Garcia v. Heath

22-367
Garcia v. Heath

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2022
No. 22-367

FELIX GARCIA, DIN# 04-A-2384, SING SING CORRECTIONAL
FACILITY, 354 HUNTER STREET, OSSINING, NY 10562,
Plaintiff-Appellant,

WAYNE NORRIS, KEVIN WILLIAMS, JAMES JAMESON, ROLANDO
CORONADO, ELEGGUA OSUN ELUFE, ELMER ORTIZ, BRANDON
HOLMES, MALUMBA KAZIGO, LAMONTE JOHNSON, ERCREY
GRANGIER, PHILIP CALDAROLA, AMAURY BONILLA, PAUL
THOMPSON,
Plaintiffs,

v.

PHILIP D. HEATH, SUPERINTENDENT, SING SING C.F.,
NOEL F. MORRIS,
Defendants-Appellees,

MICHAEL CAPRA, SUPERINTENDENT, SING SING C.F., C.O. MORRIS,
FIRE AND SAFETY OFFICER, SING SING C.F., SUPERINTENDENT BRIAN
FISCHER, MEDICAL DIRECTOR GENOVESE, NIGHT WATCH
COMMANDER UNKNOWN, LIEUTENANT MEJIA, ALL GALLERY
OFFICERS KNOWN AND UNKNOWN, NURSE ADMINISTRATOR FURCO,
SGT. RICHARD A. MOSS, C.O. PETER MENDEZ, K-GALLERY OFFICER,
C.O. KYLE T. JACKSON, K-GALLERY OFFICER, CANDICE P. SUMPTER,
K-GALLERY OFFICER, SHELDON L. WELCH, K-GALLERY OFFICER,
 DEPUTY SUPER. WILLIAM F. KEYSER, KEVIN WINSHIP, SERGEANT
VALERIE COLON, OFFICER SHELDON WELSH, OFFICER KEVIN M.
JACKSON, OFFICER DANIEL HAUSRATH, DR. WILLIAMS, NURSE DOE,
ANTHONY M. THERIAULT, EMIL MEIJA, MARYANN GENOVESE, NURSE
ADMINISTRATOR BARBARA FURCO,
Defendants.

On Appeal from the United States District Court
for the Southern District of New York

ARGUED: JANUARY 31, 2023
DECIDED: JULY 17, 2023

Before: LOHIER, MENASHI, and ROBINSON, Circuit Judges.

Felix Garcia brought a Section 1983 claim against prison
officials for their conduct during an electrical fire at Sing Sing
Correctional Facility. The district court determined that Garcia had
not exhausted his administrative remedies and granted summary
judgment to the officials. We vacate the judgment of the district court
and remand for further proceedings. The district court must at least
conduct an evidentiary hearing to determine whether Garcia failed to
exhaust his administrative remedies.

ERIC PETER STEPHENS, Jones Day, New York, NY, for
Plaintiff-Appellant.

MARK S. GRUBE, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, Ester Murdukhayeva,

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 Deputy Solicitor General, on the brief), for Letitia James,
Attorney General of the State of New York, New York,
NY, for Defendants-Appellees.

MENASHI, Circuit Judge:

Felix Garcia sued officials at the Sing Sing Correctional Facility
under 42 U.S.C. § 1983 for their conduct during an electrical fire that
occurred at the facility while Garcia was imprisoned there. The
district court determined that Garcia had not exhausted his
administrative remedies prior to bringing suit, as the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires. In this
case, meeting the exhaustion requirement meant that Garcia had to
participate in a three-stage grievance review process in the New York
prison system. The record indicates that Garcia filed an initial
grievance, but it is silent as to whether prison officials denied that
grievance such that Garcia could proceed to the next stage of the
process.

Garcia claims that he received a denial and then appealed
through the second and third stages of review. He identifies no
documentary evidence aside from the initial grievance. Meanwhile,
the prison officials claim that Garcia received a denial but failed to
appeal. The officials identify no documentary evidence of the denial.
The record contains a consolidated denial of the complaints of other
inmates affected by the fire, but Garcia’s complaint is not included
among those consolidated. The officials argue that Garcia’s complaint
must have been separately adjudicated and, because there is no
record of Garcia’s appeal, Garcia must not have appealed.

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 Drawing all reasonable inferences in Garcia’s favor—as we do
at the summary judgment stage—we conclude that there is a genuine
dispute of material fact as to whether Garcia exhausted his
administrative remedies. The prison officials may have mistakenly
failed to consolidate Garcia’s grievance with those of the other
inmates who were affected by the electrical fire—in a possible
violation of state regulations requiring full consolidation. Garcia’s
declaration is consistent with a belief that his grievance was denied as
part of the consolidated group of grievants. He may have appealed
that denial, but the prison system might not have a record of his
appeal because it failed to record the denial of his initial grievance in
the first place.

Garcia’s declaration—combined with (1) the undisputed
evidence that he filed an initial grievance, (2) the absence of
documentary evidence that his complaint was ever denied, and
(3) the apparent failure of the prison officials to consolidate his
complaint with those of the other inmates—creates a dispute of
material fact as to whether Garcia actually did pursue all
administrative remedies that were “available” to him. 42 U.S.C.
§ 1997e(a). We vacate the judgment of the district court and remand
for further proceedings. The district court must at least conduct an
evidentiary hearing on the exhaustion of administrative remedies.

BACKGROUND

I

The PLRA prohibits a prisoner from bringing an action under
42 U.S.C. § 1983 “until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). For prisoners confined by the
New York State Department of Corrections and Community

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Supervision (“DOCCS”), the relevant administrative remedy is the
Inmate Grievance Program (“IGP”). See 7 N.Y.C.R.R. § 701.5; Williams
v. Priatno, 829 F.3d 118, 119 (2d Cir. 2016).

The IGP includes three layers of review for an inmate’s
grievance. First, the inmate must submit a grievance to the clerk of the
Inmate Grievance Resolution Committee (“IGRC”) within twenty-
one days of the alleged incident. See 7 N.Y.C.R.R. § 701.5(a)(1).
Second, the inmate must appeal a denial of that grievance to the
correctional facility’s superintendent within seven days of the IGRC’s
response. See id. § 701.5(c). Third, the inmate must appeal a
superintendent’s denial to the Central Office Review Committee
(“CORC”) within seven days of such a denial. See id. § 701.5(d).

State regulations provide that “‘[l]ike grievances’ may be
consolidated at the option of the IGP supervisor or IGRC.” Id.
§ 701.5(a)(3). Once those officials decide to consolidate, the
regulations mandate that “[a] list of the names of every inmate who
submitted a complaint on the issue shall be included with the
grievance materials and submitted with any appeal which may
result.” Id.

II

Early in the morning of April 18, 2011, an electrical fire broke
out in the Sing Sing Correctional Facility, a prison in the New York
state prison system. The fire led to a loss of electricity in Garcia’s
housing block and spread smoke throughout the facility. In the
ensuing hours, prison officials evacuated the inmates from the
facility; the evacuation took time due to the power outage and smoke.

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 Garcia filed a grievance with the IGRC requesting “[t]hat
proper fire procedure protocol be established to prevent such
occurrences from occurring again in the future; that adequate
ventilation be maintained; [and] that this matter be subjected to a
vigorous investigation.” J. App’x 80. Other inmates who were
affected by the fire also filed related grievances. But when prison
officials consolidated those grievances for review, Garcia’s name was
not included in the consolidated list of grievants. The prison officials
acknowledge that the consolidated group of grievants exhausted their
administrative remedies after multiple denials. The record does not
show whether Garcia’s individual grievance was ever separately
denied, even at the IGRC level. In a declaration, Garcia claimed that
he received a denial and went through the full three-stage process of
appeals.

Garcia sued the prison officials under 42 U.S.C. § 1983, alleging
violations of his rights under the Eighth Amendment. Garcia claims
that the prison officials “failed to evacuate” him while he was
“trapped in his cell[]” and that he was then “taken to an unsecured
area ... where unsupervised inmates attacked other inmates.” J. App’x
72. Garcia’s complaint alleges that the prison officials “failed to have
an evacuation plan,” “failed [to] have fire equipment for the purposes
of fighting a fire,” “failed to fix the windows or have a back up
generator ... to assist in opening the windows in case of an emergency
and failed to have medical staff evaluate [Garcia] in a secure area
outside of the presence of Correction Staff.” Id. The complaint also
alleges that “the cells were not equipped with a ventilation system.”
Id.

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 Garcia states that this experience impacted his health and that
he suffered “severe” headaches after the fire. Id. at 281. He claims that
he “was injured by the Fire and suffered from headaches, nausea,
worsened asthma, black discharge from his sinuses, and difficulty
breathing.” Id. at 162. He further alleges that he “experiences ongoing
mental anguish, mood changes, and anxiety as a result of the Fire.”
Id.

The government moved for summary judgment, arguing that
Garcia had not exhausted his administrative remedies. The district
court granted the motion with respect to Garcia’s claims, explaining
that “[a]lthough Garcia timely filed a grievance to the IGP concerning
the fire, DOCCS records indicate he did not appeal to CORC.” Garcia
v. Fischer, No. 13-CV-8196, 2019 WL 4256386, at *8 (S.D.N.Y. Sept. 9,
2019). 1 The district court observed that “Garcia submits a declaration
in which he states his grievance was denied and he did appeal to the
IGRC and the superintendent, but he does not provide copies of those
grievances, copies of the alleged denials from IGRC or the
superintendent, specify the grievance numbers assigned to them, or
state the dates in which he sent them in.” Garcia, 2019 WL 4256386, at
*8. The district court additionally noted that Garcia did not “offer an
explanation why, if he did file the necessary appeals, prison officials
have no record of those grievances but do have records of others he
filed around the same time.” Id. Garcia appealed.

1 This account skips a few steps. Garcia would have had to obtain a denial
from the IGRC, file an appeal with the superintendent, and obtain a denial
from the superintendent before he could appeal to the CORC. See
7 N.Y.C.R.R. § 701.5.

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 DISCUSSION

“Summary judgment is warranted when, viewing the evidence
in the light most favorable to the non-moving party, there is no
genuine issue of material fact and the movant is entitled to judgment
as a matter of law.” Romano v. Ulrich, 49 F.4th 148, 152 (2d Cir. 2022)
(citing Fed. R. Civ. P. 56(a)). “We review a district court’s decision to
grant summary judgment de novo, resolving all ambiguities and
drawing all permissible factual inferences in favor of the party against
whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97
(2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir.
2009)). In this context, we “review de novo a district court’s ruling on
whether a plaintiff has exhausted administrative remedies under the
PLRA.” Romano, 49 F.4th at 152-53.

In this appeal, we consider whether Garcia has identified a
genuine dispute of material fact as to whether he exhausted his
administrative remedies before filing suit.

I

Garcia filed his grievance along with the other inmates whom
the fire affected. Under state regulations, prison officials may
consolidate grievances about the same occurrence, such as a fire. The
regulations seem to establish a discretionary-then-mandatory
consolidation procedure. Prison officials have discretion whether to
consolidate grievances about a particular event or occurrence; the
regulations provide that “‘[l]ike grievances’ may be consolidated at
the option of the IGP supervisor or IGRC.” 7 N.Y.C.R.R. § 701.5(a)(3)
(emphasis added). But once the officials decide to consolidate such
grievances, the regulations arguably require that all of the grievances
about the event be consolidated. The regulations provide that “[a] list

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of the names of every inmate who submitted a complaint on the issue
shall be included with the grievance materials and submitted with any
appeal which may result.” Id. (emphasis added).

Once prison officials decided to consolidate the grievances
about the fire, the regulations seem to have required the officials to
consolidate Garcia’s grievance as well. In fact, the record indicates
that Garcia may have been unique in having his grievance excluded
from the consolidated grievances. The DOCCS records indicate that
159 inmates—presumably including Garcia—filed grievances about
the fire, and 160 were consolidated for review, apart from Garcia’s.
Thus, even apart from the question of why Garcia’s grievance was not
consolidated, the records contain some inaccuracies or are
incomplete. At oral argument, counsel for the prison officials could
not explain why the officials failed to include Garcia’s grievance in
the consolidated group or why his name was not on the list. 2 Nor
could counsel explain why there is no documentary evidence of
Garcia’s purportedly individualized denial. 3

On this record, it is possible that the absence of Garcia’s name
from the list of consolidated grievants was an oversight and there was
no separate, individualized review of his grievance. Under such
circumstances, Garcia may have filed an appeal believing that his
grievance had been denied with the 160 other grievances about the
fire, but his appeal was not recorded because the prison grievance
system did not record a denial that could be appealed in the first

2See Oral Argument Audio Recording at 21:40 (stating that “the record
doesn’t give the reason” for Garcia’s exclusion).
3 Id. at 18:38 (“It’s not part of the record. If this issue had … been developed,
then perhaps that would have come up.”).

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place. At the same time, it is also possible that the prison officials may
be able to explain why Garcia’s grievance, unlike the others, was not
consolidated—and the prison officials may be able to identify a
document denying Garcia’s individual grievance that could have
been appealed. But given that the record reflects a dispute over facts
that are material to whether Garcia exhausted the available
administrative remedies, the prison officials are not entitled to
summary judgment on that issue.

II

“[A] § 1983 plaintiff’s testimony alone may be independently
sufficient to raise a genuine issue of material fact.” Bellamy v. City of
New York, 914 F.3d 727, 746 (2d Cir. 2019). In this case, Garcia
submitted a declaration in which he stated that he received a denial
from the grievance committee “on or about May 20, 2011,”
“immediately filed/appealed the grievance decision to the
Superintendent of the facility,” received a denial of that appeal from
the Superintendent “[a]pproximately one month” later, and then
“filed an appeal from the Superintendent’s decision to CORC.”
J. App’x 216-17. That testimony was “consistent and uncomplicated”
and was not “wholly improbable” in light of the standard procedures
for consolidated grievances. Bellamy, 914 F.3d at 746. Moreover, there
was “evidence in the record,” as we have noted, “tending to support
[the] inference” that Garcia exhausted the grievance procedures
available to him. Id. Under these circumstances, the district court
erred in concluding that Garcia had failed to create a genuine issue of
material fact that he had exhausted his grievance.

Along with his declaration, Garcia provided documentation of
his initial grievance. The prison officials do not dispute that he filed
that grievance. Because the record does not reflect a denial of his

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grievance, and the prison officials cannot even explain why Garcia’s
grievance was not consolidated with the others, a dispute of material
fact remains for the district court to resolve. In other words,
“resolving all ambiguities and drawing all permissible factual
inferences in favor of” Garcia, Burg, 591 F.3d at 97, the record reflects
a plausible inference that the prison officials failed to log Garcia’s
grievance—and therefore that the absence of a record of Garcia’s
appeal does not necessarily establish that he failed to appeal. 4

Garcia’s declaration is consistent with his acting on the belief
that he was part of the consolidated group of grievants—a reasonable
inference, given how all the other grievances were resolved. The
prison officials do not dispute that the consolidated group exhausted
its administrative remedies. State regulations provide that, in
consolidated cases, “[n]ot every complainant may receive an
individual written response, but the three or four grievants of record
will.” 7 N.Y.C.R.R. § 701.5(a)(3). So Garcia may not have expected to
receive a written response specific to his grievance but instead acted
after receiving notice of the denial of the other grievances.

We vacate the district court’s grant of summary judgment and
remand for further proceedings. On remand, the district court must
at least conduct an evidentiary hearing to ascertain whether Garcia’s
grievance was separately denied and, if so, whether he appealed.
See Messa v. Goord, 652 F.3d 305, 308-09 (2d Cir. 2011).

4 Moreover, if it turns out that Garcia’s grievance was never denied, then
he would have had no opportunity to appeal such that the appeals process
was not available to him. See Rucker v. Giffen, 997 F.3d 88, 92 (2d Cir. 2021)
(“[T]he remedies must indeed be ‘available’ to the prisoner.”) (quoting Ross
v. Blake, 578 U.S. 632, 639 (2016)).

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 CONCLUSION

We vacate the judgment of the district court and remand for
further proceedings consistent with this opinion.

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