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. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

DANIEL A. RILES, JR., Plaintiff‐Appellant,

v. 15‐3336‐pr

MARK BUCHANAN, Dir of Medical Svc, CARSON WRIGHT, Dr, MICHAEL BLUE, CO, Defendants‐Appellees. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* 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

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,

, 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,

, 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,

(2006)

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(citation omitted). ʺUntimely or otherwise procedurally defective administrative

grievance[s] or appeal[]sʺ fail to satisfy PLRAʹs exhaustion requirements.

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,

(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,

.

2. Administrative Remedies Were Available

The PLRA contains a ʺtextual exception to mandatory exhaustionʺ ‐‐ the

administrative remedies must be ʺavailable.ʺ Ross,

. 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

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.

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 ‐‐‐,

(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,

(2d Cir. 2004), to argue that special circumstances excuse his failure to

exhaust available remedies, that avenue has been foreclosed. See Williams,

(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,

, 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,

(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,

(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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