07-5478-pr
Day v. Chaplin


                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference
to that database and the docket number of the case in which the order was entered.

       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 twenty fifth day of November two thousand and nine.

PRESENT:

          ROGER J. MINER ,
          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
                        Circuit Judges.

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JASON MOURICE DAY ,

                               Plaintiff-Appellant,

          v.                                                                                No. 07-5478-pr

PAUL CHAPLIN , WAYNE CHOINSKY , T. BOGDANOFF, CAPTAIN
TRAVLIN , and JAMES DZURENDA,

                               Defendants-Appellees,

THERESA C. LANTZ , JAMES MC GAUGHEY , NANCY B. ALISBERG , BEN A. SOLNIT, DAVID C. FATHI,
ERIN BOGGS, DAVID BUDLONG , MARK BUCHANAN , DOCTOR LAWLOR , TERRENCE M. O’NEILL,
ANN E. LYNCH , STEVEN R. STROM , CONNECTICUT DEPARTMENT OF MENTAL HEALTH , and
OFFICE OF CONNECTICUT ATTORNEY GENERAL,

                                Defendants.*
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          *
              The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated
above.
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FOR PLAINTIFF-APPELLANT:                       Jason Mourice Day, pro se, Cheshire, CT

FOR DEFENDANTS-APPELLEES:                      Ann E. Lynch, Assistant Attorney General (Richard
                                               Blumenthal, Attorney General, on the brief), Attorney
                                               General’s Office, State of Connecticut, Hartford, CT

       Appeal from a judgment of the United States District Court for the District of Connecticut
(Alan H. Nevas, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-appellant Jason Mourice Day (“plaintiff” or “Day”) appeals from a judgment of the
District Court which (1) dismissed plaintiff’s claims for injunctive relief as moot and (2) granted
summary judgment to the defendants-appellees on plaintiff’s 42 U.S.C. § 1983 claims upon finding
that plaintiff failed to exhaust his administrative remedies. We assume the parties’ familiarity with
the factual and procedural history of this case.

         As an initial matter, we agree with the District Court that Day’s claims for injunctive relief
have been rendered moot. Those claims related to his treatment at the Garner Correctional
Institution (“GCI”) and sought transfer from that facility. Because Day is no longer housed at GCI,
his claims for injunctive relief are moot. See Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976).

        We review de novo an order granting summary judgment. See, e.g., Miller v. Wolpoff &
Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate only if “there
is no genuine issue as to any material fact” and the moving party is “entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c).

        Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). In Woodford v. Ngo, the Supreme Court held that the
exhaustion requirement of the PLRA cannot be satisfied by an “untimely or otherwise procedurally
defective administrative grievance or appeal,” and that the PLRA requires “proper exhaustion,”
which “means using all steps that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).” 548 U.S. 81, 83-84, 90 (2006) (internal quotation marks
omitted). This Court has recognized three qualifications to the PLRA’s exhaustion requirement:
“when (1) administrative remedies are not available to the prisoner; (2) defendants have either
waived the defense of failure to exhaust or acted in such [a] way as to estop them from raising the
defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance
procedures, justify the prisoner’s failure to comply with the exhaustion requirement.” Ruggiero v.
County of Orange, 467 F.3d 170, 175 (2d Cir. 2006).

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         We agree with the District Court that Day failed properly to exhaust his administrative
remedies. The District Court took judicial notice of Administrative Directive 9.6 of the Connecticut
Department of Correction, which “provides that matters relating to [the] application of
departmental policies, rules and procedures, individual employee actions, and any other matters
relating to access to programs, conditions of care and housing unit conditions are grievable” and
further noted that “plaintiff’s claims fall into these categories.” Day v. Lantz, No. 03:05 cv 1347, slip
op. at 7-8 (D. Conn. Nov. 15, 2007). The informal letters of complaint that Day sent to the
Connecticut Department of Correction officials do not conform to the proper administrative
remedy procedures established by the Connecticut Department of Correction. Moreover, the
affidavits of the grievance coordinators at the facilities where Day was incarcerated establish that
Day did not file any proper administrative grievances relevant to the claims raised in his complaint.

         Although Day argues that he could not pursue a grievance with the Department of
Correction based on a settlement agreement between the State of Connecticut Office of Protection
and Advocacy for Persons with Disabilities and Connecticut prison officials, that agreement
explicitly states that it does not alter the administrative remedies available to prisoners. Moreover,
he has presented no evidence showing that his misunderstanding of the available grievance
procedures was reasonable. Accordingly, the District Court’s grant of summary judgment based on
plaintiff’s failure to exhaust administrative remedies was proper.



                                           CONCLUSION

       We have considered all of plaintiff’s arguments and find them to be without merit. For the
foregoing reasons, the judgment of the District Court is AFFIRMED.


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

                                                 By ______________________________




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