Harvey v. Correction Officers 1 Through 6

14-2446
Harvey v. Correction Officers 1-6
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of May, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROSEMARY S. POOLER,
8 PETER W. HALL,
9 Circuit Judges.
10
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12 GREGORY HARVEY,
13 Plaintiff-Appellant,
14
15 -v.- 14-2446
16
17 CORRECTION OFFICERS 1 THROUGH 6, NEW
18 ADMISSIONS, CLINTON CORRECTIONAL
19 FACILITY, TWO CORRECTION SERGEANTS,
20 NEW ADMISSIONS, CLINTON CORRECTIONAL
21 FACILITY, MEDICAL PERSONNEL, MEDICAL
22 NURSE AND STAFF, CLINTON CORRECTIONAL
23 FACILITY, J. JABOUT, CORRECTIONS
24 OFFICER, K. REYELL, CORRECTIONS
25 OFFICER, SHERYL MILLER, NURSE, MARY
26 BETH GILLEN, REGISTERED NURSE, CHARLES
27 SIMPSON, REGISTERED NURSE,
28 Defendants-Appellees.
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1
2 FOR APPELLANT: Gregory Harvey, pro se, Marcy,
3 New York.
4
5 FOR APPELLEES: Robert M. Goldfarb, Assistant
6 Solicitor General (with Barbara
7 D. Underwood, Solicitor General,
8 and Andrea Oser, Deputy
9 Solicitor General), for Eric T.
10 Schneiderman, Attorney General
11 of the State of New York,
12 Albany, New York.
13
14 Appeal from a judgment of the United States District
15 Court for the Northern District of New York (Kahn, J.).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the judgment of the district court be
19 VACATED AND REMANDED.
20
21 Gregory Harvey, pro se, appeals from the judgment of
22 the United States District Court for the Northern District
23 of New York (Kahn, J.), dismissing his complaint alleging
24 that he was subjected to excessive force in violation of 42
25 U.S.C. § 1983 for failure to exhaust administrative remedies
26 as required by the Prison Litigation Reform Act, 42 U.S.C.
27 § 1997e(a) (“PLRA”). We assume the parties’ familiarity
28 with the underlying facts, the procedural history, and the
29 issues presented for review.
30
31 “A prisoner may invoke the doctrine of estoppel when
32 defendants took affirmative action to prevent him from
33 availing himself of grievance procedures.” Amador v.
34 Andrews, 655 F.3d 89, 103 (2d Cir. 2011) (internal quotation
35 marks omitted). “[V]erbal and physical threats of
36 retaliation, physical assault, denial of grievance forms or
37 writing implements, and transfers constitute such
38 affirmative action.” Id.
39
40 Harvey alleged that he was threatened with further
41 beatings if he told anyone about the assault at Clinton,
42 Harvey, 2014 WL 2779252, at *4; he was placed in a strip
43 cell and denied access to writing implements, id.; after
44 five days, he was transferred to Downstate Correctional
45 Facility (“Downstate”) and told by a “grievance rep” that he
46 could not file a grievance at that facility for an incident
47 that occurred at another facility, id. at *5 (internal
2
1 quotation marks omitted); and, Harvey was subsequently
2 transferred to Sing Sing, where he was again allegedly told
3 that he could not file a grievance that related to conduct
4 that occurred at another facility, id.
5
6 In discounting Harvey’s contention that he feared for
7 his life due to threats made by the Clinton staff, the
8 district court placed weight on the fact that, while at
9 Clinton, Harvey complained to a nurse and psychiatric staff
10 that he had been assaulted. Id. at *9. But, “threats or
11 other intimidation by prison officials may well deter a
12 prisoner of ‘ordinary firmness’ from filing an internal
13 grievance, but not from appealing directly to individuals in
14 positions of greater authority within the prison system, or
15 to external structures of authority.” Hemphill v. New York,
16 380 F.3d 680, 688 (2d Cir. 2004). This reasoning applies to
17 Harvey’s effort to report his alleged assault to medical
18 personnel at Clinton.
19
20 The court also relied on the fact that it found no
21 “evidence suggesting any fear of filing a grievance while at
22 Downstate.” Harvey, 2014 WL 2779252, at *9. True, an
23 inmate has 21 days from the date of the alleged excessive
24 force incident to file a grievance, id. at *7, so Harvey
25 technically could have filed upon arriving at Downstate
26 where he had no reason to fear the corrections officer.
27 But, he alleges that he was informed by a grievance
28 representative that he could not file a grievance about
29 conduct that occurred at another facility.
30
31 We remand to the district court to determine, in the
32 first instance: (1) whether the unnamed grievance
33 representative was a staff member at Downstate and, if not,
34 (2) whether an inmate member of an inmate grievance
35 resolution committee is a prison official whose alleged
36 affirmative act may bar defendants from relying on an
37 exhaustion defense. See 7 N.Y.C.R.R. § 701.4(a) (describing
38 composition of inmate grievance resolution committee as
39 consisting of both inmates meeting certain qualifications
40 and staff members); cf. Brown v. Koenigsmann, 2005 WL
41 1925649, at *2 (S.D.N.Y. 2005) (concluding Second Circuit
42 precedent “does not require a showing that [the named
43 defendant] is personally responsible for plaintiff’s failure
44 to complete exhaustion, as long as someone employed by the
45 DOCS is”) (citing Ziemba v. Wezner, 366 F.3d 161, 163 (2d
46 Cir. 2004)).
47
3
1 For the foregoing reasons, we hereby VACATE AND REMAND
2 the judgment of the district court for further proceedings
3 consistent with this summary order.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8
4