Giano v. Goord

Citation380 F.3d 670
Decision Date18 August 2004
Docket NumberNo. 02-0105.,02-0105.
PartiesJulio GIANO, Plaintiff-Appellant, v. Glen GOORD, Commissioner Department of Correctional Services, Donald Selsky, Director Special Housing Programs, Frank Irvin, Superintendent, Wende Correctional Facility, Roy Henneberg, Deputy Supt. of Security, Jeffrey Skinner, Captain, Wende Correctional Facility, Walter Shannon, Lieutenant, Wende Correctional Facility, James Burke, Sergeant, Wende Correctional Facility, Timothy Jeziorski, Sergeant, Wende Correctional Facility, and Thomas Lamb, Michael Bishop, Gary Keohane, E. McEvoy, Howard Brennan, John Barbera, and John Doe, Correctional Officers, Wende Correctional Facility, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Appeal from the United States District Court for the Western District of New York, Charles J. Siragusa, J.

COPYRIGHT MATERIAL OMITTED

Arthur S. Linker, Katten, Muchin, Zavis Rosenman, New York, NY (Elena Paraskevas-Thadani, on the brief), for Plaintiff-Appellant.

Martin A. Hotvet, Assistant Solicitor General, for Eliot Spitzer, Attorney General, State of New York, Albany, NY (Caitlin Halligan, Solicitor General; Michael S. Belohlavek, Deputy Solicitor General; David Lawrence III, Assistant Solicitor General; Sachin Pandya, Assistant Solicitor General, on the brief), for Defendants-Appellees.

Before: CALABRESI, Circuit Judge, and PAULEY, District Judge.1

CALABRESI, Circuit Judge.

Julio Giano, an inmate at Wende Correctional Facility ("Wende") in Alden, New York, filed suit in the United States District Court for the Western District of New York, alleging that, in violation of 42 U.S.C. § 1983, the defendants, various state and Wende officials, retaliated against him for filing an earlier lawsuit against prison authorities and for prevailing in a disciplinary proceeding. The district court (Siragusa, J.) dismissed Giano's pro se complaint, on the ground that the plaintiff had failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Following our holding in Lawrence v. Goord, 238 F.3d 182 (2d Cir.2001), that the PLRA did not require plaintiffs to exhaust retaliation claims, we vacated the district court's decision. Giano v. Goord, 250 F.3d 146, 150 (2d Cir.2001). But the Supreme Court subsequently held that all claims relating to "prison conditions," including retaliation claims, are subject to the PLRA's exhaustion requirement. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). And so, on remand, the district court adhered to its earlier dismissal of Giano's claims for failure to exhaust.

Giano appealed that dismissal, and his suit was argued alongside several other cases that concern the nature and scope of the PLRA's exhaustion requirement: Abney v. New York Dep't of Corr. Servs., 380 F.3d 663, 2004 WL 1842647; Hemphill v. State of New York, 380 F.3d 680, 2004 WL 1842658; Johnson v. Testman, 380 F.3d 691, 2004 WL 1842669; and Ortiz v. McBride, 380 F.3d 649, 2004 WL 1842644. Based on the following principles, as well as those articulated in our opinions in these cases, we vacate the district court's dismissal of Giano's complaint, and remand the case for further proceedings.

I. Background

For purposes of this appeal, we describe the facts as alleged by Giano. On September 30, 1996, Giano submitted to a urine test pursuant to prison authorities' orders. Sometime between September 30 and October 3, six of the defendants tampered with and contaminated Giano's urine sample, causing the sample to test positive for marijuana, with the result that a misbehavior report against Giano was issued on October 4. According to Giano, the defendants took these actions in retaliation for his prior filing of a lawsuit against prison officials.2 Giano also claimed that defendant Corrections Officer ("CO") E. McEvoy, who had been assigned to assist Giano in his defense, conspired with others to deprive Giano of the opportunity to seek and obtain exculpatory information.

At the ensuing disciplinary hearing, several of the defendants allegedly presented false documents and testimony against Giano. Giano challenged this evidence, and claims that based on "evidence that proved acts of impropriety on the part of staff" and "a series of procedural errors committed during the testing of the sample," he succeeded in getting the drug charge against him dismissed. Giano further alleges that, after the hearing concluded, McEvoy threatened to "get even" with him for having filed complaints about the way in which McEvoy had performed his duties as Giano's defense assistant. McEvoy is reported by Giano to have said, "you better be real careful for this is not the end. I work with the officers who test urines and you're not going to make fools of us." McEvoy also purportedly told Giano that he had been framed "for something having to do with a law suit."

According to Giano, retaliation by the defendants continued in November 1996, when Giano participated in a 72-hour trailer visit as part of the prison's family reunion program. The program required inmates to undergo drug testing before and after each visit, and a positive drug test would result in suspension from the program for one year. Following Giano's trailer visit, defendant Gary Keohane, a CO, allegedly ordered Giano to provide a urine sample in a plastic cup and then placed the sample into a paper bag containing another inmate's sample. Giano claims that Keohane did not put a tamper-proof seal on the cup, nor did he tell Giano where the sample would be stored or who would be testing it. He asserts that Keohane and three others contaminated the sample and issued a misbehavior report, in retaliation for Giano's earlier lawsuit and for his victory in the first disciplinary proceeding. A second disciplinary hearing convened, and Giano claims that the defendants again presented false evidence and false testimony against him. This time he was found guilty of the charge, and in addition to a one-year suspension from family reunion visits, he was sentenced to 30 days in keeplock, without privileges, as a penalty.

Giano appealed the disciplinary hearing's determination to Glen Goord, the acting Department of Correctional Services ("DOCS") commissioner. In a letter to Goord, Giano provided a detailed account of the asserted wrongdoing by defendants before and during the second disciplinary hearing. He stated in the letter:

The misbehavior report, dated 11/20/96, alleged that the urine sample I provided after a family reunion visit with my mother tested positive for use of cannibinoid. It was my defense that, and based upon a pending civil action against fourteen DOCS employees for inter alia retaliatory conduct and treatment... as well as a previous hearing for the same charge a month earlier which was dismissed based upon the presentation of evidence that proved acts of impropriety on the part of staff, my urine sample was deliberately tampered with by an employee at Wende.

He added:

At the commencement of the hearing, I made a formal objection to have the hearing officer ... recuse himself as hearing officer. It was my argument that, and since my defense was that correctional staff deliberately tampered with my urine sample, in the capacity of supervisor and responsibility for the conduct of staff he could not act in an impartial manner.

In the letter, Giano went on to explain, in detail, the circumstances that led him to believe that the urine sample was tampered with. He also contended that defendants denied him the benefit of testimony from a material witness, that the hearing officer was demonstrably biased, and that no proper foundation had been laid for the test results. He requested that the drug use charge be "reversed, dismissed, and expunged from [his] records." On February 11, 1997, the commissioner, ruling against Giano, affirmed the result of the second disciplinary hearing.3

Giano's complaint included ten claims, four of which are relevant to this appeal. In substance, he alleged that, in retaliation for his filing of an earlier lawsuit and for his having opposed the disciplinary charges against him, the defendants tampered with his urine samples and falsified some of the documentary and testimonial evidence used against Giano at the disciplinary hearings. On December 1, 1997, prior to service of Giano's complaint on any of the defendants, the district court (Arcara, J.) issued a sua sponte order requiring Giano to detail his efforts to exhaust his administrative remedies. In response, Giano submitted a statement asserting that he had pursued his retaliation claims in the disciplinary process, and that this should have been sufficient to exhaust his remedies. He argued that New York prison regulations and DOCS Directive 4040, which state that disciplinary decisions and dispositions are non-grievable, prohibited him from filing a grievance to redress the harm defendants caused. He also claimed that any other avenue of appeal would have been futile because his earlier complaints had not been investigated.

In June 1998, the district court (Siragusa, J.) dismissed Giano's complaint, concluding that he had failed to exhaust his available administrative remedies as required by the PLRA. The court ruled that although state regulations may have barred Giano from filing a grievance protesting the outcome of the disciplinary proceeding, the inmate grievance procedures nevertheless were the appropriate venue for challenging the acts of retaliation that Giano alleged in his complaint. The contamination of his urine samples, breaches of security during the drug testing process, the filing of false misbehavior reports, the verbal threats by McEvoy, and the defendants' alleged falsification of testimonial and documentary evidence were all grievable through DOCS grievance procedures, the district court held. Giano's...

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    ...that the PLRA's proper exhaustion requirement is not absolute. See Spruill v. Gillis, 372 F.3d 218, 232 (C.A.3 2004); Giano v. Goord, 380 F.3d 670, 677 (C.A.2 2004). In my view, on remand, the lower court should similarly consider any challenges that respondent may have concerning whether h......
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