14-3365
Richardson v. New York State Department of Corrections

                              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.



       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
22nd day of February, two thousand sixteen.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            ROBERT D. SACK,
                        Circuit Judges.
_____________________________________________________

ROLAND RICHARDSON,

                                 Plaintiff-Appellant,

                         v.                                                  14-3365

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION EMPLOYEES, in their individual capacities, PATRICK J. GRIFFIN,
Superintendent of Sullivan Correctional Facility, C.O. R. LORDO, SERGEANT WILLIAM
HAAS, CAROL LICIAGO, Facility Nurse - RN, C.O.D. LAWRENCE, LIEUTENANT
SIPPLE, C.O. BRUNO, Visit Room Officer,

                        Defendants-Appellees.1
_____________________________________________________

Appearing for Appellant:         Ellyde R. Thompson (William B. Adams, on the brief), Quinn
                                 Emanuel Urquhart & Sullivan, LLP, New York, NY.

Appearing for Appellee:          David Lawrence III, Assistant Solicitor General (Barbara D.
                                 Underwood, Solicitor General, and Steven C. Wu, Deputy Solicitor
1
    The Clerk of Court is directed to amend the official caption to conform with the caption above.
                              General, on the brief), for Eric T. Schneiderman, Attorney General
                              of the State of New York, New York, NY.

Appeal from the United States District Court for the Southern District of New York (Schofield,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Roland Richardson appeals from the August 12, 2014 judgment of the United States
District Court for the Southern District of New York (Schofield, J.), dismissing his complaint for
failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act of 1995
(PLRA), 42 U.S.C. §§ 1997e et seq. On appeal, Richardson argues that the district court erred in
granting summary judgment to Defendants because, according to Richardson, there are disputed
factual issues concerning whether Richardson’s failure to exhaust is excused under the three-part
inquiry articulated in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        “We review de novo a district court’s ruling on whether a plaintiff has exhausted
administrative remedies under the [PLRA].” Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009).
In reviewing the district court’s grant of summary judgment, we “constru[e] all evidence in the
light most favorable to the non-moving party, and affirm[] only where ‘there is no genuine issue
as to any material fact and the movant is entitled to judgment as a matter of law.’” Hubbs v.
Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (citation omitted) (quoting Fed. R.
Civ. P. 56(a)).

        The PLRA’s exhaustion provision provides that “[n]o 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. § 1997e(a). In Woodford v. Ngo, 548 U.S. 81 (2006), the
Supreme Court interpreted this provision to require “proper exhaustion.” Id. at 84. “[A]n
untimely or otherwise procedurally defective administrative grievance or appeal” will not
suffice. Id. at 83-84.

        Here, there is no serious dispute that Richardson failed to properly exhaust his
administrative remedies, as he failed to take an administrative appeal to the central office review
committee. Richardson argues, however, that his failure to exhaust should be excused under the
three-part inquiry articulated in Hemphill, 380 F.3d at 686. Under Hemphill, to determine
whether an inmate’s failure to exhaust should be excused, we ask, first, “whether administrative
remedies were in fact ‘available’ to the prisoner.” Id. Second, we “inquire as to whether the
defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or
preserve it, or whether the defendants’ own actions inhibiting the inmate’s exhaustion of
remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust
as a defense.” Id. (citations omitted). Third, if we “find[] that administrative remedies were
available to the plaintiff, and that the defendants are not estopped and have not forfeited their
non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies,

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[we] should consider whether ‘special circumstances’ have been plausibly alleged that justify
‘the prisoner’s failure to comply with administrative procedural requirements.’” Id. (quoting
Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004)). While we have questioned the “continued
viability” of these exceptions after Woodford, see Amador v. Andrews, 655 F.3d 89, 102 (2d Cir.
2011), there is no need to address that issue here because Richardson has not demonstrated that
his failure to exhaust is justified even under pre-Woodford caselaw.

         With respect to the first part of the Hemphill inquiry, Richardson’s failure to properly
exhaust is not excused because administrative remedies were in fact available to him. Although
Richardson claims that he never received the superintendent’s decision denying his grievance,
this fact is ultimately irrelevant because department of corrections regulations expressly provide
that “[i]f the superintendent fails to respond within the required 25 calendar day time limit[,] the
grievant may appeal his/her grievance to [the central office review committee].” N.Y. Comp.
Codes R. & Regs. tit. 7, 701.8(g). The fact that Richardson was transferred to a different facility
after he filed his grievance does not affect this analysis because Richardson retained the ability to
appeal his grievance to the central office review committee even after he was transferred. Nor
does the fact that Richardson may have believed an appeal to be futile excuse his failure to
exhaust. See Giano v. Goord, 250 F.3d 146, 150-51 (2d Cir. 2001) (“[T]he alleged
ineffectiveness of the administrative remedies that are available does not absolve a prisoner of
his obligation to exhaust such remedies when Congress has specifically mandated that he do
so.”).

       Second, Defendants are not estopped from raising Richardson’s failure to exhaust.
Richardson has never contended that he failed to appeal because of threats from prison officials,
and any such contention would be implausible given that Defendants’ conduct did not deter
Richardson from submitting a grievance to the grievance committee.

       Third, there are no “special circumstances” that justify Richardson’s failure to exhaust.
Richardson argues that special circumstances exist essentially for the same reasons that he argues
exhaustion is excused under the first two parts of the Hemphill inquiry. For the same reasons that
Richardson has not demonstrated that exhaustion is excused under the first two parts of the
Hemphill inquiry, he has not demonstrated that special circumstances justify his failure to
exhaust.

       We have considered the remainder of Richardson’s arguments and find them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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