    16-527
    McNab v. Doe
                         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 ASUMMARY ORDER@). A PARTY CITING TO 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 7th day of April, two thousand seventeen.

    PRESENT:
                JON O. NEWMAN,
                DENNIS JACOBS,
                      Circuit Judges,
                 LEWIS A. KAPLAN, *
                      District Judge.
    _____________________________________

    Radcliffe O'Brian McNab,

                   Plaintiff - Appellant,

    v.                                                              16-527

    C.O. John Doe #1 a.k.a. Mo, Correctional Officer
    of Ulster Correctional Facility, R. Miller,
    Correctional Officer; Ulster Correctional Facility,
    Gutierrez, C.O.,

                   Defendant - Appellees,

    The State of New York, C.O. Miller, Correctional
    Officer of Ulster Correctional Facility, John Doe #2,
    Correctional Officer of Ulster Correctional Facility,
    Eric T. Schneiderman, New York State Attorney
    General, Brian Fischer, Commissioner, New York
    State Department of Corrections and Community

    * Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New
    York, sitting by designation.
Supervision, Scott C. Carlsen, Superintendent, Ulster
Correctional Facility, Robert I. Morton, Deputy
Superintendent, Ulster Correctional Facility, Sgt. Bell,
Riverview Correctional Facility, R. Wood, Correctional
Officer, Ulster Correctional Facility, Black, FOIL Officer,
Ulster Correctional Facility,

           Defendants.
_____________________________________

FOR PLAINTIFF-APPELLANT:                               RADCLIFFE O’BRIAN MCNAB, pro se,
                                                       Mount Vernon, New York.

FOR DEFENDANT-APPELLEE R. MILLER: FREDERICK A. BRODIE (with Barbara
                                  Underwood and Andrea Oser on the brief),
                                  for Eric T. Schneiderman, Attorney General
                                  of the State of New York, Albany, New
                                  York.

       Appeal from a judgment of the United States District Court for the Northern District of

New York, Suddaby, J.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Radcliffe O’Brian McNab, pro se, appeals the district court’s judgment

dismissing his 42 U.S.C. § 1983 complaint.           We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       “[I]n the absence of prejudice to an appellee, we read a pro se appellant’s appeal from an

order closing the case as constituting an appeal from all prior orders.” Elliott v. City of Hartford,

823 F.3d 170, 173 (2d Cir. 2016). Seeing no prejudice here, we have jurisdiction to review the

district court’s orders dismissing Appellant’s complaint in part, as well as the final order adopting

the magistrate judge’s report and recommendation and granting defendants summary judgment on

all remaining claims.

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       Sua sponte dismissals are reviewed de novo. Giano v. Goord, 250 F.3d 146, 149-50 (2d

Cir. 2001). To survive dismissal, a complaint must plead “enough facts to state a claim to relief

that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and

“allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

       We review de novo the order granting summary judgment, and focus on whether the

district court properly concluded that there was no genuine issue as to any material fact and the

moving party was entitled to judgment as a matter of law. Sotomayor v. City of New York, 713

F.3d 163, 164 (2d Cir. 2013). We construe evidence and draw all reasonable inferences in the

non-moving party’s favor. Id. Summary judgment is appropriate “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       In dismissing Appellant’s Eighth Amendment claim, the district court relied on Boddie v.

Schnieder, 105 F.3d 857 (2d Cir. 1997), for the proposition that a single incident of sexual abuse

does not constitute cruel and unusual punishment. Our decision in Crawford v. Cuomo, 796 F.3d

252 (2d Cir. 2015), which did not overrule Boddie, held that “contemporary standards of decency”

had changed and even a single instance of sexual contact by a corrections officer that “serves no

penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or

humiliate the inmate[] violates the Eighth Amendment.”            Id. at 257, 259-60.      Accepting

Appellant’s allegations as true, as we must at the pleading stage, Iqbal, 556 U.S. at 678, he asserted

a plausible Eighth Amendment claim under Crawford.




                                                  3
       Nevertheless, as the district court ruled, Appellant failed to exhaust his administrative

remedies. The Prison Litigation Reform Act (“PLRA”) bars prisoners from bringing suit “until

such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The

exhaustion requirement is mandatory, as long as remedies are actually available. Ross v. Blake,

136 S. Ct. 1850, 1856-59 (2016). As relevant here, remedies are unavailable “when prison

administrators thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Id. at 1860. Ross thus limits the exceptions and “fram[es]

the exception issue entirely within the context of whether administrative remedies were actually

available to the aggrieved inmate.” Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016).

       Even assuming that Appellant’s letter to a supervisory official was sufficient to initiate the

inmate grievance process, he does not dispute that he failed to appeal the rejection of that

complaint as “without merit.” He thus failed to properly exhaust his administrative remedies by

“complet[ing] the administrative review process in accordance with the applicable procedural

rules.” Woodford v. Ngo, 548 U.S. 81, 88 (2006).

       Appellant asserted that defendants tried to intimidate him, and intimidation can excuse the

failure to exhaust. Ross, 136 S. Ct. at 1860. However, none of the actions allegedly taken by the

defendants actually prevented Appellant from submitting his complaint letter. Ruggiero v. Cnty.

of Orange, 467 F.3d 170, 178 (2d Cir. 2006) (failure to exhaust not excused by defendants’ actions

where plaintiff “point[ed] to no affirmative act by prison officials that . . . prevented him from

pursuing administrative remedies”). Appellant was able to take the first step in the grievance

process, and nothing in the record suggests he was intimidated from taking the next step (appealing

the rejection of his informal grievance).


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       We have considered all of Appellant’s remaining arguments and find in them no basis for

reversal. Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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