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Case 7:06-cv-03868-FPS Document 75 Filed 07/30/13 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KYLE DENNIS,

Plaintiff,

v.
CORRECTION OFFICER C. HOPKINS,
CORRECTION OFFICER “JANE” STUKES,
CORRECTION OFFICER “JANE” JENKINS,
and CORRECTION OFFICER JOHN DOE in
their individual and official
capacities as correction officers
employed by the County of Westchester,

06 Civ. 3868 (FPS)
MEMORANDUM OPINION AND ORDER
AFFIRMING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION

Defendants.

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I. Procedural History

The plaintiff filed the above-styled civil action pursuant to
42 U.S.C. § 1983, alleging that he was attacked by four inmates and
that the correction officers standing nearby ignored his cries for
help. This Court previously granted summary judgment in favor of
all defendants in this case.1 In granting summary judgment on
behalf of the defendants, this Court found that all defendants were
entitled to qualified immunity. Further, this Court found that not
only were all defendants entitled to qualified immunity for their
actions, but the plaintiff failed to exhaust his administrative

1For a more detailed explanation of this Court’s previous
findings and for a factual background of this case, see ECF No. 55.

Case 7:06-cv-03868-FPS Document 75 Filed 07/30/13 Page 2 of 12

remedies in accordance with the Prison Litigation Reform Act
(“PLRA”).

On appeal, the United States Court of Appeals for the Second
Circuit affirmed this Court’s judgment as to two of the
correctional officers, defendants Correction Officer “Jane” Stukes
(“Stukes”) and Correction Officer “Jane” Jenkins (“Jenkins”),
finding they were entitled to qualified immunity. As to defendant
Correction Officer C. Hopkins (“Hopkins”), however, the Second
Circuit vacated this Court’s judgment. The Second Circuit found
that defendant Hopkins was not entitled to qualified immunity, as
the evidence created a genuine dispute of fact as to whether he was
deliberately indifferent. Further, as to this Court’s finding that
the plaintiff failed to exhaust his remedies as required by the
PLRA, the Second Circuit remanded this case “to make any such
necessary findings to determine if the facts give rise to special
circumstances that may justify Dennis’s failure.” Dennis v.
Westchester County Jail, 485 F. App’x 478, 480 (2d Cir. 2012).

Thereafter, this Court referred the matter to Magistrate Judge
George A. Yanthis for an evidentiary hearing and report and
recommendation on the issue of whether special circumstances
justify plaintiff’s failure to comply with the exhaustion
requirement. The magistrate judge held the evidentiary hearing and
thereafter issued a report and recommendation, wherein he
recommended that this Court find that no special circumstances

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existed based upon the evidence adduced at the hearing that would
justify plaintiff’s failure to comply with the exhaustion
requirement. Within the report and recommendation, the magistrate
judge informed the parties that they had 14 days from the date of
receipt of the report and recommendation to serve and file written
objections to his findings. The plaintiff, through counsel
requested additional time to file objections to the report and
recommendation, which this Court granted. Thereafter, such
objections were filed and defendant Hopkins filed a response to
those objections. The Court then received a letter motion from the
plaintiff, requesting leave to file his own objections and stating
that he was no longer represented by his counsel. This Court
denied the plaintiff’s request, finding that there was no
indication that the plaintiff’s counsel had withdrawn, and
therefore, any motions he wished to have filed should be filed by
counsel.

II. Applicable Law

Any part of a magistrate judge’s report and recommendation
that is properly objected to by the parties must be reviewed by
this Court de novo. Fed. R. Civ. P. 72(b). Whereas, “[t]o accept
the report and recommendation of a magistrate judge to which no
timely objection has been made, a district court need only satisfy
itself that there is no clear error on the record.” Nelson v.
Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted).

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Because the plaintiff filed objections to the magistrate judge’s
finding that the plaintiff failed to exhaust his administrative
remedies, this Court will review this finding de novo.

III. Discussion

During the evidentiary hearing, the plaintiff argued that he
attempted to comply with the grievance procedure but defendant
Stukes and Sargent Stallone impeded the process. The plaintiff
testified that he asked defendant Stukes for a grievance form, but
she did not note his request in her log book nor did she provide
him with a form. He further testified that later that day he asked
Sargent Stallone for a form but Sargent Stallone said his issue was
nongrievable issue and he should get a lawyer. The plaintiff
argued that this interference constituted special circumstances,
which justify his failure to exhaust.

The magistrate judge found that the plaintiff’s testimony was
not credible. Specifically, the magistrate judge found that based
on the evidence presented at the evidentiary hearing, neither
defendant Stukes nor Sargent Stallone were assigned to any of the
plaintiff’s housing blocks during the time frame in question when
plaintiff contends he made his requests for the forms. Further,
the magistrate judge found that although the plaintiff testified
that he believed the grievance procedure required him to obtain a
grievance form from a housing officer or supervising block officer,
plaintiff grieved his May 10, 2005 placement in protective custody

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by writing a letter to the warden. This grievance was made six
days prior to the plaintiff contending that he requested grievance
forms from defendant Stukes and Sargent Stallone for the alleged
events surrounding his attack on May 10, 2005. Thus, the
magistrate judge found that the plaintiff was clearly aware of
alternative means of satisfying the grievance procedure.

The plaintiff filed objections to the magistrate judge’s
findings, arguing that the administrative grievance system in
effect at the Westchester County Jail where the plaintiff was
incarcerated was a nullity. The plaintiff contends that the
Westchester County Jail allegedly continued to use a two-tier
grievance system, which required the prisoners to informally try to
resolve their complaint before formally filing a complaint, in
contravention of the regulations of the New York State Department
of Corrections. Based on certain exhibits from the New York State
Department of Corrections, the plaintiff alleges that this process
continued until November 2007. Further, the plaintiff states that
according to a report from the United States Department of Justice
(“DOJ”), there was not one grievance filed in 2006 or 2007 alleging
excessive force. This, along with the prison not complying with
the regulations regarding the grievance system, the plaintiff
contends, made the system a nullity and justifies the plaintiff’s
inability to comply with the system.

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Defendant Hopkins responded arguing that the evidence produced
during the evidentiary hearing demonstrated that the plaintiff had
adequate administrative remedies available to him and that his
failure to utilize those remedies was not excused. Further, the
defendant argues that the plaintiff’s purported excuse for not
complying with the grievance system and his argument that the
grievance system was a nullity were unsupported by the evidence.
Specifically, the defendant states that the memorandum and letter
of the New York State Department of Corrections alleging that the
Westchester County Jail was using a two-tier grievance system in
contravention of regulations is irrelevant. The defendant contends
that these exhibits only stand for the proposition that the
plaintiff should not have been required to exhaust the informal
procedure, not that he was excused from following the formal
procedure, which is the issue in this case. As to the DOJ report,
the defendant argues that while this report shows that no
grievances were filed for excessive force in 2006 and 2007,
Assistant Warden Robert Orlando testified at the evidentiary
hearing that the plaintiff’s grievance would not have been filed as
a grievance for excessive force. Instead, Assistant Warden Orlando
stated that the plaintiff’s grievance would be filed as a grievance
concerning a complaint against staff because the plaintiff was
alleging a claim for failure-to-protect. Thus, the defendant
states that not only does the report itself not claim that the

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grievance system was a nullity, but the plaintiff’s argument
concerning the report does not apply to his type of grievance.
Finally, the defendant states that as shown by the evidence, it was
impossible for the plaintiff to have asked Sargent Stallone and
defendant Stukes for a form based on their assignments during the
relevant time period. This, along with the fact that plaintiff
could have obtained the forms from other officers, the library, or
merely sent a letter to the warden to satisfy the process,
indicates that no special circumstances exist to excuse the
plaintiff from the requirement of exhausting his administrative
remedies.

The PLRA provides in pertinent part as follows:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, 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. § 1997(e)(a). The Second Circuit has instructed courts
to conduct a three-part inquiry in circumstances where an inmate
attempts to counter the argument that he has not exhausted
administrative remedies as required by the PLRA. Hemphill v. State
of New York, 380 F.3d 680, 686 (2d Cir. 2004). First, the Court
must determine whether administrative remedies were in fact
available to the prisoner. Id. Second, the Court must consider
whether the prisoner failed to raise or preserve the exhaustion
defense or is estopped from raising the defense. Id. Third, where

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administrative remedies were available to the prisoner, the Court
must consider whether special circumstances have been plausibly
alleged that justify the prisoner’s failure to comply with
administrative procedural requirements. Id.

The Second Circuit specifically remanded this case for this
Court to make specific findings as to the third issue, which is
whether there are facts that give rise to special circumstances
that may justify the plaintiff’s failure to comply with the
exhaustion requirement. In determining whether special
circumstances justify the plaintiff’s failure to exhaust, this
Court must evaluate “the circumstances which might understandably
lead usually uncounselled prisoners to fail to grieve in the
normally required way.” Giano v. Goord, 380 F.3d 670, 678 (2d Cir.
2004). “[R]easonable reliance on regulations, statutes, or case
law might excuse a prisoner’s failure to pursue administrative
remedies.” Gibson v. Brooks, 355 F. Supp. 2d 325, 329 (D. Conn.
2004) (citing Giano, 380 F.3d at 677). Further, physical threats
made by prison officials also may constitute special circumstances
that excuse the plaintiff’s failure to exhaust. See Hemphill v.
New York, 380 F.3d 680, 685 (2d Cir. 2004).

After a de novo review of the magistrate judge’s findings,
this Court agrees with the magistrate judge and finds that no
special circumstances existed to justify the plaintiff’s failure to
exhaust his administrative remedies. First, this Court does not

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find merit in plaintiff’s original argument presented at the
evidentiary hearing that Sargent Stallone’s and defendant Stukes’
failure to provide him with the requested grievance forms
constituted special circumstances. As explained by the magistrate
judge, according to the evidence provided, neither Sargent Stallone
nor defendant Stukes were assigned to the plaintiff’s housing block
during the time period that the plaintiff alleges he requested the
forms from those officers. Further, the plaintiff grieved a
different complaint directly to the warden via letter days before
allegedly requesting the forms from the officers. Therefore, even
if somehow the plaintiff had requested the forms from those
officers, the plaintiff was still aware of a different method for
grieving his complaints. Based on this evidence, not receiving the
grievance forms from the officers would not have prevented this
uncounselled plaintiff from making a grievance. Therefore, the
officer’s alleged refusal to provide grievance forms to the
plaintiff does not constitute a special circumstance that would
excuse the plaintiff’s failure to exhaust his claims.

Second, this Court also finds plaintiff’s newly developed
argument that the grievance system was a nullity based on the
system’s noncompliance regulations of the New York State Department
of Corrections and the report issued by the DOJ to be without merit
as well. As the defendant indicates, while the two-tiered system
in place at the Westchester County Jail may have been against the

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regulations issued by the New York State Department of Corrections,
as it involved an informal grievance process in addition to the
formal grievance process, this does not excuse the plaintiff’s
failure to comply with the formal grievance process. The plaintiff
was aware of how to make a formal grievance to the warden via
letter without the requested forms. This was shown by the letter
he sent just days before he claims he was refused forms from the
officers, which grieved his placement in protective custody.
Further, as to the report issued by the DOJ concerning grievances
filed for excessive force, this Court finds that such report is
irrelevant to determining whether special circumstances exist in
this situation. As was evidenced by testimony at the hearing
before the magistrate judge, Assistant Warden Orlando testified
that the plaintiff’s grievance would have constituted a grievance
for failure-to-protect, which is a complaint against an officer,
not a complaint for excessive force. Therefore, neither
plaintiff’s original argument nor his newly developed argument
through his objections report and recommendation constitute special
circumstances that justify the plaintiff’s failure to exhaust his
administrative remedies.

IV. Conclusion

Based upon a de novo review of the record the report and
recommendation of the magistrate judge is hereby AFFIRMED and
ADOPTED. As such, it is ORDERED this civil action be DISMISSED

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WITHOUT PREJUDICE and STRICKEN from the active docket of this
Court.

Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Second Circuit,
he is ADVISED that he must file a notice of appeal with the Clerk
of this Court within 30 days after the date of the entry of this
judgment order.

This Court finds that it is inappropriate to issue a
certificate of appealability in this matter. Specifically, the
Court finds that the plaintiff has not made a “substantial showing
of the denial of a constitutional right.” See 28 U.S.C.
§ 2253(c)(2). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is
likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-
38 (2003). Upon review of the record, this Court finds that the
plaintiff has not made the requisite showing. Accordingly, the
plaintiff is DENIED a certificate of appealability.

The plaintiff may, however, request a circuit judge of the
United States Court of Appeals for the Second Circuit to issue the
certificate.

IT IS SO ORDERED.

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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the plaintiff and to counsel of record herein.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk is
DIRECTED to enter judgment on this matter.

DATED:

July 30, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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