Richard KEARNEY, Plaintiff-Appellant, v. D. GEBO, Correction Officer, Great Meadow Correctional Facility, M. Ross, Correction Officer, Great Meadow Correctional Facility, Rae, Sgt., Coxsackie Correctional Facility, FKA Roe, Defendants-Appellees, NYS DOCCS, Jon Miller, M.D., Coxsackie Correctional Facility, Jane Doe, Nurse, Coxsackie Correctional Facility, Defendants, 713 F. App'x 39

SUMMARY ORDER Appellant Richard Kearney, incarcerated and proceeding pro se, appeals the District Court’s judgment dismissing his claims, brought pursuant to 42 U.S.C. § 1983, in which he alleges that on March 9, 2012, at Coxsackie Correctional Facility in Coxsackie, New York, two corrections officers beat him and another officer aware of the assault improperly failed to intervene. Kearney alleges that he complained about the incident to the New York State Department of Corrections and Community Supervision (“DOCCS”) Inspector General’s Office and to the New York State Commission of Correction.

After holding an evidentiary hearing, the District Court ruled in favor of defendants on their exhaustion-of-remedies defense and dismissed Kearney’s claims. The District Court concluded that Kearney was subject to the Prison Litigation Reform Act’s (“PLRA”) requirement that he exhaust his administrative remedies before bringing suit, and that he failed to do so.

The District Court noted that Kearney’s complaints to the Inspector General’s Office and Commission of Correction did not comply with New York’s inmate grievance procedures, and found that the regular inmate grievance procedures remained available to him even when he was in the facility’s Special Housing Unit (“SHU”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, to which we refer only as necessary to explain our decision to affirm.

We review de novo a district court’s ruling as to whether a plaintiff has exhausted administrative remedies as required by the PLRA. Williams v. Corr. Officer Priatno, 829 F.3d 118, 121-22 (2d Cir. 2016). We review for clear error a district court’s findings of fact and its credibility determinations made following an evidentiary hearing. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The PLRA requires prisoners to exhaust available administrative remedies before bringing a

Section 1983 action related to “prison conditions.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies to “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The PLRA further demands compliance with the prison grievance system’s procedural rales regarding administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).

New York law calls for prisoners generally to follow a grievance procedure comprised of three steps: (1) filing a complaint to be resolved by the Inmate Grievance Resolution Committee (“IGRC”); (2) appealing an adverse decision by the IGRC to the superintendent of the facility; and (3) appealing any further adverse decision by the superintendent to the prison system’s Central Office Review Committee (“CORC”). N.Y. Comp.

Codes R. & Regs. (“NYCRR”) tit. 7, §§ 701.1(c) (setting out complaint filing and appeals framework), 701.5 (“Procedure”); see also NYCRR tit. 7, §§ 701.7 (“Procedures for inmates in special housing units (SHU’s)”), 701.8 (setting forth “expedited procedure” for review of “employee harassment” allegations). Exhaustion is mandatory, however, only as long as a grievance process is actually “available” to the prisoner. Ross v. Blake, — U.S. —, 136 S.Ct. 1850, 1858, 195 L.Ed.2d 117 (2016).

Courts treat a prison grievance procedure as not available in three circumstances: when (1) it “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of use”; and (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. Kearney does not dispute that he failed to comply with the state’s prison grievance procedures.

Kearney argues, instead, that exhaustion is an affirmative defense, see Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), and that defendants did not establish the defense; indeed, he says, the grievance procedures were not “available” to him, as that term has been interpreted by the Supreme Court, see Ross, 136 S.Ct. at 1858-60. Kearney first observes that defendants offered no testimony about the availability of the ordinary prison grievance procedures and the standard grievance forms from correction officers who worked in the SHU where Kearney was housed, within the Coxsackie prison.

We are unconvinced. Whether or not the standard inmate grievance form was available to Kearney when he lived in the SHU, New York regulations expressly allow for grievances to be submitted “on plain paper” when the grievance form is not readily available. See NYCRR tit. 7, § 701.5(a)(1). The unrebut-ted testimony offered by defendants established that inmates could and sometimes did submit grievances on many different kinds of paper, rather than on the pre-printed form.

Furthermore, Kearney testified that he had access to writing supplies while in the SHU and that he was able to send complaints to the Inspector General’s Office and to the Commission of Correction. The District Court thus had before it evidence that inmate grievances could be filed on any kind of paper, that Kearney had access to writing materials while in the SHU, and that Kearney’s written complaints to the Inspector General’s Office and the Commission of Correction reached their intended recipients.

We see no error in the District Court’s conclusion on the basis of this evidence that defendants established that Kearney could have filed a grievance. Kearney also contends that the inmate grievance procedure was “unavailable” to him under Ross v. Blake, — U.S. —, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016), because he complained about the alleged beating to the Inspector General’s Office and Commission of Correction and was assured that they were investigating his complaint—suggesting, he claims, that no more was required.

Kearney’s pursuit of alternative relief from the Inspector General’s Office and Commission of Correction did not render the ordinary inmate grievance procedures “unavailable” to him, such that he is excused from complying with those ordinary procedures. Their pen-dency did not preclude him from filing a grievance. Nor do any assurances Kearney received that these offices were considering his complaint warrant a finding that prison administrators thwarted Kearney from pursuing the ordinary grievance procedures “through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60.

There may be circumstances, such as those presented in Ross, see id. at 1860-62, in which an inmate is foreclosed from submitting a grievance by virtue of a concurrent administrative investigation, but the record here does not support such a finding. We therefore reject Kearney’s argument that the District Court erred in finding that the inmate grievance procedures were available to him. We have considered all of Kearney’s remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court. .

Kearney’s pro se complaint states that he also wrote to Coxsackie's superintendent regarding the alleged assault. Kearney does not, however, mention this communication in his brief on appeal, and thus any argument that the District Court insufficiently addressed this allegation is waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998).