Brownell v. Krom

• Decision Date: 03 May 2006
• Docket Number: Docket No. 04-6364-PR.
• Citation: 446 F.3d 305
• Parties: Hardy BROWNELL, Plaintiff-Appellant, v. Robert KROM, Scott Mentnech, Ross Loucks, Richard Bivens, Roger Specht, and C. Ferrafola, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 305

446 F.3d 305

Hardy BROWNELL, Plaintiff-Appellant, v. Robert KROM, Scott Mentnech, Ross Loucks, Richard Bivens, Roger Specht, and C. Ferrafola, Defendants-Appellees.

Docket No. 04-6364-PR.

United States Court of Appeals, Second Circuit.

Argued: August 25, 2005.

Decided: May 3, 2006.

James Bogin (Karen Murtagh-Monks, Michael E. Cassidy, on the brief), Steven R. Banks & John Boston, The Legal Aid Society, New York, New York, of counsel, for Plaintiff-Appellant.

David Lawrence III, Assistant Solicitor General, Michael S. Belohlavek, Senior Counsel (Eliot Spitzer, Attorney General

of the State of New York) New York, New York, for Defendants-Appellees.

Before: WALKER, Chief Judge, JACOBS and HALL, Circuit Judges.

HALL, Circuit Judge.

Hardy Brownell, Jr., an inmate at Shawangunk Correctional Facility ("Shawangunk") in Wallkill, New York, filed suit under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York, alleging that defendant corrections officers denied his right of access to the courts by intentionally losing his legal documents and other personal items while transferring him between correctional facilities. Brownell contends that the defendants' failure to account properly for his lost legal documents has precluded him from filing a timely habeas corpus petition. Consequently, Brownell claims that he has been denied access to the courts in violation of the First, Fifth, and Fourteenth Amendments. In an order entered November 8, 2004, the district court (McKenna, J.) granted defendants' motion for summary judgment, finding that Brownell had not exhausted his claims as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).

Because we find that special circumstances justified Brownell's failure to exhaust and that administrative remedies are no longer available to him, we reverse the order granting summary judgment and remand this case to the district court for proceedings on the merits of the § 1983 complaint.

Background

I. Brownell's Prison Transfers and the Loss of His Property

In June 2000, Brownell was incarcerated at Woodbourne Correctional Facility ("Woodbourne"). On June 9, 2000, Woodbourne corrections officers confronted Brownell for unauthorized possession of a corrections officer's photograph and Social Security number. Prison officials then moved Brownell and "certain personal and legal items" to the Special Housing Unit ("SHU") while his cell was searched for additional contraband. On Sergeant Krom's order, Corrections Officers Mentnech and Loucks searched Brownell's cell, uncovering three additional corrections officers' identification cards with Brownell's picture on each of them. That same day, Brownell was transferred to Eastern Correctional Facility ("Eastern").

In anticipation of transferring Brownell to Eastern, Mentnech and Loucks packed the contents of Brownell's cell (excluding the personal effects Brownell took with him to the SHU) in thirteen bags. With the assistance of another officer (not a party to this lawsuit), Corrections Officer Bivins searched and re-packed Brownell's thirteen bags. Bivins also filled one more bag with Brownell's remaining personal effects from the SHU. Bivins completed a Personal Property Transferred inventory form indicating that Brownell was leaving Woodbourne with fourteen property bags. Officers Bivins and Specht transported Brownell from Woodbourne to Eastern, and Officer Bivens certified the arrival of fourteen property bags at Eastern. Corrections Officer Ferrafolo received Brownell at Eastern and confirmed by written receipt that Brownell had arrived with fourteen bags of property. Brownell is himself unsure whether all his bags arrived there, claiming that he did not have access to or see his property while at Eastern.

Brownell claims that five weeks later, on July 14, 2000, he was transferred to Southport Correctional Facility ("Southport") with only three bags. On September 16, 2000, Brownell was transferred with three property bags from Southport to Shawangunk, where he remains incarcerated.

II. The Administrative Process

A. Lost Property Reimbursement Claim

Upon learning on July 14, 2000, that eleven of his bags were missing, Brownell claims that he contacted the Inmate Records Clerks at both Southport and Shawangunk and was informed that the only documentation on record indicated that three bags were shipped from Eastern. On September 18, 2000, Brownell filed an "Inmate Claim Form" at Shawangunk for recovery of his lost property. He listed, as missing, items of clothing and footwear, as well as "2000 pages of trial transcripts" from his 1976 trial; "500 pages of hearing transcripts and motion papers;" and "200 pages of research material for a federal habeas corpus that was to be filed by September of 2000."

The Inmate Claim Form that Brownell used appears to be intended to reimburse inmates for the value of their lost property. For example, Part 2 of the form asks the inmate to provide the "original cost" and "depreciation" of the missing item as well as the "reimbursement requested." In addition, in the portion of the claim form used for an administrative response, the grounds for rejecting a claim relate to unrealistic claim value, unsubstantiated claim value, or failure to indicate age and condition of the property at the time of loss. Although the Inmate Claim Form is designed for inmate reimbursement, Brownell appears to have used the form to locate his property. For example, while he indicated on the form that he did not know the value of his clothing, footwear, or legal papers (information indicative of an intent to be reimbursed), he did specify the time frame during which he thought the loss occurred. Brownell's form was assigned a claim number and an "Inmate Claims Investigation" was undertaken.

On November 11, 2000, the investigator, Sergeant Bertone, recommended denial of Brownell's claim. During his investigation, Sergeant Bertone contacted Shawangunk Corrections Officer Howe, as well as a records clerk, and Brownell himself. Sergeant Bertone referenced Officer Howe's written statement that no legal papers were inventoried during the processing of Brownell's property when he arrived at Shawangunk. Sergeant Bertone concluded ultimately that "[a]ll property received at [Shawangunk] [was] inventoried" and that "[p]roperty missing prior to [Shawangunk] would not fall into the responsibility of [the] facility. Inmate has no documented proof of purchase or prices." On November 14, 2000, Deputy Superintendent of Administration ("DSA") Leo Bisceglia considered Sergeant Bertone's recommendation and denied the claim for lack of documentation.

B. Grievance

The New York Department of Correctional Services ("DOCS") affords prisoners the opportunity to appeal denial of their lost property claims to either the facility superintendent or the central office, depending on the amount of the claim, and then to the New York Court of Claims. N.Y. Comp.Codes R. & Regs. tit. 7, § 1700.3(b). Instead of appealing the administrative denial of the reimbursement claim, Brownell filed an Inmate Grievance Complaint at Shawangunk "challenging said denial" on December 10, 2000. Brownell has testified that he abandoned his lost property claim, and filed a grievance instead, at the direction of the Shawangunk Inmate Grievance Program Supervisor. The grievance requested an investigation into the lost property but did not allege that corrections personnel had intentionally interfered with the transfer of that property:

Upon transfer from Woodbourne Corr. Facility to Eastern N.Y. Corr. Facility most of my personal property has been lost. This includes all of my legal work amounting to thousands of pages. I was in the process of filing [a] federal habeas corpus petition. Shoes, boots, sweaters, headphones, tape player and a number of tapes plus personal sneakers.

As to the requested action, Brownell wrote that he wanted the facility "[t]o find [his] lost property via a thorough investigation."

DOCS's grievance process consists of three stages. First, a grievance is filed with the Inmate Grievance Resolution Committee ("IGRC"). Next, an inmate may appeal an adverse decision to the prison superintendent. Finally, an inmate may appeal the superintendent's decision to the Central Office Review Committee ("CORC"). See Hemphill v. New York, 380 F.3d 680, 682 (2d Cir.2004) (reviewing DOCS grievance procedure under N.Y. Comp.Codes R. & Regs. tit. 7, § 701.7(c)(4)).

Brownell pursued his grievance through each of these stages. After reviewing the grievance, the IGRC recommended that Brownell "should file a [property] claim with Woodbourne." Second, Brownell appealed that decision to Leonard A. Portuondo, the Superintendent of Shawangunk. At this stage of the grievance procedure, Superintendent Portuondo advised Brownell "to appeal his claim disapproval to the Superintendent," presumably referring to the lost property claim that Brownell had originally filed. In the third stage, Brownell appealed Portuondo's decision to the CORC, claiming, "I do not feel a thorough investigation was done on my lost property claim. Three bags of property made it to Eastern Corr. Facility, what happened to the other eleven bags?" The CORC upheld the denial of the grievance on February 21, 2001, with the following explanation:

Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby denied with clarification. CORC upholds the determination of the Superintendent for the reasons stated ... CORC has been advised by the facility administration that the grievant filed a personal property claim for reimbursement but the claim was denied on 11/14/00. The grievant has the opportunity to appeal any denial of a claim in accordance with Directive # 2733.

(emphasis added). Like the decision of Shawangunk Superintendent Portuondo, the CORC shifted the emphasis from...