Argued: February 29, 2016
Mark Williams appeals from an order of the District Court for
the Southern District of New York that dismissed his claim
under 42 U.S.C. § 1983 and the Eighth Amendment for
failure to exhaust all available administrative remedies as
required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). We conclude that administrative remedies
beyond the submission of his initial complaint were
unavailable to Williams because the applicable grievance
procedures are "so opaque" and confusing that they
were, "practically speaking, incapable of use."
Ross v. Blake, 136 S.Ct. 1850, 1859 (2016).
Accordingly, we reverse the decision of the district court
and remand for further proceedings consistent with this
M. Feldman (Michael J. Rooney, on the brief), Harter Secrest
& Emery LLP, Rochester, NY, for Plaintiff-Appellant.
A. Thomas (Barbara D. Underwood and Anisha S. Dasgupta, on
the brief), for Eric T. Schneiderman, Attorney General of the
State of New York, New York, NY, for Defendants- Appellees.
Before: Katzmann, Chief Judge, Sack and Lohier, Circuit
KATZMANN, CHIEF JUDGE
Mark Williams alleges in this 42 U.S.C. § 1983 case that
Defendants-Appellees Correction Officer Priatno and
Correction Officer Gammone violated his Eighth Amendment
rights when they brutally beat him for talking back to
another officer when he was an inmate at Downstate
Correctional Facility ("Downstate") in New York. We
are presented with the threshold question of whether Williams
exhausted all available administrative remedies prior to
filing this lawsuit in the United States District Court for
the Southern District of New York, as required by the Prison
Litigation Reform Act ("PLRA"), 42 U.S.C. §
1997e(a). More specifically, we must decide whether the
prison's grievance process was actually
"available" to Williams in light of the
extraordinary circumstances of his case. We conclude that
that process was not available to Williams because the
applicable grievance procedures are "so opaque" and
confusing that they were, "practically speaking,
incapable of use." Ross v. Blake, 136 S.Ct.
1850, 1859 (2016). We reverse the decision of the district
court that granted defendants' motion to dismiss and
remand for further proceedings consistent with this opinion.
Department of Corrections and Community Supervision Grievance
York State Department of Corrections and Community
Supervision ("DOCCS") regulations outline the
procedures that apply to the Inmate Grievance Program
("IGP") at Downstate. The grievance process begins
with the filing of a complaint within 21 days of an alleged
incident. N.Y. Comp. Codes R. & Regs. ("NYCRR")
tit. 7, § 701.5(a)(1). Typically, inmates file
grievances with the grievance clerk. Id. However, if
an inmate is housed in the special housing unit
("SHU"), and therefore segregated from the regular
prison population, he may give the grievance complaint to a
correction officer to file for him. See id. §
701.7. Upon filing, the grievance clerk numbers and logs the
grievances. Id. § 701.5(a)(2).
there are three levels of review of a grievance. The first is
by the inmate grievance resolution committee
("IGRC"); the second is by the facility
superintendent; and the third is by the central office review
committee ("CORC"). Id. §§
701.1(c), 701.5. However, "harassment
grievances"-those that involve "employee misconduct
meant to annoy, intimidate or harm an inmate, "
id. § 701.2(e)-are subject to expedited
first-level review by the facility superintendent,
id. § 701.8. When the grievance clerk
identifies a harassment grievance, the clerk must forward the
grievance to the superintendent on the same day that the
grievance was filed. Id. § 701.8(b). If the
grievance presents a bona fide harassment issue, then the
superintendent must initiate an investigation, render a
decision on the grievance, and inform the inmate of the
decision within 25 days of receipt of the grievance.
Id. § 701.8(d), (f). "If the
superintendent fails to respond within the required 25
calendar day time limit the grievant may appeal his/her
grievance to CORC." Id. § 701.8(g);
see also id. § 701.6(g)(2) (stating generally
that matters not decided within designated time limits
"may be appealed to the next step").
inmate is transferred to another facility while a grievance
is pending, a response to the grievance shall be mailed to
the inmate at the new facility. Id. §
701.6(h)(1). "If the grievant wishes to appeal, he or
she must mail the signed appeal form back to the IGP
supervisor at the facility where the grievance was originally
filed within seven calendar days after receipt."
Id. § 701.6(h)(2). If an inmate wishes to file
a new grievance about an incident that occurred prior to a
transfer, he must file the grievance in the facility where he
is currently housed, "even if it pertains to another
facility." Id. § 701.5(a)(1).
Facts and Procedural History
was formerly incarcerated at Downstate. He alleges that, on
December 31, 2012, he was in a search room (also known as a
"drafting" room) while his personal items were
being searched. A correction officer was "thoroughly
probing [his] legal work" and he asked her to stop.
Joint App. at 32. Williams explains that the legal papers
were related to a separate action seeking damages for an
assault he experienced while an inmate at Rikers Island. The
officer instructed Williams to sit down, which he did while
"admonishing" her. Id. At that point,
defendant correction officers Priatno and Gammone approached
Williams. They grabbed Williams and dragged him to another
room that had no cameras, where they were out of eyesight of
the other 15 to 20 inmates who were seated in the drafting
room. Williams alleges that the officers proceeded to assault
him-thrusting his forehead against the wall, causing him to
fall to the ground, and then kicking and stomping on any
uncovered part of his body. Defendant Gammone allegedly
picked him up and said, "this is what running your mouth
gets you, " and punched him on his right eye.
Id. at 37. Williams fell to the floor again, and
defendant Priatno allegedly kicked his face and head.
Following the assault, the officers sent him to the
infirmary. He suffered injuries to his head, knee, eye,
elbow, lower back, jaw, and nose, and he now takes medication
for anxiety and panic attacks.
alleges that on January 15, 2013, while he was housed in the
SHU at Downstate, he drafted a grievance detailing the
officers' misconduct. He gave the grievance to a correction
officer to forward to the grievance office on his behalf, in
accordance with DOCCS grievance procedures that apply to
inmates in the SHU. See NYCRR tit. 7, § 701.7.
One week later, Downstate superintendent Ada Perez was making
rounds in the SHU. Williams told her about the incident and
said he had not yet received a response to his grievance.
Perez told him she had no knowledge of the grievance and that
she would look into it. About a week after that conversation,
Williams was transferred to another ...