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finding that defendants' Rule 12(b) motion to dismiss for failure to exhaust was "more appropriately addressed under Rule 12(b)"
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01-CV-7753 (FB) (LB)
June 16, 2003
JONAS ANTONIO BRITO, Brooklyn, NY, Pro Se.
ROSLYNN R. MAUSKOPE, ESQ., United States Attorney, ORELIA E. MERCHANT, ESQ., Assistant United States Attorney, Brooklyn, NY, For the Defendants
MEMORANDUM AND ORDER
Pro se plaintiff Jonas Antonio Brito ("Brito"), a federal prisoner, brings this Bivens action, alleging that while he was incarcerated at the Metropolitan Detention Center, he suffered a broken right knee and was not treated by the medical staff for four days. Defendants move to dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), or alternatively, move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or for summary judgment pursuant to Rule 56. Defendants issued Brito the requisite Local Rule 56.2 notice of motion. In opposition to the motion, Brito submitted a memorandum and several exhibits.
Defendants argue, inter alia, that Brito's claims should be dismissed pursuant to Rule 12(b)(1) because he has failed to comply with the exhaustion requirement of the Prison Litigation Reform Act ("PLRA"). The PLRA mandates that plaintiffs fully exhaust a prison's administrative grievance procedures prior to bringing Bivens claims against federal officers in their individual capacities in federal court. See PLRA, 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, 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."); Booth v. Churner, 532 U.S. 731, 735, 741 (2001) (requiring plaintiffs to complete all stages of administrative process for claims to be deemed exhausted); see also Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding that "PLRAs 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"). To exhaust in the federal prison system, prisoners must comply with a four-step process codified at 28 C.F.R. § 542, which requires that:
an inmate must first attempt to informally resolve his claims. See 28 C.F.R. § 542.13(a). Second, if dissatisfied with the informal resolution, the inmate must use a designated form to submit a written "Administrative Remedy Request to the Warden within twenty days of the events triggering the complaint. See 28 C.F.R. § 542.14(a). Third, if the formal request is denied, the inmate must appeal to the appropriate BOP Regional Director. See 28 C.F.R. § 15(a). Finally, an inmate must appeal a negative decision by the BOP Regional Director to the BOPs Office of General Counsel within thirty days of the date of the Regional Counsel's decision. Id.Indelicato v. Suarez, 207 F. Supp.2d 216, 218-19 (S.D.N.Y. 2002). Failure to exhaust the PLRA's administrative remedies is an affirmative defense. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999).
Although defendants move to dismiss for failure to exhaust pursuant to Rule 12(b)(1), the Court agrees with the majority of the courts in the Eastern and Southern Districts of New York to have addressed the question that exhaustion under the PLRA is not a jurisdictional prerequisite. As Judge Chin recently noted in his thorough opinion in McCoy v. Goord, — F. Supp.2d —, No. 01 CV 3133, 2003 WL 1479232 (S.D.N.Y. March 25, 2003), although "the Second Circuit has not explicitly ruled on the issue of whether exhaustion is jurisdictional," "the majority of the courts to . . . address the issue have agreed that exhaustion in the PLRA context is not jurisdictional[.]" Id. (collecting cases). The majority's conclusion is well supported by the rationale that unlike subject matter jurisdiction, which must be pled, see Fed.R.Civ.P. 8(a), and is not waivable, In re Stock Exchs. Options Trading Antitrust Litig., 317 F.3d 134 (2d Cir. 2003), "exhaustion [under the PLRA] need not be pled, . . . and may be waived." McCoy, 2003 WL 1479232 (citing Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 2002) and Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002)). Accordingly, the Court concludes that defendants' motion to dismiss for failure to exhaust is more appropriately addressed under Rule 12(b)(6). See Dimick v. Baruffo, No. 02 CV 2151, 2003 WL 660826, at *2 n. 1 (S.D.N.Y. Feb. 28, 2003) (concluding that motion to dismiss for failure to exhaust under PLRA is "more appropriately addressed under Rule 12(b)(6)").
In his Complaint, Brito does not claim that he has exhausted his administrative remedies. Instead, he states that
[t]here [are] no real grievances in this place but only a facade and sham named BP 9, BP 10, [and] BP 11 that only satisfy and cover the BOP staff members. In fact, such administrative remedies exist only for aesthetic purposes and [are] of no value for any inmate.
Compl. at 1. Brito's claim that the administrative remedies set forth in 28 C.F.R. § 542 are "a sham" is unavailing. See Giano v. Goord, 250 F.3d 146, 150-151 (2d Cir. 2001) ("[T]he alleged ineffectiveness of the administrative remedies that are available does not absolve a prisoner of his obligation to exhaust such remedies when Congress has specifically mandated that he do so."). The Court need not resort to material outside the complaint to determine whether Brito has exhausted his remedies; it is clear from the face of his complaint that he has not. "An affirmative defense may be raised by a . . . motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.'" McCoy, 2003 WL 1479232 (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998)).
Accordingly, pursuant to Rule 12(b)(6), the Court dismisses Brito's complaint, without prejudice, for failure to exhaust. See Morales v. Mackalm, 278 F.3d 126, 128 (2d Cir. 2002) ("[I]f a district court dismisses a prisoners complaint for failure to exhaust administrative remedies, it should do so without prejudice.").