Gizewski v. New York State Department of Corrections & Community Supervision

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
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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.
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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