15‐3496
Wilson v. McKenna
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 4th day of October, two thousand sixteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges,
KATHERINE B. FORREST,
District Judge.*
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ALVIN WILSON,
Plaintiff‐Appellant,
v. 15‐3496
BROOKE MCKENNA,
Defendant‐Appellee,
JOHN DOE, LT; CORRIGAN‐R‐CC, HARTFORD
SUPERIOR COURT, STATE MARSHAL LOCKUP
DEPARTMENT, JOHN AVER, JANE DOE, HARTFORD
* The Honorable Katherine B. Forrest, of the United States District Court for the
Southern District of New York, sitting by designation.
HCC, DOCTOR, DOC MEDICAL STAFF, JOHN DOE,
HARTFORD HOSPITAL, an emergency room doctor, JOHN
WAYEN, JANE DOES, 3, CORRIGAN‐R‐CC DOC MEDICAL
HEALTH CARE STAFF, JOHN WILLIAMS, JOHN ERFE,
WARDEN, JOHN HANNEY, JOHN DOE,
CORRIGAN‐R‐CC, DOC, MEDICAL HEALTH CARE
STAFF, SHARRON LAPLANTE, JOHN DOE, WARDEN,
HARTFORD HCC, DOC, F. GILLIG, OMPRAKASH PILLAI,
MONICA J. FARINELLA, FORD, WARDEN, STATE OF
CONNECTICUT,
Defendants.
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FOR PLAINTIFF‐APPELLANT: Alvin Wilson, pro se, Suffield,
Connecticut.
FOR DEFENDANT‐APPELLEE: Zenobia Graham‐Days, Assistant
Attorney General, for George Jepsen,
Attorney General of the State of
Connecticut, Hartford, Connecticut.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Bryant, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Alvin Wilson, proceeding pro se, appeals from a
judgment in favor of defendant‐appellee Corrections Officer Brooke McKenna in his
suit under 42 U.S.C. § 1983, alleging deliberate indifference to his medical needs. The
district court granted summary judgment to McKenna, concluding, inter alia, that
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Wilson had failed to exhaust his administrative remedies. We assume the partiesʹ
familiarity with the facts, procedural history, and issues on appeal.
As an initial matter, Wilson does not address exhaustion in his appellate
brief, and therefore has abandoned any challenge to the district courtʹs determination
that he failed to exhaust his administrative remedies. See LoSacco v. City of Middletown,
71 F.3d 88, 92‐93 (2d Cir. 1995). In any event, we conclude that the district court
properly determined as a matter of law that Wilson failed to exhaust his administrative
remedies.
We review de novo a district courtʹs grant of summary judgment. Garcia
v. Hartford Police Depʹt, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary
judgment must be granted if ʺthere is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a).
Under the Prison Litigation Reform Act of 1995 (the ʺPLRAʺ), ʺ[n]o action
shall be brought with respect to prison conditions under [§ 1983] . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.ʺ 42 U.S.C. § 1997e(a). The PLRA requires
ʺproper exhaustion,ʺ meaning exhaustion in ʺcompliance with an agencyʹs deadlines
and other critical procedural rules.ʺ Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Nevertheless, the administrative remedies must be ʺavailable.ʺ Ross v. Blake, 136 S. Ct.
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1850, 1858 (2016). 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 it 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
Williams v. Priatno, No. 14‐4777, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016) (quoting
Ross, 136 S. Ct. at 1859‐60).
The Connecticut Department of Correction (ʺDOCʺ) requires inmates to
submit grievances in accordance with Administrative Directive 9.6 (ʺAD 9.6ʺ).
Defendantʹs Cross‐Motion for Summary Judgment, Ex. A, Wilson v. McKenna, No.
12‐cv‐1581, (S.D.N.Y. May 5, 2015), ECF No. 29. According to that directive, the
aggrieved inmate must 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.A, 6.C. To do so, he must submit an Inmate Administrative
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Remedy Form that covers requests for relief for both ʺGrievance[s]ʺ and ʺHealth Service
Review[s].ʺ Def. Cross‐Mot. Summ. J., Ex. A at 16.
When submitting a Level 1 grievance, the inmate must attach the
previously‐filed Inmate Request Form to the Inmate Administrative Remedy Form or
explain why it is not attached. AD 9.6 § 6.C 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. DOC is to provide a written response to the
Level 1 grievance within thirty business days of receipt of the grievance. Id. § 6.I. An
inmate may appeal a Level 1 disposition to Level 2 within five calendar days of his
receipt of the decision. Id. § 6.K.
As the district court concluded, the record shows that Wilson failed to
properly exhaust the administrative remedies available to him before filing suit in
federal court. Wilson alleges he was injured and denied necessary medical care by
McKenna on September 16, 2012. Wilson filed an Inmate Administrative Remedy
Form on September 20, 2012. On this form, Wilson checked a box indicating that he
was ʺfiling a Grievance.ʺ Def. Cross‐Mot. Summ. J., Ex. I at 1. He did not check the
box for ʺrequesting a Health Services Review,ʺ but did check boxes for
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ʺDiagnosis/Treatmentʺ and ʺAll Other Health Care Issuesʺ in the Health Services
Review section of the form. Id. Further, Wilson requested only medical care in the
narrative portion of the form ‐‐ no mention was made of McKenna, or any other guard
for that matter. The form was treated as a request for Health Services Review and
denied on October 16, 2016, because, by then, Wilson had been examined by medical
staff on multiple occasions.
Wilson also submitted an Inmate Request Form on October 9, 2012, in
which he mentioned the alleged incident with McKenna, but complained only about his
lack of medical treatment. It was not until October 17, 2012, thirty‐one days after he
allegedly sustained an injury, that Wilson filed an Inmate Request Form detailing his
complaint against McKenna. Although he also filed an Inmate Grievance Appeal
Form ‐‐ Levels 2/3 on October 17, 2012, Wilson never filed a Level 1 grievance against
McKenna.1 Hence, Wilson failed to comply with the Administrative Directive: He
did not submit a timely Level 1 grievance and his ʺappealsʺ were premature.
Therefore, he did not demonstrate ʺproper exhaustionʺ and the district court properly
entered summary judgment in favor of McKenna. See Ross, 136 S. Ct. at 1857
1 We note that the record below indicates that DOC never received the forms
Wilson purportedly filed on October 9, 2012, and October 17, 2012, a fact that he does not
dispute. Nevertheless, we assume for the purposes of this appeal that the forms were indeed
submitted.
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(ʺ[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion
regimes, foreclosing judicial discretion.ʺ).
Because Wilson did not raise the issue below or on appeal, we do not
consider whether the grievance process was ʺunavailableʺ to him, either because his
September 20, 2012 Inmate Administrative Remedy Form was treated as a request for
Health Services Review rather than a Grievance, or for any other reason. See Ross, 136
S. Ct. at 1859‐60; Guzman v. Local 32B‐32J, Serv. Emps. Intʹl Union, 151 F.3d 86, 93 (2d Cir.
1998).
We have considered Wilsonʹs remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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