18-2781
Dickinson v. York
                         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 5th day of October, two thousand twenty.

        PRESENT: DEBRA ANN LIVINGSTON,
                                 Chief Judge.
                         RICHARD J. SULLIVAN,
                         WILLIAM J. NARDINI,
                                 Circuit Judges.
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        SHANNON C. DICKINSON,

                         Plaintiff-Appellant,

                    v.                                                       No. 18-2781

        NATHAN H. YORK, WARREN COUNTY
        SHERIFF, WAYNE FARMER, SERGEANT;
        WARREN COUNTY CORRECTIONAL
        FACILITY, OFFICER MASON, OFFICER GREEN,
        OFFICER REYNOLDS, OFFICER SMITH,
        OFFICER POND, OFFICER HARPP, OFFICER
TROTTIER, FKA OFFICER TROTIER, OFFICER
SLATER, OFFICER CURTIS, OFFICER
WITTENBURG, FKA OFFICER WITTENBURG,
OFFICER LEMELIN, FKA OFFICER LEMLON,
OFFICER SORENSEN, FKA OFFICER
SORENSON, OFFICER MATTISON, OFFICER
ALLISON, OFFICER HILL, OFFICER
VANDENBURG, OFFICER ELDRIDGE,
OFFICER HOERTER, SGT. KEAYS, LT.
CLIFFORD, LT. MADAY, WARREN COUNTY

                Defendants-Appellees,

TOURGE, GRIEVANCE COORDINATOR,
WARREN COUNTY C.F.,

                Defendants.

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FOR APPELLANT:                                   OMAR ALI KHAN (Kelsey D.
                                                 Russell, Steven W. Shuldman, on the
                                                 brief), Wilmer Cutler Pickering Hale
                                                 and Dorr LLP, New York, NY.

FOR DEFENDANTS-APPELLEES:                        LORAINE CLARE JELINEK (Gregg
                                                 Tyler Johnson, on the brief), Johnson &
                                                 Laws, LLC, Clifton Park, NY.


FOR AMICUS CURIAE
THE LEGAL AID SOCIETY:                           Robert M. Quackenbush, The Legal
                                                 Aid Society, New York, NY.

FOR AMICUS CURIAE
PRISONERS’ LEGAL




                                             2
      SERVICES OF NEW YORK:                    James M. Bogin, Prisoners’ Legal
                                               Services of New York, Albany, NY.


      Appeal from a judgment of the United States District Court for the Northern

District of New York (Lawrence E. Kahn, Judge).

      UPON       DUE     CONSIDERATION,            IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

REVERSED and REMANDED for further proceedings.

      Plaintiff-Appellant Shannon Dickinson appeals from a decision of the

United States District Court for the Northern District of New York (Kahn, J.)

granting summary judgment in favor of Defendants-Appellees on Dickinson’s

claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq.; section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; the New York State

Constitution; and 42 U.S.C. § 1983 to redress violations of his rights under the

Eighth and Fourteenth Amendments. Dickinson, a paraplegic who has been

confined to a wheelchair since 1991, filed suit alleging that Defendants denied him

(1) appropriate wheelchair-accessible transportation and (2) an accommodation to

the standard-issue uniform, which was unsafe to use in a wheelchair. On appeal,

Dickinson argues that the district court erred in granting summary judgment on

his claims for failure to exhaust administrative remedies. We agree.


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                                I. Standard of Review


      We review the district court’s grant of summary judgment de novo. Williams

v. Corr. Officer Priatno, 829 F.3d 118, 121–22 (2d Cir. 2016). Summary judgment

should be granted “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In granting summary judgment, the court is “required to view the

evidence in the light most favorable to the party opposing summary judgment

[and] to draw all reasonable inferences in favor of that party.” Weyant v. Okst, 101

F.3d 845, 854 (2d Cir. 1996).


                                 II. Applicable Law


      The Prison Litigation Reform Act (“PLRA”) requires an inmate to exhaust

all “available” administrative remedies prior to bringing an action in federal court.

42 U.S.C. § 1997e(a). 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) the scheme is “so opaque that it

becomes, practically speaking, incapable of use,” meaning that “some mechanism

exists to provide relief, but no ordinary prisoner can discern or navigate it;” or

(3) “when prison administrators thwart inmates from taking advantage of a



                                          4
grievance process through machination, misrepresentation, or intimidation.” Ross

v. Blake, 136 S. Ct. 1850, 1859–60 (2016). “[I]t is the prison’s requirements, and not

the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S.

199, 218 (2007).


      At the time of the events relevant to this appeal, Dickinson was a pretrial

detainee housed in Warren County Correctional Facility (“WCCF”).              Title 9,

Subtitle AA, Chapter I of the New York Codes, Rules and Regulations (“NYCRR”)

outlines the “Minimum Standards and Regulations for Management of County

Jails and Penitentiaries,” including those that apply to a formal inmate grievance

procedure. See NYCRR tit. 9 § 7032.1–.12. Under those regulations, “the chief

administrative officer of each local correctional facility shall establish, implement

and maintain a formal inmate grievance program,” id. § 7032.1, which “shall

include,” among other things, “a detailed description of grievance program

operations including steps, timeliness, investigative processes and available

internal and external appeal procedures,” id. § 7032.3(b).


      Title 9 of the NYCRR further provides that, under any facility program, an

inmate must “file a grievance within five days of the date of the act or occurrence

giving rise to the grievance.” Id. § 7032.4(d). Within five business days of receipt,



                                          5
the “grievance coordinator shall issue a written determination.” Id. § 7032.4(i).

The inmate has two business days after receipt of the grievance coordinator’s

determination to appeal to the chief administrative officer, id. § 7032.4(j), after

which the chief administrative officer has five business days to issue a

determination, id. § 7032.4(k).                For “any grievance denied by the facility

administrator,” the inmate has three business days to indicate to the grievance

coordinator that he seeks to appeal to the State Commission of Correction, and the

grievance coordinator then has three business days to submit the appeal to the

Commission’s Citizens’ Policy and Complaint Review Council (“CPCRC”). Id.

§ 7032.5. Subject to certain exceptions not relevant to this appeal, the CPCRC

“shall issue a written determination to the appeal within 45 business days of

receipt.” Id. § 7032.5(d)(1). 1




1 In a supplemental letter to the Court submitted after oral argument, Defendants argue – for the first time
and without explanation – that Dickinson failed to exhaust administrative remedies under Title 7 of the
NYCRR. But Title 7 “constitutes the rules and regulations” for “State Department of Correctional Services,”
NYCRR tit. 7 §§ 1.0(a), 1.5(a) (emphasis added), not local facilities. The administrative bodies involved and
the timelines for review differ between Title 7 and Title 9, compare id. § 701.5 with NYCRR tit. 9 § 7032, thus
suggesting that the two cannot both apply to a given case. To the extent Defendants now argue that Title 7
applies, they have waived that argument. See McCarthy v. S.E.C., 406 F.3d 179, 186 (2d Cir. 2005) (“We think
it reasonable to hold appellate counsel to a standard that obliges a lawyer to include his most cogent
arguments in his opening brief, upon pain of otherwise finding them waived.”).


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                                          III. Discussion

        A. Dickinson Exhausted His Grievance Regarding His Entitlement to
                      Wheelchair-Accessible Transportation
        Dickinson filed a grievance on November 12, 2015, contending that WCCF

violated the ADA by taking him to court appearances and off-site medical visits in

a regular patrol car rather than a wheelchair-accessible van.                          The grievance

coordinator denied Dickinson’s grievance on November 16. Dickinson appealed,

and on November 17, the chief administrative officer agreed with the grievance

coordinator’s decision to deny the grievance. Dickinson appealed to the CPCRC

on November 18. Dickinson filed suit on February 10, 2016 – 55 business days

after he appealed to the CPCRC. 2 At the time, his appeal before the CPCRC was

still pending. The CPCRC denied his appeal on June 9, 2016.


        In United States v. Hayes, No. 19-650, filed simultaneously with this summary

order, we held that an inmate exhausts administrative remedies under the New

York State Department of Corrections and Community Supervision Inmate

Grievance Procedure where he follows each step of the process but the




2It is not clear from the record when the CPCRC received the appeal, which starts the 45-day deadline under
the regulations. The magistrate judge assumed that the CPCRC received Dickinson’s appeal on November
23, the last of the three business days to submit the appeal. Defendants do not contest this conclusion on
appeal. Therefore, assuming this to be true, the CPCRC’s response was significantly after the 45-day
deadline to respond.


                                                    7
administrative body fails to respond to his final appeal within the time allocated

under the regulations. Just as with the state administrative scheme at issue in

Hayes, Title 9 requires that the CPCRC respond to an appeal within a limited time

period. See NYCCR tit. 9 § 7032.5(d)(1) (“[T]he [CPCRC] shall issue a written

determination to the appeal within 45 business days of receipt.”). Because the

CPCRC failed to do so here, and because the regulations do not provide any other

avenue for relief, we find that Dickinson has exhausted his administrative

remedies. 3


         B. Dickinson Exhausted Administrative Remedies with Respect to His
                          Wheelchair-Safe Clothing Grievance
         On September 17, 2015, Dickinson submitted a grievance claiming that the

standard one-piece jumpsuit uniform was inadequate, since he could not wear it

properly and the loose-hanging material would catch on his chair. Sergeant Spring

promptly accepted his grievance, and informed Dickinson that the Correction


3 While Title 9 provides only the “Minimum Standards and Regulations” that a county facility must
implement in adopting a formal grievance program, Defendants have failed to submit any evidence of the
actual grievance program that WCCF has implemented. See NYCRR tit. 9 § 7032.3; see also Hubbs v. Suffolk
Cty. Sheriff’s Dep’t, 788 F.3d 54, 62 (2d Cir. 2015) (“The burden . . . is on the defendant to establish at the
outset that an administrative remedy was ‘available’ in the sense that a grievance policy or procedure
existed and covered the dispute at hand.”). The parties nonetheless appear to have conceded that the
minimum standards in Title 9 apply. Therefore, for the purposes of this appeal, we assume that the
grievance program in place at WCCF incorporates the procedures outlined in Title 9. And while it is
possible that WCCF may have additional procedural mechanisms relevant to this appeal, we conclude that
Defendants have forfeited any such argument. See Hemphill v. New York, 380 F.3d 680, 686, 688–89 (2d Cir.
2004) (non-exhaustion is an affirmative defense that can be forfeited), overruled on other grounds by Ross, 136
S. Ct. 1850.


                                                      8
Administration was in the process of ordering him a two-piece uniform.

Approximately one month later, having still not received his new uniform,

Dickinson filed another grievance to inquire about its status. After Sergeant

Spring told Dickinson that WCCF had ordered the uniform and that it would

arrive soon, Dickinson voluntarily voided his second grievance. As an interim

measure, Dickinson was given a two-piece uniform from a neighboring facility.

Ultimately, Dickinson waited for his own new uniform for four months, two of

which were after WCCF accepted his grievance.

       “[W]here prison regulations fail to provide a remedy for implementation

failures, prisoners who receive a favorable outcome to their initial grievance that

remains unimplemented have fully exhausted their available remedies.” Ruggiero

v. City of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (citing Abney v. McGinnis, 380 F.3d

663, 669 (2d Cir. 2004)). Because the regulations here do not provide a remedy for

an inmate to appeal an implementation failure, we conclude that Dickinson

exhausted his administrative remedies. See NYCRR tit. 9 § 7032.5(a) (stating only

that an inmate “may appeal any grievance denied by the facility administrator, in

whole or in part, to the [CPCRC]” (emphasis added)); see also Ruggiero, 467 F.3d at

176.




                                          9
                                CONCLUSION


      Accordingly, for the reasons stated above, we REVERSE the grant of

summary judgment in favor of Defendants-Appellees on Dickinson’s claims, and

REMAND to the district court for further proceedings.



                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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