19-3318
LaPierre v. LaValley
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 TO 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
3rd day of March, two thousand twenty-one.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
MARK A. LAPIERRE,
Plaintiff-Appellant,
v. 19-3318
CORRECTIONS OFFICER CHAD LAVALLEY,
CLINTON CORRECTIONAL FACILITY, FKA E.
LAVALLEY, SERGEANT DELISLE, CLINTON
CORRECTIONAL FACILITY, SERGEANT
MICHAEL GUYNUP, CLINTON
CORRECTIONAL FACILITY, FKA TERRY
GUYNUP, DOCTOR KRISHNA KUMAR
VADLAMUDI, MARCY CORRECTIONAL
FACILITY, CORRECTIONS OFFICER RANDY
RUSSELL, CLINTON CORRECTIONAL
FACILITY,
Defendants-Appellees,
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CATHERINE LEAHY-SCOTT, NEW YORK
STATE INSPECTOR GENERAL,
COMMISSIONER ANTHONY J. ANNUCCI,
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION (DOCCS),
Defendants.
_____________________________________
For Plaintiff-Appellant: Mark A. LaPierre, pro se, Comstock, NY.
For Defendants-Appellees: Barbara D. Underwood, Solicitor General, Victor
Paladino, Senior Assistant Solicitor General, and Brian
D. Ginsberg, Assistant Solicitor General, for Letitia
James, Attorney General of the State of New York,
Albany, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (D’Agostino, J.; Stewart, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Mark LaPierre, pro se and incarcerated, sued several employees of the New York State
Department of Corrections and Community Supervision (“DOCCS”)—including corrections
officers and his physician, Dr. Krishna Vadlamudi—under 42 U.S.C. § 1983, alleging Eighth
Amendment violations. First, LaPierre claimed that, on December 21, 2012, while he was
imprisoned at Clinton Correctional Facility (“Clinton”), the officers beat him while others failed
to intervene (“the Clinton incident”). Second, LaPierre claimed that, while he was imprisoned at
the Marcy Correctional Facility (“Marcy”), Vadlamudi was deliberately indifferent to his medical
needs by denying him suitable pain medication and refusing to order diagnostic testing. The
defendants moved for summary judgment, arguing that LaPierre failed to exhaust his
administrative remedies before filing suit over the Clinton incident and, while he properly
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exhausted his claim against Vadlamudi, LaPierre’s disagreement with Vadlamudi’s treatment did
not amount to a constitutional violation. The district court granted the defendants’ motion and
LaPierre timely appealed. As to LaPierre’s Eighth Amendment claim against Vadlamudi, we
affirm for substantially the reasons set forth by the district court. We address whether LaPierre
properly exhausted his administrative remedies regarding the Clinton incident herein, and assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.
* * *
We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and
draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d
120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing
the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff,
642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). As relevant here, the Prison
Litigation Reform Act (“PLRA”) provides that incarcerated plaintiffs must exhaust administrative
remedies before filing a claim under § 1983 “or any other Federal law.” 42 U.S.C. § 1997e(a); see
also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). The PLRA requires “proper exhaustion,”
meaning exhaustion in “compliance with an agency’s deadlines and other critical procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). As an inmate of DOCCS, LaPierre was
required to submit his grievance through the Inmate Grievance Program.
The district court found no material issue of fact had been raised as to LaPierre’s failure to
exhaust the administrative remedies that were available to him regarding the Clinton incident.
We agree. In his verified complaint and affidavit, LaPierre claims that on or around December
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29, 2012, he submitted a handwritten complaint to an unspecified correction officer and the
complaint subsequently went missing. However, having failed to properly file his complaint with
the Inmate Grievance Clerk so that it would be numbered and logged at the time of receipt,
LaPierre stated that he took no additional measures to ensure that his complaint was received.
Moreover, at his deposition, LaPierre testified that he did not file a grievance concerning the
Clinton incident. He also affirmed at his deposition that “[he] tried to file a grievance” but did
not actually do so, because no grievance forms were available. 1 Doc. 91-2 at 5. In such
circumstances, LaPierre’s shifting and contradictory statements “transcend credibility concerns
and go to the heart” of whether LaPierre raised a genuine issue of material fact as to exhaustion.
Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011); see also Jeffreys v.
City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (“[I]n the rare circumstance where the plaintiff
relies almost exclusively on his own testimony, much of which is contradictory and incomplete,”
the court must “mak[e] some assessment of the plaintiff’s account” despite “the duty of district
courts not to weigh the credibility of the parties at the summary judgment stage”). We see no
error in the district court’s determination that LaPierre failed to do so.
Nor does the mere absence of grievance forms attested to by LaPierre during his deposition
excuse his failure to exhaust administrative remedies. An administrative procedure is
unavailable when (1) “it operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes,
1
The record reflects that LaPierre wrote letters to then-DOCCS Commissioner Brian Fischer on January
1, 2013, and letters to the Inspector General’s Office on March 21, 2013 and June 9, 2013, which resulted
in an investigation by the Inspector General. These letters, however, are not the equivalent of a
grievance and did not exhaust LaPierre’s administrative remedies. See 7 N.Y.C.R.R. § 701.2(a); see
also Ross, 136 S.Ct. at 1855 (applying Maryland law).
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practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or intimidation.”
Williams v. Corr. Officer Priatno, 829 F.3d 118, 123–24 (2d Cir. 2016) (quoting Ross, 136 S.Ct.
at 1859–60). The Inmate Grievance Program regulations provide that if the grievance “form is
not readily available, a complaint may be submitted on plain paper.” 7 N.Y.C.R.R. § 701.5(a)(1).
Moreover, to the extent LaPierre argues that the administrative procedure was unavailable for other
reasons—either because it was opaque or because he was thwarted from using it—we have
considered these arguments and find them to be without support in the record for substantially the
reasons provided by the district court.
* * *
We have considered LaPierre’s remaining arguments and find them to be without merit. 2
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
LaPierre’s pending motion for assignment of counsel, submitted after the briefing period ended, is
denied as moot.
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