Dennis v. Westchester County Jail Correctional Department ( 2012 )

11-1452
Dennis v. Hopkins
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of June, two thousand twelve.
5 PRESENT: DENNIS JACOBS,
6 Chief Judge,
7 DENNY CHIN,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10 - - - - - - - - - - - - - - - - - - - -X
11 KYLE DENNIS,
12 Plaintiff-Appellant,
13 -v.- 11-1452
14 WESTCHESTER COUNTY JAIL CORRECTIONAL
15 DEPARTMENT, EMSA CORRECTIONAL CARE,
16 JANE DOE, NURSE, individually and in
17 their official capacities,
18 Defendants-Cross Defendants,
19 C. HOPKINS, CORRECTIONAL OFFICER,
20 individually and in their official
21 capacities, JOHN DOE, OFFICER,
22 individually and in their official
23 capacities,
24 Defendants-Cross Defendants-
25 Appellees,
1
1 STUKES, OFFICER, individually and in
2 their official capacities, JENKINS,
3 CORRECTION OFFICER, individually and
4 in their official capacities,
5 Defendants-Cross Defendants-
6 Cross Claimants-Appellees.
7 - - - - - - - - - - - - - - - - - - - -X
8 FOR APPELLANT: Andrew Frederick Plasse, Andrew
9 F. Plasse, P.C., New York, N.Y.
10 FOR APPELLEES: Justin R. Adin, Assistant County
11 Attorney, Of Counsel (Robert F.
12 Meehan, Westchester County
13 Attorney, on the brief), White
14 Plains, N.Y.
15 Appeal from a judgment of the United States District
16 Court for the Southern District of New York (Stamp, J.,
17 sitting by designation).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19 AND DECREED that the judgment of the district court be
20 AFFIRMED IN PART and VACATED AND REMANDED IN PART.
21 Kyle Dennis appeals from a judgment granting summary
22 judgment in favor of defendants Christopher Hopkins, Risha
23 Stukes, and Taimeka Jenkins on Dennis’s 42 U.S.C. § 198324 action. The complaint alleges that the defendants failed to
25 protect Dennis from serious harm in violation of the Eighth
26 Amendment. We assume the parties’ familiarity with the
27 underlying facts, the procedural history, and the issues
28 presented for review.
29 “We review de novo a district court’s grant of summary
30 judgment, drawing all factual inferences in favor of the
31 non-moving party.” Collazo v. Pagano, 656 F.3d 131, 134 (2d
32 Cir. 2011) (per curiam). “Summary judgment is proper only
33 when, construing the evidence in the light most favorable to
34 the non-movant, ‘there is no genuine dispute as to any
35 material fact and the movant is entitled to judgment as a
36 matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d
37 Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
2
1 Under the Prison Litigation Reform Act (“PLRA”), “‘[n]o
2 action shall be brought with respect to prison conditions
3 under section 1983 . . . by a prisoner confined in any jail,
4 prison, or other correctional facility until such
5 administrative remedies as are available are exhausted.’”
6 Porter v. Nussle, 534 U.S. 516, 524 (2002) (quoting 42
7 U.S.C. § 1997e(a)). Exhaustion is not required: “when (1)
8 administrative remedies are not available to the prisoner;
9 (2) defendants have either waived the defense of failure to
10 exhaust or acted in such [a] way as to estop them from
11 raising the defense; or (3) special circumstances, such as a
12 reasonable misunderstanding of the grievance procedures,
13 justify the prisoner’s failure to comply with the exhaustion
14 requirement.” Ruggiero v. County of Orange, 467 F.3d 170,
15 175 (2d Cir. 2006); see also Macias v. Zenk, 495 F.3d 37, 43
16 n.1 (2d Cir. 2007) (leaving open the question of whether
17 Woodford v. Ngo, 548 U.S. 81 (2006), affects the special
18 circumstances exception).
19 Dennis alleges that he attempted to file a grievance
20 with Officer Stukes and Sergeant Stallone but was advised
21 that the issue was non-grievable, and he was not given a
22 grievance form. The defendants contend that Dennis could
23 have obtained a grievance form from the law library.
24 However, the Westchester Department of Correction “Standard
25 Operating Procedure” and a United States Department of
26 Justice report suggest that, at the time of the events in
27 question, this was not the case. In concluding that Dennis
28 failed to exhaust his administrative remedies, the district
29 court made no finding as to whether Dennis attempted to file
30 a grievance, whether he was rebuffed, or whether the
31 Department of Correction afforded an alternative way to
32 file. We remand in part for the court to make any such
33 necessary findings to determine if the facts give rise to
34 special circumstances that may justify Dennis’s failure to
35 comply with the exhaustion requirement of the PLRA. See,
36 e.g., Brownell v. Krom, 446 F.3d 305, 312-13 (2d Cir. 2006).
37 The district court ruled in the alternative that the
38 defendants were entitled to summary judgment on the merits.
39 “For a claim . . . based on a failure to prevent harm, the
40 inmate must show that he [wa]s incarcerated under conditions
41 posing a substantial risk of serious harm,” and that the
42 prison official was deliberately indifferent. Farmer v.
43 Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference
44 exists when “the official knows of and disregards an
45 excessive risk to inmate health or safety; the official must
3
1 both be aware of facts from which the inference could be
2 drawn that a substantial risk of serious harm exists, and he
3 must also draw the inference.” Id. at 837.
4 As the district court correctly concluded, there is no
5 genuine dispute of fact as to whether Officers Stukes and
6 Jenkins were deliberately indifferent. Dennis testified
7 that while Stukes and Jenkins were within hearing-distance,
8 one of the soon-to-be assailants said to another (referring
9 to Dennis), “there go that faggot right there. Open the
10 gate for that dude, open the gate for him.” This statement
11 was insufficient to put Stukes or Jenkins on notice of a
12 substantial risk of serious harm. See generally Hines v.
13 Lacy, 189 F.3d 460, No. 98-2961, 1999 WL 642915, at *3 (2d
14 Cir. Aug. 20, 1999) (summary order) (“[A] sketchy
15 description of a verbal confrontation[--assailant yelled and
16 swore at inmate--]does not sufficiently allege conditions
17 posing a substantial risk of serious harm.” (internal
18 quotation marks omitted)); Desulma v. City of N.Y., No. 98
19 Civ. 2078(RMB)(RLE), 2001 WL 798002, at *7 (S.D.N.Y. July 6,
20 2001) (“[T]he inmates told him he was ‘going to pay a price’
21 and told him to get away from them because ‘he smell[ed].’
22 These verbal statements alone do not indicate a substantial
23 threat of serious harm.” (second alteration in original)
24 (citation omitted)). Dennis testified that neither Jenkins
25 nor Stukes ordered the assailants to stop, but that
26 allegation is rendered immaterial by undisputed testimony.
27 Jenkins testified that by the time she became aware of the
28 assault, an alarm had been signaled, which indicated that
29 the Emergency Response Team (“ERT”) was on its way. She did
30 not recall if she gave a stop order, but noted her practice
31 of doing so. Stukes testified that she did not see the
32 incident until the ERT had terminated the assault.
33 Therefore, any failure by Jenkins or Stukes to give a stop
34 order does not indicate deliberate indifference to Dennis’s
35 safety. Dennis also testified that at some time after the
36 assault, Stukes taunted him. This too is insufficient to
37 create a material issue as to whether Stukes knew of a
38 substantial risk to Dennis prior to the assault.
39 The district court erred in granting summary judgment
40 in favor of Officer Hopkins. One of the assailants
41 testified that he informed Hopkins of the planned assault,
42 that Hopkins replied that “he wouldn’t mind, you know, do
43 what you got to do,” that Hopkins instructed another officer
44 to open a gate separating Dennis from the assailants, and
45 that, during the assault, Hopkins told the assailants: “you
4
1 all better hurry up and finish, because the [ERT] is
2 coming.” This evidence is sufficient to create a genuine
3 dispute of fact as to whether Hopkins was deliberately
4 indifferent to a substantial risk of serious harm to Dennis.
5 Hopkins is not entitled to qualified immunity: Correction
6 officers have a clearly established “duty . . . to protect
7 prisoners from violence at the hands of other prisoners,”
8 Farmer, 511 U.S. at 833 (alteration in original) (internal
9 quotation marks omitted), and we cannot conclude that it was
10 objectively reasonable for Hopkins to believe that his
11 actions (as they are alleged by Dennis) did not violate this
12 duty. See Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999)
13 (“Defendants are entitled to qualified immunity if (1) their
14 actions did not violate clearly established law, or (2) it
15 was objectively reasonable for them to believe that their
16 actions did not violate such law.”).
17 Having considered all of Dennis’s arguments, we hereby
18 AFFIRM the judgement as to Officers Stukes and Jenkins; we
19 VACATE the judgment as to Officer Hopkins; and we REMAND
20 this case for further proceedings consistent with this
21 order.
22 FOR THE COURT:
23 CATHERINE O’HAGAN WOLFE, CLERK
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