    15-3396
    Medina v. Napoli


                                  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 28th day of February, two
    thousand eighteen.

    PRESENT:
                PIERRE N. LEVAL,
                PETER W. HALL,
                      Circuit Judges,
                COLLEEN MCMAHON,
                      District Judge.
    _____________________________________

    ANTHONY MEDINA,

                                                Plaintiff-Appellant,

    TROY BROOKS, CHARLES BROWN, MICHAEL DOXEN, JOHN DIGIACOMO, ANTHONY
    SIMMONS, WILLIAM BROOKS, KEVEN SHORTELL, THOMAS STEED, CARLOS SENQUIZ,
    GERALD PIERRE, AND ALL OTHERS SIMILARLY SITUATED,

                                                Plaintiffs,

                                 v.                                        No. 15-3396

    DAVID F. NAPOLI, SUPERINTENDENT, ANGELA A. BARTLETT, DEPUTY SUPERINTENDENT,
    MARILYN BRIDGE, DEPUTY SUPERINTENDENT, PAUL CHAPPIUS, JR., DEPUTY
                                                                
    
     Chief Judge Colleen McMahon, of the United States District Court for the Southern District of
    New York, sitting by designation.
                                                                       1
SUPERINTENDENT, DAVID AUGUSTINE, LIEUTENANT, RICHARD A. DONAHUE,
LIEUTENANT, MICHAEL SHEAHAN, CAPTAIN, DANIEL CHAPMAN, SERGEANT, THOMAS
HANNAH, SERGEANT, JODI A. LITWILER, SERGEANT, LEON D. MCGRAIN, SERGEANT,
MARK SHUMAKER, SERGEANT, NANCY SCHOONOVER, GRIEVANCE SUPERVISOR, SABRINA
VONHAGN, GRIEVANCE SUPERVISOR, CRAIG SKELLY, CORRECTION OFFICER, FRANKLIN
ZYWICKI, RICHARD CECCE, CORRECTION OFFICER, DANNY DAVIS, CORRECTION
OFFICER, SEAN DAVIS, CORRECTION OFFICER, PAUL JAYNE, CORRECTION OFFICER,
EDMUND DELANY, CORRECTION OFFICER, JAMES GILBERT, CORRECTION OFFICER,
LARRY GLEASON, CORRECTION OFFICER, THOMAS EAGEN, GRIEVANCE DIRECTOR, AND
OTHER UNKNOWN CORRECTION OFFICERS, INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITIES, OFFICER D. DIEHR,

                    Defendants-Appellees.


For Plaintiff-Appellant:     KEVIN KING, Mark W. Mosier, Covington & Burling LLP,
                             Washington, D.C.

For Defendants-Appellees:    FREDERICK A. BRODIE, Assistant Solicitor General,
                             Barbara D. Underwood, Solicitor General, Andrea Oser,
                             Deputy Solicitor General for Eric T. Schneiderman,
                             Attorney General for the State of New York, Albany,
                             N.Y.


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

District of New York (Curtin, J.).

      UPON      DUE        CONSIDERATION,       IT   IS    HEREBY       ORDERED,

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

AFFIRMED IN PART, VACATED IN PART, and the case is REMANDED for

further proceedings consistent with this opinion.

      Plaintiff-Appellant Anthony Medina appeals the district court’s order granting

summary judgment in favor of defendants based on a determination that Medina had

failed to exhaust his administrative inmate grievance procedures prior to bringing an

action in federal court, as required under the Prison Litigation Reform Act (PLRA).
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We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

              In 2016 the Supreme Court decided Ross v. Blake, 136 S. Ct. 1850 (2016), a

case that addressed when prison officials effectively render certain otherwise

available administrative remedies “unavailable” such that an inmate is thus

incapable of exhausting them. Shortly thereafter, and while Medina’s appeal was

pending, a panel of this Court adopted the Ross “availability” analysis in Williams v.

Priatno, 829 F.3d 118 (2d Cir. 2016), to determine whether an inmate exhausted the

administrative remedies required under the PLRA. On the facts of that case, we

determined that the administrative remedies Williams had failed to pursue were

“unavailable” within the meaning of the Ross test, and therefore found that his suit

was not barred. Id. at 126.

              In deciding defendants’ summary judgment motion, the guidance provided by

Ross and Williams was not available to the district court. The court, therefore, did

not undertake the newly articulated availability analysis.1 The alleged actions of the

defendants in handling Medina’s grievances with regard to the June incident bear a

                                                            
1 Itis important to note that prior to the Supreme Court’s decision in Ross, our Circuit had held that
there were “special exceptions” to the requirement that prisoners must exhaust their administrative
remedies. See, e.g., Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), and Hemphill v. New York, 380 F.3d
680 (2d Cir. 2004). In Ross, the Supreme Court expressly overruled the “special circumstances”
exception to the exhaustion doctrine as applied by the Fourth Circuit in the case below, see Ross, 136
S. Ct. at 1858, and reaffirmed the mandatory nature of the exhaustion of administrative remedies
doctrine. The Court then went on, however, to identify certain instances when those administrative
remedies might be functionally “unavailable” to a prisoner. See id. (“An inmate, that is, must
exhaust available remedies, but need not exhaust unavailable ones. And that limitation on an
inmate’s duty to exhaust—although significantly different from the ‘special circumstances’ test or the
old CRIPA standard—has real content.”). The Supreme Court thus clarified the standard in 2016,
overruling our previous special circumstances exception in Giano, while adopting a new framework
that is remarkably similar. Our Circuit in Williams, 829 F.3d at 123, of course, adopted the Ross
standard.
                                                               3
strong similarity to those of the defendants in Williams. Medina, like Williams, was

an inmate in a special housing unit who was required to rely on correction officers to

file his grievances, and both Medina and Williams alleged that those officers

intentionally discarded the grievances or prevented them from being filed. 829 F.3d

at 124. The Williams decision makes clear that the prison grievance regulations

“plainly do not describe a mechanism for appealing a grievance that was never filed”

by reason of inaction or obstruction by prison officials, resulting in a situation where

“the process to appeal an unfiled and unanswered grievance is prohibitively opaque,

such that no inmate could actually make use of it.” Id. at 126. That Williams was

decided on a motion to dismiss and not on a summary judgment motion does not

change the analysis. The record establishes that Medina’s allegations, supported by

witness testimony, about defendants’ actions to prevent the filing of Medina’s

grievances concerning the June 2007 incident are sufficient, when viewed in the light

most favorable to Medina, to raise a genuine issue of material fact as to whether the

grievance process was “available” to Medina under the Ross and Williams exhaustion

analysis. Ross, 136 S. Ct. at 1862; Williams, 829 F.3d at 124. Because we now have

the newly articulated framework by which to determine whether the administrative

remedies applicable to the June 2007 incident were available to Medina and could be

exhausted, we vacate that portion of the summary judgment and remand to the

district court for further proceedings.

      In contrast to the June incident, much about what occurred with respect to the

December 2007 food deprivation incident (which is alleged to have occurred in


                                           4
retaliation for the filing of the grievance over the June incident) is undisputed. It is

uncontested that a grievance was timely filed protesting this incident; and in contrast

to June, Medina does not assert that he was prevented from following the proper

procedures to file that grievance. There is also no dispute that the December

grievance was not considered and denied on the merits but was instead dismissed

because Medina had not taken the matter up with his block sergeant before filing a

formal complaint. We note that such consultation is “encouraged” but not actually

“required” by the Department of Corrections and Community Supervision (DOCCS)

grievance protocol.2

              In the present case, where the dismissal of Medina’s grievance was upheld by

the IGP supervisor, DOCCS regulations provide that Medina “may” file a second,

“separate” grievance, challenging as improper the dismissal of that first grievance.

See NYCRR § 701.5(b)(4)(iii). The record does not conclusively show whether Medina

ever filed such a collateral grievance or, if he did, whether he took the necessary

appeals therefrom. Without that information, we cannot determine either whether

Medina took all the steps that were purportedly “available to him” in the Inmate

Grievance Program to appeal the dismissal of his grievance, see 42 U.S.C. § 1997e(a);

Woodford v. Ngo, 548 U.S. 81, 90 (2006), or whether the permissive collateral

grievance was “functionally unavailable” as discussed in Williams, 829 F.3d at 125

n.4. The district court is far better situated than this Court to make these



                                                            
2The relevant regulation states that, “[a]n inmate is encouraged to resolve his/her complaints
through the guidance and counseling unit, the program area directly affected, or other existing
channels (informal or formal) prior to submitting a grievance.” NYCRR § 701.3(a) (emphasis added).
                                                               5
determinations in the first instance on a full record.

      Accordingly, we remand to the district court to consider, in light of the new

framework articulated in Ross and adopted by this Court in Williams, whether

Medina exhausted his administrative remedies as to each of his June and December

2007 food deprivation claims.  

      Finally, we note that Medina has conceded that summary judgment was

properly granted in its entirety in favor of seven of the named defendants: Danny

Davis, Edmund Delany, D. Diehr, Richard A. Donahue, Paul Jayne, Thomas Eagen,

and Sabrina von Hagn. The judgment as to those specific defendants is thus affirmed.

       The judgment of the district court is AFFIRMED IN PART, VACATED IN

PART, and the case is REMANDED for further proceedings consistent with this

opinion.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk




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