     08-6048-pr
     Johnston v. Genesee County Sheriff Maha

                                           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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3   on the 2nd day of February, two thousand twelve.
 4
 5   PRESENT:
 6
 7             AMALYA L. KEARSE,
 8             JOSÉ A. CABRANES,
 9             CHESTER J. STRAUB,
10                                  Circuit Judges.
11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
12   DAVID JOHNSTON,
13
14                        Plaintiff-Appellant,
15
16                        -v.-                                                                  No. 08-6048-pr
17
18   GENESEE COUNTY SHERIFF MAHA, SUPERINTENDENT
19   RONALD GREER, SENIOR C.O. ZIPFEL, CORRECTION
20   OFFICER WOLFF, CORRECTION OFFICER KLOMETZ,
21   DEPUTY ZEHLER, SENIOR C.O. LUPLOW, SENIOR C.O.
22   CAWKINS, CORRECTION OFFICER LINDSAY, GENESEE
23   COUNTY, GENESEE COUNTY JAIL, CORRECTION
24   OFFICER CONWAY, CORRECTION OFFICER RIDDER,
25   CORRECTION OFFICER SMITH, NURSE TERESE BRYAN,
26   CORRECTION OFFICER HOY, TRANSPORTATION
27   OFFICER JOHN DOE, GENESEE COUNTY JAIL DOCTOR
28   JOHN DOE 2, UNITED MEMORIAL HOSPITAL DOCTOR
29   JANE DOE, UNITED MEMORIAL HOSPITAL NURSE
30   JANE DOE, JANE-JOHN DOE ONE-FIFTEEN, UNITED
31   MEMORIAL HOSPITAL,
32
33                        Defendants-Cross-Claimants-Cross-
34                        Defendants-Appellees.
35   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
                                                                           1
 1   FOR APPELLANT:                                                                      DAVID H. REICHENBERG
 2                                                                                       (Jonathan M. Jacobson, Daniel P.
 3                                                                                       Weick, on the brief), Wilson
 4                                                                                       Sonsini Goodrich & Rosati, New
 5                                                                                       York, NY.
 6
 7   FOR APPELLEE:                                                                       HARRY F. MOONEY, Hurwitz &
 8                                                                                       Fine, P.C., Buffalo, NY.
 9
10

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

12   York (David G. Larimer, Judge).

13

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

15   DECREED that the judgment of the District Court be AFFIRMED IN PART (as to Counts Four

16   through Seventeen of the Complaint), VACATED IN PART (as to Counts One, Two, and Three of

17   the Complaint), AND REMANDED TO THE DISTRICT COURT.

18           Plaintiff-appellant David Johnston appeals from a judgment of the District Court granting

19   summary judgment to defendants on all counts of a seventeen-count complaint (the “Complaint”). We

20   assume the parties’ familiarity with the underlying facts and the procedural history.

21           This appeal arises out of three incidents that allegedly occurred when plaintiff was being held at

22   the Genesee County Jail: his placement in isolation in February and March of 2005 while he was

23   awaiting trial on burglary charges (Counts One and Two, respectively), and an alleged attack on plaintiff
24   by a correctional officer in July 2005, shortly after his sentence was pronounced (Count Three).1
25   Plaintiff alleges in Counts One and Two that the stints in isolation, during which he was allegedly

26   neither informed of the reason for his placement in isolation nor given an opportunity to challenge that

               1
                   Plaintiff, who brought this appeal while proceeding pro se, initially raised other issues on appeal, including
      claims related to an allegedly unconstitutional denial of medical care. We appointed counsel on April 13, 2011, whom we
      instructed to brief “as many . . . nonfrivolous claims” as plaintiff desired to pursue on appeal. Counsel has briefed only
      the three claims arising out of the incidents described above: plaintiff’s two stints in isolation and the alleged attack by
      the jail officer. To the extent plaintiff may raise any objections to the District Court’s rulings that are not presented by
      his counsel, including the objections he initially raised on appeal, they are meritless and must be rejected. We therefore
      affirm the judgment of the District Court with regard to all but the three counts specifically discussed in this order.
      Accordingly, we do not discuss in this order the claims initially brought by plaintiff on appeal, except insofar as they
      overlap with the issues briefed by plaintiff in conjunction with appointed counsel.
                                                                   2
 1   placement, violated his right to due process of law. He also argues in Count Three that the alleged

 2   assault by the correctional officer, which occurred less than two days before plaintiff was to be

 3   transferred into State custody to begin serving his sentence, violated his Eighth Amendment right to be

 4   free from cruel and unusual punishment.

 5           The proceedings in the District Court began when the plaintiff filed, pro se, a seventeen-count

 6   complaint alleging the above and other violations of his rights. After a period of discovery, defendants

 7   moved for summary judgment, which was granted by the District Court. The District Court found that

 8   Sandin v. Conner, 515 U.S. 472 (1995), operated to bar plaintiff’s due process claim with regard to Count

 9   One, as “there [was] no indication that [the placement into isolation] amounted to an ‘atypical and

10   significant hardship’ compared to the burdens of ordinary jail or prison confinement.” Johnston v. Maha,

11   584 F. Supp. 2d 612, 615 (W.D.N.Y. 2008) (“Johnston I”) (order granting summary judgment to

12   defendants). The District Court further found that plaintiff had failed properly to exhaust the claims

13   asserted in Counts Two and Three as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.

14   § 1997e(a), but that even if he had properly exhausted those counts, they would fail on the merits.

15   Johnston I, 584 F. Supp. at 614, 617.

16           Plaintiff argues on appeal that (1) the District Court applied an incorrect standard of law when it

17   applied Sandin’s “atypical and significant hardship” test to Count One and, in the alternative, Count

18   Two, rather than the due process standard that is applicable to pretrial detainees; and (2) the District

19   Court erred by finding that Counts Two and Three were unexhausted within the meaning of the PLRA.

20

21                                                  DISCUSSION

22   A.      Counts One and Two: The Due Process Standard

23           The District Court erred in applying Sandin v. Conner, a case applying the Eighth Amendment to

24   claims brought by convicted prisoners, to Johnston, who in February and March 2005 was a pretrial

25   detainee. See Benjamin v. Fraser, 264 F.3d 175, 188–89 (2d Cir. 2001) (holding that Sandin v. Conner does

26   not apply to pretrial detainees); see also Sandin, 515 U.S. at 484–85 (distinguishing the due process rights

                                                            3
 1   of pretrial detainees from those of convicted prisoners). The court should instead have evaluated Count

 2   One (and, putting aside the exhaustion issue for the moment, Count Two2) under the Fourteenth

 3   Amendment, which governs the due process rights of pretrial detainees. See Benjamin, 264 F.3d at 190

 4   (“A detainee’s interest in freedom from unjustified infliction of pain and injury is . . . substantial.”).

5            We decline to resolve the Fourteenth Amendment issue in the first instance. See United States v.

6    Brennan, 650 F.3d 65, 125 (2d Cir. 2011); Cerrone v. Brown, 246 F.3d 194, 203 (2d Cir. 2001). Although it

7    seems not implausible to us that these claims will survive summary judgment, the question presented

8    here—whether defendants are entitled to summary judgment on plaintiff’s argument that he was twice

 9   placed in isolation as a form of punishment and was each time denied the opportunity to challenge his

10   placement—must first be answered by the District Court. We vacate the District Court’s ruling as to

11   Count One and its alternative merits evaluation of Count Two and remand for the application of the

12   correct legal standard to both counts.

13   B.      Count Two: Exhaustion

14           The District Court erred when it determined that Count Two had not been properly exhausted.

15   The plaintiff submitted a “Grievance Tracking Form”—which he received from the Genesee County

16   Jail through the discovery process—purporting to demonstrate that he had properly exhausted his

17   administrative remedies as to certain claims. Without explanation, the District Court found that plaintiff

18   had not demonstrated proper exhaustion of Count Two. Defendants on appeal defend the District

19   Court’s decision, but do not specify any steps of the grievance process that were not properly followed

20   by the plaintiff. Instead, they simply claim that plaintiff failed to provide copies of any follow-up to the

21   initial rejection of his grievance.

22           The District Court’s finding on summary judgment that the plaintiff had not exhausted Count

23   Two was erroneous. To the contrary, the form submitted by the plaintiff, which showed the dates on

24   which the plaintiff carried out each stage of the grievance process, was sufficient to raise an issue of


               2
                Although the court did not specify that it would decide Count Two under Sandin, given the court’s brief
      treatment of the merits of the “unexhausted” claims we assume it used the same incorrect standard for Count Two as it
      did for Count One.
                                                                4
 1   material fact as to whether he had exhausted his remedies.3 The defendants appear not to have called

 2   into question the credibility of the document they themselves provided, nor do they give any explanation

 3   for their contention that the document does not show proper exhaustion. The defendants have the

 4   burden of showing that there is no genuine issue of material fact as to exhaustion that would preclude

 5   summary judgment. The court’s conclusion that the document does not show proper exhaustion fails to

 6   properly allocate the burden of proof and must be reversed.4

 7   C.      Count Three: Exhaustion and Merits

 8           The District Court erred when it found that the PLRA barred the plaintiff from pursuing Count

 9   Three. To the contrary, the plaintiff was excused from the requirement of PLRA exhaustion as to

10   Count Three, because the grievance process became unavailable to him when he was moved to a prison

11   facility in a different jurisdiction less than two days after the alleged assault.5 See Rodriguez v. Westchester

12   Cnty. Jail Corr. Dep’t, 372 F.3d 485, 488 (2d Cir. 2004); see generally Hemphill v. New York, 380 F.3d 680, 686

13   (2d Cir. 2004).6 The PLRA does not require prisoners to reach across jurisdictional lines to take

14   advantage of grievance systems that are no longer available to them. See Rodriguez, 372 F.3d at 488.

15   Therefore, in such situations, courts are entitled to excuse the exhaustion requirement. We do so here.


               3
                   The document is unclear as to which counts in the complaint, if any, the various exhausted claims listed on
      the sheet may support. Unless the parties can reach agreement on this issue, it is a material issue of fact to be resolved at
      trial if and when the defendants raise their affirmative defense of nonexhaustion. See Jones v. Bock, 549 U.S. 199, 211–212
      (2007) (holding that lack of PLRA exhaustion is an affirmative defense).
               4
                 Of course, as noted above, should defendants wish to raise the affirmative defense of lack of exhaustion
      under the PLRA at trial and therefore contest the genuineness or admissibility of the document at that time, they must be
      permitted to do so.
               5
                  Defendants claim that this argument is not properly before us because the plaintiff did not raise it in the
      District Court. Indeed, plaintiff, who was at the time proceeding pro se, did not specifically argue that his transfer
      exempted him from the requirements of the PLRA. Instead, he argued to the court that his transfer to from County to
      State custody took place less than two days after the alleged assault and that he could not complete the jail’s grievance
      process in such a short period of time. Given our obligation, and the obligation of the District Court, to “construe . . .
      liberally” the submissions of a pro se litigant and to “‘interpret them to raise the strongest arguments that they suggest,’”
      Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), we conclude
      that plaintiff’s unavailability argument is properly before us.
               6
                  Defendants argue that Woodford v. Ngo, 548 U.S. 81 (2006), abrogated the rule we set forth in Hemphill, which
      provides for an exemption to the PLRA for inmates to whom the normal grievance system was unavailable. Their
      argument is meritless: Although Ngo requires that prisoners “properly” exhaust the available remedies under the PLRA, it
      certainly does not abrogate the unavailability defense to nonexhaustion. See Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007)
      (evaluating plaintiff’s unavailability defense under the Hemphill standard); see also Kaba v. Stepp, 458 F.3d 678, 684, 686 (7th
      Cir. 2006).
                                                                     5
 1           Because there are several clearly material issues of disputed fact regarding the events that gave

 2   rise to Count Three,7 we reverse the District Court’s grant of summary judgment on this count and

 3   remand for a trial on the merits.

 4                                                       CONCLUSION

5            We have considered plaintiff’s remaining arguments and find them to be meritless. Accordingly,

 6   we AFFIRM the November 7, 2008 judgment of the District Court as to Counts Four through

 7   Seventeen, VACATE the judgment with regard to Counts One, Two, and Three,

 8   and REMAND the cause for further pretrial and/or trial proceedings under the correct legal standard

 9   with respect to Counts One and Two, and for trial on Count Three.

10

11                                                          FOR THE COURT,
12                                                          Catherine O’Hagan Wolfe, Clerk of Court
13

14




               7
                Such issues include, but are not limited to, whether the corrections officer acted with malicious intent,
      whether his alleged use of force was excessive or improper, and the extent (if any) to which the other officers present
      were involved in the events that allegedly took place.
                                                                  6
