20-2340-pr
Saeli v. Chautauqua County
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2021
Argued: December 7, 2021 Decided: June 8, 2022
Docket No. 20-2340-pr
SAMUEL JAMES SAELI,
Plaintiff-Appellant,
— v. —
CHAUTAUQUA COUNTY, NY, CORRECTION OFFICER WILLIAM GENTHER,
CORRECTION OFFICER JASON STEENBURN,
Defendants-Appellees.*
B e f o r e:
LYNCH, CARNEY, and SULLIVAN, Circuit Judges.
*
The Clerk of Court is directed to amend the caption as set forth above.
Plaintiff-Appellant Samuel James Saeli appeals from an order of the United
States District Court for the Western District of New York (Siragusa, J.) granting
summary judgment to Defendants-Appellees on his claims that two correction
officers (“the Officers”) and Chautauqua County (“the County”) violated his
constitutional rights. The district court held that there was no genuine dispute
that Saeli had not exhausted his administrative remedies as required by the
Prison Litigation Reform Act.
We conclude that the district court was correct that Saeli failed to present
sufficient evidence to create a genuine dispute of material fact as to whether he
had submitted a timely grievance related to his claims against the Officers. The
district court erred, however, in holding that the Chautauqua County Jail’s
grievance policy applied to his separate claim against the County. By its plain
terms, the grievance procedures did not apply to matters outside the jail captain’s
control, such as the County handcuffing policy that Saeli challenges here, and
thus there were no administrative remedies for Saeli to exhaust with respect to
that claim.
We therefore AFFIRM the judgment of the district court as to the Officers,
VACATE the judgment with respect to the County, and REMAND to the district
court for further proceedings consistent with this Opinion.
ANDREW RHYS DAVIES, Allen & Overy LLP, New York, NY, for
Plaintiff-Appellant.
MICHAEL MCCLAREN (KEVIN G. COPE, SHANNON B. O’NEILL, on
the brief), Webster Szanyi LLP, Buffalo, NY, for
Defendants-Appellees.
GERARD E. LYNCH, Circuit Judge:
Plaintiff-Appellant Samuel James Saeli appeals from a June 30, 2020 order
of the United States District Court for the Western District of New York (Charles
2
J. Siragusa, J.) granting summary judgment on all claims to Defendants-Appellees
Chautauqua County (“the County”) and Correction Officers William Genther
and Jason Steenburn (“the Officers”) in this civil rights suit concerning the
County’s policy of handcuffing inmates in an allegedly painful manner and the
Officers’ use of force in extracting Saeli from his cell at the Chautauqua County
Jail (“the Jail”). The district court granted summary judgment because it
concluded that Saeli, who was proceeding pro se at the time, failed to provide
sufficient evidence to create a genuine issue of material fact as to whether he
complied with the Jail’s grievance policy and exhausted all available
administrative remedies as required by the Prison Litigation Reform Act
(“PLRA”), Pub. L. No. 104-134, Title VIII, § 803(d), 110 Stat. 1321 (1996), codified
as amended at 42 U.S.C. § 1997e.
Saeli, now represented by counsel, argues that he did not fail to exhaust all
available administrative remedies because (1) he did, in fact, timely submit an
informal grievance form describing his encounter with the Officers, but the Jail
failed to act on it, making the grievance process effectively unavailable to him;
and (2) the Jail’s grievance policy excludes matters outside the jail captain’s
control and thus was inapplicable to his claim against the County, which
3
challenged a handcuffing policy set by the Chautauqua County Sheriff, not the
Jail.
We conclude that the district court was correct to grant summary judgment
to the Officers but that it erred in granting summary judgment to the County. To
the extent that Saeli contended that he timely submitted an informal grievance
form on the date recorded on the form, no reasonable factfinder could accept that
contention, because the form on its face describes events that occurred after that
date. Saeli’s more general contention that he submitted the form at some
unspecified time in some unspecified manner, even if believed, would not suffice
to create a genuine dispute as to whether he made a timely attempt at compliance
with the grievance procedures. Contrary to the district court’s conclusion,
however, the Jail’s grievance policy by its plain terms did not apply to Saeli’s
claim arising from the County’s handcuffing policy, and thus there were no
administrative remedies for Saeli to exhaust with respect to that claim.
We therefore AFFIRM the judgment of the district court as to the Officers,
VACATE the judgment as to the County, and REMAND for further proceedings
consistent with this Opinion.
4
BACKGROUND
I. Factual Background1
Saeli was detained at the Chautauqua County Jail between August 2016
and September 2018 pending trial on charges related to the sexually-motivated
kidnapping of a teenage boy, charges on which he was ultimately convicted.
During that detention, he was housed in the Jail’s hospital unit due to health
concerns.
The Jail’s inmate handbook lays out a grievance policy for resolving inmate
complaints. The grievance policy does not specifically identify which sorts of
disputes it covers, but it categorically excludes certain issues: “Grievances
regarding dispositions or sanctions from disciplinary hearings, administrative
segregation housing decisions, issues that are outside the authority of the jail captain
to control, or complaints pertaining to an inmate other than the inmate filing the
grievance are not grievable issues.” J. App’x at 385 (emphasis added). The
grievance policy instructs aggrieved inmates to follow a multi-step process:
1
The facts set forth below are drawn from the summary judgment record, taken
in the light most favorable to Saeli, the non-moving party. See Coyle v. United
States, 954 F.3d 146, 148 (2d Cir. 2020).
5
• Attempt to resolve your complaint or problem
with your housing officer.
• If the housing officer cannot resolve your
complaint, the housing officers will contact the
shift supervisor who will decide if your complaint
warrants filing a grievance or can be otherwise
resolved.
• If the complaint cannot be resolved, the shift
supervisor will contact the grievance coordinator
and you will be issued a grievance [form].
• The grievance must be filed with the grievance
coordinator within 5 days of the date of the act or
occurrence that caused the complaint.
• If the grievance is too vague or does not provide
enough information or evidence, it will be
returned to you. You must resubmit it within two
days with the appropriate correction or it will be
denied.
Id. at 386.
The parties agree that in practice, the Jail requires inmates to initiate the
first two steps, involving the housing officer and shift supervisor, by filling out
and submitting an “informal grievance” form. Id. at 673. According to Saeli,
inmates must ask a correction officer for an informal grievance form, at which
point “that correction officer fills in the name of the grievant, the inmate’s
location and the date and time the [informal] grievance was given to the inmate.”
Id at 624. In other words, the inmate must request, receive, complete, and submit
6
an informal grievance form; and if the housing officer and shift supervisor are
unable to resolve the inmate’s complaint on the basis of that informal grievance
form, the inmate will be “issued” a formal grievance form, which he must
complete and submit to the grievance coordinator no later than five days after the
incident complained of. The policy also sets out a process, not at issue here, for
appealing an adverse decision regarding a formal grievance by the grievance
coordinator.
On September 12, 2016, Saeli was handcuffed before being escorted from
the Jail to a court appearance. Saeli found the manner in which he was
handcuffed painful, and he alleges that he attempted to submit a timely informal
grievance form pursuant to the grievance policy. Saeli further alleges that when
he attempted to submit that first informal grievance form, an unnamed officer
told him that the handcuffing policy followed by correction officers at the Jail
was set by the County, that it was outside the Jail’s control, and that it therefore
was not grievable.
On September 24, 2016, Saeli was taking a shower in his cell when water
began to pool in the shower stall and overflow onto the floor outside. Correction
Officer Walsh, not a party to this appeal, noticed the water and called out to ask if
7
Saeli was okay. When Saeli did not respond, Walsh called for backup. Walsh
ordered Saeli out of the shower, and Saeli alleges that when he exited the shower,
nine officers had arrived on the scene and begun shouting orders at him. Genther
then entered the cell and threw Saeli to the ground, at which point Steenburn
entered the cell and joined Genther in kneeling on Saeli to hold him down while
handcuffing him with his hands behind his back and the backs of his hands
facing each other, palms facing outwards. Saeli alleges that he sustained multiple
injuries from this incident, including cuts and bruises on his neck, back, wrists,
and right hand, as well as neuropathy in his right hand.
Shortly after the September 24 incident, Saeli again made some attempt to
avail himself of the Jail’s grievance process. He began by filling out an informal
grievance form, dated “09/25/16 1430,” describing the shower incident. J. App’x
at 735. Saeli alleges that he attempted to hand that form to Lieutenant Fuller, an
officer not party to this appeal, but that Fuller responded, “don’t hand that in”
and gave the form back to him. Id. at 72; see also id. at 677. Saeli later testified that
he took that statement and Fuller’s “manner” of making it as an indication that
Fuller might be “upset” and retaliate against him for filing a grievance. Id. at 753-
54. While Fuller made no explicit threats, Saeli interpreted his statement as
8
containing an implicit “or else.” Id. at 755. Saeli therefore took the form back and
instead wrote a letter to the New York State Commission of Correction describing
the incident. After receiving Saeli’s letter, the Commission referred his complaint
to the Chautauqua County Sheriff’s Department, which opened an investigation
into the shower incident.
At a disciplinary hearing on September 26, 2016, Saeli was found guilty of
disobeying orders in connection with the shower incident and received a verbal
reprimand. After the disciplinary proceedings, Saeli apparently revisited his
informal grievance form and made a notation in the margin of that form
explaining that he was disciplined for his conduct in connection with the shower
incident.
The parties dispute what Saeli did next with the informal grievance form.
Saeli asserts, based on sworn factual allegations in his memorandum of law in
opposition to summary judgment2 and the fact that the County produced a copy
of the form during discovery, that he submitted the informal grievance form to
2
Since Saeli submitted a separate affidavit swearing to the factual assertions
contained in his memorandum of law, we treat those assertions as the functional
equivalent of a summary judgment affidavit. See Gayle v. Gonyea, 313 F.3d 677,
682 (2d Cir. 2002).
9
an unspecified officer in an unspecified manner on an unspecified date.
Defendants-Appellees deny that Saeli ever submitted the informal grievance
form to any correction officer and instead assert that he sent it to the Commission
of Correction, which later forwarded a copy to the Sheriff’s Department.
Defendants’-Appellees’ support for that theory is the testimony of a correction
officer that a “diligent search” failed to locate a copy of Saeli’s grievance form in
the Jail’s files, id. at 346, and the fact that the copy of the form in the record bears
a case number that matches a number that appears in Sheriff’s Department
records related to the investigation of the incident. Compare id. at 149 with id. at
735.
II. Procedural History
On April 11, 2017, Saeli filed the first of his two complaints pro se in the
United States District Court for the Western District of New York. The initial
complaint named various defendants in addition to Defendants-Appellees, and
asserted Eighth and Fourteenth Amendment claims for excessive force, deliberate
indifference to a serious medical need, unconstitutional conditions of
confinement, and failure to protect, as well as a claim under the Americans with
Disabilities Act for failure to accommodate. On July 7, 2017, Saeli filed another
10
complaint under a different case number. Although it named a slightly different
list of defendants, the second complaint asserted the same claims as the first, as
well as an additional First Amendment retaliation claim and Eighth and
Fourteenth Amendment claims challenging the conditions of confinement at the
Jail and the fines imposed at the conclusion of the disciplinary proceeding.
On October 18, 2017, the district court consolidated the two cases,
construing the July 7, 2017 complaint as a first amended complaint (“FAC”), and
dismissed the FAC in part sua sponte pursuant to its authority to screen in forma
pauperis complaints. See 28 U.S.C. §§ 1915(e), 1915A. The court allowed two
excessive force claims – one against Officers Genther and Steenburn related to
their use of force during the shower incident and the other against the County for
maintaining a policy of handcuffing inmates in an allegedly painful manner – to
proceed to service. The court concluded that the latter claim adequately alleged
“that the County implemented this method of handcuffing as a County policy,” J.
App’x at 47, and thus complied with the requirements for § 1983 claims against
municipalities set out in Monell v. Department of Social Services, 436 U.S. 658 (1978).
The court dismissed all other claims without prejudice and granted Saeli leave to
amend his complaint. Saeli filed his second amended complaint (“SAC”) on
11
November 22, 2017, this time naming only the County and Officers Genther and
Steenburn as defendants.3
In all three complaints, Saeli repeatedly asserted that he attempted to
grieve the claims at issue in this appeal but that correction officers prevented him
from doing so. Each complaint was composed on a form complaint for actions by
inmates seeking damages pursuant to 42 U.S.C. § 1983 and included questions
and answers about exhaustion of administrative remedies.
In the SAC, with respect to the handcuffing claim against the County, Saeli
marked “Yes” in response to the question “Did you grieve or appeal this claim?”
and explained, “I was told that the method and policy of handcuffing Plaintiff
and others is outside the control of the jail and thus not grievable”; and in
response to the prompt, “If you did not exhaust your administrative remedies,
state why you did not do so,” he wrote, “I was told by a jail official that the
3
The SAC omitted the claims that the district court had dismissed without
prejudice but added two new claims: a Fourteenth Amendment due process
claim related to the Jail’s handling of disciplinary proceedings and a Fifth
Amendment self-incrimination claim related to the Jail’s alleged practice of
turning over recordings of inmates’ phone calls to the Chautauqua County
District Attorney. In a September 6, 2018 order, the district court again exercised
its screening authority under 28 U.S.C. §§ 1915(e) and 1915A to dismiss the two
newly added claims. Saeli does not challenge that dismissal on appeal.
12
method and policy on handcuffing Plaintiff is outside the control of the jail and
thus is not grievable.” J. App’x at 62.
With respect to the excessive force claim related to the shower incident,
Saeli marked “Yes” in response to the question “Did you grieve or appeal this
claim?” and explained, “Plaintiff tried to grieve this incident. Plaintiff asked for
and received a grievance. Plaintiff completed it and handed it to Sgt[.] [sic] Fuller
who handed it back to me and told me ‘don’t hand that in’ and gave grievance
back to Plaintiff”; and in response to the prompt, “If you did not exhaust [your]
administrative remedies, state why you did not do so,” he wrote, “When Sgt[.]
[sic] Fuller handed the grievance back to Plaintiff, he told me ‘don’t hand that in.’
Plaintiff felt intimidated that officials would retaliate, so I wrote directly to the
NYS Commission about incident.” Id. at 72. Saeli gave substantially similar
responses to the same questions in the two earlier complaints.
After Defendants-Appellees were served and filed their answer, the case
proceeded to discovery. As a part of their initial disclosures, Defendants-
Appellees provided a copy of an informal grievance form filled out by Saeli,
dated “09/25/16 1430,” that describes the shower incident. Id. at 735. The form
bore the number “2016-48631“ in the upper right-hand corner. Id. Saeli’s
13
handwritten description of the incident stated that he had not been “charged
with a violation” of Jail rules, but Saeli also added an annotation in the margin:
“This changed 9/26/16.” Id.
After some discovery, Defendants-Appellees moved for summary
judgment and for a stay of further discovery pending a decision on that motion.
Saeli filed a memorandum of law in opposition to that motion, accompanied by
an affidavit swearing to the factual assertions that the memorandum contained.
For the first time in that sworn memorandum of law, and in contrast to the
allegations in his complaint that he had been prevented from submitting an
informal grievance form by the discouraging and intimidating acts of correction
officers, Saeli repeatedly asserted that he did in fact submit a timely informal
grievance form complaining of the shower incident. Specifically, he asserted that
he “did submit his inmate grievance form concerning the September 24th 2016
[incident] to jail staff on September 25th 2016 at ‘1430,’” quoting directly from the
copy of the form provided by Defendants-Appellees in their initial disclosures.
Id. at 624; compare id. at 735. As evidence for that assertion, he cited the fact that
the County had a copy of the form in its possession at the time of Defendants’-
Appellees’ initial disclosures.
14
On June 30, 2020, the district court granted summary judgment to
Defendants-Appellees on all claims for failure to exhaust administrative remedies
under the PLRA. The district court held that “the Defendants have satisfied their
burden to show that a grievance process exists and applies to Saeli’s claims,”
stating that “Chautauqua County Jail’s grievance procedure is undisputed,” and
noting that “Saeli’s extensive use of the process [in other instances not at issue]
demonstrates his familiarity with it.” Saeli v. Chautauqua County, No. 17-cv-6221,
2020 WL 3547049, at *3 (W.D.N.Y. June 30, 2020). The district court did not
engage with Saeli’s assertions in his summary judgment filings that he
“submitted” an informal grievance form in some unspecified manner. Instead, it
stated that there was “no record” of a filed grievance and that Saeli “admits” that
he did not follow the grievance process. Id. at *4.
The district court then held that there was no genuine factual dispute as to
whether the grievance process was in fact available to Saeli. With respect to the
claims against the Officers, it characterized Saeli’s reaction to the encounter with
Fuller as a “general fear” of retaliation that could not excuse Saeli’s failure to
exhaust administrative remedies. Id. at *5. As for the claim against the County,
the district court held that “Saeli’s conclusory assertion that he was told the
15
handcuffing offense is not grievable, without further elaboration on the names or
circumstances of the statement, is not sufficient” to create a genuine dispute of
material fact as to the de facto availability of administrative remedies. Id. at *6. The
district court also certified pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
would not be taken in good faith and therefore denied Saeli leave to appeal in
forma pauperis.
Saeli nevertheless appealed and moved in this Court to proceed in forma
pauperis. A motions panel of this Court granted the motion to proceed in forma
pauperis with respect to only one issue: “whether the administrative process was
available for the Appellant to grieve the September 2016 incident.” ECF No. 32 at
1. The motions panel further ordered that counsel be appointed for Saeli.
DISCUSSION
We review a district court’s decision to grant summary judgment de novo.
Coyle v. United States, 954 F.3d 146, 148 (2d Cir. 2020). Summary judgment is
appropriate where, construing the record in the light most favorable to the
nonmoving party, id., “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).
The PLRA’s exhaustion requirement provides that “[n]o action shall be
16
brought with respect to prison conditions under [42 U.S.C.] section 1983 . . . , or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “Because failure to exhaust is an affirmative
defense, . . . defendants bear the initial burden of establishing, by pointing to
‘legally sufficient source[s]’ such as statutes, regulations, or grievance
procedures, that a grievance process exists and applies to the underlying
dispute.” Hubbs v. Suffolk County Sheriff's Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)
(internal citations omitted) (alteration in original).
Even where such a process theoretically exists and applies, however, the
Supreme Court has recognized three situations in which an administrative
remedy is de facto unavailable and, thus, exhaustion is not required: (1) where the
process “operates as a simple dead end – with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; (2) where the process is
“so opaque that it becomes, practically speaking, incapable of use”; and (3)
“when prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Ross
v. Blake, 578 U.S. 632, 643-44 (2016). If the defendant has met its burden of
17
establishing the existence and applicability of the grievance policy, the plaintiff
bears the burden of establishing de facto unavailability. See Hubbs, 788 F.3d at 59
(“If the defendants meet this initial burden, administrative remedies may
nonetheless be deemed unavailable if the plaintiff can demonstrate that other
factors . . . rendered a nominally available procedure unavailable as a matter of
fact.”).
In the present case, Saeli argues that the district court erred in granting
summary judgment on both claims because (1) although the grievance policy
applied to his claims against the Officers, the grievance process was not in fact
available to him with respect to those claims, as he submitted an informal
grievance form to an unspecified officer and the Jail did not provide him with the
formal grievance form necessary to complete the next step of the process; and (2)
the grievance policy did not apply to his claim against the County, and thus he
had no administrative remedies to exhaust with respect to that claim. We
conclude that the first argument lacks merit but that the second is correct.
I. Claims Against the Officers
Saeli concedes that the Jail’s grievance policy exists, that it applied to his
excessive force claims against the Officers, and that he did not complete all steps
18
required by that policy. Nevertheless, he argues that the district court erred in
granting summary judgment to the Officers on exhaustion grounds because a
genuine dispute of material fact existed as to whether he submitted a timely
informal grievance form as required by that policy and the Jail simply failed to
act on it, making his administrative remedies de facto unavailable.4 We disagree.
On the record before the district court, no reasonable factfinder could conclude
that Saeli timely acted to comply with the grievance policy.
In order to comply with the grievance policy, Saeli was required to submit
his informal grievance form soon enough after the shower incident to receive a
response and obtain and file a formal grievance within five days of the incident –
that is, by September 29, 2016 – for “it is the prison’s requirements . . . that define
the boundaries of proper exhaustion,” Jones v. Bock, 549 U.S. 199, 218 (2007). At
summary judgment, Defendants-Appellees relied on the declaration of
Correction Officer Joseph Grupa, who stated that, “[a]fter a diligent search of
4
Saeli does not challenge on appeal the district court’s holding that Fuller’s
alleged instruction not to submit the grievance form did not render the grievance
process unavailable to him and thus did not excuse any failure to exhaust his
administrative remedies as to the claims against the Officers. He has therefore
abandoned any argument that that holding constituted reversible error, and we
have no occasion to address the issue.
19
Saeli’s grievances, it is clear that he did not file a grievance relating to the
September 24, 2016 incident,” J. App’x at 346, to establish that Saeli had not
exhausted the grievance procedures. Saeli points to two sources of evidence in
the summary judgment record that he argues create a genuine factual issue about
his effort to exhaust his administrative remedies: (1) the copy of the informal
grievance form that the County had in its possession during initial disclosures
and (2) his own sworn statements in his summary judgment filings. Even
assuming that a reasonable factfinder could conclude from this evidence that he
submitted an informal grievance form at some unspecified time, the evidence
would not permit a reasonable factfinder to conclude, without relying on
impermissible speculation, that he did so in a timely fashion as implicitly
required by the grievance policy.
The informal grievance form standing alone cannot establish a genuine
dispute of material fact as to whether Saeli submitted that form at all, much less
in time to file a formal grievance by September 29, 2016. The form is dated
“9/25/16 1430,“ id. at 735, but it includes information added by Saeli about the
disciplinary hearing that occurred on September 26, 2016. The form therefore
cannot possibly have been submitted to the Jail on the date given on the form,
20
absent some further explanation that Saeli makes no attempt to offer. Moreover,
the form bears no markings indicating that it was ever received by a Jail officer,
much less received by any specific date. The fact that the form was in the
County’s possession during initial disclosures similarly could not establish a
genuine dispute without some additional evidence as to how and when the
County obtained it, for “speculation alone is insufficient to defeat a motion for
summary judgment.” McPherson v. New York City Dep’t of Education, 457 F.3d 211,
215 n.4 (2d Cir. 2006). In order to conclude that Saeli submitted the form to an
officer before September 29, 2016, a factfinder would have to rely on additional
inferences that the document itself does not support.
Saeli contends that the sworn factual assertions in his memorandum of law
in opposition to summary judgment supply the additional context that a
reasonable factfinder would need to conclude that he submitted a timely
informal grievance form, but that evidence is equally unsupportive. To the extent
that the sworn memorandum alleges that Saeli submitted his informal grievance
form on a specific date, his account is so implausible and internally contradictory
that no reasonable factfinder could accept it as true. Saeli specifically asserted
that he “did submit his [informal] inmate grievance form concerning the
21
September 24th 2016 [incident] to jail staff on September 25th 2016 at ‘1430,’”
referring to the copy of the form that the County provided in initial disclosures,
which Saeli attached as an exhibit to his opposition. J. App’x at 624; compare id. at
735. As noted above, that is impossible, because the form included information
about events that had not yet occurred by that date and time. And in the
immediately preceding sentence of the memorandum, Saeli stated that the
“Correction Officer” whom the inmate asks for an informal grievance form “fills
in . . . the date and time the grievance was given to the inmate,” id. at 624
(emphasis added), further undermining the evidentiary force of the date on the
document.
Saeli nevertheless argues on appeal that even if he could not have
submitted the informal grievance form by September 25, 2016 as he stated in the
sworn memorandum, the more general allegation in that memorandum that he
submitted the form on some unspecified date should suffice to defeat summary
judgment. He suggests that he had likely forgotten the precise date on which he
submitted the informal grievance form by the time he was writing his summary
judgment papers and assumed that he must have done so on the date marked on
the form, failing to notice that the form included information about events that
22
occurred after that date. Even assuming that Saeli could convince a reasonable
factfinder of that account, he would still need to point to some additional
evidence that he actually submitted the informal grievance form no later than
September 29, 2016.
But there is no such evidence. The statement in Saeli’s summary judgment
memorandum that he submitted the form to an unidentified officer at an
unspecified time – assuming it references a different submission than the one that
the same memorandum asserts occurred on the date that appears on the form –
does not purport to provide the timing of the submission. Moreover, Saeli’s own
explanation in the briefing hypothesizes that he adopted the September 25 date
on the form because he had forgotten when he submitted the form, and suggests
no specific alternative date. In short, the assertion that Saeli submitted the form in
a timely manner rests entirely on speculation based on the face of the document,
which, as discussed, is inherently inaccurate.5
5
We note that this entire discussion assumes arguendo that the statement in the
summary judgment memorandum is sufficient to create a factual dispute about
whether Saeli ever submitted the form, in the face of the earlier statements in all
three complaints indicating that he had not, based largely on an inference from
the fact that the document arrived in the County’s possession from the Jail, rather
than the Commission, to which Saeli may have sent it.
23
A party seeking to defeat summary judgment “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To conclude
that Saeli submitted an informal grievance form in a timely fashion simply from
his general allegation that he submitted that form at some point would require
the factfinder to “rely on . . . unsubstantiated speculation.” Fujitsu Ltd. v. Fed.
Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).
Without some further “hard evidence” – even in the form of his own testimony
from personal knowledge – “showing that [his] version of events is not wholly
fanciful,” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), Saeli
cannot establish a genuine dispute as to whether he submitted an informal
grievance form before September 29, 2016.6
6
To be clear: If Saeli asserted that he fully exhausted his administrative
remedies, he would not bear the ultimate burden of proving at trial that he
complied with all the steps laid out in the grievance policy, including by filing
the informal grievance form. Nonexhaustion, as noted above, is an affirmative
defense. But Saeli concedes that he did not exhaust his remedies by completing
all of the steps in the grievance process. His argument is one about de facto
unavailability – that he made an attempt at compliance with the grievance
procedures, only to be thwarted by Jail personnel – an argument for which the
plaintiff bears the burden of proof. See Hubbs, 788 F.3d at 59. In any event,
regardless of which party bears the burden of proof at trial regarding the claims
or defenses at issue, where the moving party adduces some evidence based on
24
Moreover, Saeli’s account that he submitted the informal grievance form to
a correction officer, whether on September 25, 2016 or some later date, is
inconsistent with his statements in the operative complaint, in which he
repeatedly asserted that he filled out the form and attempted to give it to
Lieutenant Fuller, who returned it to him and instructed him not to “hand that
which a reasonable factfinder could accept its account, Rule 56 requires the
nonmoving party either to point to some evidence based on which a reasonable
factfinder could instead accept its account or to explain why the moving party’s
admissible evidence, even if believed, could not place the material issue in
question beyond genuine dispute. See Fed. R. Civ. P. 56(c)(1). Defendants-
Appellees pointed in their summary judgment materials to Officer Grupa’s
testimony stating that a diligent search of the Jail’s grievance records disclosed
no filed grievance forms related to the shower incident. Saeli failed to respond
with any competent evidence – even in the form of his own testimony – that he
indeed submitted an informal grievance form within the prescribed time limit.
His only response was that the County’s eventual possession of the informal
grievance form, coupled with his various assertions that he submitted the form
either (implausibly) on September 25, 2016 or on some subsequent (unspecified)
date would somehow allow a factfinder to conclude that he timely completed the
first two steps of the grievance procedure, and was thwarted by the Jail’s failure
to provide him with the formal grievance form necessary to complete the third
step in a timely manner.
Moreover, we do not mean to suggest that, in every case, a PLRA plaintiff
must recall the exact date upon which he submitted a grievance form as a
prerequisite to creating a genuine dispute of material fact as to whether he
attempted to exhaust administrative remedies. The present case is an unusual
one, in which the plaintiff offered only a specific date on which he could not
possibly have submitted the form, and to the extent that he testified more broadly
to having submitted the form, did not specify even a general time frame for that
submission.
25
in.” J. App’x at 72. In that complaint, as in the two others that preceded it, Saeli
asserted that he was intimidated by Fuller’s manner and chose to write to the
Commission of Correction rather than risk retaliation for any further effort to
submit the form. He gave the same account in sworn testimony in a related state
proceeding, where he similarly explained that after Fuller instructed him not to
hand in the form, not wanting to be “retaliated against or anything,” he “took it
back, and [] wrote a letter to the New York State Commissions of Corrections [sic]
about the incident.” Id. at 753.
We are, of course, cognizant that courts must refrain from assessing
competing evidence in the summary judgment record and avoid making
credibility judgments. See, e.g., Green v. Town of East Haven, 952 F.3d 394, 406 (2d
Cir. 2020). Accordingly, we do not undertake to assess Saeli’s credibility, or to
weigh his testimony against the evidence offered by Defendants-Appellees. We
are also cognizant, however, of the rule that to defeat summary judgment, “there
must be evidence on which the jury could reasonably find for the [non-moving
party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (emphasis added).
Moreover, we are not required to assume the truth of testimony “so replete with
inconsistencies and improbabilities that a reasonable jury could not [base a
26
favorable finding on it].” Jeffreys v. City of New York, 426 F.3d 549, 553–55 (2d Cir.
2005). Here, Saeli’s testimony that he submitted the informal grievance form on
September 25, 2016 is, as he now concedes, incompatible with the information on
that document. Neither the document itself nor Saeli’s general statements that he
at some point submitted it – which is inconsistent with his earlier assertions that
he was intimidated into not submitting it – could permit a reasonable jury to find
that he completed the initial steps of the grievance process in a timely manner.7
The district court therefore did not err in granting summary judgment on
the question of exhaustion with respect to the individual claims against the
Officers.
II. Claim Against the County
Saeli argues that the district court erred in granting summary judgment to
7
Because we conclude that the Officers were entitled to summary judgment even
if Saeli’s sworn memorandum in opposition is taken into account, we need not
address their argument that Saeli’s summary judgment “affidavit” should be
discounted under the “sham affidavit” rule because it purportedly contradicts his
sworn testimony in a separate proceeding. Compare Reese v. Herbert, 527 F.3d
1253, 1270 n.28 (11th Cir. 2008) (“[W]e would be reluctant to disregard an
affidavit of a witness, whether or not a party in the case, on the ground that it is
inconsistent with testimony the witness gave in another proceeding.”) with Essick
v. Yellow Freight Systems, Inc., 965 F.2d 334, 335 (7th Cir. 1992) (applying sham
affidavit rule where testimony was given in separate proceeding).
27
the County on exhaustion grounds because Defendants-Appellees have failed as
a matter of law to meet their burden of establishing that the grievance policy
applied to that claim. We agree.
As an initial matter, we reject Defendants’-Appellees’ contention that Saeli
has waived any argument related to the grievability of the handcuffing claim by
failing to raise the issue sufficiently below. While “it is a well-established general
rule that an appellate court will not consider an issue raised for the first time on
appeal,” Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994), it is likewise “well
established that the submissions of a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that they suggest,” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks,
citation, and emphasis omitted). Saeli, who proceeded pro se below, alleged in his
operative complaint that an officer told him “that the method and policy of
handcuffing Plaintiff and others is outside the control of the jail and thus not
grievable.” J. App’x at 62. We easily construe that allegation to imply that Saeli
assumed the officer’s statement was accurate and believed the handcuffing policy
to be nongrievable. Although Saeli did not reiterate that position in his
opposition to the motion for summary judgment, Defendants-Appellees, who
28
bore the burden of demonstrating that a grievance policy existed and applied to
Saeli’s claims, argued that the grievance policy applied to the handcuffing claim
against the County only in a footnote in their summary judgment brief, without
acknowledging the language in the grievance policy about matters outside the
jail captain’s control. It would be inequitable to hold that a pro se litigant forfeited
any challenge to an argument by failing to reiterate, in response to a footnote, a
point made in earlier pleadings, especially where, as discussed below, the text of
the grievance policy itself demonstrates that what Saeli was told was actually
correct. Accordingly, we reject Defendants’-Appellees’ waiver argument and
proceed to the merits of Saeli’s nongrievability argument.
With respect to his claim against the County, Saeli does not argue that an
applicable grievance policy was unavailable to him merely because he relied on a
correction officer’s statement that the claim was not grievable; rather, he argues
that there was no grievance policy applicable to that claim in the first instance.
“Whether an administrative remedy was available to a prisoner in a particular
prison or prison system, and whether such remedy was applicable to the
grievance underlying the prisoner’s suit, are not questions of fact. They either are,
or inevitably contain, questions of law.” Snider v. Melindez, 199 F.3d 108, 113-14
29
(2d Cir. 1999) (footnote omitted). For that reason, Saeli’s argument does not turn
on whatever a correction officer may have told him regarding the grievability of
the handcuffing policy after the September 12, 2016 handcuffing incident.8 We
must look to the grievance policy itself to determine whether it applied to Saeli’s
claim against the County.
The text of the grievance policy expressly excludes certain types of claims
from the grievance procedures. One such excluded category is “issues that are
outside the authority of the jail captain to control.” J. App’x at 385. Thus, if the jail
captain did not have the authority to change the handcuffing policy – the sole
subject of the claim against the County – then that claim was not grievable.9
8
The case on which Defendants-Appellees principally rely – Bennett v. James, 737
F. Supp. 2d 219 (S.D.N.Y. 2010) – is therefore inapposite. In that case, there was
no dispute that the jail’s grievance policy applied to the plaintiff’s claims as a
matter of law; the plaintiff simply alleged, inter alia, that an unnamed officer
“told” him that his claims were nongrievable. Id. at 226-27. The court determined
that the plaintiff’s allegation was “conclusory” and therefore held that it could
not establish a genuine dispute of material fact as to the de facto unavailability of
administrative remedies. Id. But Saeli does not argue that he was deterred from
filing a grievance because he was misled by a correction officer’s inaccurate
advice. He contends that the correction officer was right, based on the plain
meaning of the grievance policy.
9
We reject Defendants’-Appellees’ argument that the grievance policy merely
provides that the excluded issues “‘may not be appealed to the jail captain,’ not
that an inmate is immune from filing an informal or formal grievance [regarding
30
Policy documents that Defendants-Appellees introduced into the record
below make clear that it was the Sheriff’s Department, not the Jail, that set the
handcuffing policy, and that the jail captain was subject to that policy. In
particular, a June 8, 2009 order of then-Sheriff Joseph A. Gerace set out the
applicable handcuffing policies and expressly provided that those policies bound
the captain and other Jail personnel. Defendants-Appellees do not dispute that
the Sheriff’s order and similar documents that they introduced into the summary
judgment record accurately reflect the handcuffing policies in place at the time
and the authority under which those policies were promulgated. To the contrary,
they described the documents in question in their summary judgment papers as
“true and accurate copies of relevant Chautauqua County handcuffing policies
that were in effect on September 24, 2016,” id. at 240.10
such issues] in the first instance.” Appellees’ Br. at 42-43, quoting J. App’x at 385
(double emphasis in original). That argument ignores the portion of the
preceding sentence in the grievance policy stating that the excluded issues “are
not grievable issues.” J. App’x at 385.
10
We reject the County’s attempt to recast Saeli’s Monell claim as a challenge to
the Officers’ deviation from the County handcuffing policy or a challenge to a non-
existent “new” policy, rather than the existing County policy. Saeli has
consistently stated that the County maintained a policy requiring that inmates be
handcuffed with their hands in a backwards position, and that the Officers
placed his hands in that position during the September 24 incident. Whether or
31
It appears, then, that the handcuffing policy was outside the jail captain’s
control and thus, as a matter of law, outside the scope of the grievance policy.
Defendants-Appellees offer no explanation whatsoever as to how, in light of the
authority under which the handcuffing policy was undisputedly issued, it could
have been a matter within the jail captain’s control. They have therefore failed to
meet their burden of establishing that the grievance policy applied to the
handcuffing claim against the County.
Defendants-Appellees nevertheless argue that even if the handcuffing
policy was not independently grievable, Saeli’s exhaustion of his claim against
the County necessarily rises and falls with that of his claims against the Officers.
Specifically, Defendants-Appellees contend that although the handcuffing claim
alleges injury resulting from an official policy or custom as required for § 1983
suits against municipalities under Monell, it is not truly an independent claim,
because it and the claims against the Officers arose from a “single incident.”
Appellees’ Br. at 38. Defendants-Appellees observe that this Court’s order
not Saeli ultimately establishes these facts to support the merits of his Monell
claim, the “underlying dispute” here involves a challenge to a purported County
policy. Hubbs, 788 F.3d at 59. We therefore must determine whether the grievance
policy applies to that dispute.
32
allowing Saeli to proceed in forma pauperis limited his appeal to the “September
2016 incident,” ECF No. 32 at 1, and contend that the singular “incident” most
likely refers to the September 24, 2016 shower incident, thus foreclosing any
reliance by Saeli on the September 12, 2016 handcuffing incident. But even
though the September 12 incident is no longer a part of this case, their argument
is unavailing because it relies on misconceptions of what the PLRA requires.
Courts evaluating nonexhaustion defenses under the PLRA must do so on
a claim-by-claim basis and may not dismiss the entire action because some, but
not all, claims are unexhausted. See Jones, 549 U.S. at 219-24; Ortiz v. McBride, 380
F.3d 649, 655-63 (2d Cir. 2004). As the Supreme Court has explained, that rule is
in line with a general principle that courts follow in applying other procedural
limitations on bringing claims, such as statutes of limitations: “[I]f a complaint
contains both good and bad claims, the court proceeds with the good and leaves
the bad.” Jones, 549 U.S. at 220-21. Moreover, evaluating exhaustion on an entire-
action basis might incentivize “inmates [to] file various claims in separate suits,
to avoid the possibility of an unexhausted claim tainting the others,” an outcome
that “would certainly not comport with the purpose of the PLRA to reduce the
quantity of inmate suits.” Id. at 223.
33
It follows that courts must ask with respect to each claim that an inmate
brings whether “a grievance process exists and applies to the underlying
dispute.” Hubbs, 788 F.3d at 59. As in any area of the law, multiple “underlying
dispute[s],” id., may well arise from a single incident. In the PLRA context, a
single encounter with a correction officer may result in claims of multiple
constitutional violations, or even claims that multiple aspects of the officer’s
conduct violated the same constitutional right several times over. That a
grievance policy applied to one of those claims does not make the administrative
process any more “available” to the inmate with respect to other claims that the
grievance policy excludes.
The authority that the County cites is not to the contrary. In Booth v.
Churner, 532 U.S. 731 (2001), the Supreme Court held that the unavailability of a
particular type of relief – specifically, money damages – through the grievance
process does not make that process inapplicable to a claim seeking such relief
where the process allows for “the possibility of some relief for the action
complained of.” Id. at 738-41. The thrust of Booth is that it is the substance of the
underlying claim, not the relief sought, that makes a claim grievable, and thus an
administrative process “available,” within the meaning of the PLRA.
34
The type of relief sought is not at issue in the present case. Saeli separately
challenges (1) the Officers’ use of physical force to extract him from the shower
and subject him to handcuffing; and (2) the manner in which the handcuffs were
affixed, which he contends caused him distinct pain and different injuries. The
latter was beyond the power of the jail captain to remedy or alter, since it was
dictated by the Sheriff’s policies.
The mere fact that a Monell claim and a claim against an individual officer
relate to the same incident does not render those claims identical in substance. It
is true that a plaintiff who brings a Monell claim against a county must
demonstrate that the county “had (1) an official policy or custom that (2) cause[d]
[him] to be subjected to (3) a denial of a constitutional right.” Torcivia v. Suffolk
County, 17 F.4th 342, 355 (2021), quoting Wray v. City of New York, 490 F.3d 189,
195 (2d Cir. 2007) (internal quotation marks omitted) (alterations in original); see
also Anilao v. Spota, 27 F.4th 855, 873-74 (2d Cir. 2022) (same). It is also a necessary
corollary that such a suit involves conduct by officers in accordance with said
policy or custom. But it does not follow that where a § 1983 plaintiff brings both a
Monell claim against a municipality and individual claims against that
municipality’s officers, the underlying substance of those claims will be identical,
35
even if the claims involve some degree of factual overlap.
Here, the fact that Saeli’s claim against the County is a Monell claim related
to the Officers’ individual conduct does not mean that it is a mere repackaging of
the individual claims, identical but for the name on the other side of the “v.”
Rather, the substance underlying Saeli’s claim against the County is confined
narrowly to the handcuffing policy, while the individual claims assert a broader
theory of excessive force: that Genther “violently and unnecessarily forced [Saeli]
to the ground,” after which both Officers “knelt on [Saeli’s] back and spine with
all their weight” and handcuffed him in accordance with the County’s policy. J.
App’x at 64. In addition to the nerve damage in his wrists that Saeli attributes to
the handcuffing, he alleges that the Officers’ use of force, separate from the
manner in which the handcuffs were affixed, caused “injuries to his back [and]
shoulders.” Id. at 65. The claim against the County solely involves subject matter
that, as explained above, is outside the jail captain’s control and thus
nongrievable.11 In contrast, the excessive force claims against the Officers are
11
That the claim against the County is predicated on the conduct of the two
Officers does not affect the analysis. While the Officers may be under the
command of the jail captain, it remains the case that the conduct objected to – the
way in which the handcuffs were affixed – is beyond the ability of the jail captain
to control, alter, or remedy, since the captain, like the Officers, is bound by the
36
based on distinct uses of force that we have no reason to doubt the jail captain
could prohibit or discipline. For that reason, we reject Defendants’-Appellees’
argument that Saeli’s exhaustion of the former rises and falls with that of the
latter.
Defendants-Appellees argue that, even if Saeli’s handcuffing claim against
the County fell outside the grievance policy, precluding summary judgment on
the basis of non-exhaustion, we nevertheless should affirm because the claim
lacks merit. It is possible that Saeli has failed to present sufficient evidence to
permit a reasonable factfinder to conclude that the County’s handcuffing policy
violated his constitutional rights. But while “[i]t is well settled that we may
affirm [a district court’s decision] on any grounds for which there is a record
sufficient to permit conclusions of law, including grounds not relied upon by the
district court,” we have “discretion to choose not to do so based on prudential
factors and concerns.” In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144,
157-58 (2d Cir. 2015) (internal quotation marks and citations omitted). In the
present case, this Court limited Saeli’s appeal to the exhaustion question. It
would be unfair to affirm on a ground that we instructed him not to address on
Sheriff’s policy.
37
appeal. We therefore decline to decide whether Saeli’s Monell claim fails, at the
summary judgment stage, on the merits. That question remains to be decided by
the district court on remand. That said, because we hold that Saeli may not press
his unexhausted excessive-force claims against the individual Officers and may
challenge only the handcuffing policy, which is beyond the authority of the jail
captain to control, he may recover only to the extent that he demonstrates at trial
that the handcuffing policy itself, rather than an improper or excessively rough
implementation of it by the Officers, unlawfully caused his injuries.
In sum, the district court erred as a matter of law in holding that Saeli was
required to grieve his handcuffing claim against the County through the Jail’s
grievance procedure. Because no extant grievance policy applied to that claim,
the County lacks a valid PLRA nonexhaustion defense.
CONCLUSION
For the foregoing reasons, we hold that the district court did not err in
granting summary judgment on exhaustion grounds with regard to Saeli’s claims
against the Officers, but that it did err in doing so with regard to his claim against
the County. Accordingly, we AFFIRM the judgment of the district court as to the
Officers, VACATE the judgment as to the County, and REMAND for further
proceedings consistent with this Opinion.
38
Saeli v. Chautauqua County
Combined Opinion