     09-0416-pr
     Benjamin v. Comm. of Corr. Dept.

 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 8   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 9   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
10   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
11   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
13   COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th
17   day of April, two thousand ten.
18
19   Present:
20              PIERRE N. LEVAL,
21              ROBERT A. KATZMANN,
22              BARRINGTON D. PARKER,
23                         Circuit Judges.
24
25   ________________________________________________
26
27   David Benjamin,
28
29              Plaintiff-Appellant,
30
31
32              v.                                                   09-0416-pr
33
34   Commissioner of Correctional Department
35   of State, Commissioner Goord, Correctional
36   Officer Charles O’Conner, DOCS of the
37   State of New York,
38
39              Defendants-Appellees.
40
41   ________________________________________________
 1   For Plaintiff-Appellant:          DAVID BENJAMIN , pro se, Stormville, NY.
 2
 3   For Appellee:              ANDREW M. CUOMO , Attorney General of the State of New
 4                              York; BARBARA D. UNDERWOOD , Solicitor General; MICHAEL
 5                              BELOHLAVEK, Senior Counsel; DAVID LAWRENCE III, Assistant
 6                              Solicitor General, New York, NY.
 7   ________________________________________________
 8
 9         Appeal from the United States District Court for the Southern District of New York
10   (Buchwald, J.).
11
12          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

13   DECREED that the matter is REMANDED to the district court for further proceedings

14   consistent with this order.

15          Appellant David Benjamin, a prisoner serving a New York State sentence, appeals the

16   December 29, 2008, order of the district court dismissing his claim of excessive force by

17   correctional officers by reason of his failure to exhaust available administrative remedies.

18   Benjamin principally contends that Officer O’Conner’s threat, “I will kill you if you complain

19   about me” (Benjamin Dep. 88), on the day of the alleged assault excuses his failure to file an

20   administrative grievance and estops O’Conner from raising the defense of failure to exhaust. See

21   Hemphill v. New York, 380 F.3d 680, 688-89 (2d Cir. 2004). We presume familiarity with the

22   facts and the record of prior proceedings.

23          In January 2005, we vacated the district court’s initial dismissal of Benjamin’s complaint

24   and remanded to the district court with instructions that it address the following questions:

25          [T]he district court must determine whether Appellant’s allegations against the
26          Appellees in his disciplinary proceedings sufficed to put the Appellees on notice
27          and provide them an opportunity to address the complaints internally, thereby
28          rendering his claims exhausted. See Johnson v. Testman, 380 F.3d 691 (2d Cir.
29          2004). If the court does not conclude that [A]ppellant’s claims were thereby

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 1          exhausted, the district court must also determine, in light of this Court’s decisions
 2          in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), and Giano v. Goord, 380
 3          F.3d 670 (2d Cir. 2004): (1) whether Appellant’s fear of retaliation based on his
 4          previous experience with pursuing an administrative grievance rendered the
 5          administrative procedures unavailable; (2) if the administrative procedures were
 6          available, whether the Appellees were estopped from asserting failure to exhaust
 7          as a defense; and (3) if administrative remedies were available and one or both of
 8          the Appellees were not estopped from asserting failure to exhaust as a defense,
 9          whether Appellant was justified in not pursuing a grievance in accordance with
10          the grievance procedures set forth by the New York State Department of
11          Correctional Services.

12   Benjamin v. Goord, No. 02-0211-pr (2d Cir. Jan. 20, 2005) (order) (Benjamin I).

13          In the order here appealed from, the district court correctly concluded that the first

14   question (whether Benjamin’s allegations in the disciplinary proceeding against him satisfied the

15   exhaustion requirement) is no longer pertinent by reason of the Supreme Court’s decision in

16   Woodford v. Ngo, 548 U.S. 81 (2006). The district court also gave conclusory, negative answers

17   to the remaining three questions, as to whether Benjamin’s previous experience of retaliation for

18   grievances rendered administrative procedures unavailable, whether Appellees were estopped

19   from asserting failure to exhaust as a defense, and whether Benjamin was justified in not filing an

20   administrative grievance. See Benjamin v. Comm’r of Corr. Dep’t of State of N.Y., No. 02 Civ.

21   1703(NRB), 2008 WL 5459863, at *1 (S.D.N.Y. Dec. 30, 2008) (Benjamin III).

22          So far as we can tell, however, in making these findings the district court did not address

23   Benjamin’s recent testimony alleging Officer O’Conner’s threat to kill him if he complained

24   about O’Conner. Thus, while the district court found, “based on the record, that plaintiff’s

25   failure to utilize the formal grievance procedure cannot be justified by his alleged fear of

26   retaliation based on previous experience,” id., this conclusion was based on Benjamin’s


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 1   “previous experience with pursuing an administrative grievance,” Benjamin v. Comm’r N.Y.

 2   State Dep’t of Corr. Servs., No. 02 Civ. 1703(NRB), 2006 WL 783380, at *1 n.5, *3 (S.D.N.Y.

 3   Mar. 28, 2006) (Benjamin II), and did not take account of O’Conner’s alleged threat. Also,

 4   while the district court found that “plaintiff has not established that defendants were estopped

 5   from asserting a failure to exhaust defense based on their actions,” Benjamin III, 2008 WL

 6   5459863, at *1, it did not address O’Conner’s alleged threat in reaching that conclusion.

 7   Assuming the district court considered and rejected Benjamin’s claim that O’Conner’s threat

 8   excuses his failure to file an administrative grievance and estops O’Conner from asserting a

 9   defense of failure to exhaust, it is not clear whether the court did so because it discredited

10   Benjamin’s claim that O’Conner threatened him (although it had held no evidentiary hearing), or

11   because, even accepting Benjamin’s allegation as true, the court found the threat legally

12   insufficient to excuse Benjamin’s failure to file an administrative grievance or to estop O’Conner

13   from raising a defense of failure to exhaust (in which case the court gave no explanation of its

14   reasons).

15          We remand pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19,

16   22 (2d Cir. 1994), for the district court to address two questions: whether O’Conner’s alleged

17   threat to kill Benjamin if he complained either (1) excuses Benjamin from the requirement of

18   exhausting available administrative remedies, or (2) estops O’Conner from raising a defense of

19   failure to exhaust administrative remedies. If the district court answers both questions in the

20   negative, it should explain whether its decision is based on discrediting Benjamin’s allegation, or

21   on the conclusion that, as a legal matter, such a threat neither excuses Benjamin’s failure to


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1    exhaust available administrative remedies nor estops O’Conner from raising a defense of failure

2    to exhaust. On remand, the court is free to hold an evidentiary hearing (which presumably may

3    be done by telephone connection to the prison), which it might find desirable if ruling on

4    credibility.

5             The matter is hereby REMANDED to the district court for further proceedings consistent

6    with this order. Within ten days of the district court’s filing of its response to this order, any

7    party to the proceedings may restore the case to this panel by giving notice to the Clerk of this

8    Court.

9

10                                                      FOR THE COURT:
11                                                      CATHERINE O’HAGAN WOLFE, CLERK
12
13




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