15‐3336‐pr
Riles v. Buchanan
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 1st day of September, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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DANIEL A. RILES, JR.,
Plaintiff‐Appellant,
v. 15‐3336‐pr
MARK BUCHANAN, Dir of Medical Svc, CARSON
WRIGHT, Dr, MICHAEL BLUE, CO,
Defendants‐Appellees. *
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* The Clerk of Court is respectfully instructed to amend the caption as set forth
above.
FOR PLAINTIFF‐APPELLANT: BENJAMIN C. JENSEN (James A. Wade, Kelly
Frye Barnett, on the brief), Robinson & Cole
LLP, Hartford, Connecticut.
FOR DEFENDANTS‐APPELLEES: MICHAEL K. SKOLD, Assistant Attorney
General, for George Jepsen, Attorney General
of Connecticut, Hartford, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Chatigny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Daniel A. Riles, Jr. appeals the judgment of the district
court entered September 30, 2015, dismissing his claims brought under 42 U.S.C. § 1983
against various doctors, administrators, and corrections officers at Northern
Correctional Institution (ʺNorthernʺ). By its Ruling and Order entered the same day,
the district court granted summary judgment in favor of defendants. This case arises
from a March 17, 2008 incident at Northern, during which a corrections officer, Michael
Blue, used physical force against Riles, an inmate. Riles contends that the force was
excessive, and that, in the ensuing months, Drs. Carson Wright and Mark Buchanan
refused, with deliberate indifference, to provide him with basic medical care. We
assume the partiesʹ familiarity with the underlying facts and procedural history of the
case.
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On appeal, Riles challenges three of the district courtʹs rulings: (1) Riles
failed to exhaust his administrative remedies with respect to his excessive force claim
against Blue, (2) Rilesʹs failure to exhaust his administrative remedies was not excused,
and (3) Rilesʹs deliberate indifference claims against Drs. Wright and Buchanan raised
no issues of material fact and were properly disposed of through summary judgment.
We consider each challenge in turn.
We review a district courtʹs grant of summary judgment de novo, and ʺwill
affirm only if, construing the evidence in the light most favorable to the nonmoving
party, ʹthere is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.ʹʺ State Emp. Bargaining Agent Coalition v. Rowland, 718 F.3d
126, 131‐32 (2d Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).
1. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 (the ʺPLRAʺ) requires an inmate
to exhaust ʺsuch administrative remedies as are availableʺ before bringing suit to
complain of prison conditions or actions taken by prison officials, such as the use of
excessive force. 42 U.S.C. § 1997e(a); see Ross v. Blake, 136 S. Ct. 1850, 1854‐55 (2016).
The PLRA requires ʺproper exhaustion,ʺ which means ʺusing all steps that the [prison
grievance system] holds out, and doing so properly (so that the [prison grievance
system] addresses the issues on the merits).ʺ Woodford v. Ngo, 548 U.S. 81, 90 (2006)
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(citation omitted). ʺUntimely or otherwise procedurally defective administrative
grievance[s] or appeal[]sʺ fail to satisfy PLRAʹs exhaustion requirements. Id. at 83‐84.
The Connecticut Department of Correction (ʺDOCʺ) requires inmates to
submit grievances in accordance with Administrative Directive 9.6 (ʺAD 9.6ʺ).
According to that directive, the aggrieved inmate must first seek informal resolution
prior to filing a grievance. AD 9.6 § 6.A. If attempts to resolve the issue verbally fail,
then the inmate must submit an Inmate Request Form clearly stating the problem and
requesting a remedy. Id. If no response from DOC is received within fifteen business
days of receipt of the Inmate Request Form or if the remedy offered through informal
resolution is unsatisfactory, the inmate may file a Level 1 grievance within thirty days
of the incident giving rise to the grievance. Id. § 6.C.
When submitting a Level 1 grievance, the inmate must attach the
previously‐filed Inmate Request Form or explain why it is not attached. Id. When an
inmate files a grievance that fails to comply with these procedural requirements, DOC
may either 1) return the grievance without disposition, at which point inmates are
permitted to correct the error and refile the grievance, id. § 6.E, or 2) reject the grievance
outright without giving the inmate an opportunity to refile, id. § 6.F. An inmate may
appeal a Level 1 disposition to Level 2 within five days of receipt of the decision.
Northern is to provide a written response to the Level 1 grievance within 30 business
days of receipt of the grievance.
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As the district court concluded, the record shows that Riles failed to
ʺproperly exhaustʺ the administrative remedies available to him before filing suit in the
district court. First, while he purportedly made a verbal complaint about the incident,
it is undisputed that when that complaint failed to result in any relief, Riles did not
submit the requisite Inmate Request Form. Second, while Riles purportedly filed a
Level 1 grievance, he did not provide an explanation for not including an Inmate
Request Form. Finally, Rilesʹs attempt to restart the grievance process some weeks later
was itself improper because it was filed months after the thirty‐day period set forth in
Administrative Directive 9.6 § 6.C.
We acknowledge that Riles apparently made several submissions in his
attempt to exhaust his administrative remedies.1 Nevertheless, because he did not
ʺproperlyʺ ʺus[e] all steps that the [prison grievance system] h[eld] out,ʺ the district
court did not err in concluding that Riles failed to exhaust his administrative remedies.
Woodford, 548 U.S. at 90 (ʺProper exhaustion demands compliance with [the prison
grievance systemʹs] deadlines and other critical procedural rules . . . .ʺ). As the Supreme
Court recently made clear in holding that courts may not excuse a prisonerʹs failure to
exhaust because of ʺspecial circumstances,ʺ ʺmandatory exhaustion statutes like the
1 Defendants deny that Riles submitted Level 1 and 2 grievances, representing that
they denied Rilesʹs Level 3 grievance because he had not submitted, as far as they could tell, the
Level 1 and 2 grievances.
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PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.ʺ Ross,
136 S. Ct. at 1857.
2. Administrative Remedies Were Available
The PLRA contains a ʺtextual exception to mandatory exhaustionʺ ‐‐ the
administrative remedies must be ʺavailable.ʺ Ross, 136 S. Ct. at 1858. An administrative
procedure is unavailable when: (1) ʺit operates as a simple dead end ‐‐ with officers
unable or consistently unwilling to provide any relief to aggrieved inmatesʺ; (2) it is ʺso
opaque that is becomes, practically speaking, incapable of useʺ; or (3) ʺprison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.ʺ Id. at 1859‐60.
First, Riles argues that he was assured by DOC staff that the assault would
be investigated, leading him to reasonably believe that his verbal complaint resolved
the issue such that no written request was required. Administrative remedies are not
ʺavailableʺ if prison officials ʺinterfere[] with an inmateʹs pursuit of reliefʺ by
misleading him to think that he has done everything necessary to initiate the grievance
process or threatening him with retaliation. Id. at 1860 & n.3. Even assuming Riles was
initially misled, he learned shortly after such assurances that his verbal complaint was
not being resolved, and, on March 23, purportedly filed the Level 1 grievance. Thus, to
the extent he was misled, Riles learned that the requested remedy was not being offered
by March 23, affording him nine days to timely file an Inmate Request Form pursuant
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to Administrative Directive 9.6. Administrative procedures were, therefore, still
available to him.
Nor did DOC officialsʹ alleged threats of retaliation interfere with his
exhaustion efforts. In Rilesʹs complaint, he claimed that Corrections Officer Bissaillon
threatened to punish him if he ʺpushed the issue.ʺ App. 14‐15. But because Riles claims
that he thereafter submitted his March 23 Level 1 grievance in spite of this alleged
threat, it cannot be said that the threat interfered with his exhaustion. He was not
deterred from exhausting; he simply did not exhaust in accordance with the
procedures.
Second, Riles argues that Administrative Directive 9.6 is composed of
confusing and inconsistent provisions, rendering them effectively unavailable. Where
ʺsome mechanism exists to provide relief, but no ordinary prisoner can discern or
navigate it,ʺ the procedure is incapable of use and, therefore, unavailable. Williams v.
Priatno, ‐‐‐ F.3d ‐‐‐, 2016 WL 3729383, at *5 (2d Cir. July 12, 2016) (excusing prisonerʹs
non‐exhaustion where the grievance process did ʺnot contemplate the situation in
which [the prisoner] found himself, making it practically impossible for him to ascertain
whether and how he could pursue his grievanceʺ). Though certainly rigorous in some
respects, Administrative Directive 9.6 addresses Rilesʹs situation and is not so opaque as
to be unavailable, plainly stating that ʺ[i]f the verbal option does not resolve the issue,
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the inmate shall submit a written request via CN 9601, Inmate Request Form.ʺ AD 9.6 §
6.A.
Finally, to the extent Riles relies on our decision in Hemphill v. New York,
380 F.3d 680 (2d Cir. 2004), to argue that special circumstances excuse his failure to
exhaust available remedies, that avenue has been foreclosed. See Williams, 2016 WL
3729383, at *4 (explaining that Ross abrogated the special‐circumstances exception and
ʺsupplant[ed] our Hemphill inquiry by framing the exception issue entirely within the
context of whether administrative remedies were actually availableʺ).
3. Rilesʹs Deliberate Indifference Claim is Insufficient as a Matter of Law
To prevail on an Eighth Amendment claim arising from medical care, a
prisoner must establish two elements: 1) a ʺsufficiently seriousʺ deprivation of medical
care measured from an objective perspective; and 2) an officialʹs act or omission
accomplished with ʺdeliberate indifference,ʺ i.e., ʺwhile actually aware of a substantial
risk that serious inmate harm will result.ʺ Salahuddin v. Goord, 467 F.3d 263, 279‐80 (2d
Cir. 2006).
First, Rilesʹs claim that Dr. Wright acted with deliberate indifference in
failing to provide pain medication is belied by the medical records, which show that Dr.
Wright saw him on a number of occasions, as discussed below, and had even prescribed
Riles a thirty‐day regimen of Motrin that was available to him at the time of his March
24, 2008 visit.
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Second, the allegation that Dr. Wright and Dr. Buchanan acted with
deliberate indifference with respect to their treatment of Rilesʹs broken nose, loss of
taste and smell, and nosebleeds is unsupported by the evidence in light of the record as
a whole. Shortly after the initial medical visit, on April 9, 2008, an x‐ray was taken
which revealed ʺmultiple nose fractures of the right and left nasal bone, mildly
displaced.ʺ App. 492. The evidence demonstrates that such injuries ordinarily heal
without medical intervention, and Riles has not submitted evidence suggesting
otherwise. And though there may have been significant delays in responding to Rilesʹs
complaints of his decreasing ability to taste and smell, the record shows that it was not
unreasonable for the doctors to believe that the anosmatic condition was untreatable
and caused by the initial injury rather than lack of treatment. Therefore, failure to treat
it did not cause a substantial risk of serious harm, and neither Dr. Wright in his
treatment nor Dr. Buchanan in his denial of Dr. Wrightʹs request to enlist a specialist
was acting with deliberate indifference. See Chance v. Armstrong, 143 F.3d 698, 703 (2d
Cir. 1998) (ʺ[M]ere disagreement over the proper treatment does not create a
constitutional claim. So long as the treatment given is adequate, the fact that a prisoner
might prefer a different treatment does not give rise to an Eighth Amendment
violation.ʺ).
With respect to the recurring nosebleeds, the undisputed evidence
demonstrates that Riles received continuous treatment from the time he began
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complaining of the nosebleeds until they were successfully treated with allergy
medication. At worst, Dr. Wright was negligent in failing to resolve Rilesʹs nosebleeds
sooner. Even assuming Rilesʹs recurring nosebleeds were a ʺserious medical condition,ʺ
there is no evidence that Dr. Wright acted with deliberate indifference in his course of
treatment. Salahuddin, 467 F.3d at 280 (ʺ[R]ecklessness entails more than mere
negligence; the risk of harm must be substantial and the officialʹs actions more than
merely negligent.ʺ).
We have considered all of Rilesʹs remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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