November 8, 2013.
Second, Osborn provides no expert testimony to support his contention that his mental
illness prevented him from using the grievance process or, at a minimum, from asking
for assistance in filing a grievance. 3 Third, the medical records Osborn provided
described him as calm and alert. For example, on November 8, 2013, Osbornʹs medical
records indicate that he was ʺcalm, cooperative, oriented, euthymic with full range of
affect, denies hearing voices . . . [and] fair impulse control.ʺ Appʹx at 265. On
November 10, 2019, the records report that Obsorn said ʺIʹm good,ʺ and that he was
ʺalert, calm, exercising, ate, [n]o issues.ʺ Appʹx at 266. Again on November 13, 2019,
Osbornʹs records note that he was ʺ[a]lert, oriented, cooperative without acute
symptoms . . . not hallucinating . . . impulse control good.ʺ Appʹx at 267. On this
record, a court could not conclude that Osborn was incapable of filing a grievance
during the relevant thirty‐day period.
As Osborn noted, the record does contain evidence that by December 3,
2013, his mental state had deteriorated, with his medical records noting that he reported
hearing voices. Osborn points to this as evidence that his mental condition was such
that an administrative remedy was effectively unavailable to him. Given that the
episode occurred well outside the relevant thirty‐day period, however, a reasonable
3 The district court concluded that any probative facts about Osbornʹs mental capacity
during the relevant thirty‐day period had to be provided through expert testimony. We do not
hold that expert testimony is always required, but simply note the absence of any here.
6
jury could not conclude that it rendered Osborn unable to file a grievance prior to
November 8, 2013. Finally, Osborn, who was familiar with the grievance process and
had filed a grievance in May 2013, never asked for assistance in filing a grievance in
response to the October 13, 2013 attack. Had he done so, the Administrative Remedies
Process would have required prison officials to assist him in the inmate grievance
process. He did not, however, seek assistance.
* * *
We have considered all of Osbornʹs arguments and conclude they are
without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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