 09-1380-pr
 Snyder v. Whittier



                             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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. 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.

         At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 on the 1st day of July, two thousand eleven.

 Present:             ROSEMARY S. POOLER,
                      RICHARD C. WESLEY,
                      DEBRA ANN LIVINGSTON,
                                 Circuit Judges.

 ____________________________________________________

 SHAWN MICHAEL SNYDER,
                                                 Plaintiff-Appellant,

                      -v.-                                                        09-1380-pr


 BERNARD F. WHITTIER,

                                                 Defendant-Appellee,

 COMMISSIONER GLENN S. GOORD, RICHARD ROY,
 INSPECTOR GENERAL, MARK MILLER, ASSISTANT
 INSPECTOR GENERAL, JAMES PLESCHIA,
 SUPERINTENDENT, and MR. FUNNYE,
                                 Defendants.1



          1
              The Clerk’s Office is instructed to conform the caption herewith.
Appearing for Appellant:      Scott A. Korenbaum, Law Office of Scott A. Korenbaum, New
                              York, NY.

Appearing for Appellee:       Michael S. Martin, The Law Offices of Martin & Martin, Glens
                              Falls, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (McAvoy, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiff-Appellant Shawn Michael Snyder appeals from a judgment entered on March
12, 2009, in the District Court for the Northern District of New York (McAvoy, J.), adopting the
Report and Recommendation of Peebles, M.J., granting Appellee’s motion for summary
judgment on the ground that Appellant failed to exhaust administrative remedies before filing
suit. We assume the parties’ familiarity with the underlying facts, procedural history, and issues
presented for review.

         We review an order granting summary judgment de novo to determine whether the
district court properly concluded that there were no genuine issues of material fact and the
moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). “In determining whether there are genuine issues of
material fact, we are required to resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft,
336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted). A district court’s ruling on
whether a plaintiff has exhausted administrative remedies under the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e, is also reviewed de novo. See Ortiz v. McBride, 380 F.3d
649, 653 (2d Cir. 2004). We may affirm on any ground supported by the record, including a
ground not relied upon by the district court. Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999).

        Appellant Shawn Michael Snyder alleges that, on the afternoon of June 1, 2005, he was
physically and verbally assaulted by Bernard F. Whittier, a corrections officer, who was
“notoriously homophobic.” It is undisputed that Snyder did not file a formal grievance regarding
the assault until the time for grieving the assault had long since passed. Snyder filed the instant
action, arguing in relevant part that he ought to be excused from exhausting administrative
remedies, or in the alternative, Whittier ought to be estopped from raising exhaustion as an
affirmative defense.

         The PLRA requires that prisoners exhaust all available administrative remedies before
pursuing a lawsuit in federal court. See 42 U.S.C. § 1997e(a) (“No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative


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remedies as are available are exhausted.”); Porter v. Nussle, 534 U.S. 516, 532 (2002)
(exhaustion is required for “all inmate suits about prison life”); Booth v. Churner, 532 U.S. 731,
734 (2001) (exhaustion required before filing a Section 1983 claim for monetary damages even
though monetary damages are unavailable as an administrative remedy). To properly exhaust a
claim, a prisoner must comply with prison grievance procedures. Jones v. Bock, 549 U.S. 199,
218 (2007). Merely “[a]lert[ing] the prison officials as to the nature of the wrong for which
redress is sought does not constitute proper exhaustion.” Macias v. Zenk, 495 F.3d 37, 44 (2d
Cir. 2007) (internal quotation marks and citation omitted). An “untimely or otherwise
procedurally defective administrative grievance” also does not constitute proper exhaustion.
Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).

        Though the exhaustion requirement is generally mandatory, we have devised a three-part
inquiry to determine the scope of the exhaustion requirement in a given case. First, “the court
must ask whether administrative remedies were in fact ‘available’ to the prisoner.” Hemphill v.
New York, 380 F.3d 680, 686 (2d Cir. 2004) (citing Abney v. McGinnis, 380 F.3d 663 (2d Cir.
2004)). This includes inquiry into both whether “the prison provided grievance procedures that
inmates . . . could utilize” and whether threats rendered “all administrative remedies unavailable”
or “some procedures that would ordinarily be available . . . effectively unavailable.” Id. at
686-87. Second, the court should determine whether the defendants forfeited the defense by
failing to raise or preserve it and whether the defendants’ actions inhibiting the inmate’s
exhaustion of remedies would estop the defendants from raising the failure to exhaust defense.
Id. at 686. Finally, the court “should consider whether ‘special circumstances’ have been
plausibly alleged that justify ‘the prisoner’s failure to comply with administrative procedural
requirements.’” Id. (quoting Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004)).

        In this case, Snyder testified that he was “fearful of filing a grievance” about the assault
because he was worried about retaliation from Whittier. Independent of Snyder’s alleged
subjective fear here, we noted in Hemphill that the inquiry into whether a threat is sufficient to
render grievance procedures unavailable is an objective one, asking whether “‘a similarly
situated individual of ordinary firmness’ [would] have deemed them available.” Hemphill, 380
F.3d at 688. Here, however, Snyder fails to allege any specific threats related to the grievance
procedures that would have led any such similarly situated individual to believe that these
procedures were unavailable. Moreover, while Snyder’s subjective fear is thus not dispositive, it
is nonetheless relevant that two hours after the assault, Snyder complained to Corrections Officer
Funnye, who Snyder testified was friendly with Officer Whittier. That is, Snyder alleged that
two hours after the attack, he overheard Officer Whittier “bragging to Defendant Funnye about
[the assault]” and observed Officer Funnye “approve[] Defendant Whittier’s actions by
expressing that ‘the bitch probably deserved it,’ and both Defendants . . . joking and laugh[ing]
about the incident.” Notwithstanding any fear about filing a grievance, Snyder complained to
Officer Funnye about the attack within minutes of the above exchange.

       Further, Officer Funnye was not the only person Whittier told about the attack. Snyder
disclosed certain limited details to his physician. Snyder wrote a letter to Lieutenant Greene,
another officer at the Washington Correctional Facility, where the assault took place, on July 7.


                                                -3-
In response to the letter, Sergeant Belden requested that Snyder give him a formal statement,
which Snyder provided on July 12. Indeed, Snyder was even transferred out of the Washington
Correctional Facility to the Great Meadow Correctional Facility and eventually to the Groveland
Correctional Facility, in response to his complaints about Officer Whittier.

        Once Snyder arrived at Groveland, he wrote a letter to the Inspector General about the
incident, which he mailed on July 22, 2005. Failing to receive a response to that letter, Snyder
sent a second request for information on August 23, 2005.

        It is true that depending on the circumstances, a court may determine that an inmate was
objectively sufficiently intimidated, by certain prison officials so as to render “normal grievance
procedures unavailable” even though the inmate informally complained “directly to individuals
in positions of greater authority within the prison system, or to external structures of authority
such as state or federal courts.” Hemphill, 380 F.3d at 688. But that situation is not present here.
Snyder cannot contend that a similarly situated individual of ordinary firmness would be willing
to complain above Whittier’s head, but unwilling to file a formal grievance for fear of Whittier,
where Snyder’s first complaint was made to Funnye, Whittier’s fellow corrections officer.

         In granting the motion for summary judgment on the ground that Snyder failed to exhaust
available administrative remedies, the Magistrate Judge explained that: “Plaintiff’s contention
that he did not file a grievance at Washington concerning the matter out of fear of retribution is
fatally undermined by the fact that while he was transferred out of Washington and into
Groveland on July 15, 2005, it was not until more than one month later, on August 24, 2005, that
he first attempted to file a grievance regarding the matter.” The delay in filing an official
grievance is not helpful to Snyder, but it would not necessarily have negated a finding that there
was a triable question of fact regarding whether Snyder really did avoid filing a formal grievance
as a result of threats sufficient to deter a person of ordinary firmness from resorting to the
grievance procedures. The facts of this case, however, do not present such a close call.

        Again, the facts here simply do not demonstrate threats by Whittier targeted at preventing
Snyder from filing a formal grievance so as to make these procedures “effectively unavailable”
for an inmate in Snyder’s position or otherwise to estop Whittier from raising the exhaustion
defense. Snyder’s assertion that he feared retaliation in the first place from Officer Whittier is
belied by his testimony that he complained to Officer Funnye within two hours of the assault,
and immediately after he had watched Officers Funnye and Whittier “joke” and “laugh” about
the incident. Our conclusion is further underscored by the fact that Snyder complained to no less
than four other individuals about the attack, between the time he disclosed details of the attack to
Officer Funnye, and the time when he finally attempted to file a formal grievance. These
undisputed facts make clear that there is no basis on which a fact-finder could conclude that
Officer Whitter inhibited Snyder’s access to administrative remedies, or that administrative
remedies were otherwise unavailable to Snyder. Where, as here, a prisoner fails to properly
exhaust his administrative remedies before filing suit, the action must be dismissed. See Neal v.
Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter v.
Nussle, 534 U.S. 516 (2002). We therefore conclude that the district court committed no error in
granting summary judgment for Whittier.

                                                -4-
        We have considered Snyder’s remaining contentions and find them to be without merit
for substantially the reasons stated by the district court. For the foregoing reasons, the judgment
of the district court is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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