     16-2931
     Gizewski v. N.Y.S. Dep’t of Corr., et al.

                         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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   29th day of June, two thousand seventeen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   MARK GIZEWSKI,
13            Plaintiff-Appellant,
14
15                -v.-                                           16-2931
16
17   NEW YORK STATE DEPARTMENT OF CORRECTIONS
18   AND COMMUNITY SUPERVISION, MICHAEL
19   SHEAHAN, in his official and individual
20   capacity, JOHN DOE 1, Treating
21   Physician at Five Points Correctional
22   Facility, in official and individual
23   capacity, JOHN DOE 2, Corrections Officer
24   at Five Points Correctional Facility,
25             Defendants-Appellees.
26   - - - - - - - - - - - - - - - - - - - -X
27


                                                1
 1   FOR APPELLANT:                MATTHEW J. BLIT, Levine & Blit,
 2                                 PLLC, New York, NY.
 3
 4   FOR APPELLEES:                KATE H. NEPVEU (Barbara D.
 5                                 Underwood, Andrea Oser, on the
 6                                 brief), for Eric T. Schneiderman,
 7                                 Attorney General of the State of
 8                                 New York, Albany, NY.
 9
10        Appeal from a judgment of the United States District Court
11   for the Northern District of New York (Suddaby, C.J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
14   DECREED that the judgment of the district court be AFFIRMED.
15
16        Mark Gizewski appeals from the judgment of the United States
17   District Court for the Northern District of New York (Suddaby,
18   C.J.) dismissing on summary judgment his claims under the
19   Americans with Disabilities Act (“ADA”) and the Eighth
20   Amendment. We assume the parties’ familiarity with the
21   underlying facts, the procedural history, and the issues
22   presented for review.

23        We review de novo the district court’s grant of summary
24   judgment, drawing all inferences in favor of the non-moving
25   party. Young v. Cnty. of Fulton, 160 F.3d 899, 902 (2d Cir.
26   1998).

27        When Gizewski was incarcerated at Five Points Correctional
28   Facility from May 2012 until January 2014, he sought
29   accommodations to significant physical disabilities that
30   resulted from his exposure in utero to Thalidomide. Requests
31   in February, March, and April 2013 were approved. In August or
32   September 2013,1 Gizewski requested multiple accommodations,
33   including an electric wheelchair, a new pressure-relief cushion,
34   in-cell assistance, grab bars in the shower, a grabber tool,
35   and shower brushes. Those requests were substantially approved
36   except for the electric wheelchair, which was denied on the

     1
      The record is somewhat unclear but it appears Gizewski submitted
     two requests with overlapping contents, one sent to the grievance
     office with a letter from counsel.

                                    2
 1   ground that Gizewski was able to navigate well with his
 2   non-electric wheelchair.

 3        Gizewski’s appeal of the partial denial was denied by the
 4   Superintendent. On November 12, 2013, he appealed to the
 5   Central Office Review Committee (the final step in the three-step
 6   inmate grievance program), asserting that the cushion, grabber
 7   tool, and shower brushes he received were inadequate and that
 8   the shower bars were placed in an unsafe location. The
 9   determination of the Superintendent was eventually upheld,
10   but--at least in part because of a “clerical error,” App. 66--not
11   until nearly a year later. In the meantime, Gizewski was
12   transferred to Walsh Regional Medical Unit in January 2014, and
13   he was released from prison a few months later.

14        While he was incarcerated at Walsh (and while his
15   administrative appeal was pending), Gizewski filed the present
16   complaint against the Department of Corrections, Five Points
17   Superintendent Michael Sheahan, and two John Doe defendants (his
18   treating physician and a corrections officer). His ADA claims
19   against the Department of Corrections allege (1) denial of the
20   benefit of services, programs or activities, (2) failure to
21   reasonably accommodate, and (3) retaliation for seeking
22   reasonable accommodations. He asserts an Eighth Amendment
23   claim under 42 U.S.C. § 1983 against Sheahan and the John Doe
24   defendants for deliberate indifference to his serious medical
25   needs.

26        After discovery, the district court dismissed the complaint
27   on summary judgment, ruling that Gizeweski failed to exhaust
28   administrative remedies, that his ADA claims lacked merit,2 and
29   that he failed to proffer sufficient evidence that Sheahan (the
30   only identified individual defendant) was personally involved
31   in any violation.


     2
      Gizewski’s appellate brief focuses on the exhaustion issue without
     discussing the merits; his reply brief asserts that the district court
     did not rule on the merits. Reply Br. 6–7. However, the district
     court opinion ruled in a separately lettered section that the ADA
     claims should be dismissed “for the reasons stated in the Defendants’
     memorandum of law,” 2016 WL 3661434 at *15, and elaborated several
     additional reasons.

                                       3
 1        The Prison Litigation Reform Act of 1995 (“PLRA”) provides
 2   that “[n]o action shall be brought with respect to prison
 3   conditions” under federal law “until such administrative
 4   remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
 5   The Supreme Court has held that even when administrative remedies
 6   are formally available, they are unavailable for purposes of
 7   the PLRA when “officers [are] unable or consistently unwilling
 8   to provide any relief to aggrieved inmates,” when the
 9   “administrative scheme [is] so opaque that it becomes,
10   practically speaking, incapable of use,” or “when prison
11   administrators thwart inmates from taking advantage of a
12   grievance process through machination, misrepresentation, or
13   intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016).

14        Gizewski makes no persuasive argument that administrative
15   remedies were unavailable. The Department of Corrections
16   provided a procedure for administrative remedies, and Gizewski
17   used it with considerable (though incomplete) success. He was
18   therefore obligated to exhaust those remedies before bringing
19   this action. The district court held that Gizewski failed to
20   exhaust all of his claims because his final administrative appeal
21   was still pending when he filed his complaint.3

22        Even if we assume arguendo that the long delay occasioned
23   in part by clerical error constituted constructive denial,
24   Gizewski would have exhausted only those issues he raised in
25   that final administrative appeal--specifically, the adequacy
26   of his pressure-relief cushion, grabber tool, shower brushes,
27   and the placement of his shower bars. App. 132. Those items
28   were provided as a result of requests for reasonable
29   accommodations that were granted, and although Gizewski alleges
30   that they were provided in a form that was deficient under the
31   ADA, he has pointed to no record evidence that raises a genuine
32   issue of material fact.

33

34

     3
       The eventual denial does not cure the failure to exhaust: “Subsequent
     exhaustion after suit is filed . . . is insufficient.” Neal v. Goord,
     267 F.3d 116, 122 (2d Cir. 2001) (abrogated in part on other grounds
     by Porter v. Nussle, 534 U.S. 516 (2002)).

                                       4
1        Accordingly, and finding no merit in appellant’s other
2   arguments, we hereby AFFIRM the judgment of the district court.

3                                FOR THE COURT:
4                                CATHERINE O’HAGAN WOLFE, CLERK




                                  5
