Wing v. Myers

Background

Dusty Alanson James Wing, proceeding without a lawyer and without prepaying court fees, alleged that on October 8, 2018, while in the custody of the New York State Department of Corrections and Community Supervision at Woodbourne Correctional Facility, Correction Officer Myers and two inmates attacked him while Sergeants Ryan Bowers and Douglas DePaolo watched. The two inmates were previously dismissed under the federal statute governing dismissal of certain claims filed without prepaying fees.

In a prior related proceeding, the court denied the defendants’ motion to dismiss based on failure to exhaust administrative remedies and ordered limited discovery about whether Wing had filed a grievance and whether the grievance process was available to him. The defendants later moved for summary judgment on exhaustion. Their first motion was denied without prejudice because they had not filed proof showing how and when they served Wing. They re-filed the motion, and Wing submitted a two-page letter that the court treated as his opposition.

Legal standard

Summary judgment is appropriate when the evidence shows no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. The court must view reasonable inferences in favor of the nonmoving party, but unsupported or contradictory statements cannot create a genuine factual dispute. The court also considered Wing’s self-represented status and read his filings generously, while noting that this status did not excuse him from producing evidence sufficient to defeat summary judgment.

The Prison Litigation Reform Act requires a prisoner to use available administrative remedies before bringing an action about prison conditions under federal law, including an action under 42 U.S.C. § 1983. In general, the Department of Corrections and Community Supervision grievance process required an inmate to file a grievance with the facility-level grievance committee within 21 days, followed by two possible levels of appeal. Exhaustion is not required when the grievance process is unavailable, including when officials thwart its use through intimidation, misrepresentation, or manipulation.

Court’s analysis

The court found no genuine dispute that Wing never filed a grievance about the alleged attack. It also found that the grievance process was available. Wing gave conflicting explanations for not filing: that a person called “Reid” did not return to help him; that he did not know he could file at Sullivan Correctional Facility about an event at Woodbourne; that he lacked the proper form; and that he feared retaliation.

The court concluded that these conflicting explanations were insufficient to defeat summary judgment. It also reasoned that Reid’s failure to return did not show that prison administrators had made the process unavailable, particularly because Wing knew after arriving at Sullivan that he had not filed a grievance and still had approximately 11 days to begin the process. The court further stated that New York’s rules allowed a grievance to be submitted on plain paper, that ignorance of the process did not make it unavailable on these facts, and that Wing’s generalized and insufficiently specific fear of retaliation did not establish unavailability.

Ruling and disposition

Judge Halpern granted the defendants’ motion for summary judgment. The court concluded that Wing had not exhausted his administrative remedies before filing the action and that those remedies were available to him. The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied permission to appeal without prepaying the filing fees. The clerk was directed to terminate the pending motion, mail the order to Wing, and close the case.