    16-1183
    White v. Velie

                          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 15th day of September, two thousand seventeen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                ROBERT D. SACK,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    ____________________________________________

    John White, AKA John H. White,

                           Plaintiff-Appellant,
                     v.                                                      16-1183

    Eric P. Velie, RN Bruce, RN Atkinson, RN Wilson,
    RN Waterson, RN Lordi, RN Bergeron, RN Marlow,
    Michael Moore, Area Sergeant, Donald Uhler,
    Superindent, Donita E. McIntosh, Sandra Danforth,
    Earl Bell, Smith, Supervisor, Medical Personnel

                           Defendants-Appellees,

    Alvin Gravlin, Melissa Cook, Counselor, Don Hoag, F.S.M.,

                      Defendants.
    ____________________________________________

    FOR PLAINTIFF-APPELLANT:                       John H. White, pro se, Marcy, N.Y.
FOR DEFENDANTS-APPELLEES:                        Eric T. Schneiderman, Attorney General of the
                                                 State of New York, Barbara D. Underwood,
                                                 Solicitor General, Victor Paladino, Allyson B.
                                                 Levine, Assistant Solicitors General, Albany,
                                                 N. Y.


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

New York (McAvoy, J.; Baxter, M.J.).


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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant John H. White, proceeding pro se, appeals the district court’s judgment

dismissing some of his 42 U.S.C. § 1983 claims and granting summary judgment to the defendants

on his remaining claims because he had not exhausted his administrative remedies. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       We review orders granting summary judgment de novo, focusing on whether the district

court properly concluded that there was no genuine dispute as to any material fact and that 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). The district court ruled that White had not exhausted his claims

because, although he had asserted that he filed grievances and received no response, he was

required to properly appeal an unanswered grievance.

       Our exhaustion case law has changed since the district court’s decision. In Ross v. Blake,

136 S. Ct. 1850 (2016), the Supreme Court ruled that special circumstances could not excuse a

prisoner’s failure to exhaust, but an inmate need not exhaust his claims if administrative remedies

are not available. “Ross largely supplants our [special circumstances] inquiry by framing 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).

       White first argues that he did not need to exhaust the issues underlying his § 1983

complaint because he had previously filed grievances about similar incidents. This argument is

meritless. Although we have held that an earlier grievance may be “sufficient to exhaust [a

prisoner’s] administrative remedies with respect to the continuing” infringement of his rights, that

exception “is necessarily limited to cases in which a prior grievance identifies a specific and

continuing complaint that ultimately becomes the basis for a lawsuit.” Johnson v. Killian, 680

F.3d 234, 239 (2d Cir. 2012) (emphasis added). Here, however, White has not shown that he

previously exhausted a grievance about the “specific and continuing complaint that ultimately”

became the basis of this lawsuit. He has not identified any grievance that raised the same issues

underlying this action—a correctional officer’s alleged use of excessive force and the subsequent

denial of medical care, nor has he identified any grievance that exhausted claims of a pattern of

such conduct. White generally refers to the defendants’ summary judgment evidence, which

listed by title the grievances he has exhausted, but that does not demonstrate that he previously

grieved and exhausted the same events underlying this action. See Davis v. New York, 316 F.3d

93, 100 (2d Cir. 2002) (“[R]eliance upon conclusory statements . . . is not sufficient to defeat a

summary judgment motion.”).

       White also argues that the district court failed to consider a regulation addressing “like

grievances,” which are defined as “grievances emanating from a substantially similar

situation/issue or with a similar action requested, or complaints which could be resolved with the

same action.” 7 N.Y.C.R.R. § 701.2(d). But White’s reliance on 7 N.Y.C.R.R. § 701.5(a)(3)

does not assist him because it provides only that “like grievances” can be consolidated and


                                                 3
considered together when more than one inmate grieves the same issue, not when one inmate

repeatedly grieves the same issue. Nothing in the regulations supports White’s position that he

need not file a grievance to exhaust his claims in light of his prior grievances.

       Finally, White argues that the grievance process was unavailable to him for two reasons.

First, he argues the regulations do not address how to file a grievance when “a prisoner has

continually incurred consecutive harms of a[n] identical nature,” Appellant Br. at ¶ 19, suggesting

that the procedure was “so opaque that it [became], practically speaking, incapable of use.” Ross,

136 S. Ct. at 1859. White’s argument that he did not understand how to file a grievance regarding

a larger pattern of conduct is at odds with his assertion that he did file an unexhausted grievance

regarding the events in question that did not receive a response. In any event, 7 N.Y.C.R.R. § 701

plainly provides a mechanism for exhausting excessive force and denial of medical care claims.

See also, e.g., Williams, 829 F.3d at 119-20 (describing grievance procedure). It is not apparent

why the process for grieving repeated harms would be any more “opaque” than the process

through which White filed dozens of grievances such that “no ordinary prisoner can discern or

navigate” how to grieve a pattern of misconduct. Ross, 136 S. Ct. at 1859.

       Second, White argues that the grievance process was unavailable to him because it “could

provide no remedy & . . . no actual favorable outcome to” him. Appellant Br. at ¶ 19. We

construe White’s brief as arguing that the grievance process “operate[d] as a simple dead

end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates,”

because it never granted him relief. Ross, 136 S. Ct. at 1859. Once defendants have met their

initial burden of demonstrating that a grievance process exists, however, a plaintiff bears the

burden of “demonstrat[ing] that other factors . . . rendered a nominally available procedure


                                                  4
unavailable as a matter of fact.” Hubbs v. Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir.

2015); see also Ross, 136 S. Ct. at 1859 (“The modifier ‘available’ requires the possibility of some

relief. When the facts on the ground demonstrate that no such potential exists, the inmate has no

obligation to exhaust the remedy.” (internal quotation marks and citation omitted)). White has

not satisfied his burden of establishing that the grievance process was unavailable to him. Here,

the summary judgment evidence (provided by the defendants) lists only the titles of White’s

grievances and when they were filed, but it does not say whether White received a ruling in his

favor. Nor has White presented any evidence about the outcomes in the grievance system in

general. On this record, he has not shown that prison officials are consistently unwilling to grant

relief. Because White did not exhaust his administrative remedies, any error in the district court’s

dismissal of some of his claims was harmless.

       We have considered all of White’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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