The case is Dennis v. Westchester County Jail, a summary order decided on June 13. The case was dismissed because Dennis did not file an internal grievance. He "was advised that the issue was non-grievable, and he was not given a grievance form." While defendants say that Dennis could get a form from the prison law library, that was not the case here. As the district court made no finding as to whether plaintiff tried to file a grievance and whether there was a way for him to do so, the case is remanded to see if "special circumstances" justify his failure to file a grievance.
The Second Circuit (Chin, Jacobs and Droney) also says that plaintiff has enough evidence to win a deliberate indifference case against a corrections officer, Hopkins, who allegedly did not intervene when other inmates threatened to assault him. (Jail officers have to protect the inmates from beatings). The Court says:
One of the assailants testified that he informed Hopkins of the planned assault, that Hopkins replied that “he wouldn’t mind, you know, do what you got to do,” that Hopkins instructed another officer to open a gate separating Dennis from the assailants, and that, during the assault, Hopkins told the assailants: “you all better hurry up and finish, because the [ERT] is coming.” This evidence is creates a fact issue "as to whether Hopkins was deliberately indifferent to a substantial risk of serious harm to Dennis.