    16-3170
    LionKingzulu v. Jayne
                            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 13th day of March, two thousand eighteen.

    PRESENT:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _________________________________________

    Arkil LionKingzulu, AKA Arkil Johnson,

                            Plaintiff-Appellant,

                      v.                                                        No. 16-3170

    Paul Jayne, Corrections Officer, Jacob V. Miller,
    Jr., Corrections Officer, Bruce L. Herrick,
    Corrections Officer, John S. Marshall,
    Corrections Officer, in their individual and
    official capacities while in the employ of the New
    York State Department of Corrections and
    Community Supervision,

                      Defendants-Appellees.
    _________________________________________

    FOR PLAINTIFF-APPELLANT:                       Arkil LionKingzulu, pro se, Dannemora, N.Y.

    FOR DEFENDANTS-APPELLEES:                      Barbara D. Underwood, Solicitor General, Andrea
                                                   Oser, Deputy Solicitor General, Jonathan D.
                                                   Hitsous, Assistant Solicitor General, for Eric T.
                                                   Schneiderman, Attorney General of the State of
                                                   New York, Albany, N.Y.
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       Appeal from a judgment of the United States District Court for the Western District of

New York (Arcara, J.; McCarthy, M.J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Arkil LionKingzulu, proceeding pro se, appeals from a judgment in favor of

prison officials in his 42 U.S.C. § 1983 suit claiming excessive use of force. LionKingzulu

alleged that prison officials beat him while he was awaiting transport from Southport Correctional

Facility (“Southport”) to Wende Correctional Facility (“Wende”) for a civil trial. The incident

allegedly occurred on November 26, 2010. On January 3, 2011, LionKingzulu, who was then

housed at Upstate Correctional Facility (“Upstate”), mailed a grievance concerning the incident to

Southport. It was returned because grievances must be filed at the facility where an inmate is

housed. On January 18, 2011, he filed a grievance at Upstate, which was returned as untimely.

Appellees moved for summary judgment, arguing that LionKingzulu had failed to exhaust his

administrative remedies. He responded by submitting an unsworn affidavit alleging that he had

filed a timely grievance while at Wende, but received no response. The district court granted

summary judgment in favor of Appellees, ruling that LionKingzulu had failed to exhaust. This

appeal follows. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       We review de novo a district court’s grant of summary judgment. Garcia v. Hartford

Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted

if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).



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       Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought

with respect to prison conditions under [§] 1983 . . . 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,” meaning exhaustion in “compliance

with an agency’s deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81,

90 (2006). However, the administrative remedies must be “available.” Ross v. Blake, 136 S. Ct.

1850, 1858 (2016). An administrative remedy is 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) “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).

       New York’s Department of Corrections and Community Supervision (DOCCS)

administrative scheme unambiguously requires that an inmate file his grievance “within 21

calendar days of an alleged occurrence” and that the grievance “may only be filed at the facility

where the inmate is housed even if it pertains to another facility.” N.Y. Comp. Codes R. & Regs.

(NYCRR) tit. 7, § 701.5(a).       The scheme further provides for a mitigating-circumstances

exception to the time limit, but notes that “[a]n exception to the time limit may not be granted if

the request was made more than 45 days after an alleged occurrence.” Id. § 701.6(g)(1)(i)(a).

       The incident in question here occurred on November 26, 2010 at the Southport facility.

LionKingzulu thus had until December 17, 2010, to file his grievance or until January 10, 2011,

to request a mitigating-circumstances exception. His first grievance was mailed to Southport on

January 3, 2011, and was thus within the mitigating-circumstances deadline, but was filed at the

                                                 3
wrong facility because he was housed at Upstate at the time and was required to file the grievance

there. See id. § 701.5(a). His subsequent January 18, 2011 grievance was filed at the correct

facility, Upstate, but was outside the time period in which to seek an extension.            See id.

§ 701.6(g)(1)(i)(a). Consequently, LionKingzulu failed to “properly” exhaust his claim. See

Woodford, 548 U.S. at 90.

       A review of the record does not disclose that these remedies were functionally

“unavailable” under the Williams availability analysis. 829 F.3d at 123–24. The provisions to

timely file a grievance at the facility in which a prisoner is currently housed are far from opaque,

and although LionKingzulu asserted that Southport officials conspired to prevent him access to his

legal materials, that deprivation lasted only five days. He did file a grievance (albeit at the wrong

facility) within the time to seek an extension, and therefore, he cannot show that New York’s

administrative scheme results in a “dead end” or “endless loop” under the Williams analysis. See

id.

       LionKingzulu’s allegation that he filed a timely grievance while at Wende but the

grievance was not processed or accepted, on the other hand, presents a stronger argument that

remedies were unavailable. See id. However, we conclude that this belated allegation was

insufficient to defeat summary judgment. “[F]actual allegations that might otherwise defeat a

motion for summary judgment will not be permitted to do so when they are made for the first time

in the plaintiff’s affidavit opposing summary judgment and that affidavit contradicts [his] own

prior deposition testimony.”      Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).

LionKingzulu testified that he mailed his “original grievance” to Southport on January 3, 2011.

Nowhere in the record, prior to his affidavit in opposition to summary judgment, is there any

reference to his having timely filed a grievance at Wende. Further, the very grievance he

                                                 4
references was addressed to Southport, not Wende. Accordingly, “no reasonable juror would

undertake the suspension of disbelief necessary to credit” his belated, self-serving allegation and

the district court thus properly granted Appellees summary judgment. See Jeffreys v. City of New

York, 426 F.3d 549, 555 (2d Cir. 2005) (internal quotation marks and alteration omitted).

       We have considered LionKingzulu’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the district court’s judgment.

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




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