     14-2446
     Harvey v. Correction Officers 1-6

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of May, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                PETER W. HALL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       GREGORY HARVEY,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-2446
16
17       CORRECTION OFFICERS 1 THROUGH 6, NEW
18       ADMISSIONS, CLINTON CORRECTIONAL
19       FACILITY, TWO CORRECTION SERGEANTS,
20       NEW ADMISSIONS, CLINTON CORRECTIONAL
21       FACILITY, MEDICAL PERSONNEL, MEDICAL
22       NURSE AND STAFF, CLINTON CORRECTIONAL
23       FACILITY, J. JABOUT, CORRECTIONS
24       OFFICER, K. REYELL, CORRECTIONS
25       OFFICER, SHERYL MILLER, NURSE, MARY
26       BETH GILLEN, REGISTERED NURSE, CHARLES
27       SIMPSON, REGISTERED NURSE,
28                Defendants-Appellees.
29       - - - - - - - - - - - - - - - - - - - -X
 1
 2   FOR APPELLANT:             Gregory Harvey, pro se, Marcy,
 3                              New York.
 4
 5   FOR APPELLEES:             Robert M. Goldfarb, Assistant
 6                              Solicitor General (with Barbara
 7                              D. Underwood, Solicitor General,
 8                              and Andrea Oser, Deputy
 9                              Solicitor General), for Eric T.
10                              Schneiderman, Attorney General
11                              of the State of New York,
12                              Albany, New York.
13
14        Appeal from a judgment of the United States District
15   Court for the Northern District of New York (Kahn, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18   AND DECREED that the judgment of the district court be
19   VACATED AND REMANDED.
20
21        Gregory Harvey, pro se, appeals from the judgment of
22   the United States District Court for the Northern District
23   of New York (Kahn, J.), dismissing his complaint alleging
24   that he was subjected to excessive force in violation of 42
25   U.S.C. § 1983 for failure to exhaust administrative remedies
26   as required by the Prison Litigation Reform Act, 42 U.S.C.
27   § 1997e(a) (“PLRA”). We assume the parties’ familiarity
28   with the underlying facts, the procedural history, and the
29   issues presented for review.
30
31        “A prisoner may invoke the doctrine of estoppel when
32   defendants took affirmative action to prevent him from
33   availing himself of grievance procedures.” Amador v.
34   Andrews, 655 F.3d 89, 103 (2d Cir. 2011) (internal quotation
35   marks omitted). “[V]erbal and physical threats of
36   retaliation, physical assault, denial of grievance forms or
37   writing implements, and transfers constitute such
38   affirmative action.” Id.
39
40        Harvey alleged that he was threatened with further
41   beatings if he told anyone about the assault at Clinton,
42   Harvey, 2014 WL 2779252, at *4; he was placed in a strip
43   cell and denied access to writing implements, id.; after
44   five days, he was transferred to Downstate Correctional
45   Facility (“Downstate”) and told by a “grievance rep” that he
46   could not file a grievance at that facility for an incident
47   that occurred at another facility, id. at *5 (internal

                                  2
 1   quotation marks omitted); and, Harvey was subsequently
 2   transferred to Sing Sing, where he was again allegedly told
 3   that he could not file a grievance that related to conduct
 4   that occurred at another facility, id.
 5
 6        In discounting Harvey’s contention that he feared for
 7   his life due to threats made by the Clinton staff, the
 8   district court placed weight on the fact that, while at
 9   Clinton, Harvey complained to a nurse and psychiatric staff
10   that he had been assaulted. Id. at *9. But, “threats or
11   other intimidation by prison officials may well deter a
12   prisoner of ‘ordinary firmness’ from filing an internal
13   grievance, but not from appealing directly to individuals in
14   positions of greater authority within the prison system, or
15   to external structures of authority.” Hemphill v. New York,
16   380 F.3d 680, 688 (2d Cir. 2004). This reasoning applies to
17   Harvey’s effort to report his alleged assault to medical
18   personnel at Clinton.
19
20        The court also relied on the fact that it found no
21   “evidence suggesting any fear of filing a grievance while at
22   Downstate.” Harvey, 2014 WL 2779252, at *9. True, an
23   inmate has 21 days from the date of the alleged excessive
24   force incident to file a grievance, id. at *7, so Harvey
25   technically could have filed upon arriving at Downstate
26   where he had no reason to fear the corrections officer.
27   But, he alleges that he was informed by a grievance
28   representative that he could not file a grievance about
29   conduct that occurred at another facility.
30
31        We remand to the district court to determine, in the
32   first instance: (1) whether the unnamed grievance
33   representative was a staff member at Downstate and, if not,
34   (2) whether an inmate member of an inmate grievance
35   resolution committee is a prison official whose alleged
36   affirmative act may bar defendants from relying on an
37   exhaustion defense. See 7 N.Y.C.R.R. § 701.4(a) (describing
38   composition of inmate grievance resolution committee as
39   consisting of both inmates meeting certain qualifications
40   and staff members); cf. Brown v. Koenigsmann, 2005 WL
41   1925649, at *2 (S.D.N.Y. 2005) (concluding Second Circuit
42   precedent “does not require a showing that [the named
43   defendant] is personally responsible for plaintiff’s failure
44   to complete exhaustion, as long as someone employed by the
45   DOCS is”) (citing Ziemba v. Wezner, 366 F.3d 161, 163 (2d
46   Cir. 2004)).
47

                                  3
1        For the foregoing reasons, we hereby VACATE AND REMAND
2   the judgment of the district court for further proceedings
3   consistent with this summary order.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




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