     11-1452
     Dennis v. Hopkins


                          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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1             At a stated term of the United States Court of Appeals
2        for the Second Circuit, held at the Daniel Patrick Moynihan
3        United States Courthouse, 500 Pearl Street, in the City of
4        New York, on the 13th day of June, two thousand twelve.

 5       PRESENT: DENNIS JACOBS,
 6                              Chief Judge,
 7                DENNY CHIN,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10       - - - - - - - - - - - - - - - - - - - -X
11       KYLE DENNIS,
12                Plaintiff-Appellant,

13                    -v.-                                               11-1452

14       WESTCHESTER COUNTY JAIL CORRECTIONAL
15       DEPARTMENT, EMSA CORRECTIONAL CARE,
16       JANE DOE, NURSE, individually and in
17       their official capacities,
18                Defendants-Cross Defendants,

19       C. HOPKINS, CORRECTIONAL OFFICER,
20       individually and in their official
21       capacities, JOHN DOE, OFFICER,
22       individually and in their official
23       capacities,
24                Defendants-Cross Defendants-
25                Appellees,

                                                  1
1    STUKES, OFFICER, individually and in
2    their official capacities, JENKINS,
3    CORRECTION OFFICER, individually and
4    in their official capacities,
5             Defendants-Cross Defendants-
6             Cross Claimants-Appellees.
7    - - - - - - - - - - - - - - - - - - - -X

8    FOR APPELLANT:             Andrew Frederick Plasse, Andrew
9                               F. Plasse, P.C., New York, N.Y.

10   FOR APPELLEES:             Justin R. Adin, Assistant County
11                              Attorney, Of Counsel (Robert F.
12                              Meehan, Westchester County
13                              Attorney, on the brief), White
14                              Plains, N.Y.

15        Appeal from a judgment of the United States District
16   Court for the Southern District of New York (Stamp, J.,
17   sitting by designation).

18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the judgment of the district court be
20   AFFIRMED IN PART and VACATED AND REMANDED IN PART.


21        Kyle Dennis appeals from a judgment granting summary
22   judgment in favor of defendants Christopher Hopkins, Risha
23   Stukes, and Taimeka Jenkins on Dennis’s 42 U.S.C. § 1983
24   action. The complaint alleges that the defendants failed to
25   protect Dennis from serious harm in violation of the Eighth
26   Amendment. We assume the parties’ familiarity with the
27   underlying facts, the procedural history, and the issues
28   presented for review.

29        “We review de novo a district court’s grant of summary
30   judgment, drawing all factual inferences in favor of the
31   non-moving party.” Collazo v. Pagano, 656 F.3d 131, 134 (2d
32   Cir. 2011) (per curiam). “Summary judgment is proper only
33   when, construing the evidence in the light most favorable to
34   the non-movant, ‘there is no genuine dispute as to any
35   material fact and the movant is entitled to judgment as a
36   matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d
37   Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).



                                  2
 1        Under the Prison Litigation Reform Act (“PLRA”), “‘[n]o
 2   action shall be brought with respect to prison conditions
 3   under section 1983 . . . by a prisoner confined in any jail,
 4   prison, or other correctional facility until such
 5   administrative remedies as are available are exhausted.’”
 6   Porter v. Nussle, 534 U.S. 516, 524 (2002) (quoting 42
 7   U.S.C. § 1997e(a)). Exhaustion is not required: “when (1)
 8   administrative remedies are not available to the prisoner;
 9   (2) defendants have either waived the defense of failure to
10   exhaust or acted in such [a] way as to estop them from
11   raising the defense; or (3) special circumstances, such as a
12   reasonable misunderstanding of the grievance procedures,
13   justify the prisoner’s failure to comply with the exhaustion
14   requirement.” Ruggiero v. County of Orange, 467 F.3d 170,
15   175 (2d Cir. 2006); see also Macias v. Zenk, 495 F.3d 37, 43
16   n.1 (2d Cir. 2007) (leaving open the question of whether
17   Woodford v. Ngo, 548 U.S. 81 (2006), affects the special
18   circumstances exception).

19        Dennis alleges that he attempted to file a grievance
20   with Officer Stukes and Sergeant Stallone but was advised
21   that the issue was non-grievable, and he was not given a
22   grievance form. The defendants contend that Dennis could
23   have obtained a grievance form from the law library.
24   However, the Westchester Department of Correction “Standard
25   Operating Procedure” and a United States Department of
26   Justice report suggest that, at the time of the events in
27   question, this was not the case. In concluding that Dennis
28   failed to exhaust his administrative remedies, the district
29   court made no finding as to whether Dennis attempted to file
30   a grievance, whether he was rebuffed, or whether the
31   Department of Correction afforded an alternative way to
32   file. We remand in part for the court to make any such
33   necessary findings to determine if the facts give rise to
34   special circumstances that may justify Dennis’s failure to
35   comply with the exhaustion requirement of the PLRA. See,
36   e.g., Brownell v. Krom, 446 F.3d 305, 312-13 (2d Cir. 2006).

37        The district court ruled in the alternative that the
38   defendants were entitled to summary judgment on the merits.
39   “For a claim . . . based on a failure to prevent harm, the
40   inmate must show that he [wa]s incarcerated under conditions
41   posing a substantial risk of serious harm,” and that the
42   prison official was deliberately indifferent. Farmer v.
43   Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference
44   exists when “the official knows of and disregards an
45   excessive risk to inmate health or safety; the official must

                                  3
1    both be aware of facts from which the inference could be
2    drawn that a substantial risk of serious harm exists, and he
3    must also draw the inference.” Id. at 837.

 4        As the district court correctly concluded, there is no
 5   genuine dispute of fact as to whether Officers Stukes and
 6   Jenkins were deliberately indifferent. Dennis testified
 7   that while Stukes and Jenkins were within hearing-distance,
 8   one of the soon-to-be assailants said to another (referring
 9   to Dennis), “there go that faggot right there. Open the
10   gate for that dude, open the gate for him.” This statement
11   was insufficient to put Stukes or Jenkins on notice of a
12   substantial risk of serious harm. See generally Hines v.
13   Lacy, 189 F.3d 460, No. 98-2961, 1999 WL 642915, at *3 (2d
14   Cir. Aug. 20, 1999) (summary order) (“[A] sketchy
15   description of a verbal confrontation[--assailant yelled and
16   swore at inmate--]does not sufficiently allege conditions
17   posing a substantial risk of serious harm.” (internal
18   quotation marks omitted)); Desulma v. City of N.Y., No. 98
19   Civ. 2078(RMB)(RLE), 2001 WL 798002, at *7 (S.D.N.Y. July 6,
20   2001) (“[T]he inmates told him he was ‘going to pay a price’
21   and told him to get away from them because ‘he smell[ed].’
22   These verbal statements alone do not indicate a substantial
23   threat of serious harm.” (second alteration in original)
24   (citation omitted)). Dennis testified that neither Jenkins
25   nor Stukes ordered the assailants to stop, but that
26   allegation is rendered immaterial by undisputed testimony.
27   Jenkins testified that by the time she became aware of the
28   assault, an alarm had been signaled, which indicated that
29   the Emergency Response Team (“ERT”) was on its way. She did
30   not recall if she gave a stop order, but noted her practice
31   of doing so. Stukes testified that she did not see the
32   incident until the ERT had terminated the assault.
33   Therefore, any failure by Jenkins or Stukes to give a stop
34   order does not indicate deliberate indifference to Dennis’s
35   safety. Dennis also testified that at some time after the
36   assault, Stukes taunted him. This too is insufficient to
37   create a material issue as to whether Stukes knew of a
38   substantial risk to Dennis prior to the assault.

39        The district court erred in granting summary judgment
40   in favor of Officer Hopkins. One of the assailants
41   testified that he informed Hopkins of the planned assault,
42   that Hopkins replied that “he wouldn’t mind, you know, do
43   what you got to do,” that Hopkins instructed another officer
44   to open a gate separating Dennis from the assailants, and
45   that, during the assault, Hopkins told the assailants: “you

                                  4
 1   all better hurry up and finish, because the [ERT] is
 2   coming.” This evidence is sufficient to create a genuine
 3   dispute of fact as to whether Hopkins was deliberately
 4   indifferent to a substantial risk of serious harm to Dennis.
 5   Hopkins is not entitled to qualified immunity: Correction
 6   officers have a clearly established “duty . . . to protect
 7   prisoners from violence at the hands of other prisoners,”
 8   Farmer, 511 U.S. at 833 (alteration in original) (internal
 9   quotation marks omitted), and we cannot conclude that it was
10   objectively reasonable for Hopkins to believe that his
11   actions (as they are alleged by Dennis) did not violate this
12   duty. See Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999)
13   (“Defendants are entitled to qualified immunity if (1) their
14   actions did not violate clearly established law, or (2) it
15   was objectively reasonable for them to believe that their
16   actions did not violate such law.”).


17        Having considered all of Dennis’s arguments, we hereby
18   AFFIRM the judgement as to Officers Stukes and Jenkins; we
19   VACATE the judgment as to Officer Hopkins; and we REMAND
20   this case for further proceedings consistent with this
21   order.


22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
24




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