18‐340‐pr
Osborn v. Williams, et al.

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                        AMENDED 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 11th day of December, two thousand nineteen.

PRESENT:            JOHN M. WALKER, Jr.,
                    DENNY CHIN,
                    RICHARD J. SULLIVAN,
                               Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
EARL OSBORN,
                                        Plaintiff‐Appellant,

                                        v.                                         18‐340‐pr

Lieutenant CHRISTOPHER WILLIAMS, Correctional
Officer LYNDON STANDARD, Lieutenant RUBEN
BURGOS, Clinical Social Worker JAMES CASTRO,
Lieutenant JASON BEEBE, In their Individual
Capacities,
                                        Defendants‐Appellees.1
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x


1         The Clerk of Court is respectfully directed to amend the official caption as set forth
above.
FOR PLAINTIFF‐APPELLANT:                 CHARLES D. COLE, Jr., Newman Myers
                                         Kreines Gross Harris, P.C., New York, New
                                         York.

FOR DEFENDANTS‐APPELLEES:                MATTHEW B. BEIZER, Assistant Attorney
                                         General, for William Tong, Attorney General,
                                         Hartford, Connecticut.

FOR AMICI CURIAE:                        Jennifer Wedekind, ACLU National Prison
                                         Project, Washington, D.C.; David M. Shapiro,
                                         Roderick & Solange MacArthur Justice Center,
                                         Chicago, Illinois; Robert Quackenbush and
                                         Mary Lynne Werlwas, The Legal Aid Society,
                                         Prisonersʹ Rights Project, New York, New
                                         York; and Dan Barrett, ACLU Foundation of
                                         Connecticut, Hartford, Connecticut.



              Appeal from the United States District Court for the District of

Connecticut (Bolden, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant Earl Osborn appeals a judgment entered December 29,

2017 dismissing his claims against defendants‐appellees Lieutenant Christopher

Williams, corrections officer Lyndon Standard, Lieutenant Ruben Burgos, clinical social

worker James Castro, and Lieutenant Jason Beebe (ʺdefendantsʺ) under 42 U.S.C. § 1983

for violations of the Eighth and Fourteenth Amendments. The district court granted

summary judgment in favor of defendants on December 29, 2017, dismissing Osbornʹs


                                             2
claims on the ground that he failed to exhaust his administrative remedies as required

under the Prison Litigation Reform Act (the ʺPLRAʺ). 42 U.S.C. § 1997e. We assume the

partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.

              We review de novo a district courtʹs grant of summary judgment. See

Hancock v. County of Rensselaer, 882 F.3d 58, 64 (2d Cir. 2018). ʺ[S]ummary judgment

may be granted only if there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. In determining whether there is a

genuine dispute as to a material fact, we must resolve all ambiguities and draw all

inferences against the moving party.ʺ Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135

(2d Cir. 2013) (internal quotation marks and citations omitted).

              Osborn alleged that he was attacked and injured by his cellmate at

MacDougall‐Walker Correctional Institution, and that prison officials failed to protect

him by not moving him from his cell prior to the attack, even though he had alerted

several prison officials that his cellmate had threatened to kill him. The alleged attack

occurred on October 13, 2013, but Osborn did not initiate the first of several grievances

about the incident until February 17, 2014. Inmates in Connecticut seeking to lodge a

complaint relating to an aspect of their confinement under the purview of the

Commissioner of the Department of Corrections (the ʺDOCʺ) must first seek informal

resolution and then, if that fails, file a grievance within thirty days of the cause of the

grievance. Osborn, who suffers from schizophrenia and experienced a decompensation


                                               3
at the time of the incident, contended that his mental illness rendered him incapable of

filing a timely grievance.2

               The PLRA provides that ʺ[n]o action shall be brought with respect to

prison conditions under section 1983 . . . until such administrative remedies as are

available are exhausted.ʺ 42 U.S.C. § 1997e(a). While the PLRAʹs exhaustion

requirement is ʺmandatory,ʺ inmates are exempt from the requirement when

administrative remedies are unavailable. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). An

administrative procedure is unavailable when (1) it ʺoperates as a simple dead endʺ; (2)

it is ʺso opaque that it becomes, practically speaking, incapable of useʺ; and (3) where

ʺprison administrators thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.ʺ Id. at 1859‐60. Questions of

fact with respect to whether an inmate has exhausted or is capable of exhausting

administrative remedies are to be decided by the court and not the jury. See Messa v.

Goord, 652 F.3d 305, 309 (2d Cir. 2011) (per curiam) (noting that ʺ[m]atters of judicial

administration often require district judges to decide factual disputes that are not

bound up with the merits of the underlying disputeʺ). The DOCʹs administrative




2       According to the deposition of Deborah Eddinger, a clinical social worker who worked
at MacDougall‐Walker Correctional Institution, ʺdecompensating means that [the patient is] not
able to make decisions on their own. They are actively hearing voices, theyʹre actively suicidal,
theyʹre actively ‐‐ their mental health diagnosis is not under control, and it needs to ‐‐ they need
to have either medication to get it back under control, or see a therapist to work with them to
try to get it back.ʺ Appʹx at 499.
                                                 4
directive governing the inmate grievance process provides that ʺ[s]pecial provisions

shall be made to ensure access for the impaired or disabled, illiterate, or those with

language barriers.ʺ Appʹx at 53 ¶ 5(B). Further, ʺ[a]ny inmate who needs assistance in

using the Inmate Administrative Remedies Process shall receive assistance upon

request.ʺ Appʹx at 53 ¶ 5(B)(1).

              Whether mental illness can render an administrative remedy unavailable

under Ross is an open question in this Circuit. Even assuming without deciding,

however, that an inmateʹs mental illness can obviate his obligation to exhaust

administrative remedies, we are not persuaded that administrative remedies were

unavailable to Osborn here. As a preliminary matter, Osborn does not allege that

DOCʹs administrative process operated as a ʺdead endʺ or was opaque, or that

administrators kept Osborn from engaging in the process. Indeed, Osborn had been

incarcerated within the DOC for over eighteen years by the time of the alleged attack

and had availed himself of the grievance process as recently as May 2013, five months

prior to the incident.

              Further, the record does not contain sufficient evidence to permit a court

to find that Osborn was incapable of filing a grievance during the relevant period,

which ran from the date of the incident through November 12, 2013. First, Osborn

observes that he was placed under the care of the prison psychiatrist starting on

November 8, 2013, but provides no evidence that he was unable to file a complaint


                                             5
during the period between the October 13, 2014 incident and November 8, 2013.

Second, Osborn provides no expert testimony to support his contention that his mental

illness prevented him from using the grievance process or, at a minimum, from asking

for assistance in filing a grievance. 3 Third, the medical records Osborn provided

described him as calm and alert. For example, on November 8, 2013, Osbornʹs medical

records indicate that he was ʺcalm, cooperative, oriented, euthymic with full range of

affect, denies hearing voices . . . [and] fair impulse control.ʺ Appʹx at 265. On

November 10, 2019, the records report that Obsorn said ʺIʹm good,ʺ and that he was

ʺalert, calm, exercising, ate, [n]o issues.ʺ Appʹx at 266. Again on November 13, 2019,

Osbornʹs records note that he was ʺ[a]lert, oriented, cooperative without acute

symptoms . . . not hallucinating . . . impulse control good.ʺ Appʹx at 267. On this

record, a court could not conclude that Osborn was incapable of filing a grievance

during the relevant thirty‐day period.

              As Osborn noted, the record does contain evidence that by December 3,

2013, his mental state had deteriorated, with his medical records noting that he reported

hearing voices. Osborn points to this as evidence that his mental condition was such

that an administrative remedy was effectively unavailable to him. Given that the

episode occurred well outside the relevant thirty‐day period, however, a reasonable



3      The district court concluded that any probative facts about Osbornʹs mental capacity
during the relevant thirty‐day period had to be provided through expert testimony. We do not
hold that expert testimony is always required, but simply note the absence of any here.
                                              6
jury could not conclude that it rendered Osborn unable to file a grievance prior to

November 8, 2013. Finally, Osborn, who was familiar with the grievance process and

had filed a grievance in May 2013, never asked for assistance in filing a grievance in

response to the October 13, 2013 attack. Had he done so, the Administrative Remedies

Process would have required prison officials to assist him in the inmate grievance

process. He did not, however, seek assistance.

                                        *   *    *

             We have considered all of Osbornʹs arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                         FOR THE COURT:
                                         Catherine OʹHagan Wolfe, Clerk




                                             7
