17-2884-pr
Romano v. Ulrich

                           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 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
29th day of July, two thousand nineteen.

Present:
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
            RICHARD J. SULLIVAN,
                  Circuit Judges.
_____________________________________

ANTHONY ROMANO,

                        Plaintiff-Appellant,

                   v.                                                17-2884-pr

KEVIN ULRICH, C.O., JOSEPH CIANCI, C.O., GARY
COVIELLO, C.O., DANIEL LEONARD, C.O., ROY
BELL, C.O., GREGORY CARNEY, C.O., JEFFREY
HAZARD, BRIAN FEENEY, JEFFREY LACAPRUCCIA,
JEFFREY MILLER, MARK CUNNINGHAM,

                  Defendants-Appellees.
_____________________________________

For Plaintiff-Appellant:                       JOHN W. CERRETA, (Alyssa A. Helal, on the brief),
                                               Day Pitney LLP, Hartfod, CT.

For Defendants-Appellees:                      JONATHAN D. HITSOUS, (Andrea Oser, on the brief),
                                               for Barbara D. Underwood, Attorney General for the
                                               State of New York, Albany, NY.

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

New York (Wolford, J.).

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

DECREED that the judgment of the district court is VACATED.                 We REMAND to the

district court for further proceedings consistent with this order.

       Plaintiff-Appellant Anthony Romano (“Romano”) appeals from a judgment of the United

States District Court for the Western District of New York, entered August 29, 2017, dismissing

his civil rights claims on summary judgment after determining that he did not exhaust his

administrative remedies as required under the Prison Litigation Reform Act (“PLRA”), see 42

U.S.C. § 1997e.    We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal, and recount them here only as necessary to explain

our decision.

                                          *       *       *

       Under the PLRA, an inmate may not bring a suit in federal court with respect to prison

conditions unless he has previously exhausted administrative remedies.      See id. § 1997e(a). In

Ross v. Blake, the Supreme Court abrogated this Court’s then-existing exception to the

requirement of exhaustion, i.e., that a plaintiff’s failure to exhaust could be excused under certain

“special circumstances,” after concluding that the PLRA establishes a “mandatory exhaustion

regime[].”   See 136 S. Ct. 1850, 1857, 1858 (2016).      Nevertheless, the Court observed that the

statute contains its own “textual exception,” in that it only requires an inmate to exhaust

“available” remedies. See id. at 1858.        According to Ross, an administrative remedy may be

deemed “unavailable” when (1) “it operates as a simple dead end”; (2) it is “so opaque that it

becomes, practically speaking, incapable of use”; and (3) “prison administrators thwart inmates


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from taking advantage of a grievance process through machination, misrepresentation, or

intimidation.” Id. at 1859-60.     We have suggested that “the three circumstances discussed in

Ross do not appear to be exhaustive.”      Williams v. Correction Officer Priatno, 829 F.3d 118,

123 n.2 (2d Cir. 2016).

       “We review a district court’s grant of summary judgment de novo . . . construing all

evidence in the light most favorable to the non-moving party,” which in this case is Romano.

Ruggiero v. County of Orange, 467 F.3d 170, 173 (2d Cir. 2006).         “Because failure to exhaust

is an affirmative defense, defendants bear the initial burden of establishing, by pointing to legally

sufficient sources such as statutes, regulations, or grievance procedures, that a grievance process

exists and applies to the underlying dispute.” Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d

54, 59 (2d Cir. 2015) (internal quotation marks, brackets, and citations omitted). However,

even if a defendant establishes the existence of an applicable procedure, “administrative

remedies may nonetheless be deemed unavailable if the plaintiff can demonstrate that other

factors—for example, threats from correction officers—rendered a nominally available

procedure unavailable as a matter of fact.” Id.

       A procedure for inmate grievances is laid out in New York’s Compilation of Codes,

Rules and Regulations (“NYCRR”). See NYCRR tit. 7, § 701.1 et seq. Broadly speaking, the

Inmate Grievance Program (“IGP”) lays out a three-level system of redress: (1) grievances are

sent to the inmate grievance resolution committee (“IGRC”); (2) on appeal, the inmate may take

his complaint to the facility superintendent; and (3) “if still not satisfied, an inmate may appeal to

a committee of central office staff acting on behalf of the commissioner.”        Id. § 701.1(c).    A

grievance must be submitted within twenty-one days of the complained-of event.                      Id.

§ 701.5(a)(1).   An inmate may request an exception to the time limit for filing a grievance, but


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such an exception may be made only for “mitigating circumstances,” and only if the request is

made within forty-five days of the alleged occurrence. Id. § 701.6(g). “The complaint may

only be filed at the facility where the inmate is housed even it pertains to another facility.” Id.

§ 701.5(a)(1).   And any appeal of a grievance must be filed at the facility where the original

grievance was filed, even if the inmate has been subsequently transferred. Id. § 701.6(h).

         Although the policy has since been changed, at the time Romano was transferred to the

custody of New York’s Office of Mental Health (“OMH”) it is undisputed he could not have

filed a grievance through the Department of Corrections and Community Supervision’s

(“DOCCS’s”) IGP.      See Def.-Apps.’ Brief at 7 n.2. The parties focus in their briefing to this

Court on whether or not DOCCS’s administrative procedures are “unavailable” whenever

DOCCS unilaterally and without notice transfers an inmate during a grieving period such that the

inmate is no longer able to file a grievance, regardless of DOCCS’s motivation.        We see no

reason to address this question on the present record.      On the particular facts of this case,

Romano’s transfer may have been neither unilateral nor lacking notice.

         When an inmate is transferred from DOCCS custody and into the custody of OMH,

another process comes into play.         According to New York Correction Law § 402, a

superintendent cannot transfer an inmate out of DOCCS custody for mental health reasons

without first receiving a certificate from an examining physician, which will then be given to a

judge.    See N.Y. Corr. § 402(1), (3). “Upon every such application for such an order of

commitment, notice thereof in writing, of at least five days, together with a copy of the petition,

shall be served personally upon the alleged mentally ill person,” who is not only entitled to

request a hearing with judicial review, but is also required to be informed of his entitlement to

make such a request. Id. § 402(3).


                                                4
        Under § 402, Romano should have received at least five days’ notice of his transfer, as

well as the ability to contest it.   Provided the required notice was given and Romano had access

to information that made clear that he would be unable to file a grievance upon his transfer

outside of DOCCS, see Woodford v. Ngo, 548 U.S. 81, 90 (2006) (determining that exhaustion

“means using all steps that the agency holds out, and doing so properly” (internal quotation

marks omitted)), we cannot see how Romano could show that DOCCS’s procedure was

unavailable to him on the facts of his case. Cf. Hill v. Curcione, 657 F.3d 116, 124-25 (2d Cir.

2011) (taking no issue with inmate grievance procedures that established a five-day period to file

a grievance).

        Unfortunately, given Romano’s pro se status for much of the district court proceedings as

well as the dearth of discovery conducted, the record on whether and how § 402 was

implemented in Romano’s case is nonexistent.          As a result, we are unable to decide whether

Romano’s unavailability claim—which would excuse him from the PLRA’s exhaustion

requirement—has merit.       We conclude a remand to the district court is necessary, so that the

facts surrounding Romano’s transfer, and the notice he was given, can be further developed.1

Once the facts are established, the district court should reconsider whether grievance procedures

were available to Romano, and either adhere to its original decision or allow his claim to go

forward.



1
  On remand, we see no reason for the district court to inquire further into the facts supporting
Romano’s other argument for unavailability—that while he was still in DOCCS custody “his
severe physical injuries, plus his severe mental illness” themselves rendered the grievance
procedure unavailable to him. Pl.-App. Br. at 25-26 (emphasis in original). Nothing in
Romano’s submission to the district court is sufficient to create an issue of material fact as to
whether he was physically or mentally incapable of filing a grievance during the five days he
was in the Attica infirmary, or the eight days he was in an observation cell.


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       Accordingly, we VACATE the judgment of the district court.        We REMAND this case

to the district court for proceedings consistent with this order.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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