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06-4246-pr
Hernandez v. Coffey
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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(Argued: April 8, 2009
August Term, 2008
Decided: September 21, 2009)
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Docket No. 06-4246-pr
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José Hernández,
Plaintiff-Appellant,
v.
Kevin R. Coffey, C.O., Lawrence J. Featherston, P.O., James Chamberlain,
Sgt., M. Taylor,
Nurse,*
Defendant-Appellees.
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Before:
JACOBS, Chief Judge, WALKER, and LEVAL, Circuit Judges.
Appeal from a grant of summary judgment by the United States District
Court for the
Southern District of New York (Pauley, J.) for the prisoner-plaintiff’s
failure to exhaust
*
The Clerk of the Court is instructed to amend the official caption in this
case to conform
to the listing of the parties above.
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administrative remedies before initiating suit under 42 U.S.C. § 1983
alleging that he was beaten
by defendant corrections officers and denied medical treatment by
defendant nurse. The Court of
Appeals (Leval, J.) vacates the district court’s order and remands because
the district court failed
to provide adequate notice to pro se plaintiff of the procedural
requirements and potential
consequences of summary judgment, and failed to provide him adequate
opportunity to seek
discovery of and to submit evidence related to exhaustion.
LINDA EPSTEIN (Vilia B. Hayes, on the brief),
Hughes Hubbard & Reed LLP, New York, New
York, for Plaintiff-Appellant.
RICHARD O. JACKSON, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General, and
Benjamin N. Gutman, Deputy Solicitor General, on
the brief), for Andrew M. Cuomo, Attorney General
of the State of New York, New York, New York,
for Defendants-Appellees.
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LEVAL, Circuit Judge:
José Hernández, an inmate at Clinton Correctional Facility, appeals from
the grant of
summary judgment by the United States District Court for the Southern
District of New York
(Pauley, J.), dismissing Hernández’s suit under 42 U.S.C. § 1983, which
alleged that he was
beaten by defendant corrections officers and denied medical treatment by
defendant nurse.
Hernández, who is represented by counsel on this appeal, presented his
case pro se (without an
attorney acting on his behalf) in the district court. The court granted
summary judgment on the
ground that Hernández had not exhausted administrative remedies as
required by 42 U.S.C.
§ 1997e(a), because he did not prosecute a grievance through all three
stages of the Inmate
Grievance Procedure (“IGP”) provided by the New York State Department of
Correctional
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Services (“DOCS”). Hernández claims that the IGP was not available to him
because, when he
filed a grievance at the first stage of the IGP, he received no response
and his grievance was not
assigned a grievance number. He also argues that, if he did fail to
exhaust his administrative
remedies, the failure was justified because he reasonably believed at the
time that exhaustion was
not required. Finally, Hernández argues that, because he was acting pro se
at the time, the
district court committed error in converting the defendants’ motion for
judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) to a motion for
summary judgment and
dismissing his case without first explaining the procedural requirements
for responding to such a
motion and the potential consequences of the motion, and without providing
him an opportunity
to take discovery and to submit evidence to respond to the motion. We
agree with the last
contention. We therefore vacate the dismissal of the suit and remand for
further proceedings.
BACKGROUND
In his complaint, Hernandez alleged that he was attacked and seriously
injured by the
defendant corrections officers on November 5, 1998 during a transfer after
his court appearance
at Kings County Family Court. His complaint further alleged that,
following the attack, he was
denied medical care by Defendant Taylor, a nurse in the Downstate
Correctional Facility medical
center.
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall
be brought
with respect to prison conditions under section 1983 . . . or any other
Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such
administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is “mandatory”
and “applies to all
inmate suits about prison life, whether they involve general circumstances
or particular
episodes.” Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). Section 1997e(
a) requires “proper
exhaustion,” which “means using all steps that the agency holds out, and
doing so properly (so
that the agency addresses the issues on the merits).” Woodford v. Ngo, 548
U.S. 81, 90 (2006)
(internal quotation marks omitted) (emphasis in original).
The grievance procedure provided by DOCS consists of three stages. First,
a grievance is
filed with the Inmate Grievance Resolution Committee (“IGRC”). Next, if
the decision by the
IGRC is adverse to the inmate, the inmate may appeal the decision to the
prison superintendent.
Finally, the inmate may appeal the superintendent’s decision to the
Central Office Review
Committee (“CORC”). Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006).
The IGP sets time
limits for each action in the grievance process. According to the rules in
effect in 1998, when the
conduct at issue occurred, the inmate’s grievance must have been filed
with the IGRC within
fourteen days of the incident. The IGRC clerk would then number and log
each grievance at the
time of receipt. If the IGRC failed to reach an informal resolution with
the complainant, the
IGRC was then required to hold a hearing within seven days after receipt
of the grievance and
would render a decision within two working days of the hearing. Upon
receiving the IGRC’s
written response, the inmate had four days to appeal to the superintendent.
Upon receiving the
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superintendent’s written response, the inmate had four days to appeal to
the CORC. Matters not
decided within the time limits could be appealed to the next step.
On November 29, 1999, Hernández filed the instant suit. His complaint
asserted that he
utilized the state prisoner grievance procedure by writing to the
Commissioner of DOCS, the
New York State Police, and the Dutchess County District Attorney. The
district court held a
conference to discuss whether Hernández had exhausted administrative
remedies and, after the
conference, ordered Hernández to “submit a sworn affidavit explaining the
administrative
remedies that he sought and attaching all letters submitted in connection
with those requests.”
Hernández responded by affidavit, dated May 10, 2002, that he wrote
letters on November 6,
1998 to the Commissioner of DOCS and the New York State Police, on
November 16, 1998 to
the Dutchess County District Attorney, and at some point to Chief Judge
Griesa of the United
States District Court for the Southern District of New York. He also
argued in the affidavit that
his letter to the Commissioner sufficed to exhaust administrative remedies.
He argued further
that the PLRA’s exhaustion requirement did not apply to his case because
the Supreme Court’s
2002 decision in Porter, 534 U.S. 516, that exhaustion was required for
suits involving isolated
episodes as well as those involving general conditions, should not apply
retroactively.
On June 28, 2002, the defendants filed a motion for judgment on the
pleadings pursuant
to Rule 12(c) arguing that Hernández failed to exhaust administrative
remedies because he failed
to file grievances through the IGP. In an affidavit dated July 29, 2002,
Hernández stated that he
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did file a grievance on November 10, 1998, but never received a response
or a grievance number.
He attached to the affidavit a handwritten “Inmate Grievance Complaint”
dated November 6,
1998. The affidavit also stated that he wrote to the Clinton Correctional
Facility inmate
grievance office on February 15, 2000 requesting a response to his
grievance, but never received
one. Hernández explained that he failed to mention the grievance in his
complaint because he
never received a response to his grievance and because, at the time he
filed suit, “it was held that
exhaustion of administrative remedies was not required for prisoners[’]
claims of assault or
excessive force.” Finally, Hernández claimed to have “original copies” of
additional grievance
materials but stated that he could not submit them to the court because he
could not “pay for
copies.”
In an order dated September 29, 2003, the district court granted the
defendants’ motion
for judgment on the pleadings, concluding that the Porter rule applied
retroactively to
Hernández’s claims and that the materials submitted by Hernández did not
serve to exhaust his
administrative remedies. Hernández v. Coffey, No. 99 Civ. 11615 (WHP),
2003 WL 22241431,
at *2-3 (S.D.N.Y. Sept. 29, 2003). The district court did not decide
whether the grievance
submitted with Hernández’s second affidavit was legitimate because, the
court determined, even
if Hernández had filed a grievance, he had not exhausted his appeals as
required by the IGP. Id.
at *4.
On Hernández’s appeal, we vacated the district court’s order and remanded
for
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consideration of three issues identified by our decisions in Giano v.
Goord, 380 F.3d 670 (2d Cir.
2004), and Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004): (1) the
extent to which
administrative remedies were in fact available to the plaintiff; (2)
whether the defendants should
be estopped from asserting a failure to exhaust; and (3) whether the
plaintiff was justified in
failing to exhaust his administrative remedies. Hernández v. Coffey, No.
03-0303-pr (2d Cir.
Jan. 20, 2005).
On remand, the district court considered only the parties’ original 2002
submissions and
did not permit any additional discovery, briefing, or evidentiary
submissions. In an order dated
July 26, 2006, the court converted the defendants’ motion for judgment on
the pleadings to a
motion for summary judgment and granted it. Hernández v. Coffey, No. 99
Civ. 11615 (WHP),
2006 WL 2109465, at *2, *4 (S.D.N.Y. July 26, 2006). The court determined
that the lack of
departmental response to Hernández’s grievance did not excuse his failure
to appeal as required
by the IGP, so that administrative remedies were in fact available to him.
Id. at *3. The court
further found that Hernández identified no conduct by the defendants that
prevented him from
pursuing his IGP appeals. Id. at *4. Finally, the court concluded that the
plaintiff’s belief that
exhaustion was not required did not justify his failure to exhaust because
the rule in Porter
“applies retroactively to prisoners such as Hernandez who filed their
suits prior to the Supreme
Court’s pronouncement.” Id. (internal quotation marks omitted).
Hernández again appealed, and on April 25, 2008, we issued an order for
the appointment
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of counsel. Hernandez v. Coffey, No. 06-4246-pr (2d Cir. Apr. 25, 2008).
On October 2, 2008,
Hernández moved to supplement the record with four documents: a grievance
he submitted to the
Superintendent of the Clinton Correctional Facility dated November 18,
1998; two letters to the
Superintendent dated November 17 and 28, 1998; and a letter to the
Director of the IGP dated
May 22, 1999.1
DISCUSSION
Rule 12(d) of the Federal Rules of Civil Procedure provides, “If, on a
motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court,
the motion must be treated as one for summary judgment under Rule 56. All
parties must be
given a reasonable opportunity to present all the material that is
pertinent to the motion.”
Accordingly, a district court acts properly in converting a motion for
judgment on the pleadings
into a motion for summary judgment when the motion presents matters
outside the pleadings, but
the rule requires that the court give “sufficient notice to an opposing
party and an opportunity for
that party to respond.” Groden v. Random House, Inc., 61 F.3d 1045, 1052 (
2d Cir. 1995).
Ordinarily, formal notice is not required where a party “should reasonably
have
recognized the possibility that the motion might be converted into one for
summary judgment
[and] was [neither] taken by surprise [nor] deprived of a reasonable
opportunity to meet facts
The plaintiff’s motion to supplement the record was initially submitted to
a motions
panel of this court, which reserved decision and referred the motion to
the panel that would hear
the appeal.
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outside the pleadings.” Villante v. Dep’t of Corrections of City of New
York, 786 F.2d 516, 521
(2d Cir. 1986) (internal quotation marks omitted) (quoting In re G. & A.
Books, Inc., 770 F.2d
288, 295 (2d Cir. 1985)). In the case of a pro se party, however, “[n]
otice is particularly
important” because the pro se litigant “may be unaware of the consequences
of his failure to
offer evidence bearing on triable issues.” Beacon Enters., Inc. v. Menzies,
715 F.2d 757, 767 (2d
Cir. 1983). Accordingly, pro se parties must have “unequivocal” notice of
the meaning and
consequences of conversion to summary judgment. Id.
Thus, in Beacon Enterprises, we reversed the district court’s grant of
summary judgment,
finding that the district court erred in failing to give prior notice to a
pro se defendant before
converting her motion to dismiss to a motion for summary judgment. Id. at
767-68; see also
Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999) (“[T]he
failure of a district court to
apprise pro se litigants of the consequences of failing to respond to a
motion for summary
judgment is ordinarily grounds for reversal.” (internal quotation marks
omitted) (quoting Ruotolo
v. IRS, 28 F.3d 6, 8 (2d Cir. 1994))).
In McPherson v. Coombe, 174 F.3d 276 (2d Cir. 1999), we elaborated on the
requirements of notice to pro se litigants facing a motion for summary
judgment. We ruled that,
“absent a clear indication that the pro se litigant understands the nature
and consequences of Rule
56 . . . he or she must be so informed by the movant in the notice of
motion or, failing that, by the
district court.” Id. at 282. We therefore reversed a grant of summary
judgment against a pro
se plaintiff where the defendant’s motion papers did not explain the
nature of summary judgment
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and there was no indication that the district court provided such notice.
We found no other “clear
indication” that the plaintiff understood the nature and consequences of
summary judgment, even
though the pro se plaintiff mentioned Rule 56 in his opposition papers and
stated that he would
provide supporting affidavits (but never did). Id. at 281 (“[W]here the
proper notice has not been
given, the mere fact that the pro se litigant has made some response to
the motion for summary
judgment is not dispositive where neither his response nor other parts of
the record reveal that he
understood the nature of the summary judgment process.” (internal
quotation marks omitted)
(quoting Vital, 168 F.3d at 621)).
So far as appears in the record, neither the district court, nor the
defendants, ever
explained to Hernández the nature or consequences of summary judgment.
There is also nothing
in the record to suggest that Hernández independently understood the
summary judgment
process. The district court ruled that it was unnecessary to provide
notice of the conversion of
the motion to one for summary judgment because Hernández had already
submitted “extensive
affidavits with supporting documents addressing exhaustion.” Hernández,
2006 WL 2109465, at
*2.2
The defendants argue that Hernández’s submission of his initial affidavit
in response to the
The district court relied on two district court opinions for the principle
that explaining
summary judgment to a pro se party “is unnecessary in PLRA cases where
both parties have
submitted materials outside the pleadings and would not be surprised by
conversion.”
Hernández, 2006 WL 2109465, at *2 (citing Collins v. Goord, 438 F. Supp.
2d 399, 412
(S.D.N.Y. 2006); Curry v. Mazzuca, No. 05 Civ. 1542 (NRB), 2006 WL 250487,
at *4-5
(S.D.N.Y. Feb. 2, 2006)). These cases are inapposite because the
defendants in each case
provided notice pursuant to S.D.N.Y. Civil Rule 12.1 explaining that their
motions to dismiss
might be converted into motions for summary judgment for purposes of
determining exhaustion,
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district court’s order to “submit a sworn affidavit explaining the
administrative remedies that he
sought and attaching all letters submitted in connection with those
requests,” together with
Hernández’s affidavit in response to their motion for judgment on the
pleadings, indicate that
Hernández understood the summary judgment process and had sufficient
opportunity to oppose
the motion. We disagree. Hernández’s submission of these affidavits shows
that he could
respond to a district court order, but they do not show that he understood
summary judgment in
the way required by McPherson and Vital. There is no indication that
Hernández understood that
his affidavits would be his last chance to submit evidence related to
exhaustion. Hernández
submitted his affidavits in 2002, prior to this court’s remand. Although
our subsequent order of
remand raised three new issues, the district court did not permit any
additional briefing or
submissions. Nor did the district court provide Hernández the opportunity
to seek discovery
from DOCS.
In sum, before the court converted the defendants’ motion for judgment on
the pleadings
into a motion for summary judgment and granted that motion, extinguishing
the pro se plaintiff’s
claim, the plaintiff was entitled to (i) an opportunity to take relevant
discovery and to submit any
evidence relevant to the issues raised by the motion, and (ii) absent a
clear indication that he
and, further, explaining what the plaintiff had to do to oppose summary
judgment. See Collins,
438 F. Supp. 2d at 412 n.14; Curry, 2006 WL 250487, at *5; see also Rivera
v. Pataki, No. 04
Civ. 1286 (MBM), 2005 WL 407710, at *7 (S.D.N.Y. Feb. 7, 2005) (converting
to summary
judgment where defendant provided notice); McCullough v. Burroughs, No. 04
Civ. 3216 (FB)
(LB), 2005 WL 3164248, at *1 (E.D.N.Y. Nov. 29, 2005) (same). The
defendants do not
contend they gave any such explanations to Hernández in the instant case.
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already possessed such understanding, an explanation of the consequence of
a grant of summary
judgment, as well as of what he could do to defeat the motion. We
therefore vacate the judgment
and remand for additional proceedings.3
CONCLUSION
The judgment of the district court is VACATED, and the case is REMANDED
for further
proceedings consistent with this opinion.4
Our ruling in no way suggests that we agree with Hernández’s arguments
regarding
exhaustion or justification for failure to exhaust. We leave it to the
district court to consider
these questions in the first instance after Hernández has had the
opportunity to take relevant
discovery and submit relevant evidence and – if he returns to pro se
status when proceedings
resume in the district court – has received the explanations to which he
is entitled.
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3
Hernández’s motion to supplement the record on appeal is denied as moot.
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