    19-115
    Stewart v. Suffolk County Sheriff’s Office


                            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 5th day of February, two thousand twenty.

    PRESENT:
                ROBERT A. KATZMANN,
                            Chief Judge,
                GERARD E. LYNCH,
                            Circuit Judge,
                LEWIS A. KAPLAN,*
                            District Judge.
    ____________________________________________

    Jesse L. Stewart, Jr.,

                                 Plaintiff-Appellant,
                       v.                                                 19-115

    Suffolk County Sheriff's Office, Sergeant Kevin
    Daly, Corrections Officer Andrew Leto, Corrections
    Officer Thomas Saladino, Corrections Officer
    Thomas Williams, The County of Suffolk,

                                 Defendants-Appellees,

    Mr. Vincent F. DeMarco, Lt. McCauley, (Ms-Call-
    ee), Jail Medical Department, c/o John Doe #1,

    *
     Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New
    York, sitting by designation.

                                                         1
John Doe #2,

                  Defendants.
____________________________________________

FOR PLAINTIFF-APPELLANT:                                             Jesse L. Stewart, Jr., pro se,
                                                                     Moravia, NY.

FOR DEFENDANTS-APPELLEES:                                            Brian C. Mitchell, Suffolk
                                                                     County Attorney’s Office,
                                                                     Hauppauge, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Azrack, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Jesse Stewart, Jr., pro se, sued Suffolk County, the Suffolk County Sheriff’s

Department, and four of its employees under 42 U.S.C. § 1983 for violations of his due process

and Eighth Amendment rights. The district court granted summary judgment to the defendants

on the grounds that Stewart failed to exhaust administrative remedies, as required by the Prison

Litigation Reform Act (“PLRA”), and Stewart appeals.1 We assume the parties’ familiarity with

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

       We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and

draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d

120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing

the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any


1
  In connection with his appeal, Stewart has moved for “reversal and remitture for evidentiary
hearing if needed based upon appeal grounds trial ordered in matter.” Stewart’s motion does not
appear to request any relief other than a favorable decision on the merits of his appeal.

                                                 2
material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff,

642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

       Under the PLRA, “[n]o action shall be brought with respect to prison conditions under

section 1983 . . . , or any other [f]ederal 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).    The PLRA requires “proper exhaustion” of administrative remedies, meaning

exhaustion in “compliance with an agency’s deadlines and other critical procedural rules.”

Woodford v. Ngo, 548 U.S. 81, 90 (2006); see also Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007)

(“Alerting the prison officials as to the nature of the wrong for which redress is sought does not

constitute ‘proper exhaustion’ under Woodford.” (internal alterations, quotation marks, and

citation omitted)).   However, prisoners are exempt from the exhaustion requirement when

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

administrative procedure may be unavailable when (1) “it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) it is “so

opaque that it becomes, practically speaking, incapable of use;” or (3) “when prison administrators

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

misrepresentation, or intimidation.” Williams v. Priatno, 829 F.3d 118, 123–24 (2d Cir. 2016)

(quoting Ross, 136 S. Ct. at 1859–60); see also id. at 123 n.2 (suggesting this list may not be

exhaustive).

       As a preliminary matter, Stewart argues that the defendants waived the defense that he

failed to exhaust administrative remedies by failing to assert it in their answer to his second

                                                 3
amended complaint. See Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) (holding that

failure to exhaust is an affirmative defense that can be waived if defendants fail to raise it). He is

incorrect: the defendants asserted as their twelfth affirmative defense that his claim was barred by

the PLRA.

       Stewart next argues that he exhausted administrative remedies by making an internal affairs

complaint, or that he was thwarted from taking advantage of the inmate grievance program by the

inmate handbook’s misrepresentation that an internal affairs complaint was equivalent to a

grievance. These arguments are unavailing. Proper exhaustion entails “using all steps that the

agency holds out.”     Woodford, 548 U.S. at 90 (emphasis added) (internal quotation marks

omitted). The inmate handbook provided that abuses could be reported to the internal affairs unit

“and/or” through the inmate grievance program, and it is uncontested that Stewart did not take any

of the steps to file a complaint through the inmate grievance program. Although either method of

reporting would trigger an investigation within the Sheriff’s Office, the handbook makes clear that

they are not equivalent: for instance, an inmate appears entitled to a ruling and an opportunity to

challenge investigators’ conclusions within the agency only for reports made through the inmate

grievance program. Accordingly, Stewart’s internal affairs report did not satisfy the PLRA’s

administrative exhaustion requirement, and no ambiguity or misstatement in the inmate handbook

rendered its administrative remedies unavailable to him.

       Stewart’s remaining arguments, which largely concern the availability of the inmate

grievance program or the validity of the PLRA, are either not properly before us because they are



                                                  4
raised for the first time on appeal, see Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir.

2008), or lack merit.

       Accordingly, we AFFIRM the judgment of the district court. Stewart’s motion for

reversal and remitter is DENIED as moot.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk of Court




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