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adopting magistrate's report but modifying reasoning to determine "challenge to the court's jurisdiction" instead of Rule 12(b)
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01 Civ. 0181 (RCC)(RLE)
September 17, 2002
OPINION AND ORDER
Pro se plaintiff Henry Benitez ("Benitez") brings this action pursuant to 42 U.S.C. § 1983 and arising from a series of incidents at Green Haven Correctional Facility ("Green Haven") and Attica Correctional Facility ("Attica"). Of the thirty-four named defendants ("Defendants") at Green Haven, Attica, and the New York State Department of Correctional Services ("DOCS"), Benitez served eighteen. Those eighteen defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on several grounds, but most significantly, on Benitez's failure to exhaust administrative remedies as required under the Prison Litigation Reform Act ("PLRA"). In his Report and Recommendation dated March 27, 2002 ("Report"), Magistrate Judge Ellis recommended that Defendants' motion be granted on that basis.
Benitez now objects that the Report erred in refusing to consider factual allegations in his opposition to the defendants' motion that suggest that he, in fact, did exhaust his administrative remedies. Plaintiff's Written Objections to Report-Recommendation ("Pl. Obj.") at 6-7. Despite these objections, this Court concurs with the conclusion reached by Magistrate Judge Ellis but for somewhat different reasons.
I. BACKGROUND
For purposes of filing the instant complaint, Benitez completed a standard form that is required of all prisoners filing § 1983 claims in the Southern District of New York under Local Rule 33.2. See Complaint [Compl.]. Benitez also included over fifty hand-written pages of factual allegations. On the standard form however, Benitez checked a box to indicate that he had "present[ed] the facts relating to [his] complaint in the state prisoner grievance procedure." Id. at 2. On the same form, Benitez stated that he "submitted grievance and handwritten complaints" that were "denied." Id.
In support of their argument that Benitez failed to exhaust his administrative remedies, Defendants submitted an affidavit from the Assistant to the Director of the Inmate Grievance Program ("IGP"), and a computer printout from the Central Office Review Committee ("CORC") listing appeals by Benitez. Affidavit of Karen Bellamy, dated August 14, 2001 [Bellamy Aff.]; Exh. A of Bellamy Aff. Based on these submissions, Defendants argued that Benitez failed to appeal to the CORC, the final and exhaustive appeal in the IGP, and therefore failed to exhaust his administrative remedies. Defendants' Memorandum of Law ("Def. Mem.") at 16.
In his opposition papers however, Benitez claimed that he filed six grievance complaints with the IGRC, and received six Informal Grievance Recommendation Letters ("IGRLs") providing for informal resolution of his complaints. Plaintiff's Affidavit and Memorandum of Law in Opposition to Defendants' Motion for Relief ("Pl. Mem.") at ¶¶ 4-15. He asserted that he found the recommendations in the IGRLs satisfactory, and therefore, resolved the grievances informally by signing and dating the recommendation letters. Id. at ¶¶ 5, 7, 9, 11, 13, 15. Magistrate Judge Ellis found this position "inconsistent" with Benitez's complaint which stated that his grievances were denied. Report at 3. Magistrate Judge Ellis therefore declined to consider Benitez's additional factual allegations of informal resolution and thus recommended dismissal. Id. at 4-5.
II DISCUSSION
The district court applies a de novo standard of review to those parts of a Report and Recommendation to which any party objects. See FED. R. CIV. P. 72(b).
Benitez objects that Magistrate Judge Ellis should not have read his complaint and opposition papers to mean that his grievances were "denied" but instead that the resolutions themselves were "denied" in fact by the failure of the IGRC to effect the remedies agreed to. Pl. Obj. at 6. Benitez further objects that his informal resolutions constitute administrative exhaustion because the grievances were "`closed'", upon his signing the IGRLs and that "there are no provision [sic] [authorizing] `appellate review.'" Id. at 6-7.
As a preliminary matter, the Court addresses the appropriate standard of review for purposes of Defendants' motion. Defendants brought their motion pursuant to Rule 12(b)(6) and in his Report, Magistrate Judge Ellis applied the standard of dismissal under Rule 12(b)(6). Courts have reasoned, however, that when a defendant moves for dismissal on the grounds of failure to exhaust administrative remedies, the defendant is raising a challenge to the court's jurisdiction. See Long v. Lafko, 2001 WL 863422, at *1 (S.D.N.Y. July 31, 2001) ("Courts . . . have treated failure to exhaust administrative remedies under the PLRA as implicating a court's subject matter jurisdiction."); and Johnson v. Bendheim, 2001 WL 799569, at *4 (S.D.N.Y. July 13, 2001) (citing DiLaura v. Power Authority, 982 F.2d 73, 79 (2d Cir. 1992) ("Failure to exhaust administrative remedies permits a court to dismiss the action because no subject matter jurisdiction exists."). Accordingly, courts have reviewed the entire record, including evidence outside the pleadings, such as affidavits, in order to determine whether dismissal is appropriate for lack of subject matter jurisdiction under Rule 12(b)(1). See Kaplan v. N.Y.S. D.O.C.S., 2000 WL 959728, at *1 n. 3 (S.D.N.Y. July 10, 2000). Accordingly, the Court concludes that Defendants' motion is more properly construed as a Rule 12(b)(1) motion to dismiss.
Because courts may consider matters outside the pleadings, such as affidavits, documents and testimony in deciding a motion to dismiss for lack of subject matter jurisdiction, the standard used to evaluate a Rule 12(b)(1) motion is similar to that used for summary judgment under Rule 56. See Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002); Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Additionally, the plaintiff has the ultimate burden of proving the Court's jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983). However, a complaint prepared by a pro se plaintiff is held "to less stringent standards than formal pleadings drafted by lawyers." Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)). This standard is more rigorously applied where the plaintiff alleges civil rights violations or where the plaintiff is proceeding pro se. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).
The Court now turns to the evidence in the record. Benitez did not provide the Court with copies of his grievance complaints or the IGRLs, stating that he did not have the funds to copy them. Pl. Mem. at ¶ 5, n. 10. Magistrate Judge Ellis therefore ordered that Defendants' counsel provide copies of these documents to the Court. In three separate letters, counsel for Defendants provided the Court with the requested documents, explaining that: while at Green Haven and during the relevant time period, Benitez filed only one grievance, GH 40061-98, which was denied on July 13, 1998; and that while at Attica, Benitez filed only two grievances, 38402-99 and 38472-99, both of which were dismissed. See Letters from Assistant Attorney General, Rebecca Durden, dated March 8, 2002, March 25, 2002, and September 4, 2002. As stated earlier, Defendants also represent that there is no record of Benitez's filing any appeals with the CORC.
Based on the evidence in the record, it is apparent that, despite Benitez's assertions in his opposition papers and his objections, his grievances were not informally resolved but rather were dismissed and he failed to appeal them to the CORC. He failed, therefore, to exhaust his administrative remedies, as required under the PLRA, 42 U.S.C. § 1997 (e). Accordingly, Defendants' motion to dismiss should be granted.
The Court shares Judge Ellis' concern for judicial economy and dismisses the complaint for failure to exhaust administrative remedies for all defendants, including those defendants not served. Report at 6.
III. CONCLUSION
This Court adopts Magistrate Judge Ellis's Report and Recommendation with the above-mentioned modifications to the reasoning. It is hereby ordered that Defendants' motion to dismiss be granted without prejudice. The Clerk of the Court is directed to close this case.
SO ORDERED.